Bouwer v City of Johannesburg and Another (JA64/06) [2008] ZALAC 15 (23 December 2008)

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[2008] ZALAC 15
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Bouwer v City of Johannesburg and Another (JA64/06) [2008] ZALAC 15 (23 December 2008)

59
I
N
THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held in Johannesburg
Case no: JA64/06
In the matter between
Dirk Willem Bouwer
Appellant
And
City of Johannesburg 1
st
Respondent
National Fund for Municipal
2
nd
Respondent
Workers
___________________________________________________________
JUDGMENT
___________________________________________________________
ZONDO
JP
Introduction
[1] I have had the benefit of reading
the judgment prepared by Davis JA in this matter. Regrettably I am
unable to agree with the
conclusion he reaches in that judgment to
uphold the appellant’s appeal. Part of my difficulty with Davis
JA’s judgment is
that, in my view, it does not give effect or
proper effect to a dictum that I think is in point in this matter
which is to be found
in the majority judgment of the Appellate
Division in
African
Farms and Township v Cape Town Municipality
1963 (2) SA 555
(A)
at
563 D-F. I also have difficulty with the precedent which, in my view,
would be created by the acceptance of the appellants’
contention on
res judicata
in motion proceedings where a Court dismisses an application on the
basis that the applicant has failed to prove its case by sufficient

and proper evidence. Davis JA’s judgment accepts the appellant’s
contention and, therefore, creates, in my view, a precedent
with
which I have immense difficulty. I shall say more on the dictum and
the precedent later in this judgment. In my view the
appellant’s
appeal stands to be dismissed. I set out below my reasons for this
conclusion.
The
factual background
[2] Prior to 1 January 1995 the
appellant was employed by the Town Council of Midrand as Assistant
Town Engineer at post level 3.
On the 1
st
January 1995 the Midrand/ Rabi Ridge/ Ivory Park Transitional
Metropolitan Local Council (“
the
TMLC
”) superseded
the Town Council of Midrand and became the appellant’s employer. On
the 5
th
December 2000 the appellant was employed by the TMLC in the position
of Executive Manager: Environment and Recreation Management
which was
on post level 1. He reported directly to the Chief Executive Officer
of the TMLC.
[3] With effect from the 6
th
December 2000 the TMLC was disestablished and the first respondent
was established. By virtue of the provisions of sec 197 of the
Labour
Relations Act, 1995 (“
the
LRA
”) read with
the provisions of sections 12 and 14 of the Municipal Structures Act,
1998 (Act 117 of 1998) the appellant’s employment
with the TMLC was
transferred to the first respondent. This had the effect that all the
posts in the TMLC immediately before the
6
th
December were thereby abolished.
[4] Initially the personnel
previously employed by the TMLC were, after their transfer to the
first respondent, not allocated to
any substantive posts. This
included the appellant. He was initially employed by the first
respondent as part of a “
management
pool
” which had
no substantive posts. After the first respondent had established a
staff structure, it offered the appellant on the
26
th
March 2002 the position of Senior Professional Officer: Environment
at the same rate of pay as he had been receiving thus far.
The
appellant rejected the offer on the basis that the position was lower
than the position he had held in the TMLC in respect
of status and
responsibilities. Although the appellant rejected the offer, he
performed the functions and duties associated with
the position that
he was offered.
The
application to the Labour Court
[5] In terms of the appellant’s conditions of service,
if the position which he had been offered was on a lower level to the
one
he had held before, in terms of his conditions of service he
would be entitled to be regarded as redundant, his contract of
employment
could be terminated in which case he would then be
entitled to a huge severance pay. The appellant believed that he was
redundant
and that his contract of employment should be terminated
and he should be paid severance pay. The appellant asked the first
respondent
to terminate his services on the basis that he was
redundant and to then pay him severance pay. The first respondent
refused to
do so. The appellant then brought an application in the
Labour Court for an order inter alia declaring that the position he
had
been offered was lower than the position he had held in TMLC.
[6] The appellant filed a founding affidavit in support
of his application. In paragraphs 31.2 to 31.12 of that founding
affidavit
the appellant set out a number of matters or factors which
he contended demonstrated or proved that the post he had been offered

by the first respondent was at a lower level than the level of the
one he had previously occupied when he was employed by the TMLC.
The
first respondent opposed the appellant’s application and in support
of that opposition filed an answering affidavit. The
appellant filed
a replying affidavit in due course. Together with his replying
affidavit, the appellant also filed a report or
statement by a Mr
Goosen in which Mr Goosen sought to give an expert opinion on how the
two posts compared with each other. Mr
Goosen’s report or statement
was not attested to nor did Mr Goosen file an affidavit to put the
contents of his report or statement
under oath.
[7] The first respondent later filed a supplementary
affidavit a by Mr Marais in which it responded to Mr Goosen’s
report or statement.
The appellant brought an application to strike
out the first respondent’s supplementary affidavit deposed to by
Marais on the
basis that it was irrelevant to the dispute between the
parties. The matter was then set down for oral argument. The matter
came
before Landman J.
Landman J’s order
[8] Landman J heard oral argument. During argument the
appellant would have also presented argument in support of his
application
to strike out Mr Marais’ supplementary affidavit. At
the completion of the hearing of oral argument, Landman J reserved
judgment.
Before judgment could be handed down, the appellant brought
an application for the admission of a supplementary affidavit deposed

to by Mr Goosen. The purpose of the supplementary affidavit was to
place under oath the contents of Mr Goosen’s report or statement

that had been filed together with the appellant’s replying
affidavit. Landman J dismissed the appellant’s application for the

