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[2012] ZALCJHB 174
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Soley and Others v University of Pretoria and Another (J 579/11) [2012] ZALCJHB 174; [2013] 3 BLLR 306 (LC) (24 December 2012)
Not reportable
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: J 579/11
In the matter between:
PROFFESSOR SOLEY J.T
..............................................................................
First
Applicant
DR VAN STADEN S.L
................................................................................
Second
Applicant
PROFFESSOR BOOTH K
..............................................................................
Third
Applicant
and
UNIVERSITY OF PRETORIA
......................................................................
First
Respondent
PROFESSOR MADEKUROZWA
............................................................
Second
Respondent
Heard: 05 December
2012
Delivered: 24 December
2012
Summary: Interlocutory
applications: Application to stay; Application for leave to amend the
response to the statement of claim
and application for an order to
enrol matter for hearing in terms of Rule 6(5)(a) of the Rules of the
Labour Court.
JUDGMENT
AC BASSON J
Introduction
[1] In these
(interlocutory) proceedings, the first respondent (hereinafter
referred to as “the university”) has instituted
an
application for leave to amend its statement of defence to the
statement of claim that was filed on 8 April 2011 and for an
order
staying the proceedings in this Court (the Labour Court) under case
number J579/2011 pending the final determination of subsequent
proceedings instituted by the second respondent (Prof Madekurozwa –
hereinafter referred to as “Madekurozwa”)
against the
university in the North Gauteng High Court.
[2] In a
counter-application, the applicants (Prof Soley, Dr Van Staden and
Prof Booth) are seeking an order directing that the
matter be
enrolled in this Court for hearing in terms of Rule 6(5)(a) of the
Rules of the Labour Court. (For convenience, I will
continue to refer
to the three individual applicants collectively as “the
applicants” with the understanding that they
are the applicants
in the main application pending before this Court.) The applicants
argue that true justice will not be served
if their case is not
enrolled because of further delays resulting from a stay of their
matter which is pending before this Court.
[3] This Court is only
called upon to decide on the three interlocutory applications before
it. The Court is not called upon to
decide the merits of the main
application nor is this Court called upon to speculate on what the
outcome of the pending High Court
application would be. (See
hereunder.) I have, however, taken the liberty of making some
observations in respect of the prospects
of success in the High Court
action but have done so strictly in arriving at a decision whether
this Court should stay the pending
proceedings in the Labour Court
pending the outcome of the High Court action instituted by
Madekurozwa. These observations remain
what they are and this Court
is aware of the fact that evidence will be led in the High Court to
determine the merits of the action
referred to it.
Background: Labour
Court Proceedings
[4] The three applicants
and the second respondent (Madekurozwa) are employed by the
university in its Faculty of Veterinary Science.
They are currently
lodged in a dispute which essentially centres on certain allegations
made by Madekurozwa claiming (or at the
very least insinuating) that
the applicants are racists. In terms of proceeding pending before
this Court, the applicants in turn
lodged a dispute against the
university in which they
, inter alia
, allege that the
university is discriminating against them on the basis of race. (I
will return to their claim in more detail herein
below.)
[5] At the outset, it
should be made clear that this Court is not called upon to pronounce
on the veracity of the claims of racism
made by Madekurozwa against
the applicants nor on the
bona fides
of Madekurozwa in making
these claims in so far as it is necessary to determine whether
Madekurozwa has made a protected disclosure
to the university. As
already pointed out, this dispute on the merits is still pending
before the High Court.
[6]
Very briefly, the facts on which the applicants rely in their
statement of claim are as follows: In a letter dated 28 August
2009,
Madekurozwa alleged that Van Staden and other White colleagues have a
lack of trust and respect for Black lecturers. She
further alleged
that Black lecturers were not supported and were patronized by Van
Staden and other academic staff of a lesser
rank and academic
qualifications. She further alleged that Van Staden is a racist
because of an incident that took place on 27
August 2009 relating to
the loading of Van Staden’s power point presentation which
Madekurozwa allegedly did not arrange
10 minutes before the lecture.
