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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO; A6/2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE 9 October 2025
SIGNATURE
In the matter between:
ANTON HAMMAN Appellant
And
T[...] V[...] S[...] Respondent
________________________________________________________________
JUDGMENT: CIVIL APPEAL
(The matter was heard in open court on 31 July 2025. Judgment was reserved and
uploaded onto the electronic file of the matter on CaseLines. The date of uploading
onto CaseLines is deemed to be the date of the judgment).
BEFORE: HOLLAND-MUTER J (LENYAI J concurring):
[1] The appeal before the court has its origin in a settled divorce action between the
respondent T[...] v[...] S[...], his divorced wife B[...] v[...] S[...] and the later appointed
receiver and divider, Mr Anton Hamman. Hamman, a practising attorney was
appointed in terms of the divorce order as receiver and divider to divide the net
proceeds from the sale of the immovable property which belonged to the V[...] S[...].
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The property had to be realised in terms of the divorce order and settlement and the
net proceeds distributed between them.
[2]The settlement agreement m ade provision that Hamman divide the net proceeds
of the sale of the property to be divided between the V[...] S[...] after making
adjustments in respect of each party’s contribution to the property in excess of what
they were liable to contribute.
[3] Hamman produced his report after intervi ewing the parties. T he respondent
objected to the report and lodged a written objection against the report but Hamman
stood by his original report.
[4] The respondent filed an application to have the report reviewed and set aside .
The reason for the review was for failure by Hamman to correctly apply the law
applicable and to execute his mandate as receiver and divider in a proper manner
expected of a duly admitted attorney on officer of the court.
[5] T he review was hea rd by Windell J and the report was subsequently reviewed
and set aside. Windell J held that it was a foregone conclusion that it would be a
waste of time to order the functio nary to reconsider the matter. I t was held that it
would be unfair to require the applicant to submit the same iss ue to the functionary.
Windell J heard the necessary submissions and substituted the division of the net
proceeds of the sale of the property to be divided in accordance with its judgment.
[6] In arriving at her judgment, Windell J found that the appellant did not apply the
actio communi dividundo correctly. She held that Hamman accepted, as a common
cause fact, that Ms V[...] S[...] (the respondent’s ex-wife) contributed an amount of R
845 825-60 but this acceptance was done without proper consideration of her
alleged contributions and without considering the respondent’s contributions and
discounting same as amounting to maintenance obligations. Windell J made no
ruling on breach of mandate, negligence or considered any arguments o n the issue
ruling on breach of mandate, negligence or considered any arguments o n the issue
of costs. She ordered that each party is to pay its own costs after setting aside the
report and substituting the division as made by Hamman with her own division of the
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net profit of sale of the property . Windell J held that Hamman made a material error
of law.
[7] The costs issue is the subject of the action instituted by the respond ent in the
Magistrate’s Court for payment for damages (costs) incurred due to the appellant’s
breach of duty as receiver and divider and failure to execute his duty in a proper
manner, alternatively failing to adhere to his duty of care towards the respondent.
[8] The appellant filed a special plea of res judicata including issue estoppel. The
contention was that the subject matter was already dealt with in the review finalised
by Windell J on 1 February 2019 in the written judgment handed down.
[9] The learned Magistrate dismissed the special plea of res judi cata and issue
estoppel with costs and this forms the dispute on appeal before this court.
[10] The four grounds of appeal can be grouped in two components, the first three
grounds aimed at the issue of res judicata and the fourth ground relates to the
matter of issue estoppel.
RES JUDICATA:
[11] The onus to prove rests on the party who raises res judicata and to prove all
underlying elements. Tradex Ocean Transportation SA v MV ‘Silvergate’
properly de scribed as MV ‘Astyanas [1999] 3 All SA 175 (A); 1999(4)405
(SCA).The requirements were confirmed in Ascendis Animal Health (Pty) Ltd v
Merck Sharpe Dohne Corporation and Others [2019] ZACC 41 at par 71 with
reference to Masera v Tsepong (Pty) Ltd [2015] LSLC PAR 14. See Harms
Amler’s Precedents of Pleading 6 th ed p 302 -303. Also see African Farms and
Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 562-564.
