Is res judicata an important legal principle supported by public policy and public interest considerations?

October 1st, 2022
Minister of Police v Van Der Watt and Another (SCA) (unreported case no 1009/2021, 21-7-2022) (Tsoka AJA (Petse DP and Plasket and Mothle JJA and Salie-Hlophe AJA concurring))

By Maboku Mangena

On 21 July 2022, the Supreme Court of Appeal (SCA) delivered a judgment in the Van Der Watt matter. The minister sought to resile from the settlement agreements concluded by his legal representatives on the basis that they (both the attorney and counsel) did not have a mandate to enter into the impugned agreements.

On the reading of the SCA judgment, it appears incontrovertible that the legal representatives did not have the requisite authority and mandate to conclude the settlement agreements. It is accepted that the Minister of Police (the Minister) had throughout the period the matter was in court evinced an unwavering and unambiguous commitment to dispute liability. He also took steps to ensure that all his witnesses attended court to testify on his behalf. The legal representatives ignored all these efforts and went on a frolic of their own and compromised the claim.

Aggrieved by the conduct of the legal representatives, the Minister approached the High Court to have the consent orders rescinded on the basis that they were granted in his absence. For this contention, he pivoted his case on the provisions of r 42(1)(a) of the Uniform Rules alternatively the common law. The application was dismissed and on a petition to the SCA it served before a full court and suffered the same fate.

Undeterred, the Minister once again successfully petitioned the SCA to have a fresh look on the matter. The SCA gave a short shrift to the Minister’s submission and declined to consider him a candidate for protection under r 42. The court ruled him unsuited because in its interpretation of the rule, an applicant for rescission must have been absent when a judgment or the order was granted. Given the fact that the Minister was legally represented and that the order was consented to, it cannot be argued that he was absent within the meaning of the rule. To argue otherwise will violate the legal principle of res judicata which is predicated on respect for court orders and finality of litigation. Was the court correct? I doubt it.

The general principles governing the rescission of judgment are often said to be trite. They are trite because they have been the subject of many judgments and case law is replete with them both pre- and post the adoption of the new Constitution. The latest and detailed exposition on the subject was given by the Constitutional Court (CC) in the matter of Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (Council for the Advancement of the South African Constitution and Another as Amici Curiae) 2021 (11) BCLR 1263 (CC).

In Zuma, the CC emphasised that a party who chooses to absent themselves deliberately and intentionally from the properly constituted proceedings cannot avail themselves of the protection provided for under r 42 of the Uniform Rules. This emphasis is a confirmation of an important principle of our law that says no man should be adjudged in his absence. It is a protection and an insulation of the legal system from the possible abuse by those who may want to disintegrate it by obviating court orders for their own selfish end.

What the CC tells us is that the meaning of ‘absence’ in r 42 is not literal. A court inquiring into the circumstances under which a court order was obtained is engaged in a legal interpretative process with a sole purpose of ensuring that justice is done.

Indeed, a hallmark of a just judicial system is the observance of the rules of natural justice, namely, audi alteram partem. Legal practitioners as officers of the court play a pivotal role in this regard. The court relies on their forensic skills in ensuring an expeditious resolution of disputes in compliance with the Uniform Rules of Court. This reliance is not difficult to fathom. It arises out of the fact that as officers of the court, legal practitioners know that they should at all material times act with requisite honesty and diligence. The rules of their profession require them to treat the interests of their clients as paramount subject to their duty to the court. It is, therefore, unimaginable that a legal practitioner can betray a trust reposed in them by a member of the public. It goes against all the ethical teachings of the profession.

As a general rule, a legal practitioner does not have an untrammelled right to conclude an agreement on behalf of a client without a mandate. This being a general rule, there are exceptions as numerous case law attests. Each case should, therefore, be treated on its own merits. What should, however, not be done is to take an exception and make it a general rule as both the High Court and the SCA seem to have done in this case.

