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[2017] ZALCJHB 462
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Association of Mineworkers and Construction Union (AMCU) v Chamber of Mines South Africa and Others [2017] ZALCJHB 462 (5 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No. JS611/2016
In
the matter between
ASSOCIATION
ON MINEWORKERS AND
CONSTRUCTION
UNION
(AMCU)
Applicant
and
CHAMBER
OF MINES SOUTH AFRICA
First Respondent
NATIONAL
UNION OF MINEWORKERS
Second Respondent
UASA
Third Respondent
SOLIDARITY
Fourth Respondent
Heard:
18 May 2017
Delivered:
05 December 2017
Summary:
Exception, Rule 23 of the Uniform Rules-
Lis alibi pendens-
section 6 vs section 27 of the EEA.
JUDGMENT
MABASO
AJ
Introduction
[1]
The applicant delivered an
amended statement of claim in pursuance of its alleged unfair
discrimination claim,
[1]
asking for an order in the following terms: that the alleged
historical wage disparities and gaps in a certain category of
employees
in gold sector (mines) are discriminatory on the grounds of
race alternatively on arbitrary grounds; that the extension of the
collective agreement in the gold mining sector to employees who are
not members of a trade union
[2]
perpetuates growing
income inequalities, and are in violation of section 6(1) in the
Employment Equity Act
[3]
(the EEA). Furthermore, the applicant asks for an order that the
first respondent be ordered to pay damages to a certain category
of
employees and in addition to this a payment of compensation. The only
claim against the second, third and fourth respondents
is a costs
order.
[2]
The applicant is the
Association of Mineworkers and Construction Union (AMCU), the first
respondent is Chamber of Mines of South
Africa (the Chamber of
Mines), the second respondent is the National Union of Mineworkers
(NUM), the third respondent is UASA,
and the fourth respondent is
Solidarity (Solidarity). AMCU, NUM, UASA and Solidarity are
registered trade unions in terms of the
provisions of the Labour
Relations Act
[4]
(the LRA).
[3]
UASA has raised an exception to
the amended statement of claim, and its grounds are that “
AMCU
has failed to demonstrate a cause of action for three reasons
”
[5]
namely:
(a)
that AMCU’s claim “is
squarely about large-scale income differentials. The Legislature
created a specific remedy for
this s27 of the EEA. AMCU is limited to
the remedies set out in s27 of the EEA. Consequently, section 6 of
the EEA cannot form
the basis for a cause of action concerning
industry-wide income differentials”
[6]
.
(whether ss 6(1) or s27
points )
(b)
where AMCU bases its claim on
section (6)(1) of the EEA, on the grounds of race “it has not
demonstrated that race is a factor
in the appointment into positions
in lower or higher categories”. On this point, UASA
inter
alia,
says “[o]n the
applicant’s version, all persons employed in the categories 4 -
8 are black. The applicant selects,
“artisans, miners and
officers” as its comparator. The applicant does not allege that
either the majority of all or
all persons employed artisans, miners,
or officers are white.”
[7]
(section 6-
the race
ground
).
[8]
(c)
“AMCU’s reliance upon the difference in the standard rate
of pay as the arbitrary ground is circular. The difference in the
standard rate of pay cannot simultaneously be the result and reason
for discrimination. AMCU has not pleaded that the difference is
irrational and that this irrationality amounts to
discrimination.”(section
6-
the arbitrary ground
).
[4]
On the other hand, the Chamber of Mines has raised a special plea and
an exception, in the following manner:
(d)
that AMCU is precluded from pursuing this litigation, taking into
account that
(i) there is a pending litigation ,on the same cause of
action and involving the same parties, in a form of a review
application
before this Court (
Lis alibi pendens
).
(e)
It is also in agreement with point (a) of the UASA’s exception.
I
shall deal with these below without any sequence.
Brief
Background
[5]
In August 2016 the applicant instituted a claim against the
respondents, wherein it is clearly pleaded as to what reliefs are
sought in respect of the Chamber of Mines. However, in respect of the
second to further respondents (which are all fellow trade
unions) it
only asks for a costs order. The Chamber of Mines delivered a
statement of response incorporated a point
in
limine
. Whereas UASA
delivered a notice of exception. These preliminary points were argued
before
Mooki
AJ who upheld the exception by making an order that the statement of
claim be struck out and gave AMCU 30 days to amend its statement
of
case and to pay costs.
