Three paths to closure: A guide to lis pendens, res judicata, and compromise

In South African labour law, disputes often evolve through multiple forums: conciliation, arbitration, and litigation. When parties attempt to raise or defend claims that have already been addressed elsewhere, legal doctrines such as lis pendens, res judicata, and compromise come into play. These principles serve to protect judicial efficiency, prevent duplicative proceedings, and uphold the finality of settlements.

Understanding the distinctions between these doctrines is essential for legal practitioners, employers, and employees alike.

Legal framework

Res judicata: Finality of judgment

Res judicata is a special plea that prevents a party from re-litigating a dispute that has already been finally adjudicated by a competent court. The doctrine is rooted in the principle that there must be an end to litigation.

• To succeed, a plea of res judicata must establish:
• A final judgment on the merits
• Issued by a competent court
• Between the same parties
• On the same cause of action
• In respect of the same subject matter

This doctrine promotes legal certainty and judicial economy. It does not apply where the prior resolution was not a judgment but a settlement, or where the issues differ materially.

Lis pendens: Pending proceedings

Lis pendens applies where there is pending litigation between the same parties, based on the same cause of action and subject matter. Unlike res judicata, it does not require a final judgment.

The plea of lis pendens is raised to prevent parallel proceedings that could result in conflicting outcomes. It requires proof of:

• Pending litigation
• Between the same parties
• On the same cause of action
• In respect of the same subject matter

If successful, the plea may result in the suspension or dismissal of the later proceedings until the earlier matter is resolved.

Compromise: Contractual settlement

A compromise is a contract that settles a dispute by agreement between the parties. It extinguishes the original cause of action and replaces it with new obligations. Unlike res judicata or lis pendens, compromise is not a procedural bar but a substantive defence.

To rely on compromise, a party must show:

• A valid agreement
• Intention to settle the dispute
• Clear identification of the claims being resolved

The scope of a compromise is determined by the terms of the agreement and the nature of the dispute it was intended to settle. Courts may apply the parole evidence rule, which generally prohibits external evidence from contradicting a written agreement, but may allow such evidence to clarify the subject matter of the compromise.

Key takeaways

For employers

• Use precise language in settlement agreements: Clearly define which claims are being settled to avoid future litigation.
• Do not conflate legal doctrines: Mischaracterising a compromise as res judicata or lis pendens may weaken your defence.
• Monitor ongoing disputes: Ensure that all related claims are addressed in any settlement.

For employees

• Understand what you are settling: Ensure that a compromise does not unintentionally waive other claims.
• Preserve your rights: If you intend to pursue further claims, make this clear in writing.
• Challenge overreach: Courts will scrutinise attempts to use procedural doctrines to block legitimate claims.

For legal practitioners

• Apply the correct doctrine: Each plea has distinct requirements and consequences.
• Draft with clarity: Settlement agreements should unambiguously state which disputes are resolved.
• Prepare for evidentiary scrutiny: Courts may examine the context and content of agreements to determine their scope.

Final thoughts

The doctrines of lis pendens, res judicata, and compromise serve different but complementary roles in dispute resolution. While res judicata and lis pendens are procedural tools to prevent duplicative litigation, compromise is a substantive mechanism to resolve disputes by agreement. Misapplying these principles can lead to unnecessary litigation and adverse cost orders.

Legal certainty depends not only on the resolution of disputes but on the correct application of the rules that govern them.

For advice or more information, please contact Riona Kalua, head of our Labour and Employment team.