Abstract

This contribution contends that in holding that the once-and-for-all rule was applicable in Olesitse v Minister of Police (470/2021) [2022] ZASCA 90 (15 June 2022), the SCA erred. The error was caused by the Supreme Court of Appeal (SCA) mischaracterising the cause of action in this matter. It is trite that the successful application of the once-and-for-all rule is dependent on the finding by the court that the current claim is based on the same cause of action as the previous claim. It is also trite that different causes of action may emanate from the same set of facts. In Olesitse, the SCA failed to appreciate this incontrovertible proposition of law. Although the SCA seems to suggest that the cause 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 insignificance having regard to the fact that the event that gave to rise to the deceased's claims is the same". This conclusion not only misstates the law, but it also ignores the significance of the differences between 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 is trite also that the prescription of these causes of action do 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. Needless to say, had the SCA in its application of the "once-and-for-all" rule considered the central role played by the concept of "cause of action" in this regard it would not have come to the conclusion that it had.

Keywords

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

……………………………………………………….

The concept "cause of action" is deceptively simple. It is easy to state but difficult to grapple with in practice. 1

* PR Msaule. LLB LLM. Lecturer, School of Law, University of Limpopo, South Africa. E-mail. Raymond.Msaule@ul.ac.za. ORCiD 0000-0001-5625-8316.

1 Kruger v Thompson (KZPHC) (10662/2009) [2012] ZAKZPHC 62 (26 September 2012) para 16.

every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the Court. It does not compromise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. 4

4 Evins v Shield Insurance 57 quoting McKenzie v Farmers' Co-operative Meat Industries Ltd 1922 AD 16.

A valid cause of action is a prerequisite for the institution of any legal proceedings. Thus, in order to succeed in his or her claim, a plaintiff needs to set out material facts that establish the relief that he or she seeks from the court. A cause of action does not materialise unless and until the occurrence of the last fact that constitutes a cause of action. 5

5 Evins v Shield Insurance 57.

defences must be squarely raised by the opposing party. In other words, the court cannot broach these defences mero motu. In the same breadth however, our law equally recognises that a single unlawful action is capable of giving rise to more than one cause of action. 6

6 Baloyi v Public Protector 2022 3 SA 321 (CC) para 38.

The rationale for prohibiting multiple claims based on the same cause of action is to, firstly, ensure finality in litigation lest the defendant be subjected to harassment by multiplicity of actions. Secondly, it is the avoidance of the ever-present risk of courts coming to different conclusion on the same matter. 9

9 Evins v Shield Insurance 53-54.

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. 10

10 Evins v Shield Insurance 53.

Closely associated with once-and-for-all rule is the concept of res judicata. Res judicata provides that once a court has given a judgment between the same parties in regard to the same subject matter based upon the same cause of action, the plaintiff is barred from instituting another claim. 11

11 Evins v Shield Insurance 53.

must first accurately identify the causes of action in those matters. 13

13 In the case of the once-and-for-all rule the defendant must plead and prove that the plaintiff has failed to claim all the damage flowing from the same cause of action and in res judicata the plaintiff must plead and prove that the same cause of action has already been adjudicated by the court, and in relation to prescription the defendant must plead and prove that the cause of action arose at a particular time and at the time the claim was instituted it has been extinguished and the plaintiff is thus barred from instituting it. The thrust running through all these special pleas is cause of action.

2 Facts of the case: Olesitse v Minister of Police

The deceased, the late husband to the appellant and the executrix of his estate, sued the respondent for unlawful arrest and detention that occurred on 19 May 2008. The deceased was released on bail on 29 May 2008. On 17 May 2011, the Director of Public Prosecutions declined to prosecute the deceased and charges against him were withdrawn. 15

15 Olesitse v Minister of Police 8.

The new claim arose from one and the same conduct as the claim for unlawful arrest and detention. The parties were also the same. 17

