Same application, same cause of action, between same parties – can a Judge re-adjudicate?

This question was addressed in the Supreme Court of Appeal and judgement on this issue was delivered on 25 February 2025.

BACKGROUND:

On 10 January 2023, Mr Maluleke, a legal practitioner, launched an urgent application in the high court for an order directing the school to allow the return of his three minor children, to the school. The school terminated its contract with Mr Maluleke because of his repeated failure to pay for his children’s tuition fees.

This application was heard by Muller J, who dismissed the application and concluded that the school’s process in terminating its contract with Mr. Maluleke was a fair one in the circumstances, emphasising that the school is privately owned and depended on school fees to sustain itself. Mr Maluleke thereafter filed, on 13 January 2023, a document, called a “Re: Enrolment Affidavit in Re: Urgent Application” which the school again opposed. This matter was heard on 16 January 2023 by Mdluli AJ who ultimately delivered her judgment ex tempore and granted an order directing the school to admit and enrol one of Mr. Maluleke’s children pending the determination of Part B of case number 6883/2021 and subsequently dismissed the school’s application for leave to appeal with costs.

The school approached the SCA and was granted special leave to appeal.

THE SCA:

In the SCA, Mr Maluleke asserted that the appeal was moot because all his children were no longer at the school. This was not contested by the school and the SCA accepted that it was so. However, this matter had another aspect, and generally, courts do not decide issues of academic interest only. This follows, as the Court put it, ‘a discrete issue of public importance arose that would affect matters in the future and on which adjudication of the court is required’.

The issue moved and was before the SCA on the basis of whether it was prudent for Mdhluli AJ to entertain Mr Maluleke’s application at all. Given the doctrine of res judicata that bars continued litigation for the same cause, between the same parties, and where the same thing is demanded. The underlying rationale of the doctrine of res judicata is to give effect to the finality of judgments and ‘avoidance of a multiplicity of litigation or conflicting judicial decisions on the same issue’. The doctrine of res judicata is well-settled in our law, and by ignoring it in the present matter, Mdhluli AJ has created an untenable situation by considering herself entitled to overrule an order granted by another Judge.

From the present case and the record, it was clear that the ‘re-enrolled urgent application’ that was served before Mdhluli AJ was identical, in respect of the parties and the cause of action, to the application that had been finalised by Muller J in his judgment delivered barely 5 days earlier, on 11 January 2023.

The SCA found that Mdhluli misconstrued her powers in respect of the application that was before her. By transversing the issue again, Mdhluli AJ impermissibly positioned herself as a court of appeal over Muller J’s judgment. The high court was functus officio and the SCA ruled that Mdhluli AJ had neither the jurisdiction nor the competence to entertain the ‘re-enrolled urgent application’. Therefore, the appeal succeeds.

The SCA further ruled that Mr Maluleke’s application was not properly before the court. It was re-enrolled based on an affidavit that is not allowed in the high court. There is no indication on the record that he had sought and was granted leave by the court to file such an affidavit. The SCA held that as a legal practitioner, Mr Maluleke should have known that his application was not properly before the court. Further, the SCA held that the conduct of Mr Maluleke resulted in two conflicting judgments within 5 days could lead to confusion and this is unbecoming of legal practitioners. Therefore a punitive cost order was made against Mr Maluleke in the SCA and the high court.

By Christelle Le Roux Venter (Senior Associate) | Litigation Department