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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

                        Case No.: CA 61/2019

                        Court Date: 7 August 2020

                 Date Delivered:  13 August 2020

In the matter between:

ALEC BRETT N.O.                                                                                First Appellant

WAYNE BRETT N.O.                                                                        Second Appellant

GAVIN BRETT N.O.                                                                              Third Appellant

RYNETTE BRETT N.O.                                                                      Fourth Appellant

(in their capacity as trustees of the Alec Brett

Property Trust IT 1193/96)

and

CLIFFORD STANLEY KUSHNER                                                             Respondent

JUDGMENT

RONAASEN AJ:

Introduction

[1]           This appeal concerns the application of the so-called “once and for all” rule in respect of a claim for damages arising from a breach of contract.

[2]           The appeal lies against an order of the Regional Court, Port Elizabeth (“the trial court”) in terms of which the appellants’ claim, in their representative capacities as trustees of the Alec Brett Property Trust (“the trust”), for damages against the respondent, arising from the breach and cancellation of a written contract of lease, was dismissed on the grounds that it infringed the “once and for all” rule, in the circumstances which I set out, below.

[3]           In the trial court the parties agreed that the legal question as to whether the “once and for all” rule was dispositive of the appellants’ claim for damages be determined as a separated issue as contemplated in rule 29(4) of the rules of the Magistrates’ Courts.  In terms of rule 29(5) of those rules the parties agreed on a written statement of facts upon which the trial court could give judgment on the separated issue, without further evidence.

[4]           The facts so agreed upon between the parties and recorded in writing were as follows:

4.1.           the trust and the respondent concluded a written contract of lease (“the lease”) in respect of premises situated at 176 Main Road, Walmer, Port Elizabeth (“the premises”);

4.2.           the lease was for a period of three years, commencing on 1 November 2010 and terminating on 31 October 2013;

4.3.           the lease was attached to the particulars of claim in the second action referred to below;

4.4.           on 17 November 2011, because the respondent was in arrears with his rental payments in terms of the lease, the trust cancelled the lease;

4.5.           after the cancellation of the lease the respondent continued to occupy the premises in terms of an oral agreement between the parties, which allowed for his continued occupation of the premises until 24 February 2012.  He paid the trust all amounts due for the continued period of occupation, including all arrears;

4.6.           on 15 February 2012 the plaintiffs instituted action against the respondent in the Regional Court, Port Elizabeth, under case number 270/2012 (“the first action”), claiming payment of arrear rentals;

4.7.           the first action was settled between the parties and an order was made by consent;

4.8.           the respondent had paid all amounts due in terms of the consent order, apart from taxed costs;

4.9.           on 4 December 2012 the appellants instituted a further action against the respondent in the Regional Court, Port Elizabeth, under case number 2588/2012 (“the second action”) claiming payment of damages in respect of the balance of the period of the lease i.e. the period between March 2012 and October 2013.

[5]           In the second action the trial court found that the appellants’ claim for damages was precluded by the operation of the “once and for all” rule and dismissed the appellants’ claim, with costs.  This order is the subject of the present appeal.

The lease

[6]       Clause 12 of the lease is in the following terms:

“DEFAULT

In the event of the Tenant failing to make payment of any one month’s rental on the due date thereof, or committing a breach of any other provision of the Lease and failing to remedy such breach within seven (7) days of receipt of a written notice from the Landlord or its Agent requiring the Tenant to make such payment and/or remedy such breach, or in the event of the Tenant being served with the aforesaid notice on more than 2 (two) occasions in any 12 (twelve) month period during the currency of this Lease, then and in such event the Landlord shall be entitled to cancel this Lease forthwith by giving written notice to that effect to the Tenant, and to retake possession of the leased premises without prejudice to any right of action for payment of arrear rent or any other remedy which it may have either at Common Law or in terms of this Lease.”

[7]           Clause 12 clearly allows for the possibility of a claim for damages arising from a breach of the terms of the lease and its cancellation in the light thereof.

