THE DEVELOPMENT OF THE EXCEPTIO LIS ALIBI PENDENS IN S.A.

It is trite that the exceptio lis alibi pendens, had its origins in Roman Law.  As such Voet, in his commentary on the Digesta, distilled the following essentialia to invoke the exceptio lis alibi pendens:

• ‘ … the suit must already have started to be mooted before another judge,,,’
• ‘between the same persons…’
• ‘about the same matter….’
• ‘and on the same cause…’

 

It should be noted that these essentially was distilled specifically from ‘Commentarius ad Pandectas’, book 44: Liber Quadragesimus Quartus, title 2: ‘De Exceptione Rei Iudicatae’, where Voet relied on inter alia the following two passages by Ulpianus:

‘7(4)… generally speaking (as Julianus says), an exception on the ground of res judicata will operate as a bar whenever the same question is brought up again in court between the same persons, or in a different kind of a case. Hence, if after having brought suit to recover an estate, and lost it, the plaintiff brings one to recover certain articles forming part of the estate; or if, after having brought an action to recover certain articles belonging to it, and failed, he then brings one to recover the entire estate, he will be barred by an exception. (5) The same rule should be adopted where anyone, having brought an action to collect a claim from a debtor of an estate and lost it, brings one to recover the entire estate; or, on the other hand, if, in the first place, he brought an action to recover the estate, and afterwards brings one to collect a debt forming a part of the assets of the same, an exception, in this instance, will operate as a bar; for if I bring suit for an estate, all the property and rights of action appertaining to it are considered to be included in the claim. (translation: S. P. Scott, The Civil Law, X, Cincinnati, 193)'

 

Voet further explained that the raison d’ete for the exceptio stems from the basic legal premise that:

 ‘… the place where a judicial proceeding has once been taken up is also the place where it ought to be given its ending.’

 

Van der Keessel in ‘Praelectiones ad Grotium’, 3.49.2, denoted the requirements somewhat stricter, but in a similar vein, i.e. ‘idem actor, idem reus, eadem res, eadem causa petendi’.

 

A thousand five hundred years later, the Constitutional Court (CC) in Association of Mine Workers and Construction Union v Ngululu Bulk Carriers (Pty) Limited (2020) 41 ILJ 1837 (CC), at para 26., echo’d Voet’s words almost verbatim and reiterated that:

‘The purpose of lis pendens is to prevent duplication of legal proceedings…. For a lis pendens defence to succeed, the defendant must show that there is a pending litigation between the same parties, based on the same cause of action and in respect of the same subject matter.’

 

It should however be noted that CC exclusively placed reliance on the dicta of the Supreme Court of Appeal (SCA) in Nestle (South Africa) Pty Ltd v Mars Incorporated, 2001 (4) SA 542 (SCA) at paras 16 and 17, where the SCA stressed that:

‘The defence of lis 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. There is room for the application of that principle only where the same dispute, between the same parties, is sought to be placed before the same tribunal (or two tribunals with equal competence to end the dispute authoritatively). In the absence of any of those elements there is no potential for a duplication of actions.’

 

However, and in the same hear the SCA, in National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors (Pty) Ltd, 2001 (2) SA 232 (SCA), in passing address, what can be described as the development of the common law.  Essentially, since approximately 1932, the SCA has been alive to the ‘absence of leeway’ in the ipse dixit of the Roman Dutch commentators, and it sought to temper the requirements to ensure fair application in an ever-changing society.  In this regard, the SCA recorded that:

‘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).’

 

As such, the SCA followed a pragmatic approach. It restated the requirements, but effectively inferred that each of the expressions used in a myriad of other judgments, effectively came down to the same thing.

 

Further and in 2008, i.e., some seven year after Nestle, the SCA in Smith v Porritt & others 2008 (6) SA 303 (SCA) para 10,  clarified its views 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) n 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 quastio) 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 commonality of cause of action and relief claimed it has become commonplace to adopt the terminology of English law and to speak of issue estoppel. But, as was stressed by Botha JA in Kommissaris van Binnelandse Inkomste v Absa Bank Bpk 1995 (1) SA 653 (A) at 669D, 670J-671B, 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 … 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.”’

 

The SCA thereafter, and at least in Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2000 CC & others, 2013 (6) SA 499 (SCA) at paras 21 to 24, which again extensively analysed the legal position around lis pendens, followed Porritt, and recorded that:

‘…. the requirement of the same cause of action is satisfied if the other proceedings involve the determination of a question that is necessary for the determination of the case in which the plea is raised and substantially determinative of the outcome of that latter case, Boshoff was followed in a number of cases in provincial courts, but was regarded as controversial because it was thought to import into South African law the English principles of issue estoppel. It is unnecessary to explore that controversy because this Court laid it to rest in Kommissaris van Binnelandse Inkomste v ABSA Bank Beperk. here, Botha JA held that Boshoff was based on the principles of our law. He said that its ratio is that the strict requirements for a plea of res judicata of the same cause of action and that the same thing be claimed, must not be understood in a literal sense and as immutable rules. There is room for their adaptation and extension based on the underlying requirement that the same thing is in issue as well as the reason for the existence of the plea… Whilst the form in which those issues arise and the relief that is claimed consequent upon them differs in the two actions the central issue remains essentially the same. Whilst there is not strict compliance with the requirements for res judicata this is in my view a proper case to relax those requirements in accordance with the approach in Kommissaris van Binnelandse Inkomste v ABSA Bank Beperk (KBI).’