admission of Mr Goosen’s supplementary affidavit with a special
order of costs in a separate judgment. In due course Landman
J handed
down his judgement. He dismissed the appellant’s application. He
also dismissed the appellant’s application to strike
out the first
respondent’s supplementary affidavit deposed to by Mr Marais.
Landman J’s order read thus:
“
In the premises therefore this
application and the application to strike out is
(sic) dismissed with costs.”
This was in 2003.
[9] The reason for Landman J’s order dismissing the
appellant’s application was that he, after considering the
affidavits filed,
concluded that there was not enough evidence placed
before him by the appellant to prove that the post that the first
respondent
had offered the appellant was at a lower level than the
level of the post he had previously occupied at the TMLC.
Referral of dispute to Labour Court
[10] In March 2005 that is over two
years since Landman J’s judgment the appellant referred a dispute
to the Labour Court in which
he sought in effect and in substance the
same relief that he had sought in the application that was dismissed
by Landman J. The
appellant based this action the same cause of
action as the application that had been dealt with by Landman J. The
first respondent
took two special pleas. The one was to the effect
that the appellant’s claim had already been decided finally by
Landman J. This
was the special plea of
res
judicata
. The other
special plea was prescription. The matter was set down for the
hearing of argument on the special pleas. On this occasion
the matter
came before Francis J.
Francis
J’s judgment in the Labour Court
[11] Francis J upheld the special
plea of res judicata and dismissed the appellant’s claim. Before
Francis J the parties were
agreed that there was only one requirement
of
res judicata
that was in issue. That was whether or not Landman J’s judgment had
decided the issue between the parties. The appellant argued
that it
had not and, therefore, the special plea of
res
judicata
should
fail whereas the first respondent argued that it had and, therefore,
the special plea of
res
judicata
should be
upheld. In support of his decision upholding the special plea,
Francis J referred to
Boshoff
v Union
1932 TPD 345
at
35, Custom Credit Corporation (Pty) Ltd v Shembe 1972(3) SA 462 (A)
at
472 A-D, Fidelity Guards Holdings (Pty)Ltd v Professional Transport
Workers Union and others (1999) 20 ILJ 82 (LAC), National Union
of
Mine Workers v Elandsfontein Colliery (Pty)Ltd (1999) 20 ILJ 878 (LC)
and
Dumisani & Another v Mintroard
Sawmills (Pty) Ltd
(2000) 21 ILJ 125 (LAC)
and
African Farms and Townships Ltd v Cape Town Municipality
1963 (2) SA
555
(A)
at
563
.
[12] In paragraph 10 of his judgement
Francis J referred to the appellant’s Counsel’s contention that
Landman J’s order amounted
to an order for absolution from the
instance. He then referred to Steyn CJ’s judgment in
African
Farms and Townships Ltd v Cape Town Municipality
1963 (2) SA 555
(A)
“at 563”
and
quoted a passage which I quote later in this judgment. That passage
includes a statement by Steyn CJ that on motion proceedings
an order
dismissing an application does not amount to an order of absolution
from the instance but is a judgment in favour of the
respondent and
that in such proceedings an order that could be equated to an order
for absolution from the instance would either
be an order that no
order is made or an order granting the applicant leave to apply to
Court again on the same papers.The passage
that Francis J quoted
included in it Steyn CJ’s comment upon Watermeyer J’s judgment in
Commissioner of
Customs v Aiston Timber Co. Ltd 1926 CPD at p. 359.
I shall not include that part of the passage when I quote the passage
later. In fact the passage that Francis J quoted forms the
foundation
of my own judgment in this matter. In par 11 of his judgment Francis
J expressed the view that the passage that he quoted
from Steyn CJ’s
judgment in African Farms applied with equal force in the matter
before him.
[13] In par 12 of his judgment
Francis J expressed the view that it was clear from Landman J’s
judgment that Landman J had made
a definitive and final order. He
then referred to
Wolfaardt
v Colonial Government
(1899) 16 SC 250
at
252
but the passage
that he quoted from that judgment says nothing about when an order
can be said to be definitive and final. It is
in par 13 of his
judgment that Francis J sought to substantiate the finding he made in
par 12 that Landman J’s order was definitive
and final. Francis J
said:
“
Landman J had found inter alia
that the applicant had failed to lead expert evidence on the two
different posts and, therefore,
his case was shipwrecked. The
appellant had failed to substantiate his case by sufficient evidence
in the previous case. In launching
the present application the
applicant has attempted to salvage his wrecked ship which he clearly
cannot do. The special plea stands
to be upheld and the applicant’s
claim stands to be dismissed
.”
Subsequently, Francis J granted the appellant leave to
appeal to this Court against his judgment and order; hence this
appeal.
The appeal
[14] In this case Counsel for the
appellant confirmed that the only requirement of
res
judicata
which he
submitted had not been met was the one to the effect that the
previous judgment should have been final and have determined
the
merits of the dispute. He pointed out that before Landman J the
appellant had sought a declaratory order that the post that
the first
respondent had offered him was a lower post than the post that he had
previously occupied at the TMLC. He submitted that
Landman J did not
decide whether this was so and actually refrained from deciding the
issue. He submitted that in looking at what
Landman J decided, we
should not just look at the order that he made, which was that the
appellant’s application was dismissed,
but we should consider the
judgment as a whole. He submitted that to do otherwise would amount
to placing form above substance.
[15] Counsel for the appellant
emphasised that the two parties have a continuing relationship as
employer and employee and need
a decision on whether the post that
the appellant had been offered was lower than his previous post or
was comparable or equivalent.
He submitted that, after receiving
Landman J’s judgment, the parties still had no decision on the
question. Counsel for the appellant
emphasised that Landman J said in
his judgment that without expert evidence he could not compare the
two posts and decide which
one, if any, was lower than the other.
Counsel for the appellant submitted that the order made by Landman J
amounted to an order
of absolution from the instance and as such the
special plea of
res
judicata
was of no
application.
[16] Counsel for the first respondent
submitted that Landman J had decided the issue on the merits in this
case and that his decision
was both final and definitive. For this
Counsel for the first respondent relied, inter alia, on the fact that
Landman J referred
to the appellant’s case in the judgment as
“
shipwrecked
”.
Counsel submitted that this was an indication that Landman J was
saying that the appellant’s case was “
dead
”.
Counsel also referred to the fact that Landman J chose to frame his
order as a dismissal of the application was dismissed and
did not say
that he was refusing to make an order which he could have done if he
did not wish to dismiss the application nor did
he postpone the
application and grant the appellant leave to file supplementary
papers which he could have done if he wanted to
give the appellant an
opportunity to later pursue the same case in the same Court. Counsel
for the first respondent submitted that
Landman J did not formulate
his order along those lines because he intended to dismiss the
application on the merits.
[17] In
African
Farms and Townships v Cape Town Municipality 1963(2) SA 555 (A)
Counsel for the respondent argued that the order that had been made
by the Court in the previous motion proceedings on which the
special
plea of
res judicata
was based – which was an order dismissing the application – was
to be equated with an order for absolution from the instance
which
left the issue undecided. This is the same argument that Counsel for
the appellant is advancing in the present case. In the
African Farms
case Steyn CJ, writing for the majority – the minority decided the
case on another point – found that submission
to be without
substance. Steyn CJ said at 563 D-F:
“
As pointed out in Purchase v
Purchase,
1960 (3) SA 383(N)
at p. 385, dismissal and refusal of an
application have the same effect, namely, a decision in favour of the
respondent. The equivalent
of absolution from the instance would be
that no order is made, or that leave is granted to apply again on the
same papers
.”
This is the dictum which I said
earlier on Davis JA’s judgment does not, in my view, give effect or
proper effect to. Based upon
this dictum of Steyn CJ it seems to me
that the order made by Landman J dismissing the appellant’s
application must be read to
mean what Steyn CJ said an order
dismissing an application means, namely, “
a
decision in favour of the respondent
”
which, in this case, would mean a decision in favour of the first
respondent.
[18] In considering this appeal it seems to me that it
is fundamental to the appellant’s appeal that the Court should find
that
the order which was made by Landman J dismissing the appellant’s
application did not decide the dispute between the parties but
that
it can be equated to an order for absolution from the instance. If
this Court does not uphold this contention and concludes
that
Landman’s order dismissing the application was an order on the
merits of the dispute and cannot be equated to an order for

absolution from the instance, the appeal must fail.
[19] The first obstacle in the way of the appellant’s
contention is the Appellate Division’s dictum in African Farms
referred
to above because in terms of that dictum an order in motion
proceedings that amounts to an order for absolution from the instance

is an order that no order is made or an order granting the applicant
leave to apply to Court again on the same papers, and not
an order
that the application is dismissed. Accordingly, the appellant’s
contention that Landman J’s order dismissing the appellant’s

application amounted to an order of absolution from the instance is
in conflict with the decision of the Appellate Division in
African
Farms.
[20] In actions a court may be asked
at the end of the plaintiff’s case to issue an order of absolution
from the instance. That
is before the defendant leads any evidence.
If the Court does at that stage to grant an absolution from the
instance, there can
be no doubt that the plaintiff can later
institute a fresh action for the same relief based on the same cause
of action. In such
event the special plea of
res
judicata
cannot be
taken against the plaintiff because the order of absolution from the
instance did not decide the dispute between the
parties on the
merits. However, sometimes a court issues an order of absolution from
the instance in a case where both parties
have adduced all the
evidence that they chose to adduce, have presented their oral
argument and none of them has indicated that
there is any witness he
wishes to call who was unavailable earlier on.
[21] I have serious doubt that an order of absolution
from the instance is competent in a case such as the one referred to
immediately
above. Of course, if any of the parties had a witness who
was temporarily not available whom he wanted to call, he would have
applied
for a postponement of the trial to a later date when that
witness would be available. Such a party would not close his case and

hope for an absolution from the instance. If both parties to the
dispute had a fair chance to adduce all the evidence that they
wanted
to adduce and the Court found such evidence not enough to justify
giving a judgment in the plaintiff’s favour, there can
be no
justification, it seems to me, for the Court to grant an absolution
from the instance. The proper order in such a case is
that the
plaintiff’s claim is dismissed.
[22] If it were right for a Court to
grant an absolution from the instance in such a case, that would mean
that a Court is entitled
to let a party institute a second action and
seek the same order that he had sought in earlier proceedings on the
same cause of
action even though in the earlier proceedings the
parties had had a fair opportunity to adduce all the evidence that
they wanted
to adduce, had in fact adduced such evidence and even
presented oral argument in the matters. In my view when the parties
have
done all of that the Court is
obliged
to decide the dispute before it on the merits and may not grant an
absolution from the instance. Indeed, there can be no justification

for the Court to grant an absolution from the instance in such a
case. I accept that, for example, in a case such as an inquiry
in a
paternity dispute, this may be different either because of specific
statutory provisions or for public policy reasons as such
an inquiry
affects an innocent third party, namely, the child and it may be
contrary to public policy for the Court to later refuse
to reopen
such an inquiry if new evidence is found to prove paternity simply
because there had been a similar inquiry before.
[23] The significance of the scenario
referred to above in an action lies in comparing that scenario with
the scenario in the present
matter. The matter before Landman J was
not an action but an application in motion proceedings. In motion
proceedings the affidavits
filed by the parties do not only serve as
pleadings but they also contain the evidence that the parties place
before the Court
to enable the Court to decide the matter. The Court
decides the matter by either granting or dismissing the applicant’s
application.
An order that amounts to an absolution from the instance
is an order that is one of the two orders that Steyn CJ referred to
in
African Farms at 563D – F. Just as I have said above with
reference to an action that there can be no justification as a
general
rule for the granting of an order of absolution from the
instance where both parties have adduced all the evidence that they
have
chosen to adduce in an action and that in such a case the Court
must decide the dispute on the merits finally, I am also of the
view
that in an application on motion the Court must decide the
application on the merits and not make an order that amounts to
an
absolution from the instance once all the parties have filed the
affidavits they wished to file or have filed all the affidavits
that
they are entitled to file. Obviously, if a party wished to file more
affidavits but has failed to persuade the Court to grant
it leave to
do so, and did not appeal against such decision, such party is in the
same position as the party who filed all the
affidavits that he
wished to file.
[24] In the case before Landman J there is no suggestion
that there was any party at the time of the hearing of oral argument
that
felt that it had not had a fair opportunity to place before the
Court all the evidence it believed it needed to put before the Court.

