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[2014] ZALCJHB 217
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Munzhele and Others v Limpopo Economic Development Agency and Another (JR2080/13) [2014] ZALCJHB 217 (19 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: JR 2080/13
In
the matter between:
NDVHUHO
NORMAN MUNZHELE
FIRST
APPLICANT
FANISA LYDIA
LAMOLA SECOND
APPLICANT
THOMAS JOHN
NKUNA THIRD
APPLICANT
MOYAHABO
RAPHUDU
FORTH APPLICANT
JAN GIDEON MOCKE
FIFTH
APPLICANT
AND
LIMPOPO ECONOMIC
DEVELOPMENT AGENCY FIRST
RESPONDENT
MEC FOR ECONOMIC
DEVELOPMENT, SECOND
RESPONDENT
ENVIRONMENT
AND TOURISM
Heard:
17 December 2013
Delivered:
19 June 2014
JUDGMENT
Nkutha AJ
Introduction
[1]
This application was initially brought on
urgent basis before my brother, Tlhothalemaje AJ, on 20 September
2013 for the following
orders:
“
1.1
Declaring the decision of the second respondent to the effect that
the applicants’ appointments
by the first Respondent are
null
and
void
ab initio
is unlawful, invalid and of
no force and effect;
1.2
Setting aside the second respondent’s aforesaid decision; and
1.3
Directing the first respondent to comply with its obligations in
terms of the applicants’
letters of appointment, in particular
to pay the applicants the salaries contemplated in those letters.”
[2]
In a judgement delivered on 8 October 2013,
the court struck the application off the roll on an account of lack
of urgency with
no order as to costs. Consequently, the applicants
set the application down on the ordinary opposed roll.
[3]
The second respondent filed supplementary
papers wherein it raised
a point
in
limine
that the matter is
res
judicata
on the basis that, in the same
judgement, Tlhothalemaje AJ went further and dismissed the
application on the jurisdictional point,
which in essence disposed of
the application.
Background facts
[4]
I do not intend to burden this judgement
with a reprise of the background facts as they are succinctly
captured in the judgment
delivered by
Tlhothalemaje
AJ
. The court, after it had held that the
applicant failed to make a case for urgency, went further and
extensively dealt with the
jurisdictional point that had been raised
by the second respondent. The court accordingly upheld the
jurisdictional point on the
basis that the applicants have
alternative remedies and that conclusion appears in paragraphs [41]
to [42] of the judgment in which
the court said the following:
“
[41]
Coming back to the requirements of a declaratory order, in light of
what the applicants are seeking,
is my view that this court cannot
countenance situations where the parties couch their claim in such
a manner that the sole
purpose is to clearly circumvent the dispute
resolution provisions as provided for by the Labour Relation Act. As
already indicated
elsewhere in this judgement, this court should be
loath to granting declaratory orders where a party has access to
alternative
remedies. In this case, irrespective of how the
applicants pleaded their case or framed the nature of their dispute,
ultimately,
their alterative remedies lie in the provisions of
section 186(1)(a) and section 191 of the LRA. Like other unfortunate
litigants
who find themselves without employment, they should wait
for their turn in the litigation queue. In the alternative, nothing
precludes
them from approaching this court in terms of section 77A(e)
of the BCEA.
[42]
Following upon the principles set out in Gradwell there is no basis
upon which the court can
grant the declaratory order sought in this
case, moreso in view of alternative remedies at the disposal of the
applicants. To this
end, the respondents’ contention that this
court lacks jurisdiction to determine this application is equally
upheld.”
Has the same issue
now before this court been finally disposed?
[5]
The second respondent’s bone of
contention in the present proceedings is that the application has
been brought to its proper
conclusion and, as such, the applicants
should not be permitted to revive it.
[6]
In
Yellow
Star Properties 1020 (Pty) Ltd v Department of Development Planning
and Local Government
[1]
the
court, quoting from the
National
Sorghum Breweries v International Liquor Distributors
,
[2]
stated the requirements for a successful reliance on the
res
judicata
or
exceptio
to be as follows:
“
The
requirements for a successful reliance on the exceptio were, and
still are: idem actor, idem reus, eadem res and eadem causa
petendi.
