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[2016] ZAGPPHC 587
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Mineral-Loy (Pty) Ltd v Higveld Steel & Vanadium Corporation Ltd and Another (34312/2010) [2016] ZAGPPHC 587 (16 May 2016)
I
N
THE
H
I
GH
COURT
OF
SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
CASE
NUMBER:
34312/2010
DATE:
16 MAY 2016
REPORT
ABLE
OF
INTEREST
TO
OTHER
JUDGES
REVISED.
In
the matter between:
MINERAL-LOY
(PTY}
LTD
P
l
aintiff
and
H
I
GHVELD
STEEL
& VANAD
I
U
M
CORPORATION
LTD
First
Defendant
TRANSALLOYS
(PTY)
LTD
Second
Defendant
JUDGMENT
JANSE
VAN
N
I
EUWE
N
HU
IZ
E
N
J
[1)
The
i
ssue
to
be
determined
i
s
whether
two
pleas
raised
by
the
second defendant,
subsequent
to
an
amendment
to
the
plaintiffs
particulars
of
claim, are
res
judicata.
[2]
The
l
i
tigation
between
the
parties
has somewhat
of
a
history
and will
be summarised
infra i
nsofar
as
i
t
pertains
to
the
i
ssues
to
be
determined herein.
BACKGROUND
[3] The plaintiff issued summons against
the first defendant on an alleged breach of its obligations in terms
of a distribution
agreement entered into between the plaintiff and
the first defendant's Transalloys Division in October
1985.
[4]
The
plaintiffs
claim
against
the
second
defendant is based on a
purchase
and sale
agreement between the first
and second defendants, in terms
of
which
the
first
defendant
sold
its Transalloys
D
i
vision
to
the
second
defendant.
The
plaint
i
ff
alleges
that. in
terms of
the
aforesaid agreement, the
second
defendant
assumed the
r
i
ghts
and
obligations of the first
defendant
on
1
July
2007
alternatively
1
April 2008.
In the
result,
the
plaint
i
ff
avers
that
the
second
defendant
became
obliged
to
comply with the terms of the
distribution agreement.
[5] According to the plaintiff, the second defendant failed to do so
which resulted in the plaintiff cancelling the agreement and
instituting this claim for damages against the second defendant.
[6]
I
n
order
to
faci
l
i
tate
the
resolution of
the
disputes,
the
parties
agreed
to separate some
of
the
i
ssues
i
n
dispute
and
to
this
end
an
order
was granted
by
Fabricius
J
setting o
u
t
the
i
ssues
to
be
determined. A trial
on
these issues was subsequently conducted
by
Bertelsmann
J.
[7]
I
n
order
to
determine whether
the
pleas
i
ntroduced
by the
second defendant
i
n
i
ts
amended plea are
res judicata,
it
is necessary to
exami
ne
the
orders
granted by
Fabricius
and
Bertelsmann
JJ
in
some
detail.
Order
Fabricius
J
[8]
On
14
March
2013,
Fabricius
J
i
ssued
an
order
i
n
terms
of
which
27
i
ssues
were
separated
from
the
remaining
i
ssues
between
the
parties. The
i
ssues
relevant to the matter under consideration are:
"1.1. Whether the Plaintiff and First Defendant concluded the
agreement referred to in paragraph 4 and 5 of the particulars
of
claim ("the agreement”);
1.2
What precisely were the terms and conditions of the agreement;
1.3 Whether the Plaintiff and the First Defendant concluded the
amendment of the agreement
as
referred to in paragraph 8 of the particulars of claim;
1.4 Whether the Plaintiff continued rendering distribution and
support services in terms of the agreement to the First Defendant
during the period July 2007 to March 2008;
1.5 Whether the Plaintiff continued invoicing the First Defendant for
the aforesaid distribution and support services and whether
such
invoices were duly paid by the Frist Defendant;
1.6 Whether the Plaintiff during the month of April 2008 rendered the
aforesaid services to the First Defendant;
1.7 Whether during April 2008, the First Defendant furnished the
Plaintiff with the value of sales of both
m
/
c
ferromanganese and silico-manganese during month of April 2008
and the amount of commission payable to the Plaintiff in terms of
the
aforesaid April 2008 sales;
1.8 Whether the Plaintiff invoiced the First Defendant in respect of
the amount of commission referred above;
1.9. Whether during May 2008, the Plaintiff was notified
by
Claudine Wait, acting on behalf of the First Defendant
alternatively the Second Defendant or both, that the Plaintiff was
required
