Special defence of res judicata

10 September 2021 16:03 by Merilyn Kader

In Democratic Alliance v Brummer [2021] 2 All SA 818 (WCC), a party seeking to rely on the defence of res judicata must allege and prove all the elements underlying the defence. It is unjust and inequitable to uphold a special plea of issue estoppel if respondent denied opportunity to litigate.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Civil Procedure - Special defence of res judicata: In the case Democratic Alliance v Brummer [2021] 2 All SA 818 (WCC) the respondent (Brummer) joined the appellant political party, the Democratic Alliance (the DA) in 2000. He subsequently served as a councillor for more than a decade. On 13 August 2012, the DA confirmed termination of Brummer’s membership of the party, alleging that he had failed to pay his dues to the party. The termination of membership was based on a clause in the DA’s Federal Constitution, which provided for membership to cease when a member was in default with the payment of any compulsory public representative contribution for a period of two months after having been notified in writing that he is in arrears, and still fails to make good on the arrears.

Upon Brummer’s position becoming vacant, the Independent Electoral Commission (the IEC) was statutorily required to advertise that vacancy. Following such advertisement, Brummer applied to interdict the IEC from filling the post and to procure the reinstatement of his membership. By the time the matter came before court, the vacancy had already been filled by the IEC. Brummer attempted to challenge the constitutionality of the relevant clause in the DA constitution, but the court refused to entertain the belatedly raised point. The application was dismissed in September 2012.

In 2014, Brummer commenced action proceedings against the DA for damages founded in contract, alternatively delict and in the further alternative, for constitutional damages. The basis of Brummer’s claims in the action was that the DA had unlawfully terminated his membership.

A week before the trial was due to commence, the DA sought to introduce for the first time a special plea of issue estoppel and then insisted upon that issue being determined separately and in limine at the trial. The dismissal of the special plea led to the present appeal.

Defence of issue estoppel has taken root in our law as a subsidiary of the principle of res judicata. The plea of res judicata – that the matter has already been decided – was available where the dispute was between the same parties, for the same relief or on the same cause. The requirements have been relaxed over the years and where there is not an absolute identity of the relief and the cause of action, the attenuated defence has become known as issue estoppel.

A party seeking to rely on the defence of res judicata must allege and prove all the elements underlying the defence. The DA relied on the September 2012 judgment as constituting res judicata in respect of the claims for damages subsequently launched by Brummer. The court stated that the factual issue, which arose in this matter, was the termination of Brummer’s membership through the application by the DA of the clause in its constitution. That termination afforded Brummer various causes of action. However, he was denied the opportunity to place his case before the court. His having been prevented from litigating his cause of action in relation to damages to finality meant that it would be unjust and inequitable to uphold the special plea of issue estoppel. The majority of the court dismissed the appeal.

Merilyn Rowena Kader
Legal Editor at LexisNexis