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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION MAHIKENG

 

Case No: 648/2020

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

 

In the matter between:-

 

LYNETTE MARTHA JOUBERT                                     PLAINTIFF

 

AND

 

MINISTER OF JUSTICE AND

CORRECTIONAL SERVICE                                          FIRST DEFENDANT

 

THE DIRECTOR OF PUBLIC

 PROSECUTIONS                                                          SECOND DEFENDANT

 

Judgment is handed down electronically by distribution to the parties’ legal representatives by e-mail. The date that the judgment is deemed to be handed down is 20^th November 2024 at 16h00.

ORDER

 

(i)   The special pleas are dismissed.

 

(ii)   The plaintiff action is dismissed.

 

(iii)  The plaintiff is ordered to pay the costs of suit on a party -and-

party basis on the High Court Scale “B” to be taxed.

JUDGMENT

 

REDDY J

 

Introduction

 

[1]        This is an action ‘for the plaintiff to be compensated for damages suffered owing to the malicious, wrongful, unlawful and/or negligent conduct of the defendants alternatively either one of the two.’ To this end, the plaintiff averred that damages were suffered for the time spent in detention at the Correctional Services Facility (which should not have occurred) in the amount of R13 350 000. 00. The defendants deny any malicious and/or wrongful and/or unlawful and/or negligent conduct. Moreover, the defendants dispute that the plaintiff had suffered any damages.

 

 [2]      A description of the participating parties is essential for ease of reference. The plaintiff is Lynette Martha Joubert, an adult female.  The first defendant is the Minister of Justice and Correctional Services. The second defendant is the National Director of Public Prosecutions. For purposes of brevity, I propose to follow the appellations of the parties as cited.

 

[3]        The plaintiff was arrested on allegations of fraud. From the record of proceedings, the second defendant initiated the prosecution of the plaintiff on sixty-four (64) counts of fraud. The plaintiff made several appearances before the Regional Court at Lichtenburg. The delineation and substance of these appearances are not essential for the adjudication of this matter. Resultantly, it need not detain this Court any further.

 

[4]        Of relevance is the proceedings of 06 June 2017 and 27 June 2017. The court was constituted of Acting Regional Magistrate Makabanyane, (“the ARM”), Mr. Magabane appeared for the plaintiff and Advocate J. Neveling for the State. On 06 June 2017, the charges were put to the plaintiff. The plaintiff pleaded guilty to all counts. In lieu of the invocation of section 112(1)(b) or section 112(2) of the Criminal Procedure Act, 51 of 1977, (“ the CPA”), the plaintiff was summarily found guilty on her plea of guilty. This for all intents and purposes was caused by the application of section 112(1)(a) of the CPA.

 

[5]        The matter was accordingly postponed to 27 June 2017 for the addresses in aggravation and mitigation of sentence. On the latter date, the Mr Magabane alerted the ARM to what he perceived to be a material irregularity in the way that the plaintiff had been convicted. Notwithstanding the contention of Mr Magabane, the plaintiff avers that the prosecution played no role in accentuating this irregularity but simply proceeded with an address in aggravation of sentence. The plaintiff contends that the failure by the prosecution to emphasize this irregularity, is indicative of it being complicit in the irregular procedure that the ARM had embarked on. This entire charade was to the prejudice of the plaintiff, which culminated in her being sentenced to fifteen (15) years imprisonment.

 

[6]        On 11 December 2017, these proceedings were the subject of the special review process as evinced in section 304(4) of the CPA. On 18 March 2018, the proceedings before the ARM were found not to be in accordance with justice, by Djaje J (as she then was) and Gutta J of this Division, (“the reviewing court”). Pivotal to the failure of justice was the non-application of the provisions of section 112(1)(b) or section 112(2) of the CPA. The irregular conduct of the ARM was corrected within the purview of review procedure. By this time, the plaintiff had been incarcerated for a period of two hundred and sixty-seven days, (267).