[8]           The lease does not contain any penalty or forfeiture provisions.  The lease, in clause 4.4, provides for the payment of a deposit, which:

“……the Landlord shall be entitled to retain until all liability of the Tenant in terms of or pursuant to this Lease or any renewal thereof shall have been determined and discharged, whereupon the deposit, or the balance thereof, as the case may be, shall be repaid to the Tenant”.

[9]           Clause 4.4 does not provide that the deposit would be forfeited as a penalty or a pre-estimate of damages. 

[10]        The significance of my observations in regard to forfeiture clauses/penalty provisions will be apparent later.

The first action and the consent order in terms of which it was settled

[11]        In terms of the particulars of claim in the first action the appellants only sought confirmation of a rent interdict (which provides security for arrear rental) and payment of arrear rental.  Initially payment in the sum of R271 224.80 was sought in respect of arrear rental.  In the light of payments made by the respondent subsequent to the issue of summons, in the aggregate sum of R222 149.23, the particulars of claim were amended to claim payment of arrear rental in the sum of R49 075.57.

[12]        In the first action no claim was made against the respondent for the payment of damages or for the enforcement of a penalty or forfeiture provision in terms of the lease.

[13]        Similarly, the consent order in terms of which the first action was settled provided only for the balance due in terms of arrear rental and for the payment of interest on the amount originally sued for, i.e. the sum of R271 224.80.

The second action

[14]        The first action related to an accrued claim for arrear rental for the period preceding the termination of the respondent’s occupation of the premises on 24 February 2012.  That much is apparent from paragraph 11 of the particulars of claim in the second action.

[15]        The second action is premised on the averment that the appellants were unable to re-let the premises for the balance of the period of the lease, i.e. 1 March 2012 to 31 October 2013.  It is further averred that, as a consequence, the appellants suffered damages in the sum of R936 666.32.  This sum takes into account the sum of R51 300.00, which the appellants obtained by letting a portion of the premises to a third party for the period August 2012 to April 2013 and which sum was applied in mitigation of the appellants’ alleged damages.

Legal principles

[16]        The “once and for all” rule applies especially to common law actions for damages in delict, though it is also applied to claims for damages for breach of contract. Evins v Shield Insurance Co. Ltd 1980 (2) SA 814 (A) at 835B-C.

[17]        In Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) at 472A-D, in the context of a claim for damages for breach of contract, the following was stated:

“The law requires a party with a single cause of action to claim in one and the same action whatever remedies the law accords him upon such cause.  This is the ratio underlying the rule that, if a cause of action has previously been litigated between parties, then a subsequent attempt by the one to proceed against the other on the same cause for the same relief can be met by an exceptio rei judicatae vel litis finitae.

This rule is part of the very foundation of our law……… The rule has its origin in considerations of public policy which require that there should be a terms set to litigation and that an accused or defendant should not be twice harassed on the same cause.”  [case references omitted]

[18]    Similar sentiments were expressed in Evins in respect of the rule, in the following terms, at 835E-F:

“Its purpose is to prevent a multiplicity of actions based upon a single cause of action and to ensure that there is an end to litigation.

Closely allied to the ‘once and for all’ rule is the principle of res judicata which establishes that, where a final judgment has been given in the matter by a competent court, then subsequent litigation between the same parties, or their privies, in regard to the same subject-matter and based upon the same cause of action is not permitted and, if attempted by one of them, can be met by the exceptio rei judicatae vel litis finitae.  The object of this principle is to prevent the repetition of lawsuits, the harassment of a defendant by a multiplicity of actions and the possibility of conflicting decisions.”

[19]        Against the background of the abovementioned passages from Shembe and Evins the following extract from Evins at 835A-C is highly apposite:

“The concept of a cause of action - and the question whether different claims constitute parts of a single cause of action or separate causes of action - are of particular significance in regard to the application of the so-called ‘once and for all’ rule and also in connection with the related questions of res judicata and prescription.”