On 31 August 2009, Van Staden wrote a letter to the Dean of the
Faculty of Veterinary Science and
gave her account of the events in
response to the allegations made by Madekurozwa. On 11 September
2009, Madekurozwa in a letter,
made further allegations against the
three applicants. Madekurozwa sent this letter to the Transformation
Committee, Faculty of
Veterinary Science and the Black Veterinary
Forum. Madekurozwa again accused the applicants of being racists. The
problem culminated
in the filing of grievances, investigations and
offers for mediation. On 26 November 2010, the applicants, after
exhausting the
internal grievance procedures, referred a dispute to
conciliation in terms of the Employment Equity Act
1
(“the
EEA”). On 2 December 2010, the university summonsed the
applicants to a preliminary investigation into their alleged
misconduct and threatened to discipline them. On 8 December 2010, the
applicants referred a further dispute because of this threat
to
discipline them. It is common cause that no disciplinary action was
ever instituted against them.
[7] As
already pointed out, on 8 April 2011, the applicants filed a
statement of case under the EEA. The applicants state in their
statement of claim that the allegations levelled against them by
Madekurozwa were untrue and that the allegations constituted racist
accusations towards them and towards White academic staff in general.
The applicants further claim that the university had unfairly
discriminated against them by failing to deal properly- or at all -
with their grievance against Madekurozwa. The applicants also
seek an
order from the Labour Court that the failure by the university to
take timeous disciplinary action against Madekurozwa
amounts to
unfair discrimination against them on the ground of race which is
prohibited by the EEA and that such conduct also violates
their
contracts of employment. The applicants further seek an order
compelling the university to pay compensation and/or damages
to them
in the sum of R 300 000.00 each or the maximum allowable by law
under section 50(1)(d) or (e) of the EEA.
2
[8] It is common cause
that the university only decided to act and institute disciplinary
proceedings against Madekurozwa after
the statement of claim was
served on the university. Such disciplinary proceedings were only
instituted on 21 April 2011. By this
time a long delay had already
occurred and the applicants had to live with the stigma of being
branded racists by a colleague.
[9] On 10 June 2011, the
university filed its statement of defence in which it recorded that
it had at last instituted disciplinary
action against Madekurozwa.
The disciplinary process that has been instituted against Madekurozwa
will consider,
inter alia,
whether Madekurozwa has committed
misconduct by making false allegations of racism against the
applicants. The university further
pleads that it has no knowledge as
to the truth of Madekurozwa’s allegations of racism against the
applicants but accepts
that to date Madekurozwa has failed to
substantiate these allegations or to satisfy the university as to the
truth of these allegations
of racism. What is of importance is the
fact that the university pleads, and also did so in the High Court
proceedings (see herein
below) that there is, according to the
university, no protected disclosure. The university further clearly
states that it will
proceed with disciplinary action against
Madekurozwa in the event the High Court dismisses the action pending
before it.
[10]
The disciplinary hearing against Madekurozwa was postponed by the
chairperson of the hearing (Adv K Moroka SC) pending the
determination of an action to be brought before this Court against
the university for protection under the PDA. Madekurozwa (subsequent
to the filing of the statement of claim in this Court), however,
elected to institute an action for a declaratory order in terms
of
the Promotion of Equality and Prevention of Unfair Discrimination
Act
3
(PEPUDA)
before the North Gauteng High Court.
[11] Madekurozwa further
did not enter any appearance to defend the Labour Court matter
despite the fact that she could have defended
the matter by raising
the defence of a protected disclosure in this Court. Instead she has
elected to approach the North Gauteng
for a declaratory order that
her disclosure falls within the ambit and scope of the protection
afforded by PEPUDA.
[12]
It is further common cause that no order has been granted by this
Court interdicting the disciplinary enquiry on the basis
that
Madekurozwa has made a protected disclosure as contemplated by the
Protected Disclosure Act
4
.(I
will return to the High Court proceedings herein below.)
[13] The applicants
submitted that Madekurozwa is patently participating in dilatory
conduct and is engaging in impermissible forum
shopping which
undermines the dispensing of justice, particularly in this Court. It
was further submitted that the university,
by seeking an order to
stay the proceedings in the Labour Court seeks this Court’s
stamp of approval for this conduct.
