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2024
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[2024] ZALCJHB 103
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Maloka v Standard Bank of South Africa Ltd and Others (J140/24) [2024] ZALCJHB 103 (5 March 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: J140/24
In
the matter between:
RAKOKWANE
MALOKA
Applicant
and
STANDARD
BANK OF SOUTH AFRICA LTD
First Respondent
LIBERTY
HOLDINGS
Second Respondent
STANLIB
Third Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Fourth Respondent
Heard:
5 March 2024
Delivered:
5 March 2024
EX TEMPORE
JUDGMENT
PHEHANE,
J
[1]
The
applicant has launched a multiplicity of disputes in various related
matters in different courts against the first and second
respondents.
[1]
[2]
The applicant now approaches this Court on an urgent basis, in
essence,
as far as I can decipher his case, to seek various orders,
in the main, a protection order to prevent harassment by the first
and
second respondents against him. According to the applicant, the
first and second respondents are harassing him in his capacity as
a
witness in several disputes involving the same parties. The applicant
seeks “
a protection order in the form of legal assistance
that comes in the waiver for costs in the imminent hearings under
case number
J423/22 and JR696/21”
launched in this Court,
in respect of an application against him relating to a claim for
security of costs.
[3]
The dispute under case number J423/22 concerns a civil matter and it
is
scheduled for hearing on 7 May 2024. Mr. Thobela for the
first respondent submits that the matter is scheduled for the hearing
of the first respondent’s application for security of costs to
be paid by the applicant, which application is unopposed.
[4]
The application under case number JR696/21 pertains to a review
application.
It would appear that this review application was
archived and the matter is scheduled for hearing on 24 April 2024 to
hear, it
would seem, an application for the reinstatement of the
review application.
[5]
An
application launched in the High Court
[2]
in which the applicant seeks a final protection order and to be
placed under witness protection, is scheduled for hearing on 11
March
2024.
[6]
Annexures “A1” and “A2” to the answering
affidavit
by the second respondent in this present application are
not attached and do not appear in the index of the pleadings bundle.
I
enquired from the applicant why this was the case, and he could not
explain. Annexure “A1” is the minute of the judicial
case
management process presided over by Prinsloo J on 16 November 2023,
pertaining to several processes that the applicant has
instituted in
this Court. Annexure “A2” is the answering affidavit by
the second respondent under case number J423/22,
in which
inter
alia
, the second respondent records the numerous cases launched
by the applicant. Both the first and second respondent submit that
they
have had to incur significant costs defending unmeritorious,
frivolous and vexatious litigation instituted by the applicant in
circumstances where under two judicial management processes in the
High Court and in this Court, the applicant has been warned against
his conduct of pursuing a multiplicity of unmeritorious, related
disputes. An order for the payment of costs that have been made
against him for his conduct have not deterred the applicant –
he persists relentlessly with instituting unmeritorious disputes,
such as the current dispute.
[7]
Mr. Thobela
submits that pursuant to an order dated 15 November 2023 by Senyatsi
J under case number 1994/2021 in the Gauteng Division
of the High
Court, which matter was stayed pending the determination of an
application to compel the applicant to pay security
for costs in
terms of Uniform Rule of Court, Rule 47, and pursuant to an order in
the Gauteng Division of the High Court under
case number 19942/21 per
Du Plessis AJ ordering the applicant to furnish the first respondent
with security in respect of all applications
brought by the applicant
against the first respondent and staying such application/s until
such security is furnished, the applicant,
in total disregard of the
said Court order, launched an urgent application in the High
Court under the same case number on
30 January 2024, in which the
applicant seeks similar relief premised on similar facts as in the
present case before this Court.
[3]
This is a case of history repeating itself although in a very
short space of time. The applicant confirms that he is well
aware
that in the judicial case management meeting presided over by
Prinsloo J, he was informed that he faces a jurisdictional
challenge
in his dispute under case number J423/22 and is exposed to a costs
order and he is aware that he ought to file opposing
papers in an
application that has since been launched by the first respondent for
him to pay security for costs, but he nonetheless,
failed to deliver
an answering affidavit and elected to file this urgent application to
“absolve” him from paying security
for costs.
[4]
There is no clearer descriptor for abuse of Court process.
[8]
It would
appear that the “trigger” for approaching this Court on
an urgent basis, is that photographs were taken of
the applicant’s
vehicle on 29 January 2024. The second respondent avers that this
allegation by the applicant regarding his
vehicle being photographed
is due to the applicant being apprehensive that the respondent may
execute against his vehicle to defray
the costs already granted
against the applicant in previous litigation.