[20]    In National Sorghum Breweries v International Liquor Distributors [2000] ZASCA 159; 2001 (2) SA 232 (SCA) (a case crucially not considered by the magistrate and to which neither counsel referred in their heads of argument) the Supreme Court of Appeal had to decide whether the  exceptio rei judicatae vel litis finitae or the “once and for all” rule non-suited the appellant, in the following circumstances:

20.1.        the appellant and the respondent had concluded three written distribution agreements in terms of which the appellant had sold to the respondent three distribution rights for the distribution of a product of the appellant in certain circumscribed areas;

20.2.        the purchase consideration paid by the respondent for the distribution rights was the sum of R150 000.00;

20.3.        the respondent sued the appellant in the Magistrate’s Court, Pretoria for repayment of the abovementioned sum on the grounds that the respondent had resiled from the agreements due to the appellant’s material breach thereof;

20.4.        the appellant did not defend the action and judgment by default was granted against it in the abovementioned sum.  The total sum was thereafter paid by the appellant.  In this action no damages were claimed from the appellant;

20.5.        subsequently the respondent instituted action against the appellant in the High Court, Pretoria.  In its particulars of claim the respondent relied on essentially the same allegations as it had relied upon in the earlier action in the Magistrate’s Court, together with an allegation that the respondent, as result of the breach of contract by the appellant and the resultant cancellation of the contracts concerned had suffered damages in the sum of approximately R4 million;

20.6.        the appellant raised a special plea based on the abovementioned exceptio and the “once and for all” rule.

[21]    The majority of the Court in National Sorghum Breweries found that the appellant’s reliance in that case on the abovementioned exceptio and the “once and for all” rule was misplaced, in the following terms:

“[4] In my view the answer must be in the negative.  The same thing is not claimed in the respective suits, nor is reliance placed on the same ground or cause of action.  What was claimed in the first suit was restitution in the form of repayment of the purchase price previously paid by the claimant.  Such a claim is not one for damages but is a ‘distinct contractual remedy’.  In the second suit damages were claimed which is in its very essence clearly distinguishable from restitution.  The same thing is not claimed in the respective suits, the issue now under consideration has not been finally laid to rest.

[5] Nor are the respective claims based on the same grounds or same cause of action.  In the first suit, the necessary allegations were the conclusion of the contract, the breach thereof, the payment of the purchase price and the cancellation of the contract.  In the second suit, the respondent was required to plead and prove the conclusion of the contract, the breach and the cancellation thereof, that damage was suffered, the causal chain between the breach and the damage and the quantum of the damage.  The mere fact that there are common elements to the allegations made in the two suits does not justify the exceptio - one must look at the claim in its entirety and compare it with the first claim in its entirety.  If this is done in the present case, the differences are so wide and obvious that one simply cannot say the same thing was claimed in both suits and that the claims were brought on the same grounds.”

[22]    The majority in National Sorghum Breweries were able to distinguish the facts in that matter from the facts in Shembe.  At issue in the latter case was the enforcement of a forfeiture clause, which formed the subject matter of the first action between the parties.  The reason for the forfeiture clause and its validity were to be found in the damage suffered by the creditor in that case.  In enforcing the forfeiture clause in the first action the creditor was effectively making a claim for damages.  It could not thereafter again claim damages from the debtor in a second action.

[23]    The majority judgment in National Sorghum Breweries concluded as follows with regard to the “once and for all” rule, at [10]:

“The rule, derived from English law, requires that all claims generated by the same cause of action, be instituted in one action.  As shown above, the respective claims in this matter did not arise from one, singular, cause of action.  The rule cannot bring about that contractual claims and claims for damages must be brought in the same action.”

[24]    Counsel in this matter both relied on Janse van Rensburg NO v Myburgh 2010 (1) SA 469 (SCA) in support of their submissions.  In that judgment at [23], [27] and [30] the findings in National Sorghum Breweries were applied. 

Discussion

[25]    The question in this matter is whether the claims pursued respectively in the first and second actions matter arose from one singular cause of action.