[9]
[6]
Following this order, AMCU proceeded to deliver the amended statement
of the claim, whereafter, again, UASA delivered the notice
of
exception raising the points as mentioned above and on the other hand
the Chamber of Mines delivered the special plea and the
notice of
exception.
[7]
In the amended statement of claim, AMCU alleges that its members are
employed in the gold sector by the Chamber of Mines in
grade category
4-8 and all of these employees are blacks and have been disadvantaged
by the past laws and practices in the mining
industry in respect of
remuneration and remuneration increases, as they are amongst the
lowest paid employees in the mining industry.
[8]
AMCU further avers the types of jobs that are being performed by
these members,
[10]
that the income disparity prejudices the category 4-8 employees and
perpetuates the discrimination against them on the grounds
of race
and alternatively on arbitrary grounds.
[11]
Exception
[9]
The following brief inculcation of the applicable principles is
important.
[10]
The rules of this Court do not specifically provide the provisions in
respect of exception, as it is housed in rule 23(1) of
the Uniform
Rules, which reads thus:
“
Where
any
pleading
is vague and embarrassing or
lacks
averments which are necessary to sustain an action
or
defence, as the case may be, the opposing party may, within the
period allowed for filing any subsequent pleading, deliver an
exception thereto and may set it down for hearing in terms of
paragraph (f) of sub-rule (5) of rule 6: Provided that where a party
intends to take an exception that a pleading is vague and
embarrassing he shall within the period allowed as aforesaid by
notice
afford his opponent an opportunity of removing the cause of
complaint within 15 days: Provided further that the party excepting
shall within 10 days from the date on which a reply to such notice is
received or from the date on which such reply is due, deliver
his
exception.(Own emphasis)
[11]
Exceptions may be raised in two forms, namely, where a party is
alleging that the pleading lacks the averment to sustain the
cause of
action, and/or where a party alleges that the pleading is vague and
embarrassing.
In casu
,
the former is raised by UASA being supported by the Chamber of
Mines, this was further confirmed by the UASA’s representative
during argument and taking into account that no notice was delivered
in terms of sub-rule 23(4) of the Uniform Rules.
[12]
[12]
In the Uniform Rules, the phrase “
sustain
an action
” as found
in Rule 23(1) is not defined. I deem it necessary to briefly
deliberate as to how other courts have defined the
phrase “
cause
of action”
taking
into account that UASA’s contention is that “The
applicant has failed to demonstrate
a
cause of action
”. The
then Cape Provincial Division, by
Watermeyer
J,
[13]
clarified this phrase in this way,
“
But
a much narrower meaning has also been given to the expression "cause
of action."
After
considerable difference of opinion, it was decided in England that
the expression "cause of action" in the Common
Law
Procedure Act meant "
that
particular act on the part of the defendant which gives the plaintiff
his cause of complain”
(Own
emphasis)
[13]
It is for the excipient to satisfy this Court that the claim as
pleaded by AMCU cannot be supported by any reasonable
interpretation of the amended statement of claim.
[14]
Put differently, the excipient has a burden to show that no matter
how one interprets the pleadings, there is no cause of action
that
has been pleaded. As recently enunciated by the Supreme Court of
Appeal in the matter of
Children’s
Resource Centre Trust and others v Pioneer Food (Pty) Ltd and others
(Legal Resources Centre as amicus curiae)
[15]
),
where
Wallis
JA, writing for the Court said,
“
Causes
of action are not in the first instance dependent on questions of
law
.
They require the application of legal principle to a particular
factual matrix. The test on exception is
whether
on all possible readings of the facts no cause of action is made out.
It is for the defendant to satisfy the Court that
the conclusion of
law for which the plaintiff contends cannot be supported upon every
interpretation that can be put upon the facts
”
[16]
(
Own emphasis)
[14]
In LAWSA,
[17]
the authors opined that, if evidence can be led which can disclose
the cause of action in the pleading, that particular pleading
is not
excipiable. See also
Harmse
v City of Cape Town
[18]
,
where this Court referring to the Rules of this Court held that:
“
Accordingly
the rules of this Court anticipate that the relief claimed might not
have been precisely pleaded in the statement of
claim filed. The
Rules of this Court further anticipate that the factual matters at
issue will be dealt with more fully and precisely
in the pre-trail
conference. The rules therefore anticipate that the parties at the
pre-trial conference will have dealt in much
more detail not only
with the factual matters but also the legal issues. The statement of
claim and response thereto foreshadows
this activity but is not a
substitute for it. It is for this reason that the rule on pre-trial
conferences provides for reaching
consensus on the issues that the
court is required to decide”.
