Cassiem v Government Employees Medical Scheme

Prescribed minimum benefits claimed again and high court decided that the ‘common thread that permeated through these various proceedings, is the contention by the applicants that the first applicant is entitled to payment in full, from the respondent of her claims for dialysis services rendered to members of the respondent and for equipment hire connected therewith, irrespective of what she charges. This is the core dispute between the parties. This is precisely the very dispute which is the issue that needs to be determined in the action proceedings’.


Prescribed minimum benefits claimed and disputed and high court refused urgent application for money judgment despite earlier failed similar proceedings.


(9619/2020) [2021] ZAWCHC 44 (15 March 2021)


Refused application with costs on attorney client scale.


Wille J (Cloete J and Kusevitsky J concurring)

Heard: 26th of February 2021
Delivered: 15th of March 2021


“[14] Issue estoppel developed precisely because requiring sameness between the two causes of action allows parties to re-litigate the same issue by garbing these up in different causes of action. The authorities not to apply issue estoppel for reasons of justice and equity need to be evaluated with reference to the Henderson principle. This principle provides, inter alia, that when a given matter becomes a subject of litigation, the following approach falls to be adopted:

‘ the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case’

[15] This doctrine has been fully assimilated into our law. The doctrine applies equally to pure claims of res judicata and to claims based on issue estoppel. When the applicants launched their first application, it must be so that they were required to put forward their entire case. Further, and most importantly, the applicants elected to persist with their first application, despite the fact that there was seemingly no urgent need for the relief, at that stage.”

Quotations from judgment

Note: Footnotes omitted and emphasis added


Court summary