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[2019] ZALCJHB 188
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Sibanye Gold Limited t/a Sibanye Stillwater v Association of Mineworkers and Construction Union and Others (J68/2019) [2019] ZALCJHB 188 (8 February 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: J 68/ 2019
In the matter between:
SIBANYE GOLD LIMITED
t/a
SIBANYE
STILLWATER
Applicant
and
ASSOCIATION OF
MINEWORKERS
AND
CONSTRUCTION UNION
First
Respondent
NATIONAL
UNION OF MINEWORKERS
Second
Respondent
SOLIDARITY
Third Respondent
UASA
THE UNION
Fourth
Respondent
MEMBERS OF THE FIRST
RESPONDENT IN
THE
EMPLOY OF THE APPLICANT
Fifth to Further Respondents
Heard:
25 January 2019
Delivered:
8 February 2019
Summary: Special plea
of
res iudicata
upheld. Legal principles restated.
JUDGMENT
PRINSLOO, J
Introduction
[1]
This matter has a litigious history that is
connected to this application. A brief background of this matter will
put the current
application in proper context.
[2]
The applicant operates a number of gold
mines which are divided into three separate business units,
viz
Driefontein and Kloof in Gauteng and Beatrix in the Free State. These
individual mines consist of various shafts and plants. The
applicant
also has various divisions which constitutes its workplace.
[3]
The applicant recognised NUM, Solidarity,
UASA and AMCU for collective bargaining purposes. There is intense
rivalry between AMCU
and NUM.
[4]
Negotiations between the recognised unions,
the applicant and other companies in the business of gold mining in
regards to wages
and terms and conditions of employment for the
period 1 July 2018 to 30 June 2021 commenced on
11 July 2018
at the Mines Council of South Africa
(previously known as the Chamber of Mines). A collective agreement
was eventually concluded
on 14 November 2018 between the
Council on behalf of the applicant, other companies, NUM, UASA and
Solidarity. AMCU was
not a party to the collective agreement, and
despite further negotiations with it, an agreement remains elusive.
[5]
AMCU instead referred a mutual interest
dispute to the Commission for Conciliation, Mediation and Arbitration
(CCMA) and a certificate
of non-resolution was issued on 26 September
2018. Following a strike notice issued by AMCU on 19 November 2018,
industrial
action commenced on 21 November 2018.
[6]
It
is common cause that as at 14 November 2018, when the
collective agreement was concluded, NUM, UASA and Solidarity
did not
jointly enjoy majority representation at the workplace and they could
not extend the collective agreement in terms of section
23(1)(d) of
the Labour Relations Act (LRA)
[1]
.
[7]
The
applicant’s contention is that between 22 November 2018
and 13 December 2018, the union membership
figures changed
due to normal attrition and movement of employees between the unions.
It contends that as at 13 December 2018,
NUM, UASA and
Solidarity acting jointly, have 51.2% of the employees as members.
The figures were obtained from the applicant’s
‘Symplexity
HR System’
[2]
.
[8]
On 13 December 2018, the
applicant, NUM, UASA and Solidarity concluded an agreement to extend
the Main Wage Agreement
( the extension agreement) and by virtue of
the provisions of section 23(1)(d) of the LRA, the agreement was
extended to all employees
employed in the category 4-8 miners,
artisans and official recognition units in the workplace of each
representative employer.
[9]
On the same date that the extension
agreement was concluded, the Council addressed a letter to AMCU
advising it of the agreement
and its effect. AMCU was further advised
that the strike action embarked upon by its members was unprotected
and it was required
to cease the strike. AMCU’s members were to
report for duty by Saturday 15 December 2018, failing which
they may
be dismissed. The applicant, on the same date, also
addressed a letter to AMCU referring to the Council’s letter,
confirming
the extension of the wage agreement and its consequences.
AMCU’s response on 14 December 2018 was to deny that
the strike was unprotected.
The litigation
[10]
The
applicant subsequently approached this Court on an urgent basis and
the urgent application was heard on 18 December 2018. The
said urgent
application represented the sixth round in an on-going battle between
the parties before this Court, since the commencement
of AMCU’s
industrial action on 21 November 2018
[3]
.