to re-issue the invoice issued to the First Defendant for
commission payable to the Plaintiff for the month of April 2008, to
the Second Defendant;
1.10 All further invoices for commission were to be issued by
the Plaintiff to the Second Defendant;
1.11 Whether during the months of May to September 2008 the Plaintiff
rendered the distribution and support services in accordance
with the
agreement;
1.12 Whether during the months of May to September 2008 the Plaintiff
was informed at the end of every month by W Nkosi, of the
value of
sales by the Second Defendant of both the mlc ferromanganese and
silico-manganese during the relevant month and the amount
of
commission payable to the Plaintiff;
1.13. Whether the Second Defendant failed to make payment of the
commissions for the months of August and September 2008;
1.14 Whether with effect from 1 July 2007 alternatively with effect
from or about 1 April 2008 the Second Defendant assumed the
rights
and obligations of the First Defendant under and in terms of the
agreement; (whether the agreement was assigned)
1.15 Whether with effect from 1 July 2007 alternatively with
effect
from or about 1 April 2008 the Second Defendant became obliged
to comply with and give effect to the terms of the agreement
as
pleaded in paragraph
18.
2
of the particulars of claim;
1.16 Whether at or about the end of October 2008
the
Second Defendant refused to disclose either the value of
direct silico-manganese sales effected by the Second Defendant during
the
month of October 2008 or the amount of commission due to the
Plaintiff in terms of the agreement;
1.17 Whether at or about the end of October 2008 the Second Defendant
refused to pay any commission to the Plaintiff for the month
of
October 2008;
1.18 Whether the Second Defendant's conduct referred to in paragraph
19 of the parliculars of claim evidenced an intention to no
longer be
bound by the agreement and as such whether such conduct constituted a
repudiation of the agreement;
1.19 Whether the Plaintiff elected to accept the repudiation and
cancel the agreement;
….....
1.23 Whether payments made by the Second Defendant to the
Plaintiff were made in the bona fide and reasonable but
mistaken belief
that
they
were due
to
the
Plaintiff;
1.24
Whether such payments were not due to the Plaintiff by the
Second Defendant;
1.25
Whether the Second
Defendant derived the benefits of the distribution and support
services rendered by the Plaintiff during the
period of April
2008
to July 2008;
1.26
Whether the
Plaintiff has been enriched at the Second Defendant's expense in
the amount of R560
219
.
76;
1.27
Whether the Second Defendant was impoverished by the
amount of R560 219.
76."
[9] I pause to mention, that the second defendant's plea at the
time was, safe for admitting the conclusion of the sale
and
purchase agreement, a bare denial.
Judgment
Bertelsmann
J
[10] On
3 June 2013, Bertelsmann
J,
made the following
order:
1. Plaintiff succeeds against the
second defendant in respect of each and every issue identified in
the Order of this Court on
the
14m
March 2013 in paragraphs 1.1 to and including 1.19
with costs, such costs to include the costs of the earlier
postponement;
2. The issues identified in paragraphs 1.23 and including 1.27 are
decided against the second defendant in favour of the plaintiff;
with costs, including the costs of the earlier postponement;
3. The issues recorded in par 1.20 fall
away;
The issues identified in par
1.21.1 to 1.21.4
are
decided in favour of the first defendant with costs,
such costs to include the costs of the earlier postponement."
PLEADINGS
Plaintiff's
amendment
[11]
Subsequent
to
the
judgment,
the
plaintiff
effected
the
following
amendments
to
i
ts
particulars of claim:
i.
the
amount claimed for damages consequent upon
the
repudiation
of
the distribution agreement was
i
ncreased
from
R
1
195
403, 76 to
R
5
237
121,00
on
the
basis
that
the
average
amount
of
the
monthly
i
nvoices
i
ssued
by
the
p
l
aint
i
ff
during
the
1
2
month period
preceding
the
repudiation
is
R 436 426,
75
and
not
R
99
616, 98
as
i
n
i
tially
averred;
ii.
