The doctrine of res judicata is founded upon the principle that matters should reach finality and that the party referring the dispute should not be allowed to bring the same action again to the same or different forum. The principle of res judicata further contemplates that an Applicant needs to raise all the issues upon which he/she seeks relief, once, and in the same application. It is entirely undesirable that a litigant brings multiple claims based on the same cause of action between the same parties. This is referred to as the “once and for all rule”.
Requirement for res judicata:
In SA National Defence Union and Another v Minister of Defence and Others (2003) 24 ILJ 2101 (T), it was held:
” The requisites for a valid defence of res judicata are that the matter adjudicated upon must have been for the same cause, between the same parties, and the same thing must have been demanded.”
In Yellow Star Properties v MEC Department of Development Planning and Local Government 2009 (3) All SA 475 (SCA) the Court amplified on this dictum in SA National Defence Union as follows:
“It is necessary to stress not only that the parties must be the same, but 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.”
In MEC Department of Education, KwaZulu-Natal v Khumalo and Another (2010) 31 ILJ 2657 (LC), the Labour Court held:
“Res judicata literally means “a matter already judged”; the doctrine is that the matter cannot be judged again. This is a presumption founded on public policy requiring litigation not to be endless, to be in good faith and to prevent the same claim being demanded more than once.”
In order for the defence of res judicata to apply, the dispute must be referred involving the same parties and the same issues of law or fact, of which have already been adjudicated or arbitrated upon.
In Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union and Others (1999), 20 ILJ 82 (LAC), the Labour Court held:
“The cause of action is the same whenever the same matter is in issue: Wolfaardt v Colonial Government 16 SC 250 at 253. The same issue must have been adjudicated upon.
An issue is a matter of fact or question of law in dispute between two or more parties which a court is called upon by the parties to determine and pronounce upon in its judgment, and is relevant to the relief sought.”
In PT Operational Services (Pty) Ltd v RAWUSA obo Ngweletsana (2013) 34 ILJ 1138 (LAC), in which Musi AJA provided that the doctrine of res judicata will only apply to a matter once the statutory duties and/or functions of the relevant administrative agency have been spent by its first exercise. Musi AJA proceeded to state that, if a claim were dismissed on the basis of a procedural point, such dismissal would be equivalent to an order of absolution in the instance in which case, the applicant would be able to set the matter down again.
Further, an Applicant that withdraws a dispute may not refer the same dispute where the nature of the dispute is materially the same.
Res Judicata and Lis Pendens
In the case of Feni v CCMA [2020], 10 BLLR 1001 (LAC), the applicant referred two disputes to the CCMA. The first dispute was referred as an automatic unfair dismissal dispute, in which a certificate of non-resolution was issued, allowing the applicant to refer the dispute to the Labour Court, which the applicant did. The next day the applicant referred the dispute again as an unfair dismissal dispute. The issue in dispute before the Labour Appeal Court was to determine whether the CCMA had jurisdiction to conciliate and arbitrate the second referral.
Quoting Wallis J in the case of Caesarstone Sdot-Yam v World of Marble and Granite 2000 CC and others 2013 (6) SA 499, Davis JA stated: “(the doctrine of lis pendens) is that there should be a limit to the extent to which the same issue is litigated between the same parties and that it is desirable that there be finality in litigation. The courts are also concerned to avoid a situation where different courts pronounce on the same issue with the risk that they may reach different conclusions.” Davis JA also added that a plea of lis pendens “involves an intervention by the court to stay one or other of the proceedings because it is prima facie vexatious to bring two actions in respect of the same subject matter”.
In dismissing the Applicants referral, the Labour Appeal Court found that lis pendens found application in this dispute. The applicant, in referring his dispute to the Labour Court, could in his application include grounds of the second referral in conjunction with his main dispute.
The Feni case sets out the application of the doctrines of res judicata and lis pendens, namely that:
For res judicata to apply, the matter involves the same parties and an issue of fact or law that is an essential element of the judgment on which reliance is. For lis pendens to apply, there must be one cause of action, being the same act of dismissal in multiple allegedly unfair dismissal disputes.
Article by: Wesley Lazarus
Dispute Resolution Official – George