THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 470/2021
In the matter between:
MMABASOTHO CHRISTINAH OLESITSE NO
APPELLANT
and
THE MINISTER OF POLICE
RESPONDENT

Neutral citation:
Olesitse NO v Minister of Police (470/2021) [2022] ZASCA 90 (15
June 2022)

Coram:
ZONDI, DAMBUZA and NICHOLLS JJA and MAKAULA and SALIE-
HLOPHE AJJA

Heard:
11 May 2022

Delivered:
15 June 2022

Summary:  Delict – once and for all rule – claim for damages for malicious
prosecution instituted after the institution of a claim for damages for unlawful arrest
and detention – both claims arising from the same event – later claim offended the
common law principle of ‘once and for all’– appellant should have instituted all his
claims for damages he suffered in one action – claim based on malicious prosecution
was properly dismissed.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Davis J, sitting as court
of first instance):
The appeal against the dismissal of the application for condonation for the late
filing of the application for leave to appeal is upheld with no order as to costs.
The order of the high court is set aside and replaced with the following order:
‘(a)
Condonation for the late filing of the application for leave to appeal is
granted;
(b)
Leave to appeal is granted.’
The appeal is dismissed with no order as to costs.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Salie-Hlophe AJA (Zondi, Dambuza and Nicholls JJA and Makaula AJA
concurring):
[1] This is an appeal against the judgment and order of the Gauteng Division of the
High Court, Pretoria (per Davis J) (the high court), dismissing the appellant’s
application for condonation of the late filing of the leave to appeal against the judgment
and order. In that order the high court upheld the respondent’s point of law to the effect
that the appellant’s claim for malicious prosecution was a duplication of the first claim
based on unlawful arrest and detention.

[2] The appellant, Ms Mmabasotho Christinah Olesitse in her capacity as an
executrix of the estate of her deceased husband, Mr Tebogo Patrick Olesitse (the
deceased), petitioned this Court for leave to appeal against the dismissal of the
application for condonation for the late filing of the application for leave. This Court
granted the appellant leave to appeal against the order dismissing her condonation
application. It directed the parties to be prepared, if called upon to do so, to address it

on the merits of the appeal. Two issues therefore arise in this appeal, namely whether
the high court should have condoned the lateness of the appellant’s application for
leave to appeal, and whether it should have granted the appellant leave to appeal.

[3] I consider the application for the late delivery of the application for leave to
appeal first. The delay was about six months. The factors which a court considers
when exercising its discretion whether to grant condonation include: the degree of non-
compliance with the rules; the explanation for it; the importance of the case to the
applicant; the respondent’s interest in the finality of the judgment of the court below;
the convenience of the court; and the avoidance of unnecessary delay in the
administration of justice (Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining &
Development Co Ltd[2013] ZASCA 5;[2013]2 All SA 251 (SCA) para 11).

[4] The explanation proffered for the delay is that due to an administrative error on
the part of the appellant’s instructing attorney, the judgment dismissing the appellant’s
claim did not timeously come to his attention. The error came about in the following
circumstances. The main judgment was delivered electronically in April 2020 while the
country was placed under alert level 5in terms of the regulations under the Disaster
Management Act 57 of 2002 in an effort to curb the spread ofthe COVID-19 pandemic.

[5] The appellant’s correspondent attorney, Mr Joubert, who deposed to an
affidavit in support of the condonation application, alleged that upon receipt of the
judgment he forwarded it to the instructing attorney, Mr Coetzer of WJ Coetzer
Attorneys Incorporated, on the same day. The email address which he used in the
past when communicating with Mr Coetzer was used for the purpose of transmitting
the judgment. After receiving no response from him, he sent the judgment again to Mr
Coetzer’s secretary on 10 June 2020, using the same email address. When he did not
receive a response from Mr Coetzer, his secretary (on his instructions) again emailed
it to Mr Coetzer. Approximately five months later, Mr Coetzer sent an email to Mr
Joubert enquiring about the judgment. This surprised him, given that he had already
sent it to Mr Coetzer on three prior occasions. It then came to light that the email
addresses which both Mr Joubert and his secretary had used were no longer in use.
No non-delivery notices were received by them which would have otherwise alerted
him that the emails had not been delivered. They had no record of Mr Coetzer

informing them that the email addresses they had on record had been discontinued.
After providing Mr Coetzer with the judgment on 30 September 2020, matters
progressed, such as consultations with counsel, and on 9 October 2020 the application
for leave to appeal was prepared by counsel. Counsel instructed Mr Joubert to prepare
a condonation application. The application was finally filed in court on 30 October
2020.