i
ntroducing
two
further
claims
for
damages
due
to
the
breach
of
the distribution agreement
by
the
second defendant, to wit :
a.
the conclusion
of
a
tolling
agreement
with
a potential
client
(Afro
Minerals
Tradi
n
g
AG)
(ATM)
o
f
the
plaint
i
ff,
which
resu
l
ted
i
n
a
l
oss
of profit
i
n
the amount of R
15
071
485,
04;
b.
by
selling
and
distributing
products
direct
l
y
to the
p
l
aintiff's
clients
and
by
failing
to
disclose
all
sales to customers
on
which
sales the
plaintiff
was
entitled
to
a
commission,
which
resu
l
ted
i
n
damages
in
the
amount
of
R
5
093
663,
00.
Second defendant's amendment
[
1
2]
I
n
tum,
the
second
defendant
amended
i
ts
p
l
ea,
by
alleging
a
further
amendment
of
the
distribution
agreement
alternatively
a
waiver
of
the
terms
of the agreement. The amendment reads as
follows:
"9.
Ad
paragraph
8
(including
the
sub-paragraphs)
9.1. The second defendant admits these paragraphs only insofar as
they accord with the express findings of the judgment.
Save
as
aforesaid every
allegation contained in these paragraphs is denied.
9.2.
In addition to the above:
9.2.1. On or about 21 December 2006 and at Witbank,
alternatively
Johannesburg, the first defendant, represented by a duly
authorised representative and the plaintiff represented by Mr Simon
van
Niekerk, orally, alternatively, partly in writing and partly
tacitly further alternatively, tacitly agreed to vary the terms of
the distribution agreement (as amended)
("the
variation").
9.2.2.
A
copy of the written portion of the variation is
annexed hereto marked
P1.
9.3. The material express, alternatively tacit, further alternatively
implied terms of the variation (and with the written portion
properly
construed) are as follows:
9.3.
1. The plaintiff was
appointed as the first defendant's agent for local sales;
9.3.2. the first defendant would pay to the plaintiff
a
commission of 2% for sales to:
9.3.2.1.
Boksburg Foundry;
9.3.2.2. Cape Gate;
9.3.2.3. Dimbaza Foundry;
9.3.2.4.
Ozz
Foundries;
9.3.2.5 . Prima Industrial Holdings.
("the
closed list
of
customers'')
Any clients of the first defendant visited by the plaintiff would
be issued with
a
referral number, to be used when the client
places an order with the first defendant;
9
.
3
.
4.
Orders placed with the first defendant without
a
referral number would not
be
included for commission payable to the plaintiff;
9
.
3.
5
.
the plaintiff was obliged to submit a monthly visitation
report to the first and/or second defendant detailing the clients
visited
during the month with the referral number that has been
issued;
9.
3.
6.
For market development, the plaintiff would consult with the first
defendant prior to visiting
a
new client to ensure that the client is not
already a direct client of the defendant.
9.4. In the alternative
to
what is pleaded in paragraphs
9.
2
and
9.
3 above, the
second defendant pleads that at all material times the plaintiff
was
fully aware of its rights in terms of the distribution
agreement (as amended) and in and during December 2008 and at all
times
thereafter the plaintiff
was
fully aware of its rights in terms of the distribution
agreement
(
as
amended) and in and during December 2008 and at all times
thereafter the plaintiff waived its rights to and in respect of the
obligations by the first and/or second defendant in terms of the
distribution agreement (as amended), inter alia,
by:
9.4.1.
receiving the memorandum annexed hereto as
P1
("the memorandum")
9.4.2.
not challenging and/or disputing the contents of the
memorandum; and
9.4.3 conducting itself in
a
manner that is consistent only with having accepted the
terms and obligations as contained in the memorandum and pleaded in
paragraph 9.3.1 to
9.3.6
above."
Plaintiff's replication
[13] The aforesaid amendment gave rise to the issue to
be determined herein, which issue is set out in the plaintiffs
replication
as follows:
"B. The issue regarding the precise terms and conditions of the
agreement having been determined and being
res
judicata
between the
Plaintiff and the Second Defendant, the Second Defendant
is
therefore not entitled to rely on any purported
variation to the
agreement
which
is not in accordance
with
the terms
and
conditions
of the
agreement
as
determined
by
His Lordship
Mr Justice
Bertelsmann."
and
"16.
