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)

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 prevented from relitigating 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. In other words, res judicata prevents the re-litigation of a dispute that was previously decided by a final judgement of a competent court between the same parties (idem actor) or persons (eadem persona) for the same relief, thing or right (eadem res) on the same ground or same cause of action (eadem causa petendi) in future cases involving such parties or their privies. Issue estoppel and res judicata are closely interrelated. For instance, both issue estoppel and res judicata have similar requirements. Nonetheless, issue estoppel and res judicata are relatively different in their application. Accordingly, issue estoppel may only be employed as a defence in appropriate instances where it is justifiable for the court to dispense with the strict application of the requirements of res judicata. Having said this, it must be noted that issue estoppel and res judicata have been confusingly and inconsistently employed in many South African cases to date. Such confusion is mostly found in relation to the relaxation of the three-fold requirements of res judicata and the application of issue estoppel. Given this background, this article exposes certain challenges that are associated with the practical enforcement of issue estoppel in South Africa with reference to Prinsloo NO v Goldex 15 (243/11) [2012] ZASCA 28 (28 March 2012).