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[2014] ZALCJHB 141
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Ngobeni v Minister of Communications and Another (J897/14) [2014] ZALCJHB 141 (30 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO J 897/14
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
WISANI
EVIDENCE NGOBENI
Applicant
and
MINISTER
OF
COMMUNICATIONS
First
Respondent
DG:
DEPT OF
COMMUNICATIONS
Second
Respondent
Application
heard: 29 April 2014
Judgment
delivered: 30 April 2014
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an urgent application in which the applicant seeks an interim
order
inter alia
interdicting the respondents from proceeding
with any disciplinary action against him, pending the conciliation of
an unfair labour
practice dispute between the parties that has been
referred to the General Public Service Sectoral Bargaining Council
and failing
a successful conciliation, pending adjudication by this
court.
[2]
In an amended notice of motion filed before the hearing of the
present application, the applicant sought also to interdict the
respondents on the same basis reflected above, pending an application
for leave to appeal filed under case number J08\14 and if
leave to
appeal is granted, pending a final determination of the appeal by the
Labour Appeal Court.
Material
facts
[3]
I do not intend to burden this judgement with a repetition of the
facts relevant to the application. These are recorded in the
affidavits filed by the parties, and much of the background to the
dispute between them is captured in the judgment delivered via
my
brother Tlhothalemaje AJ on 3 April 2014. In that judgment, the court
dismissed, with no order as to costs, an application in
which the
applicant in the present proceedings sought a declaratory order to
the effect that certain disclosures made by him were
protected by the
Protected Disclosures Act (PDA) and that the respondents should be
interdicted and restrainted from subjecting
him to any occupational
detriment. It is not disputed that at that stage, the respondent had
made allegations of misconduct against
the applicant and that he had
been requested to furnish reasons as to why he should not be
suspended.
[4]
In its judgement, the court held that the applicant had established
that he made a protected disclosure, in good faith. However,
the
court dismissed the application on the basis that the pending
disciplinary action against him did not constitute an occupational
detriment. In so finding, the court effectively held that the
applicant had failed to establish any causal connection between the
disclosure and the pending disciplinary action. The court’s
conclusion appears to be found in paragraph [74] of the judgment
in
which the court said the following:
‘
In summary, the
applicant has demonstrated that he has made a protected disclosure,
which disclosure was made in good faith. The
applicant is however not
entitled to the relief he seeks in view of the failure to establish
the requirements of the relief that
he seeks to the extent that it
was found that the intended disciplinary action will not constitute
an occupational detriment, that
he has not established what
irreparable harm he would suffer, and that he has alternative
remedies.’
[5]
In this regard, the court found
inter alia
that the applicant
would be entitled to rebut the allegations against him at the pending
disciplinary enquiry, and that he was
in any event entitled to refer
any dispute concerning an alleged dispute concerning an occupational
detriment to the bargaining
council for conciliation and thereafter,
should conciliation fail, to this court for adjudication.
[6]
It should be observed that the order of the court was in the nature
of final order in which the court specifically ruled that
the
intended disciplinary action against the applicant did not constitute
an occupational detriment and that the respondents were
entitled to
institute disciplinary proceedings against the applicant (at
paragraph [71]). I do not read the judgment to mean, as
the applicant
contends, that the application was dismissed only because the court
found that a mere threat of disciplinary action
did not meet the
requirements for a final interdict. It seems to me, from the reading
of the judgment, that the court was not satisfied
that there was a
causal nexus between any disclosure made by the applicant and an
occupational detriment in the form of disciplinary
proceedings that
the respondent sought to institute. For this reason primarily, the
application was dismissed and the applicant
cautioned to appear at
the disciplinary hearing and answer the allegations made against him.
[7]
After the delivery of the judgment on 10 April 2014, the applicant
was handed a notice of a disciplinary hearing, and notice
of a
possible precautionary suspension pending that hearing. In terms of
the notice of the disciplinary hearing, the applicant
was called upon
to appear before a hearing on 25 April 2014 to answer to 5 charges of
misconduct. On the same day, the applicant
filed an application for
leave to appeal against the judgment of Tlhotlhalemaje AJ. On
11 April 2014, the applicant was suspended
from his employment on
full pay. On the same day, the applicant referred a dispute to the
bargaining council, contending that is
being subjected to
disciplinary action constituted an occupational detriment for the
purposes of the PDA and thus an unfair labour
practice. In the
referral, the applicant sought an outcome in terms of which the
respondents would be prohibited from proceeding
with any disciplinary
action against him and his suspension uplifted.
The
issue
[8]
The primary defence raised by the respondent in the present
proceedings is averred to the application to interdict the
disciplinary
hearing is res judicata. In this regard, the respondents
contend that the applicant has previously referred a dispute
regarding
the same facts seeking to declare, amongst other things,
the same disciplinary proceedings to constitute an occupational
detriment.
In
Nestle (SA) (Pty) Ltd v Mars Inc.
