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[2011] ZALCPE 8
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Food & Allied Workers Union and Others v Key Spirit Trading 193 CC t/a Jimmy's Superspar (P550/2009) [2011] ZALCPE 8; (2011) 32 ILJ 2677 (LC) (24 June 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT PORT ELIZABETH)
Reportable
Case
no: P 550/2009
In
the matter between:
FOOD
& ALLIED WORKERS UNION
…............................................
First
Applicant
N
GELA & OTHERS
…..................................................
Second
to Further Applicants
and
KEY
SPIRIT TRADING 193 CC t/a
JIMMY’S
SUPERSPAR
…..........................................................................
Respondent
Date
of hearing: 24 May 2011
Date
of judgment: 24 June 2011
JUDGMENT
BHOOLA
J:
Introduction
[1]
This is a ruling on a point
in limine
raised by the respondent
that the applicants are estopped by the
exceptio rei judicata
from
presenting evidence on certain issues traversed in their statement of
case, by reason of an earlier judgment declaring their
strike
unprotected.
Background
facts
[2]
During March 2008, the first applicant (‘FAWU’)
represented the further applicants in discussions with Workers’
Unlimited concerning various matters of mutual interest. The parties
were unable to resolve the dispute and FAWU referred it to
the CCMA,
citing the respondent as a party. The dispute could not be resolved
and a certificate of outcome was issued on 31 July
2008.
[3]
On 21 August 2008, the respondent advised FAWU of the cancellation of
its outsourcing agreement with Workers’ Unlimited,
and the
following day it forwarded a copy of its disciplinary code and
procedure to FAWU. The applicants disputed that they were
bound by
the code, which appeared to also become an issue during the strike.
[4]
On 14 November 2008,
FAWU
notified the respondent notice of its intention to strike and
attached the certificate of outcome.
The
respondent sought urgent relief to declare the strike unprotected,
contending that in truth,
the
applicants had embarked on the strike because of new grievances
raised on 29 October and 11 November 2008. The new grievances
related
to abnormal overtime, lack of protective equipment, communication
regarding shifts,
and
searches being conducted by untrained supervisors. These issues had
not yet been processed in terms of Section 64 of the Labour
Relations
Act (‘the LRA’).
1
The
applicants denied that the strike related to demands around these new
issues.
[5]
On 21 November 2008, the interdict court (as per Cele AJ - as he then
was) granted a final interdict declaring the strike unprotected.
The
court found that it was clear that
“
there
have been issues of mutual concern between the employees represented
by their union and their employer, which issues were
referred for
conciliation and in respect of which a certificate of outcome was
issued. It is further clear that the first respondent
has since
highlighted a new set of facts or new issues for concern and for
consideration by the applicant as an employer
”
.
[6]
Therefore, Cele AJ held : “[w]hen I look at the totality of the
evidentiary material before me it appears to make sense
to say that
the strike is more about the latest of the issues and not the older
issues”. He went even further to find that
the applicants had
utilised the older issues and the certificate relating thereto as “a
disguise” to confuse the fact
that the strike was about the new
issues.
[7]
Following the strike, the individual applicants were dismissed and
they referred a dispute alleging that their dismissals were
substantively and procedurally unfair to this court. One of the
grounds of substantive unfairness on which they rely is that their
strike was protected. The respondent’s objection is that a
large portion of the facts and issues in the applicants’
statement of claim (i.e. paragraphs 68.1 to 68.4 of the amended
statement of case and the issues identified in paragraphs 33 to
61 of
the pre-trial minute) are
res judicata
as they are the facts
and issues on which the Court based its determination that the strike
was unprotected.
The
law
[8]
In South African law,
the
doctrines of
res
judicata
and
estoppel are aspects of the
exceptio
rei judicata
,
which is a single principle characterised by two main requirements,
i.e. that the same issue should arise between the same parties.
See:
Wolfaardt
v Colonial Government
2
;
Boshoff
v Union Government
3
;
Turk
v Turk
4
;
Liley
v Johannesburg Turf Club
5
;
Boland
Bank v Steele
6
;
and
Kommissaris
van Binnelandse Inkomste v Absa Bank Bpk
7
[9]
In
Smith
v Porritt and Others,
8
Scott
JA set out this principle and the circumstances in which it can be
relaxed as follows:
“
Following
the decision in
Boshoff
v Union Government
1932
TPD 345
the ambit of the
exceptio
rei judicata
has
over the years been extended by the relaxation in appropriate cases
of the common-law requirements that the relief claimed and
the cause
of action be the same (
eadem
res
and
eadem
petendi causa
)
in both the case in question and the earlier judgment. Where the
circumstances justify the relaxation of these requirements those
that
remain are that the parties must be the same (
idem
actor
)
and that the same issue (
eadem
quaestio
)
must arise. Broadly stated, the latter involves an inquiry whether an
issue of fact or law was an essential element of the judgment
on
which reliance is placed. 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 the issue of estoppel. But, as was stressed by
Botha JA in
Kommissaris
van Binnelandse Inkomste v Absa Bank Bpk
1995 (1) SA 653
(A) at 669D and 670J–671B, 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 Binnelandse Inkomste v Absa Bank
(supra) at 670E–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.’"
