National Sorghum Breweries (Pty) Limited t/a Vivo Africa Breweries v International Liquor Distributors (Pty) Limited

The respondent (International Liquor Distributors) brought two separate actions against the appellant (National Sorghum Breweries). In the first action, the respondent claimed restitution in the form of repayment of the purchase price previously paid after cancellation of a contract. In the second action, the respondent claimed damages arising from the breach of the same contract. The appellant raised the defences of res judicata (exceptio rei judicatae) and the "once and for all" rule, arguing that all claims should have been brought in one action and that the matter had already been finally disposed of.

• Whether the exceptio rei judicatae (plea of res judicata) applied to prevent the second action for damages where a previous action for restitution had been brought
• Whether the requirements for res judicata were satisfied: idem actor, idem reus, eadem res and eadem causa petendi
• Whether the 'once and for all' rule required that claims for restitution and damages arising from the same contract be brought in a single action
• Whether a claim for restitution and a claim for damages constitute the same 'thing' claimed on the same 'ground' or 'cause of action'

The appeal was dismissed with costs. The respondent was entitled to proceed with its separate action for damages despite having previously brought an action for restitution.

A claim for restitution (repayment of purchase price) and a claim for damages arising from the same breach of contract are not the same 'thing' claimed on the same 'ground' or 'cause of action' for purposes of res judicata or the "once and for all" rule. Restitution is a distinct contractual remedy, while damages is a separate claim with different elements of proof including causation and quantum. The requirements for the exceptio rei judicatae (idem actor, idem reus, eadem res and eadem causa petendi) are not satisfied where different remedies are sought even if arising from the same underlying contract and breach. The "once and for all" rule does not require that contractual claims and claims for damages be brought in the same action as they do not arise from one singular cause of action. The entire claim must be compared, not merely common factual elements.

The Court explained that under the Conventional Penalties Act 15 of 1962, a forfeiture clause is correctly seen as a penalty clause (subsection 1 read with section 4), and the amount forfeited may not exceed the prejudice suffered by the creditor (section 3). "Prejudice" has a wide connotation including all harm or hurt suffered. Although a claim for forfeiture arises ex contractu, its essence and function is to compensate the creditor for prejudice (including damage) suffered. Therefore, if a creditor relies on a forfeiture clause in one action, it cannot claim damages in a later action as the "thing" claimed and cause of action are similar. This distinguishes cases involving forfeiture clauses from cases involving separate claims for restitution and damages.

This case is significant in South African civil procedure and contract law as it clarifies the distinction between restitution and damages claims for purposes of res judicata and the "once and for all" rule. It establishes that these are separate remedies with different causes of action that need not be joined in a single action. The judgment also provides important guidance on the operation of the Conventional Penalties Act 15 of 1962, explaining that forfeiture clauses are essentially compensatory in nature and limited to actual prejudice suffered. The case demonstrates that the mere presence of common factual elements (the same contract and breach) does not mean claims are based on the same cause of action - the entire nature of each claim must be examined.