[14] In August 2011, the
applicants submitted a draft pre-trail minute to the university and
on 26 August, the applicants’
attorneys delivered a notice
calling upon the university to attend a pre-trail conference. The
notice was ignored and to date the
pre-trail minutes remains
unsigned. The applicants also submitted that this failure to
expeditiously hold a pre-trail conference
should weigh heavily
against the university in deciding the balance of convenience in the
application before this Court as it demonstrates,
according to the
applicants, that the university is intent on delaying the Labour
Court proceedings.
[15] The present
application for leave to amend and to stay the Labour Court
proceedings was filed on 14 December 2011.
T
he High Court
Application
[16]
On 17 June 2011- after the statement of claim and statement of
defence have been served, - Madekurozwa launched an action in
the
North Gauteng Division of the High Court against the university
claiming that the disciplinary proceedings instituted against
her
constituted an “occupational detriment” in terms of the
PDA. She is seeking a declaratory order that the university’s
institution of disciplinary action against her is unlawful and
invalid.
5
She
further seeks an order declaring that the allegations contained in
the letter, including the allegations of racism against the
applicants were made in good faith and in the reasonable believe of
their truthfulness. She alleged that the information contained
in the
letter shows or tends to show unfair discrimination as contemplated
by the PEPUDA and consequently the information fall
within the ambit
and scope of the protection afforded by PEPUDA.
[17] The university
defended the High Court action and stated that, should Madekurozwa be
unsuccessful, it intends to pursue the
disciplinary proceedings
against Madekurozwa. Madekurozwa did not cite the applicants as
defendants in the action before the High
Court.
[18] The university filed
a third party notice and joined the applicants (Prof Soley, Dr van
Staden and Prof Booth) as third parties
in the High Court action and
sought a stay of those proceedings pending finalisation of the Labour
Court proceedings, alternatively
a direction to transfer the matter
to the Labour Court. The third parties (the applicants) filed a plea
and raised
inter alia
a special plea of
lis alibi pendens
.
[19] It was agreed by the
parties that the action would be postponed
sine die
with no
order as to costs and that only the special plea would be argued
before the High Court.
[20] In support of this
plea, it was,
inter alia
, claimed that the facts and
allegations that form the subject matter of the matter before the
High Court were essentially the same
as that which would be raised
before the Labour Court.
[21] On 6 September 2012,
the High Court delivered its judgment and declined to grant either
order ruling that the matter was
not lis pendens
:
Firstly
,
with
reference to the requisites of the plea of
lis alibi pendens,
the
High Court pointed out that the plaintiff, Madekurozwa, did not cite
the third parties (the three applicants in the pending
proceedings
in the Labour Court) in the action in the High Court and that in the
premises no
lis
existed between the plaintiff (Madekurozwa)
and the third parties (the three applicants).
Secondly, and in the
alternative, the Court held that the litigation in the Labour Court
and the High Court is not based on the
same cause of action.
Moreover, in the Labour Court, the applicants seek no relief against
Madekurozwa: She is merely cited as
a result of her direct and
substantial interest and in consequence of the fact that the orders
sought may affect her rights.
The letter written by Madekurozwa is
only referred to in the pending Labour Court matter in order to
sustain a cause of action
against the university.
[22] The High Court
accordingly dismissed the special plea of
lis alibi pendens
.
The result of this order is that the action brought in the High Court
by Madekurozwa will proceed on the merits at a time yet
to be
allocated.
[23] The High Court
further accepted the arguments on behalf of both the university and
Madekurozwa aimed at resisting the applicants’
prayers for a
stay of the High Court proceedings or their transfer to the Labour
Court.
Interlocutory
applications before this Court
[24] The university
argued that it is only logically that the application for leave to
amend should be heard first as it contains
the application to stay
and the application to amend its statement of response. As already
pointed out, the university is seeking
an order to stay the Labour
Court proceedings pending the final determination of Madekurozwa’s
High Court action and secondly
an order granting it leave to amend
its response to the applicants’’ statement of claim in
accordance with its notice
of intention to amend dated 26 October
2011. As will appear more fully herein below, I have decided to
dismiss the application
for leave to amend. Consequently, the
application for leave to stay should also be dismissed. I have,
however, nonetheless decided
to deal with the application to stay
separately although I have dismissed the application for leave to
amend.
