Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union and Others (JA114/97) [1998] ZALAC 23 (17 August 1998)

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[1998] ZALAC 23
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Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union and Others (JA114/97) [1998] ZALAC 23; (1999) 20 ILJ 82 (LAC) (17 August 1998)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
JOHANNESBURG
Case Number:
JA 114/97
In
the matter between
FIDELITY
GUARDS HOLDINGS (PTY) LTD
Appellant
and
THE
PROFESSIONAL TRANSPORT
WORKERS
UNION AND OTHERS
First
and further Respondents
JUDGMENT
[1] On
10 September 1997 the appellant launched an urgent application in the
Labour Court in which it sought a declaratory order that
the strike
called by the first respondent was an unprotected strike and an
interdict. One of the grounds on which it was contended
that the
strike was unprotected was that in terms of s 65(3)(a) of the Labour
Relations Act, 66 of 1995 (‘the 1995 Act’) the
issue in dispute
between the parties was regulated by a collective agreement. Revelas
J dismissed the application. An urgent appeal
was heard by this
Court. The appeal was dismissed on Friday, 26 September 1997. The
judgment is reported as
Fidelity
Guards Holdings (Pty) Ltd v PTWU a.o.
[1997] 9 BLLR 1125
(LAC). This Court found that the strike was
protected.
[2] On
Monday, 29 September, the appellant served an application on the
first respondent which was enrolled for the following day.
The
appellant again sought an interdict and a declaratory order that the
strike was ‘an unprotected strike in that the strike
called by the
first respondent concerns a matter as contemplated by s 65(3)(a) of
the Act, in that the matter/dispute pertaining
to the said strike is
a matter/dispute in respect of which the respondents are already by
the terms of a collective agreement(s),
and are therefore prohibited
from striking concerning the same’. In the founding affidavit the
appellant relied on three collective
agreements:
-‘the first
collective agreement’ which was the constitution for the national
industrial council for the contract security services
industry dated
20 March 1995;
-
the ‘second collective agreement’ which consisted of two
agreements concluded respectively in February 1996 and January 1997
which were made binding as labour orders by promulgation by the
Minister of Labour in terms of s 51A of the Labour Relations Act,
28
of 1956 (‘the 1956 Act’);
-
the ‘third collective agreement’ which was an agreement concluded
between the appellant and the Transport and General Workers’
Union
(‘TGWU’) during June 1996. The first respondent filed a short
answering affidavit in which it raised the defence of res
judicata
(that the matter had already been decided finally by another Court).
[3] The
defence of res judicata was considered by the Labour Court. Basson J
held that the defence of res judicata was sound in regard
to the
second and third collective agreements but that it failed in regard
to the first collective agreement. There is no appeal
by the
appellant against the finding in regard to the second and third
collective agreements.
[4] The
matter was postponed to enable the first respondent to file an
answering affidavit on the merits. Once the papers were in
proper
form, the matter was argued before Landman J, who granted a rule nisi
and an interim interdict. On the return day, Brassey
A J refused to
confirm the rule on the basis that the issue in dispute was not
regulated by the first collective agreement. The
Court subsequently
granted leave to appeal.
[5] Mr
Todd, who appeared for the first respondent, submitted that the
appeal should fail on a number of grounds. The first was the
Basson
J erred in not upholding the defence of res judicata in regard to the
first collective agreement. The pertinent reasoning
of the learned
judge is contained in these passages from the judgment:
‘
The
exceptio
rei judicatae
forms part of
South African common law principles as a weapon or defence in civil
proceedings that has to be raised by plea or replication.
Following
writers such as Voet (
Commentarius
ad Pandectas,
44.2.3) it is
now trite that, to succeed in the defence of
res
judicata
, the defendant in
civil proceedings has to establish that a prior final judgment had
been given in proceedings involving (a) the
same persons; (b) based
on the same relief claimed; and (c) involving the same subject matter
or cause of action (see,
inter
alia
, Hoffmann and Zeffertt
The South African Law of
Evidence
4
th
edition at pages 335
et
seq
).
In
determining the question whether these three requirements of the
defence of
res
judicata
are met in the present matter, the following are relevant. First,
the parties in the present proceedings are exactly the same parties
who were involved in the proceedings in which final judgments have
been given by Revelas J and the Labour Appeal Court in the matters
referred to above. Second, the relief claimed in these prior
proceedings was also the same as the relief claimed...