Furthermore
a
finding
that
the
Plaintiff
has
waived
its
rights
in
the distribution
agreement
would
be contrary
to the findings of His
Lordship
Mr
Justice
Bertelsmann that
the
terms
and
condition
as
pleaded
by
the Plaintiff
regulated
the relationship
between
the parties
until
the
repudiation
of
the
agreement
by
the
Second Defendant
and
in
particular the
finding
in
favour
of
the
Plaintiff
in paragraph
1.4
of
the
separation order
that
the
Plaintiff
continued rendering
distribution and support services
in
terms of the agreement
and
this issue has by implication been finally adjudicated
and is therefore
res
judicata.
"
RES
JUDICA TA
[
1
4]
The princip
l
e
of
res
judicata,
has been
the subject of
judicial
scrutiny
over
centuries
and
was
once
again revisited
in
African
Farms
Townships
v
Cape Town Municipality
1963 (2) SA 555
AD. At 564 C
-
E,
res
judicata
is
defined
as
follows:
"In regard
to
res judicata
the
enquiry
is
not
whether
the
judgment is
right
or
wrong,
but
simply
whether
there is
a
judgment.
(Dig.
36.
1.65
para.
2;
Z
Hber, supra;
Sande;
De Diversis
Regulis ad L.
207;
Voet,
44.2.1).
Referring to
the
rule in
Dig.
50.
17.207,
De Villiers, C.J.,
in
Bertram
v
Wood,
supra
at
p.
180,
held the following:
"The
meaning
of
the
rule
is
that
the
authority of
res judicata
induces
a
presumption that
th
e
judgment
upon
any
claim
submitted
to
a
competent
court
is
correct,
and
this
presumption,
being
juri
s
et
de
jure,
excluded
every
proof
to
the
contrary. The presumption
is
founded
on
public
policy which requires
that litigation should not be endless and upon the
requirements
of good faith which,
as
said by
Gaius
(Dig.
50.17.57), does not
permit of the
same
thing being demanded more than once."
[15] In essence the principle prevents a
party
from
having a
proverbial "second bite at the cherry".
[
1
6]
I
n
the
present
matter,
the
extended
application
of
res judicata,
to
wit
i
ssue
estoppal
applies.
I
ssue
estoppal
has
been
explained
by
the
Supreme
Court of Appeal in
Hyprop Investments Ltd v NSC Carriers
&
Forwarding
CC
2014 (5)
SA
406
(SCA)
at
para
[14]
as
follows:
"
Brand JA pointed out
that the plea of res judicata
-
that
the matter has already been decided
-
was
available where the dispute was between the same parties, for
the same relief or on the
same
cause (in Voet's words,
i
dem
actor,
idem
res
et
eadem
causa
petend
i
).
The requirements have been relaxed over the years and
where there is not an absolute identity of the relief and the cause
of action,
the attenuated defence has become known
as
issue estoppal
-
borrowing the term from English law. The relaxation and the
application of issue estoppel effectively started in the
Boshoff
matter where Greenberg
J
referred to Spencer-Bower's work on
Res
Judicata.
In
Smith
v
Porritt Scott JA explained the evolution of the defence
as follows:
'Following the decision in Boshoff v Union Government
1932 TPD 345
the ambit of the
exceptio
rei
judicata
has over the years been extended by the
relaxation in appropriate
cases
of the common-law requirements that the relief claimed and the
cause of action be the same
(
eadem
res
and
eadem
petendi
causa)
in both
the case in question and the earlier judgment. Where the
circumstances justify the relaxation of these requirements those
that
remain are that the parties must be the same
(idem
actor)
and that the same issue
(
eadem
quaesti
o
)
must arise. Broadly stated, the latter involves an
inquiry whether an issue of fact or Jaw was an essential element of
the judgment
on which reliance is placed. Where the plea of
res
judicata
is raised in
the absence of a commonality of cause of action and relief claimed
it
has become commonplace to adopt the terminology of
English law and to speak of issue of estoppel. But, as was stressed
by Botha
JA in
Kommissaris
van
Binnelandse lnkomste v
Absa
Bank Bpk
1995 (1)
SA
653
(A) at 6690, 670J
-
671B, this is not be construed as implying an abandonment of
the principles of the common-law in favour of those of English law;
the defence remains one of
res
judicata.
