"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

Authors

  • Phindile Raymond Msaule University of Limpopo

DOI:

https://doi.org/10.17159/1727-3781/2024/v27i0a15055

Keywords:

Cause of action, damage(s), malicious prosecution, once-and-for-all rule, unlawful arrest

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.

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Author Biography

Phindile Raymond Msaule, University of Limpopo

PR Msaule. LLB LLM. Lecturer, School of Law, University of Limpopo, South Africa.

References

BIBLIOGRAPHY

Literature

Christie RH "The Once and for All Rule and Contractual Damages" 2003 SALJ 445-452;

Mukheibir A "(Mis)understanding the Once-And-For-All Rule: Member of the Executive Council for Health and Social Development, Gauteng v DZ obo WZ 2018 1 SA 335 (CC)” 2019 Obiter 252-262;

Neethling and Potgieter Visser Law of Delict 7th ed (LexisNexis Durban 2014);

Potgieter JM, Steynberg L and Floyd TB Visser and Potgieter Law of Damages 3rd ed (Juta Claremont 2012);

Scott 2016 revisiting the elements of Delict: The Moshongwa Judgement 2016 THRHR 551-579.

Case law

Baloyi v Public Protector 2022 3 SA 321 (CC);

Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2013 6 SA 499 (SCA);

Custom Credit Corporation v Shembe [1972] 3 All SA 489 (A);

Evins v Shield Insurance Co Ltd [1980] 2 All SA 40 (A);

Kruger v Thompson [2012] (KZPHC) (unreported) case number 10662/2009 of 26 September 2012;

Minister of Police v du Plessis 2014 1 SACR 217 (SCA)

National Sorghum Breweries v International Liqour Distributors (Pty) Ltd 2001 2 SA 232 (SCA);

Olesitse NO v Minister of Police (SCA) (unreported) case number 470/2021 of 15 June 2022;

Royal Sechaba Holdings v Coote 2014 5 SA 562 (SCA);

Socratuous v Grindstone Investments 134 (Pty) Ltd 2011 6 SA 325 (SCA);

Yellow Star Properties 1020 (Pty) Ltd v MEC: Department of Development Planning and Local Government (Gauteng) 2009 3 SA 577 (SCA).

Abbreviations

CC – Constitutional Court

SALJ – South African Law Journal

SCA - Supreme Court of Appeal

THRHR- Tydskrif vir Hedendaagse Romeins-Hollandse Reg

Published

10-07-2024

How to Cite

Msaule, P. R. (2024). "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. Potchefstroom Electronic Law Journal, 27, (Published on 10 July 2024) pp 1–14. https://doi.org/10.17159/1727-3781/2024/v27i0a15055

Issue

Section

Case Notes

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