[11]
The litigation history was aptly summarised
in case number J 4552/18 and is repeated herein to provide the
necessary context.
[12]
Immediately upon the commencement of the
strike, the applicant approached this Court on 22 November 2018
under case number
J4217/18 and obtained a
rule
nisi
with the return date of 22
February 2019, interdicting the respondents from
inter
alia
, inciting / engaging in any
unlawful conduct, violence and intimidation.
[13]
On 29 November 2018, the CCMA issued rules
to regulate picketing and the conduct of the employees during the
strike. Upon the issuing
of the picketing rules by the CCMA, the
applicant again approached this Court on an urgent basis under case
number J4390/18 to
vary the picketing rules after alleged breaches.
The matter under case number J4390/18 was heard on 4 December 2018
and on 5 December
2018 a rule
nisi
with
return date of 27 February 2019 was issued, amending the picketing
rules of 29 November 2018.
[14]
On 12 December 2018, the
applicant yet again approached this Court on an urgent basis under
case number J4518/18 for an
order calling upon AMCU and its members
to appear before the Court to show cause why they should not be found
to be in contempt
of Court for failing to comply with its orders
under case numbers J4217/18 and J4390/18. An order was granted on 14
December 2018,
with the return date of 1 February 2019.
[15]
AMCU, for good measure, also brought its
own application under section 69(12) of the LRA under case number
J4522/18 to vary the
picketing rules, which matter has since by
agreement between the parties, been removed from the roll. A further
application followed
on 28 November 2018 when AMCU sought
an order that the applicant must comply with its common law duty to
provide a safe
working environment to all the employees at the
applicant’s workplace. This application was found to lack merit
and was dismissed.
[16]
On 18 December 2018, the applicant once
again approached this Court on an urgent basis under case number J
4552/18. The applicant
sought a
rule
nisi,
for an order declaring the
continuing strike that commenced on 21 November 2018 to be
unprotected as contemplated in sections
65(1)(a) and 65(3)(i) of the
LRA with effect from 13 December 2018; interdicting and
restraining AMCU and its members
from participating in and promoting
the strike; and interdicting and restraining AMCU from calling its
members out or inviting
them to participate in the strike or conduct
in furtherance of the strike. The application was opposed.
[17]
In the matter under case number J 4552/18,
the applicant’s case was that according to the figures, there
was a total of 1591
movement of employee membership into and out of
the recognised unions and non-unionised category, showing losses of
134 by AMCU
and 802 in the non-trade union category; gains of 602 by
NUM, 119 by Solidarity, and 215 by UASA. These figures took into
account
86 employees who left the applicant’s employ, and the
recruitment of 25 new employees during the period. To confirm these
figures, the applicant engaged the services of Sekela Xabiso Inc, a
firm of auditors, to verify trade union membership movements
during
the period 23 November 2018 and 13 December 2018.
[18]
The gist of the applicant’s case was
that the NUM, Solidarity and UASA have between the period
22 November 2018
and 13 December 2018 increased
their membership to the extent that they enjoyed majority
representation for the purposes
of extending the wage agreement. As
the wage agreement was extended to AMCU, the strike was to be
declared unprotected, as contemplated
in sections 65(1)(a) and
65(3)(a)(i) of the LRA.
[19]
In the answering affidavit placed before
the Court, AMCU contended that the applicant’s figures were
wrong, inflated, skewed
and unreliable, and that the claim that the
three other unions represented a majority was flawed for a number of
reasons. Those
reasons were recorded in paragraph 26 of the judgment
issued by Tlhotlhalemaje J on 21 December 2018.
[20]
The Court per Tlhotlhalemaje J concluded
that serious doubt
had been cast by the
answering affidavit regarding the unsubstantiated versions in the
founding affidavit in regards to how the
figures were arrived at. It
has to be mentioned that the applicant did not file a replying
affidavit in case number J 4452/18.
