In November 2023 the Constitutional Court refused to apply the common law “once and for all” rule to matters in which there are two or more causes of action arising out of the same facts. The “once and for all” rule provides that where a party claims for damages arising from a single cause of action, that party must claim damages only once for all damage already sustained or expected in future.  The intention of the rule is to avoid a multiplicity of actions based on the same subject matter.

The plaintiff (now deceased) was arrested in 2008 by a police officer without a warrant and was detained for 10 days on charges of theft and corruption. He was then released on bail and charges were formally dropped 3 years later in May 2011.

The deceased instituted high court proceedings against the Minister of Police for damages for wrongful arrest and detention. One year later, and while the first action for wrongful arrest and detention was still pending, the deceased instituted a second action in which he claimed damages for malicious prosecution based on substantially the same set of facts. The deceased was eventually awarded damages in the first action for his unlawful detention (although the court found that his claim for wrongful arrest had prescribed, having arisen more than 3 years before summons was issued).

In response to the deceased’s second action (for malicious prosecution), the Minister of Police argued that this amounted to a duplication of the first action and contravened the “once and for all” rule. The deceased ought to have brought one action covering both claims for wrongful arrest and detention and for malicious prosecution. 

The Supreme Court of Appeal held that malicious prosecution and unlawful arrest and detention are two different and distinct causes of action. However, it held that on the facts of this case, arising as they did from the same set of facts, those differences were insignificant to allow two different actions. The SCA confirmed that the deceased could not pursue the second action as doing so contravened the “once and for all” rule and dismissed the appeal. 

The matter was then appealed to the Constitutional Court. 

The Constitutional Court held that the lower courts had incorrectly focused on how similarly the two claims were pleaded and that they arose out of the same facts. As a matter of law, the deceased had two distinct causes of action. The deceased’s first action was based on wrongful arrest and detention and the second action, malicious prosecution. Although wrongful arrest and malicious prosecution both lead to the deprivation of personal liberty rights, they require different elements to be proven. Wrongful arrest does not require a party to prove that prosecution was instigated by the defendant and, similarly, malicious prosecution does not require a party to prove detention.

Once both lower courts accepted that there were two causes of action, that should have been the end of the enquiry. What the Courts did was to apply the “once and for all” rule to the facts to which the rule did not apply. This amounted to a development of the common law in a manner which infringed on litigants’ rights, including the right of access to court. The Court accordingly granted the appeal and allowed the second action to proceed.

Mmabasotho Christinah Olesitse N.O. v Minister of Police (CCT 183/22) [2023] ZACC 35 (14 November 2023) (