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[2012] ZAKZPHC 62
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Kruger v Thompson (10662/2009) [2012] ZAKZPHC 62 (26 September 2012)
IN THE
KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
(REPUBLIC
OF SOUTH AFRICA)
CASE NO: 10662/2009
In the
matter between:
MARK
MERLYN KRUGER
.................................................................................
PLAINTIFF
and
BASIL
THOMPSON
.........................................................................................
DEFENDANT
J U D G M E N T
KOEN
J
:
INTRODUCTION
:
[1] In defence to an action for damages for personal injuries
sustained in a jet-ski accident, the defendant raised a special plea
that ‘the plaintiff’s present claim was finally
adjudicated upon by a court of competent jurisdiction.’ The
‘court of competent jurisdiction’ to which the special
plea refers, is, in this instance, the Durban Magistrates’
court which gave judgment on an action for damages to the plaintiff’s
jet ski under case number 10088/07. This judgment concerns
the merits
of the special plea, which was dealt with
in limine
by
agreement between the parties
.
BACKGROUND
:
[2] The plaintiff avers that on or about 17 December 2006 at
Hazelmere Dam the defendant while riding his jet ski, collided with
the plaintiff’s jet-ski, alternatively with the plaintiff. The
collision is ascribed solely to the defendant’s recklessness
and negligence, as he
inter alia
:
(a) failed to exercise due care, diligence and skill in riding his
jet/ski;
(b) failed to adhere to the rules and regulations regulating the use
of jet skis at Hazelmere dam thereby causing his jet ski to
collide
into the plaintiff’s jet ski, alternatively, the plaintiff;
(c) rode his jet ski at an excessive speed without due regard for
other dam users, more particularly, the plaintiff;
(d)
performed unauthorized stunts with his jet ski, including spinning
his jet ski in a dangerous manner in close proximity to the
plaintiff
and without due regard of the plaintiff;
(e)
generally riding his jet ski in a dangerous manner.
1
[3] Arising from the said collision the plaintiff on 5 March 2007
instituted proceedings against the defendant in the Magistrates’
Court for Durban for the damage to his jet ski, in the sum of R18
914.45, interest and costs.
2
[4] On 11 September 2009 the magistrate in a written judgment, a copy
whereof is annexure ‘X1’ to the special plea,
concluded
with the following order:
‘
1.
Defendant is ordered to pay plaintiff all of his proven damages.
2. The issue of quantum is held
over for later determination.
3. The defendant is ordered to
pay plaintiff’s costs of action on a party and party basis as
taxed or agreed.
4. The defendant’s counter
claim is hereby dismissed with costs.’
[5] Arising from the same collision, the plaintiff on 8 December 2009
instituted the present proceedings for damages in the sum
of R1 880
000.00 comprising:
(a) R50
000.00 in respect of past medical expenses;
(b) R200
000.00 in respect of general damages;
(c) R200
000.00 in respect of past loss of income;
(d) R1 380
000.00 in respect of future loss of income;
(e) R50
000.00 in respect of future medical expenses.
3
[6] It is in defence to that claim that the special plea was raised.
It provides as follows:
‘
1. On
5 March 2007 the plaintiff issued a summons out of the Durban
Magistrates’ court under case no. 10088/07 against the
defendant.
2. The plaintiff’s cause
of action under case no. 10088/07 was based on the negligent driving
of the defendant which it was
alleged caused a collision between the
plaintiff’s jet ski and the defendant’s jet ski. The
plaintiff accordingly claimed
damages in the sum of R 18 914,45 being
the reasonable cost of repairs to his jet ski.
3. On 11 September 2009,
magistrate S Hlatswayo delivered judgment in favour of the plaintiff
under case no. 10088/07. A copy of
the order is annexed hereto marked
“X1”.
4. On 8 December 2009 the
plaintiff instituted the present action which is once again based on
the negligent driving of the defendant
which it is alleged caused the
collision referred to in paragraph 2 above. The plaintiff now claims
damages for personal injuries
sustained by him as a result of the
collision in the sum of R1 880 000.00.
5. The plaintiff’s current
claim arises from the same facts as those in the action under case
no. 10088/07, is based on the
same cause of action and is against the
same party.
6. The defendant accordingly
pleads that the plaintiff’s present claim was finally
adjudicated upon by a court of competent
jurisdiction.