The Court was not satisfied that
the applicant has established a
prima
facie
right to the relief it seeks, let
alone a clear right to the enforcement of the provisions of sections
23(1)(d); 65(1)(a) and/or
65(3)(a)(i) of the LRA. There was no basis,
for any conclusion to be reached that the three other unions could
have, between the
period 22 November 2018 and
13 December 2018, dramatically increased their membership
to enjoy majority representation
for the purposes of extending the
wage agreement.
[21]
The application was dismissed with costs.
[22]
In paragraph 29 of the judgment
Tlhotlhalemaje J stated that:
‘
The
Court would however be remiss to ignore the irreparable harm the
on-going strike has caused. The consequences of the extension
of the
wage agreement however, and its impact on AMCU’s guaranteed
constitutional right to strike are equally factors not
to be ignored.
To this end, it is my view that in the light of the orders to be made
as below, it is within the powers of this
Court to make any further
orders that it deems prudent under the provisions of section 158 of
the LRA, that will give effect to
the primary purposes of the LRA,
paramount being the effective resolution of labour disputes’.
[23]
In line with this observation, the relevant
orders that were made read as follows:
‘
1.
The Registrar of this Court is ordered to forward a copy of this
judgment to the Office
of the National Director of the Commission for
Conciliation, Mediation and Arbitration (The CCMA), for it (National
Director),
to facilitate and set in motion within a period of three
(3) days upon receipt of a copy of this judgment, a union membership
verification
process at the applicant’s workplace
2.
The National Director of the CCMA is ordered to file a report on the
progress
made in regards to order (2) as above with the Registrar of
this Court by no later than 7January 2019.’
[24]
The CCMA has set the verification process
down for 3 January 2019. The applicant prepared an explanatory
affidavit which addressed
some of the membership issues AMCU had
raised in its answering affidavit in case number J 4552/18 and it was
proposed that the
explanatory affidavit be used as the basis of the
verification exercise and that AMCU respond thereto by 7 January
2019.
[25]
There was however no consensus on how the
verification exercise should be conducted and there was a dispute
with regard to the period
of the verification exercise. The
applicant’s view was that the verification exercise was
confined to the movement of union
membership between 22 November and
13 December 2018, whereas AMCU was of the view that the verification
should not be so confined
and should go back as far as 2017. The CCMA
adjourned the verification process and sought clarity from
Tlhotlhalemaje J
in
respect of the period for which the verification exercise had to be
conducted and whether it should be limited to 22 November
and 13
December 2018. On 8 January 2019,
Tlhotlhalemaje
J
delivered a clarification order wherein
he clarified his order with specific reference to paragraph 21 of his
judgment and indicated
that the period of the verification exercise
was limited to 22 November to 13 December 2018.
[26]
The CCMA had set the verification process
down for 16 January 2019. On 15 January 2019, however AMCU filed an
application for leave
to appeal against paragraph 21 of the judgment
and paragraph 2 of the clarification order of Tlhotlhalemaje, J.
[27]
On 16 January 2018, the verification
process at the CCMA came to a standstill and was postponed, pending
the finalisation of the
application for leave to appeal.
[28]
The applicant’s case is that AMCU’s
application for leave to appeal and the subsequent postponement of
the verification
process has placed it in an untenable position. The
strike has resulted in financial losses of approximately R 19 million
per day,
the strike has been marred by violence and loss of life,
AMCU adopted a dilatory and intransigent approach to the verification
process, the application for leave to appeal had further delayed the
process and as things currently stand, there is no consensus
as to
the period and mechanism of the verification exercise. For these
reasons the applicant submitted it has no alternative other
than to
approach this Court as a matter of urgency.
The present
application
[29]
On 23 January 2019, the applicant once
again approached this Court on an urgent basis. The relief sought by
the applicant is for
the issuing of a rule
nisi,
wherein an order is issued to declare
the strike by the fifth to further respondents (the employees) which
commenced on 21 November
2018 to be unprotected in terms of section
65(1)(a), as read with section 65(3)(a)(i) of the LRA, interdicting
and restraining
the employees from participating in the strike and
interdicting and restraining AMCU from encouraging and inciting the
employees
to participate in the strike.