17 Olesitse v Minister of Police para 10.

action, the court nonetheless held that the appellant was non-suited because she had failed to bring the claim for malicious prosecution simultaneously with the claim for unlawful arrest and detention as the claim arose from the same unlawful conduct. The basis for this conclusion was that the two sets of pleadings in the two claims are, but for malice, identical. 19

19 Olesitse v Minister of Police para 15.

On appeal, the appellant contended that a single act is capable of giving rise to two distinct causes of action. Furthermore, so the appellant argued, in claims for malicious prosecution, the lawfulness or otherwise of the arrest is immaterial. 20

20 Olesitse v Minister of Police para 16.

here, that difference pales into insignificance having regard to the fact that the event that gave rise to the deceased's claim is the same. 21

21 Olesitse v Minister of Police para 17.

Therefore, the once-and-for-all rule was applicable. 22

22 Olesitse v Minister of Police para 17.

Although the SCA expressly acknowledged the differences between the causes of action for unlawful arrest and detention on the one hand and malicious prosecution on the other that claim does not bear scrutiny. By holding that the two causes of action at play in this case were different but at the same time find that the once-and-for-all rule was applicable is contradictory at worst and at best the SCA implicitly overturned established precedent on this aspect. 23

23 See for instance Evins v Shield Insurance.

In this regard the SCA endorsed the reasoning of the high court in the following words:

In addition, in arriving at its decision the high court weighed up, on the one hand (the appellant's side), the possible claim for damages, additional to those already awarded, in favour of the deceased estate against, on the other hand (the respondent's side), the prejudice of double jeopardy, loss of available witnesses due to the 'huge effluxion of time' and the expense of being put to trial in respect of something which has already come before the court. 24

24 Olesitse v Minister of Police para 15.

All these considerations, perhaps bar double jeopardy and that the matter has already come to court, are not reflective of the requirements to be considered in the determination of the once-and-for-all rule. If the SCA's concession that the matter that came before it was underpinned by a different cause of action is something to go by, then the assumption that the SCA was primarily concerned with the proliferation of litigation arising from the same facts is not misplaced. In Socratous v Grindstone Investments 134 (Pty) Ltd, the SCA lamented the court's a quo's failure to uphold the defence of lis alibi pendens where it was merited in the following words:

Courts are public institutions under severe pressure. The last thing that already congested court rolls require is further congestion by an unwarranted proliferation of litigation. 25

25 Socratuous v Grindstone Investments 134 (Pty) Ltd 2011 6 SA 325 (SCA) para 16.

This sentiment becomes apparent in this case when one takes into consideration the fact that the SCA held that the two claims arose from same set of facts and involved the same witnesses, thus they should have been litigated at the same time despite not arising from the same cause of action. 26

26 Olesitse v Minister of Police para 17.

(a) the defendant must have instigated the proceedings; (b) the defendant must have acted without reasonable and probable cause; (c) the defendant must have acted animo iniuriandi; and (d) the prosecution must have failed. 30

30 Neethling and Potgieter Visser Law of Delict 366; see Minister of Justice and Constitutional Development v Moleko 2009 2 SACR 585 (SCA) para 8 ff.

Writing in the context where a single cause of action afforded a litigant a choice between two competent fora (in this case the labour court and the high court) the Constitutional Court held: 31

31 Baloyi v Public Protector 2022 3 SA 321 (CC) para 39.

Crucially, however, where a litigant is required to bring a certain cause of action before a specifically competent forum, it does not follow that they are bound to pursue a claim under that cause of action simply because it is possible to do so.

