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[2019] ZALCJHB 42
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Sasol Technology and Another v Zwane; In re: Zwane v Sasol Technology and Another (JS1308/09; JS419/10) [2019] ZALCJHB 42 (8 March 2019)
in
the labour court of South Africa, JOHANNESBURG
Not
Reportable
case
no: js 1308/09 JS 419/10
In
the matter between
SASOL
TECHNOLOGY
First
Applicant
SASOL
SOUTH AFRICA (PTY) LTD
Second Applicant
and
PETROS FAKAZI
ZWANE
Respondent
In
re:
PETROS FAKAZI
ZWANE
Applicant
and
SASOL
TECHNOLOGY
First Respondent
SASOL
LIMITED
Second Respondent
Heard:
1 March 2018
Delivered:
8 March 2019
JUDGMENT
MAHOSI.
J
Introduction
[1]
Before me are two similar applications brought by the applicants,
Sasol Technology
and Sasol South Africa (Pty) Ltd, who will together
be referred to in this judgment as (Sasol). The applications are held
under
case numbers JS 1308/09 and JS 419/10 respectively and therein,
Sasol seeks an order for the dismissal of proceedings instituted
by
the Respondent Mr Petrus Fakazi Zwane (Mr Zwane) against Sasol.
[2]
Mr Zwane opposed both applications.
[3]
The dispute between the parties has a long and rough history and has
served before
a number of Judges of this Court for a period of almost
a decade.
The relevant background
pertaining to this dispute is set out below.
Background
Case number JS 419/10
[4]
The dispute under case number JS 419/10 relates to Mr Zwane’s
referral of an
automatically unfair dismissal dispute against Sasol.
In this regard, he sought compensation in an amount of 24 months for
the
alleged automatically unfair dismissal and a further 24 months
remuneration for the alleged victimization suffered. There were
numerous attempts to finalize the pre-trial minute between the
parties, however no minutes were ultimately finalized.
[5]
The matter was set down for trial on 4 August 2014 before
Tlhotlhalemaje AJ (as he
then was) where numerous points
in
limine
were raised. Tlhotlhalemaje AJ handed down judgment on
06 August 2014 and made the following order:
‘
i.
The application to bar the respondents from
defending the applicant’s claim is dismissed
ii.
The application for judgment by default is dismissed
iii.
The applicant’s purported amended statement of case filed with
this Court
on 20 July 2010 is declared a nullity and of no force and
effect. The applicant is however not barred from filing a proper
application
in that regard.
iv.
The matter is postponed
sine die
to enable the parties to
address and resolve all matter raised by the Court on its own accord
under paragraph 18, 19 and the whole
of paragraph 24 of this
judgment.
v.
The parties are directed to settle all the matters as raised above,
and to file
a signed pre-trial minute on or before 30 September 2014.
vi.
Wasted costs occasioned by the postponement of the hearing of this
matter are to be
in the cause.’
[6]
Mr Zwane did not comply with the said directives and did not take any
further steps
to pursue these proceedings since the said judgment was
handed down. Instead, he filed an application for leave to appeal
against
the abovementioned judgment, which application was dismissed
with costs on 17 December 2014. Subsequently, Mr Zwane petitioned the
Labour Appeal Court (LAC), which petition was refused on 27 March
2015.
[7]
Dissatisfied with the decision of the LAC, Mr Zwane filed an
application for leave
to appeal to the Supreme Court of Appeal (SCA),
which application was dismissed on 21 August 2015. Mr Zwane then
applied to the
Constitutional Court for leave to appeal and also to
be granted direct access. This application was also unsuccessful.
Case number JS 1308/09
[8]
The dispute under case number JS 1308/09 related to an application in
terms of which
Mr Zwane sought an order to review and set aside the
jurisdictional ruling. Coupled with this application was the
condonation application
for late filing of the review application.
The matter served before Basson J on 2 February 2012 who dismissed
the condonation application
with costs.
[9]
Subsequently, Sasol presented a bill of costs and taxation which was
set down for
3 July 2013 and proceeded on that day. The writ of
execution was issued on 4 November 2013 and unsuccessful attempts
were made
to execute it. Mr Zwane filed an application dated 3
February 2014 in terms of which he sought an order to set aside the
taxing
master’s allocator and to set aside or alternatively
rescind the writ of execution issued as a result thereof. This
application
was not successful.
