The abandonment by the plaintiff of a judgment erroneously granted against a defendant is not sufficient to defeat a special plea of res judicata. This is evident from the judgment recently delivered by the Johannesburg High Court in Wesbank v Investment Auto Group Proprietary Limited.
Res judicata is an objection raised by a defendant that the plaintiff's claim has already been finally adjudicated upon by another court and can no longer be entertained by a court. To successfully raise such an objection, the prior legal proceedings must have been between the same parties, concerning the same subject matter and based on the same cause of action.
In this case, Wesbank issued summons against three defendants. Only the third defendant filed a notice to defend the action. Consequently Wesbank filed an application for default judgment against the first and second defendants only. The Registrar referred the applications for default judgment to open court.
In the meantime, Wesbank applied for a summary judgment against the third defendant, which application was opposed. The Summary judgment application was not successful and the third defendant was granted leave to defend the action. Hence, the litigation between the plaintiff and third defendant had to continue in the normal course.
Unbeknown to both Wesbank and the third defendant, default judgment was granted against not only the first and second defendants, but also against the third defendant. Since the third defendant had delivered a notice of intention to defend, Wesbank could not proceed with a default judgment application against the third defendant. There was in fact no such default judgment application filed against the third defendant and the default judgment granted against the third defendant was granted in error.
Some four months after it had been granted, the third defendant became aware of the judgment granted against her. The third defendant's attorneys brought the fact of the default judgment to the attention of Wesbank's attorneys and contended that all steps taken by Wesbank after the judgment was granted were null and void. In response to the third defendant's attorneys, Wesbank's attorneys contended out that the default judgment had been granted in error and that Wesbank elected to abandon the judgment against the third defendant.
Although Wesbank elected to abandon the judgment, the third defendant raised a point in limine that because of the default judgment against the third defendant, Wesbank's proceedings against the third defendant could not continue, unless the default judgment against the third defendant had been rescinded.
Certain interlocutory applications in relation to the dispute between Wesbank and the third defendant were scheduled to be heard by Siwendu J, who refused to hear them, until the default judgment granted against the third defendant was rescinded.
Shortly thereafter, the dispute between Wesbank and the third defendant, had been set down on the trial roll before Judge Windell. Counsel for the third defendant, which had filed a special plea of res judicata, argued before Judge Windell that, upon the granting of the default judgment, the court was functious officio, that is the court's authority in respect of the matter ceased to exist. In response, counsel for Wesbank argued that the default judgment against the third defendant had been abandoned and the dispute between Wesbank and the third defendant should proceed to trial.
In her judgment, Judge Windell recounted the well-established principle in South African law that "[t]he discretion to correct a judgment is that of the court and that judgment stands until it is rescinded by a court, regardless of whether it was erroneously granted or not."
She went on to state that the mere abandonment of the judgment is insufficient. It is a unilateral act that creates uncertainty in regard to finality of judgments and divests the courts of the discretion vested in them. She pointed out that it would enable parties to "correct" judgments themselves, which is an act without precedent and as a matter of public policy, cannot be allowed.
The odd aspect of the facts is that the third defendant raised the issue of res judicata and Wesbank could have contended that since the third defendant is raising res judicata and since the third defendant is not taking any steps to rescind the judgment, the judgment stands and it is going to take steps to execute against the judgment.
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