[30]
AMCU opposed the application. The papers
placed before this Court on an urgent basis, exceeded 2 500
pages.
[31]
The applicant’s case is that the
present strike action, in which the employees (AMCU members) are
participating, is unprotected
as a binding collective agreement has
been lawfully extended to the employees in terms of section 23(1)(d)
of the LRA.
[32]
In the founding affidavit placed before me,
the applicant made reference to the proceedings before
Tlhotlhalemaje
J and in summary referred to the membership figures that were placed
before Tlhotlhalemaje J, which figures were
obtained from Symplexity,
and verified by Sekela Xabiso Inc, Specific reference is made to the
attacks AMCU made on the accuracy
of the figures provided by the
applicant, as was recorded in paragraph 26 of the judgment of
Tlhotlhalemaje J.
[33]
In the present application, the applicant
has fully dealt with the issues previously raised by AMCU and in
respect of which Tlhotlhalemaje
J found that there was serious doubt.
[34]
The applicant further stated in its
founding affidavit that should this Court have reservations about the
accuracy of the applicant’s
records on union membership, it can
direct the CCMA to conduct a
de novo
verification exercise, which exercise
should be restricted to the period between 22 November to 13 December
2018.
[35]
In its opposing affidavit, AMCU raised two
points
in limine
to
wit
res iudicata
and
the fact that the extension of the collective agreement is not
retrospective and that the strike is protected.
[36]
I will first deal with the special plea of
res iudicata.
Res iudicata
[37]
The
principles applicable to the doctrine of
res
iudicata
are well settled. In
Prinsloo
NO and Others v Goldex 15 (Pty) Ltd and Another
[4]
it
was explained thus:
‘
The
expression
'res iudicata'
literally means that the matter has already been decided. The gist of
the plea is that the matter or question raised by the other
side had
been finally adjudicated upon in proceedings between the parties and
that it therefore cannot be raised again. According
to Voet 42.1.1,
the
exceptio
was
available at common law if it were shown that the judgment in the
earlier case was given in a dispute between the same parties,
for the
same relief on the same ground or on the same cause (
idem
actor, idem res et eadem causa petendi
)
(see eg
National Sorghum Breweries Ltd
(t/a Vivo African Breweries) v International Liquor Distributors
(Pty) Ltd
[2000] ZASCA 159
;
2001 (2) SA 232
(SCA) ([2001]
1 All SA 417)
at 239F – H and the cases there cited).’
[38]
The
requirements for a successful plea of
res
judicata
are as 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
[5]
the
Supreme Court of Appeal held that:
‘
The
fundamental question in the appeal is whether the same issue is
involved in the two 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?’
[39]
This
Court had also considered the issue of
res
iudicata
and held that
it
is against public policy that a litigant should be able to keep
demanding the same relief from the same adversary on the same
grounds. The rule is expressed by saying that a valid defence of
res
iudicata
may be raised where the same thing had, on the same grounds, earlier
been demanded from the same party.
[6]
[40]
In
African
Farms and Townships Ltd v Cape Town Municipality
[7]
Steyn
CJ held that:
‘
Where
a court has come to a decision on the merits of a question in issue,
that question, at any rate as a
causa
petendi
of the same thing between the
same parties, cannot be resuscitated in subsequent proceedings.’
[41]
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.
[42]
AMCU’s case is that the applicant,
under case number J 4552/18, sought essentially the same relief,
based on the same cause
of action, namely that the strike had become
unprotected and was prohibited by sections 65(1)(a) and 65(3)(a)(i)
of the LRA, by
virtue of the fact that the applicant, NUM, Solidarity
and UASA concluded an extension agreement on 13 December 2018. AMCU
sought
the dismissal of the entire application and that order was
granted on the basis that the applicant had failed to make out a case
on the papers before the Court. This was so because the applicant
elected not to deliver a replying affidavit, did not seek an
opportunity to supplement its papers or to refer the matter to oral
evidence.