[10]
Mr Zwane filed an application for leave to appeal the judgment of
Basson J which application was not
granted. He then approached the
Labour Appeal Court (LAC) and the Constitutional Court
unsuccessfully. Mr Zwane did not pursue
the matter any further. A
directive, dated 22 February 2016, was issued directing the parties
to file Heads of Arguments. Mr Zwane
directed a correspondence to the
Registrar and Sasol’s erstwhile attorneys in which he stated,
inter alia
, the following:
‘
3.
With reference to the above-mentioned directive I advise that because
of the following
circumstances, the application is not decided, is
moot, dead and buried; and I as the Applicant will not participate in
any proceedings
before the Labour Court whether pertaining to that
application or the above case.
3.1
In that your office would not set the matter down when requests for
set down were made instead
together with the Respondents your office
unlawfully re-issued on 22 October 2015 the very same impugned writ
of execution sued
out again using the very same impugned tax master’s
allocatur
, and on 28 October 2015, the Respondent unlawfully
executed that unlawful writ, despite this pending application and
without the
court having granted an order to do so.
3.2
I (the Applicant) then sued the Respondents and the Labour Court for
the above unlawful
actions and damages caused by the Labour Court
(your office) and the Respondents, at the Constitutional Court, under
case CCT 208/15,
which court, as caused by the Respondents dismissed
my case there as per its decision, dated 17 March 2016, which
attached hereto
for ease of reference.
3.3
According to the abovementioned Constitutional Court decision, which
is binding to all the
courts and is final, it would be incompetent
for any lower court to make another decision in this matter or in
this application,
alternatively the order that was applied for there
cannot be made as it would be against the above Constitutional Court.
3.4
That Constitutional Court decision also means that it is okay for the
Respondents and the
Labour Court to [have] colluded, fraudulently
issue and execute warrant of executions against myself, without prior
taxation and
despite pending application for leave to appeal or to
rescind and without prior court order granted to do so.
3.5
Accordingly, to Labour Court, including your office is conflicted and
implicated in these
issues with the effect that I cannot get justice
in the Labour Court, and therefore to protect myself from further
injustice I
will not file any heads of arguments nor will I
participate in any proceedings before the Labour Court anymore.
3.6
The above directive, the application referred to therein and the writ
of execution and tax
master’s
allocatur
sought to be
rescinded therein, are all outdated or have been overtaken by events,
have been decided by the Constitutional Court
and rendered moot, dead
and buried, you may as well remove that application from your roll as
there is no need for me to withdraw
an application that has been
decided, is moot, dead and buried.
But
those responsible and liable for the damages incurred due to the
above unlawful actions shall eventually be held accountable
when
justice, where it may still be found, is eventually done to get the
damages paid.’
High Court proceedings
[11]
Mr Zwane instituted an action in North Gauteng High Court under case
number 91849/15. The contents
of paragraph 2 of the particulars of
claim are important to these proceedings and read as follows:
‘
2.
JURISDICTION AND THE COMPETENCY OF THE HIGH COURT
2.1
The plaintiff brings a case to this Court that started off at the
Labour forums or Labour
Fora as two cases (Labour Court cases JS
1308/09 and JS 319/10). Both of the plaintiff's cases at the labour
fora, consisted of
aspects of concurrent jurisdiction between the
Labour Fora and High Courts and aspects of exclusive jurisdiction to
the Labour
Fora. The cases involved violation and threatening of the
Plaintiff’s rights, both Constitutional/human rights and common
law rights, unfair discrimination, victimization and the latter also
involved an unlawful, unfair (procedurally and substantively)
dismissal (which in terms of the LRA is automatically unfair as it
involved violation and threatening of fundamental constitutional
rights), which cases were based on inter alia, the Labour Relations
Act 66 of 1995 (hereinafter called “the LRA”),
Employment
Equity Act No. 55 of 1998 (hereinafter called “the EEA”)
Basic Conditions of Employment Act No. 75 of 1997
(hereinafter called
“the BCEA”), Act No. 108 of 1996 (hereinafter called “the
Constitution”) and the common
law.
2.2
The Plaintiff first sought recourse to protect, enforce and vindicate
his violated and threatened
rights (both constitutional / human and
common law rights) through the remedies provided by enacted
legislations (Inter alia: LRA,
EEA, BCEA), as a litigant may not
bypass enacted legislation to give effect to constitutional rights
and rely directly on the Constitution.’
(footnotes omitted).
