Juridical Tribune Volume 7, Special Issue, October 2017 137
The doctrine of estoppel precludes a person (asserter) from asserting
something different or contrary to what is implied by a previous action, conduct or
statement of that person or by a previous pertinent judicial determination. While
there are various types of estoppel, this article is primarily focused on the
application of issue estoppel in relation to certain aspects of the directors’ fiduciary
duties in South Africa,3 in light of the judgement in Royal Sechaba v Coote
(366/2013)  ZASCA 85 (30 May 2014) (Royal Sechaba case). Issue estoppel
could be defined to include instances where a person is precluded from re-litigating
or raising a particular issue in a cause of action that was previously decided by a
final judgement of a competent court between the same parties in future cases that
have a different cause of action involving such parties.4 Issue estoppel is closely
related to res judicata. For instance, both issue estoppel and res judicata are
generally aimed at preventing the re-litigation of the same issues and same cause of
actions that were previously decided by a final judgement in the relevant courts
between same parties. Nonetheless, it is widely acknowledged that the application
these two concepts is quite different in practice.5 For instance, some jurisdictions
such as the United Kingdom (UK) and South Africa employs English law and
Roman-Dutch law (common law) principles respectively, to distinguish between
issue estoppel and res judicata.6 Put differently, the UK and other European Union
(EU) countries such as the Republic of Ireland, Cyprus and Northern Ireland
distinguishes between issue estoppel and res judicata through their relevant
English common law principles. Likewise, similar common law principles are
employed in the United States of America (USA), Canada and Australia to
distinguish res judicata and issue estoppel in various ways. For example, issue
estoppel is sometimes referred to as collateral estoppel, issue preclusion, claim
preclusion or cause of action estoppel in USA, Canada and Australia.7 Despite this,
3 Section 76 of the Companies Act 71 of 2008 (Companies Act 2008).
4 Y. Sinai, ‘Reconsidering Res judicata: A Comparative Perspective’, 23 Duke Journal of Comparative and
International Law (2011), p. 353 358; B. Wunsh, ‘Is Issue Estoppel Part of our Law?’, 2 Stell LR (1990),
pp. 198 198-218 and C. Roodt, ‘Reflections on Finality in Arbitration’, 45 De Jure (2012),
p. 485 502-503.
5 M. Elvy, L. Hui and T. Gaffney, ‘A One-stop Shop? Issue Estoppel and the Limits to Forum
Shopping in Enforcement of Arbitral Awards’, volume unknown Ashurst Arbitration Update
(2014), p. 1 1-2; Diag Human Se v The Czech Republic  EWHC 1639; S.S. Ruby, ‘Res
Judicata, Issue Estoppel and Abuse of Process by Relitigation’ volume unknown Davies
Publications (2012), p.1 2-36 and Royal Sechaba case pars 10-15.
6 Royal Sechaba case pars 11-13; R. Nazzini, ‘Remedies at the Seat and Enforcement of International
Arbitral Awards: Res Judicata, Issue Estoppel and Abuse of Process in English Law’, 7 Contemp.
Asia Arb. Journal (2014), p. 139 149-158.
7 M. Elvy, L. Hui and T. Gaffney, volume unknown Ashurst Arbitration Update (2014), p. 1-2; Y.
Sinai, 23 Duke Journal of Comparative and International Law (2011), p. 357-360; B. Wunsh, 2
Stell LR (1990), p.198 -203; M.T. Maniago and C. R. Chiasson, ‘Court Reaffirms Application of
Res judicata and Issue Estopp el to Commercial Arbitrations’, unknown volume Arbitration &
ADR, (2016) p. 1 1-2.