[25] At the outset, I
should point out that Mr Freund on behalf of the university did not
aggressively pursue the point that the
Labour Court proceedings
should be stayed. He was, however, adamant that this Court should
allow it to amend it pleadings. I will
now proceed to deal with the
application to stay first.
Application to stay
the Labour Court proceedings
[26] At the outset, it is
accepted that the applicants have a statutory right to come before
this Court and have their day in Court.
It is also accepted that an
integral part of this right is the principle that the statutory
dispute resolution structure provided
for in the
Labour Relations Act
66 of 1995
is aimed at resolving labour dispute expeditiously and
without undue delay. The dispute that is before this Court falls
within
the exclusive jurisdiction of this Court. Almost 21 months
have now passed and the applicants are nowhere near exercising their
statutory right to have their dispute placed before this Court
without unnecessary and unreasonable delays.
[27] I am of the view
that the order that the university is seeking will only result in a
further delay in the proceedings pending
before this Court: The
university is seeking an order to stay the Labour Court proceedings
“pending the final determination”
of the High Court
proceedings. Needless to say that the present legal dispensation
allows for appeals to at least three possible
forums once the High
Court has heard the matter. A stay may therefore potentially result
in an indefinite postponement of the applicants’
case pending
before this Court. In order to avoid further delays, the applicants
are seeking an order directing that the matter
be enrolled for
hearing in terms of
Rule 6(5)(a)
of the Rules of the Labour Court
(the third interlocutory application. I will deal with that
application herein below).
[28] It was submitted on
behalf of the university that the High Court’s judgment may
dispose of a number of issues pending
before the Labour Court. It was
further submitted that there will be a material overlap between the
issues in the High Court proceedings
and the issues in the Labour
Court proceedings. The main issue, so it was submitted, will be
whether Madekurozwa’s allegations
of racism against the
applicants were true or were at least made in good faith and, if so,
whether the PDA prohibited the university
from taking disciplinary
steps against her. It was therefore submitted that this will lead to
a duplication in processes which
is not in the interest of justice.
More in particular, it was submitted that the same evidence will be
led before the High Court
and the Labour Court in respect of whether
a protected disclosure was made. Lastly it was submitted that a
finding by the High
Court that Madekurozwa made a protected
disclosure and consequently that the failure of the university to
hold a disciplinary enquiry
will be unlawful, will materially impact
on the proceedings in this Court.
[29] I do not agree with
these submissions for the following reasons:
It is common cause on
the facts before the Labour Court that Madekurozwa did not make a
protected disclosure. Madekurozwa has,
by not entering opposition to
the Labour Court matter, therefore effectively waived her right to
defend the pending proceedings
before the Labour Court. There exists
therefore no reason to wait for a determination by the High Court
about whether a protected
disclosure has been made in light of the
fact that on the pleadings before this Court, it is common cause
that no protected disclosure
has been made.
The
issues pending in the High Court and those pending in the Labour
Court are not the same.
6
The
causes of actions are further based on two different actions. The
plea of
lis
pendens
failed
for that reason in the High Court. I am in agreement that it must
logically follow that this application must fail for
the same
reason.
7
Furthermore,
there is no
lis
in
the Labour Court proceedings between the applicants and Madekurozwa
and no relief is sought against her. Consequently, it follows
that a
finding by either court will not render that in the other
res
judicata
.
There is therefore no basis for a stay of the present proceedings
pending the High Court’s ruling on Madekurozwa’s
claim.
Furthermore, the applicants have appealed the costs order alone and
in the absence of abandonment thereof the university
is bound by
that judgment. It is not for this Court to revisit the issue as that
is now
res
judicata
.
The
claim against the university instituted by the applicants in this
matter is based on the EEA and the contract of employment.
The
Labour Court has exclusive jurisdiction over a dispute arising from
the EEA. Furthermore, the High Court does not have equitable
jurisdiction as the Labour Court has.