[43]
I am satisfied that in the current
application the same relief is claimed on the same cause of action as
in case number J4552/18.
The only issue that needs further
consideration is whether the judgment of
Tlhotlhalemaje
J
is final and definitive on the merits of
the matter.
The arguments
AMCU
[44]
AMCU’s case is that the issue of the
legality of the strike by its members is
res
iudicata,
with the result that this
application is incompetent. The entire application was dismissed on
the basis that the applicant had failed
to make out a case on the
papers before the Court. The Court however,
mero
motu
issued an order that the
verification of union membership at the applicant’s workplace
between 22 November and 13 December
2018 be referred to the CCMA for
a verification process. The CCMA was ordered to file a report on the
progress made by no later
than 7 January 2019.
[45]
The judgment and order did not spell out
what the consequences would be in the event that the verification was
favourable to the
applicant. AMCU’s case is that
Tlhotlhalemaje
J, having dismissed the application, nevertheless left the door
slightly open and in the event that the verification
process favoured
the applicant, it could have approached the Court afresh on the basis
of a favourable verification outcome.
[46]
Instead, the applicant has approached this
Court again on the same ground for the same relief, without obtaining
a favourable verification
from the CCMA and still relying on the same
disputed figures previously placed before this Court, without
affording AMCU any opportunity
to participate in the verification
process relied on by the applicant.
[47]
AMCU’s argument is that case number J
4552/18 gave rise to a final judgment, subject only to a specified
form of verification,
which has not been followed and which is for
present purposes, moot. The judgment was final and definitive on the
merits, thereby
disposing of the application.
[48]
Mr Watt-Pringle for the respondents,
submitted that the present application follows on the heels of a
failed application brought
on the same legal basis, but that in this
application, the applicant appears to have taken more care with the
evidence presented
in support of its claim that the other unions
enjoyed a majority as at 13 December 2018. The applicant came back
with the same
case after it learnt a lesson from the previous
application and this application is an attempt to fix what was not
done previously.
[49]
Mr Watt-Pringle submitted that
Tlhotlhalemaje J could have postponed the
matter pending the verification exercise or could have granted a rule
nisi
, but
instead the Court considered the evidence presented and found that
the applicant failed to make out a case and the application
was
dismissed.
[50]
The applicant should have or could have
come back to Court only after the verification process at the CCMA
was completed, as that
was the only door that was left open for the
applicant and that is the only door through which the applicant could
come back.
[51]
Mr
Watt-Pringle referred to the case of
Bouwer
v City of Johannesburg and Another
[8]
where
the Court
a
quo
dismissed
an application, after considering the affidavits filed, on the basis
that the applicant had failed to prove his case by
sufficient and
proper evidence. When the applicant subsequently approached the
Labour Court again, the special plea of
res
iudicata
was
upheld. On appeal the Labour Appeal Court dealt with the issue of
res
iudicata
and
the majority found that the Labour Court was correct to uphold the
special plea of
res
iudicata.
[52]
In conclusion, the issue of the legality of
the strike, despite an extension agreement and the applicant’s
entitlement to
the relief it seeks on the basis of facts in existence
prior to the application brought under case number J 4552/18, are
res
iudicata.
The applicant
[53]
Mr
Myburgh for the applicant, also referred to
Bouwer
v City of Johannesburg
[9]
and
he placed reliance on the minority judgment wherein it was held that:
‘
The
meaning of the order, read within the context of the judgment, is
critical to solving the present dispute. In such a case, it
is the
substance rather than the form of the order, read within the context
of the judgment that is determinative of the outcome
of the plea of
res iudicata.’
[54]
Mr Myburgh submitted that even where the
word ‘dismissed’ is used in the order, it does not
necessarily mean that the
dismissal amounts to a final order. The
meaning of the order can only be gleaned from the judgment read as a
whole and the question
that remains is whether the dispute had been
determined. Where the case had been disposed on the basis of
insufficient evidence,
the applicant should be afforded an
opportunity to approach the court with duly supplemented papers.
