IN THE SUPREME COURT OF NAMIBIA

CASE
NO.: SA 08/2012

DATE:
28 MARCH 2014

REPORTABLE

In the matter between:

FISH ORANGE MINING CONSORTIUM
(PTY) LTD......................................Appellant

And

GHANDY GERSON
!GOASEB................................................................First
Respondent

JOSE N
SHIPEPE..................................................................................Second
Respondent

EMINENT MINING HOLDING (PTY)
LTD.........................................Third
Respondent

MINISTER OF MINES AND
ENERGY...............................................Fourth
Respondent

Coram:         
           
SHIVUTE CJ, MARITZ JA and MAINGA JA

Heard:          
            28
June 2013

Delivered:                
28 March 2014

APPEAL
JUDGMENT

MAINGA JA (SHIVUTE CJ and MARITZ JA
concurring):

[1]          
This is an appeal against the whole
judgment and order of the High Court upholding with costs the special
plea of res judicata
raised by the Minister of Mines and Energy (the Minister) against the
appellant company.[1]

[2]          
On 8 August 2008 the appellant launched an
application in the High Court[2]
against the current respondents (Mr !Goaseb, Mr Shipepe, Eminent
Mining Holding (Pty) Ltd and the Minister, cited in that order both
in the application and in this appeal) and two others, the Mining
Commissioner and the Attorney-General, who were cited as fifth and
sixth respondents respectively (the first suit), seeking the
following relief:

‘1.       
Declaring as unlawful and setting aside, the endorsement transferring
Exclusive Prospecting Licence No 3484 from First Applicant to Third
Respondent.

2.        
Ordering the Fourth and/or Fifth Respondent to cause the endorsement
transferring the Exclusive Prospecting Licence No 3484 from Third
Applicant to Third Respondent to be cancelled.

3.        
Costs of suit against First, Second and Third Respondent jointly and
severally on a scale as between Legal Practitioner and its own
client.

4.        
Costs of suit against the Fourth, Fifth and/or Sixth Respondents,
only in the event of any or all of them opposing this Application.

5.        
Further and/or alternative relief.’

[3]          
The appellant is a private company
registered in accordance with the laws of Namibia. Its main asset was
an Exclusive Prospecting Licence, No 3484 (the EPL), which is the
subject matter of the dispute between the parties. Its shareholders
at all times comprised of Henriette Trust (68%), the first and second
respondents (15% and 7% respectively) and a director of the
appellant, one Lourens le Grange (10%). The EPL was issued by the
Minister to the appellant on 22 May 2006 for a period of 3 years,
i.e. until 21 May 2009. On 20 February 2008 the first respondent, who
was one of the directors of the appellant at the time, applied to the
Minister on behalf of the appellant to transfer the EPL to the third
respondent. In support of the application he attached a document,
purporting to be a resolution dated 13 November 2007 of the
appellant, authorising the transfer of the EPL to the third
respondent, Eminent Mining. The document, purporting to evidence the
appellant’s resolution, was signed by the first respondent
only. On 19 March 2008 the Mining Commissioner, who is not a party to
the appeal, granted the application and on the same day the EPL was
endorsed as having been transferred from the appellant to the third
respondent. The appellant alleged that the application to transfer
the EPL was lodged by first respondent in complicity with the second
respondent with intent to defraud the appellant as no valid
resolution by the appellant authorising such a transfer had been
passed. Therefore, it claimed, the approval and endorsement of the
transfer was ultra vires, unlawful,
null and void as contemplated by s 228 read with s 34 of the
Companies Act, 61 of 1973.

[4]          
The application was opposed by first and
second respondents on the ground that the relief being sought was
vague and embarrassing because the appellant was seeking a
declaratory order without also bringing a review application. The
first respondent, who deposed to an affidavit on his own behalf and
on behalf of the third respondent, stated that while the application
was seeking an order setting aside an endorsement made in respect of
the EPL, it was at variance with the relief sought. He denied the
fraudulent transfer of the EPL and stated that the transfer had been
authorised by the appellant.

[5]          
The application was heard by Parker J a
year and 3 months later, on 9 November 2009.

[6]          
On 2 December  2009 Parker J dismissed
the application, with costs holding that:

(a)  appellant
failed to establish that its rights under the EPL existed when the
application was launched or when hearing commenced and, therefore,
that  it had rights which could be protected by the declaration
sought; and

(b)  the
conduct which the appellant had moved the court to declare unlawful
were not acts of the first, second and third respondents,
consequently, no declaratory order could be made against those
respondents.