That is not surprising because, if any one of the parties felt that
it had not had a fair opportunity to place before the Court
all the
evidence it wanted to place before the Court, it would have applied
for the postponement of the hearing of oral argument
and sought leave
to file further affidavits. It seems that as at the time of the
hearing of oral argument, none of the parties
applied for a
postponement of oral argument or applied for leave to file further
affidavits. It was only after argument had been
presented and while
judgment remained reserved that the appellant – probably after
hearing the first respondent’s criticism
of the Goosen report or
after hearing questions asked by or remarks made by Landman J during
argument – made an application to
Landman J for the admission of Mr
Goosen’s supplementary affidavit which application was dismissed.
[25] Landman J also dismissed an application by the
appellant to strike out Mr Marais’ supplementary affidavit which
the first
respondent had filed as a response to Mr Goosen’s
unattested report or statement. The appellant did not appeal against
Landman
J’s order dismissing his application for the admission of
Mr Goosen’s supplementary affidavit nor did he appeal against
Landman
J’s order dismissing his application to strike out Mr
Marais’ supplementary affidavit. As the appellant did not appeal
against
those orders, those orders stand and must be assumed to have
been justified. That being the case this Court should not make any

order that would undermine those orders or that would in effect
overturn those orders when they have not been appealed against.
[26] In these circumstances we must therefore approach
this appeal on the basis that the appellant had all the opportunity
to place
before the Court such evidence as he wished to place before
the Court to prove his case and that the further affidavit he did not

file which he wished to file was precluded by a valid order of Court
made by Landman J against which he did not appeal and decide
the
appeal accordingly. That being the case, on what conceivable basis
could Landman J have sought to make an order that would
have allowed
the appellant to later institute other proceedings to seek the same
relief? I do not think that Landman J intended
to make such an order
nor do I think that there is justification – upon a proper reading
of Landman J’s judgment – for saying
that his order did not
decide the dispute on the merits. In this regard it must be borne in
mind that a decision on the merits
of the dispute between the parties
was to be based on the evidence before the Court. If the Court
concluded that the appellant
had failed to place sufficient evidence
before it to justify the granting of the order that he sought, and,
therefore, dismissed
the appellant’s application, that was a
decision on the merits of the dispute. That is what Landman J did in
the case between
the appellant and the first respondent.
[27] If we say that Landman J’s order was not an order
on the merits based on the appellant’s failure to prove his case by
proper
and sufficient evidence, what order would we say Landman J
should have made when he was of the view that the appellant had
failed
to place sufficient proper evidence before the Court to
support the order he was seeking. We cannot say that it was proper or
competent
to make an order that no order is made. What would be the
justification for saying he should have made such an order? Once the
parties have led all the evidence they wish to lead the Court must
decide the case on the merits and not in effect grant an absolution

from the instance. In my view, when, in motion proceedings, a Court
finds that the applicant has failed to prove his case on the
merits,
the order that it makes to decide the case on the merits against the
applicant is to make an order dismissing the application.

Accordingly, there is nothing wrong with the order that Landman J
made in the case. Indeed, Landman J’s order accords with Steyn
CJ’s
dictum in the African Farms case at 563 D-F. The appellant failed to
prove his case before Landman J. He was, in my view,
obliged to
dismiss the appellant’s application on the merits and, therefore,
give judgment in favour of the first respondent.
That is precisely
what Landman J did in the case before him. To the extent that it may
be necessary to do so, I propose to deal
below with Landman J’s
judgment in greater detail to show that his judgment was a judgment
for the first respondent on the merits.
[28] At page 8 of his judgment
Landman J referred to a supplementary affidavit deposed to by Mr
Marais that was filed by the first
respondent which was the first
respondent’s response to the unattested statement or report of Mr
Goosen. Landman J said that
Mr Marais said in the affidavit that he
was the assistant Director: Remuneration and Grading. This suggests
that he may have had
some knowledge of issues relating to
remuneration and grading. Landman J said in his judgment that Mr
Marais went into details
as to why Mr Goosen could not have evaluated
the two positions in accordance with the principles of job evaluation
and in the absence
of a general job evaluation and a job evaluation
scheme in use by the South African Local Government Bargaining
Council. That Landman
J said all of this about what was contained in
Mr Marais’ supplementary affidavit is indicative of the fact that
he studied what
Mr Marais had to say about the merits of the parties
contentions on the two posts. Landman J referred to clause 3 of the
agreement
in regard to the definition of “
job
evaluation
” and
“
post evaluation
”.
[29] At page 9 of his judgment Landman J pointed out
that the appellant brought an application to strike out Mr Marais’
affidavit
on the grounds that it was irrelevant to the dispute
between the parties. Landman J then said:
“
I am of the view that the
application to strike out should be refused. This dispute is about
the job evaluation of the old and new
posts. It is a legitimate
response to Mr Goosen’s report. Nevertheless, Mr Goosen’s report
is of no evidentiary (sic) value
as it is an unsworn opinion
.”
This, too, suggests that Landman J was looking at the
merits of the case. That is why he was able to say that Mr Marais’
affidavit
was a legitimate response to Mr Goosen’s report which
dealt with the merits of the appellant’s contention.
[30] Landman J proceeded to the next paragraph where he
said:
“
The result is that as I am
called upon to decide whether the new post that the City of
Johannesburg has offered to the [appellant]
is at a lower post level
(see clause 17.4.7.4).
The
[appellant] needs to show
:
the Midrand post structure,
the City of Johannesburg post structure
the applicable job evaluation scheme;
the number of the points which
should be allocated to the old post and the new post in order to
comply with the agreement.”
After Landman J had completed setting out above what the
appellant was required to show if he was to succeed on the merits, he
immediately
said in the first sentence thereafter:
“
This is where the [appellant’s]
case is shipwrecked
.”
The South African Coincise Oxford
Dictionary gives the following meanings to the word “
shipwreck
”
“
the destruction
of a ship at sea by sinking or breaking up a ship so destroyed. V.
(be shipwrecked) suffer a shipwreck.”
The South African Students Dictionary gives the following meanings to
the word
“shipwreck”
.
“
Shipwreck is the accidental
sinking or destruction of a ship; a shipwreck or wreck is the remains
of a sunken or destroyed ship;
shipwreck is also used to mean ruin or
destruction generally
”.
In my view Landman J’s choice of
the verb “
shipwrecked
”
to describe the condition or state of the appellant’s case was made
very consciously and deliberately. It is not a word that
one uses
every day or lightly to describe anything. In my view Landman J chose
to describe the appellant’s case as “
shipwrecked
”
to convey his view that on the merits the appellant’s case was like
a shipwreck and was destroyed and “
dead
”.
It is highly unlikely that he would have described the appellant’s
case in those terms if he thought that the appellant’s
case could
be “revived”, revived and brought back to him or some other Judge
in the Labour Court to be heard again.
[31] It must also be borne in mind
that Landman J’s choice of the word “
shipwrecked
”
to describe the appellant’s case did not occur in isolation. In my
view Landman J sought to convey what he saw of the appellant’s

case. That case lay before him in tatters like the different parts of
a shipwreck floating at sea. Landman J made this statement
in the
last paragraph of page 9 of his judgment. Before that Landman J:
(a) had at pages 6-8 of his judgment quoted in full
paragraphs 31.2 - 31.12 of the appellant’s founding affidavit in
which the
appellant compared the two posts in respect of a number of
aspects to show that the new post was at a lower level than the level

at which the previous post had been;
(b) had referred at page 8 of his judgment to Mr
Goosen’s report or unattested statement and noted that it was not
under oath;
(c) had stated that he had given a separate judgment in
which he had dismissed with a special order as to costs an
application made
by the appellant for the admission of a
supplementary affidavit by Mr Goosen after judgment had been
reserved;
(d) had referred at the bottom of page 8 of his judgment
to Mr Marais’ supplementary affidavit and had studied the contents
thereof
sufficiently to see that Mr Marais challenged Mr Goosen’s
report and said that Mr Goosen could not have evaluated the two
positions
in accordance with the principles of job evaluation and in
the absence of a general job evaluation and a job evaluation scheme
in use by the South African Local Government Bargaining Council;
(e) referred to the fact that the appellant made an
application to have Mr Marais supplementary affidavit struck out but
he had
refused that application;
(f) had just considered what the appellant needed to
show in order to succeed which included the points which had to be
allocated
to the old post and the new post.
It was after Landman J had considered
all of these matters that he described the appellant’s case as
“
shipwrecked”
.
In my view, in this context, he meant that the appellant’s case was
“
dead
”
on the merits. Just in case it was not clear that it was in respect
of the merits that he was describing the appellant’s case
as
“
shipwrecked
,”
Landman J pointed out in the next few sentences that:
it was clear that the old post and the new post were
dramatically different;
the two posts had not been
“
competently
”
compared;
the process, especially the one relating to comparing
positions in different organisations and in different structures,
required
expert evidence which the appellant had not provided.
[32] Landman J made another statement which, in my view,
also shows that he considered the matter on the merits. He said at
the
end of page 8 to the beginning of page 9 of his judgment:
“
I may add that even if I were
to have accepted the supplementary affidavit by Mr Goosen, I would
not on these papers, have found
in favour of the [appellant].”
When Landman J said this, obviously he was referring to
not finding in favour of the appellant on the merits. Accordingly,
this
means that he would have found against the appellant on the
merits even if Mr Goosen’s supplementary affidavit had been
admitted.
It also means that, without the supplementary affidavit of
Mr Goosen, Landman J also found that he could not find in the
appellant’s
favour. In my view this meant a finding in the first
respondent’s favour because the appellant failed to prove his case
by proper
and sufficient evidence.
[33] It seems to me that in setting out what the
appellant needed to show in order to succeed, Landman J was
demonstrating that
he had considered the appellant’s claim on the
merits because he considered what the requirements were and
considered whether
those requirements had been met and concluded that
the evidence placed before the Court did not justify a conclusion
that the post
in question was at a lower level. In other words the
appellant failed to prove his case on the merits. Landman J then
continued:
“
It is clear that [the
appellant’s] old post and his new post are dramatically different.
But these posts have not been competently
compared. This process,
especially where one is obliged to compare positions in different
organisations and in different structures,
requires expert evidence.
The [appellant] has not …. the opinion of an expert. I may add that
even if I were to have accepted
the supplementary affidavit by Mr
Goosen, I would not, on these papers, have found in favour of the
[appellant].”
The first sentence in the paragraph
quoted above is indicative of the fact that Landman J examined the
evidence placed before him
by the parties on the two posts and, that
is why he was able to conclude that it was clear that the two posts
were “
dramatically
different.
”
Obviously he was examining the evidence with a view to establishing
whether the evidence was sufficient to enable him to grant
the
appellant’s application and, thus, declare, as he was asked by the
appellant to do, that the new post was at a lower level
than the
previous post. Obviously, part of the first respondent’s case
before Landman J must have been that Landman J should
reject the
contention advanced by the appellant that the new post was at a lower
level than the previous post. One of the bases
upon which the first
respondent must have advanced its contention and request for the
Court to reject the appellant’s request
or prayer or application
must have been that, if the Court made such a finding or order, that
finding or order would be without
a proper evidential basis. And
Landman J was persuaded that there was no evidential support for the
appellant’s contention and
decided to dismiss the application. That
is, quite clearly, a judgment in favour of the first respondent on
the merits.
[34] Landman J expressed the view in the paragraph
quoted earlier that expert evidence was required in order for the two
posts to
be competently compared. The appellant had filed an
unattested statement by Mr Goosen, a person that he regarded as an
expert.
There is no suggestion that the appellant had a valid reason
not to have ensured that Mr Goosen’s statement was attested to nor

