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[2019] ZALCJHB 151
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Fakude and Others; In re: Public Servants Association of South Africa and Others v MEC: Health, Gauteng Provincial Government (JS589/15) [2019] ZALCJHB 151 (19 June 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JS 589/15
In the application of a
Joinder:
MZIZI
FAKUDE
First
Applicant
ALETTAH
MANZANA Second
Applicant
BANTSEBA LOCKIOS
MAHLAKWANE
Third Applicant
ADELA NOKUTHULA
SIGASA Fourth
Applicant
in re
in the matter between:
PUBLIC SERVANTS
ASOCIATION OF SOUTH AFRICA
Applicant
MALULEKA AND
OTHERS
Second –
Further Applicants
and
MEC: HEALTH, GAUTENG
PROVINCIAL GOVERNMENT
Respondent
Heard:
18 June 2019
Delivered:
19 June 2019
JUDGMENT –
APPLICATION FOR A JOINDER
TLHOTLHALEMAJE,
J
Introduction:
[1]
These trial proceedings commenced on 18 February 2019 until
01 March 2019 when the matter was part-heard. Pending the
resumption of proceedings, the first to fourth applicants had
on
7 May 2019, launched separate applications to be joined as
applicants and be afforded an opportunity to present oral
evidence in
the hearing. The applicants’ pleadings refer to an application
to i
nterven
e. Obviously in the light of the relief they seek,
an application for intervention is an irregular step. Be that as it
may, and
for the sake of expedience, the applications would be
determined on the basis that what in fact the applicants seek is
leave to
join the proceedings, rather than to intervene. The
respondent opposed the applications.
[2]
The nub of the dispute in the main proceedings is that;
2.1
The individual applicants held various positions in the respondent’s
Emergency
Medical Services unit and were based at various sites
throughout Gauteng Province. Their services were terminated on
4 November 2014
on allegations of having participated in an
unprotected strike action.
2.2
An alleged unfair dismissal dispute was referred to the Public Health
and Social
Development Sectoral Bargaining Council (PHSDSBC) on
24 January 2015 by the PSA acting on their behalf. A
certificate
of outcome was issued on 22 February 2015.
2.3
The applicants’ statement of claim was filed and served on
12 August 2015.
The list of the individual applicants as
annexed to the statement of claim does not include the four
individual applicants who
seek to be joined in these proceedings,
hence this interlocutory application.
[3]
The trial proceedings were adjourned at a stage where the respondent
had
closed its case after several of its witnesses had testified, and
also where several of the individual applicants had testified.
[4]
In seeking a joinder, the applicants’ versions and cases as to
the
reason they seek the order are to a large extent similar. In a
nutshell, they were all employed by the respondent like the other
individual applicants before the Court in various positions and at
various sites. They were also dismissed on 4 November 2014
notwithstanding the fact that
Manzana was only
notified of her dismissal on 12 November 2014.
[5]
The central theme in the founding affidavits is that the four
individuals
were, or believed that they were members of the PSA at
all material times until their dismissal. They further believed that
they
were party to the proceedings instituted at the
PHSDSBC
and further in this Court by the PSA on behalf of the other
individuals.
[6]
It was only in January and February 2019 that it was brought to
their
attention that in fact they were not party to the proceedings
before the Court. Enquiries made with the PSA as to the reason that
they were not a party to the proceedings revealed ultimately that
according to PSA, they were not its members or members in good
standing.
[7]
In seeking to be joined to the proceedings at this belated and
advanced
stage of the proceedings, the applicants contend that they
have an interest in the proceedings in view of the fact that they
were
dismissed under the same set of circumstances as the individual
applicants before the Court; that it would be in the interests of
justice that they be joined, as their disputes would be determined
once and for all in respect of all those involved, rather than
the
court having to hear individual cases emanating from the same facts
in separate proceedings. They also contend that they will
be
prejudiced should their application be denied, as they remained
unemployed and are not in a position to individually launch
proceedings against the respondent. They further averred that they
had prospects of succeeding in the current proceedings, and
that the
respondent would not be prejudiced should the applications be
granted.
[8]
In opposing the application, the respondent through an answering
affidavit
deposed to by its Assistant Director in Labour Relations,
Gerald Papo, averred that the applications ought to be dismissed on
the
grounds that;
a)
The order sought in these proceedings by the other applicants
before
the Court will not directly affect the rights and interests of those
seeking to be joined as no evidence was led by the
respondent
concerning their participation in the strike;
b)
The application to join was belated as the applicants were aware
as
far as January 2019 that they were not party to the proceedings
and had not timeously approached the Court.
c)
Evidence has already been adduced by the respondent, which has
already closed its case, and the joinder posed inherent risks to the
fairness of the trial if it was granted
d)
The respondent will be prejudiced by the granting of the joinder,
as
it will then have to re-open its case and call the same witnesses to
be cross-examined twice on issues already dealt with.
