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A person wishing to institute or defend legal proceedings must have a direct and substantial interest in the right which is the subject matter of the litigation and the outcome of such litigation. This may also be dealt with on exception. res judicata: a peremptory plea that quashes the action altogether.

A special plea of non-joinder may be raised where a party who should have been joined in an action, has not been joined to the action. Special plea of res judicata. This special plea is raised where the dispute between the parties has already been adjudicated (decided) on.

MBATHA J [1] Defendant raised a Special Plea of res judicata in his defence and subsequently obtained an order that the Special Plea be adjudicated upon separately in terms of Rule 33 (4) of the Rules of this Court.

Res judicata defined and explained with examples. A doctrine in which any case previously decided by a court cannot be re-litigated by the same parties.

The defence raised in the first special plea is one of res judicata. In this special plea, appellant pleads that the respondent had, in the High Court, applied for appellant’s winding up on the same basis as the action i.e., a debt of R1 108 979.00 arising from the loan agreement, and that the High Court dismissed that application.

There is therefore no res judicata to talk about. The issues highlighted i.e. prescription and locus standi, were not determined. In the circumstances, the plaintiff’s point in limine on the special plea cannot be upheld and is accordingly dismissed. Procedural defect The plaintiff’s second preliminary point relates to the exception.

The special plea of res judicata means that the same matter has been decided in another court of competent jurisdiction and may not be pursued further by parties.

(c) That subsequent to the magistrate’s judgment, the parties agreed the quantum of the plaintiff’s damages in respect of damage to his jet ski, which amount was finally paid during January 2012. DISCUSSION: [8] As pleaded, the formulation of the special plea suggests that it is the exceptio rei judicata (res judicata).

In regards to the s 196 notice, they allege in the main that the defendant’s averments lack legal premise; that in fact, they gave the requisite notice way back in November 2017 and that at any rate, this issue was now res judicata because by a judgment of this court under HH 265-19 (per MANGOTA J) the same special defence had been raised but ...

Special Plea General Examples of Special pleas: o Prescription o Arbitration/mediation o Jurisdiction o Misjoinder, non-joinder o Res judicata o lis pendens o Locus standi in iudicio The effect of a special plea may be: o To dispose of the claim (plea in abatement, declinatory plea; or o To delay the matter (dilatory plea) A special plea ...

In view of the aforesaid facts, the defendant pleaded that the action is res judicata and subject to issue estoppel. Mr Rakgoale, counsel for the plaintiff referred to various authorities in which it was held that a plea of res judicata cannot be sustained if an action was withdrawn.

The Court of Appeal went further to hold that the appeal of the Respondents herein raised the defence of res judicata and it ought to have been sustained. The Court of Appeal held that proceedings and judgment in Suit No. FHC/CA/4/87 were incompetent and accordingly struck out.

Neglected exceptions 1) Exceptional/special circumstances The Supreme Court in Superintendent of Pudu Prison & Ors v Sim Kie Choon [1986] 1 MLJ 494, per Abdoolcader SCJ held that “the plea of res judicata applies, except perhaps where special circumstances may conceivably arise of sufficient merit to exclude its operation …” [8]

Whilst res judicata is a plea in bar, lis alibi pendens is a plea in abatement. The difference in the two special pleas is that with res judicata, the matter would have been decided and there would be a final and definitive judgment, whereas with lis alibi pendens, the matter would still be pending, awaiting determination.

It covers special pleas such as recusal of the court, locus standi, non-joinder and miscitatio­n, lis alibi pendens, arbitratio­n as a condition precedent, prescripti­on, non-joinder, misjoinder, res judicata and absence of jurisdicti­on.

This special plea of res judicata may be raised where a dispute between the parties has already been adjudicated or dealt with by a competent court and a final decision is made.

This plea should be drafted and filed at the earliest opportunity, usually before entering a plea on the merits of the case. When drafting a special plea, consider the following steps: Identify the Grounds: Clearly identify the legal basis for the special plea, such as lack of jurisdiction, prescription, non-joinder, or res judicata.

The rule of constructive res judicata in Section 11 of the Civil Procedure Code is an artificial form of res judicata. It provides that if a plea has been taken by a party in a proceeding between him and the defendant he will not be permitted to take pleas against the same party in the following proceeding with reference to the same matter.

If the plaintiff does, he may be met with a special plea of res judicata. If the court cannot decide which version is more probable it will grant ‘absolution from the instance’.