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Fencecor Konstrucsie CC v Moses Kotane Local Municipality (950/2010)  ZANWHC 4 (1 March 2012)
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IN THE NORTH WEST HIGH COURT
CASE NO.: 950/2010
In the matter between:
FENCECOR KONSTRUCSIE CC …............................................Applicant
MOSES KOTANE LOCAL MUNICIPALITY …........................Respondent
DATE OF HEARING : 02 February 2012
DATE OF JUDGMENT : 01 March 2012
FOR THE PLAINTIFF : Advocate Hitge
FOR THE DEFENDANT : Advocate Maree
 This is an application for exception in terms of Rule 23 (1) of the Uniform Rules of Court. The application arises as a result of the exception raised by the defendant to the plaintiff’s amended particulars of claim. In this judgment the parties are referred to as in the main action.
 The defendant filed an exception to the plaintiff’s particulars of claim on the ground that the said pleading did not disclose a course of action.
 This application constitutes a second application by the defendant in that defendant had already on the 27th October 2010 filed an exception (first exception) to the same particulars of claim. The first exception was heard on the 31st March 2011 and was dismissed by this court with costs. This second exception, which is the subject matter before this court was subsequently filed on the 24th May 2011.
 At the hearing of the second exception the plaintiff raised a point in limine that the present exception is not provided for in the Rules of court, and cannot be entertained by this court. The parties then agreed that the issue as raised by the plaintiff should be decided first by this court before the merits of the exception can be proceeded with.
 Mr Maree on behalf of the plaintiff submitted that the grounds on which the exception is based overlaps with that of the first exception. According to him there is no provision in the rules or in practice in terms of which a party is entitled or allowed to file a second exception based on the same ground against the same pleading after the first exception has been dismissed.
 Mr Maree did not have any authority to refer the court to, but insisted that the ground upon which the defendant relies in this second exception, that the pleadings do not disclose a cause of action, had already been decided upon during the first exception. Furthermore that although the defendant alleges that they are bringing the second exception on the same ground but on different reasons, this cannot be allowed as those reasons ought to have been dealt with by the defendant in the first exception. He persisted with this submission that according to Rule 23 only two grounds can be raised in an exception, namely:-
- that the pleading are vague and embarrassing or
- that they do not disclose a cause of action
According to him, this court had already ruled against the ground that the pleadings do not disclose a cause of action. The ruling of the court came after the court had looked into the contents of the same pleadings that are the subject matter of the second exception. The court cannot under these circumstances entertain the second exception but to dismiss it.
 Mr Hitge on behalf of the defendant on the other hand submitted that it is a matter of common sense that when a defendant has other reasons than those canvassed in the first application, nothing in our law prevents him for bringing another application based on the same ground. He maintained that it is also in the interest of the court that this should be done as the other reasons raised in the exception can dispose off the matter.
 Mr Hitge also, like Mr Maree, did not have any authority to support these submissions. In an answer as to why the new reasons could not be dealt with in the first exception, he indicated that the previous legal representative of the defendant omitted to include them. The defendant was not happy with that, hence the current legal representative was sought.
 I may also point out that I was unable to get any case law or authority that deals directly with the issue that is before me.
 However, I found the principles as laid down in the cases that I had quoted in the paragraphs that follows apposite in this matter.
 Firstly, in the matter of Bafokeng Tribe V Impala Platinum Ltd and Others 1999 (3) SA 517 (BHL) Friedman J said the following:-
“A court must have regard to the object of the exceptio res judicata that it was introduced with the endeavour of putting a limit to needless litigation and in order to prevent the recapitulation of the same thing in dispute in diverse actions, with the concomitant deleterious effect of conflicting and contradictory decisions.
This principle must be carefully delineated and demarcated in order to prevent hardship and actual injustice to parties.
The doctrine of issue estoppels has the following requirements: (a) where a court in a final judgment on a cause has determined an issue involved in the cause of action in a certain way, (b) if the same issue is again involved, and the right to reclaim depends on that issue, the determination in (a) may be advanced as an estoppels in a later action between the same parties, even if the later action is founded on a dissimilar cause of action.