[5]
Preliminary
points
[9]
The first respondent raises two preliminary points.
[10]
The first
is this Court lacks jurisdiction to adjudicate the applicant’s
claim on the basis that there has at no point, existed
an employment
relationship between the parties and that the claims by the applicant
arise from the banking relationship between
the parties. In addition,
the first respondent avers that this Court lacks jurisdiction to
adjudicate the applicant’s claim
it is premised on the
provisions of the Protection From Harassment Act
[6]
(the Harassment Act).
[11]
The second is the applicant has failed to make out a case for urgency
and on this basis
the application ought not to succeed.
[12]
The second respondent raises three preliminary points.
[13]
The first is the same as that raised by the first respondent on
jurisdiction.
[14]
The second is
lis pendens
in view of the three aforesaid
applications brought by the applicant in which are pending before
this Court and the High Court
in respect of the same matters.
[15]
The third preliminary point, is lack of urgency.
[16]
The second respondent contends that the applicant is well aware of
the claim for security
of costs brought against him in the pending
matters following the judicial case management process presided over
by Prinsloo J
on 16 November 2023 and that he has approached this
Court for protection in the form of legal assistance to be absolved
from furnishing
security for costs in these aforesaid matters. In the
circumstances the second respondent contends that the application is
not
urgent and is an abuse of Court process.
[17]
The
applicant brings this application in terms of the provisions of
section 158(1)(a) of the Labour Relations Act
[7]
(LRA), section 50(1)(e) and (h) of the Employment Equity Act,
[8]
section 2 of the Harassment Act and he also places reliance on the
provisions of the Intimidation Act
[9]
and Domestic Violence Act.
[10]
[18]
This Court
is a creature of statute deriving its jurisdiction and power and the
provisions of sections 157 and 158 of the LRA respectively.
This
Court lacks jurisdiction to grant a protection order in terms of the
provisions of the Harassment Act.
[11]
Costs
[19]
The applicant makes much about the incident of a photograph being
taken of his vehicle
on 29 January 2024 as a basis to approach this
Court on an urgent basis and sets out a litany of incidents dating
back to 2019,
that preceded the incident of 29 January 2024 to a
paint picture of harassment against him.
[20]
This application in the main, is brought to absolve the applicant
from the payment of costs
in two matters that already pending before
this Court in which costs are sought against him. The application is
unmeritorious,
is an abuse of Court process and has unnecessarily
clogged up the urgent roll of this Court. The applicant has
been afforded
the opportunity in the Court order per Prinsloo J of 16
November 2023 to file an answering affidavit opposing the application
for
security of costs by 8 December 2023. Instead of doing so, he
files this baseless, convoluted urgent application, which mirrors
his
application in the High Court. This as I have stated, is an
abuse of Court process. The respondents are caused to incur
costs
opposing baseless multiplicity of processes launched in various
Courts.
[21]
As a result of the applicant’s conduct as aforesaid, I exercise
my discretion in
terms of the provisions of section 162(2)(b)(i) of
the LRA to make an order as to the payment of costs as against the
applicant.
In light of the abuse of Court process, punitive
costs are warranted.
[22]
In view of the afore-going, the following order is made:
Order
1.
The preliminary points raised by the first and second respondents on
jurisdiction are upheld.
2.
The second respondent’s preliminary point on
lis pendens
is upheld.
3.
The application is struck off the roll for lack of jurisdiction.
4.
The applicant is to pay the costs of the first and second respondent
on a scale as between attorney and own
client, which costs include
the costs occasioned by the postponement on 21 February 2024.
_______________________
M.
T. M. Phehane
Judge
of the Labour Court of South Africa
[1]
See: second respondent's answering affidavit at para 16 on p 149 and
para 26 and its sub-paragraphs on p 152.
[2]
Details of this application are not pleaded. It is not disputed that
a matter is pending in the High Court launched by the applicant
for
a final protection order in respect of related facts as this present
matter.
[3]
See: supplementary heads of argument by the first respondent.
[4]
See: para 2.3 of the amended notice of motion.
[6]
Act 17 of 2011.
[7]
Act 66 of 1995, as amended.
[8]
Act 55 of 1998.
[9]
Act 72 of 1982.
[10]
Act 116 of 1998.
[11]
The Harassment Act makes provision for which Court has jurisdiction
to grant orders in terms of that Act. This Court is
not such a
Court.