[19]
[15]
All parties herein , AMCU, the Chamber of Mines and UASA are in
agreement that this Court has to be guided by
inter
alia
the SCA’s
obiter
dictum
in the matter of
Telematrix (Pty) Ltd t/a
Matrix Vehicle Tracking v Advertising Standards Authority SA
[20]
,
para 3, where it said:
“
Exceptions
should be dealt with sensibly. They provide a useful mechanism to
weed out cases without legal merit.
An
over-technical approach destroys their utility
.
To borrow the imagery employed by Miller J, the response to an
exception should be like a sword that ‘cuts through the tissue
of which the exception is compounded and exposes its
vulnerability”(Own emphasis)
[16]
Summing up, the person who raises an exception has a burden to
convince the court that, he is not raising an over-technical
point
which would prevent the substantial merits of the case from being
decided by a court, it is not possible that evidence and/or
any step
that would be taken such as pre-trial minutes would not correct the
alleged defect. It is my view, that such court in
deciding on this
aspect has to take into account
inter alia
(i) the manner in
which the pleadings have been crafted, (ii)the onus of proof,(iii)
burden to adduce evidence, (iv) the manner
in which such point has
been raised, (v)the relief sought, and (vi)the type of exception
(either lacks averments which are necessary
to sustain an action or
vague and embarrassing) that has been raised by such party and other
factors. I deal with this below.
Whether
AMCU’s claim is based on ss 6(1) or s 27 of the EEA
[17]
As UASA submitted that in truth the claim for AMCU is one which is
based on section 27 of the EEA and not in terms of sub-section
6(1)
of the same Act. In its heads of argument, it submitted that section
27 of the Act is “t
o regulate large-scale systematic
disparities
”. UASA, summarises the case for the applicant
as follows:
“
AMCU
seeks to address this disproportiate income disparities between
category 4 - 8 employees on one hand, and all other employees
on the
other.
Alternatively,
AMCU seeks to address perceived unfair discrimination (whether
directly or indirectly) in terms and conditions of
employment between
category 4 - 8 employees and other employees on the other. Terms and
conditions of employment include remuneration.
This unfair
discrimination, on AMCU’s formulation, is based upon race,
alternatively arbitrary
”
[18]
AMCU in their submissions contended that their case is about unfair
discrimination in terms of section 6(1) of the EEA, resisting
this
exception on the basis that it set out essential averments for both
its main cause of action and the alternative one.
[19]
The upshot of this point has to be determined by looking at the EEA
itself and the provisions that have been mentioned by both
parties.
There are two reasons why UASA’s exception (whether ss 6(1) or
s 27 points) cannot succeed herein, because of the
following.
[20]
In contrast with what the SCA said in
Children’s
Resource Centre Trust’s
[21]
matter, that UASA’s
exception of lack of cause of action is based on what the law should
apply and not on the factual matrix
thereof. Therefore, the question
of whether AMCU has brought its claim in respect of the correct
section of the EEA or not cannot
succeed , as the test in exception
is about facts (that particular act on the part of the [respondent]
which gives the [applicant]
his cause of complain) and not which law
to apply, as in the pleadings. What is required is that a litigant
should plead facts,
not law and such facts will have to support a
principle.
[21]
If my conclusion above is wrong, I still believe that the excipients(
the Chamber of mines and UASA) have not made out a case
in respect of
this exception in that: Section 27 of the EEA that the excipients are
wrenching the applicants to, directs
as to what a “
designated
employer”
has to do
in order to correct among other things discrimination, e.g. unfair
discrimination by virtue of a difference in terms
and conditions
of employment such designated employer “
must
take measures to progressively reduce
[22]
such differentials
”.
This section also gives the Minister of Labour a task in respect of
assisting to “
reduce”(
not
eliminate
)
such discrimination. There is no timeframe as to when this should be
done. A third party, which is either a union and/or employees
have no
compulsory task to do under this section as it provides that,
“
27. Income
differentials and discrimination.—(1)
Every
designated employer
,
when
reporting in terms of section 21 (1), must submit a statement
,
as prescribed, to the Employment Conditions Commission established by
section 59 of the Basic Conditions of Employment Act, on
the
remuneration and benefits received in each occupational level of that
employer’s workforce.