8
More
in particular, one of the causes of action is the contention that
the university is vicariously liable and responsible in
terms of
section 60(3)
of the EEA for the racist comments made by Madekurozwa
in terms of the complaints raised by her on 26 August 2009 and 11
September
2009. Madekurozwa has not sought to declare that a
protected disclosure has been made. Moreover, it makes no sense to
stay an
action in the Labour Court on an issue over which the High
Court has no jurisdiction.
The applicants also
contended that the pending
lis
before this Court came first.
This is borne out by the facts.
One of the fundamental
complaints in the applicants’ statement of claim is that the
university’s delay in dealing
with the complaints against
Madekurozwa only served to perpetuate their suffering as a result of
the stigma attached to them
being branded racists. I am in agreement
that delaying the pending matter before the Labour Court will
further undermine the
very purpose of the dispute pending before
this Court and which forms the basis of the dispute before this
Court.
[31] There is, in my
view, no reason to stay these proceedings in light of these facts.
Legal Principles
[32]
The Labour Court has inherent jurisdiction to prevent abuse of their
processes by staying proceedings in certain circumstances.
The power
to do so will be exercised sparingly and only in exceptional
circumstances.
9
In
this regard, the Court has the same inherent powers that a High Court
has.
10
The
authors Herbstein and Van Winsen
11
point
out that ‘[s]trong grounds must be shown to justify a court in
staying an action, for “the courts of law are open
to all, and
it is only in very exceptional circumstances that the doors will be
closed upon anyone who desires to prosecute an
action”’.
[33]
Some of these grounds include where the action is frivolous or
vexatious, the action is
lis
pendens
;
the process is an abuse of court; the action is hopeless or
impossible; the dispute is subject to arbitration, criminal
proceedings
are pending, and where previous costs are unpaid.
12
None
of these circumstances apply in this matter. The application to stay
is therefore dismissed.
Application to amend
[34] The university gave
notice of an intention to introduce a plea
in limine
to the
effect that the Labour Court proceedings should be stayed until after
the final determination of the High Court proceedings
and to
introduce a new paragraph 102A into the university’s reply
which will result in the introduction of a new paragraph
1A.4.The
proposed amendment seeks to introduce as an alternative plea the
contention that the applicants’ Labour Court claim
falls to be
dismissed because, on the basis alleged by Madekurozwa in the High
Court proceedings, the university is precluded by
the PDA from taking
disciplinary action against her. The proposed amendment reads as
follows:
‘
In the
alternative to what has been pleaded by the First Respondent in the
High Court proceedings, in the alternative to all its
other defences
in the present proceedings, and without prejudice to its right to
pursue the disciplinary proceedings which it has
initiated against
the Second Respondent should it finally be determined by a competent
court that it is legally entitled to do
so, the First Respondent
pleads that the Applicants’ claim in the present proceedings
falls to be dismissed because, on the
basis alleged by the Second
Respondent is precluded by the PDA from taking disciplinary steps
against her.’
[35] The applicants
opposed the proposed amendment and essentially base their objection
on the following:
The proposed amendment
“seeks to withdraw significant admissions made on the
pleadings before this Honourable Court”
and
The application for
leave to amend “is not
bona fide
”.
[36]
The university argues that these two submissions have no substance
and that leave to amend should be granted. In this regard,
the Court
was referred to the fact that it is a tendency of our courts to allow
amendments where this can be done without prejudice
to the other
party. (See in this regard
in
Moolman v Estate Moolman and Another.
13
)
[37]
The same principle applies where the amendment seeks to withdraw an
admission previously made, but with the proviso that a
full
explanation must be tendered to show
bona
fides
.
(See in this regard:
President-Versekeringsmaatskappy
Bpk v Moodley.
14
[38]
The
university argued that a reasonable explanation has been given in the
Founding Affidavit as to the circumstances giving rise
to the
application to amend. It was further argued that the applicants will
not suffer irreparable harm – particularly not
the harm that it
is alleged they will suffer. It therefore argued that there exists no
proper basis on which the university should
be precluded from
including this point as a point
in
limine
.