[7]          
The appellant noted an appeal to this court
under case number SA 45/2009 against the judgment of Parker J but the
appeal was not prosecuted for the reason that no record was lodged
nor security provided. In terms of rule 5(6)(b)
of this court the appeal lapsed.

[8]          
On 29 March 2010 the appellant - as
plaintiff - issued summons in the High Court against the respondents
in this appeal (cited in the second suit as first to fourth
defendants respectively) claiming an order in the following terms:

‘20.1   
An order declaring that the plaintiff is the owner of Exclusive
Prospecting Licence 3484.

20.2    
That the fourth defendant corrects its records to reflect the
plaintiff as the owner of EPL 3484.

20.3     In
the alternative to prayers 20.1 and 20.2 above, that the first to
third defendants, jointly and severally, the one to pay the other to
be absolved, pay the plaintiff an amount of N$ 5 million.

20.4    
That the defendants jointly and severally, the one to pay the other
to be absolved, pay the costs of this matter.

20.5    
Further and/or alternative relief.’

[9]          
Aside from pleading to the merits of the
appellant’s claim, the respondents raised special pleas of lis
pendens and/or res
judicata in that the appellant had
earlier launched an application on motion under Case No A 209/2008
(the High Court decision per Parker J) and, thereafter, had appealed
under Case No SA 45/2009 against Parker J’s judgment in that
case. Respondents alleged that the appellant was seeking more or less
the same relief as in the first suit and, hence, it was not entitled
to resuscitate and litigate the same issue. They all prayed for the
appellant’s case to be dismissed with costs on the basis of
their special pleas.

[10]       
The parties agreed to set down and argue
the special pleas. The special pleas were argued on 31 October 2011
before Unengu AJ. In the course of the hearing it became apparent
that the appeal under case number SA 45/2009 had lapsed. As a result,
the special plea of lis pendens
was abandoned. The parties agreed to proceed with the plea of res
judicata raised by the fourth
respondent.

[11]       
On 23 January 2012 Unengu AJ upheld the
special plea of res judicata.  His
order reads as follows:

‘[18]    
In the result, I make the following order:

1.        
That now that the appeal in the Supreme Court of Namibia against the
ruling of Parker J in the matter of Fish Orange Mining Consortium
(Pty) Ltd v Ghandy Gerson !Goaseb and Others case no A 209/2008
(appeal case no SA 45/2009) has lapsed, the special plea of lis
pendens has fallen away;

2.        
The special plea of res judicata succeeds;

3.        
The plaintiff pays the costs of fourth defendant on the scale of
party and party.’

[12]       
The judgment that concluded with these
orders, is the subject of this appeal. Unfortunately, as is far too
often the case, I must first deal with a condonation application
before I can turn to the substance of the appeal.

[13]       
The appellant lodged the notice of appeal
against the judgment of Unengu AJ in time (21 February 2012) but the
appeal record was filed out of time. It should have been lodged on 23
April 2012 but, instead, it was lodged seventeen days later, on 18
May 2012. Before lodging with the Registrar copies of the record,
appellant also failed to enter into good and sufficient security for
the respondents’ costs of appeal as provided for by rule 8(2).
Appellant, however, timeously sought condonation for the
non-compliance with rule 5(5) of this court but omitted to seek
similar relief for its failure to comply with rule 8(2). While the
first to third respondents did not give notice of their intention to
oppose the application for condonation for the non-compliance with
rules 5(5) and 8(2), they expressed opposition to the granting of
condonation in their heads of argument. Counsel for first to third
respondents’ main focus was the failure of the appellant to
seek condonation for the non-compliance with rule 8(2). He submitted
that the appellant’s application for condonation in respect of
its non-compliance with rule 5(5) was pointless and moot as the
failure to comply with rule 8(2) in any event had the result that the
appellant’s appeal lapsed. In my view correctly so, as counsel
for the appellant was under the misapprehension that appellant’s
application for condonation for the non-compliance with rule 5(5) was
also good for its failure to comply with rule 8(2). When it became
apparent that that line of argument was misplaced, counsel sought an
amendment to paragraph 1 of the notice of motion to insert  ‘and
rule 8(2) and (3)’ in the prayer for condonation sought.
Notwithstanding opposition to the application by the first to third
respondents the court granted the amendment.