The
recognition of the defence in such cases will however require careful
scrutiny. Each case will depend on its own facts and any
extension of
the defence will be on a case-by-
case
basis ...Relevant considerations will include questions of
equity and fairness not only to the parties themselves but also to
others.
..."
DISCUSSON
December
2006
amendment
[17] It is clear from the order granted
by Bertelsmann
J
that the issue pertaining to the precise terms of the
agreement was finally adjudicated. Following the aforesaid finding,
the court
further held that the second defendant breached the terms
of
the agreement and by
its conduct repudiated the agreement. This led to a finding that the
plaintiff was entitled to cancel the agreement
and claim damages.
[18]
I
n
seeking the
amendment,
the second
defendant,
e
n
deavours
to
revisit all of
the findings
supra.
[19]
I
n
justifying the
i
ntroduction
of the December 2006 amendment belatedly, the second defendant
rel
i
es
on two grounds, to wit:
i.
firstly,
that
Bertelsmann
J
in reaching
a
findi
ng
on
the precise
terms
of the
distribution
agreement,
did
not consider
the
i
ssue
i
n
respect of the December 2006 amendment and consequently, the
issue
i
s
not
r
es
judicata.
ii
secondly,
the
amount
of
damages
claimed
initially
did
not justify
the proof of the December
2006 amendment.
By
virtue of
the new
breaches
rel
i
ed
upon
by the plaint
i
ff
and the vast
amount
of damages
claimed,
i
t
has however,
now
become
i
mportant
to raise this defence.
[20]
In
respect
of
the
second
defendant's
first
submission
and
although
the
2006
amendment
was
not
i
n
i
ssue
i
n
the
trial
before
Bertelsmann
J,
the
i
ssue
did
find
its
way
i
nto
evidence
as
appears
from
the
following
extracts
from the judgment:
In respect of
the evidence of Mr van Niekerk, a formal general manager of the first
defendant's Transalloys division
i.
""40. On the
21st
December 2006, the first defendant's Transalloys
division's sales department addressed
a
memorandum to the witness detailing the clients
in respect of whom the plaintiff
was
entitled to
a
2% commission and laying down the procedure to
be
followed in preparing invoices
together with monthly visitation reports to the first
defendant's clients.
41. The witness did not know whether the memorandum had been
presented to the plaintiff, but underlined that he had never had any
problems with the services the plaintiff provided."
ii
Noteworthy
is
the fact
that,
although
the
second
defendant
opted
to
cross-
examined
Mr
van
Niekerk,
no
questions
were
asked
in
respect
of the 2006 memorandum
relied
upon by
the
second
defendant
i
n
i
ts
amendment
and
referred
to
by
Mr
van
N
i
ekerk
i
n
his
evidence
I
n respect of the
evidence
of
Mr Duff, plaint
i
ff's execut
i
ve
director, during cross- examina
t
ion
by
second
defendant
"59.
The clients on
the so-called exclusion list who received their purchases of
ferromanganese directly from the first or second
defendant did not
always remain the same as the list was adapted from time to time. It
was put to the witness that plaintiff
was
not the sole distributor appointed by the first
defendant, which he denied.
61. He also had no knowledge of
a
tolling agreement allegedly entered by second
defendant
with
another company, Afro Minerals Trading
AG
(AM1), which was said to provide that second defendant would
sell its entire ore production to this company. This agreement,
it
was put to Mr Duff, was effective as from the 1st July 2008.
Although the witness had no knowledge of this agreement,
he
had no doubt about the fact that
plaintiff's
rights would
be
infringed
if
second
defendant
bound
itself
in
this
fashion
and
ceased
to
supply
the
plaintiff
without
proper
notice
of termination
of
the existing agreement
As
the
AMT
agreement falls outside the issues the court has been
requested to determine, no further reference is necessary to its
terms and
its potential effect upon the relationship between the
plaintiff and the defendant."
(own
emphasis)
ii.
The second defendant,
despite being made aware of the plaintiff's stance that the agreement
with ATM was in breach of the terms
of the distribution agreement,
did not dispute this portion of Mr Duff's evidence.
