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[2014] ZALCJHB 133
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Feni v PAN South African Language Board and Another (J892/2014) [2014] ZALCJHB 133 (24 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE NO: J892/2014
ZIXOLISILE
FENI Applicant
and
PAN
SOUTH AFRICAN LANGUAGE BOARD
First
Respondent
MXOLISI
ZWANE Second
Respondent
Heard:
22 April 2014
Delivered:
24 April 2014
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The Applicant brought this urgent application to seek an order in the
following terms;
1.1
“That the disciplinary proceedings initiated by the respondents
against the applicant
are stayed pending the resolution of dispute of
occupational detriment referred by the applicant to the CCMA and
after conciliation
to the Labour Court; (pendete lite)” (Sic);
[2]
The Applicant is currently employed by the First Respondent as its
head of Legal services. There is a history of acrimonious
litigation
between the parties dating back to June 2010 when the applicant was
first dismissed by the first respondent. He has
since been
retrospectively reinstated in his position. He is currently involved
in numerous other matters against the respondents
that are before
this court. Amongst these are disputes under case number J2824/2013
pertaining to the alleged restructuring of
his position and
functions. That matter has not as yet been set-down. The second
respondent was appointed by the Minister of Arts
and Culture as the
Caretaker CEO of the first respondent. The second respondent’s
appointment was the subject of litigation
before the North Gauteng
High Court in April 2013 under case number 6498/2012. The application
to invalidate his appointment was
apparently dismissed by that Court.
There is however a similar application before this court under case
number J157/2014.
Background:
[3]
On 15 March 2014, the applicant made what he deemed to be a protected
disclosure by sending correspondence to the office of
the Public
Protector wherein he requested an investigation into allegations of
abuse of power by the respondents, irregular spending
and non-payment
of contributions towards employees’ benefits. On 20 March 2014,
the applicant was served with a letter of
intention to suspend him on
the grounds of serious and substantial breaches. He was invited to
make representations as to the reasons
he should not be suspended,
which he duly did. The allegations against the applicant pertained to
appearances at this court on
various dates. It was alleged that he
had represented persons who had brought cases against the first
respondent instead of defending
the respondents against such claims.
It was also alleged that he had committed serious dereliction of
duties.
[4]
On 31 March 2014 the applicant approached this court on an urgent
basis under case number J439/2014, and sought
inter alia
, a
declarator to the effect that his suspension was unlawful. He sought
reinstatement with immediate effect, and an order that
the
respondents be interdicted from initiating any disciplinary
proceedings against him. The court, per Van Niekerk J, struck the
matter off the roll on account of lack of urgency.
[5]
On 3 April 2014, the applicant was issued with a notice to attend a
disciplinary enquiry scheduled for 25, 29 & 30 April
2014. It is
these proceedings that the applicant sought to stay. The applicant’s
contention was that the second respondent
in particular was pursuing
the disciplinary proceedings against him after he had reported his
(second respondent’s) conduct
to the Public Protector and the
President. He had submitted that he had made a protected disclosure
in good faith, and that the
information he had disclosed was
substantially true, and that had not made those disclosures for the
purposes of gain. His main
contention was that the charges levelled
against him amounted to an occupational detriment as envisaged in the
provisions of the
Protected Disclosures Act 26 of 1999 (The PDA), and
that the timing of the charges was a direct response and retaliation
to the
disclosures he had made.
[6]
Having received a copy of a notice to attend the disciplinary enquiry
through his attorneys of record, the latter had on 4 April
2014, sent
correspondence to the first respondent in which
inter alia
,
they confirmed receipt of the notice and made allegations of an
occupational detriment. The applicant’s attorneys of record
had
further indicated that a dispute pertaining to an occupational
detriment was to be referred to the CCMA after which the matter
would
then be referred to this court. It was also pointed out that the
validity of the charges were placed in dispute and a demand
was made
that the disciplinary enquiry be stayed pending the resolution of the
dispute to the CCMA. Despite putting the first respondent
on terms,
no response was forthcoming.
