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[2015] ZALAC 81
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IMPERIAL CARGO (PTY) LTD v SA TRANSPORT ALLIED WORKERS' UNION (JA79/2013) [2015] ZALAC 81 (5 March 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA79/2013
In
the matter between:
IMPERIAL
CARGO (PTY) LTD
Appellant
and
SOUTH
AFRICAN TRANSPORT AND
ALLIED
WORKERS’
UNION
First Respondent
MOTAUNG
L.S. AND OTHERS
Second and Further Respondents
Heard:
22 September 2014
Delivered:
05 March 2015
Summary: Special plea
of
res judicata
–employees dismissed for operational
requirements –driver employees referring unfair dismissal
dispute to the Labour
Court. Employer arguing that another category
of employees not permitted to refer same dispute to the Labour Court
- employer contending
that these employees privies to drivers’
dispute- requirements of
res judicata
restated- employees in
present dispute not privies to previous dispute adjudicated by the
Labour Court – both disputes having
same cause of action but
identities of employees and relief claimed not the same- Labour
Court’s judgment upheld –
appeal dismissed with costs.
Coram:
Waglay
JP, Musi JA and Dlodlo AJA
JUDGMENT
DLODLO
AJA
Introduction
[1] This is an appeal
against a judgment of the Labour Court (per Haslop AJ) dismissing a
plea of
res judicata
against South African Transport and
Allied Workers’ Union’s (SATAWU) statement of case dated
6 July 2012. SATAWU’s
2012 claim is pursuant to section 189(3)
notice issued by the Appellant to it on 26 January 2006. The
Respondents referred a dispute
to the Labour Court in terms of Rule 6
of the Labour Court Rules in which, they claimed that they were
procedurally and substantively
unfairly dismissed by the Appellant.
Additionally, the Respondents claimed severance pay in accordance
with the provisions of
section 41(2)
of the
Basic Conditions of
Employment Act 75 of 1997
. The Appellant raised a special plea of
res
judicata
, arguing that by virtue of the doctrine of
issue
estoppel
, the Respondents were prevented from disputing an issue
which had already been decided by the Labour Court.
[2] It is common cause
that the Respondents were dismissed by way of letters dated 31 March
2006 notifying them of their dismissal
with effect from the end of
April 2006. The reason for the dismissal was reportedly the
operational requirements of the Appellant.
A group of employees other
than the respondent employees herein had also been dismissed on 31
March 2006. They referred an unfair
dismissal claim against the
Appellant to the Labour Court. The case relating to such employees
was decided upon by the Labour Court
under
South African
Transport and Allied Workers’ Union and Others v Imperial Cargo
(Pty) Ltd
(case number JS571/2006) (“the drivers dispute”).
The Appellant’s special plea is that the causes of action in
the two matters are the same in that the dismissal dispute in the
instant matter is related to the same retrenchment exercise in
respect of the drivers dispute in case number JS571/2006 which had
been held by the Labour Court to have been both procedurally
and
substantively fair.
[3] In
determining whether a point of law has already been decided between
the parties (in a manner sufficient to justify a plea
of
res
judicata
),
a distinction must be drawn between judgments in
rem
and judgments in
personam
.
If the judgment is affecting either the status of a person or his
property, it is a judgment in
rem
conclusive
against the entire world on that issue. If the judgment was merely a
judgment in
personam
,
a plea of
res
judicata
will
be upheld only if certain requirements are met. In order to determine
whether a judgment was in
rem
or merely in
personam
,
the issues raised in the pleadings must be looked at and the judgment
analysed to ascertain exactly what decision was given. Seemingly,
in
the Labour Court, the contention was that the judgment
[1]
was a judgment in rem “
in
the sense that it is a final judgment on that particular
retrenchment”
.
But it would appear that the stance taken by the appellant on appeal
is that the judgment in the drivers’ dispute was a
judgment in
rem
in
that it is “
similar
to judgment in rem”
.