is there any suggestion that the appellant was in any way justified
in not including all the evidence that he had in his founding

affidavit.
[35] Landman J dismissed with a special order of costs
the appellant’s application to have Mr Goosen’s affidavit
admitted. He
must have thought that such an application was so
lacking in merit as to justify a special order of costs. In my view
Landman J’s
decision to dismiss that application and to do so with
a special order of costs is inconsistent with the proposition that he
decided
the matter in the way he did so as to allow the appellant to
later come back to Court on the same issue again. Upon a proper
examination
of Landman J’s judgment there can be no doubt that, if
the matter that came before Francis J had come before him, he would
have
had no hesitation in dismissing it and would probably have
dismissed it with a special order as to costs as he had done when the

appellant applied to him to have Mr Goosen’s affidavit admitted
after judgment had been reserved.
[36] Counsel for the appellant also
referred to the case of
Sewnarain
v Budha and others 1979(2) SA 353 (NPD)
,
a judgment of Leon J in which Theron J concurred. That was a
paternity case. In that case the principle of
res
judicata
was raised
in circumstances where the previous judgment or order that had been
made by a magistrate was:
“no
order made”
. In
that case it was decided that such an order meant that no order had
been made on the merits and the order made was equivalent
to an order
of absolution from the instance. This case cannot help the appellant.
In fact this case and that of Cordigla, are inconsistent
with the
appellant’s submission that in the present case that an order
dismissing an application in motion proceedings can be
equated to an
order for the absolution from the instance.
[37] Counsel for the appellant also
referred to the case of
Condigla
v Watson 1987(3) SA 685(C)
.
In that case Van Den Heever J, with whom Friedman J concurred, said
at 688 A that
“(t)he
‘order’ made at the first enquiry was clearly intended to be the
equivalent of an order for absolution which would
not have barred a
further suit had this been an action between complainant and
respondent.”
The
order that was being referred to there was an order that no order is
made. That statement is in line with the approach adopted
in the
African Farms case that an order dismissing an application in motion
proceedings does not constitute an absolution from
the instance but
means a judgment in favour of the respondent. In any event, Van den
Heever J said at 688 B that under the common
law no order dealing
with maintenance was ever final.
[38] The Condigla case is distinguishable from the
present case because in that case the order made by the magistrate
was that no
order was made whereas in the matter before Landman J the
order that Landman J made was one to the effect that the application
was dismissed. Landman J could have chosen not to make any order
rather than dismiss the application but he chose to dismiss the

application instead. He also chose to shut the door to the appellant
when the latter sought leave to file Mr Goosen’s supplementary

affidavit. Indeed he also chose to dismiss the appellant’s
application to strike out the affidavit put up by the first
respondent
to deal with Mr Goosen’s report or statement. Why would
Landman J have dismissed every effort made by the appellant to
strengthen
his case or reopen his case if the order he was to make
was one that allowed the appellant to later come back and actually
reopen
the case?
[39] If an order to the effect that no order is made can
be equated to absolution from the instance, then an order dismissing
an
application in motion proceedings cannot also be equated to an
order for absolution from the instance. At 356 B-D Leon J said:
“
In the present case it is my
view that when the magistrate initially said ‘no order made’ all
that he was saying in the circumstances
of this case was that on the
evidential material then before him he was not prepared to make an
order. It cannot be said that his
saying ‘no order made’ is
tantamount to a decision on the question of paternity. It is not a
decision on that question at all.
It leaves the matter open to the
applicant at a later stage, if there is further evidence available,
to bring such evidence before
the court. It in no way shuts the
applicant out from doing so
.”
The
converse of what Leon J said in the above passage about an order that
“no order [is]
made”
is that, if
a Judge says in an application in motion proceedings that the
application is dismissed that cannot mean the same thing
as an order
that no order is made, at least as a general rule.
[40] There is something else about
the appellant’s case which is very significant that must be
highlighted. When the appellant
and the first respondent had a
dispute about whether or not the post that the first respondent had
offered the appellant was at
a lower level than the one he had
occupied in the TMLC, the appellant decided to institute court
proceedings to obtain an order
to the effect that he was right in
this dispute and the post concerned was at a lower level. Obviously,
he appreciated that in
order to succeed in getting the Court to give
a judgment in his favour, he would need to place proper and
sufficient evidence before
the Court to prove his allegation or
contention. He probably knew in advance that the first respondent
would oppose his attempts
to secure such a finding or judgment in his
favour in the dispute. In bringing the application that was heard by
Landman J, the
appellant placed before the Court much evidence. That
evidence was contained in paragraphs 13.1 to 13.12 of his founding
affidavit
and its purpose was to convince the Court to give judgment
in the appellant’s favour. In addition, the appellant filed Mr
Goosen’s
report with his replying affidavit by which he sought to
strengthen his case so that the Court would be persuaded to give
judgment
in his favour and grant the order that he sought. The first
respondent also placed before the Court such evidence as it deemed
necessary to meet the appellant’s case. The matter was set down for
the hearing of oral argument. During oral argument the appellant
must
have realised that he had made an error by not ensuring that Mr
Goosen’s report was attested to and later applied unsuccessfully

for the admission of a supplementary affidavit deposed to by Mr
Goosen.
[41] In his statement of claim in the matter before
Francis J the appellant did not include any explanation as to why he
had not
in the matter that came before Landman J included all the
proper evidence that he needed in order to prove his claim then. In
the
light of this omission, if we uphold the appellant’s contention
that Landman J’s judgment did not decide the issue on the merits
in
the first respondent’s favour because Landman J said that there was
not enough evidence, the precedent we will be creating
is this: if a
litigant brings an application to Court on motion and fails to place
before the Court sufficient evidence to prove
his case and the Court
concludes that no proper or sufficient evidence has been placed
before it to prove such case and issues
an order dismissing the
application, that litigant can later go back to Court with the same
case and seek the same order that he
had sought unsuccessfully before
and the Court must entertain the matter and deal with it on the
merits. Indeed, the precedent
will not even require that the
appellant should show good cause why he did not place before the
Court all the evidence he wished
to put before the Court in the first
application. If we create a precedent that allows an applicant in
motion proceedings whose
application has been dismissed to again
initiate Court proceedings to secure the same order that he
previously failed to obtain,
it means that, if in the second
proceedings, the Court still concludes that he has failed to prove
his case and dismisses the application
or the claim, the litigant can
later come back to Court for the third or even for the fourth time.
[42] If we say that the applicant in such a situation
can come back to Court for the second time but not for the third or
fourth
time, what would be the basis for that decision? Why would
that basis be good enough to halt the applicant in his third or
fourth
attempt but not in his second attempt? In my view a litigant
in such a position is precluded in his second attempt when the Court

has dismissed his application on the basis that he has failed to
place sufficient evidence before it to enable it to make the order

that he seeks on the merits. I have never understood our law to be
that, when in motion proceedings, a Court dismisses an application

because the applicant has failed to prove his case by necessary and
proper evidence, its decision to dismiss the application is
not a
decision on the merits of the dispute. My understanding has always
been that that is a final and definitive decision on the
merits of
the dispute and the applicant cannot later come back to Court on the
same dispute and say: I now have more or better
evidence and
institute fresh proceedings for the same relief as before on the same
cause of action! If my view in this regard does
not reflect the legal
position and a litigant is, indeed, permitted to have a second or
even a third or fourth bite at the cherry
in such circumstances, this
part of our law is bad and needs to be changed. In my view, any
litigant who brings an application
to Court should place before the
Court all relevant and material evidence in support of his case on
the first occasion and should
not institute multiple applications one
after the other until the court says he has proved his case. In
labour disputes the principle
of expeditious resolution of disputes
would be completely undermined by the principle which would be
established if we uphold the
appellant’s appeal in this case.
[43] In the present case there can be
no doubt, in my view, that Landman J intended to shut the appellant
out of Court and prevent
him from coming back to Court again with the
same issue. That was not a case where an application was dismissed
for lack of urgency
or because the Court had no jurisdiction. That
was a matter where the Court considered the requirements that the
appellant had
to satisfy in order to succeed on the merits, where it
considered the sufficiency or otherwise of the evidence placed before
it,
where it described the appellant’s case as “
shipwrecked
”,
where it stopped all attempts by the appellant to “
salvage
”
its shipwreck by bringing an application to admit Mr Goosen’s
supplementary affidavit, where it dismissed the appellant’s

