Case name (full citation)/Legislation:
David Wallace Zietsman  v Electronic Media Network limited and Multichoice Africa (Pty)

Area of law:
Doctrine of estoppel and res judicata

Brief facts/summary:
This appeal was against the judgment handed down in the Court of the Commissioner of Patents of the Republic of South Africa (“CCP”), in which the Appellant was ordered to furnish security for the costs of the First and Second Respondents.

The Appellant was initially ordered to furnish security for the costs of the Respondents in the amount of R250 000 each in the CCP. The Appellant appealed against that ruling and succeeded, as the SCA said that the Respondents application should have been refused on the basis that they had not disclosed a defence and because evidence relating to their defence and their prospects of success in the main action had not been tendered.

Thereafter the Respondent again launched an application for security for costs in the CCP. Furthermore, the application contained the Respondents good prospects of success in their defence of the main action. The Appellant defended the application by stating that the Respondents were precluded from requesting security for costs in light of the previous SCA judgment, as the matter was res judicata. The CCP upheld the application and ordered that security be paid. The Appellant then took this on appeal.

Essentially the issue for decision in the SCA is whether the second application for security for costs should have been refused by the court a quo because of the operation of res judicata or estoppel. The Respondents disputed that the SCA judgment is a final and definitive judgment on the merits of the first application for security for costs and averred further that the causes of action in both applications for security for costs are not the same.

The further evidence tendered by the Respondents shows that the Respondents have good prospects of success in their defence of the main action. This evidence was not before the Court in the first application. The SCA held that due to this the second application is premised on a cause of action which is different from the cause of action in the first application.

On this basis the SCA held that the doctrine of res judicata or estoppel is inapplicable. There was therefore no reason for the CCP, not to entertain the Respondents’ application. Accordingly the appeal was dismissed with costs.

Importance/value: 
This case clearly indicates that an application for security of costs may be brought again by the same party without the matter being deemed res judicata, on the basis that an amendment/addition of submissions in the papers may change the cause of action.

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