[55]
The Applicant’s argument is that in
his judgment,
Tlhotlhalemaje J merely
identified flaws in the methodology used to verify the union
membership numbers and he recited the six attacks
by AMCU on the
correctness of the numbers, without determining them. As far as the
Court was concerned, serious doubt was cast
on how the numbers were
arrived at, with the result that a
prima
facie
case had not been established on
the papers. As the Court ordered an urgent verification process,
aimed at the effective resolution
of the labour dispute, the
intention of the Court was not to shut the applicant forever out of
Court on the same issue on the basis
that the merits had been finally
determined, but the intention was to allow the applicant to approach
the Court in due course on
papers duly supplemented.
[56]
Mr Myburgh submitted that as Tlhotlhalemaje
J did not determine the merits of AMCU’s attack on the numbers,
the flaws and
concerns raised by the Court could be overcome, where
the order was aimed at the effective resolution of the dispute in due
course
and where the Court enlisted the services of the CCMA to
assist in the verification of union membership, the intention was not
to shut the door for the applicant. In the absence of
lis
terminate,
there can be no
res
iudicata.
Analysis
[57]
The
Constitutional Court has held in
Mkhize
N O v Premier of the Provinces of KwaZulu-Natal and Others
[10]
that
‘the doctrine of
res
iudicata
will
apply only where a cause of action has been litigated to
finality
between the same parties on a previous occasion.’ That is the
gist of the issue before me – has the cause of action
been
litigated to finality? The applicant’s case is that it has not
and AMCU’s case is that it has indeed been litigated
to
finality.
[58]
In the judgment of 21 December 2018,
Tlhotlhalemaje J concluded that there was no basis for any conclusion
that the three other
unions could have enjoyed majority
representation for purposes of extending the wage agreement.
Effectively Tlhotlhalemaje J found
that the applicant had failed to
substantiate its case by sufficient evidence and the application was
dismissed.
[59]
In
Bouwer
v City of Johannesburg
[11]
the
Labour Appeal Court (majority) held that:
‘
I
have never understood our law to be that, when in motion proceedings,
a Court dismisses an application because the applicant has
failed to
prove his case by necessary and proper evidence, its decision to
dismiss the application is not a decision on the merits
of the
dispute. My understanding has always been that that is a final and
definitive decision on the merits of the dispute and
the applicant
cannot later come back to Court on the same dispute and say: I now
have more or better evidence and institute fresh
proceedings for the
same relief as before on the same cause of action.’
[60]
It is trite that any litigant who brings an
application to Court should place before the Court all the relevant
and material evidence
in support of his or her case on the first
occasion. A litigant cannot institute multiple applications, one
after the other, each
time adding more and fixing the holes, until
the court eventually says that the case has been proved.
[61]
The
applicant submitted in argument, the court’s intention must
also be considered, as was held
in
Bouwer
v City of Johannesburg
(minority)
[12]
:
‘
The
application of the doctrine of
res
iudicata
by its nature, brings an end
to legal proceedings as well as to a party’s right to approach
a court in terms of section 34
of the Constitution. To justify this
conclusion, the order read together with the judgment must be
reasonably clear in its final
determination of the dispute.’
[62]
In my view, it is clear from Tlhotlhalemaje
J’s judgment that he has determined the merits and that he made
a definitive and
final order when he dismissed the applicant’s
case. The order was not framed as one where the applicant was granted
an opportunity
to file supplementary papers, with the intention to
afford the applicant an opportunity to pursue the same issue at a
later stage.
The intention was clearly to dismiss the application on
its merits.
[63]
Considering the order, read with
Tlhotlhalemaje J’s judgment as a whole, the intention is
clearly not what the applicant wants
it to be.