Submissions
[10]
Mr Euijen contended that where there is some overlap between the
issues but the cause of action and the relief sought are different,
as is the case here, this court is not bound by earlier findings even
on the overlapping issues.
It
retains an equitable discretion as to whether the earlier decision is
correct and should be followed. In this regard he relied
on the
following authorities:
National
Sorghum Breweries Ltd (t/a Vivo African Breweries) v International
Liquor Distributors (Pty) Ltd
9
;
Smith
v Porritt and Others
10
;
Janse
van Rensburg and Others NNO v Steenkamp and Another
11
.
Therefore,
in
exercising its discretion this court is entitled to examine the
findings of the interdict court to examine whether they are
supportable on the facts and the law. Otherwise, the
res
judicata
defence
would allow parties to :
“
shelter,
so to speak, behind a decision of this Court which I regard as wrong
and insupportable. That weighs very heavily with me
in the exercise
of my discretion in deciding whether or not I should relax the
requirements. To me it seems clear that 'overall
fairness and equity'
demand, in these circumstances, that I should exercise my discretion
against the first and second respondents
and decline to relax the
requirements…”
12
[11]
Mr Euijen submitted that in the context of a dismissal for
participation in an unprotected strike, Schedule 8 Item 6(1) of
the
Code of Good Practice provides that the determination of the
substantive fairness of a dismissal in the circumstances should
be
done in light of the facts of the case, including the seriousness of
the contravention of the Labour Relations Act, attempts
made to
comply with the Act and whether the strike was in response to
unjustified conduct by the employer. Hence notwithstanding
the
finding that the strike was unprotected, important considerations
which arise in respect of the fairness of the ensuing dismissals
would include:
Each
party’s view of the issue giving rise to the strike and the
reasonableness of such views:
FAWU
and Others v Earlybird Farm (Pty) Ltd.
13
Whether
either party’s conduct was provocative of the strike:
NUMSA
and Others v Pro Roof Cape (Pty) Ltd
.
14
Whether
the strike was nonetheless functional to collective bargaining:
LAW
Wholesale Meat Distributors v FAWU and Others.
15
Whether
the strikers
bona
fide
believed
that the strike was protected:
Coin
Security Group (Pty) Ltd v Adams and Others.
16
Whether
the strikers
bona
fide
believed
that the strike was legitimate:
NUM
and
Others
v Free State Consolidated Gold Mines (Operations) Ltd and Others..
17
[12]
Furthermore, in determining the fairness of the dismissals, this
court, as is a presiding officer in similar circumstances,
is
required to hear the matter
de
novo,
to
consider all the circumstances of the case including the seriousness
of the alleged misconduct; the harm caused; the employer’s
reason for dismissal; the alternatives to dismissal and the effect of
dismissal upon the employee:
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others.
18
[13]
Mr Zilwa submitted that it is apparent from the pleadings that the
applicants in essence seek to challenge the ruling on the
status of
the strike. The lengthy background to the dispute set out in the
statement of case is designed to seek this outcome.
This represents
an attempt to resuscitate their failed application for leave to
appeal against the interdict judgment.
Analysis
and conclusion
[14]
This court has considered the issue, albeit in the context of an
interim interdict in respect of an unprotected strike. At
the trial
to determine the fairness of the strikers’ dismissals,
the
court dismissed the
res
judicata
plea,
not because of the interim nature of the interdict but because the
issues and the relief sought were different. The only overlap
the
court found was that the parties were the same. In addition, the
court noted that trial proceedings could not be compared with
application proceedings when it came to resolving disputes of fact.
See in this regard
SASTAWU
and Others v Karras t/a Floraline
.
19
SASTAWU
is
however distinguishable on the facts in that the
rule
nisi
was
subsequently discharged because the conduct of the employees was held
not to constitute a strike
.
In casu
not
only did Cele AJ make a finding that the strike was unprotected, but
he issued a final interdict in that regard. These proceedings
cannot
revisit his findings on the facts and law in regard to the status of
the strike and the reasons for the strike.
[15]
It is significant, as submitted by Mr Euijen that motion proceedings
are normally decided on the pleadings and are generally
aimed at
temporary or interim relief, while section 191(5) (b) (ii) of the LRA
referrals are determined by trial and generally
on oral evidence.
However, what is of significance as appears from the authorities is
not the nature of the proceedings but whether
the issue has already
been finally determined by the interdict court which is now brought
again. Put differently, is the same issue
before this court which has
been finally disposed of in the interdict application. This requires
a view of the dismissal referral
compared with the interdict
application. There is a clear overlap in the pleadings in that the
applicants rely on the fact that
the strike was protected for their
right to relief in respect of substantive fairness.
This
cannot in my view be countenanced given the
res
judiciata
rule.
