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Liberty group limited v. K and d telemarketing - (20 Apr 2020)

Application to reopen a case under same case number on same pleadings in order to thwart prescription is not permissible


The central issue in present appeal is whether, after an order of absolution from the instance at the end of a trial, the Appellant, Liberty Group Limited t/a Liberty Life (Liberty), was entitled to reopen its case, to pursue its original claim on the same pleadings, in an attempt to thwart a plea of prescription. The Gauteng Division of the High Court, dismissed the appellant's application for leave to reopen its case.

In June 2009, the Appellant and first Respondent, K and D Telemarketing, entered into a written commission agreement in terms of which the latter would act as an independent intermediary to canvas insurance contracts on the Appellant's behalf. In 2010, Liberty issued summons against the Respondents and claimed R 515 964.95, being the commission paid to the first respondent on the basis that the insurance policies registered by the first Respondent had lapsed. In terms of the commission agreement, the first Respondent was liable to refund the appellant the commission paid. The second and third Respondents were sued as sureties.

The trial was conducted in April 2015. Two witnesses testified in support of Liberty’s case. After their testimony Liberty closed its case. Thereupon the Respondents applied for absolution from the instance. That application was refused. The respondents proceeded to lead the evidence of one witness and thereafter closed their case. Judgment was reserved and delivered on 4 September 2015, absolving the respondents from the instance with costs. The trial court found that the Appellant had not presented sufficient evidence to prove that its claim was correctly calculated. In short, the court held that quantum was not proved.

The Court below noted that, there was no doubt that it was competent for a Plaintiff to reopen its case after absolution was granted at the end of the defendant’s case. It is clear that in such an instance, a defendant cannot raise a plea of res judicata. In terms of chronology, the court below recorded that Liberty had instituted action against the defendants in 2010, had absolution awarded against it in 2015 and did not appeal the order of absolution. It was only in 2017 that Liberty sought the leave of the court below to reopen its case.

The dictum from Steytler v Fitzgerald makes it clear that it is established practise that a decision of absolution from the instance in a trial has the effect of a definitive sentence. Simply put, a decision on the sufficiency of evidence led in that suit, by way of an order of absolution from the instance, has a definitive effect and is susceptible to appeal. The Court is functus officio and has no power or jurisdiction to hear any further evidence in relation thereto.

Liberty had its day in Court. It provided insufficient evidence to sustain its case is entirely its own fault. There is no systemic failure here. Finally, there is no justification for the punitive costs order sought by the respondents. The appeal is dismissed with costs.


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