[21] It is therefore clear that, although the second defendant was
alive to the importance of the December 2006 amendment, it chose
not
to raise it as a defence to the plaintiff's claim.
[22] Should the defence have been raised at the appropriate time, it
would have been considered by Bertelsmann J.
[23] Is the second defendant's failure to raise the December 2006
amendment at the appropriate time fatal?
[24]
Mr
Swart SC, counsel
for
the plaintiff,
correctly pointed
out
that
the
underlying
princip
l
e
of
res judicata
i
s
precisely
to
avoid
a
party
from raising different
defences
ad infinitum.
Mr
Swart SC rel
i
ed
on the
following
extract form
the
Nestle (SA) (Pty) Ltd
v
Mars Inc
2001
(4) SA
542
SCA
decision
in
support
of
this
principle:
“[16]
The defence
of
l
is
alibi
pendens
shares
features
in
common
with the
defence of res
judicata
because
they have
a
common
underlying principle,
which
is
that
there
should
be
finality
in
litigation. Once
a
suit has
been
commenced before
a
tribunal
that
is
competent
to
adjudicate upon
it,
the
suit
must
generally
be
brought
to
its
conclusion
before
that tribunal and
should not
be
replicated (lis
alibi
pendens).
By the
same token the suit
will not be permitted
to be revived
once it has been brought
to
its
proper
conclusion
(res
judicata).
The same
suit,
between
the same parties,
should
be brought
only once and finally."
[25] Mr Daniels, counsel for the second defendant,
however, submitted that the finding by Bertelsmann J did not pertain
to the whole
duration of the agreement and consequently does not
excluded evidence in respect of the December 2006 amendment. I do not
agree.
The following findings pertain to the period after December
2006:
"3. Plaintiff continued
delivering its services
[in
terms
of the agreement]
to the
first defendant from July 2007 to March 2008; invoiced the first
defendant
and
was paid
by the latter
-
although the
latter
was
then
acting
as
manager
of
the
business that
belonged to
the
second
defendant;
4.
Plaintiff
similarly
rendered
services
in April
2008 to first
defendant
and invoiced
first
defendant
as
usual
and
after
having
been
advised
of
the sales
figure as
usual;
5.
Plaintiff
rendered
services
[in
terms of
the agreement]
to
second
defendant
from
May
to September
2008;
15..
....
This
terminated
the
agreement
and
may,
depending
on
further
evidence,
entitle
plaintiff
to
damages."
[own
i
nsertion]
[26] These findings pertain to the terms
of
the agreement until September 2008, the month before the
second defendant's repudiation of the agreement. It
i
s
final in respect of the whole term of the agreement between
the parties. Should the second defendant be allowed to rely on the
December
2006 amendment, all these findings
will
have to be revisited
by
another court. This is precisely the type of situation in
which the principle of res
judicata
in issue estoppal
finds application.
[27] The second defendant's failure
to raise the December 2006 amendment at the time, for whatever
reason, has consequences.
I
n
the words of the Supreme
Court
of
Appeal
in
Cape Town Municipality v South African Local Authorities
Pension Fund and Another
2014
(2)
SA
365
SCA
at para [31]:
"................If
it
did not do so and then failed in its defence to the
action
it
would
be
precluded
from thereafter seeking to attack the 'once for all' rule and the
principles of res judicata . ...."
[28] In the premises, I am of the view
that the first ground of justification cannot succeed.
[29]
I
n
developing the
second
ground
of justification, Mr
Daniels
rel
i
ed,
inter alia,
on the
decision in
Prinsloo
NO and Another v Goldex 15
(Pty)
Ltd and Another
2014
(5)
SA 297
SCA at para [24]:
"At the
same
time, however, our courts have realised that relaxation
of the strict requirements of
res
i
udicata
in issue estoppel situations creates the potential
of
causing inequity and unfairness that would not arise upon
application of all three requirements. That potential is explained by
Lord Reid in Carl Zeiss Stiftung v Rayner &Keeler Ltd
[1966] 2
All ER 536
(HL)
at
554
G
-
H
when
he
said:
The
difficulty which I will see about issue estoppel is a practical one.