[14]       
We reserved judgment on the condonation
application. In my view the application should succeed. The
explanation proffered for the late filing of the record and the
failure to have entered into good and sufficient security for the
respondents’ costs on appeal is reasonable. The appellant,
having lost the previous case, sought a second opinion on the
prospects of success on appeal from counsel other than the one who
had argued its case before Unengu AJ. That basically caused the
delay. It is clear from the affidavit supporting the condonation
application that appellant intended to prosecute the appeal without
delay. The failure to furnish security as contemplated by rule 8(2)
is also explained in the affidavit. In my view that explanation shows
that the misapprehension harboured by counsel for the appellant that
the application for condonation for the non-compliance with rule 5(5)
was also good for the non-compliance with rule 8(2) is genuine. On 26
March 2012, a little less than a month before the record should have
been filed on 23 April 2012, the appellant’s legal
practitioners of record caused a letter to be written to counsel for
the first to third respondents suggesting that security should be
fixed at N$40 000,00. No response was received. The letter was
followed by an email on 3 May 2012, which was also copied to the
Government Attorney, counsel for the Minister. On 10 May 2012, the
appellant’s legal practitioners collected the record from the
transcribers. Counsel for the first to third respondents was
telephonically contacted and requested to respond to the letter and
the email message about the security to be fixed. Counsel for the
first to third respondents promised to respond immediately. He
responded on 11 May 2012 demanding security of N$70 000,00. By 11 May
2012 counsel for the Minister had not yet responded to the issue of
security. An attempt to contact him telephonically on 11 May 2012 was
to no avail as he was on leave until 14 May 2012. On or about 14 May
2012 he was contacted and agreement was reached that the appellant
should furnish security of N$50 000,00 subject to the approval of
first to third respondents. On or about the same day counsel for the
first to third respondents was contacted again and, after further
negotiations, he approved that security should be set at N$50 000,00.
The appellant was informed accordingly and on 16 May 2012 it made
funds available in the trust account of the appellant’s legal
practitioners of record. On the same day, the record and security for
the costs were delivered to the respondents’ lawyers and, on 18
May 2012, lodged at this court.

[15]       
As already stated, there was no substantive
opposition to the application for condonation and reinstatement of
the appeal and the evidence presented on behalf of the appellant in
support of the application was not gainsaid. The explanation is
reasonable. I do not find any prejudice attendant to the appellant’s
non-compliance with rules 5(5) and 8(2). It was also not seriously
contended that the appeal would not have reasonable prospects of
success. The condonation and reinstatement application should succeed
but, inasmuch as the appellant sought an indulgence for its
non-compliance and the respondent’s opposition to it was not
unreasonable, I propose to make an order that it should bear the
costs occasioned by the application, including the amendment thereof.

[16]       
I now turn to the principal issue before
court, the special plea of res judicata.
The respondents’ submission was that Parker J had already
decided the claims brought by the appellant before Unengu AJ and
that, that judgment was final or definitive of those claims. The
appellant’s submission was to the contrary. Counsel for the
appellant submitted that the causes of action in the motion and
action proceedings were not the same because the declaratory relief
based on the common law review grounds was sought in the application
proceedings in order to protect the appellant’s ‘ownership’
of the EPL which had lapsed at the time the judgment of Parker J was
handed down, whereas the action proceedings were  based on the
unlawful actions of the respondents which resulted in the appellant
being divested of it rights under the EPL and the patrimonial
consequences thereof. He contended that it was, in essence, an action
for damages based on the unlawfulness of the conduct in question that
had not been dealt with in the judgment of Parker J. Alternatively,
if it were to be found that the basis of the claim was the same,
counsel submitted that the earlier judgment disposed of the
application on procedural grounds and was not final on the merits of
the alleged unlawful conduct. Therefore, the court a
quo misdirected itself when it upheld
the special plea. Counsel conceded that, had the appellant persisted
with prayers 20.1 and 20.2 of the amended particulars of claim, the
defence of res judicata
vis-à-vis the fourth respondent could have been successful, it
being common cause that the EPL lapsed.

[17]       
In African
Farms and Townships Ltd v Cape Town Municipality[3],
Steyn CJ succinctly stated the rule as follows:

‘The
rule appears to be 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.’

[18]       
In The
State v Moodie[4]
Hoexter ACJ said:

‘.
. . I am of the opinion that in our common law the exceptio
rei judicatae
cannot succeed unless it is based on a final judgment on the merits.’

