Board of Governors of Mitchell House School and Others v M (SCA) (unreported case no 748/2023, 25-2-2025) (Makgoka and Meyer JJA and Gorven, Coppin and Chili AJJA)In the matter of Board of Governors of Mitchell House School and Others v M, the Supreme Court of Appeal (SCA) look at whether it was competent for Mdhluli AJ to entertain Mr M’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 SCA added that the underlying rationale of the doctrine of res judicata is to give effect to the finality of judgments and avoidance of multiplicity of litigation or conflicting judicial decisions on the same issue.
The SCA said that in January 2023, a legal practitioner launched an urgent application in the High Court in Polokwane for an order directing the school to allow the return of his three minor children to the school. The SCA pointed out that the application was heard by Muller J, who delivered his judgment on 11 January 2023. The SCA added that Muller J set out the history of the dispute between Mr M and the school that led to termination of the contract. According to the SCA the judge considered the relationship between Mr M and the school in the light of the leading authority on the matter, namely, AB and Another v Pridwin Preparatory School and Others 2020 (5) SA 327 (CC).
The SCA pointed out that Muller J concluded the process, which the school initiated in terminating its contract with Mr M, was a fair one in the circumstances. The SCA added that Muller J further held that the rights of the children had been properly considered by the school when it terminated the contract. The SCA said that Muller J emphasised that the school was privately owned and depended on school fees to sustain itself. The SCA pointed out that given these considerations Muller J dismissed the application and made no order as to costs.
The SCA said that on 13 January 2023, Mr M filed a document titled ‘Re: Enrolment Affidavit in Re: Urgent Interdict Application’ (the re-enrolment affidavit). The SCA added that on the very same day, Mr M lodged an application for leave to appeal against the order of Muller J, however, the matter was not pursued. The SCA added that: ‘The applicants have since filed an application for leave to appeal against the aforesaid order of Muller J granted on 11 January 2023, under case no: 68/2023.’
The SCA said that the appellants opposed the ‘re-enrolled urgent application’, which came before Mdhluli AJ on 16 January 2023. The SCA pointed out that having considered the same papers that had served before Muller J together with the ‘re-enrolment affidavit’, Mdhluli AJ delivered her judgment ex tempore and granted an order directing the school to admit and enrol the minor child KK ‘pending the determination of Part “B” of case number 6883/2021’. The SCA added that Mdhluli AJ subsequently dismissed the school’s application for leave to appeal with costs.
The SCA pointed out that s 16(2)(a) of the Superior Courts Act 10 of 2013 provides that:
‘(i) When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.
(ii) Save under exceptional circumstances, the question whether the decision would have no practical effect or result is to be determined without reference to any consideration of costs.’
The SCA said that in Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A), Trollip JA remarked as follows:
‘The general principle, now well established in our law, is that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.’ The SCA pointed out that the doctrine of res judicata and its application are well-settled in our law and can hardly be considered to be novel. The SCA, however, said that by ignoring it in the present matter, Mdhluli AJ has created an untenable situation in the Limpopo Division by considering herself entitled to overrule an order granted by another judge.
The SCA added that it goes without saying that this is a recipe for disaster for judicial comity and jurisprudential coherence. The SCA pointed out that there seems to be a problem in the Limpopo Division about the observation of the res judicata doctrine. The SCA said that in two recent cases, it had to pronounce itself on the same issue. The SCA pointed out that the first one was Thobejane v Premier of the Limpopo Province (SCA) (unreported case no 1108/2019, 18-12-2020) (Petse DP, Zondi and Makgoka JJA and Mabindla-Boqwana and Poyo-Dlwati AJJA), where the court dismissed a preliminary point of misjoinder and proceeded to hear the merits of the application. The second one being Hulisani Viccel Sithangu v Capricorn District Municipality (SCA) (unreported case no 593/2022, 14-11-2023) (Zondi, Makgoka, Carelse, Mothle and Hughes JJA) in which the trial court heard arguments on a special plea of misjoinder and reserved its ruling and proceeded to hear the evidence and argument on the merits.
The SCA said that this is the third case from the Limpopo Division in which it appears that there is some difficulty in applying the principle of res judicata. The SCA pointed out that if not corrected, Mdhluli AJ’s order could have practical implications for coherence in the workings of the Limpopo Division as it could be followed in the future, unless another judge considers it to be clearly wrong (which it is). The SCA said it, therefore, behoves the court to reiterate the need to observe the doctrine of res judicata and importance of doing so. The SCA on those considerations exercised discretion to hear the appeal despite its mootness.
The SCA said that it was clear from the record that the ‘re-enrolled urgent application’ that served before Mdluli 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 five days earlier, on 11 January 2023. The SCA added that there is no debate that Muller J’s order was final and having considered the merits of the application and dismissed it. The SCA pointed out that application had three attributes identified in Zweni v Minister of Law and Order 1993 (1) SA 523 (A) as it was –
The SCA said that Mdhluli AJ was alive to this fact when entertaining Mr M’s urgent application.
The SCA pointed out that it was not clear from Mdhluli AJ’s judgment as to the basis on which she considered herself competent to hear the application, especially in the light of defense of res judicata being raised before on behalf of the school. The SCA said that Mdhluli AJ predicated her judgment on the interest of the children. The SCA pointed out that as mentioned, Muller J had considered that issue in his judgment, despite which he dismissed the application. The SCA said by traversing the issue again, Mdhluli AJ impermissibly positioned herself as a court of appeal over Muller J’s judgment.
The SCA said that the fact of the matter is that the very same application, involving the same parties and the same cause of action, had already been decided by Muller J. The SCA added that accordingly, the matter was res judicata. The SCA pointed out that the High Court was functus officio and Mdhluli AJ had neither jurisdiction nor the competence to entertain the ‘re-enrolled urgent application’. She erred in doing so. The SCA said, therefore, the appeal should succeed. On the matter of cost, the SCA added that the ordinary rule is that the successful party is awarded costs on the scale as between party and party. The SCA said that counsel for the school contended in his heads of argument that costs should be ordered against Mr M on a punitive scale of attorney and client. The SCA pointed out that Mr M’s application was not properly before court for the simple reason that it was re-enrolled based on an affidavit that should never have been allowed by the High Court. The SCA added that there is no indication on record that he had sought and was granted leave by the court to file the affidavit.
The SCA said that as a legal practitioner Mr M must have known that his application was not properly before court. The SCA added that the conduct of Mr M resulted in the school receiving two conflicting judgments from judges of the same Division, within the space of five days, which could lead to confusion on the part of legal practitioners. The SCA said that his conduct is reprehensible, and worthy of a punitive costs order – both in the SCA and the High Court.
The SCA made the following order:
‘1. The appeal is upheld with costs on the attorney and client scale.
“The application is struck from the roll with costs on the attorney and client scale.’”
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2025 (April) DR 31.
