WOLFENDEN v JACKSON 1985 (2) ZLR 313 (S)

Flynote

Estoppel — res judicata — requirements for — maintenance court — whether D issues previously decided are binding on the parties — onus.

Delict — seduction — basis of liability of seducer.

Practice and procedure — pleadings — magistrates court pleadings viewed more indulgently than pleadings in High Court.

Headnote

Appellant's claim against respondent for maintenance for her child had beendismissed by a maintenance court on the ground that respondent was not the child's father. Appellant then instituted proceedings against respondent in a magistrates court for damages for seduction, alleging in her particulars of claim that as a result of the seduction she had given birth to the child and had thereby incurred certain out-of-pocket expenses. Respondent's plea in abatement, that the issue of seduction and birth of the child was res judicata between the parties, was upheld and appellant's claim was dismissed. On appeal:

Held that the requirements for the exceptio rei judicatae, which is a form of estoppel, are that the previous proceedings relied on must have been between the same parties or their privies and that the same question must arise. The additional requirement mentioned in Voet 44.2.3, that there must also be the same cause of action, means that the parties are estopped from disputing any issue necessarily decided by the court in reaching its judgment in the previous proceedings.

Held, further, that the basis of liability for damages for seduction does not depend on the failure to establish the respondent's paternity issue of paternity of the child was res judicata between the parties, and this was fatal to appellant's claim for out-of-pocket expenses incurred inconsequence of the seduction.

Held, further, however, that the basis for liability for seduction is the defloration of the girl and the lessening of her chances of making a suitable marriage; since the issue of whether or not respondent had had sexual intercourse with the appellant and whether or not she was a virgin at the time was not decided by the maintenance court, it was still open to her to claim general damages for seduction.

Held, further, that the appellant's particulars of claim should not have been construed as linking irrevocably the conception of the child with the act of seduction, firstly because the courts adopt an indulgent and more liberal attitude towards pleadings in a magistrates court as against