[26]    The trial court found that they did on the following grounds:

26.1.        immediately upon cancellation of the lease by the appellants and by reason of the respondent’s breach of the lease the plaintiff’s became entitled to claim damages from the date of breach to the date on which the lease was due to expire;

26.2.        on the date of cancellation everything had happened which would have entitled the appellants to institute a claim for damages;

26.3.        thus, when the appellants instituted the first action, “the cause of action relating to alleged damages had already arisen as did the claim for arrear rental and under the circumstances the Plaintiff’s in this action by operation of the ‘once and for all’ rule non-suited.”

[27]    The abovementioned concluding portion of the Magistrate’s judgment is contradictory.  On the one hand it recognises the existence of two distinct claims, one for arrear rental and one for damages.  On the other hand it holds that the appellants should be non-suited, ostensibly because, on the date of cancellation of the lease, everything had happened that would have entitled the appellants to institute action and to claim judgment in respect of damages.  This is said more than once by the Magistrate.  It may be of consequence in respect of prescription, but is of no consequence in the application of the “once and for all” rule.

[28]    Clearly the findings in National Sorghum Breweries find equal application in this matter.  The only distinction between that matter and this one is the nature of the contract in question, which does not affect the application of the principles enunciated in the judgment to this matter.  An application of those principles to this matter leads me to the following conclusions:

28.1.        clause 12 of the lease did not afford the appellants only a singular cause of action;

28.2.         the claims instituted pursuant to the first and second actions, respectively, are not based on the same grounds and did not arise from a singular cause of action;

28.3.        in the second action damages were claimed, which claim is in its essence clearly distinguishable from an accrued contractual claim for arrear rental;

28.4.        in the first action, the necessary allegations were the conclusion of the lease and the breach thereof by the failure to pay rent;

28.5.        in the second action the essential allegations were the conclusion of the lease, the breach and the cancellation thereof, that the appellants were unable to let the premises to an alternative tenant over the balance of the lease period, the amount of damages suffered and the causal link between the breach and the damages;

28.6.        the mere fact that there are common elements in the allegations made in support of the two actions does not justify non-suiting the appellants on the basis of the “once and for all” rule;

28.7.        the differences between the claim in the first action for arrear rental and that for damages in the second action are so wide and obvious that one simply cannot say that the same thing was claimed in both actions or that the claims were brought on the same grounds.

[29]    Thus, the “abuse”, defined in Janse van Rensburg at [30],  by inter alia applying the principles in National Sorghum Breweries at [10], does not arise in this case.  The appellants’ claim for damages instituted in terms of the second action is clearly a distinct and separate cause of action from the cause of action underlying the claim for arrear rental, which was the subject matter of the first action, and cannot therefore be viewed as an abuse.  The appellants were not obliged to pursue the claim for damages in the same action as the claim for arrear rental.

[30]    The Magistrate clearly erred in the application of the authorities to which he refers in his judgment and in his failure to consider and apply the relevant authority.

Conclusion

[31]    The appeal is therefore upheld, with costs.

[32]    The order of the Magistrate is set aside and replaced with the following order:

1.    The defendant’s special plea, based on the “once and for all” rule, is dismissed; and

2.    The defendant is directed to pay the plaintiff’s costs on the scale as between party and party, as taxed or agreed, such costs to include the cost of counsel in amounts not exceeding double the amounts set out in the tariff contained in Part IV, annexure 2 to the rules.

O H RONAASEN

ACTING JUDGE OF THE HIGH COURT

REVELAS J:

I agree.

E REVELAS

JUDGE OF THE HIGH COURT

By Agreement between the parties this appeal was disposed of in terms of Section 19(a) of the Superior Courts Act, 10 of 2013, without oral argument.

Heads of argument for the appellant prepared by Adv I Bands instructed by Friedman Scheckter, Grahamstown and Adv A Beyleveld SC instructed by Goldberg & De Villiers Inc c/o Netteltons Attorneys, Grahamstown

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