[39]
The applicants argued that the application for leave to amend
is not
bona fide
because if it was, Bakker (the attorney of
record) would have signed the pre-trail minute timeously. It is
further submitted that
the application for leave to amend is simply
designed to further frustrate the applicants having their day in
court and to delay
the proceedings.
[40]
In respect of
bona fides,
the university submitted that
the application to stay the proceedings pending the outcome of the
High Court’s application
is not motivated to prolong
litigation, but motivated by its view that it would be inappropriate
for the two different courts to
adjudicate the same question with the
attendant risk of contradictory findings. Furthermore, Bakker’s
reasons for not having
signed the pre-trail minutes are set out in
the replying affidavit. The university, so it is submitted, is
bona
fide
and that the amendment is not aimed at withdrawing
admissions.
[40] From the pleadings
before this Court, it is common cause that Madekurozwa did not make a
protected disclosure. I am in agreement
that no purpose would be
served to allow the university to raise a defence at this stage which
has no merit in law. As already
pointed out, Madekurozwa has made a
deliberate choice not to defend the proceedings pending before the
Labour Court and to raise
the issue of a protected disclosure. I am
in agreement with the submission that to permit the amendment would
allow the university
to introduce a defence which is contrary to the
admitted facts and, in my view, in any event premature. In the event
the application
to amend is dismissed
Counter-application
[41]
In their counter-application, the applicants seeks an order directing
that the matter be enrolled for hearing in terms of
Rule 6(5)(a)
of
the Rules of the Labour Court. I am in agreement that justice demands
that the applicants’ claim should not be further
delayed.
15
.
This matter has been dragging on for years and it is in the interests
of justice that finality should be reached. The counter-application
is therefore granted.
[42] In order to expedite
the pending Labour Court’s matter, the parties are ordered to
serve and file their signed pre-trail
minutes on or before Friday 11
February 2013.
Costs
[43] In respect of costs,
I am of the view that costs should follow the result.
Order
[44] In the event, the
following order is made.
The Application to Stay
the proceedings in the Labour Court pending the outcome of the
action pending in the High Court is dismissed.
The application for
Leave to Amend first respondent’s Statement of Response is
dismissed.
The first respondent to
pay the applicants’ costs in respect of the Application to
Stay and the Application for Leave
to Amend which costs include the
costs of Senior Counsel.
The applicants’
counter application is granted with costs.
The parties are ordered
to serve and file their signed pre-trail minute on or before Friday
11 February 2013.
_______________________
AC BASSON, J
Judge of the Labour Court
APPEARANCES:
FOR THE APPLICANT:
Advocate J G Grogan SC
Instructed by Du Toit
Attorneys
FOR THE RESPONDENT:
Advocate A J Fruend SC
Instructed by Anton
Bakker Attorneys
1
Act
55 of 1997.
2
In
essence the applicants are seeking an order that Madekurozwa’s
allegations against the applicants ‘are attributable
to the
First Respondent [the university] and are racist and discriminate
against the Applicants on the grounds or race’.
3
Act
4 of
2000.
4
Act
26
of 2000.
5
At
paragraph [1] of the High Court’s judgment.
6
The
Court in
Nestlé (SA) (Pty) Ltd v Mars Incorporated
[2001] 4 All SA 315
(A) accepted that a duplication of proceedings
is undesirable: ‘
[17] There is room for
the application of that principle only where the same dispute,
between the same parties, is sought to be
placed before the same
tribunal (or two tribunals with equal competence to end the dispute
authoritatively). In the absence of
any of those elements there is
no potential for a duplication of actions. In my view none of those
elements is present in this
case. Indeed, it is difficult to see how
they can exist where the matters in issue have been placed before
two quite different
tribunals (as in this case), the one operating
consensually and the other by force of statute, each having its own
peculiar functions,
powers and authority. For in such a case each
tribunal will, by definition, be inquiring into and ruling upon
different matters,
and neither will be capable of ruling
authoritatively on the issue that falls within the competence of the
other.’