[7]
On 9 April 2014, a similar letter was sent to the first respondent by
the applicant’s attorneys’ of record in terms
of which an
undertaking was sought by 12h00 on 10 April 2014 that the hearing
would not proceed, failing which the applicant would
approach this
court. On 10 April 2014, the applicant referred a dispute to the
CCMA. The relief he sought from the CCMA is “
Permanent stay
of disciplinary proceedings
”. On 14 April 2014 he filed a
Notice of Motion and his Founding Affidavit in respect of this
application.
The
respondents’ response:
[8]
The respondents’ contention was that this application dealt in
substance with the same issues and the same relief as under
the
previous urgent application under case number J439/2014. To this end,
it was argued that this application was
res judicata
. It was
further submitted that the only new issue arising is the referral of
a new dispute to the CCMA based on the occupational
detriment in
terms of the PDA. It was however submitted that this issue was also
canvassed by the applicant under case number J439/2014.
The
respondents have further argued that the application is not urgent;
that the applicant has not established a clear right for
the relief
he seeks; that he has an adequate alternative remedy; and has not or
will not suffer irreparable harm.
Is
the matter res judicata?
[9]
The requisites for the exception
res
judicata
are stated by Hoffman and Zeffertt
[1]
as follows:
‘…
it
is now trite that to succeed in the defence of
res
judicata
, the defendant in civil
proceedings has to establish that a prior final judgement had been
given in proceedings involving (a) the
same subject matter, (b) based
on the same res or thing, (c) between the same parties, or, put in
another way, if the cause of
action has been finally litigated in the
past by the parties, a later attempt by one of them to proceed
against the other on the
same cause, for the same relief, can be met
by the exception
res judicata
.’
[10]
In
Huisman
and Another v Lakie and Others
[2]
Plasket J held that;
In strict terms, a plea
of res judicata may be raised when, one dispute having been
terminated (by an order that is final in effect),
another is set in
motion and both involve the same parties, concern the same thing and
the same cause of action. In Prinsloo
NO
& others v Goldex
15 (Pty) Ltd & another
[2012] ZASCA 28
(28 March 2012), Brand JA
set out the position thus:
‘
The
expression “
res judicata
”
literally means that the matter has already been decided. The gist of
the plea is that the matter or question raised by
the other side has
been finally adjudicated upon in proceedings between the parties and
that it therefore
cannot be raised again.
According to Voet 42.1.1, the exception was available at common law
if it were shown that the judgment in
the earlier case was given in a
dispute between the same parties, for the same relief on the same
ground or on the same cause (idem
actor, idem res et eadem causa
petendi).’
[11]
A party to proceedings may raise
res
judicata
only if the matter has been heard by a competent court, which has
made a final and definitive judgment or order on the merits of
the
matter, and as such the order should be immune from variation or
review because of changed circumstances
[3]
.
[12]
In the applicant’s written heads of argument in respect of the
application under J439/2014, one of the issues identified
for
determination by the court was whether the applicant’s
suspension does not amount to an occupational detriment or not.
In
the present application, the same issue as to whether there has been
an occupational detriment was also raised in the applicant’s
written heads of argument. The applicant’s contention was that
the issues were different in that the first application dealt
with
the issue of the suspension and intended disciplinary enquiry, whilst
the second application dealt with the staying of the
disciplinary
enquiry pending resolution of the dispute by the CCMA or
alternatively a determination by this court.
[13]
The allegations surrounding the applicant being subjected to an
occupational detriment were made in respect of the two applications.
Furthermore, the same submissions as to the reason the applicant
should not be suspended were also raised as to the reason he should
not be subjected to a disciplinary enquiry. As it was correctly
pointed out on behalf of the respondents, the applicant invoked
the
provisions of the PDA in respect of interdicting the disciplinary
proceedings and the seeking the upliftment of his suspension
in
respect of the first application, as he has done in seeking the stay
of the disciplinary proceedings in this application. Even
though
there are vast similarities between the two causes of action, and
further even though the court should be averse to entertaining
the
same disputes being brought by parties after they were previously
before the same court, ultimately, the court’s hands
will be
tied where the first application was simply struck off the roll on
account of lack of urgency.