However,
the third requirement presents problems. Mr Todd argued on behalf of
the respondents that section 65(3)(a)(i) of the Act
is, in effect,
the cause of action in the present matter and, as the question
whether this section brands the strike an unprotected
strike (thereby
entitling the applicant to the relief claimed in terms of section
68(1) of the Act), was already decided in terms
of the prior
judgments referred to above, the defence of
res
judicata
must
succeed...In my view, even though the protected status of the strike
is determined in terms of the provisions of section 65(3)(a)(i)
of
the Act, the question in issue or the cause of action is not section
65(3)(a)(i) as such but it is, in fact, the existence of
a collective
agreement that regulates the issue in dispute. Simply put, such
collective agreement is the very foundation on which
the applicant
bases its claim for a declarator and an interdict because of the fact
that such collective agreement determines the
protected status of the
strike in terms of the provisions of section 65(3)(a)(i), read
together with the provisions of section 67(1)
and 68(1) of the Act
(discussed above). In other words, the existence of such collective
agreement is the cause of action and therefore
the question (or
ground or demand or matter) in issue. It follows that reliance on a
different collective agreement to the one relied
on before will
constitute a new cause of action as the question in issue is whether
this specific collective agreement brands the
strike an unprotected
strike in terms of the above-mentioned provisions of the Act’.
[6] Basson
J thus found that the three requirements of res judicata were met in
so far as the second and third collective agreements
were concerned.
In regard to the first collective agreement, which had
not
been relied upon by the appellant in the application before Revelas
J, Basson J held that that agreement ‘...is “new” in the
sense
that it did not form a cause of action in the prior proceedings
referred to above. In the event, the third requirement for
the res
judicata defence to succeed is not met and the applicant may bring an
application based on this “collective agreement”.’
The
question in this appeal is whether that finding is correct.
[7] The
most oft quoted authority for the requirements of the defence of res
judicata is
Voet,
Commentarius ad Pandectas, 44.2.3
:
‘Under no other circumstances is the exception allowed than where
the concluded litigation is again commenced between the same
parties,
in regard to the same thing, and for the same cause of action, so
much so, that if one of those requisites is wanting, the
exception
fails.’
Bertram
v Wood
10 SC 177
at 181. It is the requirement of ‘the same cause of
action’ which requires further consideration. The cause of action
is the
same whenever the same matter is in issue:
Wolfaardt
v Colonial Government
16 SC 250
at 253. The same issue must have been adjudicated upon.
An issue is a matter of fact or question of law in dispute between
two
or more parties which a court is called upon by the parties to
determine and pronounce upon in its judgment, and is relevant to the
relief sought:
Horowitz
v Brock a o
1988 (2) SA 160
(A) at 179F-H. The rule was explained in
African
Farms and Townships Ltd v Cape Town Municipality
1963 (2) SA 555
(A) at 562D-E as follows: ‘Where, for instance, the
causa
or
quaestio
is ownership, the claimant, if his case is that he has the ownership
through inheritance, would not, according to
Dig
.
44.2.11 para. 5, be instituting a new claim by alleging a donation,
for no matter in what he may have acquired the ownership, his
right
to it would be finally disposed of in the first action. According to
Dig
.
44.2.27, regard must be had to the immediate cause of action, and the
reason why a claimant may think it is good cause, is of no
consequence.’ The reason for the rule is to prevent difficulties
arising from discordant or mutually contradictory decisions due
to
the same action being aired more than once in different judicial
proceedings:
Voet,
44.2.1
.
The object of the rule is that of public policy which requires that
there should be an end to litigation and that a litigant should
not
be harassed twice upon the same cause:
Boshoff
v Union Government
1932 TPD 345
at 350;
Custom
Credit Corporation (Pty) Ltd v Shembe
1972 (3) SA 462
(A) at 472A-E. The ratio underlying the rule is that
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:
Custom
Credit Corporation (Pty) Ltd v Shembe
at 472A;
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 835F-G. The strict common law requirements
for the defence of res judicata should not be taken literally and in
all cases
applied as inflexible rules. There is room for the
adaptation and extension of the rule. Every case has to be decided
on its own
facts:
Kommissaris
van Binnelandse Inkomste v ABSA Bank Bpk
1995 (1) SA 653
(A) at 669F-I.
[8] The
enquiry in this matter is whether the cause of action in the first
application (heard by Revelas J) was the same in the second
application which is the subject matter of this appeal. In both
applications the contention was that the strike was unprotected.

What differed was the basis for that contention. In my view, the
cause of action was nevertheless the same, namely, that the strike
was unprotected for want of compliance with the provisions of the
1995 Act.
[9] A
strike may be unprotected for any number of reasons, for example:
-on procedural
grounds, such as that the issue in dispute has not been referred to
the Commission for Conciliation Mediation and Arbitration
(‘CCMA’),
or that a certificate stating that the dispute remains unresolved has
not been issued, or that a period of thirty days
has not elapsed
since the referral was received by the CCMA, or that 48 hours’
notice of the commencement of the strike was not
given timeously or
in writing ( s 64(1));
-on
the basis that the persons participating in the strike are
disqualified from striking, for example, because they are bound by
a
collective agreement that prohibits a strike in respect of the issue
in dispute or they are bound by an agreement that requires
the issue
in dispute to be referred to arbitration or they are engaged in an
essential service or a maintenance service (s 65(1)(a),
(b) and (d)
respectively);
-or
the issue in dispute is one that a party has the right to refer to
arbitration or to the Labour Court (s 65(1)(c)).