7
See
in this regard:
Fidelity Guards Holdings
(Pty) Ltd v PTWU and Others
[2008] ZALC 85
;
[1998]
10 BLLR 995
(LAC): ‘[6] Basson J thus found that the three
requirements of
res judicata
were
met in so far as the second and third collective agreements were
concerned. In regard to the first collective agreement,
which had
not been relied upon by the appellant in the application before
Revelas J, Basson J held that that agreement “.
. . is ‘new’
in the sense that it did not form a cause of action in the prior
proceedings referred to above. In the
event, the third requirement
for the
res judicata defence
to
succeed is not met and the applicant may bring an application based
on this ‘collective agreement’ ”. The
question in
this appeal is whether that finding is correct.
[7]
The most oft-quoted authority for the requirements of the defence o
f
res judicata
is Voet
Commentarius
ad Pandectas
44.2.3:
“
Under
no other circumstances is the exception allowed than where the
concluded litigation is again commenced between the same
parties, in
regard to the same thing, and for the same cause of action, so much
so, that if one of those requisites is wanting,
the exception fails”
(Bertram
v Wood
(1883)
10 SC 177
at 181).
It is the requirement of
“the same cause of action” which requires further
consideration. The cause of action is the
same whenever the same
matter is in issue:
Wolfaardt v Colonial Government
(1899) 16
SC 250
at 253. The same issue must have been adjudicated upon. An
issue is a matter of fact or question of law in dispute between two
or more parties which a court is called upon by the parties to
determine and pronounce upon in its judgment and is relevant to
the
relief sought:
Horowitz v Brock and others
1988 (2) SA 160
(A) at 179F–H. The rule was explained
in African Farms and
Townships Ltd v Cape Town Municipality
1963 (2) SA 555
(A) at
562D–E as follows:
“
Where,
for instance, the
causa
or quaestio
is ownership, the claimant, if his case is that he has the ownership
through inheritance, would not, according to
Dig
44.2.11 para 5, be instituting a new claim by alleging a donation,
for no matter in what he may have acquired the ownership,
his right
to it would be finally disposed of in the first action. According to
Dig
44.2.27, regard must be had to the immediate cause of action, and
the reason why a claimant may think it is good cause, is of
no
consequence.”
The reason for the rule
is to prevent difficulties arising from discordant or mutually
contradictory decisions due to the same
action being aired more than
once in different judicial proceedings: Voet 44.2.1. The object of
the rule is that of public policy
which requires that there should
be an end to litigation and that a litigant should not be harassed
twice upon the same cause:
Boshoff v Union Government
1932
TPD 345
at 350
; Custom Credit Corporation (Pty) Ltd v Shembe
1972
(3) SA 462
(A) at 472A–E. The ratio underlying the rule is
that the law requires a party with a single cause of action to claim
in
one and the same action whatever remedies the law accords him
upon such cause
: Custom Credit Corporation (Pty) Ltd v Shembe at
472A; Evins v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at
835F–G. The strict common-law requirements for the defence
of
res judicata
should not be taken literally and in all cases
applied as inflexible rules. There is room for the adaptation and
extension of
the rule. Every case has to be decided on its own
facts
: Kommissaris van Binnelandse Inkomste v ABSA Bank Bpk
1995
(1) SA 653
(A) at 669F–I
.”
8
See
Transman v SAPO
[2005]
8 BLLR 834
(LC): ‘[15] The third objection raised was a
defence of
lis pendens
based on the application pending in the High Court. The relief
claimed in the High Court and in this application are different
even
though similar issues would be traversed. But the Labour Court
exercises in addition an equity jurisdiction. The considerations
that apply in the Labour Court are different from those taken into
account by the High Court. Relevance and confidentiality may
be
headings under which both courts may consider an application for
disclosure of information. However, its relevance to protecting
socio-economic rights, such as fair labour practices, may differ
from the relevance of information in a purely commercial,
contractual dispute. In my view, therefore the defence o
f
lis pendens
must fail’.