Similarly that there was nothing precluding the plaintiff from instituting the two claims at once did not mean that is the course the plaintiff was bound to take. The once-and-for-all rule does not prohibit a litigant from instituting separately claims with different causes of action despite them arising from the same set of facts. In this case, moreover, the causes of action did not arise at the same time and therefore the once-and-for-all rule could not be applicable. 32

32 See Evins v Shield Insurance 58 ff.

The test whether a previous action is a bar is not whether the damages sought to be recovered are different, but whether the cause of action is the same. 38

38 Christie 2003 SALJ 447.

A closer reading of Olesitse suggests the exact opposite of what Christie postulates. 39

39 See Olesitse v Minister of Police paras 17-18.

approach. 40

40 Evins v Shield Insurance 58; see Mukheibir 2019 Obiter 258.

In Evins v Shield Insurance Co Ltd Corbett JA held that the once-and-for-all rule, although distinguishable, exists side by side with concepts of res judicata and prescription. The once-and-for-all rule encompass that the plaintiff must claim damage (both already sustained or expected) arising from the same cause of action whereas res judicata entails that once a competent court has granted a final judgement the plaintiff is barred from approaching the court again on the same matter. 42

42 Evins v Shield Insurance 53; Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2013 6 SA 499 (SCA) para 28; National Sorghum Breweries v International Liquor Distributors (Pty) Ltd 2001 2 SA 232 (SCA) para 2; Royal Sechaba Holdings v Coote 2014 5 SA 562 (SCA) para 11.

Does the SCA emphasis that nothing precluded the plaintiff from instituting the two claims together in one action justify its conclusion? It is indeed correct that nothing precluded the plaintiff from launching these claims together in one claim once each of them had ripened. It is common cause that the claim for unlawful arrest and detention on the one hand and the claim for malicious prosecution are separate and distinguishable even if they are based on the same facts. Of importance is that the causes of action in these claims arise at different times and therefore do not prescribe at the

same time. Therefore, the fact that the two claims arose from a single unlawful conduct does not in any manner overcome the difficulty that had been acknowledged by the SCA that the requirements for the two claims are different. The fallacy in the SCA reasoning is underlined by the following passage: 43

43 Olesitse v Minister of Police para 17 (my emphasis).

The investigations conducted by the police formed part of the basis on which the decisions were taken to arrest and detain, and to prosecute the deceased. In accordance with the once and for all rule, the deceased should have instituted his claim for all of his damages in one action, so that the lawfulness or otherwise of the respondent's employees' actions, who were involved in taking the challenged decisions, could be adjudicated in one action.

By holding that nothing prevented the plaintiff from instituting the two claims in one action and thus discounting that the two claims involved separate causes of action, the SCA was bound to apply the once-and-for-all rule where it was not applicable. As already indicated, the once-and-for-all rule could only be applied where the plaintiff sought to claim further damages in the subsequent matter when the claim based on the same cause of action has already been determined by the court. In this matter, the subsequent claim was not based on the same cause of action as the first claim. In the second claim, the appellant did not seek to prove the lawfulness of his arrest and detention but instead to prove that there was malice on the part of the respondent's employees to have him prosecuted as distinct from being arrested and detained; a separate cause of action in which the same facts ought to be traversed to prove different elements of the respective claims in order to succeed. As the Appellate Division held in Evins v Shield Insurance Co Ltd:

[t]he material facts which must be proved in order to enable the plaintiff to sue (or facta probanda) would relate to these … basic ingredients [of the delictual claim in issue] and upon the concurrence of these facts the cause of action arise. 44

44 Evins v Shield Insurance 58.

In National Sorghum Breweries v International Liquor Distributors (Pty) Ltd, the SCA confirmed that the mere fact that there are identical elements in separate claims is not enough to find the presence of res judicata, the same is true in relation to the once-and-for-all rule. Instead, the court determining whether the same cause of action is present in separate claims must have regard to the "claim in its entirety and compare it to the first claim in its entirety". 45

45 National Sorghum Breweries v International Liquor Distributors (Pty) Ltd 2001 2 SA 232 (SCA) para 5.

Development Planning and Local Government (Gauteng) the court held that: 46

46 Yellow Star Properties 1020 (Pty) Ltd v MEC: Department of Development Planning and Local Government (Gauteng) 2009 3 SA 577 (SCA) para 22.

[I]t is necessary to stress not only that the parties must be the same but that 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.