[14]
In essence, Van Niekerk J did not make a final and definitive
judgment or order on the merits of the matter. This implies that
the
applicant can re-enroll that matter on the ordinary roll for its
merits to be dealt with. To this end, it is concluded that
the
defence of
res judicata
as raised by the respondents is not
sustainable. The argument that Van Niekerk J had ruled the first
application was not urgent
and it therefore followed that this
application is not equally urgent can also not be sustained in that
there are factual differences
between the basis of the urgency
advanced in the first application and those advanced in this
application as shall be illustrated
below.
Urgency:
[15]
The second respondent denied that the application before the court
was urgent based on the very same reasons advanced in the
urgent
application under J439/2014. It was further submitted that this
application was premature and in bad faith, and that it
was up to the
chairperson of the disciplinary enquiry to consider an application
for a postponement by the applicant on 25 April
2014. The second
respondent also denied that the applicant was being subjected to an
occupational detriment, and that the disciplinary
enquiry against the
applicant was unrelated to his alleged protected disclosure. It was
contended that the allegations against
the applicant were triggered
by his conduct as a legal officer of the respondent, and that the
applicant had not explained the
reason he had not instituted a
dispute based on the PDA from the onset instead of at this late
stage. To this end, it was further
submitted that the allegations in
respect of the PDA are an afterthought, opportunistic and an
unjustified attempt to prevent the
disciplinary hearing from
proceedings.
The
legal framework in respect of urgency:
[16]
In order for an applicant to be successful in an application for an
interim interdict he/she must establish the following:
a)
A
prima facie
right, even though open to some doubt;
b)
a well-grounded apprehension of irreparable
harm if the interim relief is not granted;
c)
absence of an alternative remedy;
d)
a balance of convenience in favour of
granting the interim relief.
[17]
In view of the discretionary nature of an interim interdict, these
requisites should not be judged in isolation, but in interaction
with
each other
[4]
. Harms
explained this discretion in the following manner
[5]
:
“
A
court always has a wide discretion to refuse an interim interdict
even if the requisites have been established. This means that
the
court is entitled to have regard to a number of disparate and
incommensurable features in coming to a decision, and not that
the
court has a free and unfettered discretion. The discretion is a
judicial one, which must be exercised according to law and
upon
facts. On the other hand, a court has no discretion to grant an
interim interdict if the requirements have not been established.”
[18]
Before dealing with the question whether the applicant has satisfied
the requirements of the nature of relief he is seeking,
the first
hurdle he has to surmount however is to convince the court that
indeed the matter before it deserves urgent attention.
An applicant
instituting an urgent application must justify the necessity to
circumvent the ordinary time periods set out in the
rules of this
Court. This much can be gleaned from Rule 8 of the Rules of this
Court which provides that:-
“
(2)
The affidavit in support of the application must also contain-
(a)
the reasons for urgency and why urgent
relief is necessary;
(b)
the reasons why the requirements
of
the rules were not complied with, if that is the case ...”
[19]
Whether a matter is urgent involves two considerations. The first is
whether the reasons that makes the matter urgent, have
been set out
and secondly whether the applicant seeking relief will not obtain
substantial relief at a later stage. Thus, the applicant
must satisfy
the court that if the matter is not treated as one of urgency,
something drastic is likely to happen
[6]
.
[20]
Amongst the fundamental principles relating to urgency is that when
an application is brought on that basis, the institution
of the
proceedings should take place as soon as reasonably possible after
the cause thereof has arisen. In this case, it was common
cause that
on 20 March 2014, some five days after the applicant had made a
disclosure, he was issued with a notice of intention
to suspend him.
In his representations as to the reason he should not be suspended,
the applicant had raised a whole range of issues
and in respect of
the alleged protected disclosure, he merely deemed it to be “curious”
that he would report the second
respondent to the public protector
and thereafter be placed on precautionary suspension.