[12] The requirements for a successful plea of res judicata are:
*There must be a final judgment;
*The judgment must be between the same parties;
*The judgment must be based on the same cause of action; and
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*The judgment must be concerning the same subject-matter or thing.
[13] The first and second requirements, i e that (i) there must be a previous final
judgment by a competent court and (ii) that the dispute was between the same
parties, is not in dispute. There is a final judgment by Windell J and the judgment
was between the present parties.
[14] The third requirement is that the judgment must be based on the same cause of
action. It was argued that t he cause of action before Windell J was based on the
incorrect application of the actio communi dividundo and before the court a quo in
the Magistrate’s Court was a civil claim for pure economic loss for damages suffered
as the result of the appellant’s breach of mandate and/or duty of care. It was further
argued that t he Magistrate correctly held that the cause of action before Windell J
was materially different from the cause of action before the court a quo. The first
cause of action was the incorre ct application of the law while the second cause of
action was about the breach of the duty to care. The two causes are different and the
third requirement for res judicata is not met and the appeal cannot succeed.
[15] This court does not agree with the argument that there are two differ ent causes
of action when the Windell J judgment is compared with that of the Magistrate a quo.
In our view it is an artificial way to argue around the prayer in the review judgment
that each party is to pay its own costs.
[16] It was argued on behalf of the respondent that the incorrect application of the
actio communi dividundo to set aside the report on review was a different cause of
action from and that h e claimed damages in the second litigation in the Magistrate’s
Court. T he argument was that the incorrect application of the said actio communi
dividundo caused the respondent to review the report which resulted in costs
incurred. In the first case the incorrect division of the net proceeds of the sale of the
incurred. In the first case the incorrect division of the net proceeds of the sale of the
property was addressed while in the second case the financial loss (coloured as
damages) were the subject of litigation. See Magistrate’s judgment a quo para 11
where the Magistrate held that “In the review proceedings the High Court was not
called upon to decide on whether or not there was a breach of mandate or negligent
breach of a legal duty of care”.
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[17] The judgment in African Farms and Townships Ltd v Cape Town
Municipality 1963 (2) SA 555 (A) at 562 -564 is cited as authority for the legal
principle of res judicata particularly of issue preclusion, meaning a party cannot re-
litigate issues already decided in a prior case between the same parties. The
underlying in this matter is precisely that the respondent (plaintiff in the Magistrate’s
Court) is litigating to recover costs denied in the review application even if it is
coloured as damages. The correct way for him was to approach the review court
timeously for clarification of the costs issue or to appeal the cost order.
[18] It was held in Kommissaris van Binnelandse Inkomste v ABSA Bank Bpk
1995(1) SA 653 (A) in par 53 the requirement for res judicata to be idem actor;
idem reus; eadam res and eadam causa petendi. See Van der Keessel
Praelectiones GR 3.49.2 which is the four requirements in para [12] supra. The
latter two requirements have been seen as a demonstration on the same ground for
the same thing and the same cause of relief. If applied on the subject matter the
only reasonable conclusion is that the same relief for costs, although somewhat
disguised, is the underlying cause in both matters. See Customs Credit
Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) at 472 a/b.
[19] The judgment by Windell J wa s a final judgment and some speculation wa s
made about the lapse of a considerable time and that no attempt was made to
approach Windell J to clarify and/or address the costs issue. Issuing summons in the
Magistrate’s Court was primarily to recover the cost expense incurred (damages) as
result of the review although Windell J ordered each party to pay its own costs. In
this court’s view this argument amounts to a rather artificial distinction to be made
between the alleged two different causes regarding the costs issue.
[20] The Magistrate speculated on the prospects of success should the respondent
[20] The Magistrate speculated on the prospects of success should the respondent
have approached Windell J earlier to clarify the costs issue in the review judgment.