[6] Mr Joubert further explained that the National State of Disaster and lockdown
rules had caused a major disruption within many attorney firms and had a detrimental
effect on his practice. He had switched over to a remote practice within a matter of
days and with a huge staff compliment, the task had been a challenging one. Various
areas of his practice, including access to the office server on which all documents are
stored, were severely affected.

[7] Notwithstanding the shortcomings in the appellant’s attorney’s explanation for
the delay, I am of the view that the appellant should not suffer as a result of her legal
representative’s neglect. The case is important to her children who stand to benefit
from the deceased estate. In my view the high court should have condoned the late
delivery of the application for leave.

[8] I turn now to consider the merits of the appeal. The events giving rise to these
proceedings occurred in May 2008 when the deceased, then a police officer stationed
at Mafikeng Police Station vehicle identification section, was arrested by police officers
without a warrant and detained on a charge of theft and corruption. The arrest and
detention occurred after the police conducted an investigation of theft and
disappearance of motor vehicle parts and accessories at the vehicle identification
section of the South African Police Service (SAPS) at Mafikeng Police Station. He was
detained at the police station on 19 May 2008 and released on bail on 29 May 2008.
On 17 May 2011, the charges against him were formally withdrawn when the Director
of Public Prosecutions (the DPP) declined to proceed with prosecution of the charges.

[9] On 26 May 2011(nine days after his charges were formally withdrawn), the
deceased instituted an action against the respondent for damages in respect of his
alleged unlawful arrest and detention, seeking compensation in the amount of R400

000 for deprivation of freedom, contumelia and discomfort(the first action). In its
special plea, the respondent contended that part of the claim had been extinguished
by prescription as contemplated in s 11(d) of the Prescription Act 68 of 1969. The
special plea was adjudicated on a separated basis before Murphy J. The learned judge
partially upheld the special plea. He determined on 19 October 2012 that the claim for
damages for unlawful arrest and detention sustained prior to 26 May 2008 had been
extinguished by prescription and accordingly dismissed it. The matter subsequently
came before Baqwa J on 11 May 2016 for the adjudication of the merits. He awarded
the deceased R90 000 damages occasioned by the unlawful detention. The judgment
by Baqwa J was not made available to this Court and, strangely enough, neither party
could shed light as to how the proceedings before the learned judge were conducted.
They surmised that the award was made pursuant to a settlement agreement.

[10] On 12 December 2012, and whilst the first action was still pending, the
deceased instituted a new action for damages for malicious prosecution under case
number 71947/2012 (the second action). This second action arose from the same set
of facts or events which gave rise to his claim for unlawful arrest and detention. Citing
the Minister of Police as the first defendant and one Colonel Mokgosi as the second
defendant, acting within the course and scope of the employment of the first
defendant, the deceased instituted action for damages for malicious prosecution.

[11] The relevant parts of the particulars of claim in the second action read as
follows:
‘4.
On or about 19 May 2008, at Mmabatho, [the] Second Defendant wrongfully and
maliciously set the law in motion by l[a]ying a false charge of theft against the Plaintiff with the
Police at Mafikeng, by giving him false information namely that the Plaintiff committed crimes
of corruption and theft.
5.
When l[a]ying this charge and giving this information, the Second Defendant had no
reasonable or probable cause for doing so, nor did he have any reasonable [belief] in the truth
of the information given.
. . .
7.
As a result of the Second Defendant’s conduct, [the] Plaintiff was arrested and held in
custody for 9 days. The Plaintiff was then prosecuted for theft in the Magistrate’s Court
Mmabatho.
8.
All charges were provisionally withdrawn against the Plaintiff on 19 February 2009.

9.
On 17 May 2011 the Plaintiff was informed by the office of the Director of Public
Prosecution that they declined to prosecute the Plaintiff.
10.
The Plaintiff suffered damages as a result of [the] Defendant’s conduct in the amount
of R400 000.00, being for contumelia, deprivation of freedom and discomfortsuffered by the
Plaintiff.’ (Own emphasis.)