[19]       
Thus a judgment or order which does not
have the effect of settling or disposing of the dispute between the
parties with finality cannot found the exceptio
rei judicatae.[5]

[20]       
The effect of the final judgment on a
party’s cause of action has been described as follows:

‘The
effect of a final judgment on a claim is to render the claimant’s
cause of action res
judicata.
If therefore a party with a single cause of action giving rise to a
single claim obtains a final judgment on part of his claim, the
judgment puts an end to his whole cause of action, with the result
that a subsequent claim for the balance of what is his cause of
action entitled him to claim in the first instance can be met with a
plea of res
judicata. When
a cause of action gives rise to more than one remedy, a plaintiff who
pursues one of those remedies and obtains a judgment thereon can be
met with a plea of res
judicata
if he should subsequently seek to pursue one of the other remedies,
the reason being that the final judgment on part of one’s cause
of action puts an end to the whole of such cause of action.’[6]

[21]       
The judgment and order of Parker J is of
central importance in deciding the special plea. The judgment and
order has to be carefully construed so as to determine whether or not
they finally or definitely disposed of the issue later raised in the
appellant’s particulars of claim as Unengu AJ found.

[22]       
In Firestone
South Africa (Pty) Ltd v Genticuro AG[7],
Trollip JA gave guidance how a court’s judgment and order is to
be interpreted when he said:

‘First,
some general observations about the relevant rules of interpreting a
court's judgment or order. The basic principles applicable to
construing documents also apply to the construction of a court's
judgment or order: the court's intention is to be ascertained
primarily from the language of the judgment or order as construed
according to the usual, well-known rules.’

[23]       
With these principles in mind I turn to
consider the judgment and order of Parker J. The order was clear and
unambiguous and nothing need be said about it. The court ordered that
the appellant’s application be dismissed and it further
directed that the appellant pay the costs of the first, second and
third respondents. The judgment of Parker J is embodied in fifteen
paragraphs. The first and second paragraphs are introductory in
nature. In the third paragraph the court isolated the main purpose of
the application that was before it, namely, that the appellant was
seeking an order declaring unlawful the exercise of a discretion
conferred in terms of the Mineral (Prospecting and Mining) Act, 1992
(Act 33 of 1992) on the Minister and the Mining Commissioner. In the
two paragraphs that followed (fourth and fifth) the court found that
the appellant failed to furnish cogent legal basis why it should
declare unlawful the exercise of statutory discretionary power by the
Minister and the Mining Commissioner. The court further expounded on
the principles on which an administrative action against a Government
official would be founded. In the sixth paragraph the court repeated
what it had stated in paragraph three and held that the appellant’s
application was directed at undoing or setting aside an endorsement
made in respect of the EPL by the Minister and/or the Mining
Commissioner and therefore the first, second and third respondents
have been cited merely because they had an interest in the outcome of
the application and no relief can in law or in logic be claimed from
them. On that score the application was found to fail against the
first, second and third respondents.

[24]       
In the remaining paragraphs the court spent
its time answering the question which it had framed as follows:

‘Has
the applicant successfully established the common law or
constitutional ground of review on which the applicant relies to
contend that the fourth and fifth respondents acted unlawfully in the
exercise of their discretionary power purportedly under Act No 33 of
1992.’

[25]       
This question the court answered in the
negative. It emphasised that the appellant had not brought an
application to review and set aside that act or to review, set aside
and correct that act. The court found that the Minister, the Mining
Commissioner and the Attorney-General did not file papers in
opposition to the application. It found that what the appellant had
moved was a declarator as against the respondents. Relying on s 16 of
the High Court Act, 16 of 1990, the court found that the High Court
was not entitled to protect a non-existent right by way of a
declaratory order as at the time the application was launched the
right the appellant might have had to the EPL was no longer in
existence and therefore there was no right to protect. Accordingly
the application was dismissed. I interpose here to note that the
restatement of the essence of Parker J’s reasoning without
comment should not be understood as an endorsement thereof by this
court.

[26]       
The facts on which appellant’s claims
were founded in the application  before Parker J were that the
application to transfer the EPL by first respondent in complicity
with the second respondent were carried out with intent to defraud
the appellant as no valid resolution by appellant authorising such
transfer was in existence and therefore the approval and endorsement
of the transfer by the Minister and/or the Mining Commissioner was
ultra vires,
unlawful and null and void as contemplated by s 228 read with s 34 of
the Companies Act, 61 of 1973. To this the first respondent who
deposed to an affidavit on his and that of the third respondent’s
behalf denied the fraudulent transfer of the EPL and stated that the
transfer was duly authorised by the appellant. The Minister, the
Mining Commissioner and the Attorney-General did not oppose the
application at the time. The Mining Commissioner and the
Attorney-General were not parties to the proceedings before Unengu
AJ.