Although
Porritt
supports
the
relaxation
of the
exceptio
rei judicata
in
appropriate circumstances where the relief claimed and the cause of
action are not precisely the same, and
Kommissaris
van Binnelandse Inkomste
confirmed
that it is not an immutable requirement of
res
judicata
that
the same thing must have been demanded in both actions,
20
it
is still clear from the authorities and submissions that the
essential requirements remain that the parties must be the same
and
the same issue must arise.
[16]
Mr Euijen submitted that the essential issue raised in the urgent
application, which was in dispute on the papers, was whether
the
respondent knew what was the issue which gave rise to the strike, or
whether its assumptions in this regard were reasonable.
On both
counts, the union official had contradicted the respondent’s
assertions under oath. In effectively rejecting this
version, the
court disregarded the accepted approach in motion proceedings, which
is to decide disputes of fact on the respondent’s
allegations
unless these can be rejected as “far fetched or fanciful”.
It is clear that the interdict court did not
so regard the union
official’s affidavit, since this is not mentioned in the
judgment. Instead the court rejected the union’s
version on the
singular basis that “it makes more sense” that the strike
should be about the later rather than the
earlier issues. With due
respect, he submitted, the learned judge was simply not entitled to
do so without referring the matter
to oral evidence. Other factors
which he submitted should weigh with this court in the exercise of
its discretion whether to accept
the findings of the interdict court
are that the applicants were not legally represented in those
proceedings and the fact that
the court gave an
ex tempore
judgment immediately on the conclusion of the argument by the parties
representatives. None of these reasons would in my view justify
a
revisiting of Cele AJ’s judgment on the law or facts.
[17]
It is common cause that Cele AJ issued a final interdict having found
on the facts that the strike was unprotected. The applicants
cannot
therefore seek to rely on the protected nature of the strike for the
assertion that their dismissals were substantively
unfair, nor can
they advance reasons other than those determined by Cele AJ as being
the issues that gave rise to the strike. This
is indeed what is
squarely prohibited by the
res judicata
principle. Although
the cause of action is different, the determination of the
appropriate relief arising from any determination
on the substantive
and procedural unfairness of the dismissals is dependent, at least
partly, on the same issues of fact and law
that were before Cele AJ
and involve the same parties.
[18]
Therefore, the finding that the strike was unprotected and the facts
on which it was based falls under the ambit of the
res judicata
rule. I do agree however that, the scope of the respondent’s
objection is extremely wide ranging and effectively seeks to
prevent
the applicants from leading any evidence about the interactions
between the parties during the preceding three months that
led to the
strike. In fact, Cele AJ alluded to the fact that virtually none of
these issues were debated in any substantive form
given the nature of
interdict proceedings. The finding on the facts and issues that gave
rise to the strike insofar as they are
relevant to the conclusion on
the unprotected status of the strike are therefore
res judicata,
and any evidence on those facts and issues led with the intention of
asserting a different cause for the strike would be impermissible
in
law. However, given that the cause of action and the relief sought
are different, there is an overlap in the facts relevant
to
determining the appropriate relief where employees are dismissed for
engaging in an unprotected strike and the applicants cannot
therefore
be estopped from leading evidence on these issues.
[19]
Therefore, I make the following order:
The
in limine
objection is upheld on the circumscribed basis that
the finding of Cele AJ that the strike is unprotected and his reasons
for this
conclusion are
res judicata.
There is no order as to
costs.
___________________
Bhoola
J
Judge
of the Labour Court
Appearances:
For
the applicants: Adv TMG Euijen instructed by Cheadle Thompson &
Haysom Inc.
For
the respondent: Adv PHS Zilwa instructed by N Z Mtshabe Inc.
1
66
of 1995.
2
(1899)
16 SC 250
at 253.
3
1932
TPD 345.
4
1954
(1) SA 971
(W).
5
1983
(4) SA 548
(W) at 551 G- H.
6
1994
(1) SA 259
(T) at 269-70.
7
1995
(1) SA 653
(A) at 664 C – E, 666 I – 668 D and 669 G.
8
2008
(6) SA 303
(SCA) at 307-308 para 10.
9
[2000] ZASCA 159
;
2001
(2) SA 232
(SCA) at 239-240.
10
Above
n:3
at 307-308.
11
2010
(1) SA 649
(SCA) at 663.
12
Holtzhausen
and Another v Gore NO and Others
2002 (2) SA 141
(C) at 156 C-D.
13
[2007] ZALC 66
;
[2003]
1 BLLR 20
(LC) at para 26.
14
2005]
11 BLLR 1126
(LC) at 1135, paras 31-4.
15
[1998]
8 BLLR 859
(LAC) at para 32.
16
[2000]
4 BLLR 371
(LAC) at 377 para 18.
17
[1995]
12 BLLR 8
(AD).
18
[2007]
12 BLLR 1097
(CC);
2008 (2) SA 24
(CC) at 52E – H paras 78-9..
19
[1999]
10 BLLR 1097
(LC) at 1102 paras 11-2.
20
Above
n:7 at
668D.