9
See
in this regard: Herbstein and Van Winsen
The Civil Practice of
the High Courts of South Africa
5ed vol 1 (2009) chapter 10 page
306: ‘South African High Courts possess inherent jurisdiction
to prevent abuse of their
process by staying proceedings in certain
circumstances, but the power to do so will be exercised sparingly
and only in exceptional
cases. This should be done with very great
caution, and only in clear cases. Proceedings will be stayed when
they are vexatious
or frivolous or when their continuance, in all
the circumstances of the case, is, or may prove to be, an injustice
or serious
embarrassment to one or other of the parties, as, for
example, when a person brings proceedings without having paid costs
that
have been incurred in former proceedings in which the same
subject-matter was in dispute.’ [footnote omitted]
10
Section
151(2) of the LRA.
11
See
in this regard: Herbstein and Van Winsen
The Civil Practice of
the High Courts of South Africa
chapter 10 page 306. [footnote
omitted]
12
The
full bench of the Western Cape High Court
in Belmont House (Pty)
Ltd v Gore and Another NNO
2011 (6) SA 173
(WCC) likewise held
that although the Courts lack a general equity-based discretion to
stay Court proceedings they do have the
discretion to grant a stay
where the proceedings in question are either vexatious or amount to
an abuse of the process of the
court. In particular, a Court will
not, in the absence of a viable defence of
lis alibi pendens
,
on equitable grounds suspend an eviction order pending the
finalisation of related matters.
13
1927
CPD 27
at 29
:
‘
…
the
practical rule adopted seems to be that amendments will always be
allowe unless the application to amend is
mala
fide
or
unless such amendment would cause an injustice to the other side
which cannot be compensated by costs, or in other words unless
the
parties cannot be put back for the purposes of justice in the same
position as they were when the pleading which is sought
to amend was
filed.’
14
1964
(4) SA 109
(T) at 110F-111A: ‘
Generally
the Court leans towards the granting of amendments
.
WESSELS, J., expressed it thus
in
Whittaker v Roos and Another,
1911
T.P.D. 1092
at pp. 1102 - 3:
“
This
Court has the greatest latitude in granting amendments, and it is
very necessary that it should have. The object of the Court
is to do
justice between the parties. We are not going to give a decision
upon what we know to be wrong facts.”
There are two guiding
rules to be distilled from the various authorities:
1. There must have been
a
bona fide
mistake on the part of the party seeking to
amend;
2. the amendment must
not cause prejudice to the other side which cannot be cured by an
appropriate order as to costs.
It
has been suggested, especially in view of the decision in
Rishton
v Rishton,
1912 T.P.D. 718
, that an
amendment involving a withdrawal of an admission is to be put on a
different basis. This is not so. The approach is
the same, but the
withdrawal of an admission is usually more difficult to achieve
because (i) it involves a change of front which
requires full
explanation to convince the Court of the
bona
fides
thereof, and (ii) it is more
likely to prejudice the other party, who had by the admission been
led to believe that he need not
prove the relevant fact and might,
for that reason, have omitted to gather the necessary evidence.
I shall apply the tests
of
bona fides
and absence of prejudice to the present facts.
The applicant must first convince the Court of his
bona fides
,
and when he has done so, the respondent can still stave off the
amendment by showing prejudice which cannot be cured by an order
as
to costs.’
15
See
in this regard
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
(2007)
28
ILJ
2405
(CC) where the Court emphasised the principle that labour disputes
must be resolved without unreasonable delay
:
‘[44] The only tension in relation to reconciling s
145 of the LRA with the provisions of PAJA, so the Supreme Court of
Appeal reasoned, was in relation to time-limits. Section 145 of the
LRA provides that a party may apply to set aside an arbitration
award within six weeks of the date that the award was served on him
or her. PAJA, on the other hand, requires that proceedings
for
judicial review be instituted without unreasonable delay and in any
event not later than 180 days after exhaustion of internal
remedies
or after the person concerned became aware of the action involved
and the reasons for it. The Supreme Court of Appeal
relying on its
decision and those of this court emphasized that labour disputes
require speedy resolution and the legislature,
in prescribing the
time period of six weeks in s 145(1) of the LRA, gave clear effect
to this imperative. Thus, according to
the court, it may be expected
that the legislature would legislate different time periods in
different fields and that did not
militate against its earlier
conclusions