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[2018] ZALCJHB 330
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Road Traffic Management Corporation v Mabena and Another (J3217/18) [2018] ZALCJHB 330 (20 September 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J 3217/18
In the matter between:
ROAD TRAFFIC
MANAGEMENT
CORPORATION
Applicant
and
TREVOR
MABENA
First
Respondent
SHERIFF CENTURION
EAST
Second
Respondent
Heard: 13 September
2018
Delivered: 20
September 2018
JUDGMENT
MAHOSI, J
[1]
This is an opposed urgent application for an order in the following
terms:
‘
1.
That this application be treated as one of an urgent nature as
provided for in Rule 8 of this Honourable Court’s Rules,
and
condoning any non-compliance with rules pertaining to time periods
and manner of service.
2. Ordering that the
enforcement award/writ of execution obtained under case number
GATW14868/16 at the Commission for Conciliation
Mediation and
Arbitration (the CCMA), be stayed, pending the finalisation of the
Applicant’s Appeal and/or Rescission under
case number
J3112/2017 and/or Review Application under case number JR1317/17 in
favour of the Applicant.
3. Costs of this
application.
4. That further or
alternative relief.’
Brief background facts
[2]
Prior to outlining the applicant’s case in detail and
considering the issues that gave rise to the claim, it is necessary
to summarise the facts which form relevant background to the dispute
between the parties.
[3] On 15 May 2017, an
arbitration award was issued by the Commission for Conciliation,
Mediation and Arbitration (CCMA) in favour
of the first respondent
under case number GATW14868-16. The applicant became aware of the
award on 17 May 2017 and instituted proceedings
in this Court under
case number JR1317/2017 to review and set aside the award.
[4] On 6 December 2017,
the first respondent launched an application in this Court to make
the award an order of the court which
application was opposed by the
applicant. The Court granted the order on 30 April 2018.
[5] On 1 June 2018, the
first respondent served the applicant with the court order and a
correspondence in terms of which he informed
the applicant that he
will report for duty on 11 June 2018.
[6]
The first respondent reported for duty on 11 June 2018, but was
denied entry by the applicant on the basis that there was a
pending
review application. Owing to the applicant’s excessive delay in
prosecuting the review application, the first respondent
moved an
application for an order to archive the review application for
failure to comply with the rules of this Court which order
was
granted in chambers on 25 June 2018. On 7 July 2018, the applicant
served the first respondent with an application to revive
the review
application and the matter is still outstanding.
[7] On 7 August 2018, the
Court granted an order for the quantification of the award in favour
of the first respondent after which
the first respondent approached
the Registrar for the writ of execution.
[8] The applicant filed
an urgent application to stay the enforcement of the writ of
execution pending the finalisation of the review
application under
case number J3112/17. The application was heard and dismissed with
costs on 30 August 2018 by Judge Van Niekerk.
[9]
On 6 September 2018, the applicant served and filed this application
to stay the execution of the same writ, under a new case
number,
J3217/18.
[10]
The first respondent opposed this application and raised a special
plea of
res judicata
on
the basis that this Court has already dismissed the application to
stay the execution of the writ.
Applicable
legal principles
[11]
It is trite that the plea of
exceptio
res judicata
is available where another court has already pronounced finally on
the same cause of action between the same parties with respect
to the
same subject matter or thing.
[1]
[12]
As aforesaid, on 28 August 2018, the applicant sought the stay of the
execution of the writ, pending the finalisation of a
review
application. In the current application, instead of applying to stay
the execution of the order and/or judgment of Judge
Van Niekerk
pending the appeal, the applicant seeks the stay of the execution of
the same writ on an urgent basis using a different
case number,
pending the filing and finalisation of the appeal and/or rescission
application under case number J31122017 and/or
review application
under case number JR 1317/17.
[13]
This step is an irregular one. In fact, it amounts to an abuse of the
court process and worthy of condemnation because the
relief that the
applicant seeks in this application is the same as the one it sought
in the urgent application launched on 28 August
2018. This is the
applicant’s attempt to avoid the consequences of an order
issued by this Court. If allowed, this could
not only undermine the
integrity of this Court, but also of our justice system.
[14]
The pending application for rescission relates to the court order in
terms of which the arbitration award was made the order
of the court.
This is the same award that the applicant sought to review which
review was archived. Although the application to
reinstate the said
review application is pending, this Court has already pronounced on
the application to stay the execution of
the writ flowing from the
same award. By granting an order in terms of which he dismissed the
application to stay the execution
of the writ, Judge Van Niekerk
pronounced finally on the issue. The issues raised by the applicant
in the current matter are therefore
regarded in law as
res
judicata
given the said order.
[15] In the premise, I
make the following order:
Order
1. The application is
dismissed with costs.
__________________
D Mahosi
Judge of the Labour Court
of South Africa
Appearances:
For the Applicant:
Advocate P. Verveen
Instructed by: Mafuyeka
Attorneys
For the First Respondent:
Mr Trevor Mabena (In person)
[1]
See:
Nehawu
obo Kgekwane v Department of Development Planning and Local
Government
(2015) 36 ILJ 1247 (LAC).