[27]       
In the action that served before Unengu AJ
the appellant alleged wrongfulness without lawful causa
on the part of the first and second respondents, acting on behalf of
the third respondent, when they appropriated the EPL by having the
Minister approve transfer of the EPL from the appellant to the third
respondent. In the alternative, the appellant alleged
misrepresentation on the part of the first and second respondents
when they represented to the Minister that an agreement had been
concluded between the appellant and the third respondent in terms of
which registration and possession of the EPL had passed from the
appellant to the third respondent; that first and second respondents
knew that the said misrepresentation was false; that it was made with
the intention to mislead the Minister and to defraud the appellant,
alternatively, that the misrepresentation was made in order for third
respondent to steal the EPL from the appellant; that as a result of
the misrepresentation the Minister endorsed the EPL, in effect
passing ‘ownership’ to the third respondent that in so
endorsing the EPL the Minister acted unlawfully as he did so without
any causa
whatsoever, and acted mala fide,
alternatively, grossly negligent that the actions of the Minister
caused the appellant to suffer damages in the amount of N$5 million,
for at about 20 February 2008 the value of the EPL was N$5 million;
that despite demand, the Minister had failed and/or refused to
correct the official records to reflect the appellant as the owner of
the EPL; that after the actions of the first and second respondents,
the EPL was registered in the name of the third respondent who had
possession of the EPL ever since, when at all relevant times the
first to third respondents knew that the appellant was the owner of
the EPL and that notwithstanding the said knowledge, the first to the
third respondents on or about June 2009 allowed the EPL to lapse (the
reference to the 2011 in the particulars of claim, I shall assume,
was made in error).

[28]       
I must interpose here to mention that the
heads of argument for the parties on the special plea before the
court a quo
were made available to us and we were referred to paragraph 9 of the
appellant’s (plaintiff then) heads of argument where it is
apparent that prayers 20.1 and 20.2 of the amended particulars of
claim had been abandoned. Counsel  who represented the appellant
in the High Court went on to state:

‘The
Exclusive Prospecting Licence has in fact lapsed. It lapsed after the
claim was instituted. Only the claims for damages and costs are
proceeded with. The claims for damages are against all four
defendants.’

Counsel for the appellant conceded in
this court that, had appellant persisted with the two prayers (20.1
and 20.2 as per the amended particulars of claim) the defence of res
judicata vis-à-vis the Minister would have been
successful, it being common cause that the EPL had lapsed. What
remained was the alternative claim of damages as against the first,
second and third respondents in the amount of N$5 million and a claim
for costs as against all four respondents.

[29]       
This notwithstanding, counsel for the
first, second and third respondents maintained that the appellant was
arguing its appeal on an erroneous premise that prayers 20.1 and 20.2
in its amended particulars of claim had been abandoned in the court a
quo. He contended that the premise was
not supported by the appeal record and the court a
quo’s judgment. Unengu AJ’s
judgment was rendered taking into consideration the abandoned prayers
20.1 and 20.2, so argued counsel. Counsel went on to contend that the
appeal should be decided in favour of the respondents for the reason
of the concession made by counsel for the appellant  that had
claims 20.1 and 20.2 not been abandoned, the special plea of res
judicata would have succeeded.

[30]       
I am unable to agree. As already stated,
the heads of argument for the appellant and the Minister on the
special plea in the court a quo
were provided to this court at the hearing of this appeal and it is
apparent from the record of proceedings that the prayers in question
had been expressly abandoned in the court below.

[31]       
Counsel for the Minister also acknowledged
that abandonment in paragraph 5 of his heads of argument. The
following is recorded:

‘It
is also worthy of note that as per paragraph 9 of the plaintiff’s
heads of argument; prayers 1 and 2 are abandoned by plaintiff.
Plaintiff therefore no longer seeks a declaration as the owner of the
fated EPL 3484 but proceeds with the alternative claim for damages
and costs. The effect of this shall be dealt with herein.’