(2
) Where
disproportionate income differentials, or unfair discrimination by
virtue of a difference in terms and conditions
of employment
contemplated in section 6 (4)
, are reflected in the statement
contemplated in subsection (1),
a designated employer must
take measures to progressively
reduce
such
differentials subject to such guidance as may be given by the
Minister as contemplated in subsection (4).(Own emphasis)
[22]
Whereas sub-section 6(1) of the EEA has to be read with section 10 of
the same Act regarding the process to be followed by
any party that
is involved in a dispute relating to discrimination, for example,
sub-section 10(2) provides that:
“
(2)
Any
party
to a
dispute concerning this Chapter may refer the dispute in writing to
the CCMA within six months after the act or omission that
allegedly
constitutes unfair discrimination” .(Own emphasis)
[23]
Reading the latter sub-section, it clearly gives any party who is of
the view that the discrimination has taken place to refer
the dispute
to the appropriate forum within a specified time period. As the word
“
Any”
is not defined in this section, it clearly
includes a union, employee, and an employer if any of them is of the
view that there
is a discrimination that has taken place, whereas
section 27 refers to every designated employer and it does not refer
to a number
of employees whether large scale or small scale.
[24]
Sub-section 10(2) refers to any party and it does not specifically
refer to the designated employer as compared to section
27. I have
also taken into account that, section 3 of the EEA provides that this
Act must be interpreted in compliance with the
Constitution and the
purpose of the same Act. The purpose of the EEA
inter
alia,
is that it is to
promote equal opportunities and fair treatment in employment through
the “
elimination”
[23]
of unfair discrimination.
[25]
I am mindful of the fact that in interpreting a section in a statute,
one has to interpret it in line with the purpose of such
Act, as
Myburgh
JP held that “
a
particular section may have to be interpreted restrictively rather
than extensively”
[24]
,
and I share the same view
in respect of section 27 in that it does not deal with grounds as
contained in sub-section 6(1).
[26]
There is nothing in the EEA which suggests that one who has detected
an unfair discrimination cannot take an action but wait
for a
designated employer to take action, and what if such an employer does
not take action?. Taking into account that there are
timeframes in
which a party is allowed to take action against an alleged defaulter
of unfair discrimination in terms of chapter
II of the EEA.
Therefore, I conclude that the point that has been raised by UASA has
no basis and should be dismissed.
Section
6: the race ground and -the arbitrary ground
[27]
The respondents’ contention that AMCU relies on race under
section 6 (1) of the EEA has failed to demonstrate that race
is a
factor in the appointment to the position in those categories.
[28]
The starting point would be to establish, based on the amended
statement of case before this Court, as to whether the facts
before
this Court show that there is any alleged “
particular
act on the part of the defendant
”,
and in order to determine this, one has to look at “
whether
on all possible reading of facts
”,
is this established. In order to determine this most important
question, the Court has to ask about the issue of the onus
of proof.
AMCU, in terms of section 11 of the EEA is required to make
allegations of unfair discrimination based on race, once
this has
been done, the onus of proof is on the employer to prove that such
discrimination did not take place or is justified.
[25]
[29]
As thus, the rules of this Court, specifically Rule 6, do not require
an exposition of the full facts. In this matter, one
has to look at
whether the pleadings make any allegations of unfair discrimination
which will necessitate the Chamber of mines
to be in a position to
answer to such application. In the amended statement of claim, AMCU
inter alia
avers that:
“
8.
members in gold sector employed by [the Chamber of mines] in grade
category 4 -8,
are
all black employees as defined in the EEA
and have been disadvantaged by apartheid and past discriminatory laws
and practices in the mining industry as they applied to remuneration
and remuneration increases ”
“
14.
On or about 12 May 2015 the union address correspondence to
Harmony Anglo Gold Ashanti and
Sibanye concerning wages and other
conditions of employment for the 2015 review period in which the
union raised its concern with
the ever widening income disparities
between ordinary workers and members of management and in particular
the wage gap between
category 4-8 employees and
other
employees in
the workplace.
16.
This wage disparities and wage gaps were and remain discriminatory as
against the category 4-8 employees on the grounds of their
race
…”(Own emphasis)
[30]
Section 1 the EEA, on the definition section, defines black people as
“
a generic term which
means Africans, Coloured and Indians
”.
