The doctrine of res judicata is a Latin phrase which means “a matter already judged” and is a South African common law principle rooted in considerations of finality, legal certainty and the efficient administration of justice. Res judicata is a fundamental legal principle which provides that once a court has given its final judgment on a dispute between the same parties under the same cause of action wherein the same relief is sought, then the matter cannot be litigated on again. The principle of res judicata protects litigants from being vexed twice by the same cause to avoid injustice and unfairness incorporating the maxim of nemo bis vexari pro eadem causa, meaning no person should be vexed or harassed twice for the same cause.

Res judicata is a legal defence raised by a defendant where it is facing a re-trial of the same cause of action. Importantly, res judicata applies to judgments that are final in effect and given by a competent court. Accordingly, judicial decisions which are interlocutory, provisional or procedural in nature will not generally support a complete defence of res judicata.

The Supreme Court of Appeal (SCA) in the matter of Newnet Property v The Road Accident Fund and Another [2026] ZASCA 35 recently revisited the application of res judicata in enforcement proceedings and provided clarity on the question of whether proceedings to enforce compliance with a court order, as a result of non-compliance, are barred by res judicata or constitute a separate cause of action.

At the outset, it is important to note that once a court order is granted in the High Court for a judgment debt, the successful party can issue a writ of execution to attach the defendant’s movable assets to be sold in execution to extinguish the judgment debt. However, in this matter, the defendant (being the Road Accident Fund (RAF)) acted to frustrate this process interfering with the functioning, dignity or effectiveness of the courts, which left Newnet Property (Pty) Ltd t/a Sunshine Hospital (Newnet) with no other option than to seek the court’s further intervention.

Facts

Newnet operated a private hospital that treated patients injured in motor vehicle accidents, many of whom were referred by the RAF or state hospitals. Newnet invoiced the RAF for services rendered, including on “Requested Not Yet Paid” (RNYP) claims, which were for invoices that had been audited and approved by the RAF and due for payment. From around 2020, the RAF increasingly failed to pay Newnet, leading to a series of urgent applications and court orders compelling payment. Despite multiple final judgments being granted in Newnet’s favour (many by consent or default), the RAF repeatedly failed to comply, leaving substantial judgment debts unpaid.

As a result of the RAF’s persistent non payment, Newnet experienced severe financial distress and was forced to close the hospital in April 2023, retrench staff and transfer critically ill patients, before reopening later that year following limited payments by the RAF. By mid 2024, the RAF still owed Newnet over R92 million under existing judgments and had stopped providing updated RNYP lists or adjudicating new accounts.

Newnet made several attempts to execute against the RAF’s movable assets and to attach funds through third parties. Newnet’s attempts to execute were actively frustrated by the RAF, including instances where the RAF enlisted the assistance of the South African Police Service to prevent the removal of attached assets by the Sheriff. The RAF also publicly announced its intention to frustrate judicial attachment processes by buying back its attached goods, instead of effecting payment of the judgment debts.

In June 2024, Newnet launched a further urgent application seeking enforcement of the outstanding judgment debts, updated RNYP lists, time bound adjudication and payment of accounts, as well as a mandamus directing the RAF’s CEO to ensure compliance with the court order. The High Court dismissed this application on the basis that the relief sought was res judicata and that Newnet had failed to show that it had executed on the judgments awarded against the RAF. Newnet accordingly appealed the High Court’s judgment in the SCA.

Finding

The SCA was tasked with evaluating whether seeking the enforcement of a court order was barred by res judicata and whether it constituted a separate cause of action. The SCA found that the High Court had erred in its ruling and that the relief sought by Newnet, to enforce the court orders for payment, was not res judicata. The SCA reasoned that Newnet was not seeking a new judgment on the same judgment debt. Instead, the true intention of Newnet’s urgent application was to enforce the existing court order in circumstances where the RAF had failed to comply therewith and frustrated Newnet’s attempts to enforce the court order, which the SCA held constituted a separate cause of action. Further, the SCA held that the High Court’s findings that Newnet had failed to show that it had executed on its judgments against the RAF failed to take into the account the various steps that the RAF had taken to frustrate and obstruct the execution of the court order granted against it, which conduct undermined the rule of law in South Africa.

This judgment by the SCA prevents parties from using the principle of res judicata as a malevolent shield to justify non-compliance with court orders and portrays the strength of the South African judiciary to prevent the erosion of the rule of law in our country.