About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 81
|
|
Eskom v NUMSA and Others (JR1755/14) [2017] ZALCJHB 81 (8 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR
1755/14
In
the matter between:
ESKOM
HOLDINGS SOC
LTD
Applicant
and
NUMSA
First
Respondent
CCMA
Second Respondent
D
I K WILSON
N.O
Third Respondent
NUM
Fourth Respondent
SOLIDARITY
Fifth Respondent
Heard:
1 March 2017
Delivered
:
8 March 2017
Summary:
When the defence of
res
judicata
applies, the CCMA lacks
jurisdiction to rehear the matter. A ruling that the CCMA has
jurisdiction is bound to be set aside when
on the objective facts
present at the time of the ruling show that the dispute to be
entertained became
res judicata.
The principles applicable to
res
judicata
restated. Held: [1] The
ruling is reviewed and set aside. [2] There is no order as to costs.
JUDGMENT
MOSHOANA,
AJ
Introduction
[1]
This
is an opposed review application. The applicant seeks to review and
set aside a jurisdictional ruling made by the third respondent.
The
third respondent found that the issue referred by the first
respondent before me for arbitration was not
res
judicata
.
Following that he directed that the second respondent before me must
set the matter down for arbitration. The applicant was aggrieved
by
such a finding and launched the present application, effectively
punting that the finding that the issue is not
res
judicata
is wrong. Accordingly, the first respondent wrongly assumed
jurisdiction. The test on reviews of this nature remains that of
whether
objectively viewed was the third respondent correct in
assuming jurisdiction. The well-known
Sidumo
[1]
test finds no application.
Background
facts
[2]
The relevant facts are
that around August 2013, the applicant referred a dispute around a
wage dispute for arbitration. The first
respondent had demanded
around 44.3% increase whereas; the applicant had made a final offer
of 6.3%. Both parties, the applicant
and the third respondent
contended that their demands are fair. The applicant contended that
its 6.3% offer is fair and the third
respondent contended that its
44.3 % is fair. After listening to the parties, arbitrator F Brand
(arbitrator Brand) came to the
conclusion on the evidence before him
that he was not convinced that the demands of the Unions, first
respondent included are fair
and reasonable. He also concluded that
the applicant’s offer, as a package was fair and reasonable and
therefore acceptable.
In other words, the 44.3% was rejected and the
6.3% was accepted. The first and fourth respondents were aggrieved by
this finding
and headed to this Court for a relief. On 15 December
2016, this Court issued a reportable judgment
[2]
.
Effectively, the first and third respondents were non-suited.
However, the first respondent had in the meanwhile, requested that
the demand of J.H Smith’s R10 000.00 study loan be
arbitrated as it has been left open by arbitrator Brand. As expected,
the applicant queried the jurisdiction of the second respondent. An
argument was presented to the effect that the issue of JH Smith
was
res judicata
and has been disposed of in the arbitration hearing presided over by
arbitrator Brand. After hearing evidence and argument, the
third
respondent came to the conclusion that the issue of JH Smith was not
dealt with in the arbitration hearing before arbitrator
Brand.
Accordingly, he rejected the
res
judicata
argument and
concluded that the second respondent assumed jurisdiction. The
applicant was aggrieved thereby and approached this
Court in the
present application.
Evaluation
[3]
The real and the only objective fact determinative of this
review application is whether the JH Smith issue was dealt with or
not.
If it was dealt with, then there is no jurisdiction. If it was
not dealt with then there is jurisdiction. Mr Van der Riet for the
first respondent conceded that if on the facts
res judicata
is
present then there was no jurisdiction. He submitted that the only
objective facts to be considered to determine the issue of
jurisdiction are the ones presented before the third respondent
through the evidence of Ms Edmonds. Ms. Edmonds’ evidence
was
that the issue of JH Smith was not dealt with. Reference was made to
a document containing the demand of the first respondent
in this
regard. It was recorded that ‘
the
demand that the JH Smith Bursary be increased to R10 000.00
will
be abandoned
if Eskom
can provide proof that it is currently R10 000.00’.
[4]
It is common cause that at the arbitration proceedings
conducted by arbitrator Brand, the applicant did not furnish the
required
proof. Axiomatically, the demand was not abandoned.
Nonetheless I cannot agree with Mr Van Der Riet that the objective
facts are
those provided by Ms. Edmonds only. Another objective fact
is the contents of the award by arbitrator Brand.
[5]
The requisites of a
valid defence of
res
judicata
in Roman Dutch Law
are that the matter adjudicated upon, on which the defence relies,
must have been for the same cause, between
the same parties and the
same thing must have been demanded. Voet in his work
Commentarius
ad
Pandectas
[3]
wrote:
‘
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 these requisites is wanting, the exception
fails.’
[4]
[6]
The defence effectively
prevents a party to previous litigation from disputing the
correctness of a judgment in the sense that he
or she may not again
rely upon the same cause of action. The defence involves a judicial
determination of some question of law
or issue of fact, in the sense
that the decision could not have been legitimately or rationally
pronounced by the tribunal without,
at the same time, determining
that question or issue in a particular way. Such determination,
though not declared on the face of
the recorded decision, is deemed
to constitute an integral part of that decision as effectively as if
it had been made so in express
terms.
