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
SUMMARY

Estoppel is generally aimed at promoting equity and fairness in litigation by preventing a person (asserter) from resiling or asserting something contrary to what was implied by a previous action, conduct or statement of that person or by a previous pertinent judicial determination regarding such action, conduct or statement. Accordingly, issue estoppel could be defined to include instances where a person is... (see full summary)

 
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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.

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