Msimango Dumisani and others v Mintroad Saw Mills (Pty) Ltd (JA17/99) [1999] ZALAC 27 (15 November 1999)

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[1999] ZALAC 27
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Dumisani and Another v Mintroad Saw Mills (Pty) Ltd (JA17/99) [1999] ZALAC 27; [2000] 2 BLLR 134 (LAC); (2000) 21 ILJ 125 (LAC) (15 November 1999)

IN THE LABOUR APPEAL COURT
OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO.: JA17/99
In the matter between:
MSIMANGO DUMISANI
1
st
Appellant
BHEKI NGOZO
2
nd
Appellant
and
MINTROAD SAW MILLS (PTY)
LTD
Respondent
3
JUDGMENT
3
CONRADIE JA
[1] This is another case about
dismissals for operational reasons. The appellants, who were two of
the applicants in the court
a quo
, brought an urgent
application for an interdict against the respondent, their employer,
before Grogan AJ. The decision is reported
as
National Entitled
Workers’ Union & Others v Mintroad Saw Mills (Pty) Ltd
(1998) 19 ILJ 95 (LC);
[1998] 2 BLLR 159
(LC). The applicants alleged
that the respondent had failed to make available to them (and the
other proposed retrenchees) certain
information to which they claimed
to be entitled in terms of section 189(3) of the Labour Relations Act
66 of 1995 (‘the Act’).
The court found that there was no
substance to these allegations. It dismissed the application. The
affected employees were then
retrenched.
[2] The dismissal of the
application meant that the respondent’s evidence concerning the
furnishing of the information was accepted.
The learned judge at one
point in his reasons says so explicitly. Apart from that, in terms of
s 188 of the Act, the onus of proving
compliance with s 189(3))
rested on the respondent. The learned judge could not have dismissed
the application without having come
to the conclusion that the
respondent had established its case.
[3] The two applicants (who
were the only two of the eight retrenchees to again take up the
cudgels) then challenged the fairness
of their dismissal in the
labour court. All they did in order to turn the founding affidavit in
the interdict proceedings into a
statement of claim in terms of rule
6(1) of the labour court rules was to suitably modify the text of the
founding affidavit. There
was no change whatever in the substance of
their complaints.
[4] In the minutes of a
pre-trial conference it was recorded that the facts which were in
dispute were ‘whether the dismissals of
the applicants were
substantively and procedurally unfair, in particular, whether there
was compliance by the respondent with the
provisions of
sections
189(1)(2)(3)(4)
and (5) of the
Labour Relations Act 66 of 1995
¼
’
In answer to a pertinent question by the respondent it was also
recorded that the dismissals were substantively unfair because
no
commercial rationale therefor had been shown by the respondent. It
emerged during the trial that the allegation concerning the
absence
of commercial rationale was (as the trial judge put it) ‘sourced
directly in the applicants’ contention that the respondent
had
failed or refused to make financial disclosure to the Union on a
basis which would substantiate such rationale.’
[5] The trial judge, Jammy AJ,
upheld a plea of
res judicata
by the respondent. He found
that ‘no issues or evidence have emerged in this matter which were
not fully canvassed in the earlier
application proceedings between
the parties.’ Brought with the leave of the court
a quo
,
this appeal is against the order dismissing the applicants’ claims.
[6] It is against public policy
that a litigant should on the same grounds be able to keep demanding
the same relief from the same
adversary. The rule is expressed by
saying that a valid defence of
res judicata
may be raised
where the same thing has on the same grounds earlier been demanded
from the same party.
‘
... where a court has come
to a decision on the merits of a question in issue, that question, at
any rate as a
causa petendi
of the same thing between the same
parties, cannot be resuscitated in subsequent proceedings.’
(
African Farms and Townships
Ltd v Cape Town Municipality
1963 (2) SA 555
(A) at 562 D per
Steyn CJ), approved in
Horowitz v Brock & Others
1988 (2)
SA 160
(A) at 178 H - J.
[7] Grogan AJ decided in the
interdict application that there was, on the facts found by him,
compliance with the provisions of s
189(3) of the Act. Jammy AJ was
then, on the same facts, asked to find that there had been no
compliance and that it
was
therefore unfair to have dismissed
the retrenchees. By bringing the application in terms of section
191(5)(b)(ii) of the Act, the
applicants wanted, in effect, to have
the fairness of the dismissals reconsidered and decided in their
favour. The court
a quo
could not have acceded to their
request without finding that Grogan AJ had been wrong in his
assessment of the same facts and his
conclusions on the same points
of law.