WHEREFORE the defendant prays
that the plaintiff’s claim be dismissed with costs.’
[7] For the purpose of determining this special plea, the following
was agreed:
(a) The pleadings in the magistrate’s court, which became
exhibit “A”;
(b) The magistrate’s judgment, annexed as annexure “X1”
to the special plea;
(c) That subsequent to the magistrate’s judgment, the parties
agreed the quantum of the plaintiff’s damages in respect
of
damage to his jet ski, which amount was finally paid during January
2012.
DISCUSSION
:
[8] As pleaded, the formulation of the special plea suggests that it
is the
exceptio rei judicata
(
res judicata
).
[9] The requirements for successful reliance on the
exceptio
were, and are
idem actor, idem reus, eadem res
and
eadem
causu petendi.
This means that the
exceptio
can be raised
by a defendant in a later suit against a plaintiff who is ‘demanding
the same thing on the same ground’
4
;
or which comes to the same thing, ‘on the same cause for the
same relief’
5
;
or which also comes to the same thing, whether the ‘same issue’
had been adjudicated upon
6
– see
National Sorghum Breweries v International Liquor
Distributors.
7
[10] As pointed out by Brand JA in
Prinsloo NO and Others v Goldex
Fifteen (Pty) Limited
and Another,
8
‘[i]n time, the requirements were, however, relaxed in
situations which give rise to what became known as issue estoppel’.
[11] Issue estoppel is really a narrower application of the
principles of
res judicata
not to the relief claimed, but to
an issue arising in an action. The matter was succinctly explained by
Scott JA in
Smith v Porrit
9
(supra) as follows:
‘
Following
the decision in
Boshoff
v Union Government
1932
TPD 345
the ambit of the
exceptio
res 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
at the same issue (
eadem
quaestio
)
must arise. Broadly stated, the latter involves an enquiry whether an
issue of fact or law 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 communality of cause of action and relief
claimed it has become common place to adopt the terminology
of
English law and to speak of issue estoppel. But, as was stressed by
Botha JA in
Kommaris
van Binnelandse Inkomste v Absa Bank Bpk
1995
(1) SA 653
(A) at 669 (D), 667 J – 671 B, this is not to 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 (
Kommasaris
van Binnelandse Inkomste v Absa
(supra)
at 67 E-F). Relevant considerations will include questions of equity
and fairness, not only to the parties themselves but
also to others.’
[12] In argument, Mr de Wet SC on behalf of the defendant made it
clear
10
that the defendant’s special plea more specifically raises what
Harms in
Amler’s Precedents of Pleadings
11
has referred to as a ‘related rule’ to
res judicata
,
namely that a party with a single cause of action is obliged to claim
in one and the same action whatever remedies the law accords
upon
that cause.
12
[13] Mr Jorgensen, for the plaintiff, appears to have treated the
matter more as one of issue estoppel, judged by his reliance
primarily on the judgment in
Prinsloo NO v Goldex
(supra).
Whether there is any fundamental and philosophical difference between
the two approaches adopted by counsel, is in my
view unnecessary to
decide. In my view the same principles as apply to issue estoppel
generally apply to the once and for all rule,
or at least underlie
the application of that rule.
13
THE ‘ONCE AND FOR ALL’ RULE
:
[14] This rule, derived from English law, requires that all claims
generated by or from the same cause of action, be instituted
in one
action.
14
[15] In
Custom Credit Corporation v Shembe
(
supra
),
usually referred to as the
locus classicus
on the rule, Van
Winsen AJA held:
15
‘
The law requires a party with a single
cause of action to claim in one and the same action whatever remedies
the law accords him
upon such cause. This is the
ratio
underlying the rule that, if a cause of action has previously been
finally litigated between the parties, then a subsequent attempt
by
the one to proceed against the other on the same cause for the same
relief can be met by an
exceptio rei
judicatae vel litis finitae
. The reason
for this rule is given by Voet 44.2.1 (
Gane’s
translation, volume 6, p553) as being “to prevent inextricable
difficulties arising from discordant or perhaps mutually
contradictory decisions due to the same suit being aired more than
once in different judicial proceedings”…The rule
has its
origin in considerations of public policy which require that there
should be a term set to litigation and that an accused
or a defendant
should not be twice harassed upon the same cause’.
[16] The difficulty with the rule does not lie in stating what it
seeks to achieve, but with its application to specific circumstances.