 

[7]        Following the order setting the proceedings aside, the plaintiff instituted an action against the first and second defendants premised on her unlawful detention. To this end, the plaintiff claims damages in the sum of R13 350 000.00. As outlined, the defendants’ denied liability and quantum.

 

[8]        As agreed between Adv Mashele for the plaintiff and Adv Smit, no evidence was to be presented with the action to be considered exclusively on the pleadings.

 

[9]        The plaintiff raised two special pleas, first of estoppel and second of res judicata. I now address the question of the special pleas. There was consensus between Counsel for the parties, that the special pleas may be dispositive of the entire action. Predicated on this understanding, the special pleas are to be adjudicated as a precursor, and if so required, followed by a finding on the action.

 

[10]     Adv. Mashele submitted that the defendants have conceded to the unlawful conduct upon which the plaintiff’s claim is premised. Adv Mashele continued that notwithstanding this concession being factually correct, the substance of same was confirmed by an order of court. The order of the reviewing court of 08 March 2018, remains extant and has not been impugned. Furthermore, a damaging admission as regards the unlawful conduct that the plaintiff was subjected to was conceded to by the ARM. Much reliance was placed on a reply to a query by the ARM within the subset of the special review process. This reply reads as follows:

 

         “QUERY BY REVIEWING JUDGE

 

         The delay in responding to this query is regrettable. I received this order of the Honourable Judge from Mr. Magabane Attorneys at Lichtenburg Regional Court Chambers on 1 March 2018.

 

           The Regional Magistrate advises as follows:

 

1.    It is correct that the wrong procedure was followed when the Accused pleaded in the Regional Court. This wrong procedure was a justus error made by the Presiding Officer. This was an unintentional omission by the Presiding Officer. Even the Accused’s Legal Representative Mr Magabane regarded this omission as unintentional. During mitigation proceedings he said “The court did not commit this error intentionally, It was just an oversight on the part of the court…”

 

2.     It is correct that the record of the proceeding attached does not indicate if the Accused’s legal Representative was given an opportunity to address the court in terms of section 112(2) of the Criminal Procedure Act No. 51 of 1977. This was an unintended oversight by the Presiding Officer. It could be that the Accused’s Legal Representative a person with blindness or visual disability also omitted to hand a written statement by the Accused into court.

 

The omission by the Presiding Officer is highly regrettable especially as it is the first time for him to engage a wrong procedure during his judicial career.

 

If the Honourable Judge orders that the matter be remitted back to the trial court for the correct procedure to be followed, the order will be complied with and the circumstances relevant to the Applicant since then will be considered.

 

                  Signed

 

                 B. N Makabanyane

                 Acting Regional Magistrate

 

[11]      Adv Mashele asserted that in view of the commonalties in the action in conjunction with the special pleas, the defendants are estopped from approbating and reprobating in respect of the same issue. Particularly, when regard is had to the fact that this issue has been settled by an order of the reviewing court.

            

[12]     The defendants’ dispute that either of the special pleas find application. Adv Smit contends that the plaintiff harbors under a misapprehension as regards the conspectus of her action. To this end, the plaintiff argues that simply because the reviewing court found an irregularity in the proceedings before the ARM resulted in a failure of justice, constitutes a conclusion of the merits of this action in her favor.

 

[13]     To bolster this conclusion, Adv Mashele places much store on an undisputed reply by the ARM during the subsistence of the review proceedings. In essence, in his reply to a query by the review court the ARM conceded to the irregularity in the proceedings before him of 06 June 2017. Put simply, the plaintiff avers that given the gravity of this concession, it axiomatically follows that judgment in favor on the merits of the action is a foregone conclusion.