2.3
Hence the Plaintiff first started with the structures provided for in
the LRA, EEA, BCEA
and thus approached the Labour Fora, and after
having been refused or denied access to court and to fair justice at
those Labour
Fora – such that those Labour Fora provided, with
regard to the Plaintiff’s cases, to be inadequate in providing
protection,
enforcement and vindication of the rights he sought to
protect, enforce and vindicate, and after having followed all
remedies and
procedures provided in the LRA, EEA, BCEA to the very
end, and having exhausted all those remedies and procedures provided
in the
LRA, EEA, BCEA without his cases having been
res judicata
.
He therefore now approached the High Court of South Africa to
continue the case on the aspects of concurrent jurisdiction between
Labour Fora and the High Courts of South Africa. This Court therefore
has jurisdiction. (footnotes omitted)
2.4
The Plaintiff has also sued the Labour Court for being party to
fraudulent and unlawful
actions, involving impartiality, related to
the same cases JS 419/10 and JS 1308/09; accordingly, the Plaintiff
cannot have recourse
at a justice institution which he is also suing
or has sued.’
Analysis
[12]
In relation to JS 419/10, Sasol’s case is that it would be in
the interest of justice to dismiss
Mr Zwane’s cases as he
failed to take steps to pursue his matter since August 2014 and no
reasonable explanation has been
given. It submitted that the
continued existence of the dispute is highly prejudicial to Sasol as
it continues to deny it closure
to the matter.
[13]
Similarly, in relation to JS 1308/09, Sasol submitted it was not
enough for Mr Zwane to submit that
the Registrar could remove the
matter from the roll without withdrawing it because with the
existence of the pending rescission
application, it is unable to
enforce its rights flowing from the writs of execution issued by this
Court. In relation to both cases,
Sasol submitted that Mr Zwane has
made it clear in his papers filed at the High Court and in the
correspondence directed to the
Registrar that he has no intention of
pursuing his matters at this Court to finality. For the above
reasons, Sasol prayed for both
cases to be dismissed with costs.
[14]
In opposing the dismissal applications, Mr Zwane filed a notice of
intention to oppose in which he
stated that he would not be filing
any reply of pleadings in answering Sasol’s application.
Instead, he chose to argue from
the heads of arguments. He further
raised the following objections and questions of law:
14.1
The Labour Court is conflicted and is not an independent forum to
hear the matter. In this
regard, he submitted that this Court must
recuse itself as it has no jurisdiction.
14.2
There is no valid statement of claim under case number JS 419/10 as
Sasol caused Thlothlalemaje J to unlawfully
nullify or invalidate his
amended statement of claim.
14.3
The application is unnecessary, frivolous, vexatious, duplicate or a
parallel process.
14.4
The dispute pending in the High Court precludes the Labour Court from
deciding the applications due to the
possibility of contradicting
decisions.
14.5
The application is a
mala fide
, unlawful attempt to persecute
him and prevent him from prosecuting Sasol in the High Court.
[15]
Mr Zwane, in his heads of arguments, submitted that he seeks an order
declaring Sasol’s dismissal
applications unfair, prejudicial,
irregular and unlawful. He further submitted that this application
should be permanently stayed
on condition that Sasol seeks leave in
terms of paragraphs 10.4.4 and 16 of the Practice Manual of this
Court showing good cause
why leave of this Court should be granted
for its applications to be heard and further that such leave may only
be sought after
finalization of case 91849/15 filed in the High Court
and case 11196/17P filed in Pietermaritzburg High Court. The legal
issues
raised by Mr Zwane will be considered first.
Jurisdiction
[16]
The first issue is that of jurisdiction. In this regard, Mr Zwane’s
contention is that
this Court is conflicted and therefore not
independent. Rule 11 of the Labour
Court Rules
provides for interlocutory applications and procedures
not specifically provided for in other rules as follows:
‘
(1)
The following applications must be brought on notice, supported by
affidavit:
(a)
Interlocutory applications;
(b)
other applications incidental to, or pending, proceedings referred to
in these rules that are
not specifically provided for in the rules;
and
(c)
any other applications for directions that may be sought from the
court.
(2)
The requirement in subrule (1) that affidavits must be filed does not
apply to applications
that deal only with procedural aspects.
(3)
If a situation for which these rules do not provide arises in
proceedings or
contemplated
proceedings, the court may adopt any procedure that it deems
appropriate in the circumstances.
(4)
In the exercise of
its powers and in the
performance of its functions, or in any incidental matter, the court
may act in a manner that it considers
expedient in the circumstances
to achieve the objects of the Act.