This means that the exceptio can be raised by a defendant in a later
suit against a plaintiff who is ‘demanding
the same thing on
the same ground’ (per Steyn CJ in African Farms and Townships
Ltd v Cape Town Municipality
1963 (2) SA 555
(A) at 562A); or which
comes to the same thing, ‘on the same cause for the same
relief’ (per Van Winsen AJA in Custom
Credit Corporation (Pty)
Ltd v Shembe
1972 (3) SA 462
(A) at 472A-B; see also the discussion
in Kommissaris van Binnelandse Inkomste v ABSA Bank Bpk
1995 (1) SA
653
(A) at 664C-E); or which also comes to the same thing, whether
the ‘same issue’ had been adjudicated upon (see Horowitz
v Brock and others
1988 (2) SA 160
(A) at 179A-H).”
[7]
In
Dumisani
& another v Mintroad Sawmills (Pty) Ltd
[3]
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’.
[8]
There is no dispute that the judgment of
Tlhotlhalemaje AJ is a prior judgment that concerned the same
parties. The applicants,
however, contended that the court order only
struck the matter off the roll on the basis of urgency. As such, the
merits of the
application could not have been properly canvassed, at
that stage, so as to warrant a final determination by the court. In
this
regard, the counsel for the applicants referred this court to
Yellow Star
where
the court held that:
“
The
applicant also faces difficulties in regard to the requirement of
eadem quaestio. For purposes of res judicata or issue estoppel,
the
relevant issue must be one which the court is called upon to
determine in its judgment. Where, as is here the case, the court
is
dealing with motion proceedings, the issues which arise for
determination are those contained in the parties’ affidavits
and a court can only decide an issue not raised in the papers if such
issue has been fully canvassed by the parties in the expectation
that
it will be determined as an issue before court. There is no
suggestion of that having here been the case.”
[4]
[9]
In
PT
Operational Services (Pty) Ltd v RAWU obo Ngwetsana,
[5]
the Labour Appeal Court considered the issue of dismissal of
applications on the grounds of urgency. Even though the context is
different to the present, the principle is relevant and the court
concluded as follows:
“
Although
I agree that the appropriate order in a matter where urgency has not
been shown should be striking the matter from the
roll, it seems to
me that even where the word “dismissed” is used it does
not necessarily mean that the dismissal amounts
to a final order.
One will still have to enquire, where there is doubt, whether the
matter was dismissed on the merits or
not. If it was dismissed
on the merits then the order is final. If not, then it is not
final. A finding that
a matter is not urgent does not mean that
there are no merits in the applicant’s case. Even if a
matter is dismissed
for lack of urgency it can and should be
re-enrolled. To reason otherwise would be to allow form to
triumph over substance.”
[10]
It is clear,
ex
facie
, the judgment that
Tlhotlhalemaje
AJ
exhaustively dealt with the application
on its merits. He was alive to the fact that his findings on
urgency rendered superfluous
to deal with the jurisdictional point
but he did so, nonetheless, for the sake of completeness, so he
states.
[11]
From paragraphs [21] to [42] of the
judgement, the court dealt with
the issues
raised in the papers as detailed by the parties. In essence, the
applicants sought a declaratory order against the respondents
on
urgent basis. The court, despite having refused to indulge the
applicants on urgency, dealt with the merits of the application
and
found that it lacked jurisdiction to grant the said order since the
applicants have alternative remedies at their disposal.
[12]
Therefore,
Yellow
Star
is evidently distinguishable. Even
though the form of court order permits re-enrolment since the matter
was struck off the roll,
the substance of the judgement is final
since it dismissed the application on the merits.
I
am satisfied that, in these circumstances, the requirements for a
defence of res
judicata
have been met and the present application stands to be dismissed on
that basis.
Costs
[13]
In this court, the law and fairness are
prime considerations when dealing with costs and the rule that costs
follow the result is
not automatically applicable. The applicants are
individual litigants seeking to vindicate their rights in good faith
and the doors
of this court should always be open to such persons.
For this reason, I am not inclined to make an order as to costs.
Order
[14]
In the premises, the application is
dismissed with no order as to costs.
__________________________
Nkutha AJ
Acting Judge of the
Labour Court of South Africa
Appearances
For the Applicants: K
Tsatsawane Gildenhuys Malatji Inc.
For the Second
Respondent: WR Mokhare SC and SB Nhlapo
Instructed
by: The State Attorney
[1]
[2009]
3 All SA 475 (SCA)
[2]
[2000] ZASCA 159
;
2001
(2) SA 232
(SCA) at 239 para 2.
[3]
(2000)
21 ILJ 125 (LAC) at para 6.
[4]
Yellow
Star
at
para 29.
[5]
(2013)
34 ILJ 1138 (LAC) at para 35.