REPORTABLE

Case Number  : 72 / 99

IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

In the matter between

NATIONAL SORGHUM BREWERIES (PTY)
LIMITED t/a VIVO AFRICA BREWERIES
Appellant

and

INTERNATIONAL LIQUOR DISTRIBUTORS
(PTY) LIMITED                                                             Respondent

Composition of the Court :
VAN HEERDEN ACJ;  HEFER
ADCJ;  VIVIER, OLIVIER and
PLEWMAN JJA

Date of hearing :

9 NOVEMBER 2000

Date of delivery :

28 NOVEMBER 2000

SUMMARY

Claims for restitution and damages in separate actions.   Exceptio rei
judicatae and the “once and for all” rule.

J U D G M E N T

PJJ OLIVIER

OLIVIER JA
[1] I have had the benefit of reading the judgment prepared by the
acting Chief Justice.   Unfortunately I do not share the views expressed
therein relating to the availability of the defences of res judicata or the
“once and for all” rule.

The exceptio rei judicatae vel litis finitae
[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 562 A);  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 472 A - B;  see also the discussion in
Kommissaris van Binnelandse Inkomste v Absa Bank Bpk 1995 (1)
SA 653 (A) at 664 C - 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 179 A - H).
[3] The fundamental question in the appeal 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, is the
same relief claimed on the same cause, or, to put it more succinctly, has
the same issue now before the court been finally disposed of in the first
action?
[4] In my view, the answer must be in the negative.   The same thing
is not claimed in the respective suits, nor is reliance placed on the same
ground or cause of action.   What was claimed in the first suit was
restitution in the form of repayment of the purchase price previously paid
by the claimant.   Such a claim is not one for damages but is a
“distinct contractual remedy” (see Botha JA in Baker v Probert 1985 (3)
429 (A) at 439 A - B).   In the second suit damages were claimed, which
is in its very essence clearly distinguishable from restitution.  The same
thing is not claimed in the respective suits, the issue now under
consideration has not been finally laid to rest.
[5] Nor are the respective claims based on the same grounds or same
cause of action.   In the first suit, the necessary allegations were the
conclusion of the contract, the breach thereof, the payment of the
purchase price, and the cancellation of the contract.   In the second suit,

the respondent was required to plead and prove the conclusion of the
contract, the breach and the cancellation thereof, that damage was
suffered, the causal chain between the breach and the damage, and the
quantum of the damage.   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
grounds.
[6] Much reliance, however, was placed by counsel for the appellant
on the decision of this Court in Custom Credit Corporation (Pty) Ltd v
Shembe, supra.   In that case, the seller obtained an order for
cancellation of the agreement, repossession of the bus sold, and
forfeiture of all payments made by the purchaser.   The forfeiture was
claimed by virtue of a specific forfeiture clause in the contract.   Later,
after obtaining possession of the bus, the seller claimed, in a second
action, damages in the form of the difference between the balance of the
purchase price owing at the time of cancellation, and the value of the bus

after its return to the seller.

The question was whether it was competent for the seller to
recover the said damages.   This Court, per Van Winsen AJA, held that it
was not because
(a)
the “once and for all rule” stands in the seller’s
way (see 471 H - 472 E);  and
(b)
the provisions of the Conventional Penalties Act,
15 of 1962, prohibits claims for both a penalty
(including a forfeiture) and damages in the case
of a breach of contract.

[7] Since the introduction of the Conventional Penalties Act, 15 of
1962, a forfeiture clause, such as the one invoked by Custom Credit
Corporation against Shembe,  is correctly seen as a penalty clause - see
subsection (1) read with section 4.   Whatever the motive for the inclusion
of such a clause in a contract may be - whether as a genuine pre-
estimate of damages or in terrorem - the amount forfeited may not be
more than the prejudice suffered by the creditor as a consequence of the
debtor’s breach of contract - see section 3.   “Prejudice” in this
section has a wide connotation, and includes all harm or hurt suffered by
the creditor - se Van der Walt v Central SA Lands and Mines 1969 (4)
SA 349 (W) at 352 - 3.

[8] It follows that although the forfeiture clause in Shembe arose, as it
inevitably must, from the contract between the parties, its raison d’etre
and  validity are to be found in the damage suffered by the creditor.   To
emphasise the point  : in order to reduce the amount of the forfeiture, the
actual prejudice suffered by the creditor must be proved by the debtor -
see Smith v Bester 1977 (4) SA 937 (A) at 942 H; Magna Alloys and
Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) at 906 E;
Chrysafis and Others v Katsapas 1988 (4) SA 818 (A) at 828 I;  and
see  A J Kerr, The Principles of the Law of Contract 4th edition, 602).
[9] It follows that although a claim for forfeiture arises ex contractu, its
essence and function is to compensate the creditor for prejudice
(including damage) suffered by it.   From this it would follow that if a
creditor relies in an action on a forfeiture clause, it cannot again in a later
action claim damages: the “thing” claimed, and the cause of action for
both claims, are similar and has already been finalised.   Thus viewed,
Shembe’s case is plainly distinguishable.

The “once and for all rule”
[10] The rule, derived from English law, requires that all claims
generated by the same cause of action, be instituted in one action.   As
shown above, the respective claims in this matter did not arise from one,

singular, cause of action.   The rule cannot bring about that contractual
claims and claims for damages must be brought in the same action.
[11] It follows that neither the exceptio res judicatae nor the “once and
for all” rule can be relied on to thwart the respondent’s claim.
[12] In the result, the appeal is dismissed with costs.
P J J OLIVIER  JA
CONCURRING WITH OLIVIER JA :

HEFER  ADCJ
VIVIER  JA
PLEWMAN  AJA