[17]
Section 151(2) of the LRA provides that:
‘
The
Labour Court is a superior court that has authority, inherent powers
and standing in relation to matters under its jurisdiction,
equal to
that which a court of a Division of the High Court of South Africa
has in relation to the matters under its jurisdiction.’
[18]
The powers of this Court are provided for in section 158 (j) of the
LRA which
provides, that
this
Court ‘may deal with all matters necessary or incidental to
performing its functions in terms of this Act or any other
law’.
In opposing Mr Zwane’s contention, Sasol referred this Court to
Sibanye
Gold v Sibiya and Another; In re: Sibiya and Another v Commission for
Conciliation, Mediation and Arbitration and Others
[1]
where
Van Niekerk, J stated as follows:
‘
It is
well-established that this court is entitled to dismiss proceedings
on account of a delay in their prosecution. The route
of this power
is the court’s inherent power to prevent an abuse of its own
process. The court has previously made reference
to the policy
considerations which entitle it to dismiss the claim for and
justifiable delay. The first is the prejudice that is
necessarily
caused to other parties by delay. The second is the desirability that
finality should be reached within a reasonable
time. In regard to the
letter consideration, review applications are treated more strictly
(see
Queenstown
Fuel Distributors CC v Labuschagne NO & others
[2000]
1 BLLR 45
(LAC),
Lentsane
& others v Human Sciences Research Council
(2002)
23
ILJ
1433
(LC)). Consistent with this approach, and in an effort to
address the systemic delays in the determination of matters
serving
before this court (for which this court has been reproached by both
the Constitutional Court and the Supreme Court of Appeal
on a number
of occasions), the practice manual makes clear that an application to
review and set aside an arbitration award must
be treated as one
would treat an urgent application. The applicant’s conduct is
clearly in breach of this requirement.’
[19]
On the independence of the Court, the following is stated in Section
165(2) of the
Constitution of the Republic South Africa
[2]
:
‘
The
courts are independent and subject only to the Constitution and the
law, which they must apply impartially and without fear,
favour or
prejudice.’
[20]
In
Gcaba
v Minister for Safety and Security and Others
[3]
‘
Following
from the previous points, forum shopping by litigants is not
desirable.
Once a litigant has chosen a particular cause
of action and system of remedies (for example, the structures
provided for by the
LRA) she or he should not be allowed to abandon
that cause as soon as a negative decision or event is encountered.
One may especially
not want litigants to “relegate” the
LRA dispensation because they do not “trust” its
structures to do
justice as much as the High Court could be trusted.
After all, the LRA structures were created for the very purpose of
dealing
with labour matters, as stated in the relevant parts of the
two majority judgments in
Chirwa
, referred to
above.’
[21]
It is apparent from the above authorities that this Court has
jurisdiction to dismiss an application
or action where a party has
failed to take steps to diligently prosecute it. Most importantly,
this Court is independent and subject
only to the Constitution and
the law, which it must apply impartially and without fear, favour or
prejudice. The fact that this
Court has adjudicated Mr Zwane’s
matters does not in any way put it in conflict with Mr Zwane. There
is therefore, no merit
in Mr Zwane’s contention that this Court
lacks jurisdiction to hear the dismissal applications brought by
Sasol.
Lis alibi pendens
[22]
As
earlier intimated, Mr Zwane filed an application at the High Court
seeking relief identical to that sought in the two applications
filed
in this Court.
In
making out a case for
lis
a
libi
pendens
,
Mr Zwane contended that the relief sought by Sasol was similar to the
relief he sought at the High Court. In this regard, he submitted
that
Sasol should only be granted leave to bring dismissal applications
after
finalization of case number 91849/15 filed in the High Court.
It
is, therefore, necessary to consider the underlying principles of the
defence
lis
alibi pendens.
In
Nestlé
(South Africa) (Pty) Ltd v Mars Inc,
[4]
Nugent AJA 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.’
[23]
It is quite clear that Mr Zwane launched an application at the High
Court without withdrawing his similar
matters before this Court. He
has, therefore, failed to bring the matters he brought to this court
to finality. In fact, it is
apparent from his submissions that he has
no intention of withdrawing his matters from this Court. This is
despite the fact that
he has refused and/or neglected to take any
steps to prosecute his matters for more than two years, to adhere to
Tlhotlhalemaje
AJ’s orders and to adhere to the directives of
this Court. To make things worse, he wrote a correspondence to the
Registrar
in which he stated that he has abandoned litigation in this
Court and has no intention of pursuing it.