[8] It does not, in my view,
matter that the ‘thing demanded’ in the first application was an
interdict preventing the respondent
from proceeding with the
retrenchments without having complied with the provisions of s
189(3), and, in the second application, was
a declaration that the
retrenchees had been unfairly dismissed and were to be reinstated. In
each case the essential facts in dispute
were the same and the same
principles of law required to be applied. The judgment in
Kommissaris
van Binnelandse Inkomste v ABSA Bank Bpk
1995 (1) SA 653
(A) has
now made it clear that the doctrine of issue estoppel, as it has been
applied in our law, has led to a new appreciation of
the traditional
res iudicata
doctrine. At 667 J – 668 F Botha JA said the
following: -
‘
Dit is na my mening duidelik
uit die voorgaande opsomming van Greenberg R se beredenering dat
Boshoff v Union Government
nie vat baar is vir die
simplistiese beskouing dat die Hof daar Engelse reg toegepas het in
plaas van ons eie reg nie. Die hele uitgangspunt
van die beredenering
was gegrond op gemeenregtelike bronne. Die gedagte dat Engelse reg
aangewend is ter verdringing van gemeenregtelike
beginsels spruit
voort uit die resultaat wat bereik is: die verweer van
res
judicata
is gehandhaaf, alhoewel dit wat geëis is en die
eisoorsaak nie dieselfde was in die twee aksies nie. Maar dit verloor
uit die oog
dat daar in die uitspraak aanknopingspunte vir daardie
resultaat gevind is in die gemenereg. Die kern daarvan lê in die
vereiste
van
eadem quaestio
en die gelykstelling daaraan van
die vereiste
eadem petendi causa
na aanleiding van Voet 44.2.4
en sy voorbeeld van die
actio redhibitoria
en die
actio
quanti minoris.
Greenberg R het die voorbeeld gebruik as steun
vir die gedagte dat aan
petendi causa
eerder ‘n wye
betekenis geheg behoort te word as ‘n enge een, maar inderwaarheid
is die voorbeeld van veel groter betekenis as
net dit. Dit wat geëis
word met die
actio redhibitoria
is ongetwyfeld nie dieselfde
as wat geëis word met die
actio quanti minoris
nie, en tog is
die
exceptio rei judicatae
toepaslik. Voet se voorbeeld en
Greenberg R se aanvaarding van ‘n wyer betekenis van
petendi
causa
hou albei die noodwendige implikasie in dat dit vir ‘n
verweer van
res judicata
nie ‘n onwrikbare vereiste is dat
dit wat gevorder word dieselfde moet wees nie.’
He then (at 669 F – G)
summarised his conclusion as follows –
‘
Die ware betekenis van
Boshoff v Union Government
is dat die beslissing ingehou het
dat die streng gemeenregtelike vereistes vir ‘n verweer van
res
judicata
(in die besonder:
eadem res
en
eadem petendi
causa
) nie in alle omstandighede letterlik verstaan moet word en
as onwrikbare reëls toegepas moet word nie, maar dat daar ruimte is
vir
aanpassing en uitbreiding, aan die hand van die onderliggende
vereiste van
eadem quaestio
en die
ratio
van die
verweer.’
[9] It is highly desirable that
employers and employees should have the largest possible measure of
certainty in the conduct of their
affairs. In
National Union of
Mineworkers v Elandsfontein Colliery (Pty) Ltd
(1999) 20 ILJ 878
(LC) at 885 A - B Grogan AJ in reliance on
Fidelity Guards
Holdings (Pty) Ltd v PTWU & Others
(1999) 20 ILJ 82 (LAC),
remarked:
‘
The consequences of a
judgment, such as that of Zondo J in this case, which in effect gives
the employer the go-ahead to retrench,
are clearly of great
significance to the employer. It would be invidious if an employer,
armed with a judgment that states that it
has complied with the
applicable provisions of the Act, was subsequently told that it had
not complied with the Act, and was ordered
to reinstate or compensate
the dismissed employees.’
[10] Jammy AJ considered the
dicta
in
NUM v Elandsfontein Colliery (Pty) Ltd
(supra)
- that the doctrine of
res iudicata
found application in
circumstances such as the present - to be correct. I am in respectful
agreement with that conclusion.
The appeal is dismissed with
costs including such costs as were incurred by the respondent in
opposing the application for leave to
appeal.
____________
CONRADIE JA
I agree
___________
ZONDO AJP
I agree
_______________
MOGOENG AJA
Date of hearing: 27
September 1999
Date of judgment:
Attorney for the
Appellant: Mr D. Maluleke
Attorney for the
Respondent: Sampson oakes Higgens Inc
Appearance for the
Respondent: Adv Barrie
This judgment is available on
the internet @ http//www.wits.ac.za
3