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[2012] ZAGPPHC 203
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Madekurozwa v University of Pretoria (34337/2011) [2012] ZAGPPHC 203 (6 September 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
Number: 34337/2011
Date:10/09/2012
In
the matter between:
MARY-CATHERINE
MADEKUROZWA
.................................................................
Plaintiff
and
UNIVERSITY
OF
PRETORIA
.................................................................................
Defendant
and
PROF
SOLEY
JT
.....................................................................................................
First
Third Party
DR
VAN STADEN
SL
.............................................................................................
Second
Third Party
PROF.
BOOTH
KK
..................................................................................................
Third
Third Party
JUDGMENT
JANSE
VAN NIEUWENHUIZEN AJ
Introduction
[1]
On 17 June 2011 the plaintiff, a professor in the fulltime employment
of the defendant, issued summons for an order declaring
the
defendant's institution of disciplinary action against her to be
unlawful, invalid and in contravention of section 3 of the
Protected
Disclosures Act, Act 26 of 2000 ("the Act").
[2]
The relief claimed, emanates from the defendant's decision on 21
April 2011, to institute disciplinary proceedings against the
plaintiff. The defendant's decision is based on a letter written by
the plaintiff on 11 September 2009, which letter was, according
to
the averments contained in the plaintiff's particulars of claim, sent
to the defendant's Transformation Committee. The plaintiff
alleges in
the particulars of claim that the information in the letter shows or
tends to show unfair discrimination as contemplated
in the Promotion
of Equality and Prevention of Unfair Discrimination Act, Act 4 of
2000 and as a result falls within the ambit
and scope of the
protection afforded by the Act.
[3]
The defendant defended the action and served its plea on 15 June
2011. On 18 May 2012 and with leave of this court, the defendant
served a Notice to Third Parties, in terms of the provisions of Rule
13 of the Uniform Rules of Court, on the third parties.
[4]
The Third Party Notice is premised on an action instituted in the
Labour Court under case number J579/2011 by the third parties
against
the defendant (as first respondent) and the plaintiff (as second
respondent). The following relief is, inter alia, claimed
by the
defendant against the third parties:
'15.1
An order declaring that the Plaintiff's letter of 11 September 2009
is a "protected disclosure' for which it would be
unlawful for
the Defendant to take disciplinary steps against the Plaintiff;
15.2
An order declaring that the Plaintiff made the allegations contained
in her aforementioned letter, including the allegations
of racism
against the Third Parties, in good faith and in the reasonable belief
of their truthfulness;
15.3
An order granting such further or alternative relief as may be found
appropriate;'
[5]
The third parties filed a plea to PLAINTIFF'S AND DEFENDANTS' (sic)
CLAIMS' and raised, inter alia, a special plea of lis alibi
pendens.
The plea is premised on the facts and allegations that form the
subject matter of the third parties' claim against the
plaintiff and
the defendant in the Labour Court.
[6]
The third parties pray for the following relief:
'Accordingly,
the Plaintiffs claim against the Defendant should be stayed pending
the outcome of the Third Parties' claim against
the Plaintiff and the
Defendant, alternatively, should be transferred by the High Court to
the Labour Court to be heard together
with the Third Parties' claim
against the Defendant under Labour Court case number J579/201V.
[7]
At a pre-trial conference held on 17 August 2012, the parties agreed
that only the special plea will be argued on the trail
date and that
the action will be postponed sine die with no order as to costs.
Lis
alibi pendens
[8]
The requisites of a plea of lis alibi pendens are trite, and are
conveniently summarised by Harms in Amler's Precedents of Pleadings,
Seventh Edition, 263 as follows:
7.1
pending litigation;
7.2
between the same parties;
7.3
based on the same cause of action;
7.4
in respect of the same subject matter.'
[9]
It is evident from the third parties' Statement of Claim filed in the
Labour Court that there is pending litigation between
the third
parties and the plaintiff.
[10]
The plaintiff did, however, not cite the third parties as defendants
in this action. The third parties were joined by the defendant
and in
terms of the provisions of Rule 13(7) of the Uniform Rules of Court,
the defendant becomes the "plaintiff' and the
third parties the
"defendants".
[11]
In the premises, no lis exists between the plaintiff and the third
parties. (See Shield Insurance Co Ltd v Zervoudakis
1967 (4) SA 735
(E); Swart v Scottish Union & National Insurance Co Ltd
1971 (1)
SA 384
(W); Geduld Lands Ltd v Uys
1980 (3) SA 335
(T).