[17] In some instances its application would appear to be clearly
inappropriate. Hence in
Prinsloo NO v Goldex
(supra), the
relief claimed in an urgent application on notice of motion was to
enforce an agreement. The subsequent action by the
respondents to
which issue estoppel was sought to be invoked, was for damages for
fraudulent misrepresentation, a remedy the respondents
could in any
event not have pursued in the motion proceedings. On appeal, the plea
of
res judicata
in the form of issue estoppel was dismissed
with costs. In
National Sorgham Breweries
(supra) it was held
that a claim for restitution in the form of repayment of the purchase
price, was not a claim for damages and
separate and distinct from the
subsequent claim for damages. As it was put at page 241 para [10]:
‘
The
rule cannot bring about that contractual claims and claims for
damages must be brought in the same action.’ In the claim
for
restitution the conclusion of the contract, the breach thereof, the
payment of the purchase price and the cancellation of the
contract
were necessary allegations. In the second the respondent was required
to plead and prove the conclusion of the contract,
the breach and the
cancellation thereof, the damages were suffered and the causal chain
between the breach and the damages and
the quantum of damages’.
At page 240 C-D para [5] it was stated that:
‘
[t]he
mere fact there are common elements in the allegations made in the
two suits does not justify the
exceptio
–
one
must look at the claim in its entirety and compare it with the first
claim in its entirety. If this is done in the present case,
the
differences are so wide and obvious that one simply cannot say that
the same thing was claimed in both suits or that the claims
were
brought on the same grounds.’
[18] The basis on which the decision in
Custom and Credit
Corporation v Shembe
was distinguished and explained
16
by Olivier JA in
National Sorgham Breweries v International Liquor
Distributors
(supra) is instructive. The
raison d’etre
for the decision was said to be found in the damages suffered by
the creditor. Olivier JA said:
‘
To
emphasize the point: In order to reduce the amount of the forfeiture,
the actual prejudice suffered by the creditor must be proved
by the
debtor … It follows that, although a claim for forfeiture
arises
ex
contractu
,
its essence and function is to compensate the creditor for prejudice
(including damage) suffered by it. From this it would follow
that, if
a creditor relies in an action on a forfeiture clause, it cannot
again in a later action claim damages: the “thing”
claimed and the cause of action for both claims are similar and has
already been finalized. Thus viewed,
Shembe’s
case
is plainly distinguishable’.
17
[19] In
Prinsloo NO and Others v Goldex and Another
Brand JA
distilled the following principles that find application
18
and stated as follows:
‘
[23]
In our common law the requirements for
res
judicata
are threefold: (a) same parties; (b) same cause of action; (c) same
relief. The recognition of what has become known as issue estoppel
did not dispense with this three fold requirement. But our courts
have come to realize that rigid adherence to the requirements
referred to in (b) and (c) may result in defeating the whole purpose
of
res
judicate
.
That purpose, so it has been stated, is to prevent the repetition of
law suits between the same parties, the harassment of a defendant
by
a multiplicity of actions and the possibility of conflicting
decisions by different courts on the same issue (see e.g.
Evins
v Shield Insurance Co. Ltd.
1980
(2) SA 815
(A) at 835 G). Issue estoppel therefore allows a court to
dispense with the two requirements of same cause of action and same
relief,
where the same issue has been finally decided in previous
litigation between the same parties.
[24] At the same time, however,
our courts have realized that relaxation of the strict requirements
of
res judicata
in issue estoppel situations creates the
potential of causing iniquity 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 and Keeler
Ltd No (2)
[1966] (2) ALL ER 536
(HL) at 554 G-H when he said:
“
The
difficulty which I see about issue estoppel is a practical one.
Suppose the first case is one of trifling importance but it
involves
one party’s proof of facts which would be expensive and
troublesome, and that party 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?”’
[20] In my view similar considerations apply to the application of
the once and for all rule, having regard to the rationale for
its
existence. Indeed Mr Jorgensen has stressed the considerations of
fairness and equity referred to in
Prinsloo No and Others v Goldex
in urging me dismiss the special plea.
[21] Mr de Wet however stressed that although the damages now sought
to be recovered were damages arising from personal injury
to the
plaintiff, as opposed to the patrimonial damages previously recovered
in respect of his jet-ski, they are nevertheless damages
(damnum)
sought to be recovered in respect of the same incident and by the
same legal remedy, namely the
lex Aquilia
. He referred to
Boberg,
19
where the learned author states that:
‘
A
single wrongful act gives rise to a single cause of action for all
the damage – past and future – that it causes.