The dictionary meaning of the word “
other
”,
is “
used to refer to a
person …that is different from one, already mentioned or known
”.
[26]
I, therefore, conclude that this word “
other”
refers to races which are not black employees . Clearly, in
line with the
Children’s
Resource
[27]
principle above, I am
satisfied that AMCU has presented sufficient averments in
respect of allegations of unfair discrimination
based on race. This
will give the Chamber of mines an opportunity to respond as required
by section 11 of the EEA. Therefore, AMCU
has managed to plead that
there are comparators. This exception by UASA is one which can be
classified as an over-technical approach
which destroys the utility
of exception.
[31]
In respect of the arbitrary ground which is pleaded as an alternative
ground, I am mindful of the onus of proof in the respect
of this one,
but I am satisfied that looking at the amended statement of claim it
covers sufficiently and the respondents would
be in a position to
respond by way of statement of response.
Lis
alibi pendens
[28]
[32]
The Chamber of Mines has raised the point which has some kind of
weight which is
lis alibi
pendens
, in that there is a
pending litigation
[29]
against the same parties
[30]
on
the same cause of action
.
[31]
It
has to be emphasised that in this country there are three main
sources of law, namely common law, customary law, and statutes.
[33]
The
lis alibi pendens
is a common law principle which has been applied in this country for
decades. The EEA is a statute which was promulgated
shortly after South Africa introduced its first democratic
system
.
[32]
Once these elements have
been properly established, the other party will now have a burden to
present evidence which will have to
suggest otherwise. The then TPD,
in
Marks and Kantor v Van
Diggelen
[33]
,
held that,
“
The
points raised by the objection and which are in dispute support an
objection of lis pendens and the real dispute between the
parties was
whether these points were established and not whether the correct
description was res judicata
.
It is clear from Voet (44.2.7) that the requisites of the defence of
lis pendens and res judicata, in relation to the identity
of the
issue and parties, are the 'same
”
[34]
The
Marks
dictum indicates that in dealing with this principle one
has to apply the same principle that is applicable in
res
judicata
.
[34]
Recently the Constitutional Court in the case of
Molaudzi
v S
[35]
,
in discussing
res judicata,
had the following to say in respect of the application of common law
principles,
“
Since
res judicata
is a common law principle, it follows that this Court may develop or
relax the doctrine if the interests of justice so demand.
Whether it
is in the interests of justice to develop the common law or the
procedural rules of a court must be determined on a
case-by-case
basis
. Section
173 does not limit this power. It does, however, stipulate that
the power must be exercised with due regard
to the interests of
justice. Courts should not impose inflexible requirements for
the application of this section
Rigidity
has no place in the operation of court procedures
”.
(Own emphasis)
[35]
Since it is common law, sometimes it has to be relaxed and in
relaxing common law there are a number of factors that have to
be
taken into account, , as correctly pointed out by Scott JA in the
matter of
Smith v Porritt
and Others
[36]
where was held that:
“
The
recognition of the defence in such cases will, however, require
careful scrutiny. Each case will depend on its own facts and
any
extension of the defence will be on a case by case basis. (KBI v Absa
Bank supra at 670E-F.) Relevant considerations will include
questions
of equity and fairness not only to the parties themselves but also to
others. As pointed out by De Villiers CJ as long
ago as 1893 in
Bertram v Wood
10 SC 177
at 180, ‘unless carefully
circumscribed, [the defence of res judicata] is capable of producing
great hardship and even positive
injustice to individuals’
[36]
As the Chamber of Mines has asked this Court to make an order that
the proceedings under this case number be stayed pending
the
finalisation of the other matter which is a review application, in
essence, it says both matters cannot run parallel to each
other. In
order to do that this Court has to take into account that the stay of
proceedings is a matter of discretion, and such
discretion should be
exercised sparingly.