 

[14]     Adv Mashele further contended that pursuant to the order of the review court, the defendants are “estopped from raising a defence to the plaintiff’s particulars of claim which flows from the same facts upon which the review application was granted”

 

[15]      Further, “ In the light of above the Plaintiff pleads that the merits in this action are settled in totailty by Madam Justice Djaje J and Gutta J’s order reviewing and setting aside of  the conviction and sentencing of the plaintiff and finding that the same was not in accordance with justice.”

 

[16]      Finally “ In amplifcation of the above special plea the Plaintiff pleads that Djaje J and Gutta J considered the same grounds on which this action is premised when she reviewed and set aside the conviction and sentencing of the Plaintiff. Thus, the merits in this action are without doubt res judicata . Consequently, the First and Second Defendants defence in this action are without merit and stands to be dimissed with costs.”

 

[17]      Adv Smit asserted that the special pleas raised by the plaintiff is an incorrect exposition of the law. The rub of this contention ran that the reviewing court did not make a clear finding on any alleged malicious , wrongful, unlawful  and/or negligent elements which the plaintiff has an onus to prove.  Moreover, Adv Smit submitted that the admissions by the ARM which formed the substratum of the order by the reviewing court, does not clothe the defendants with liability. In essence, the special pleas of the plaintiff are irrelevant and therefore falls to be dismissed. It would then follow  that the plaintiff’s claim would fail. Resultantly, the action must be dimissed with costs.

 

 [18]    In principle, the plaintiff raised a single special plea that of res judicata. The principles applicable to a plea of res judicata have been succinctly summarised by the Supreme Court of Appeal in Yellow Star Properties 1020 (Pty) Ltd v MEC, Department of Development Planning and Local Government, Gauteng 2009 (3) SA 577 (SCA) as follows:

 

“[21] In considering this argument, it is necessary to deal briefly with the principles of res judicata and so-called 'issue estoppel' relied on by both sides. The underlying ratio of the exceptio rei judicatae vel litis finitae is that where a cause of action has been litigated to finality between the same parties on a previous occasion, a subsequent attempt by one party to proceed against the other on the same cause of action should not be permitted. In National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors (Pty) Ltd [2000] ZASCA 159; 2001 (2) SA 232 (SCA) ([2001] 1 All SA 417) at 239 para 2   Olivier JA stated the requirements for a successful reliance on the exceptio to be as follows: The requirements for a successful reliance on the exceptio were, and still are: idem actor, idem reus, eadem res and eadem causa 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' (per Steyn CJ in African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 562A); or which comes to the same thing, ‘on the same cause for the same relief' (per Van Winsen AJA in Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) at 472A - B; see also the discussion in Kommissaris van Binnelandse Inkomste v ABSA Bank Bpk 1995 (1) SA 653 (A) at 664C - E); or which also comes to the same thing, whether the ‘same issue' had been adjudicated upon (see Horowitz v Brock and Others 1988 (2) SA 160 (A) at 179A - H).

 

[22] It has been recognised though that the strict requirements of the exceptio, especially those relating to eadem res or eadem petendi causa (the same relief and the same cause of action), may be relaxed where appropriate. Where a defendant raises as a defence that the same parties are bound by a previous judgment on the same issue (viz idem actor and eadem quaestio), it has become common place to refer to it as being a matter of so-called 'issue estoppel'. But that is merely a phrase of convenience adopted from English law, the principles of which have not been subsumed into our law, and the defence remains one of res judicata. Importantly when dealing with the issue of estoppel, it is necessary to stress not only that the parties must be the same but that the same issue of fact or law which was an essential element of the judgment on which reliance is placed must have arisen and must be regarded as having been determined in the earlier judgment.” (own emphasis)

 

[19]   In Smith v Porritt and Others 2008 (6) SA 303 (SCA), Scott JA sounded the following word of caution in the blanket application of estoppel:

 