[21]
On 31 March 2014, the applicant launched an urgent application under
case number J439/2014, which was heard and struck from
the roll on 3
April 2014 as already indicated above. On 3 April 2014, the applicant
was issued with a notice through his attorneys
of record to appear at
a disciplinary enquiry. This application was only filed on 14 April
2014. On 10 April 2014 the applicant
referred a dispute to the CCMA,
and that matter has since been set down for 2 May 2014.
[22]
Other than the letters of 4 and 9 April 2014 sent to the first
respondent requesting a postponement, there is no explanation
from
the applicant as to the reason that he did not immediately approach
the court after he was issued with a notice to appear
at the
disciplinary enquiry. The letters of 4 and 9 April 2014 and lack of
response thereto cannot serve as an excuse for not filing
this
application immediately after he was served with the notice to attend
the disciplinary enquiry. In any event, those letters
merely served
as complaints and a demand to postpone the disciplinary proceedings.
The respondents were correct in their approach
in contending that
only the chairperson of the disciplinary enquiry could make a
decision as to whether to grant the postponement
or not. To the
extent that the applicant persisted in seeking a postponement from
the respondents, and further to the extent that
he had not acted in
due haste in bringing this application, it is concluded that the
urgency which he now alleges is self-created.
[23]
During argument, I had pointed out to Mr. Faku on behalf of the
applicant that the mere fact that the disciplinary enquiry
was
scheduled to commence from 25 April 2014 was not sufficient on its
own to establish urgency. His main contention however was
that
firstly, the matter was urgent on the basis that there was reason to
believe that the applicant would not get a fair hearing
in view of
the history surrounding his previous dismissal by the first
respondent. In the applicant’s view, as also gleaned
from his
pleadings, he had a reasonable apprehension of harm if the enquiry
proceeded as it was just a window dressing exercise
to dismiss him.
He contended that this would have a detrimental impact on him, as a
dismissal would prejudice his reputation, advancement,
job security
and fulfilment. It was also submitted on his behalf that the matter
was urgent as he had made a protected disclosure.
[24]
I took issue with the unsubstantiated contention that the intended
disciplinary enquiry would be a sham or that the applicant
had reason
to believe that he may not be accorded a fair hearing. The applicant
seems to rely on the events of June 2010 when he
was dismissed by the
first respondent in his absence. Those events cannot be the basis for
a conclusion to be made that the new
disciplinary enquiry to be held
on 25 April 2014, with a new chairperson and new set of
circumstances, would lead to the same results.
The applicant was
furnished with a detailed “charge sheet” which spelt out
his rights in clear terms and indicated
who the chairperson and the
initiator would be. He has had ample opportunity to prepare for that
enquiry since the notice to attend
the enquiry was issued. There are
no urgent or special circumstances obliging the court to intervene or
interfere with that process.
As already indicated, the fact that the
enquiry will take place on a particular date is not on its own a
factor that can persuade
the court to treat the matter as urgent.
Inasmuch as an employee is entitled to fair labour practices, the
employer is equally
entitled to institute discipline in the
workplace, and the courts should be weary to interfere with those
processes.
[25]
The applicant also contended that the urgency was further based on
the fact that if dismissed, this would have a detrimental
impact on
him as his reputation will be prejudiced, that his advancement, job
security and fulfilment will be prejudiced. These
factors are
unfortunately the invariable consequences of a dismissal which are
suffered by a multitude of employees on a daily
basis having gone
through a disciplinary enquiry. However, these employees all await
their turn in the litigation queue, and follow
all dispute resolution
mechanisms provided in the Labour Relations Act.
[26]
In
Radinaledi
Josiah Mosiane v Tlokwe City Council
[7]
,
Francis J had lamented the abuse of the court process by well-heeled
individuals in the following terms:
“
A
worrying trend is developing in this Court in the last year or so
where this Court’s roll is clogged with urgent applications.
