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2024
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[2024] ZAECBHC 21
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Lumkwana v Member of Executive Council Department of Health, Eastern Cape Province and Another (362/2022) [2024] ZAECBHC 21 (27 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO.:
362/2022
Reportable:
YES/NO
In
the matter between:
TULANI
LUMKWANA
Plaintiff
and
MEMBER
OF EXECUTIVE COUNCIL
DEPARTMENT
OF HEALTH,
EASTERN
CAPE PROVINCE
1
st
Defendant
MEMBER
OF EXECUTIVE COUNCIL
DEPARTMENT
OF PUBLIC WORKS,
EASTERN
CAPE PROVINCE
2
nd
Defendant
JUDGMENT
Cengani-Mbakaza
AJ
The
background
[1]
This matter raises two special pleas: misjoinder and the ‘once
and for all rule’.
These
special pleas have arisen in the following manner: On 01 October
2018, the plaintiff was employed by the second defendant.
In October
2021, she applied for a transfer to work for the first defendant,
which was approved on 15 October 2021. The plaintiff
assumed her
duties with the first defendant on 21 November 2021. However, the
first defendant failed to meet its obligations under
the agreement
and failed to pay the plaintiff’s salary.
[2]
On 06 January
2022, the plaintiff approached the court on an urgent basis seeking
an order under case number 01/2022,
inter
alia,
compelling the first defendant to pay her outstanding salary. In
support of her application, she alleged that she had not paid
her
medical aid policy, and the monthly instalments of her motor vehicle
and was unable to make household groceries due to the
non-payment of
her salary. The court granted the order and subsequently, the
plaintiff’s salary was partially paid in March
2022.
[3]
Pursuant to the granting of the urgent application by the court, the
plaintiff instituted
action proceedings under case number 362/2022.
This relates to the recovery of the damages allegedly incurred due to
the defendant’s
breach of contract. As a result of the alleged
conduct by both defendants, she could not meet her financial
obligations:
she failed to pay her medical aid, life cover
policies, the motor finance insurance and the home-loan bond.
[4]
She alleges that as a result of the defendants’ conduct her
debts incurred interests
and her credit score was adversely affected.
She had to instruct attorneys to institute legal proceedings to
compel the defendants
to pay her salary which led to her incurring
additional expenses. Furthermore, her dignity was impaired as she had
to borrow money
from friends to compensate for transport fees while
going to work. Additionally, her life cover policy had lapsed.
Therefore, the
defendants’ conduct, she contends, was both
wrongful and unlawful. In a nutshell, the plaintiff holds the
defendants liable
for payment of losses incurred as a result of the
breach and/or wrongful and unlawful activities.
The
parties’ legal submissions
[5]
Ms Mqobi, counsel for the defendants argues that there was no
contract of employment
between the second defendant and the plaintiff
after 31 October 2021. Therefore, there is no factual or legal basis
to cite the
second defendant in the plaintiff’s claim for the
recovery of the damages.
[6]
Regarding the ‘once and for all rule’, counsel contends
that when the
plaintiff filed an urgent application under case number
01/2022, she ought to have in accordance with the ‘once and for
all
rule’ claimed damages already sustained or expected in
future in so far, as it is based on a single cause of action. The
plaintiff’s conduct in pursuing the instant action separately
from the initial application amounts to the harassment of the
defendants through a multiplicity of actions arising from the same
cause of action and is a duplication of the first application
and
this constitutes abuse of court process, she argues.
[7]
To oppose the special pleas, Mr Mdunyelwa on behalf of the plaintiff,
argues that
while the facts pleaded in case numbers 01/2022 and
362/2022 are identical, the cause of action in the two cases remain
distinct.
Regarding misjoinder, counsel contends that the plaintiff
was informed by the relevant authorities of the first defendant that
her salary was not paid due to the second defendant’s refusal
to sign certain documents, allegedly because the plaintiff owed
the
second defendant an amount of R53 618. The second defendant’s
contention was that the said amount was due and payable
because the
plaintiff had taken unpaid leave during her employment with the
second defendant. Therefore, the second defendant is
an interested
party in the action proceedings brought by the plaintiff under case
number 362/2022, so he argues.
Issues
for determination
[8]
The first
point of determination is whether the second defendant is an
interested party in the legal proceedings brought by the
plaintiff
under case number 362/2022. The second is whether there is a single
cause of action in respect of case numbers 01/2022
and 362/2022
essentially whether the ‘once and for all rule’ applies.
Misjoinder
[9]
According to Uniform Rule 10(3) of the Uniform Rules of Court,
several defendants
may be sued in a single action when the same key
issues of law of fact are in dispute. This means that the defendants
may be sued
together, either as a group, individually or in the
alternative scenarios to efficiently resolve the core key issues that
would
arise in each separate action if the defendants were sued
separately. According to
the
law,
multiple defendants may be joined in a single action based on the
principles of convenience, equity, cost savings and avoidance
of
multiplicity actions.