2001 (4) SA
542
(SCA), the Supreme Court of Appeal said the following:
‘
The defence of
lis
alibi pendens
shares features in common with the defence of
res
judicata
because they have a common underlying principal which is
that they should be finality in litigation. Once a suit has been
commenced
before a tribunal that is competent to adjudicate upon it
the suit must be brought to its conclusion before the tribunal and
should
not be replicated (
lis alibi pendens
). By the same
token the suit will not be permitted to be revived once it has been
brought to its proper conclusion (
res judicata)
. The same
suit, between the same parties, should be brought only once and
finally’.
[9]
In
Dumisani & another v Mintroad Sawmills (Pty) Ltd
(2000)
21
ILJ
125 (LAC), the Labour Appeal Court held that ‘
it
is against public policy that a litigant should on the same grounds
be able to keep demanding the same relief from the same adversary’
(See paragraph [6] of the judgment).
Analysis
[10]
For a defence of
res judicata
to succeed where that defence
relies on an earlier judgment, it is incumbent on the body claiming
res judicata
to show that there has already been prior
judgment, in respect of the same parties and in which the same point
was at issue. There
is no dispute that the judgment of Tlhotlhalemaje
AJ is a prior judgment that concerned the same parties. The applicant
submits
that the judgment does not concern the same issue since the
applicant now seeks interim as opposed to final relief pending the
outcome of unfair labour practice proceedings now instituted and
secondly, that in the previous application, no charges had been
presented to him, whereas in the present instance, he has been
furnished with charges and a disciplinary hearing has been convened.
[11]
I deal with the second point first. In the application that
previously served before this court, the applicant, as I have
indicated above, contended that the disciplinary proceedings that the
respondents intended to convene, constituted
an
occupational detriment. The respondents have now convened that
enquiry. The disciplinary action that the applicant seeks to
interdict is the same disciplinary action on which the court has
already pronounced. I am not persuaded by the applicant’s
submission that there is a material difference for the purposes of
the definition of an ‘occupational detriment’ in
that in
the application previously before the court, disciplinary proceedings
were pending whereas they are now the subject of
specific charges. It
is clear from the terms of the judgment referred to above that at
least some of the specific allegations of
misconduct which related to
the pending disciplinary proceedings have been incorporated into the
charges now brought against the
applicant. In so far as these
proceedings concern an application for an interim order, I fail to
appreciate how it can be said
that for the purposes of a plea of
res
judicata
, the suit is any different. While it is true that in the
present application the applicant need only establish a prima facie
right,
I fail to appreciate how this can be accomplished in the face
of a prior factual finding that the disciplinary proceedings that
the
respondents intended to initiate against the applicant were not
causally linked to any disclosure that he may have made. In
my view,
in these circumstances, the requirements of a defence of
res
judicata
have been met and the present application stands to be
dismissed on that basis.
[12]
In these circumstances, it is not necessary for me to consider any of
the further submissions made by the respondent, but for
that
concerning the amendment to the applicant’s notice of motion.
That amendment, as stated above, seeks to interdict the
disciplinary
proceedings pending the outcome of the application for leave to
appeal against the judgment of Tlhotlhalemaje AJ.
In
Constantines
v Jockey Club od SA
1954 (3) SA 35
(C), Herbstein J held that
where in a main application the court had found that the applicant
had not made a case for an interdict,
there would be no point in
granting the applicant an interim interdict pending the outcome of
any appeal proceedings. Since the
applicant was not successful in his
attempt to interdict the respondents from proceeding with the
disciplinary action against him,
in my view, he cannot seek an
interim interdict pending an appeal against that decision. To the
extent that the court may be entitled
to entertain such an
application (see
Indwe Aviation v Petroleum Oil and Gas
Corporation of SA (2)
2012 (6) SA 110
(WCC)), the applicant has
failed to establish that he will suffer irreparable harm should the
application not be granted. The applicant
has referred a dispute
concerning both his suspension and the institution of disciplinary
proceedings to the bargaining council,
and he has the right to refer
those disputes to the appropriate forum, in due course, should those
disputes remain unresolved.
Further, the applicant has alternative
remedies available to him, both in the form of the avenues open to
him in the statutory
dispute resolution process and specifically, the
range of remedies (some of which may be ordered to operate with
retrospective
effect) that will be available to the applicant should
he ultimately succeed.
[13]
In so far as the unfair suspension dispute referred to the bargaining
council is concerned, the parties agreed (correctly)
that the outcome
of the present application in relation to the disciplinary
proceedings underway would dictate the outcome of that
element of the
relief sought.
[14]
Finally, in relation to costs, this court is traditionally reluctant
to make orders for costs in cases where individual employees
seek to
pursue grievances against the employers in good faith. The potential
threat of an order for costs order not to have the
effect of closing
the doors of this court to such persons. However, in the present
instance, I must necessarily be reminded that
this is not the first
occasion on which the applicant has brought the respondents to court
in relation to preliminary issues concerning
the allegations of
misconduct made against him. Given the fact that the applicant has
chosen to seek interim relief in respect
of the matter in which final
relief has already been refused, in my view, the institution of these
proceedings was unreasonable
and an abuse of the process of this
court. In the exercise of the broad discretion conferred on the court
by s162 of the LRA, there
is no compelling reason why costs should
not follow the result
For
the above reasons, make the following order:
1. The
application is dismissed, with costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the Applicant: In person
For
the First and Second Respondents: Adv. T Venter instructed by the
State Attorney