[64]
Even if there is merit in the applicant’s
argument that Tlhotlhalemaje J’s order was aimed at the
effective resolution
of the dispute in due course when the Court
enlisted the services of the CCMA to assist in the verification of
union membership,
and that the Court’s intention was not to
shut the door forever for the applicant, the question that leaps out
is what door
did the Court then leave open? The only door that was
possibly left open, was the CCMA verification process and a possible
application
after the outcome of the said process was known. The
Court certainly did not leave the door open for the applicant to
approach
the Court again on the basis of its own, internal
verification process and there was certainly no scope for an
invitation to place
a better, more comprehensive case before this
Court based on the applicant’s own verification. The only door
through which
the applicant could possibly come back to Court, is not
the one used in this application.
[65]
I am bound by the following
dicta
of the Labour Appeal Court (majority),
which aptly applies
in casu:
‘
..if
in motion proceedings the parties have placed before the Court such
evidence as they have chosen to place before it and the
matter has
been argued and, thereafter, the Court issues an order that the
application is dismissed and the basis of that decision
is that the
applicant failed to prove its case, the judgment or order of the
Court is a judgment or order on the merits of the
case and it is
final and any attempt to institute proceedings later to effectively
seek the same relief on the same cause of action
would properly be
met by the special plea of
res
iudicata.’
[13]
[66]
In launching the present application, the
applicant has attempted to salvage its wrecked ship, which it can
clearly not do. Put
differently, the applicant seeks a second bite at
the cherry to which it is not entitled. The applicant failed to
persuade the
Court in case number J4552/18 that the three other
unions enjoyed majority representation for purposes of extending the
wage agreement
and as a result of insufficient evidence, the
applicant’s case was dismissed. The applicant certainly does
not have the right
to approach the Court a second time, with
additional evidence and a better attempt to make out its case. There
is no reason why
the evidence the applicant now seeks to place before
this Court, was not placed before Tlhotlhalemaje J. More so where the
information
was available at the time and the respondents disputed
the information at the time, and the applicant elected not to file a
replying
affidavit.
[67]
There is no merit in the argument that
Tlhotlhalemaje J did not decide the application on its merits. It is
evident from his judgment
that he considered the figures presented by
the applicant, as well as the opposing papers filed by AMCU in
response thereto and
he found that the applicant has not established
a right to the relief it sought. He concluded that there was no basis
for any conclusion
that the three other unions could have enjoyed
majority representation for purposes of extending the wage agreement.
Tlhotlhalemaje
J in dismissing the application, decided the merits of
the application. It may be so that the dispute is not determined, but
the
application that served before Tlhotlhalemaje J was determined
and has been decided.
[68]
In these circumstances, the order granted
on 21 December 2018 under case number J 4552/18 is a final order. The
legal and factual
issues raised in the present proceedings are the
same as those raised in the proceedings conducted under case number J
4552/18
and the special plea of
res
iudicata
is upheld.
[69]
The issue of
res
iudicata
aside: It is evident that
Tlhotlhalemaje J was alive to the harm the
ongoing strike has caused, hence the orders in respect of the
verification process, which
were issued to give effect to the primary
purpose of the LRA, namely the effective resolution of labour
disputes
.
[70]
This Court is also alive to the harm the
ongoing strike has caused, for all involved. On the one hand the
applicant suffers massive
losses on a daily basis and is frustrated
by the ongoing strike and the fact that no progress has been made
with regard to the
verification process that was ordered on 21
December 2018. The applicant describes its position as utterly
untenable, with no end
in sight. On the other hand, the principle of
‘no work no pay’ is applied to the striking employees,
who have sacrificed
their income since the commencement of the strike
in November 2018 and it goes without saying that this has caused
suffering for
them too. It is unfortunate that individuals have lost
their lives as a result of the strike action and such conduct can
never
be condoned.
[71]
However, none of these factors can cause
this Court to issue another order, where an order had already been
issued and where the
process envisaged in the order of 21 December
2018, has not been completed.
[72]
In view thereof that the special plea of
res iudicata
is
upheld, it is unnecessary to consider the other point
in
limine
or the merits of this
application.
Costs
[73]
The last issue to be
decided is the issue of costs.
This
Court has a wide discretion in respect of costs, considering the
requirements of law and fairness.
