Unmasking some challenges associated with the enforcement of issue estoppel in South African commercial-related disputes with reference to Prinsloo NO v Goldex 15 (243/11) [2012] ZASCA 28 (28 March 2012)

• Author: Howard Chitimira - Tapiwa Victor Warikandwa
• Position: Howard Chitimira - Faculty of Law, North-West University, Potchefstroom, South Africa, Howard.Chitimira@nwu.ac.za. Tapiwa Victor Warikandwa - Faculty of Law, University of Namibia, Windhoek, Namibia, twarikandwa@unam.na.
• Pages: 97-109

Unmasking some challenges associated with the enforcement of

issue estoppel in South African commercial-related disputes with

reference to Prinsloo NO v Goldex 15 (243/11) [2012] ZASCA 28

(28 March 2012)1

Associate professor Howard CHITIMIRA2

Senior lecturer Tapiwa Victor WARIKANDWA3

Abstract

Estoppel is generally aimed a t pr omoting equity and fairness in litiga tion by

preventing a person (asserter) from resiling or asser ting something contr ary to what was

implied by a previous action, conduct or statement of that person or by a pr evious pertinent

judicial determination r egarding such action, conduct or sta tement. Accordingly, issue

estoppel could be defined to include instan ces where a person is prevented from re-

litigating or raising a pa rticular issue in a cause of action that was previously decided by a

final judgement of a competent court between the same parties in future ca ses that ha ve a

different ca use of action involving such parties. In other words, r es judicata prevents the

re-litiga tion of a dispute that was previously d ecided by a final judgement of a competent

court between the sa me parties (idem actor) or persons (eadem persona) for the same

relief, thing or r ight (eadem res) on the same gr ound or same cause of action (eadem causa

petendi) in future cases involving such parties or their pr ivies. Issue estoppel and res

judicata are closely interr elated. F or insta nce, both issue estoppel and r es judicata have

similar req uirements. Nonetheless, issue estoppel a nd res judicata a re relatively different in

their a pplication. Accordingly, issue estoppel may only be employed as a defence in

appro priate instances where it is justifiable for the cour t to dispense with the strict

applica tion of the requ irements of res judica ta. Having sa id this, it must be noted th at issue

estoppel and r es judicata have been confusingly and inconsistently employed in many South

Africa n cases to date. Such confusion is mostly found in relation to the relaxation of the

three-fold requirements of res judicata and the ap plication of issue e stoppel. Given this

background, this ar ticle exposes cer tain challen ges that are a ssociated with the pra ctical

enforcement of issue estoppel in South Africa with reference to Prinsloo NO v Goldex 15

(243/11) [2012] ZASCA 28 (28 Mar ch 2012).

Keywords: res judicata ; a pplication; issue estoppel; enforcement; challenges; South

Africa .

JEL Classification: K22

1 The case P rinsloo NO v Goldex 15 (243/11) [2012] ZASCA 28 (28 March 2012) – see

www.saflii.org/za/cases/ZASCA/2012/ 28.html (consulted on 1.09.2018).

2 Howard Chitimira - Faculty of Law, North-West University, Potchefstroom, South Africa,

Howard.Chitimira@nwu.ac.za.

3 Tapiwa V ictor Warikandwa - Faculty of Law, University of Namibia, Windhoek, Namibia,

twarikandwa@unam.na.