SHAMROCK HOLDINGS LTD v MINISTER OF ENVIRONMENT & TOURISM & ORS 2012 (1) ZLR 39 (S)

Flynote

Estoppel — issue estoppel — distinction between issue estoppel and res judicata

Practice and procedure — res judicata — principles — when plea may be upheld — issue estoppel — distinction between issue estoppel and res judicata

Headnote

▷ The exceptio rei judicatae is based principally upon the public interest that there must be an end to litigation and that the authority vested in judicial decisions be given effect to, even if erroneous. It is a form of estoppel and means that where a final and definitive judgment is delivered by a competent court, the parties to that judgment or their privies are not permitted to dispute its correctness. The requisites for a valid defence of res judicata in Roman-Dutch Law are that the matter adjudicated upon, on which the defence lies, must have been for the same cause between the same parties and that the same thing must have been demanded. The rule that the same thing must have been demanded in both actions has been held to mean that where a court has come to a decision on the merits of a question in issue, that question, at any rate as a causa petendi of the same thing between the same parties, cannot be resuscitated in subsequent proceedings. The principles of res judicata are almost analogous to those of issue estoppel. The only difference is that the doctrine of issue estoppel does not require for its application that the same thing must have been demanded. Issue estoppel is premised on the public policy consideration that there must be finality in litigation. Parties cannot be permitted to begin fresh litigation because of new views they may entertain of the law of the case or new versions which they present as to what should be a proper apprehension by the court of the legal result, either of the construction of the documents or the weight of certain circumstances. The rule is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings other than in exceptional circumstances. Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and, in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to re-open that issue. In this context, "issue", broadly speaking, is a matter of fact or question of law in dispute between two or more parties which a court is called upon by the parties to determine and pronounce upon in its judgment, and is relevant to the relief sought.