This means
that a plaintiff cannot claim compensation piece meal for his various
losses as they occur: he must sue ‘once
and for all’ for
the whole of his damage, seeking redress not only for the harm he has
already suffered (actual or accrued
loss) but also for the harm he
expects to suffer in the future (prospective loss).’
[22] He also referred to
Evins v Shield Insurance Company Limited
20
where it was said that:
‘
[t]he
principle of
res
judicata
,
taken together with the ‘once and for all’ rule, means
that a claimant for Aquilian damages who has litigated finally
is
precluded from subsequently claiming from the same defendant upon the
same cause of action additional damages in respect of
further loss
suffered by him (i.e. loss not taken into account in the award of
damages in the original action), even though such
further loss
manifests itself or becomes capable of assessment only after the
conclusion of the original action.’
[23] The decision in
Evins v Shield Insurance Company Limited
(supra) is not decisive because the question remains one whether the
relief claimed in the present proceedings are simply ‘additional
damages in respect of further loss suffered’ by the plaintiff
i.e. ‘the same relief’, or ‘different relief.’
[24] More in point is the judgment in
Green v Coetzer.
21
The plaintiff’s motor cycle and the vehicle driven by the
defendant were involved in a collision. In the magistrates’
court the plaintiff claimed for the damage to his motor cycle.
Subsequently, and in the High Court, the same plaintiff claimed
against the same defendant for damages arising out of personal
injuries which he suffered in the same collision dealt within the
magistrates’ court. It was held that
22
:
‘
[i]t
seems to me to follow that damages claimable under the
lex
aquilia
as
extended cannot be divided into two separate causes of action, one
for damages to property and the other for bodily injury to
the
persons.’
[25]
Green v Coetzer
was approved of in
Union Wine Limited
v E Snell and Co Ltd
23
where the following was said:
‘
Although
it is not clear from the cases whether the “once and for all”
rule is just a manifestation of the
exceptio
res judicatae
or
whether it has a wider range than the latter, it is settled practice
in South Africa that where a cause of action give rise to
more than
one remedy a plaintiff who pursues one of those remedies and has
obtained judgment thereupon can be met with a plea of
res
judicata
if he should institute a second action to pursue one of the other
remedies.’
[26] The learned authors Visser, Potgieter
et al
24
support the decision in
Green v Coetzer
and comment:
‘
Onses
insiens kan die aard van die regskrenking of die tipe skade nie
gebruik word om volgens die
facta
probanda –
toets
meerdere eisoorsake te konstrueer nie… die klem val hier op
die een onregmatige handeling en nie op verskille in die
gevolge
nie.’
[27] The court in
Green v Coetzer
declined to follow the
decision in the English law of
Brunsden v Humphrey
(1884) QBD
141
for reasons which I endorse.
[28] I prefer the reasoning in
Green v Coetzer,
even although
the motivation in the judgment may at times be subjected to
criticism, as Van der Walt
25
indicates.
[29] Ultimately, regard must be had to the rationale underlying the
existence of the rule and the motivation for its existence
in the
first place, namely, to avoid a multiplicity of actions, possible
contradictory judgments, and to ensure that a defendant
is not
harassed by repeated legal proceedings which he has to face.
[30] I am also very alive to the considerations of equity referred to
in the context of issue estoppel in
Prinsloo NO and Others v
Goldex and Another
.
In casu
there is no reason why the
plaintiff could not have pursued a single action based on the
lex
aquilia
for all his damages in one action. He was wanting to
recover
damnum
i.e. damages. The damages he seeks to recover
are not different forms of relief. But even if they were different
types of relief
i.e. if damages for patrimonial loss and damages for
bodily injury, were to qualify as different kinds of relief, it
arises from
the same cause of action. The reference to different
causes of action and different relief in
Credit Corporation v
Shembe
, must be construed in the context of that case. As
referred to earlier, the rationale for that decision as explained by
Olivier
JA in
National Sorghum Beer
demonstrates that in
Credit Corporation v Shembe
the two actions both dealt with
damages and the quantification of damages, as also in
Green v
Coetzer
and
in casu.