[12] By way of comparison, the particulars of claim in the first action,under case
number 29788/2011, in respect of the claim for unlawful arrest and detention reads as
follows in relevant parts:
‘3.
On or about 19 May 2008 the Plaintiff was arrested without a warrant by
member/members of the South African Police Services.
4.
At the time of the arrest, the member/members of the South African Police Service had
no reasonable and/or probable cause for doing so or did he/she/they have any reasonable
belief in the proof of the information given. Alternative to the above the member/members of
the South African Police Services did not exercise his/her/their discretion properly and should
not have arrested the Plaintiff under the circumstances.
. . .
7.
As a result of the aforegoing wrongful arrest and detention, the plaintiff has suffered
damages in the amount of R400 000.00 which amount is the broad amount claimed for
unlawful arrest on 19 May 2008, being damages for deprivation of freedom, contumelia and
discomfort suffered by the Plaintiff.’(Own emphasis.)

[13] On 3 March 2020, the respondent served a notice in which he raised a point of
law. In his notice of objection, the respondent contended that the appellant’s second
claim was a duplication of the first claim. The relevant portions extracted from the
‘Notice of Objection on Point of Law’ read as follows:
‘1.
That the plaintiff’s claim is a duplication of actions and offends the rule of common law
that obliges the claimant/litigant to claim all damages arising from one cause of action on a
single action (“once and for all” rule). Consequently, the plaintiff’s [action] is legally
incompetent.
. . .
3.
The plaintiff seeks solatium or satisfaction for his wounded feeling allegedly caused by
wrongful conduct of the defendant’s employees.
4.
The plaintiff’s action [is] arising from the same facts and circumstances for which
compensation has been sought and awarded to the plaintiff by Mr. Justice Baqwa on 11 May
2016, under case No: 29788/2011.

. . .
6.
In these proceedings the plaintiff claims damages for the following injuries:
Contumelia, deprivation of freedom and discomfort allegedly suffered as [a] result of the
police’s conduct.
7.
Defendant contends that the plaintiff’s action under these circumstances, constitute
duplication of actions. Consequently, it is legally incompetent.’

[14] At the commencement of the hearing of the second action, by agreement
between the parties, the high court (per Davis J) made an order in terms of which the
point of law was separately adjudicated pursuant to rule 33(4) of the Uniform Rules of
Court.

[15] The high court upheld the respondent’s point of law and dismissed the
appellant’s claim based on public policy considerations, namely res judicata, lis
pendens and the ‘once and for all’ rule. In addition, in arriving at its decision the high
court weighed up, on the one hand (the appellant’s side), the possible claim for
damages, additional to those already awarded, in favour of the deceased estate
against, on the other hand (the respondent’s side), the prejudice of double jeopardy,
loss of available witnesses due to the ‘huge effluxion of time’ and the expense of being
put to trial in respect of something which has already come before court. The high
court accepted that the causes of action of malicious prosecution and unlawful arrest
and detention are two separate causes of action. But, it stated that, if regard is had to
the appellant’s two sets of pleadings of the facts relied on in the two cases, it was clear
that the police officer who was the second defendant in the trial court set the law in
motion against the deceased as a result of which he was arrested on 19 May 2008.
The deceased, proceeded the high court, was released from detention on 29 May
2008 and the charges were withdrawn against him on 17 May 2011. The high court
further stated that the only distinguishing fact between the two cases was the alleged
malice. It further stated that in respect of all the other facts, save for the alleged malice,
the court had already given a final order. The damage-causing facts had already been
determined irrespective of the nature of the unlawfulness and the identity of the actual
perpetrator.

[16] It was submitted on behalf of the appellant that the high court conflated a single

deed that infringes upon different personality rights with two separate deeds
constituting separate causes of action, causing overlapping damages. It was further
submitted on behalf of the appellant that the high court overlooked the fact that the
lawfulness of an arrest is irrelevant when one deals with a case of malicious
prosecution. In support of its submission, the appellant argued that in a case of
unlawful arrest and detention, the manner in which the law was set in motion is
relevant, and in the case of malicious prosecution, the lawfulness or not of the arrest
is irrelevant.

