"Cause of Action": How Could the Supreme Court of Appeal Get it so Wrong? Olesitse v Minister of Police (SCA) (Unreported) Case No: 470/2021 of 15 June 2022

Abstract

This contribution contends that in holding that the once-and-for-all rule was applicable in Olesitse NO v Minister of Police the SCA erred. The error was cause by the SCA mischaracterising the cause of action in this matter. It is trite that the succesful application of the once-and-for-all rule is depended on the finding by the court that the current claim is based on the same cause of action with the previous claim. It is also trite that different causes of action may emanate from the same set of fact or even from a single conduct. In Olesitse the SCA failed to appreciate this incontrovertible proposition of law. Although the SCA seems to suggest that the causes of action in this case was different from an earlier action, this submission is unmasked by the Court's conclusion that the difference between the causes of action in this case and the previous case "pales into significance having regard to the fact that the event gave to [the earlier] claim is the same." This conclusion not only misstates the law, it also ignored the significance of the difference of the constituent elements of the two causes of action (unlawful arrest and detention on the one hand and malicious prosecution on the other). To underscore the importance of this difference, it should be noted that the two causes of action do not arise at the same time, and therefore may be brought at different times. It trite also that the prescription of theses causes of action to not begin to run at the same time. How the court could have ignored these factors is incomprehensible. It is thus plain to see that the SCA came to the incorrect conclusion that the once-and-for-all rule was applicable in this case because it had the different causes of action implicated in this case. Needless to say, had the SCA carefully analysed the two causes of action it would not have came to the conclusion it did.