“[10] …. 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. (Kommissaris van Binnelandse Inkomste v Absa Bank (supra) at 670E - F.) Relevant considerations will include questions of equity and fairness not only to the parties themselves but also to others. As pointed out by De Villiers CJ as long ago as 1893 in Bertram v Wood (1893) 10 SC 177 at 180, 'unless carefully circumscribed, [the defence of res judicata] is capable of producing great hardship and even positive injustice to individuals'. [Also see: Hyprop Investments Ltd v NSC Carriers & Forwarding CC 2014 (5) SA 406 (SCA) at para [14]]”

 

[20]      In Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another 2014 (5) SA 297 (SCA), the following was posited in respect of the   enforcement of estoppel:

 

“[23] In our common law the requirements for res iudicata 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 threefold requirement. But our courts have come to realise that rigid adherence to the requirements referred to in (b) and (c) may result in defeating the whole purpose of res iudicata. That purpose, so it has been stated, is to prevent the repetition of lawsuits 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 eg Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 835G). 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.” (own emphasis).

 

[21]     An examination of the three seminal requirements that underscores the doctrine of res judicata in our law, unequivocally demonstrates    that the plaintiff has conflated the special review process and this action proceedings that followed the order by the reviewing court. I turn now to deal with each of these substantive requirements and illustrate this conflation. These are:

 

           (i)  same parties.

 

           (ii) same cause of action.

 

            (iii) same relief.

 

[22]     Were these requirements satisfied? The first question is to determine whether, as a matter of fact, the same issue of fact or law was determined by the judgment of the reviewing court which is before this Court for consideration. If, the same issue (eadem quaestio) was not adjudicated on by the reviewing court, an essential requirement for the plea of res judicata in the form of estoppel would not be met. The latter finding is not dispositive of the plea of res judicata. The reasoning for same is crisply set out in Democratic Alliance v Brummer (793/2021) [2022] ZASCA (3 November 2022) at para 13, where the following was stated:

 

         ‘…  It does not, however, necessarily follow, that once the inquiry establishes that the same issue was determined, the plea must be upheld. That is so because the court considering the plea of estoppel is, in every case concerned with the relaxation of the requirements of res judicata. It must therefore, with reference to the facts of the case and the considerations of fairness and equity, decide whether in that case, the defence should be upheld.” (footnotes omitted)    

 

[23]     As can be seen, all three prerequisites for the upholding of the special plea of res judicata are absent. The cause of action is not the same, neither are the parties, nor the relief sought. Even if I am incorrect on the latter score, the conduct of party’s case at trial of an action is in the entire control of the party’s counsel. Adv Mashele pinned his colors to the mask as to the way the action should forge ahead. A finding in favor of the plaintiff in respect of the special plea would not have resulted in a judgment in the plaintiff’s favor simply on the pleadings. In the premises, this special plea fails and must be dismissed.

 

[24]     In respect of costs, costs are at the discretion of the court. There are no bases to deviate from the principle that costs follow the result.

     

Order

 

[25]     In the premises, I make the following order:

 

             (i)   The special pleas are dismissed.

 

             (ii)   The plaintiff action is dismissed.

 

(iii)  The plaintiff is ordered to pay the costs of suit on a party -and-party basis on the High Court Scale “B” to be taxed.

 

 

A REDDY

JUDGE OF THE HIGH COURT

OF SOUTH AFRICA, NORTH WEST DIVISION,

MAHIKENG

 

 

APPEARANCES

 

For the Plaintiff                                           Advocate M. Mashele

 

Instructed                                                   Sifumba  Attorneys

                                                                   No 7 CNR Gemsbok & Impala Street,

                                                                   Golfview

                                                                   Mafikeng

 

For the defendants:                                    Advocate D. Smit

 

instructed by                                              State Attorneys

                                                                  1^st floor, West Gallery

                                                                  Mega City Shopping Complex

                                                                  Mmabatho

 

Date written heads of plaintiff filed            28 June 2024

 

Date written heads of defendant filed       28 June 2024

 

Date judgment reserved                              01 July 2024

 

Date judgment delivered                             20 November 2024

 

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