[17] While I accept that there is a difference between a claim for malicious
prosecution and a claim for unlawful arrest and detention, here, that difference pales
into insignificance having regard to the fact that the event that gave rise to the
deceased’s claims is the same. The investigations conducted by the police formed the
basis on which the decisions were taken to arrest and detain, and to prosecute the
deceased. In accordance with the once and for all rule, the deceased should have
instituted his claim for all of his damages in one action, so that the lawfulness or
otherwise of the respondent’s employees’ actions, who were involved in taking the
challenged decisions, could be adjudicated in one action. Moreover, in this case the
deceased had all the facts on which to formulate his claims when he instituted his first
action. He had the facts to sustain the claims that his arrest and detention was unlawful
and that his prosecution was malicious after the DPP had declined to prosecute him.
All that had already happened when he instituted the first action. There was therefore
nothing that prevented him from instituting his claims in one action. The once and for
all rule is part of our common law (MEC for Health and Social Development, Gauteng
v DZ obo WZ [2017] ZACC 37; 2017 (12) BCLR 1528 (CC); 2018 (1) SA 335 (CC)
para 15).

[18] Visser and Potgieter’s Law of Damages,1explains the operation of the rule as
follows:
‘In claims for compensation or satisfaction arising out of a delict, breach of contract or other
cause, the plaintiff must claim damages once for all damage already sustained or expected in
future insofar as it is based on a single cause of action.’

1J M Potgieter et al Visser and Potgieter Law of Damages 3 ed (2012) at 153.

[19] In Custom Credit Corporation (Pty) Ltd v Shembe [1972] 3 All SA 489 (A); 1972
(3) SA 462 (A) at 472A-D, the once and for all rule was considered and the court held
that the law requires a party with a single cause of action to claim in one and the same
action whatever remedies the law accords him upon such cause. The court explained
the ratio underlying the rule is that, if a cause of action has previously been finally
litigated between the parties, then a subsequent attempt by the one to proceed against
the other on the same cause for the same relief can be met by an exceptio rei judicatae
vel litis finitae. The rationale in our law is to prevent inextricable difficulties arising from
discordant or conflicting decisions due to the same suit being aired more than once in
different judicial proceedings or actions. Furthermore, the rule has its origin in
considerations of public policy, which require that there should be a term set to
litigation and that an accused or a defendant should not be twice harassed in respect
of the same cause.

[20] In Evins v Shield Insurance [1980] 2 All SA 40 (A);1980 (2) SA 814 (AD), this
Court restated the once and for all rule as enunciated in Custom Credit as follows(at
835B-D):
‘[The once and for all rule] is a well-entrenched rule. Its purpose is to prevent a multiplicity of
actions based upon a single cause of action and to ensure that there is an end to litigation.
Closely allied to the "once and for all" rule is the principle of res judicata which establishes that
where a final judgment has been given in a matter by a competent court, then subsequent
litigation between the same parties, or their privies, in regard to the same subject-matter and
based upon the same cause of action is not permissible and, if attempted by one of them, can
be met by the exceptio rei judicatae vel litis finitae. The object of this principle is to prevent the
repetition of lawsuits, the harassment of a defendant by a multiplicity of actions and the
possibility of conflicting decisions. . . Similarly, the defence of lis alibi pendens is designed to
prevent the institution of a second action between the same parties in respect of the same
subject-matter and based upon the same cause of action while another such action is already
pending (see Wolff NO v Solomon, (1898) 15 SC 298).’

[21] The high court was therefore correct in upholding the respondent’s objection
that the claim for malicious prosecution was a duplication of the first claim of unlawful
arrest and detention. In the result, the appeal should be dismissed.

[22] As regards the costs, the appellant has succeeded in her appeal against the
dismissal of the application to condone the late delivery of the application for leave to
appeal, and the respondent was equally successful in relation to the merits of the
appeal. In the circumstances, it will be appropriate not to make any order as to costs.

[23] In the result, the following order is made:
The appeal against the dismissal of the application for condonation for the late
filing of the application for leave to appeal is upheld with no order as to costs.
The order of the high court is set aside and replaced with the following order:
‘(a)
Condonation for the late filing of the application for leave to appeal is granted;
(b)
Leave to appeal is granted.’
The appeal is dismissed with no order as to costs.