application to strike out the first respondent’s supplementary
affidavit and where it decided that the correct order to make
was to
dismiss the application. That was a definitive and final order on the
merits in favour of the first respondent and against
the appellant
which precluded the appellant from bringing the same issue to Court
again.
[44] If I were to extract a principle
from my approach to this matter, it would be this: if in motion
proceedings the parties have
placed before the Court such evidence as
they have chosen to place before it and the matter has been argued
and, thereafter, the
Court issues an order that the application is
dismissed and the basis of that decision is that the applicant failed
to prove its
case, the judgment or order of the Court is a judgment
or order on the merits of the case and it is final and any attempt to
institute
proceedings later to effectively seek the same relief on
the same cause of action would properly be met by the special plea of
res judicata.
[45] In conclusion I am of the view that the Labour
Court was correct in dismissing the appellant’s application.
Accordingly,
this appeal falls to be dismissed. In my view the
requirements of the law and fairness dictate that the appellant
should pay the
first respondent’s costs.
[46] In the premises I make the following order:
1.The appeal is dismissed with costs.
ZONDO JP
Appearences
For
the appellant : Mr Watt Pringle SC
(with Mr M. Le Roux)
Instructed by : Serfontein, Viljoen and Swart
For the first respondent: Mr P. Kennedy SC
Instructed by : Bowman Gilfillan Inc.
Date of judgement : 23 December 2008
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case No.: JA64/06
BOUWER, DIRK WILLEM Appellant
and
THE CITY OF JOHANNESBURG First Respondent
NATIONAL FUND FOR Second Respondent
MUNICIPAL WORKERS
JUDGMENT:
DAVIS JA:
[1] This is an appeal against a judgment of Francis J of
15 September 2006 in which he upheld respondent’s special plea of
res judicata.
With
leave of the court
a quo,
appellant
has appealed to this court.
Factual Background
[2] The appellant was previously employed by the Midrand
Town Council in the post of Executive Manager: Environment and
Recreational
Management. As a result of the consolidation of the
Midrand Town Council into the Greater Johannesburg Metropolitan area,
a process
of rationalization of posts took place. Pursuant to this
rationalization, applicant was offered his current post of Senior
Professional
Officer: Environment at the same rate of pay as he
enjoyed in the abolished post, with effect from 26 March 2002, an
offer that
he rejected.
[3] The appellant contended that he was rendered
redundant as that term was contemplated in Clause 17 of his
Conditions of Service
and that he was therefore entitled to receive
full severance benefits as contemplated in Clause 17.4.7.4 of his
Conditions of Service,
as well as the benefits arising under Rule 7.3
of the second respondent’s Rules. The appellant contended that
his redundancy
arose from the disestablishment of the Midrand Town
Council and the abolition of his substantive post. He contended
that his
services had, in effect, been terminated, as a result of the
post becoming redundant and thus abolished, together with the failure

to appoint him to a reasonably suitable alternative post.
Accordingly, the appellant contended that his redundancy entitled him

to terminate his employment and to receive redundancy benefits.
[4] The appellant therefore applied to the Labour Court
for an order in the following terms:
“
1. That the applicant’s post at the Midrand Local
Council be declared
redundant.
The alternative position offered to the Applicant was
at a lower post lever.
3. That an order is made that the Applicant receives his
full severance benefits in terms of clause 17.4.7.4 and 17.4.8 of his
conditions
of service.”
[5] Before Landman J in the Labour Court, appellant
argued that the post he had held with the Midrand Council had become
redundant
on 5 December 2002. This averment was conceded by first
respondent. The appellant further submitted that the post he had
been
offered by first respondent, being Senior Professional Officer
Environment was at a lower level than the post that had become
redundant.
[6] In his founding affidavit, appellant set out a
number of reasons in justification of this averment. However, only
in his replying
affidavit, did the appellant refer to any independent
evidence in support of his contention that the post offered to him by
first
respondent was at a lower level than his previous post. In
that affidavit, appellant sought to rely upon a report of Mr. B J
Goosen regarding the comparative evaluation of the old and new
positions.
[7] First respondent then filed a supplementary
affidavit by Mr C F Marais which responded to the Goosen report. In
his affidavit,
Mr Marais took issue with the findings of Goosen
regarding the latter’s evaluation of the two positions.
[8] Landman J rejected the Goosen report as being of ‘no
evidentiary value as it is an unsworn opinion.’ The learned judge
then defined the dispute between the parties as follows:
“
The result is that as I am called upon to decide
whether the new post that the City of Johannesburg has offered to the
applicant
is “at a lower post level” (see clause 17.4.7.4). The
applicant needs to show:
the Midrand post structure;
the City of Johannesburg post structure;
the applicable job evaluation scheme;
the number of the points which should be allocated to
the old post and the new post to comply with the agreement.”
[9] Landman J dismissed the application with costs on
the following basis:
“
This is where the applicant’s case is shipwrecked.
It is clear that his old post and his new post are dramatically
different.
But these posts have not been competently compared.
This process especially where one is obliged to compare positions in
different
organizations and in different structures, requires expert
evidence. The applicant has not produced the opinion of an expert.

I may add that even if I were to have accepted the supplementary
affidavit by Mr Goosen, I would not, on these papers, have found
in
favour of the applicant.The applicant does not seek an order that
this matter be referred to oral evidence. Rightly so for
there is
simply no evidence before me on which a proper comparison based on
the job evaluation or comparison of the results of
several job
evaluation has been made.”
[10] In March 2005 appellant again approached the Labour
Court for relief, claiming, as a result of the rationalization of the
local
government of the City of Johannesburg, that the post he had
previously filled had been rendered redundant and that he had been

offered an alternative post at a lower level, albeit at the same rate
of remuneration. He sought declaratory relief, including
an order
that he was entitled to terminate his employment with first
respondent on three months notice and was entitled to redundancy

payment contemplated in his conditions of employment agreement and
Rule 7.3 of the National Fund of Municipal Workers Pension Fund

rules.
[11] First respondent opposed this relief and raised
two special pleas, only
one of which remains relevant, being that of
res
judicata
. The basis of this plea was the
unsuccessful application launched by appellant on 16 May 2003, which
resulted in the judgment
of Landman J to which I have already
referred.
[12] Francis J upheld this plea on the following basis:
“It is clear from the judgment and order made by Landman J that he
had
made a definitive and final order…. The applicant failed to
substantiate his case by sufficient evidence in the previous case.

In launching the present application the applicant has attempted to
salvage his wrecked ship which he clearly cannot do.”
paras 12-13
[13] For these reasons, Francis J upheld the special
plea and dismissed the appellant’s claim.
The Appellant’s Case
[14] Mr Watt-Pringle, who appeared together with Ms Le
Roux on behalf of the appellant, referred to the three requirements
for the
defence of
res judicata
:
essentially the same relief has been sought on the
basis of the same cause of action;
the dispute is between the same parties;
the prior judgment was a final and definitive judgment
on the merits, thereby disposing of the dispute between the parties.
[15] Mr Watt-Pringle correctly contended that the
special plea in the present dispute depended exclusively on the
determination
of the presence of the third requirement, namely that
the judgment of Landman J constituted a final and definitive judgment
on
the merits, thus disposing of the dispute between the parties.
[16] In Mr Watt-Pringle’s view, Landman J had not
found in favour of first
respondent, in that there was no finding that the new
post was at a level similar to that of the previous post and that for
this
reason appellant was not entitled to any severance benefits.
He submitted that the court had required certain evidence to be
produced by the appellant, that is evidence of a proper expert
evaluation of the two posts from which it could be determined whether

the new post was at a lower level than the previous post. The
failure to so adduce this evidence had ‘ship wrecked’ the
appellant’s case, rather than a dismissal by the courts of the
merits of the case.
The respondent’s contention
[17] Mr Kennedy, who appeared on behalf of respondent,
submitted that, for a judgment to be final “on the merits”, it
was unnecessary
that every piece of relevant evidence had to be
placed before the court and considered accordingly. Were that to
have been the
case, appellant could continue to approach the court,
each time on the basis of supplementing a different deficiency in the
evidence
that he had placed previously before the court.
[18] Mr Kennedy further referred to the judgment of
Landman J in which he dismissed the appellant’s claim and had gone
on to say
that he would not have found in favour of the appellant,
even if he had admitted the evidence tendered in the supplementary
affidavit
of Mr Goosen. Accordingly, appellant’s claim had been
dismissed on the merits in a final judgment. The plea of
res
judicata
was thus sustainable. The approach
adopted by Francis J, in upholding the plea, accorded with the
jurisprudential basis for
res judicata,
namely
that there should be a defined end to litigation and that this
principle was in the public interest because a defendant should
not
be compelled to defend itself twice on the same cause of action.
Union Wine Ltd v E Snell and CO LTD
1990(2) SA 189 (C) at 196A.
[19] Mr Kennedy submitted further that, had Landman J
not decided to dismiss the application on its merits, he could have
declined
to make any order, or granted leave to the appellant to
approach the court again on papers duly supplemented. As Landman J
had
eschewed these alternatives and rather found, on the evidence
tendered by the appellant, that he had not proved his case, he had

dismissed the application on the merits of the case.
Evaluation
[20] In oral argument, Mr Watt- Pringle concentrated his
attack on Francis J’s finding that Landman J’s judgment had not
amounted
to absolution from the instance. Mr Watt-Pringle submitted
that this finding confused absolution at the close of the plaintiff’s