[32]       
As a result of the abandonment of prayers
20.1 and 20.2, counsel for the Minister structured his heads of
argument in two separate sections, namely, the ‘no cause of
action’ argument which, in my opinion, was an argument on the
merits of the claims and the res
judicata argument in which counsel
conceded that the abandonment of prayers 20.1 and 20.2 ‘effectively
meant to defeat the special plea of res
judicata’.

[33]       
Counsel for the Minister continued to say:

‘It
is conceded that; that is its effect, however plaintiff ought to be
burdened with costs for such late abandonment as it has been aware of
the special plea since the same was filed. In any event, such
abandonment amounts to a withdrawal of that particular relief and
ought to have come with a tender of costs as the matter was already
set down.’

[34]       
Notwithstanding the concession above,
counsel for the Minister still contended that the matter before
Unengu AJ was res judicata
when he submitted that:

‘.
. . prior to the abandonment, the claim for transfer of the EPL, was
based on the same grounds as the current action, it concerned the
same subject matter and had been dealt with finally hence plaintiff’s
abandonment of the same to defeat the special plea.’

[35]       
He was apparently fortified in that
submission by what Parker J had said:

‘When
applicant launched the present application, any right the applicant
might have had no longer existed . . . ’

[36]       
The fact that the EPL had lapsed at the
time Parker J heard the appellant’s application did not
preclude the appellant from claiming damages. A plaintiff is entitled
to recover from the wrongdoer the amount by which the plaintiff’s
patrimony was diminished as a result of the wrongdoer’s
conduct.[8]

[37]       
In Union
Government (Minister of Railways and
Harbours) v Warneke[9]
the following appears:

‘And
we are at once faced with the fact that it was essential to a claim
under the Lex
Aquilia
that there should have been actual damnum
in the sense of loss to the property of the injured person by the act
complained of (Grueber,
p. 233). In later Roman law property came to mean the universitas
of the plaintiff's rights and duties, and the object of the action
was to recover the difference between that universitas
as it was after the act of damage, and as it would have been if the
act had not been committed (Grueber,
p. 269). Any element of attachment or affection for the thing damaged
was rigorously excluded. And this principle was fully recognised by
the law of Holland.’

[38]       
The court a
quo correctly identified the question
before it, namely, whether the judgment in Fish
Orange Mining Consortium (Pty) Ltd v Ghandy Gerson !Goaseb and
Others, delivered by Parker J rendered
the case before it res judicata.
That court further correctly made reference to the requisites of a
plea of res judicata, namely,
that the matter being adjudicated upon must have been based on the
same cause between the parties and the same thing must have been
demanded. The court a quo
then adumbrated the claims sought before Parker J as per paragraph 2
above and the conclusion arrived at, that there was no right to
protect as the EPL had lapsed. That court proceeded to compare the
prayers before it, but significantly, disregarded the fact that
prayers 20.1 and 20.2, which were more or less the same prayers
raised in the proceedings before Parker J, had been abandoned. It
then concluded that the requisites of a plea of res
judicata were present and upheld the
special plea.

[39]       
In National
Sorghum Breweries Ltd (t/a Vivo African Breweries) v International
Liquor Distributors (Pty) Ltd[10]
Olivier JA encapsulated the res judicata
principles when he said:

‘[2]
The requirements for a successful reliance on the exceptio
were, and still are: idem
actor, idem reus, eadem res
and eadem
causa petendi.
This means that the exceptio
can be raised by a defendant in a later suit against a plaintiff who
is “demanding the same thing on the same ground” (per
Steyn CJ in African
Farms and Townships Ltd v Cape Town Municipality
1963 (2) SA 555 (A) at 562A); or which comes to the same thing, “on
the same cause for the same relief” (per
Van Winsen AJA in Custom
Credit Corporation (Pty) Ltd v Shembe
1972 (3) SA 462 (A) at 472A-B; see also the discussion in Kommissaris
van Binnelandse Inkomste v ABSA Bank Bpk
1995 (1) SA 653 (A) at 664C-E); or which also comes to the same
thing, whether the “same issue” had been adjudicated upon
(see Horowitz
v Brock and Others
1988 (2) SA 160 (A) at 179A-H).’

[40]       
The fact that the court a
quo considered the appellant’s
claim in whole as per the amended particulars of claim, disregarding
the fact that prayers 20.1 and 20.2 had been abandoned before the
hearing, in my opinion strengthens the appellant’s contention
that that court misdirected itself on that point. The appellant did
not have to file a substantive application to abandon the prayers it
did, as counsel for the first to third respondents contended, it was
sufficient to abandon the prayers in the form it did.