This, the Supreme Court of Appeal has failed to do in the case under discussion. It is common cause that the issue of law to be determined was not the same. As noted already, the elements which the plaintiff needed to satisfy in the first claim are starkly different from what she needed to prove in the second case. In any event, malicious prosecution may arise without an arrest. For instance, a plaintiff who has been caused to appear in court via a written notice to appear or summons is able to successfully institute a claim for malicious prosecution against the instigator. The question of arrest is per se immaterial in the claim for malicious prosecution. In other words, arrest is not a prerequisite or an element for a malicious prosecution claim. This is because the arrestor may not be the same person who has instigated the proceedings.

To underscore its primary thesis that the once-and-for-all rule was applicable, the SCA quotes the particulars of claim in the two matters to illustrate their similarities and that both claims arose from the single unlawful conduct, 47

47 Olesitse v Minister of Police paras 11-12.

the damage-causing facts had already been determined irrespective of the nature of the unlawfulness and the identity of the actual perpetrator. 48

48 Olesitse v Minister of Police para 15.

That there are patent similarities between the two sets of the particulars of claim is beyond contention. Nonetheless, this does not detract from the fact that the two causes of action are different. Perhaps poor drafting may be blamed for the confusion that beset the SCA. For instance, in the first summons it is claimed that the police falsely laid a charge against the plaintiff without reasonable or probable cause. The plaintiff need not prove this fact in an unlawful arrest and detention claim but rather this is a requirement in a malicious prosecution claim. This was superfluous and the SCA ought to have ignored it in its comparison exercise. Similarly, the arrest of the plaintiff could also be ignored in the adjudication of a malicious prosecution case as, strictly speaking, arrest is not a prerequisite for a malicious prosecution claim. Also, that charges had been withdrawn against the deceased was of no significance in the claim for an unlawful arrest and detention claim but is a precondition in the malicious prosecution claim. The

court also ignored that the cause of action in the two matters arose at different times. In this regard, Corbett JA found that the precise time when the cause of action arose is of critical importance in determining whether a claim has prescribed or not. 49

49 Evins v Shield Insurance 54.

In the similar vein, a lawful arrest may lead to a claim for malicious prosecution. 54

54 In Minister of Police v Du Plessis 2014 1 SACR 217 (SCA) the court held that despite the respondent (plaintiff) being initially arrested lawfully, once facts that pointed to his innocence became apparent, he ought to have been released and from that moment his detention became unlawful. A priori the same principle applies to prosecution.

doubt that an unlawful arrest and detention on the one hand and malicious prosecution on the other cannot be traceable back to a single wrongful act. 57

57 This much is recognised by the SCA. See Olesitse v Minister of Police para 17.

This case is distinguishable from Kruger v Thompson. 58

58 Kruger v Thompson (10662/2009) [2012] ZAKZPHC 62 (26 September 2012) para 16.

There is a yawning gap in the application of the principle of cause of action on the one hand and the notions of once-and-for-all rule and res judicata on the other. The court did not undertake any analysis of these concepts. This is borne out by the fact that the differences between the three concepts were not investigated. Had such an exercise been undertaken it would have been abundantly clear to the court that the once-and-for-all rule was not implicated in this case. The conclusion by the court that the difference between the claim for unlawful arrest and detention claim and the malicious prosecution suit was not of any significance is not underpinned by any legal basis and was the Achilles heels of the court's conclusion.

Bibliography

Literature

Christie 2003 SALJ

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

Mukheibir 2019 Obiter

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

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

Potgieter, Steynberg and Floyd Visser and Potgieter Law of Damages

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

Scott 2016 THRHR

Scott J 2016 "Revisiting the Elements of Delict: The Moshongwa Judgments" 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)

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

Kruger v Thompson (10662/2009) [2012] ZAKZPHC 62 (26 September 2012)

McKenzie v Farmers' Co-operative Meat Industries Ltd 1922 AD 16

Minister of Justice and Constitutional Development v Moleko 2009 2 SACR 585 (SCA)

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 v Minister of Police (SCA) (470/2021) [2022] ZASCA 90 (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)

Legislation

Constitution of the Republic of South Africa, 1996

List of Abbreviations