 

Essentially, the SCA thus, without ever making reference to the original common law source, i.e., Ulpianus, reached the selfsame conclusion as was reached by Ulpianus one thousand five hundred years ago. 

 

It should however be noted that in KBI the SCA was required to determine if issue estoppel became part of RSA common law through Boshoff, and the SCA recorded that given that Boshoff was decided on a common law as expanded, it did not have to determine whether issue estoppel has been accepted as part of RSA common law.  As such, the court recorded that: 

‘Die ware betekenis van Boshoff v Union Government is dat die beslissing ingehou het dat die streng gemeenregtelike vereistes vir 'n verweer van res judicata (in die besonder: eadem res en eadem petendi causa) nie in alle omstandighede letterlik verstaan moet word en as onwrikbare reels toegepas moet word nie, maar dat daar ruimte is vir aanpassing en uitbreiding, aan die hand van die onderliggende vereiste van eadem quaestio en die ratio van die verweer. In hierdie lig beskou, kan daar na my mening in beginsel nie fout gevind word met die benadering van die hof in Boshoff v Union Govemment nie. Die onaanvaarbare altematief sou wees om met letterknegtige formalisme vas te klou aan stellings in die ou bronne, wat onversoenbaar sou wees met die lewenskragtige ontwikkeling van die reg om te voorsien in die behoeftes van nuwe feitlike situasies… Elke saak moet volgens sy eie feite beslis word. Dit is ook nie doenlik om in abstrakte terme rigsnoere te probeer formuleer wat op alle situasies van toepassing gcmaak sou kan word nie.’

 

Though the SCA thus provided clarity, it is unescapable that the CC, without referencing Caesarstone or any similar earlier judgment which followed the same principle, followed  Nestle, which is strictly speaking at odds with such judgments.

 

Thus, the strict application of the requirements, i.e., as set out by Voet, should in confirming to the staire decisis principle, be followed.

 

However, it might be argued that as neither the SCA in Nestle or the CC in NUMSA was required to deal with a situation where the relaxed requirements needed to be addressed, and as neither court regarded any of the preceding judgments of the SCA as wrong, that both courts, by inference accepted that the common law was expanded.  It may also be argued that KBI merely expressed a view on what occurred and not whether it was correct. 

 

This view finds support in an earlier judgment by the CC, in Ekurhuleni Metropolitan Municipality v Germiston Municipal Retirement Fund, 2017 (6) BCLR 750 (CC) at para 31, where the CC explained that:

‘…the submission that res judicata does not apply because of the lack of sameness in the cause of action is misconceived. Sameness is determined by the identity of the question previously set in motion’

 

This test originates from  African Farms & Townships Ltd v Cape Town Municipality, 1963 (2) SA 555 (A) at 562B, where Steyn CJ recorded that:

‘According to Voet, 44.2.4, it is not the form of action which determines the sameness of the causa petendi, but the identity of the question which is again raised or set in motion.’

 

It should also be understood that not one judgment which followed KBI, attempted to define the extent of the relaxation of the common law in any manner, which surpasses the ambit of the wording of Spenser Bower (Spencer Bower and Handley: Res Judicata), as often quoted, i.e.,:

‘Where the decision set up as a res judicata necessarily involves a judicial determination of some question of law or issue of fact, in the sense that the decision could not have been legitimately or rationally pronounced by the tribunal without at the same time, and in the same breath, so to speak, determining that question or issue in a particular way, such determination, though not declared on the face of the recorded decision, is deemed to constitute an integral part of it as effectively as if it had been made so in express terms; but, beyond these limits, there can be no such thing as a res judicata by implication.’

 

In fact, in Aon South Africa (Pty) Ltd v Van den Heever NO & others, 2018 (6) SA 38 (SCA) at paras 23 and 24 read with paras 40 and 41, Wallis JA quoted Spencer Bowers and concluded that issue estoppel has been accepted as part of our law, and explains that: 

‘My conclusion is that the claims advanced in these proceedings by the liquidators of Financial Services involve the reconsideration of the very evidence and issues that were the subject of determination in the previous action. Insofar as the relief was concerned it was not suggested that it was not the same in both actions… With respect, the court below erred in holding otherwise by looking mechanically at the elements of the causes of action in the two cases, instead of examining the issues that had been determined in the previous case and comparing them with the issues that would need to be determined if the present case went to trial… The elements of res judicata in the form of issue estoppel were accordingly satisfied and the special plea should have been upheld.’

 

In short, the leeway, which comes into play, is that as defined by Spencer Bower and explained through an example by Ulpianus. The leeway cannot extent any further and remains defined and the requirement remains express, albeit not in the words attributed  by Van Der Keesel.  The fourth requirement for the exceptio lis alibi pendens is thus (correctly stated):

The question of law or issue of fact arising in the one dispute is inherent to the determination of the other dispute.