[24]
As if that was not enough, there are
two
mutually destructive objections he raised in his heads of argument.
On the one hand, he submits that there is no pending statement
of
claim before this Court. On the other hand, he attempts to make out a
case for
lis
a
libi
pendens.
What is apparent is that Mr
Zwane seeks to keep the Labour Court door open whilst he tries his
luck at the High Court. This is far
from being fair for Sasol and
should not be allowed. It is quite clear that there is no dismissal
application pending before the
High Court and therefore the defence
of
lis
a
libi pendens
has
no merit.
Delay in prosecuting
matters in this Court
[25]
It is trite that in assessing the reasonableness of the undue delay
in the prosecution of matters in
this Court, the purpose of the LRA
must be considered. This purpose was articulated by Ngcobo J in
CUSA
v Tao Ying Metal Industries and Others
[5]
and
was recently restated in
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation Mediation and
Arbitration
[6]
as follows:
‘
The
LRA introduces a simple, quick, cheap and informal approach to the
adjudication of labour disputes. This alternative process
is intended
to bring about the expeditious resolution of labour disputes. These
disputes, by their very nature, require speedy
resolution. Any delay
in resolving a labour dispute could be detrimental not only to the
workers who may be without a source of
income pending the resolution
of the dispute, but it may, in the long run, have a detrimental
effect on an employer who may have
to reinstate workers after a
number of years. The benefit of arbitration over court adjudication
has been shown in a number of
international studies.’
(Footnotes omitted)
[26]
In the same judgment
[7]
, the
Constitutional Court further stated that:
‘
excessive
delays in litigation may induce a reasonable belief, especially on
the part of a successful litigant, that the order or
award had become
unassailable. This is so all the more in labour disputes.’
[27]
As aforesaid, at the time of the filing of the rule 11 applications,
the delay in the prosecution of
both matters under case numbers JS
419/10 and JS 1308/09 was almost three years which is excessive and
unreasonable. The conduct
of Mr Zwane fails to demonstrate his
interest in prosecuting his matters. Equally, there is no explanation
for the delay except
that his matter under case number JS 1308/09 is
moot, this Court is conflicted and that his matters must be held in
abeyance pending
the finalisation of his High Court application.
Therefore, the prejudice for Sasol is obvious as it is faced with
litigation that
will never be obtained in the absence of this
application being granted. As such, it is my view that Mr Zwane’s
matters under
case numbers JS 419/10 and JS 1309/09 fall to be
dismissed.
[8]
Costs
[28]
Sasol sought an order of costs against Mr Zwane. The rule of practice
that costs follow the result
does not apply in Labour Court
matters.
[9]
However, in a case where the conduct of the litigant was frivolous,
mala
fide
and forum shopping, the Court must show its displeasure. In this
matter, while Mr Zwane’s matters were still in progress
in this
Court, he approached the High Court with a similar application making
accusations that this Court is conflicted, not independent
and lacked
jurisdiction.
The
Court’s displeasures aside,
a
consideration of the requirements of justice and equity guide me
against making a costs order against Mr Zwane.
[29]
In the circumstance, I make the following order:
Order
1.
Mr Zwane’s application under case number JS 419/10 is
dismissed.
2.
Mr Zwane’s rescission application under case number JS 1308/09
is dismissed.
3.
There is no order as to costs.
__________________
D. Mahosi
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant
Advocate Louis
Hollander
Instructed
by
Johanette Rheeder Incorporated
For
the Respondent
Mr Petros Fakazi Zwane (In person)
[1]
(JR1906/13) [2016] ZALCJHB 534 (6 September 2016) at para 2.
[2]
Act
108 of 1996, as amended.
[3]
2010
(1) SA 238
(CC)
2010 (1) BCLR 35
(CC); (2010) 31 ILJ 296 (CC) ;
[2009] 12 BLLR 1145
(CC) at para 57.
[4]
2001
(4) SA 542 (SCA).
[5]
[2009]
1 BLLR 493 (LAC).
[6]
[2016]
3 BLLR 217
(CC).
at
para 34.
[7]
At
para 45.
[8]
See
Khumalo
and Another v Member of the Executive Council for Education: KwaZulu
Natal
2014 (3) BCLR 333
(CC); (2014) 35 ILJ 613 (CC);
2014 (5) SA 579
(CC)
at para 95.
[9]
Zungu v
Premier of the Province of Kwa-Zulu Natal and Others
(2018)
39 ILJ 523 (CC).