[37]
[37]
As I have mentioned above, that one has to look at a number of
factors before he can decide as to whether proceedings are stayed
pending the finalisation of another matter. The purpose of the EEA is
to
eliminate
discrimination. I need to consider the sections concerned and look at
the Act in its totality in order to determine as to whether
there is
any restriction in respect of the one section as compared to the
other. In respect of section 6 read with section 10,
(a) it is housed
under Chapter II, (b) deals with any employee , (c) unfair
discrimination dispute has to be referred to
the CCMA within six
months, (d) failure of the CCMA to resolve the dispute under
conciliation and any party to that dispute may
refer the matter to
this Court within 90 days
[38]
,
(e) most importantly the provisions of ss 11(1) deal with the onus of
proof, in that if an unfair discrimination is alleged the
employer
will have the onus of proof, for example, to say discrimination did
not take place or is a fair discrimination.
[38]
The provision of section 27 of the EEA, (a) housed in Chapter III,
(b) refers to every designated employer, (c) a task
is given to
a designated employer in that upon submitting a statement as required
by section 27 (1) would be required to take measures
in order
to
reduce
such differentials and the Minister will have to be
involved and (d) in reading the section it suggests that a designated
employer
must report its conduct to the Director-General of
Department of Labour. The question is what will happen whereby such
designated
employer does not submit such statement or submits an
incorrect statement and/or submit a statement but conceal
remuneration disparities.
In terms of the EEA, the only answer would
be to pay a fine.
[39]
Taking into account that the Constitution of the Republic of South
Africa provides that “
When
interpreting any legislation . . . every court, tribunal or forum
must promote the spirit, purport and objects of the Bill
of
Rights
”
[39]
if it was the intention of the legislature that these two processes
cannot run parallel . I am of the view that it would have been
dealt
with in the same Act. Further section 27 does not deal with
sub-section 6(1) but sub-section 6(4), therefore I conclude that
I
cannot make an order staying the proceedings pending the finalisation
of the review application.
[40]
I agree with the Chamber of Mines that the affidavit of AMCU in the
review application consists of similar averments as in
this matter,
meaning that there are common features in the two cases. However, the
question is whether the claims are the same.
I have noted that in the
review application AMCU is asking the reviewing court to review and
set aside
inter alia
the extension of the same collective
agreement to non- members of a registered trade union(s). Therefore,
the reliefs sought are
not the same, as in the amended statement of
claim before me, in addition to a prayer for unfair discrimination,
is that each employee
under category 4-8 be paid an amount of
R12,500.00, and claiming further compensation in the amount of
R50,000.00.
[41]
I am mindful of the fact that the SCA in the matter of
Socratous v Grindstone
Investments 134 (Pty) Ltd
[40]
(10 March 2011),
Navsa
JA, writing for the court said:
“
[13]
It is necessary to consider the underlying principle of the defence
of lis alibi pendens. In Nestle (South Africa) (Pty) Ltd
v Mars Inc
2001 (4) SA 542
(SCA) para 16 this court 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
principle, which is that there should be finality in litigation. Once
a suit has been commenced before a tribunal that is competent
to
adjudicate upon it, the suit must generally be brought to its
conclusion before that tribunal and should not be replicated (lis
alibi pendens). By the same token the suit will not be permitted to
revive once it has been brought to its proper conclusion (res
judicata). The same suit between the same parties, should be brought
once and finally.’
“
This
principle has been stated and repeated by the authorities over a
period of more than a century.1
.”
However,
in the
Nestle
case, and
in
casu
, the facts, the
question of law and reliefs sought (raised in the amended statement
of claim) are not the same. Based on all of
the above,I, therefore,
conclude that the special plea of
lis alibi pendens
has
to fail.
[42]
In the circumstances, I make the following order:
Order:
1. The First and
Third Respondents exceptions are not upheld.
2. The First
Respondent’s special plead is dismissed.
3. The First and
Third Respondents are granted 30 days from the date of this order to
deliver statements of response.
4. No order as to
costs
—————————————
S.
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Chamber of Mines(First Respondent) : Myburgh SC
Instructed
by
:Edward Nathan Sonnenbergs Inc.
For
UASA(Third Respondent)
: Adv M Sibanda
Instructed
by
:Bester & Rhoodie Attorneys
For
the AMCU(Applicant)
: Boda SC with assisted Adv Navsa
Instructed
by
: Larry Dave Incorporated Attoneys
[1]
In terms of section 6 (1) of the Employment Equity Act 55 of 1998
(“the EEA”).
[2]
In terms of section 23(1) (d) of the Labour Relations Act 66 of 1995
(“the LRA”).
[3]
Act 55 of 1998.
[4]
Act 66 of 1995 as amended.
[5]
Notice of exception, page 62, para 2.