Some applicants approach this Court on an urgent basis either to
interdict disciplinary hearings from taking place, or to have
their
dismissals declared invalid and seek reinstatement orders. In most of
such applications, the applicants are persons of means
who have
occupied top positions at their places of employment. They can afford
top lawyers who will approach this Court with fanciful
arguments
about why this Court should grant them relief on an urgent basis. An
impression is therefore given that some employees
are more equal than
others and if they can afford top lawyers and raise fanciful
arguments, this Court will grant them relief on
an urgent basis”
[8]
.
And,
“
All
employees are equal before the law and no exception should be made
when considering such matters. Most employees who occupy
much lower
positions at their places of employment who either get suspended or
dismissed, follow the procedures laid down in the
Labour Relations
Act 66 of 1995 (the Act). They will also refer their disputes to the
CCMA or to the relevant Bargaining Councils
and then approach this
Court for the necessary relief. Other employees would still approach
this Court for relief in the ordinary
manner and not on an urgent
basis
[9]
.”
[27]
The above sentiments are wholly apposite in this case. Whilst it is
acknowledged that this Court is a creature of the
Labour Relations
Act and
designed to achieve the objectives of that legislation, its
processes are nevertheless not there for the taking or abuse. But for
the fact that the application under J439/2014 was struck off the
roll, the applicant was unrelenting and had deemed it appropriate
to
bring a similar application within 14 days of the first application
having been struck off. In arguing that the matter was urgent,
he had
in the words of Francis J, approached this Court with fanciful
arguments about why this Court should grant them relief on
an urgent
basis. Not only were the arguments advanced fanciful but they were so
presumptuous and unreasonable that it is clear
that the applicant is
desperate to avoid or prevent the disciplinary enquiry from taking
place. As already indicated, this court
cannot be abused for those
ends. Furthermore, it needs to be stated that the applicant has
already referred a dispute to the CCMA.
That matter is set down for 2
May 2014. Thus other than the alternative remedy to be found in
respect of that process, the applicant
still has the option of the
internal disciplinary enquiry which he is so desperately attempting
to circumvent. Accordingly, the
matter should be struck off the roll
on account of lack of urgency.
Costs:
[28]
This court will order costs having taken into account considerations
of law and fairness. The general approach that should
be followed by
courts in considering the aspect of “fairness” is that
costs do not automatically follow the result,
unless there are
special or exceptional circumstances justifying a costs order.
Conduct including
mala
fides
,
unreasonableness and frivolousness has been found to be factors
justifying the imposition of a costs order
[10]
.
[29]
In the light of the conclusions and comments already made in regard
to the aspect of urgency, it is also my view that the applicant
should be saddled with the costs of this application. In approaching
the court after the respondents had not acceded to his request
to
postpone the disciplinary enquiry when he could have simply
approached the chairperson of the enquiry on the hearing date, the
applicant clearly acted unreasonably. His alleged apprehension that
he may not get a fair hearing was clearly imagined and not
supported
by any discernible facts. In my view, it would be unfair to burden
the respondents with legal costs in circumstances
which such costs
could clearly have been avoided.
Order:
i.
The application is struck off from the roll
on account of lack of urgency.
ii.
The applicant is ordered to pay the costs
of this application.
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr. T. Faku of Faku
Attorneys
For
the Respondents: Adv.
L Nowosenetz
Instructed
by:
MB Mokoena Attorneys
[1]
The
South African Law of Evidence, 4th Ed, at 337
[2]
(3248/10)
[2014] ZAECGHC 1 (9 January 2014) at para 19
[3]
Le
Roux v Le Roux
1967(1) SA 446 AD at 463
[4]
See
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton and Another
1973 (3) SA 685 (A)
[5]
Civil
Procedure in the Supreme Court (page A-43)
[6]
Vermaak
v Taung Local Municipality
(JR315/13) [2013] ZALCJHB 43 (12 March 2013) at para 12.
[7]
(2009)
30 ILJ 2766 (LC)
[8]
At
para 15
[9]
At
para 16 [17]
[10]
Chevron
Engineering (Pty) Ltd v Nkambule & Others
2004 (3) SA 495
(SCA) para 42.