Speculation as to the outcome of arguments before Windell J to clarify the costs
issue does not take the matter further.
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[21] The fourth requirement is that the judgment must be con cerning the same
subject-matter or thing. The Magistrate noted that ‘ Similarly, I observe that though
the applicant in the review -application had prayed for costs, the court simply ruled
that there be no order as to costs. There is nothing in the judgment of Windell J
which suggests that the learned Judge considered submissions in relation to costs”
(para 6 of judgment p 02-194)) and “In the present matter it is apparent that the relief
claimed by the Plaintiff in the review application is the same, at least as far as costs
are concerned as the relief sought in the present proceedings” (para 6 of the
judgment p o2-193). This amounts to a contradiction by t he Magistrate who held that
the relief claimed in both cases are the same in particular as to the costs claimed but
also that it is different apart . For the Magistrate to state that Windell J simply ruled
that there be no cost order and that there was nothing in the judgment suggesting
that Windell J did not consider any submissions regarding costs is simply without any
foundation. If so, the cost order should have been appealed.
[22] The normal cost order involving an individual in a judicial or quasi -judicial
capacity is that no cost order will be granted against such individual even if their
opposition is unsuccessful. In Coetzeestroom Estate & GM Co v Registrar of
Deeds 1902 TS 216 at 223 -4 it was held that in matters of practice a registrar of
deeds should not be mulched in costs when his action or attitude, although mistaken,
is bona fide. See Herbstain & Van Winsen 4 th Ed The Civil Practice of the
Supreme Court of South Africa p 723 -725. The principle on which a court
exercises such a discretion is that no undue obstacle should be placed in the way of
a public officer or body who or which in the course of performing his/its duty
considers it necessary to engage in litigation.
considers it necessary to engage in litigation.
[23] It may however in different circumstances be that a cost order be granted
against such individual in a separate suit. M acLean v Haasbroek NO and O thers
1957 (1) SA 464 (A); Lamb v Peters (1900) 17 SC 427 . There was no submissions
made in this regard during the review to sway Windell J not to follow the normal
directives in Coetzeestroom and MacLean supra.
[24] The underlying ratio in Coetzeestroom and MacLean for not mulching the
individuals acting in a quasi-judicial capacity was whether they acted bona fide.
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There are various examples where individuals acting in a quasi -judicial capacity
should not be mulched with costs unless they acted in bad faith (not bona fide). See
Herbstein supra 724-725.
[25] Returning to the requirement of finality of the review judgment, what the
respondent (the plaintiff a quo) tries to achiev e is to have the cost order as rule d
upon by Windell J that each party should pay its own costs , overturned. Windell J
addressed the issue of costs and it is part of the review order which all agree is a
final order. This court as a court of first instance does not have the jurisdiction to
overturn an order by a court of equal standing. What should have happened is that
the respondent (plaintiff a quo) should have approached Windell J for a clarification
of the cost order or appealed the order.
[26] As stated above, the argument that the relief in the review is different from that
in the Magistrate’s Court is a disguised attempt to circumvent an appeal thereof. This
court is of the view that this argument cannot succeed. The real relief sought by the
respondent (the plaintiff a quo) is to recover his costs incurred for the review from the
appellant despite the ruling by Windell J that each part pay its own costs.
[27] The court deems it not necessary to address the aspect of issue estoppel in
view of the above that the resort to res judicata is successful.
ORDER:
1. The appeal is upheld with costs, the costs on a party and party scale.
2. The order by the Magistrate that the special plea of res judicata and issue
estoppel is dismissed with costs is replaced with the following: The special plea of
res judicata and issue estoppel is upheld with costs.
_______________________________
HOLLAND-MUTER J
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Judge of the Pretoria High Court
I agree.
________________________________
LENYAI J
Judge of the Pretoria High Court
Appearances:
For the Appellant: Adv S F Sibisi
For Respondent: Adv K Fitzroy
Date argued: 31 July 2025
Judgment on: October 2025