[6]
Summary as found in the written submission.
[7]
Ibid, page 64 to 65.
[8]
The Chamber of Mines also raised a similar exception.
[9]
Association of Mineworks
and Construction Union v Chamber of Mines of South Africa and
Others, Unreported Labour Court case no:
JS611/16
handed
down 15 December 2016.
[10]
Page 38 to 39, paras 10.1 to 10.6.
[11]
Page 41, para 16 -19.
[12]
Pages 2.
[13]
Lyon v South African
Railways and Harbours
1930
CPD 276.
See also McKenzie Appellant v Farmers Co-Operative Meat
Industries Ltd Respondent
1922 AD 16
, where it was held that: What
is the real meaning of the phrase cause of action arising in the
city'? It has been defined in
Cook v Gill
(L.R., 8 CP 107)
to be
this: every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to
the judgment
of the Court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact
which is necessary to
be proved.
[14]
Stewart and Another v Botha
and Another
(340/07)
[2008] ZASCA 84
;
2008 (6) SA 310
(SCA) ;
2009] 4 All SA 487
(SCA) (3
June 2008
[15]
[2013] 1 All SA 648 (SCA)
[16]
Ibid, para 36.See also
Trustees
for the Time Being of The Bus Industry Restructuring Fund v
Breakthrough Investments
CC and Others
(397/06)
[2007] ZASCA 101
; [2007] SCA 101 (RSA);
[2008] 1 All SA 23
(SCA);
2008 (1) SA 67
(SCA), para 11. (
Francis
v Sharp and Others
2004
(3)
Page
63
of
[2015] 4 All SA 58
(ECP) SA 230 (C) at 237G.
[17]
LAWSA Second Edition (Vol 3(1), paras 184-185), [2003] 6 BLLR 557
(LC)
[18]
(2003) 24
ILJ 1130 (LC) at para 9.
[19]
And the SCA in Children’s Resource Centre’s matter held
that “
In my judgment
these are the standards that should be applied in assessing whether
a proposed class action reflects a cause of
action raising a triable
issue. I will deal with each in turn. Causes of action are not in
the first instance dependent on questions
of law. They require the
application of legal principle to a particular factual matrix. The
test on exception is whether on all
possible readings of the facts
no cause of action is made out. It is for the defendant to satisfy
the Court that the conclusion
of law for which the plaintiff
contends cannot be supported upon every interpretation that can be
put upon the facts
.
[20]
2006 (1) ALL SA 461
(SCA) at para 3.
[21]
S
upra
.
[22]
Means “ Bring down, lower,weaken,impoverish,
diminish,contract” (Oxford dictionary)
[23]
[23]
From word “ eliminate” , means remove,get rid of, set
aside(Oxford dictionary)
[24]
Business South Africa v
Congress of South Africa Trade Unions and Another
(1997) 18 ILJ 474 (LAC), at 479A-B.
[25]
Mbana v Shepstone &
Wylie
2015 (6) BCLR 693
(CC), at para 27.
[26]
Concise Dictionary,
English-English by V&S Publishers. Oxford Dictionary defines the
word “other” as “Not
the same as one or some
already mentioned or implied”
[27]
Supra.
[28]
Lis alibi pendens
is
a Latin term that means an action on the same cause of action
pending elsewhere.
[29]
Van As v Appollus 1993(1)SA 606 (C)
[30]
Caesarstone Sdot- Yam Ltd v The World of Murble and Granite 2000 CC
and others 2013 (6) SA 499(SCA)
[31]
Nestle (SA) (Pty) v Mars Inc 2001(4)SA 542 (SCA)
[32]
Act 108 of 1996, as amended.
[33]
1935 TPD 29
[34]
Ibid, page 37. See also
Nestle
(South Africa) (Pty) Ltd v Mars Inc
2001 (4) SA 542
(SCA), at para 16.
[35]
2015 (8) BCLR 904
(CC);
2015 (2) SACR 341
at para 32
[36]
2008 (6) SA 303
(SCA) at para 10.
[37]
Clipsal Australia (Pty) Ltd
v Gap Discributors (Pty) Ltd
[2009] 3 All SA 491 (SCA).
[38]
SATAWU obo members v SAA
[2015] 2 BLLR 137
(LAC), at paras 10 &
11.
[39]
Section 39 of the 1996 Constitution.
[40]
2011 (6) SA 325
(SCA).