case with absolution at the conclusion of the trial. In motion
proceedings, absolution clearly can only be granted at the end
of
proceedings, since both parties “adduce” evidence before the
matter is heard by the court. For this reason, absolution
at the
close of applicant’s case cannot occur in motion proceedings.
[21] However, it is open for a court properly to grant
absolution at the end of the whole case as set out, for example, in
MV Roxana Bank Swire Pacific Offshore
Services (Pty) Ltd v MV Roxanna Bank and another
2005
(2)
SA 65
(SCA) at para 2.
[22] More recently Maluleke J summarized the position in
Machewane v Road Accident Fund
2005 (6) SA 72(T)
at para 11:
“
Where there are two mutually destructive versions
decision of absolution from the instance will follow unless the
plaintiff’s
version can demonstrate a higher probability value than
the version of the defendant. This is particularly so since the
plaintiff
bears the overall onus of establishing his case on a
preponderance of probabilities. The correct approach for deciding
whether
a plaintiff has discharged his onus was aptly stated in the
often quoted dictum of Wessels JA in
National
Employers’ Mutual General Insurance Association v Gany
1931
AD 187
at 199: ‘Where there are two stories mutually destructive,
before the onus is discharged, the Court must be satisfied upon
adequate
grounds that the story of the litigant upon whom the onus
rests is true and the other false.’”
[23] By contrast, Mr Kennedy insisted that a final order
had been made, which order could not reasonably be equated with an
order
of absolution from the instance, even after all the evidence
had been considered.
[24] The meaning of the order, read within the context
of the judgment, is critical to solving the present dispute. In
such a
case, it is the substance rather than the form of the order,
read within the context of the judgment that is determinative of the

outcome of a plea of
res judicata
.
See
The Laws of South Africa:
Volume 9 (2ed) at para 645. The point is clearly stated in
African
Farms and Township LTD v Cape Town Municipality
1963
(2) SA 555
(A) at 563:
“
Council for the appellant further argued that the
order in the original proceedings, which as such is an order
dismissing the application,
is to be equated with absolution from the
instance, leaving the issue undecided. In my view there is no
substance in that argument.
As Sande,
De
Diversis Regulis
ad L
.
207, points out, the
res judicata
is not so much the
sententia,
the sentence of the order made, as the
lis
or
negotium
, the
matter in dispute of question at issue about which the
sententia
is given, or the
causa
which is determined by the
sententia judicis.”
[25] In support of his argument, that the substance of
the order given by
Landman J was, in effect, that of absolution from the
instance, Mr Watt-Pringle referred to two paternity cases. In
Sewnarain v Budha and others
1979 (2) SA 352
(N) Leon J was required to interpret the
determination of the presiding officer in the Maintenance Court who,
after hearing evidence
regarding the paternity of the child, made a
finding: “no order made”. The question arose as to whether this
order justified
the application of a plea of
res
judicata
. Leon J held that, unless the
order in question was a final and definitive judgment, the doctrine
of
res judicata
was
not applicable. Applying this test to the facts in
Sewnarain
,
Leon J said: “In the present case it is my view that when the
magistrate initially said “no order made” all that he was
saying
in the circumstances of this case was that, on the evidential
material then before him, he was not prepared to make an order.
It
cannot be said that he was saying “no order made” is tantamount
to a decision on the question of paternity. It is not
a decision on
that question at all. It leaves the matter open to applicant at a
later stage, if there is further evidence available,
to bring such
evidence before the court. It in no way shuts the applicant out from
doing so.” See also
Cordiglia v Watson
1987 (3) SA 685
(C) at 688 D-F which is reflective of the same
approach.
[26] It is arguable that paternity cases have to be
examined within the constraints of the purpose of a paternity
enquiry; that
is, in the event that further and better evidence
becomes available, it should always be open to an applicant to
approach a court
for the determination of the question.
Significantly however, Leon J cited with approval the decision in
Cohn v Randall Rietfontein Estates Limited
1939 TPD 319
at 324: “In dealing with the position where an action
is dismissed,
Spencer Bower
says that the answer to the question whether anything can be said to
have been decided, so as to conclude the parties, beyond the
actual
facts of the dismissal, ‘depends upon whether, on reference to a
record and such other materials as may properly be resorted
to, the
dismissal itself is seen to have necessarily to involve the
determination of any particular issue, or question, of fact
or law,
in which case there is an adjudication on that question or issue; if
otherwise, the dismissal decides nothing except that
in fact the
party had been refused the relief to which he sought.”
[27] This judgment emphasizes the nature of the key
enquiry: the meaning of the order which can only be gleaned from the
judgment
read as a whole. Simply to rely on the wording of the
order without examining the substance thereof, is to embark on a
process
of rigid formalism which is counter to the advocated route in
the evaluation of a plea of
res judicata
.
For the plea to be successfully applied in the present case, it has
to be shown that the substance of the order of Landman J followed
a
final and definitive judgment on the merits, thereby disposing of the
dispute.
Issue Estoppel – would it
be applicable?
[28] The meaning of Landman J’s order can, in my view,
be best tested by applying the doctrine of issue
estoppel
to the present dispute. While it has been debated as to whether the
doctrine of issue
estoppel
is part of South African law, (
The Laws of
South Africa
: Volume 9 at para 650;
KBI
v Absa Bank Bpk
1995 (1) SA 653
(A)), it has
been applied in numerous South African cases. The effect of the
doctrine is that, where a court in giving the final
judgment on the
dispute litigated before it, has determined a particular issue
involved in that cause of action in a certain way,
that determination
may be raised as an
estoppel
in a subsequent action between the same parties. Even if the
subsequent action is founded on a different cause of action, if
the
same issue is again involved and the right to recover depends on that
issue, the plaintiff may be
estopped
from pursuing its action. However Botha JA cautioned as follows:
“
Each case must be decided according to its own facts.
It is not practical to try to formulate guidelines in abstract
terms which
can be made applicable to all situations”. at 669
[29] Spencer Bower
The Doctrine
of Res Judicata
(3ed) at 90 sets the rule
out thus:
“
Where the decision set up as a
res
judicata
necessarily involves a judicial
determination of some question of law or issue of fact, in the sense
that the decision could not
have been legitimately or rationally
pronounced by the tribunal without determining that question or issue
in a particular way,
such determination, even though not declared on
the face of the decision, constitutes an integral part of it: but,
beyond limits,
there can be no such thing as a
res
judicata
by implication.”
[30] In a recent review of the position, Scott JA said
in
Smith v Porritt
2008 (6) SA 303
(SCA) at 307:
“
Where the plea of
res judicata
is raised in the absence of a commonality of cause of action and
relief claimed it has become commonplace to adopt the terminology
of
English law and to speak of issue estoppel. But, as was stressed by
Botha JA in
Kommissaris van Binnelandse
Inkomste v Absa Bank Bpk
1995 (1) SA 653
(A)
at 669 D, 670 J – 671 B, this is not to be construed as implying an
abandonment of the principles of the common law in favour
of those of
English law; the defence remains one of
res
judicata
. The recognition of the defence
in such cases will however require careful scrutiny. Each case will
depend on its own facts
and any extension of the defence will be on a
case-by-case basis. (
Kommissaris van
Binnelandese Inkomste v Absa Bank Bpk
(
supra
)
at 670 E – F.) Relevant considerations will include questions of
equity and fairness not only to the parties themselves but
also to
others. As pointed out by De Villiers CJ as long ago as 1893 in
Bertram v Wood
(1893)
10 SC 177
at 180, “unless carefully circumscribed, [the defence of
res judicata
] is
capable of producing great hardship and even positive injustice to
individuals”.”
See also
Janse van Rensburg NO
and others v Janse van Rensburg NO
[2008]
ZASCA 154
at para 25.
[31] Applying these principles to the facts of the
present dispute, it is important to first recapitulate on the nature
of the dispute:
Did first respondent offer appellant employment as a
result of the restructuring of the government of the City of
Johannesburg,
which was equivalent to the post he previously had
filled, prior to the restructuring and hence the redundancy of his
previous
post? Viewed accordingly, the question arises: did Landman
J make a decision which disposed, either on the basis of law or on

fact, of that defined dispute?
[32] In my view, the answer must be couched in a
negative. All Landman J did was to hold that, on the evidence
placed before the
court, the posts had not been “competently
compared”. Applicant failed to produce the opinion of an expert.
It is correct
that Landman J went on to say that, on the papers, he
would not have found in favour of the applicant, even if he had
accepted
the supplementary affidavit of Mr Goosen. However, I take
that to mean that, without a competent comparison, the applicant’s

case was “shipwrecked” and that further Goosen’s report was not
a competent comparison.
[33] Much was made of the phrase “shipwrecked” by Mr
Kennedy. Its meaning, viewed within the context of the judgment
read
as a whole, is that, without a competent expert report, no
conclusion can be reached to whether the present post was at a lower

level than that of the previous post. Neither in law nor in fact
was the substance of the dispute, that is the merits of the
dispute,
finally determined by Landman J. Applying the doctrine of issue
estoppel
to these
facts, it cannot be said that Landman J’s order had been of a kind
whereby the ‘particular condition’, being the
nature of the post
offered, had been determined either on the facts or on the applicable
law.
[34] For these reasons, the plea of
res
judicata
cannot succeed. To the extent that
questions of policy were raised, that is that a finding in favour of
appellant will create
the opportunity for unsuccessful applicants to
approach a court with further evidence, so that litigation may never
end, the success
of any such application will depend, to a great
extent, on the manner in which the case is initially determined by
the court.
The Judgment of Zondo JP
[35] After I had written my judgment, I received a
judgment prepared by my esteemed colleague Zondo JP. I then had an
opportunity
to carefully examine his most thoughtful contribution
which makes a number of powerful points as to why my initial approach
was
incorrect. It also afforded me an opportunity to read the
recent decisions of the Supreme Court of Appeal on this area of law

