Res judicata literally means that the matter has already been decided and the meaning of a special plea of res judicata is that the matter or question raised by the other side has been finally adjudicated upon in proceedings between the parties and that it therefore cannot be raised again.1 There are requirements that should be satisfied for a special plea of res judicata to be granted which are; the dispute is between the same parties, for the same relief and on the same cause of action.2 These requirements are sometimes relaxed in circumstances warranting the relaxation of the requirements (issue estoppel). It is argued that a special plea to apply res judicata in the form of issue estoppel leads to unfairness such that it should be abolished from South African law, more is to be elucidated below. Requirements of Res judicata
In Huisman and Another v Lakie and Others, the court sets out the requirements for the granting of a special plea of res judicata which are that the dispute must involve the same parties, concern the same relief and the same cause of action.3 This defense originates from Roman Dutch law and is based and founded on public policy which requires that litigation should come to an end when the same matter has already been adjudicated upon in another forum.4These requirements are not cast in stone such that they may be relaxed in the case of a special plea for a court to apply res judicata in the form of issue estoppel. In Huisman’s case, the court averred that those common law requirements are sometimes relaxed to an extent and this development had its genesis in the case of Boshoff v Union Government, in which the ‘same cause of action’ requirement was relaxed to allow for the successful application of res judicata.5 The rule relating to these requirements has been extended in the case of issue estoppel which is a concept received from English law.6 In Smith v Porritt and others, the court asserted that where the circumstances justify the relaxation of these requirements those that remain are that the parties must be same and that the same issue must arise.7 This reveals that if there are circumstances that warrant for the relaxation of the requirements, the courts will relax the requirements to ensure the successful application of res judicata. Purpose of res judicata
The purpose of res judicata is ‘to prevent the repetition of law suits between the same parties, the harassment of a defendant by the multiplicity of actions and the possibility of conflicting decisions by different courts on the same issue’.8 It has been asserted in Prinsloo NO & others v Goldex 15 (Pty) Ltd & another, that a rigid adherence to the threefold requirements of res judicata could, in certain cases, defeat its very purpose.9 Salant argues that the defense of res judicata prevents a party to previous litigation from disputing the correctness of a judgment in the sense that he may not again rely upon the same cause of action, with issue estoppel such party is also prevented from disputing an issue decided by the previous court.10 The court however warned, that the relaxation of the requirements of res judicata to apply it in the form of issue estoppel creates the potential of causing inequity and unfairness that would not arise upon an application of all three requirements.11 This reveals that the consideration of res judicata should be done on a case by case basis and that the relaxation of the requirements must not be resorted to where it is likely to lead to unfair consequences to be able to achieve its purpose. Is application of res judicata inequitable?
In Hyprop Investments Ltd v NSC Carriers and Forwarding CC and Others, the court averred that “There is no doubt that issue estoppel as a variant of res judicata is now firmly embedded in our law and that the court apprised of it has a discretion whether to allow the plea to preclude the later claim”12 In Huisman and Another v Lakie and Others, the court had to decide...
References: Salant S J Distinguishing res judicata and issue estoppel
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