[74]
In
Zungu
v Premier of Kwa Zulu-Natal and Others
[14]
the Constitutional Court confirmed that the rule that costs follow
the result does not apply in labour matters. The Court should
seek to
strike a fair balance between unduly discouraging parties from
approaching this Court to have their disputes dealt with,
and on the
other hand, allowing those parties to bring to this Court cases that
should not have been brought to Court in the first
place.
[75]
Mr Watt-Pringle
submitted that the applicant should be ordered to pay the costs, for
the same reasons
Tlhotlhalemaje J
ordered the applicant
to pay the costs.
In
casu,
the
respondents submitted that although the Court is reluctant to grant
costs where there is an ongoing collective relationship,
there are
special features associated with the applicant’s conduct that
justifies the granting of a cost order in favour
of AMCU. Firstly,
the applicant assembled an extraordinarily long application (founding
papers of 2075 pages / 5 lever arch files),
weeks after the judgment
in case number J 4552/18 was handed down. This is the product of a
team effort which must have taken hundreds
of man, hours to compile.
The signed application with annexures was delivered to the
respondents’ legal representatives on
Saturday 19 January 2019
and the respondents were given until 16:00 on Monday, 21 January 2019
to serve an answering affidavit,
with the application enrolled for
hearing on 23 January 2019. The respondents’ case is that this
is a repeat of the tactic
adopted by the applicant when it launched
the urgent application under case number J 4552/18.
[76]
The applicant has set
unreasonable time periods for the respondents to answer such a
voluminous application. The respondents had
great difficulty to
consult with their lawyers and to deal with the various allegations
over a weekend and in the time limited
frame allowed.
[77]
In my view, it was
unreasonable to expect the respondents to put up an answer to an
application such as the present one in the timeframe
as set by the
applicant. One would have expected the applicant to have taken note
of the remarks by
Tlhotlhalemaje
J
in
respect of the inconvenience caused to AMCU in filing answering
papers over a weekend, for which a cost order was granted. No
lessons
were learnt and the applicant indeed repeated the same unreasonable
tactic, to the great inconvenience of the respondents.
[78]
This is the second time the applicant has
dragged the respondents to Court on extremely short notice and at
great cost.
[79]
Mr Myburgh submitted
that as the principles that are at play in this matter, are not clear
cut, no party should be burdened with
costs.
[80]
This Court has to strike a balance,
considering the requirements of law and fairness.
In
my view this is a case where it is appropriate to award costs, which
costs are to include the costs of two counsel.
[81]
In the premises, I make the following
order:
Order:
1.
The special plea of
res
iudicata
is upheld;
2.
The applicant is to
pay the First Respondent’s costs, such costs to include the
costs of two counsel.
__________________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate
A Myburgh SC with Advocate M van As
Instructed
by: Cliffe
Dekker Hofmeyr Inc Attorneys
For the First and
Fifth Respondents:
Advocate C Watt-Pringle SC with Advocate A Cook
Instructed
by: Larry
Dave Attorneys
[1]
Act
66 of 1995 (as amended)
[2]
This
system is the
internal
software programme of the applicant.
[3]
The
introduction and brief history are similar to the facts presented in
Case Number J 4552/18, wherein judgment was handed down
on 21
December 2018 and what is recorded here, is from the said judgment,
with the necessary changes and additions.
[4]
2014
(5) SA 297
(SCA) at para10.
[5]
2001
(2) SA 232 (SCA).
[6]
See:
Dumisani
and another v Mintroad Sawmills (Pty) Ltd
(2000)
21 ILJ 125 (LAC).
[7]
1963
(2) SA 555
(A) at 562D.
[8]
Unreported
Labour Appeal Court judgment, handed down on 23 December 2008 under
case number JA 64/06. SAFLII reference: (JA64/08)
[2008] ZALAC 15.
[9]
Ibid
n 8.
[10]
[2018]
ZACC 50
at para 38.
[11]
Supra
n 8 at para 42.
[12]
Ibid
n 8 per Davis JA at para 44.
[13]
Bouwer
Supra
n
8 at para 44
.
[14]
(2018)
39 ILJ 523 (CC) at para 24.