Janse van Rensburg NO v Steenkamp and Others

The appellants were liquidators of entities used to operate the Krion investment scheme, which was insolvent and unlawful. After earlier litigation in Fourie v Edeling, where reliance on section 30 of the Insolvency Act failed and limited relief was granted under section 26, the liquidators instituted fresh proceedings against various investors. These later actions relied on sections 26 and/or 29 of the Insolvency Act to set aside dispositions made by the scheme within six months prior to liquidation. The respondents raised special pleas of res judicata, issue estoppel, lis alibi pendens, election, and the ‘once and for all’ rule, arguing that the Fourie judgment barred further reliance on sections 26 or 29. The High Court upheld these defences and dismissed the liquidators’ claims, prompting appeals to the Supreme Court of Appeal.

The appeals in case numbers 237/2008 and 467/2008 succeeded. The orders of the courts a quo were set aside and substituted with orders granting the declaratory relief sought and dismissing the special pleas of res judicata and lis alibi pendens. Appropriate costs orders were made, including costs of two counsel where applicable.

The case clarifies the limits of res judicata, issue estoppel and the ‘once and for all’ rule in South African law, particularly in insolvency proceedings. It confirms that different statutory remedies under the Insolvency Act constitute distinct causes of action and may be pursued in separate proceedings, promoting fairness and flexibility in complex liquidation litigation.