[12]
Mr. Mostert, who appeared on behalf of the third parties, contended
that the finding in this respect in the cases referred
to above, has
been overruled by the judgment of the Supreme Court of Appeal in MCC
Contracts (Pty) Ld v Coertzen and Others
1998 (4) SA 1046
(SCA). The
passage on which Mr. Mostert relies in support of this contention
appears at page 1049 I -1050 B and reads as follows:
"However,
in reaching it the Judge reasoned (at 169b~c) that because, on
certain authority, there is no lis between a plaintiff
and a third
party 'two "separate actions" each with its own set of
pleadings came into existence - one between the plaintiff
and the
defendant and one between the latter and the third party".
With
that analysis, with respect, I do not agree. The Rule was designed to
avoid a multiplicity of actions and to consolidate, in
specified
circumstances, a multiplicity of issues between a number of
litigants, all in a single action. It reads accordingly.
Whether or
not a lis does arise between the plaintiff and a third party (and
conceivably one could, if regard is had to subrules
(7) and (8) and
even if separation of issues occurs pursuant to subrule (9), the Rule
provides for only one action and that action
is necessarily the one
began by the plaintiff."
[13]
I do not agree with Mr. Mostert's interpretation of the passage.
Firstly, the passage criticises the court a quo's finding
that a
joinder in terms of Rule 13 creates two separate actions. With this
finding Howie JA did not agree. Secondly, the provisions
of Subrules
(7), (8) and (9) referred to by Howie JA, do not apply to the
pleadings in the present matter.
[14]
Even if I am wrong in this regard, I am of the view that the
litigation in the Labour Court and the litigation in the present
matter is not based on the same cause of action.
[15]
The plaintiff is cited in the Labour Court action as follows:
'
The Second Respondent has been joined to these proceedings as a
result of her direct and substantial interest and in consequence
of
the fact that the Orders sought may affect her rights.
[16]
The pleadings in the Labour Court does not contain any cause of
action against the plaintiff nor is any relief sought against
the
plaintiff.
[17]
Although the third parties' Statement of Case filed in the Labour
Court relies, inter alia, on the contents of the letter written
by
the plaintiff on 11 September 2009, the letter is merely referred to
in order to sustain a cause of action against the defendant.
[18]
Mr Mostert, however, argued that a broader test should be applied in
determining the causes of action between the plaintiff
and the third
parties in the two actions. He argued that all facts and allegations
contained in the third parties' Statement of
Case should be taken
into account in determining whether the causes of action are the
same.
[19]
In essence, if I understood Mr. Mostert's argument correctly, he
submitted that the same subject matter will need to be determined
by
both courts. In support of this contention, Mr. Mostert argued that
the third parties' Labour Court claim against the plaintiff
and the
defendant with respect to the status of the letter dated 11 September
2009 is inter alia based on substantially the same
question of
whether or not the defendant is or was legally obliged to institute
disciplinary proceedings against the plaintiff.
[20]
I do not agree with this argument. The subject matter test is only
considered once it is established that both cases are based
on the
same cause of action between the same parties. (See Williams v Snub
1976 (4) SA 567
(C)).
[21]
In the premises, the third parties' special plea of lis alibi pendens
cannot succeed.
Costs
[22]
Mr. Mpofu, who appeared on behalf of the plaintiff, requested that a
punitive costs order on an attorney-and-client scale be
granted
against the third parties. Mr. Mpofu argued that such an order is
justified in view of the third parties' conduct in the
Labour Court
and more specifically by virtue of the fact that certain allegations
made by them in their answering affidavit in
respect of a pending
application to stay the Labour Court Proceedings, are in direct
conflict to the allegations contained in their
special plea.
[23]
I am, however, not convinced that the reasons advanced by Mr. Mpofu
justify a punitive cost order.
[24]
The following order is made:
1.
The Third Parties' special plea of lis alibi pendens is dismissed;
2.The
Third Parties are ordered to pay the plaintiff's and the defendant's
costs, which costs shall include the costs of Senior
Counsel;
3.
The action is postponed sine die.
K
N. JANSE VAN NIEUWENHUIZEN
ACTING
JUDGE OF THE HIGH COURT
CASE
NUMBER: 34337/11
DATE
OF HEARING: 27 August 2012
ON
BEHALF OF THE PLAINTIFF: ADV. D. MPOFU
INSTRUCTED
BY: Cliffe Dekker Hofmeyr
ON
BEHALF OF THE DEFENDANT: ADV. A.J. FREUND SC
INSTRUCTED
BY: Anton Bakker Attorneys
ON
BEHALF OF THE 1st, 2nd AND 3rd THIRD PARTIES: ADV. M. MOSTERT
INSTRUCTED
BY: Du Toit Attorneys & Labour Law Practitioners
DATE
OF JUDGMENT: 10 September 2012