________________________
G SALIE-HLOPHE
ACTING JUDGE OF APPEAL

APPEARANCES

For the appellant:

A B Rossouw SC (with M Louw)
Instructed by:

VZLR Attorneys, Pretoria

Honey Attorneys, Bloemfontein

For the respondent:
M S Phaswane
Instructed by:

State Attorney, Pretoria

State Attorney, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
15 June 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this
case and does not form part of the judgments of the Supreme Court of Appeal
Olesitse N O v Minister of Police (470/2021) [2022] ZASCA 90 (15 June 2022)
Today, the Supreme Court of Appeal (SCA) upheld an appeal against the decision of
the Gauteng Division of the High Court, Pretoria (per Davis J) (the high court)
dismissing the appellant’s application for condonation of the late filing of the leave to
appeal against the high court’s judgment and order. Further, the SCA dismissed the
appeal in relation to its merits. No order as to costs was made.

The appellant was Ms Mmabasotho Christinah Olesitse, in her capacity as an
executrix of the estate of her deceased husband, Mr Tebogo Patrick Olesitse (the
deceased). The respondent was the Minister of Police.

The issues before the SCA were whether the high court should have condoned the
lateness of the appellant’s application for leave to appeal, and whether it should
have granted the appellant leave to appeal.

With regard to the application for the late delivery of the application for leave to
appeal, the SCA found as follows. The delay was about six months. The explanation
proffered for the delay was that due to an administrative error on the part of the
appellant’s instructing attorney, the judgment dismissing the appellant’s claim did not
timeously come to his attention. The SCA held that notwithstanding the shortcomings
in the appellant’s attorney’s explanation for the delay, the appellant should not have
suffered as a result of her legal representative’s neglect. The case was important to
her children, who stood to benefit from the deceased estate. The SCA thus held that
the high court should have condoned the late delivery of the application for leave.

With regard to the merits of the appeal, the SCA found as follows. In May 2008, the
deceased, then a police officer stationed at Mafikeng Police Station vehicle
identification section, was arrested by police officers without a warrant of arrest and
detained on a charge of theft and corruption. He was detained at the police station
on 19 May 2008 and released on bail on 29 May 2008. On 17 May 2011, the
charges against him were formally withdrawn when the Director of Public
Prosecutions (the DPP) declined to proceed with prosecution of the charges. On 26
May 2011, the deceased instituted an action against the respondent for damages in
respect of his alleged unlawful arrest and detention, seeking compensation in the

amount of R400 000 for deprivation of freedom, contumeliaand discomfort (the first
action). Ultimately, the deceased was awarded R90 000 damages occasioned by the
unlawful detention. On 12 December 2012, and whilst the first action was still
pending, the deceased instituted a new action for damages for malicious prosecution
(the second action). This second action arose from the same set of facts or events
which gave rise to his claim for unlawful arrest and detention. On 3 March 2020, the
respondent served a notice in which he raised a point of law. In his notice of
objection, the respondent contended that the appellant’s second claim was a
duplication of the first claim.

The SCA found that the once and for all rule was part of our common law and found
application in the case. This was because, while there was a difference between a
claim for malicious prosecution and a claim for unlawful arrest and detention, in the
instant case, that difference paled into insignificance having regard to the fact that
the event that gave rise to the deceased’s claims was the same. The investigations
conducted by the police formed the basis on which the decisions were taken to
arrest and detain, and to prosecute the deceased. In accordance with the once and
for all rule, the deceased should have instituted his claim for all of his damages in
one action, so that the lawfulness or otherwise of the respondent’s employees’
actions, who were involved in taking the challenged decisions, could have been
adjudicated in one action. Moreover, in this case the deceased had had all the facts
on which to formulate his claims when he instituted his first action. He had the facts
to sustain the claims that his arrest and detention was unlawful and that his
prosecution was malicious after the DPP had declined to prosecute him. All that had
already happened when he instituted the first action. There was therefore nothing
that prevented him from instituting his claims in one action.

The SCA thusheld that the high court was correct in upholding the respondent’s
objection that the claim for malicious prosecution was a duplication of the first claim
of unlawful arrest and detention. Accordingly, the appeal was dismissed.

~~~~ends~~~~