Issue estoppel is a rule of res judicata but is distinguished from the Roman-Dutch Law exception in that in issue estoppels the requirement that the same subject-matter or thing must be claimed in the subsequent action is not required. Issue estoppels has a two fold requirement.
Issue estoppels has been applied in our law in decision of Provincial and Local Divisions. However, in the Kommissaris case supra the Court accepted that the expression ‘issue estoppel’ had been in use in our law for a long time, and is a useful description of these cases which do not strictly conform to the threefold requirements of res judicata, because the same relief is not claimed on the same cause of action, but notwithstanding that the defence may be successful.
Issue estoppels is also founded on public policy to avoid a multiplicity of actions in order ‘inter alia to conserve the resources of the courts and litigants’. There is a tension between a multiplicity of actions and the palpable realities of injustice. It must be determined on a case by case foundation without rigidity and the overriding or paramount consideration being overall fairness and equity.”
 Secondly, in the matter of Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd and Another (2) 2005 (6) SA 23 (C) , the following was said:
“The gist of the defence of res judicata is that the matter or question which is being raised by an adversary has previously been finally adjudicated upon in proceedings between the same parties, and cannot be raised again. A matter is res judicata when the prior judgment was given (1) with respect to the same subject matter, (2) based on the same ground, and (3) between the same parties.
In determining whether the prior judgment was based on ‘the same ground’, regard must be had not only to the express judicial declaration in the earlier proceedings, but also to point that should have been raised but were omitted in the earlier proceedings. Where a matter becomes subject to litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time. (Paragraphs ,  and  at 45D-F, 46G/H-47B and 47E-F) H.
 In Janse Van Rensburg and Others NNO v Myburgh & Others 2010 (1) SA 649 (SCA) in paragraph 27 Heher JA said the following:-
“The scope of the ‘once and for all’ rule was said in the National B Sorghum case at 241D-E to require that all claims generated by the same cause of action be instituted in one action. As I have already found that the respective sections do not create the same cause of action, even in the extended sense, it is difficult to justify the applicability of the rule to the facts of these appeals. Murphy J* was, however, persuaded by a dictum from Henderson v Henderson  EngR 917; (1843) 3 Hare 100 ([1843-1860] All ER Rep 378) at 114-115 (at 381-382 All ER) (and the full court in case No 18109/2005 agreed with him), as follows:-
‘In trying this question I believe I state the rule of the court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea or res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at that time’
 From all of the above quoted cases the general principle seems to be that the defence will apply where points which ought to have been raised in the initial application are now raised in the second application.
 I agree with Mr Maree that this court had fully disposed of the substance of the issue of the exception that the defendant had brought in the first instance. The said issue of substance being the ground upon which the first exception was based namely:- “the pleadings do not disclose a course of action”. This court did so, having based its decision on the face of the same pleadings that are the subject matter of the second application. To entertain the second exception will in my view amount to recapitulation of the same thing in dispute in diverse action, which is not desirous. As seen from the quoted authorities above, the court requires the parties to litigation to bring forward their whole case, and will not, except in special circumstances permit the same parties to open the same subject of litigation in respect of matters which have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence, or even accidentally omitted part of their case. I am of the view that the reason raised by Mr Hitge as to why the reasons as raised in the current application could not be dealt with in the first application does not amount to exceptional circumstances that will entitle this court to depart from the general principle as laid down in the authorities quoted above,
 In coming to the conclusion that will become apparent later in this judgment, the following issues could not be overlooked and was also taken into consideration by this court.
The defendant filed his second exception way out of the time which is normally allowed in this kind of interlocutory applications in terms of the Uniform Rules of Court. Even on consideration of this reason alone, the hearing of the defendant’s second exception cannot succeed.
 Consequently, I am of the view that it will not be in the interest of justice that the defendant be allowed to open the same subject matter based on the same ground by way of a second application of an exception, albeit on different reasons.
 Consequently the second exception application by the defendant is dismissed with costs.
A M KGOELE
JUDGE OF THE HIGH COURT
Attorneys for Plaintiff : Smit Stanton Inc.
29 Warren Street,
Attorneys for Defendant : Van Rooyen Tlhapi Wessels Inc
9 Proctor Avenue Mafikeng, 2745