[10] If
an employer in the initial application contends that the strike is
unprotected because of a procedural defect, such as that
the 48 hours
notice has not been given, and fails in its application, can the
employer thereafter approach the Court on another basis,
for example,
that the strikers are bound by a collective agreement that prohibits
a strike in respect of the issue in dispute?
[11] The
answer must be in the negative. In an application for a declaratory
order and an interdict on the basis that a strike is
unprotected, the
employer is obliged to raise
all
its contentions in that application. It is not entitled to litigate
piecemeal with the union and its members. Firstly, it is undesirable
that one member of the Labour Court gives a judgment that a strike in
protected (on one basis) and shortly afterwards another member
of the
same Court gives a different judgment in regard to the same strike on
a different basis - as happened in this matter. Secondly,
parties
should not be required to incur the expense of bringing or resisting
more than one application when the facts are the same
and the law is
known. Thirdly, the consequences of a declaratory order that a
strike is protected are important and far reaching
for the employer,
the trade union and its members employed by the employer: a person
does not commit a delict or a breach of contract
by taking part in a
protected strike (S 67(2)); an employer may not dismiss an employee
for participating in a protected strike (s
67(4)); in the case of an
unprotected strike the Labour Court may grant an interdict to
restrain any person from participating in
the strike (s 68(1)(a) and
may order the payment of compensation for any loss attributable to
the strike (s 68(1)(b)). There should
be certainty in regard to the
rights and obligations of the parties. So, for example, it is
undesirable that employees should embark
on a strike, which is held
to be protected on one basis, thereby placing pressure on their
employer to accede to their demands, and
then, before the strike
bites, the strike is interdicted by the Court because the Court finds
that the strike is unprotected on a
different basis. It is also
important for the employees to know whether, in striking, they enjoy
the protection from dismissal if
the strike is protected.
[12] This
matter illustrates the undesirability of permitting a party to launch
a second application for the same relief - a declaratory
order and
interdict - on the same cause of action - that a strike is
unprotected - on facts which existed at the time the first,
unsuccessful, application was brought:
-for a period of
time the first respondent’s members participated in a strike which
was held by the Labour Court
and
the Labour Appeal Court to be a protected strike;
-the strikers
were entitled to believe that they were immune from dismissal for
striking;
-the
same strike was thereafter interdicted on the grounds that it was in
breach of a collective agreement which pre-dated the Court
proceedings by two and a half years, thereby disarming the employees
of their weapon of strike action;
-the
union was obliged to incur costs, again, for defending the second
application before three different judges of the Labour Court
on
three different occasions and on appeal before this Court;
-the
Labour Appeal Court, having given a definitive final judgment on 26
September 1997 that the strike was protected is called upon
almost a
year later to find that the strike was actually unprotected.
[13] If
a party fails to present evidence to the Court during the course of a
trial or in an application and wishes to do so later,
a Court has a
discretion to allow further evidence at any time up to judgment.
After judgment has been given a party may still apply
to lead further
evidence on appeal, or ask the appeal court to remit the matter for
further evidence to be led in the Court below.
In these cases,
generally speaking, a proper explanation must be given why the
evidence was not presented earlier, the evidence
must be of a
material nature, and the prejudice to the parties on either allowing
or disallowing the evidence must be weighed up
and considered. The
law therefore makes allowance, within limits, for parties in
litigation to remedy possible deficiencies in the
original
presentation of their case at a later stage. What the appellant did
in the present matter, however, was to attempt to circumvent
these
provisions of the law by launching new proceedings on the same issue,
albeit on a different basis. That it cannot do.
[14] The
defence of res judicata should have succeeded.
[15] Mr
Todd asked the Court to reverse the costs order of Landman J, who
ordered the first respondent to pay the costs of 10 October
1997 when
the application for an interim interdict was argued. Unfortunately
the first respondent did not appeal against that order.
Mr Todd
also requested that the costs of appeal should be awarded on the
attorney and client scale. No special grounds for making
such an
award are present.
[16] The
appeal is dismissed, with costs.
Myburgh
J P
I
agree
Froneman
D J P
I
agree
Cameron
J A
Date
of Hearing: 6 August 1998
Date
of Judgment: 17 August 1998
Appearance
for Appellant: Mr S Snyman of Snyman Van der Heever Heyns Inc
Appearance
for Respondent: Mr C Todd of Bowman Gilfillan Hayman Godfrey Inc
This
judgment is available on the Internet at: http://www.law.wits.ac.za