and which were delivered subsequent to the preparation of my
judgment.
[36] After anxious consideration of the judgment of
Zondo JP, I have decided to maintain my initial conclusion. I do so
for two
reasons.
[37] In his judgment Zondo JP makes much of the fact
that I had not followed a
dictum
of Steyn CJ in
African Farms and Townships v
Cape Town Municipality
1963 (2) SA 555
(A) at
563 E – F. That dictum reads thus:
“
As pointed out in
Purchase v
Purchase
….. dismissal and refusal of an
application of the same effect, namely a decision in favour of the
respondent. The equivalent
of absolution from the instance would be
that no order is made, or that leave is granted to apply again on the
same papers.”
That passage should also be read together with the
reliance placed on
Sande
in a passage cited in para 24 of this judgement where, to
recapitulate , the learned Chief Justice says:
“
The
res judicata
is not so much the
sententia
,
the sentence or the order made as the
lis
or
negotium
, the
matter in dispute or question at issue which the
sententia
is given or the
causa
which is determined by the
sententia judicis
.”
At 563E
[38] These dicta must be evaluated in terms of the
facts in
African Homes
where a party had applied for an order declaring that an
expropriation by a municipality of its property for a town planning
scheme was invalid in that it the land was not required for the
purpose so expressed by the council. The court found that the

council required the land for the purpose of the town planning scheme
and accordingly dismissed the application. Thereafter the
same
party served on the same municipality a summons claiming an order
declaring the very same notice of expropriation to be null
and void,
essentially on the same grounds. As Steyn CJ said:
“
What the appellant proposes to do is to obtain a
reversal of the decision of the same question, by advancing different
reasons;
but different reasoning’s leading to a different
conclusion cannot effect the identity of the question to be decided.”
at 563
D
[39] In my view, the question for determination is
whether, as Sande has written, the actual matter in dispute has
been determined.
That involves a substantive enquiry into the
judgment invoked to sustain the plea of res judicata, rather than
a determination
about the scope absolution from the instance and its
lack of application to motion proceedings. The latter is but an
ancillary
question.
[40] Whatever hermeneutic benefit was sought to be
squeezed by Mr Kennedy from the use by Landman J of the word
‘shipwrecked’,
a reading of his judgment clearly, in my view,
shows that because inadmissible evidence had been brought before the
court , the
relevant posts had not been competently compared.
Because they had not been competently compared by expert evidence;
the application
was dismissed. True enough , Landman J did not go
on to say that the appellant could approach a court on papers duly
supplemented
but, in substance, this conclusion appears to be far
closer to what was intended than any attempt to contend that the
merits of
the case were determined by Landman J.
[41] That leads to my second reason for the approach
that I have adopted. As noted earlier, a plea of
res
judicata
shuts a door on a party such as
appellant and therefore terminates any constitutional rights the
appellant might have been guaranteed
in terms of section 34 of the
Republic of South African Constitution Act 108 of 1996 (‘the
Constitution’). Even before the
introduction of the Constitution,
courts cautioned against too expansive an application of the plea
which would work injustice
and unfairness. In a case such as the
present, that is exactly the consequence of a successful application
of the plea.
[42] But whatever unfairness might be worked in this
case, for this court to adopt the approach that the plea should be
upheld
is to have a far more significant effect. In my view,
such a finding underestimates the consequence on labour relations
within the South African context. All too often litigants in South
Africa are without the financial means to procure the kind
of legal
representation which doubtless they would desire to employ. Cases
are therefore not brought with the forensic precision
that might be
the case in the commercial or, often, the administrative law
context. To insist upon such a evidential threshold
is, in my
view, to create an excessively large gap between law and justice in
this area of litigation. For this reason alone,
great caution
should be exercised before upholding a plea that slams the court
doors in the face of individual litigants possessed
of little, if
any, social power.
Conclusion
[43] A court can ensure by way of a clear statement that
the application was dismissed on the merits, for example because
applicant
had failed to discharge the onus to justify its
application. A court, as indeed should have been the case in the
present dispute,
can make it clear that the case had been disposed on
the basis of insufficient expert evidence and accordingly applicant
should
be given a further opportunity to approach the court with duly
supplemented papers. In short, the question of policy can be best

handled by the manner in which courts expressly determine the basis
and nature of their orders. Parties cannot surely be penalized
for
this form of judicial ambiguity. As noted above, in this conclusion
I am fortified by the provisions of section 34 of the
Constitution:
“
Everyone has the right to have any dispute that can
be resolved by the application of law decided in a fair hearing
before a court
of or, where appropriate, another independent and
impartial tribunal of forum.”
That conclusion does not mean a reduction in the
importance of the plea of
res judicata
.
That doctrine is important to bring certainty and finality to legal
disputes; or to invoke Voet: “The main reason for the
introduction
of the
exceptio
rei
iudicatae
was to avoid the inextricable
difficulties which could arise if different courts gave different or
perhaps even mutually contradictory
decisions on the same question.”
Voet Commentaries 44.2.1
[44] The application of the doctrine, of
res
judicata
by its nature, brings an end to
legal proceedings as well as to a party’s right to approach a court
in terms of section 34 of
the Constitution. To justify this
conclusion, the order read together with the judgment must be
reasonably clear in its final
determination of the dispute.
[45] In this case, the court
a
quo
was required to examine the substance of
the order read with the judgment to determine its meaning. It did
not do so. When
so examined, the plea of
res
judicata
cannot be sustained.
[46] For these reasons, I would uphold the appeal is
upheld with costs and order that the judgment of Francis J be set
aside and
replaced with the following order: First respondent’s
special plea of
res judicata
is dismissed with costs.
______________
DAVIS JA
Appearances
For the appellant Advocate G Watt-Pringle SC &
Advocate M Le Roux
Instructed by Serfontein, Viljoen & Swart
For the respondent Advocate P Kennedy SC
Instructed by Bowman Gilfillan Inc
Date of Judgment: 23 December 2008
I
N
THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held in Johannesburg
Case no: JA64/06
In the matter between
Dirk Willem Bouwer
Appellant
And
City of Johannesburg 1
st
Respondent
National Fund for Municipal
2
nd
Respondent
Workers
___________________________________________________________
JUDGMENT
___________________________________________________________
NDLOVU, AJA
[1] I have had the opportunity to read both the
judgments prepared by my colleagues Zondo JP and David JA in this
matter and noted
the different conclusions to which they have
arrived. To my mind, the approach by Zondo JP as well as the
conclusion to which he
arrived represents the correct legal position
in the matter, hence I concur to his judgment. In further
amplification I propose
to add the following comments.
[2] It does seem to me that the appellant’s motive, in
the first place, when he embarked on his exercise and endeavours with
the
first respondent, which culminated in the appellant instituting
this litigation was simply to exploit, for his personal gain, the

provisions of clause 17.4.7.4, read with 17.4.8, of his so-called
“Conditions of Service Agreement” by procuring for himself

certain benefits envisaged in those provisions. Clause 17.4.7.4
prescribed as follows:
“Employees whose posts have become redundant and who are offered
alternative employment at a lower post level but at the same
rate of
pay and who reject such an offer, shall receive full severance
benefits”.
[3] Clause 17.4.8 set out various
categories of severance benefits to which an employee who was
retrenched by virtue of redundancy
as contemplated in clause 17.4.7.4
would be entitled and, in some cases, the formula whereby the quantum
of such benefits would
be computed, as well as the issue of how the
outstanding loans owing to the first respondent would be defrayed
with minimal financial
detriment to the employee concerned. These
provisions were part of the conditions of service laid down in terms
of the collective
agreement known as
“Conditions
of Employment Agreement: Transvaal (Local Government Undertaking)”
published in the Government Gazette No. 16047 (Regulation Gazette
No.5416) dated 28 October 1997 (the so-called
Conditions
of Service Agreement
referred to above) which was operational at the relevant time and
applicable to the appellant.
[4] I tend to believe that the first
respondent had promulgated the said provisions in good faith and,
therefore, it was important
and, indeed, expected that the affected
employees would reciprocate the gesture accordingly in the interests
of both sides. Therefore,
whilst the appellant was legally entitled
to exercise his right as enshrined in clause 17.4.7.4 it seems to me
that he was grossly
unreasonable, as almost to border on
malafides
,
when he declined the offer of the new post in those circumstances .
[5] As pointed out by Zondo JP the
appellant set out at paragraphs 31.2 to 31.12 of his founding
affidavit the grounds why he averred
that the new post offered to him
was at a lower level than his previous post. In response, the first
respondent, while admitting
that the appellant’s previous post had
become redundant, vehemently denied that the appellant himself had
become redundant in
the service of the first respondent.
(paragraph
7.8 of the first respondent’s answering affidavit)
.
A schedule entitled “Role Description” in respect of the
appellant was included in the answering papers
(paragraph
7.11.1, marked annexure “MC3”)
which gave a detailed description of the appellant’s job
responsibilities in his new post. Concluding in this regard the
first
respondent stated:
“
While this is undoubtedly a different position
to that previously occupied by the Applicant, I respectfully state
that the position
is one which entails considerable responsibility
and significance to the First Respondent’s operations. I deny that
the Applicant’s
deployment constitutes a demotion. His functions in
his present position are clearly strategic and require initiative and
experience
at a senior level. They envisage interaction with
consultants (as opposed to subordinates).”
(paragraph 7.11.2 of
the first respondent’s answering affidavit).
And,
“
In short, the Applicant’s previous position
comprised operational and line function management. His present
position is focused
on strategic project management.”
(paragraph 7.11.4, ibid).
Then admittedly,
“The Applicant undoubtedly has a lower status within the
organisational structure of the First Respondent than he had within

the organisational structure of the Midrand Metropolitan Local
Council. That is not, however, a proper basis upon which to make
a
comparison for the purpose of determining relative status. In
colloquial terms, the Applicant is a smaller fish in a bigger pond.”
(paragraph
7.11.5, ibid).
[6] Indeed, it does appear to me that the hard fact of
the appellant’s previous employer, the Transitional Metropolitan
Local
Council (“the TMLC”) having been essentially only a part
of, and therefore a much smaller entity both in size and status than