[41]       
Once the two prayers were abandoned and
there remained a claim for damages only, the fundamental question
which should have arisen  and which is before us for
determination is whether the ‘same issue’ is involved in
the two actions: in other words, is the same thing demanded on the
same ground or, which comes to the same thing, is the same relief
claimed on the same cause, or to put it more succinctly has the 
issue now before the court been finally disposed of in the first
action – to paraphrase the ratio
in the National Sorghum
Breweries-case.[11]

[42]       
In my opinion the question should be
answered in the negative. It is very clear on the papers before us
that Parker J was saddled with the issue of declaring the conduct of
the Minister endorsing the transfer of the EPL from the appellant to
the third respondent unlawful and declaring the endorsement to be
cancelled and set aside. This was essentially a claim for the
restoration of ownership of the EPL to the appellant. He, among other
things, found that the claims did not relate to the first, second and
third respondents and that no relief in law or logic had been claimed
from them. Parker J did not consider the merits in support of the
appellant’s complaint against the three respondents.

[43]       
In the suit before the court a
quo damages were claimed. The appellant
accepted that the EPL had lapsed and it sought to be compensated for
the patrimonial loss suffered as a result of the misappropriation and
loss of its rights under the EPL. The cause of the action was founded
on fraud, alternatively misrepresentation in the further alternative
theft as against the first, second and third respondents, and mala
fide, alternatively, gross negligence
as against the Minister. The appellant did not seek damages against
the Minister, only costs. In the first suit the declaratory order was
sought against the Minister and the Mining Commissioner and costs
against the first, second and third respondents.

[44]       
The parties to the two suits were the same
and the factual background to sustain the relief sought in the
respective suits were the same but it cannot be said that the same
thing was claimed in the respective suits, nor was reliance placed on
the same cause of action. As was correctly stated in the National
Sorghum Breweries case above, the mere
fact that there are common elements in the allegations made in the
two suits does not justify the exceptio
– one must look at the claim in its entirety and compare it
with the first claim in its entirety. If this is done in the present
case, the differences are so wide and obvious that one simply cannot
say that the same thing was claimed in both suits or that the claims
were brought on the same cause of action. Moreover, as already
stated, Parker J did not consider the merits of the alleged
fraudulent or dishonest conduct relied on by the appellant; the
exceptio
cannot succeed unless it is based on a final judgment on the merits.
It follows that exceptio
res judicata
should not have been allowed to dislodge the appellant’s claim
for damages. The appeal should succeed.

[45]       
A brief word on the costs. When this matter
was called on 19 June 2013, the appellant’s counsel had to
withdraw due to her earlier engagement in the matter in a different
capacity. As a result, The matter had to be postponed to 28 June 2013
for the appellant to secure the services of another  counsel to
argue the matter. As a result, the appellant should pay the costs
occasioned by that postponement. As for the balance of the costs in
this appeal, they should follow the result. The Minister did not
participate in this appeal and the costs sought against him cannot be
granted.

[46]       
Accordingly I make the following order:

1.   
The appellant’s failure to lodge the
record of appeal within the time period prescribed in rule 5(5) and
to enter into good and sufficient security for the respondents’
costs within the time period prescribed by rule 8(2) is condoned and
the appeal is reinstated.

2.   
The appeal is allowed.

3.   
The order of the High Court upholding the
special plea with costs on 23 January 2012 is set aside and the
following order is substituted:

‘The
special plea is dismissed with costs, such costs to be paid by the
fourth defendant.’

4.   
The matter is remitted to the High Court to
adjudicate the merits of the appellant’s claim.

5.   
The appellant is to pay the costs
occasioned by the postponement of this matter on 19 June 2013 and the
costs of the application for condonation and reinstatement of the
appeal, which costs shall include the costs of one instructing and
one instructed counsel.

6.   
The first, second and third respondents are
ordered to pay the costs of this appeal jointly and severally the one
paying the others to be absolved. Such costs shall include costs of
one instructing and one instructed counsel.

MAINGA JA

SHIVUTE CJ

MARITZ JA

APPEARANCE

APPELLANT:                                               
N Bassingthwaighte

Instructed
by Koep & Partners

1^ST to 3^RD
RESPONDENTS:                      
S Namandje

Instructed
by Sisa Namandje & Co Inc