[4] In
Bafokeng
Tribe v Impala Platinum Ltd,
[2]
the Court correctly stated the following:
‘…
I
find that essentials of the exceptio res judicata are threefold,
namely that the previous judgment was given in an action or
application by a competent court-(1) between the same parties, (2)
based on the same cause of action…, (3) with respect to
the
same subject-matter, or thing….Requirements (2) and (3) are
not immutable requirements of res judicata. The subject-matter
claimed in the two relevant actions does not necessarily and in all
circumstances have to be the same. However, where there is
a
likelihood of a litigant being denied access to the court in a second
action, and to prevent injustice, it is necessary that
the said
essentials of the threefold test be applied. Conversely, in order to
ensure overall fairness, (2) and (3) above may be
relaxed.’
The previous dispute is
described in this matter as follows:
‘
The
second and further applicants were at all times employed as drives in
the Inland Division. Some of them were retrenched and
the Inland
Division was closed down completely in April 2007. The respondents
(sic) allege that their dismissal was unfair.’
In the instant matter the Third and
Fourth Applicants’ claim was worded as follows:
“
Directing
the respondent to pay the third and fourth applicants a severance
package, contemplated in
section 41
(2) of the
Basic Conditions of
Employment Act 75 of 1997
as amended, for the periods set out in par
4 above.”’
The above makes it clear
that the severance pay claimed has nothing to do with the judgment in
the drivers’ dispue.
[5] I
am not persuaded that the judgment in the drivers’ dispute is a
judgment in
rem
or is “similar” to a judgment in
rem
.
The judgment in the drivers’ dispute does not concern the legal
status of any person or any property. What it concerns is
whether the
individual drivers in the drivers’ dispute were fairly
dismissed. A dismissal dispute constitutes a judgment
in
personam
and not in
rem
.
See
Maartens
and Others v SA National Parks.
[3]
In the latter case, Waglay J (as he then was) held that such a claim
does not deal with the status of any persons nor with any
property,
but that it deals with merely whether they have a claim under the
Labour Relations Act 66 of 1995
and that, as such, it is a judgment
in
personam
.
It is appropriate to set out
infra
paragraph
7 of the
Maartens
judgment:
‘
The
judgment handed down in Bantubonkwe’s case dealt neither with
the status of any of the persons who were parties to that
action nor
did it deal with any property. The judgment merely determined whether
or not Bantubonkwe had any claim against the respondent
pursuant to
the provisions of the
Labour Relations Act
(“the Act”),
and as such it was a judgment in personam and not a judgment in rem.’
[6]
Where a party pleads that an issue is already
res
judicata
because of an earlier judgment in
personam
,
he must show: (a) that there has already been a prior judgment; (b)
in which the parties were the same; (c) the same point was
in issue.
Of course the judgment in the drivers’ dispute meets the first
requirement of being a “prior judgment”
but does not meet
the other two requirements for
res
judicata
.
The judgment in the drivers’ dispute did not involve the same
parties and the same point was not in issue. In
Amalgamated
Engineering Union v Minister of Labour
,
[4]
the Appellate Division emphasised that “a judgment cannot be
pleaded as
res
judicata
against someone who was not a party to the suit in which it was
given.” See also
Orr
and Another v University of South Africa
[5]
.
The first argument on behalf of the Appellant that there were some
obligations on employees in the instant matter to be applicants
in
the drivers’ dispute is misconceived. There is no basis to
non-suit the Respondent employees simply because another category
of
employees had separately challenged their dismissals arising from the
same retrenchment process.
[7]
The Appellant also states, in its heads of argument, that the
individual employees were “privies” to the drivers’
dispute. It may be mentioned that privies are persons who derive
their interest in title through or from the parties. Obvious examples
would be a deceased and his heir, a principal and his agent and a
person under curatorship and his curators.
[6]
The argument advanced on behalf of the Appellant that employees with
unfair dismissal claims arising from the related conduct by
an
employer are privies, was also put to rest in
Maartens
supra
where the court held as follows:
‘
[8]
Respondent however goes on to argue that even if this court finds
that the judgment handed down in Bantubonkwe was not a judgment
in
rem it is still binding on the applicant herein as they were parties
to the dispute or could at least be regarded as privies
of
Bantubonkwe.
[9] While the
applicants herein, like Bantubonkwe, claim that their resignation
constituted a dismissal which dismissal was unfair
each of them has
to individually satisfy the court that his/her continued employment
had become intolerable due to respondent’s
action or inaction.