[31] No justification was advanced why in law, or equity, or
fairness
26
the plaintiff could not have pursued his claim for damages in one
action.
[32] In my view the special plea must succeed.
27
THE ORDER
:
[33] The special plea is upheld and the plaintiff’s claim
dismissed with costs.
___________________________
DATE OF HEARING: 12 September 2012
DATE OF DELIVERY: 26 September 2012
PLAINTIFF’S COUNSEL: Adv. P Jorgensen
PLAINTIFF’S ATTORNEYS: Naidoo & Associates
Tel: 031 303 8710
Ref: MN/ST/K024K
c/o MALANIE NAIDOO & ASSOCIATES
DEFENDANT’S COUNSEL: Adv A de Wet S C
DEFENDANT’S ATTORNEYS: Viv Greene Attorneys
Tel: 033 3422766
Ref: V GREEN/vc/10B018016
1
Para
5 of the plaintiff’s particulars of claim.
2
The
averments in the Magistrates’ court were similar to those in
the present action and included:
‘
4.
On or about the 17 December 2006 and at Hazelmere dam,
the defendant who at all material times was commandeering and
steering
a jet ski collided with and damaged the damaged jet ski.
5.
The sole cause of the collision was due to the reckless
and/or negligent driving of the defendant in that he:
5.1 Failed to exercise due care, diligence and skill in
the commandeering of the jet ski;
5.2 Caused his jet ski to collide into the left side of
the plaintiff’s jet ski;
5.3 Failed to adhere to the operating rules and
regulations of the Park’s Board in control of the said dam;
5.4
Operated the jet ski at an excessive speed without regard of other
users of jet skis at the dam.’
3
Para
9 of the plaintiff’s particulars of claim.
4
Per
Steyn CJ in
African Farms and Townships Limited v Cape Town
Municipality
1963 (2) SA 555
(A) at 562 (A).
5
Per
Van Winsen AJA in
Custom Credit Corporation (Pty) Limited v
Shembe
1972 (3) SA 462
(A) at 472 A-B; see also the discussion
in
Kommasaris van Binnelandse Inkomste v Absa Bank Bpk
1995
(1) SA 653
(A) at 664 C-E.
6
see
Horowitz v Brock and Others
1988 (2) SA 160
(A) at 179 A-H.
7
[2000] ZASCA 159
;
2001
(2) SA 232
(SCA) at 239 para [2] per Olivier JA with whom Hefer
ADCJ, Vivier JA and Plewman JA concurred, did not share the views of
the
Acting Chief Justice and who gave a separate judgment ‘relating
to the availability of the defences of
res
judicata’
or the ‘once and for
all’ rule.
8
[2012]
ZASCA 28.
9
2008
(6) SA 303
(SCA) para 10.
10
Hence
my qualification in paragraph 8 above as to what the special plea
might at first suggest.
11
6
th
Edition page 302
12
With
reference to the authority of
Custom Credit
Corporation (Pty) Limited v Shembe
(supra)
at 472.
13
However
res judicata
and the
once and for all rule have at times been treated as separate issues
and dismissed separately, as for example in
National
Sorgham Breweries v International Liquor
Distributors
(supra).
14
See
National Sorgham Breweries v International
Liquor Distributors
(supra) at 241 D-E para
[10].
15
At
472A-E.
16
From
para 6.
17
At
para 8 and 9.
18
This
was in the context of issue estoppel.
19
The
Law of
Delict
(1984) at page 476.
20
1980
(2) SA 814
(A) at 835
21
1958
(2) SA 697
(W).
22
At
page 420.
23
1990
(2) SA 189
C at 196D-F.
24
Skadevergoedingsreg
2ed (2003) at para 7.5.3 page 152.
25
Sommeskadeleer
381 – See Visser en Potgieter
Skadevergoedingsreg
page
152.
26
Other
than a plea
ad miseraccordiam
that
the plaintiff would be denied the right to recover damages arising
from his bodily injuries. There is no reason why advanced
why he
could not have claimed all his damages arising from the jet-ski
accident in one action.
27
The
position of the plaintiff must not be confused with that in an
ordinary motor collision where a claim for damages to a plaintiff’s
vehicle against a particular wrongdoer might be pursued in one
action and a claim by the same plaintiff in another action for
his
injuries against the Road Accident Fund. The parties to the two
actions are clearly not the same, but in any event, the claim
for
personal injury is partly statutorily based.