About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 214
|
|
Wilke N.O and Others v Griekwaland Wes Korporatief Ltd (592/2019) [2019] ZAFSHC 214 (7 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates:
NO
Case number:
592/2019
In
the matter between:
CHARL
DANIEL WILKE N.O.
1
st
Applicant
THERESA
WILKE
N.O.
2
nd
Applicant
T.
ROOS INDEPENDENT TRUSTEE (EDMS) BPK
3
rd
Applicant
(Registration
no: 2017/119408/07)
and
GRIEKWALAND WES
KORPORATIEF LTD
Respondent
CORAM:
JP DAFFUE, ADJP
HEARD
ON:
4 OCTOBER 2019
JUDGMENT
BY:
JP DAFFUE, ADJP
DELIVERED
ON:
7 NOVEMBER 2019
[1]
This
is an application by the applicants for leave to appeal to the
Supreme Court of Appeal against the judgment and order delivered
on
20 June 2019.
[2]
The
applicants as trustees of the Wilke Boerdery Trust unsuccessfully
sought relief in terms whereof respondent be ordered to take
all
steps to cancel a surety bond passed by them over the trust’s
immovable property in favour of respondent.
[3]
Neither
the recent unanimous judgment of the Supreme Court of Appeal in
Aon,
[1]
nor the earlier judgment
of the Supreme Court of Appeal in Caesarstone
[2]
was brought to my attention and argued before me during the main
application. Mr Grobler, who appeared for the applicants,
relied for the first time on these judgments during the application
for leave to appeal.
[4]
I quote
from Aon
[3]
:
“
I do not think
that this involves any significant development of the law in this
regard. Res judicata has always been available
as a defence
against the privies of parties to earlier litigation. Voet’s
description of those who are the same parties
for the purposes of res
judicata goes well beyond those who are privies in the strict sense
of deriving their rights from a party
to the original litigation.
”
[5]
In
paragraph 18 of my judgment of 20 June 2019 I stated the following:
“
The principles
pertaining to
res
iudicata
are trite. The dispute must have been finally adjudicated in
proceedings between (1) the same parties for (2) the same relief
on
the (3) same ground or same cause of action. Neither the
Trust, nor Henque was a party to the proceedings in the
2009 action,
obviously no cause of action was pleaded against them and no relief
was sought from them. Therefore,
cadit
quaestio
.
”
[6]
Mr
Lourens on behalf of respondent submitted that Aon dealt with only
one element of
res
judicata
and
that the judgment is irrelevant in respect of the other elements, to
wit the same relief and same cause of action.
[7]
Mr
Grobler’s submission, based on the Boshoff and Janse van
Rensburg judgments,
[4]
that the
term “cause of action” must not be interpreted narrowly
may well find favour in another forum.
[8]
Notwithstanding
the fact that the threshold for granting leave to appeal has been
raised by the
legislature
,
I am satisfied that leave to appeal should be granted to the Supreme
Court of Appeal as requested by the applicants who also relied
on the
importance of the matter and the complexity of the issues involved.
[9]
Therefore
the following orders are made:
1.
Leave is
granted to applicants to appeal to the Supreme Court of Appeal
against the judgment delivered on 20 June 2019.
2.
Costs of
this application shall be costs in the appeal.
J P DAFFUE, ADJP
On
behalf of Applicants :
Adv S Grobler SC
Instructed
by
: McIntyre & van der Post
BLOEMFONTEIN
On
behalf of Respondent :
Adv P Lourens
Instructed
by
: Symington & De Kok
BLOEMFONTEIN
[1]
Aon South Africa (Pty) Ltd v Van den Heever NO & others 2018 (6)
SA 38 (SCA)
[2]
Caesarstone SDOT – YAM Ltd v World of Marble & Granite
2000 CC & others
2013 (6) SA 499
(SCA) at para 42
[3]
Aon at para 27
[4]
Boshoff v Union Government
1932 TPD 345
at 349 and Janse van
Rensburg NO and others v Steenkamp and another; Janse van Rensburg
and others v Myburgh and others
[2009] 1 All SA 539
(SCA) at para 25