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[2015] ZALCJHB 378
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Mofomme v Minister of Police and Another (JS104/15) [2015] ZALCJHB 378 (27 October 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JS 104/15
In
the matter between:
AUDREY
LEAH MOFOMME
Applicant
and
MINISTER
OF POLICE
First
Respondent
COMMISSIONER
OF THE SOUTH AFRICAN
POLICE
SERVICES
Second
Respondent
Heard
:
23 October 2015
Delivered
:
27 October 2015
JUDGMENT
VAN
NIEKERK J
[1]
The applicant has referred a dispute to this court in terms of Rule
6. The dispute
concerns what the applicant contends to be
unfair dismissal, which took effect on 1 June 2014. On 29 January
2015 the applicant
filed a statement of claim in which she seeks the
remedy of reinstatement. The respondents have raised a special plea
of res judicata.
They do so by reference to an order granted by this
court on 2 April 2014 in an urgent application filed under case
number J751\2014.
[2]
The order granted in the urgent application, by agreement, reads as
follows:
1.
The first respondent [the second respondent in the present
proceedings] is ordered to permit the applicant to return to work
with
effect from 31 March 2014 on the same terms and conditions as
applied then, pending consultations with over her possible
retrenchment
in accordance with the provisions of
s 189
of the
Labour
Relations Act 66 of 1995
.
2.
The first respondent is ordered to pay the costs of the
application.
[3]
In her statement of claim, the applicant summarises the events that
culminated in
the institution of urgent proceeding is on the granting
of the order on 2 April 2014. In paragraph 40 of the statement
onward,
she canvasses developments that occurred during the course of
April and May 2014. It is not necessary for present purposes to
canvass
the nature and content of these developments and
interactions. In paragraph 50 of the statement of claim, the
applicant avers that
her services would terminate with effect from 1
June 2014. This is admitted by the respondents. In part E of the
statement of claim,
the applicant avers that the second respondent
failed to comply with the LRA in that she failed to consult,
alternatively properly
to consult with the applicant about a
contemplated dismissal based on operational requirements rendering
her dismissal substantively
and\or procedurally unfair. The applicant
also contends that in terms of her contract of employment and
applicable legal directives,
it was not competent for the second
respondent to terminate her employment on the grounds of
‘self-redundancy’ which
appears to be the basis on which
the applicant’s employment was ultimately terminated.
[4]
The requirements for a plea of
res judicata
are well
established – they acquire the party raising the defence to
show that a previous judgment on the merits by a competent
court has
been given in an action or application between the same parties,
based on the same cause of action and in respect of
the same subject
matter. In
National Sorghum Breweries Ltd t/a Vivo African
Breweries v International Liquor Distributors (Pty) Ltd
[2000] ZASCA 159
;
2001 (2)
SA 232
(SCA) Olivier JA (writing for the majority) said the
following:
The
fundamental question in the appeal is whether the same issue is
involved into actions; in other words, is the same thing demanded
on
the same ground, or, which comes to the same, is the same relief
claimed on the same cause of action, or, to put it more succinctly,
has the same issue now before the court been finally disposed of in
the first action?
[5]
In other words, what the court is required to do is to compare the
relevant facts
upon which reliance is placed for the contention that
the cause of action is the same in both proceedings. Additionally,
the order
granted in the first application must be considered to
determine whether or not the issues raised in the pleadings have been
definitively
disposed of on the merits.
[6]
The respondents contend that the applicant’s claim in the
present proceedings,
having regard particularly to paragraph 55 of
her statement of claim, make it clear that her present claim is the
same as under
case number J751\14.
[7]
I am not persuaded that this is so. First, in the present
proceedings, the applicant
seeks final relief. She seeks to be
reinstated on the basis that the second respondent dismissed her with
effect from 1 June 2014
and that the dismissal was substantively and
procedurally unfair. The applicant also relies on events that took
place between 2
April 2014 and 1 June 2014 in order to support her
claim. Secondly, a proper interpretation of the order granted by this
court
on 2 April 2014 indicates that what is clearly contemplated is
that the applicant be entitled to return to work pending the outcome
of consultations to be held with her over her possible retrenchment.
The use of the word ‘possible’ in particular indicates
that neither party accepted the applicant’s termination of
employment as anything more than that – a possibility that
may
or may not eventuate after further consultation. The tentative
wording indicates that the order does not constitute a final
judgment; indeed, it specifically leaves open the prospect that the
applicant may not be retrenched or put another way, it contemplates
the applicant’s dismissal is no more than a future possible
event.
[8]
In these circumstances, in my view, it cannot be said that the order
granted on 2 April
2014 is a final order or that the legal and
factual issues raised in the present proceedings are limited to those
raised in the
proceedings conducted under case number J 751\14 are
the same.
[9]
Finally, in relation to costs, there is no reason having regard to
the requirements
of the law and fairness why costs should not follow
the result.
I
make the following order:
1.
The special plea is dismissed, with costs
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the applicant: Adv. MF Ackerman instructed by Len Dekker &
Associates Attorneys
For
the Respondent: Adv. AP Laka SC with him Adv. W Lusenga instructed by
the State Attorneys Pretoria