[5]
[7]
In his award, arbitrator Brand concluded thus:
“
[24]
It appears that the issue of the JH Smith study loan was not dealt
with at the arbitration hearing
held by Commissioner Brand. Although
the second respondent included the issue amongst its demands, the
wording of the demand was
changed before the arbitration hearing, as
it appeared that the union was still seeking clarification. It
appears that the union
did not address this issue in the arbitration
hearing as it expected the Applicant to respond to its demand for
proof that it was
in fact paying R10 000. However the Applicant
did not respond and appears to have ignored the issue entirely.
[25]
In the circumstances it appears that the issue was not ripe for
arbitration due to the uncertainty
of the union as to what the
current position was. It only obtained this certainty after
Commissioner Brand’s award was issued.
Since the issue was not
dealt with by either of the parties at arbitration, it cannot have
been considered by Commissioner Brand
and therefore cannot be
res
judicata
… “
[8]
To my mind this
conclusion is wrong. It completely ignores the objective facts
contained in the award that was placed before him.
After detailing
the background in the award, arbitrator Brand stated that the issue
that fell to be decided by him was: ‘
I
am required to determine a fair and reasonable increase in the
remuneration package of the bargaining unit employees.’
Arbitrator Brand
specifically stated that the fairness-based approach was adopted and
using it as a yardstick will determine whether
the parties have
advanced sufficient reasons for acceptance of their respective
positions. Amongst the demands of the first respondent
laid the
demand that the JH Smith study loan be increased to R10 00.00.
[6]
[9]
Inclusive of JH Smith study loan demand the total cost to
company was 44.3%. Indeed the first respondent ran the risk of not
presenting
any evidence to support its demand in relation to JH
Smith. Most importantly, arbitrator Brand concluded thus:
“
[110]
On the evidence before me I am not convinced that the Unions ‘demands
are fair and reasonable.
[111]
Having considered all the evidence before me, I am convinced that
Eskom’s offer as a package is fair
and reasonable and therefore
acceptable. It is therefore not necessary to consider an intermediate
position.”
[10]
The effect of the
conclusion mentioned above is that the offer of the applicant was
accepted as being fair and reasonable and the
demands of the first
respondent inclusive of the JH Smith demand was rejected as being
unfair and unreasonable. To make his award
clear, arbitrator Brand
concluded that he makes no order in relation to the demands not
specifically mentioned in his award. The
demand of JH Smith was
specifically mentioned
[7]
.
Therefore, he made an order on it by rejecting it and accepting
Eskom’s offer. Accordingly on the objective facts, the third
respondent was wrong when he concluded that it is apparent that the
issue of JH Smith was not dealt with. He was wrong to interpret
paragraph 120 of arbitrator Brand’s award to mean that the
issue remained open. Even if he is right that the wording of the
demand changed before arbitration, the literal wording of the change
was such that the demand would be abandoned upon proof of
a certain
fact. That fact was not proven; therefore the demand was not
abandoned. Since the demand was not abandoned, it remained
a live
issue forming part of the rejected 44.3% increase. The JH Smith
formed an integral part of the demands by the first respondent
at
arbitration conducted by arbitrator Brand. I cannot agree with Mr
Patel for the applicant that the judgment of this Court dismissing
the review application forms part of the objective facts to determine
the issue of jurisdiction. At the time of the ruling to be
expunged,
9 August 2014, the judgment of this Court was not in place. Even if
it was in place, it would not have assisted because
according to the
third respondent, the issue was not dealt with by arbitrator Brand.
[11]
In summary, I come to the conclusion that the third respondent
wrongly assumed jurisdiction, which he did not have due to the
operation
of the
res judicata
defence. I am satisfied that on
the objective facts apparent on the body of arbitrator Brand’s
award, the issue of JH Smith
was decisively dealt with and the second
respondent was effectively
functus officio
.
Order
[12]
In the results, I make the following order:
1.
The ruling issued by the third respondent under case number HO
2602/13 dated 9 August 2014 is hereby reviewed and set aside.
2.
It is replaced with an order that the second respondent lacked
jurisdiction to entertain the demand of JH Smith’s increase
of
study loan to R10 000.00.
3.
There is no order as to costs.
_______________________
GN
Moshoana
Acting
Judge of the Labour Court of South Africa
Appearances
For the Applicant:
Mr A Patel
(Heads drafted by Mr Boda SC)
Instructed by:
Cliffe Dekker Hofmeyer Inc,
For
the First Respondents: Mr H Van Der Riet SC
Instructed
by:
Ruth Edmonds Attorneys
[1]
Sidumo and another v
Rustenburg Platinum Mines and others
2008 (2) SA 24 (CC)
[2]
National Union of Metalworkers of South Africa and Another v
Commission for Conciliation Mediation and Arbitration and others
Case number
JR 388/14 delivered by Lagrange J on 15 December 2016
[3]
Para 44.2.3
[4]
Translation
from
Bertram
v Woods
1893 (10) SC 177
at 181.
[5]
See
Liley
v Johannesburg Turf Club
1983 (4) 584 (W) and
Kommisaris
van Binnelandse Inkomste v Absa Bank Bpk
1995 (1) SA 653 (AD)
[6]
Paragraph
26.18 of the award.
[7]
Paragraph
120 of the award