[10]
In the matter under consideration, the special plea of misjoinder
raised by the second defendant
warrants no prolonged discussion.
It is common cause that there was no contract of employment between
the plaintiff and the
second defendant after 31 October 2021.
Furthermore, the plaintiff’s claim regarding the second
defendant’s role in
halting the payment of her salary,based on
information from the relevant authorities appears to hold no
probative weight for instituting
an action or establishing a proper
cause of action against the second defendant. Therefore, the second
defendant’s special
plea of misjoinder stands to succeed.
The
‘once and for all rule’
[11]
It is settled that all claims generated by or from the same cause of
action must be instituted
in one action. The case of
Custom
Credit Corporation v Shembe
[1]
is usually referred to as a
locus
classicus
on the rule. According to this landmark ruling, the ‘once and
for all rule’ mandates that a party must consolidate
all
related claims into a single action. Regard must be given to the
underlying rationale and purpose of the rule namely: to prevent
a
multitude of legal actions, to avoid potentially conflicting
judgments, and to ensure that the defendant is not subjected to
repeated legal proceedings, thereby preventing harassment and
unnecessary litigation.
[12]
The Constitutional Court had ruled that the ultimate enquiry is
whether the two actions, as a
matter of law, are based on two
different causes of action, and whether those causes of action have
different elements. Referring
to the case of
Steven
v De Wet
[2]
,
the Constitutional Court reiterated that a cause of action is not
determined by how a party frames his or her particulars of claim,
but
by the constitutive elements of a particular cause of action.
[3]
Even if there are imperfections in the pleadings, once the court is
satisfied that there are two causes of action with distinct
elements,
that should be the end of the enquiry and the respondent’s
objection should be dismissed on that basis.
[4]
[13]
Applying the above legal principles to the facts of this matter, I
find it apposite to consider
a broader spectrum of the two cases
brought by the plaintiff in the case under consideration. It has been
established that the
first defendant failed to pay the plaintiff’s
salary in breach of the contract of employment. The plaintiff brought
an application
in motion proceedings on an urgent basis. Therefore,
one concludes that case no 01/2022 was based on the enforcement of an
agreement
between the plaintiff and the first defendant.
[14]
Subsequent to that, the first defendant partially complied with the
court order but failed to
effect other payments that were due to the
plaintiff. This called for an application for contempt of court which
was later overtaken
by events. It is no surprise that the plaintiff
brought the action proceedings under a different case number for
recovery of the
damages suffered as a result of non-payment of her
salary.
[15]
I find that there are two causes of action with distinct elements and
therefore the special plea
of the ‘once-for-all rule’
raised by the defendants in this matter does not apply.
Costs
[16]
The general principle is that costs follow the outcome of the case.
The court has discretionary
power to determine costs, and in this
case, where both parties have had both successes and failures, I
believe it is appropriate
to make no order as to costs, as neither
party can be said to have been entirely successful or unsuccessful.
Order
[17]
The following order shall issue:
1.
The special plea of misjoinder is upheld.
2.
The special plea of the ‘once and for all rule’ is
dismissed.
3.
There shall be no order as to costs.
N
CENGANI-MBAKAZA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
APPEARANCES:
Counsel
for the Plaintiff
:
Adv
N
Mdunyelwa
Instructed
by
:
Y Tsipa Attorneys
c/o
Bacela Bukula & Associates
King
William’s Town
Counsel
for the Defendants
:
Adv N Mqobi
Instructed
by
:
State Attorney
East
London
Heard
on
:
18 June 2024
Judgment
Delivered on
:
27 August 2024
[1]
1972 (3) SA 462
(A). In this matter Van Winsen AJA held, ‘
The
law requires a party with a single cause of action to claim in one
and the same action whatever remedies the law accords him
upon such
cause. This is the ratio under the rule that, if a cause of action
has previously been finally litigated between the
parties, then a
subsequent attempt by the one to proceed against the other on the
same cause for the same relief can be met by
an exception
rei
judicatae vel litis finitae
.
The reason for this rule is given by Voet 44.2.1 (Gane’s
translation, volume 6, p553) as being ‘to prevent inextricable
difficulties arising from discordant or perhaps mutually
contradictory decisions due to the same suit being aired more than
once in the different judicial proceedings’The rule has its
origin in consideration of public policy which requires that
there
should be a term set to litigation and that an accused or defendant
should not be twice harassed upon the same cause’
[2]
1920 AD 279
at 289.
[3]
Mmabasotho Christinah Olesitse N.O v Minister of Police (CCT 183/22
[2023] ZACC 35
;
2024 (2) BCLR 238
(CC) (14 November 2023) at Para
58.
[4]
Mmabasotho’s case supra footnote 2 at Para 71.