The fact that all of their resignations may have been related to a
particular conduct on the part of the respondent
may not necessarily
be conclusive of whether or not the applicants’ resignations
amounted to their dismissals. Factors, such
as their levels of
employment may well play a role especially since the court in
Bantubonkwe held that an ‘employer is entitled
to treat
employees of different levels in a different manner’, and it is
common cause that Bantubonkwe and the applicants
herein were not all
employed on the same level.
In
the circumstances it cannot be said that the applicants herein were
parties to the dispute between Bantubonkwe and the respondent.
Respondent’s argument that the applicants were at the very
least privies of Bantubokwe is likewise misconceived. For applicants
to be privies of Bantubokwe they must have derived their rights to
the action against the respondent from Bantubokwe or Bantubokwe
from
them. This did not happen. Privies are those who have a relationship
akin to that of an agent and principal. (See Hoffmann
& Zeffert
at 340; Halsbury at para 1543). One does not become a privy simply by
virtue of having a claim against a common respondent
based on the
same cause of action
.’
(Underlining added)
[8]
The concept of privies is outlined in
The
doctrine of
Res
Judicata
[7]
thus:
‘
Res
judicata estoppels operate for, or against, not only the parties but
those who are privy to them in blood, title or interest.
Privies
include any person who succeeds to the rights or liabilities of the
party upon death or insolvency, or who is otherwise
identified in
estate or interest. It is essential that the party to be estopped by
privy must have some kind of interest
,
l
egal
or beneficial, in the previous litigation or its subject matter.’
[9] Importantly, the
individual employees in the instant matter derive their right not to
be unfairly dismissed from section 23
of the Constitution and the
provisions of the
Labour Relations Act 66 of 1995
and not from the
drivers or their membership with SATAWU. I agree with the reasoning
of the Labour Court in the judgment appealed
against particularly
where the Court reasoned as follows:
‘
[32] To
sum up, a fair consultation process in the context of a retrenchment
exercise encompasses a number of elements and issues
that affect
individual employees, even where a group of employees is to be
retrenched and consultation takes place with their registered
trade
union. The outcome of such consultation might affect individual
employees differently. The most obvious of these elements
and issues
concerns selection criteria and the application of those criteria.
The fact that a court finds that the selection for
retrenchment of
certain employees before it, as applicants, was fair, cannot mean
that the selection of every other employee dismissed
in the same
retrenchment process was necessarily also fair. Of course, it might
be, but equally, there may well be employees in
an otherwise fair
selection process who ought not to have been dismissed because they
had been unfairly selected for retrenchment.”
The Respondent’s
claim for severance pay has nothing to do with the judgment in the
previous matter and the special plea of
res
judicata
can
consequently not succeed in the instant matter.’
Order
In the result, I make the
following order:
(a)
The
appeal is dismissed with costs.
Dlodlo
AJA
I
agree
Waglay JP
I agree
Musi JA
APPEARANCES:
FOR
THE APPELLANT:
Adv JG Van Der Riet SC and Adv C Roodt
FOR
THE RESPONDENTS:
Adv J Brickhill
Instructed by Cheadle
Thompson & Haysom Inc.
[1]
Pretorius v Barkly East Divisional
Council
1914 AD at
407-409.
[2]
1999 (3) SA 517
(B) at 566B-D.
[3]
(2004) 25 ILJ 2222 (LC) at para 7.
[4]
1949 (3) SA 637
(A) at 651 G.
[5]
(2004) 25 ILJ 1484 (LC).
[6]
Cassim v the Minister
1960 (2) SA 347
(N) at 355, approved
in
Shokkos v Lampert NO
1963 (3) SA 421
(W) at 425;
Swadiff
(Pty) Ltd v Dyke
1978 (1)
SA 928
(A) at 945B;
Rail
Commuters’ Action Group v Transnet Ltd
2006 (6) SA 68
(C) at 82H-I.
[7]
Spencer-Bower Turner & K R
Handley
The Doctrine
of
Res Judicata
3
rd
ed (
LexisNexis
Butterworths 1996
)
at 231.