his current employer, namely the first respondent, was a point which
the appellant sought conveniently to ignore and overlook.
As he was
then “a smaller fish in a bigger pond” he could not have
reasonably expected that his previous post would be the
same or even
similar to the new post offered to him.
[7] The allegations and
counter-allegations on affidavit, a small fraction of which I have,
directly or indirectly, referred to
above constituted the evidential
material presented by both parties to Landman J on 29 October 2003
when he dealt with the matter
as an opposed application and in
respect of which, after considering it on the papers and listening to
oral arguments from Counsel
on both sides, he dismissed the
application with costs. There is no doubt in my mind that this
decision by the learned Judge was
a final and definite judgment on
the merits, in respect of which the
exceptio rei iudicatae
applied.
(
S
v Moodie
1962 (1)
SA 587
(A) at 596E-F;
Liley
and Another v Johannesburg Turf Club and Another
1983(4)
SA 548 (W) at 552F;
CTP
Ltd and Others v Independent Newspapers Holdings Ltd
1999(1)
SA 452 (W)). In
LAWSA
(2005) Volume 9
the following is stated:
“
In order to qualify as a final or definitive
judgment, the judgment must be on the merits of the cause of action
which it is sought
to litigate afresh. It follows that a judgment
which is merely interlocutory or provisional – meaning that it is
not intended
to settle the dispute between the parties with finality
– cannot found a plea of
res iudicata.
…………
An order of absolution from the instance is
ordinarily not decisive of the issue(s) raised, in other words it
decides nothing for
or against either party, and it is accordingly
not a final judgment capable of sustaining a plea of
res
iudicata.
An order dismissing a plaintiff’s claim is
usually taken to be the equivalent of an order of absolution from the
instance since
it decides nothing, except that the plaintiff has been
refused the relief he sought.
An order
dismissing or refusing an application, when made on the merits, has
the same effect as a decision in favour of the respondent,
and can
therefore found a plea of
res
iudicata.
An order to the effect that no order is made on an application, or
that leave is given to apply again on the same papers, is equivalent

to an order of absolution from the instance.” (at para 628) (My
emphasis).
[8] The learned authors Spencer Bower
et al
in
“
The Doctrine of
Res Judicata
”
(1996), give a few examples of dismissal orders not based on the
merits:
“
Dismissals for want of prosecution being based
on procedural defaults are not decisions on the merits, and do
not constitute
res judicatae
.
Similarly the dismissal of a suit on appeal for want of necessary
parties was not a dismissal on the merits which would support
a
plea of
res judicata
.
Dismissals for want of jurisdiction are also not decisions on the
merits, except on the issue of jurisdiction,but will be
res
judicata
on that issue unless the
jurisdiction is altered by statute.”
(at page 85 paragraph 175)
Clearly, in none of the abovementioned examples would
the matter have been decided on the merits and the position does not
seem
to me to require any further elaboration.
[9] According to
Herbstein
& Van Winsten,
“
The
Civil Practice of the Supreme Court of South Africa
”
4
th
edition (1997) at p 684-5:
“After hearing the evidence of both parties and counsel’s
arguments the court may…. grant judgment outright in favour
of
either party, or it may give absolution from the instance or, what in
effect amounts to the same thing, dismiss the action….
If the
onus
is on the plaintiff and the court concludes after hearing all the
evidence by both sides that the plaintiff has failed to discharge
the
onus
, the
question arises whether judgment should be entered for the defendant
or whether it should merely be one of absolution. The
distinction is
important, for in the latter event the plaintiff can institute fresh
proceedings without having to face a plea of
lis
finita
or
res judicata
. The position appears to
be that if the court has on the evidence found against the plaintiff,
it is entitled to enter judgment
for the defendant rather than grant
absolution. It can in such an event never be bound to enter a
judgment of absolution in preference
to one in the defendant’s
favour,
but conversely it may be bound,
if the defendant asks for it and the evidence warrants it, to enter a
judgment in the defendant’s
favour.”
(My
emphasis)
[10] I should hastily point out that
the proposition made by the learned authors (cited above) clearly
related to actions and not
to applications. Indeed, it is significant
to observe that an order for absolution from the instance is
generally granted in actions
and hardly heard of in motion
proceedings. We are dealing here with an application and not an
action. Where,
in
an action
, a
situation arose which warranted an order of absolution from the
instance (such as illustrated by
Herbstein
& van Winsen
in
the preceding paragraph), in a similar situation
in
motion proceedings
the application would simply be dismissed. A further distinction
between actions and applications, in this regard, was that whilst
in
an action there was the notion of “judgment for the defendant”
(again as illustrated above) which was a judgment on the
merits,
there was hardly such thing as “judgment for the respondent” in
motion proceedings. In the latter instance the court,
again, would
simply dismiss the application, even where the decision was based on
the merits. Therefore such dismissal order would
be a final judgment
founded on the merits and in respect of which the
exceptio
rei iudicatae
could
be competently pleaded.
[11] Much more was said and
articulated in the judgment prepared by Zondo JP with respect to the
reasons he advanced in reaching
the conclusion that Landman J had,
indeed, duly considered the merits of the dispute when he dismissed
the appellant’s application.
As indicated earlier, I fully
subscribe to those reasons and I do need to repeat them. I should
point out, incidentally, that even
though reliance was made on what
was only an
obiter
dictum
of Steyn CJ
(in
African Farms
and Township Ltd v Cape Town Municipality
1963 (2) SA 555
(A) at 563D-F) it was trite that a
dictum
from the highest
court of the land (as it then was) must still have not only
persuasive authority but binding authority on this
Court, absent any
other directly relevant authority on the subject.
[12] What, however, was not dealt
with by Zondo JP was the question of the doctrine of
issue
estoppel
which was
raised and relied upon by Counsel for the appellant during oral
argument. Indeed, Davis JA appears to agree with Counsel
for the
appellant on this point. My respectful assumption for the omission by
Zondo JP would simply be that it was, after all,
not really necessary
to explore and deal with submissions on that particular point for the
purpose of determining this appeal.
My reasons for saying so include
the following.
[13] In the same way as the plea of
res iudicata
was
a defence
available
to the first respondent (and not the appellant) to rely on, so would
have been the defence of
issue
estoppel
. In
other words, it was up to the first respondent to make the election
of the special defence it wished to raise and rely on.
A defence of
issue estoppel
was not of the first respondent’s choosing in this case, but rather
something speculated upon in a hypothetical scenario by Counsel
for
the appellant purportedly on behalf of the first respondent. I am
referring here to the stage when Counsel for the appellant
gave the
example of what could possibly happen if the appellant were to resign
from the first respondent’s employ and then claim
constructive
dismissal on the ground of an alleged demotion by virtue of having
been offered a post at a lower level than the one
he previously
occupied. According to Counsel for the appellant, although the
appellant, in that hypothetical scenario, would not
be claiming the
same relief as in the present litigation the first respondent would
obviously not succeed with the defence of
issue
estoppel
. In my
view, this line of argument was stretching the matter too far as to
digress from the crisp issue before this Court (and,
indeed, the
issue before the Court
a
quo
) namely,
whether or not the first respondent’s special plea of
res
iudicata
in its
traditional form (and not
issue
estoppel
) should be
upheld.
[14] The submission about the
doctrine of
issue
estoppel
(ostensibly
on behalf of the first respondent)
was not part of the
pleadings and, as stated already, it was raised for the first time by
Counsel for the appellant during oral
argument. In fact it was just
after the tea adjournment that Counsel for the appellant raised the
issue which he said he had been
discussing with his junior during the
Court break. In other words, the point I am making, it took everyone
by surprise. As a result,
it seems to me, this issue was,
understandably so, not properly canvassed and sufficiently argued
before us by both parties. Although
an appeal could succeed on a new
ground not dealt with in the Court below and sometimes even a new
ground raised by a Court of
Appeal
mero
motu
(
Greathead
v SA Commercial Catering & Allied Workers Union
[2000] ZASCA 142
;
2001 (3) SA 464
(SCA);
Mndi
v Malgas
2006 (2)
SA 182
(E)), the present instance was not, in my view, a case in
respect of which resort to that route was necessary and justified.
The
appeal was sufficiently and properly determinable on the
pleadings.
[15] In
the result, I am satisfied, in particular, as to the following:
That,
both parties, duly represented by Counsel, presented their cases
before Landman J to the fullest extent that the parties
wished and
desired to do at the time and that the evidential material so
presented, plus the oral submissions by Counsel, was
duly considered
by the Court.
That,
the Court dismissed the application after satisfying itself that the
appellant, who bore the onus of proof, had failed to
discharge that
onus.
That,
in dismissing the application, the Court essentially and effectively
gave judgment for, or in favour of, the first respondent,
which
judgment was a final and definitive decision on the merits.
That,
holding otherwise would not only be a violation of the principle of
res iudicata
and the values and norms envisaged in that
principle
but would also open flood gates to all unsuccessful
litigants in similar situations to approach the Court yet again in
order to
have the second, third or even the fourth bite at the
cherry. The interests of justice would never have contemplated such
a resultant
legal absurdity.
Hence, I concur in the judgment of Zondo JP.
______________
NDLOVU, AJA
Appearences
For
the appellant : Mr Watt Pringle SC
(with Mr M. Le Roux)
Instructed by : Serfontein, Viljoen and Swart
For the first respondent: Mr P. Kennedy SC
Instructed by : Bowman Gilfillan Inc.
Date of judgement : 23 December 2008