Suppose the first case is one of trifling importance
but it involves
for one party to proof facts which would be expensive and
troublesome; and that patty can see the possibility
that the same
point may arise if his opponent later raises a much more important
claim. What is he to do? The second case may
never be brought. Must
he go to great trouble and expense to forestall a possible plea of
issue estoppel if the second
case
is brought?
…....
Hence, our courts have been at pains to
point out the potential inequity of the application of issue estoppel
in particular circumstances.
But the circumstances in which issue
estoppal may conceivably arise are so varied that its application
cannot be governed by fixed
principles or even guidelines. All this
court could therefore do was to repeatedly sound the warning that the
application of issue
estoppal should be considered on
a
case-by-case basis and that deviation from the
threefold requirements of res iudicata should not be allowed when it
is likely to
give rise to potentially unfair consequences in the
subsequent proceedings (see eg Kommissaris van Binnelandse lnkomste v
Absa
Bank Bpk
supra
at 6768E;
Smith v Porrit
supra
para
10). That, I believe, is also consistent with the guarantee of a fair
hearing in s 34 of our Constitution."
[30] It is difficult to follow the
argument that the introduction of the December 2006 amendment in the
trial conducted by Bertelsmann
J, would have been
"expensive
and troublesome".
All role players testified, mention was
made of the December 2006 memorandum and the second defendant
actively participated in the
trial by cross-examining Mr van Niekerk,
the very person who could shed light on the alleged amendment. It
would, to the contrary,
have been less expensive and troublesome to
introduce the December 2006 amendment at the time.
[31]
Finally, Mr Daniels echoed
the warning
emulated
in
the
Prinsloo
matter,
supra,
that the appl
i
cation
of
r
es
judicata i
n
i
ssue
estoppel situations,
may
create
the
potential
of
causing
i
nequitabil
i
ty
and
unfairness.
I
do
n
ot
think
this
probabil
i
ty
i
s
applicable
to
the
second
defendant.
To
the
contrary,
i
t
would
be
inequitable
and
unfair
to
the
plai
n
tiff
to embark on
a
further
trial
i
n
respect
of
the
precise
terms
of
the
distrib
u
tion
agreement.
The
cost
i
nvolved
i
n
a further
trial
on the
i
ssue
i
s
another
factor
that
mi
li
tates
against
the
second
defendant's
endeavour
to
raise
this
defence,
belatedly.
[32]
Simi
l
arly,
I
am
not
convinced
that
the
second
ground
of
justification
assists
the
second
defendant.
Waiver
[3
3
]
Mr
Swart
SC
submitted
that
on
an
analysis
of
the
plea
of
waiver
i
t
emerges
that
the plea is nothing other
than
the opposite side of the coin
of
a
tacit
agreement.
[34]
I
n
order
to
succeed
i
n
i
ts
p
l
ea
of
waiver,
a
court
must
find
that
the
December
2006
amendment
was concluded. This
would
entail
that
another
court
must
make
a
finding
on
an
i
ssue
that
was
finally
determined
by Bertelsmann J to
wit,
the
precise terms of the distribution
agreement.
[3
5
]
The
same
reasoning
i
n
finding
that
res
judicata
in
i
ssue
estoppel
i
s
appl
i
cable
to
the
December
2006
amendment
appl
i
es
to
the
p
l
ea
of
waiver.
[36]
The
second
defendant,
at
i
ts
own
peril,
chose
to
proceed
to
trial
on
i
ssues
that
called
for final
determination,
without
raising
all
i
ts
defences
to
these
i
ssues.
ORDER
I
n
the
premises,
I
grant
the
following
order:
The
defence
raised
by the second defendant
in
paragraph
9,
1
7
and 22
of
its amended p
l
ea
i
s
res
judicata;
The
second
defendant
is
not
entitled to the
raise
the
defence
of
waiver
as
set out
i
n
paragraph 9.2 and 9.3 of
i
ts
amended p
l
ea.
The
second defendant is ordered to pay the cost of suit.
E
VAN
N
I
EUWENH
U
I
ZEN
J
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
D
I
VISION,
PRETORIA
Appearances:
Counsel
for the
Plaintiff
:
Advocate Swart
SC
Instructed
by
:
Andrew Duf
Attorneys
Counsel
for the Defendant :
Advocate
J
P Daniels
Assisted
by :
Advocate C
T
Vetter
I
nstructed
by :
T A BACKS Attorneys