In my opinion, both the High Court and the SCA were wrong to refuse the Minister a rescission order on the basis that he was represented during the granting of the two ‘consent’ orders. The purported ‘presence’ is in fact a subversion of justice engineered by his own legal representatives and should not be countenanced by a legal system which values fair trial rights and its twin sister of the right to access the courts.

I accept that Mr Van der Watt and his legal team together with the court did not know that the legal representatives did not have the requisite authority to bind the Minister. What I do not accept is that the absence of this knowledge at the time of the granting of the order should be elevated to an impenetrable defence of res judicata based on ostensible authority and trample the minister’s right to have his day in court. Adherence to these principles in this circumstance is too heavy a price to pay and is certainly not proportional to the prejudice Mr Van der Watt would have suffered if the court had granted the rescission. Any prejudice suffered would have been adequately catered for by an appropriate costs order. In any case an applicant for rescission seeks indulgence.

The above notwithstanding, res judicata is an important legal principle supported by both public policy and public interest considerations. At its heart is the desire to ensure finality of judgments, the creation of legal certainty required for the enforcement of court orders as well as the prevention of the abuse of court processes. It does not preclude the court in the exercise of its judicial power to ensure that justice is done between man and man.

As I understand it, the overriding consideration in the exercise of a judicial discretion in rescission proceedings is the interests of justice. This objective could still have been achieved without offending this cardinal principle. This is so because it cannot be fair to declare a man a winner in a race where another man was deliberately incapacitated, and the rules were manifestly ignored albeit by his chosen lawyers.

I appreciate that the Minister chose the legal practitioners to represent him and should not easily be allowed to disown them whimsically. This does not, in my view, mean that it is in all cases that a litigant will be bound by the conduct of their attorney. There are limits beyond, which a legal practitioner cannot go. A legal practitioner who deliberately fails to execute a client’s clear instructions and act to their detriment cannot be held to be acting for that client. To argue that such a client is represented and, therefore, ‘present’ in court when a ‘consent’ order is granted as in this case defies both logic and common sense. To apply res judicata in these circumstances does not only promote form over substance but is also mechanical.

The CC rejected a mechanical application of res judicata in Molaudzi v S 2015 (8) BCLR 904 (CC). The rejection was anchored on the public duty of the court to maintain a balance between ‘public interest in finality of litigation with the public interest of ensuring a just result on the merits’ (para 24). Its roots lie in ‘good sense and fairness’ (see Ascendis Animal Health (Pty) Ltd v Merck Sharpe Dohme Corporation and Others 2020 (1) BCLR 1 (CC) at para 112).

In the same way that the CC told us in Zuma that ‘absence’ is not literal, ‘presence’ should also be accorded a legal meaning. Doing so is not only giving effect to a right of access to the court but is in full accord with the notion of a right to a fair trial enshrined in the Constitution. It makes good sense and ensures fairness. I am fortified in my view by the Labour Court judgment of Moshoana J in SACCAWU obo Mapakela and Others v Transem (Pty) Ltd (LC) (unreported case no JS 155/17, 27-1-2022) (Moshoana J) at para 10 and 15.

A litigant who is represented by a legal practitioner who acts dishonestly and deliberately misleads the court as to his authority to bind the client is as good as being unrepresented. A court of law exercising a judicial discretion in the determination of the conflicting rights of access to the court and its duty to vindicate the sanctity of its orders would ordinarily be intolerant of dishonesty and a betrayal of trust, which the public repose on the admitted and enrolled practitioners.

That the Minister was denied access to the court, as well as the right to a fair trial admits of no contest. The refusal was based on a rigid and mechanical application of the res judicata principle in circumstances where it was not only inappropriate but manifestly unfair. This is inimical to the court’s public duty to ensure a just result in the adjudication of the merits. Lord Denning probably did not have this kind of situation in mind when he penned his seminal judgment on ostensible authority.

Maboku Mangena BProc (UniVen) PG Dip Corporate law (Unisa) Taxation Adv (UP) is legal practitioner, notary, and conveyancer at Maboku Mangena Attorneys Inc in Polokwane.

This article was first published in De Rebus in 2022 (Oct) DR 27.

De Rebus