Claim Your Legal Remedy "Once And For All" Or Forever Hold Your Peace?

• Published date: 24 September 2020
• Law Firm: Schoemanlaw Inc.
• Author: Schoemanlaw Inc.

Introduction

Brett N.O and Others v Kushner (2020) ZAECGHC 86 ("the case") concerns an appeal from the Port Elizabeth Regional Court ("the trial court") to the High Court of South Africa, Eastern Cape Division, Grahamstown and delineates the application of the "once and for all" rule in our law.

The rule, derived from English law, requires that all claims generated by the same cause of action, be instituted in one action. The rule cannot bring about that contractual claims and claims for damages must be brought in the same action.

Facts of the matter

The parties to the case are the trustees, acting on behalf of the Alec Brett Property Trust ("the trustees"), and one Mr Kushner. The trust and Mr Kushner concluded a written contract of lease ("the agreement") in respect of premises situated in Port Elizabeth ("the premises") for the period 1 November 2010 to 31 October 2013. Mr Kushner fell into arrears with his rental payments in terms of the lease and the Alec Brett Property Trust subsequently cancelled the agreement in November 2011.

On 15 February 2012 the trustees sued Mr Kushner, claiming payment of arrear rental ("the first matter"). This matter was...