[9]
This Court
is empowered in terms of the provisions of Rule 22 of the Rules of
this Court to join any party to the proceedings before
it under
certain circumstances.
[1]
In terms of sub-rule 22(1) of the Rules, the Court may join a party
to proceedings if in its view, the substantial relief sought
by the
applicant depends on the determination of substantively the same
facts or application of the law.
[10]
Equally so under the provisions of sub-rule (2)(a) of the Rules of
this Court, a joinder
is permissible if in the Court’s view,
that party has a substantial interest in the subject matter of the
proceedings.
[11]
In
City
of Johannesburg and Others v South African Local Authorities Pension
Fund and Others
[2]
,
the SCA held the following in respect of the principles to be applied
in an application for joinder and the non-joinder of a party:
“
As to the relevant
principles of law, it has by now become well-established that, in the
exercise of its inherent power, a court
will refrain from deciding a
dispute unless and until all persons who have a direct and
substantial interest in both the subject
matter and the outcome of
the litigation, have been joined as parties (see e.g.
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A) at 657
and 659;
Gordon v Department of Health, KwaZulu-Natal
[2008]
ZASCA 99
;
2008 (6) SA 522
(SCA) para 9). A ‘direct and
substantial interest’ is more than a financial interest in the
outcome of the litigation.
A test often employed to determine whether
a particular interest of a third party is the one or the other, is to
examine whether
a situation could arise in which, because the third
party had not been joined, any order the court might make would not
be
res judicata
against that party, entitling him or her to
approach the court again concerning the same subject matter and
possibly obtain an
order irreconcilable with the order made in the
first place (see e.g.
Amalgamated Engineering Union
at 661;
Transvaal Agricultural Union v Minister of Agriculture and Land
Affairs & others
2005 (4) SA 212
(SCA) paras 64-66).
[12]
It is
apparent that for an application for a joinder of a party to the
proceedings to pass muster, the applicant or the party seeking
to be
joined must successfully demonstrate that it has a direct and
substantial interest in the outcome of the litigation.
[3]
Differently put, there must be proceedings initiated which are still
pending in which a third party has a direct and substantial
interest
in the outcome of the proceedings. The purpose of a joinder
application would be in the main to give an opportunity to
the third
party to be heard,
[4]
in
circumstances where the relief sought may substantially affect the
interests of a third party.
[5]
[13]
In regard
to joinder, it was stated in
Snyders
and Others v De Jager (Joinder)
[6]
that;
‘
A person has a
direct and substantial interest in an order that is sought in
proceedings if the order would directly affect such
a person’s
rights or interests. In that case the person should be joined in the
proceedings. If the person is not joined
in circumstances in which
his or her rights or interests will be prejudicially affected by the
ultimate judgment that may result
from the proceedings, then that
will mean that a judgment affecting that person’s rights or
interests has been given without
affording that person an opportunity
to be heard. That goes against one of the most fundamental principles
of our legal system.
That is that, as a general rule, no court may
make an order against anyone without giving that person the
opportunity to be heard.’
[14]
In this case, it was common cause that the dismissal of the
individual applicants seeking
to be joined took place under the same
set of circumstances as that of the individuals in the main
proceedings. From an approach
of common sense, convenience, the
interests of expedition and administration of justice, it would make
sense to allow the joinder
even at this belated stage of the
proceedings. However, the facts and circumstances of this case, and
the determination of the
current applications are not merely
dependent on what is convenient, as central to the determination of
any dispute before this
Court is the issue of jurisdiction.
[15]
It is trite
that in accordance with the provisions of section 191(1) of the
Labour Relations Act (LRA)
[7]
, a
dismissed employee must refer a dispute to the CCMA or relevant
Bargaining Council within certain time frames. Upon a certificate
of
outcome having been issued, in accordance with the provisions of
section 191(5)(b)(iii) of the LRA, the dispute may then be
referred
to this Court for adjudication.
[16]
Under the provisions of section 157(4) of the LRA, this Court “may
refuse to determine
any dispute” if the Court is not satisfied
“that an attempt has been made to resolve the dispute through
conciliation”
[17]
The starting point is that from the founding affidavits, it is
apparent that the PSA has
denied that the individual applicants
seeking to be joined were its members. This therefore implies that
when the dispute was initially
referred to the PHSDSBC by the PSA,
the individual applicants could not have been party to that dispute.
In any event, it was neither
argued nor demonstrated on their behalf
that they were indeed party to the referral and the conciliation
proceedings, the implications
of which are that the jurisdictional
requirement under section 191(1)(a) of the LRA was not satisfied.
[18]
The
approach of our courts has been that a party may not be joined to
proceedings if it was not a party to the conciliation process.
[8]
In
Temba
Big Save CC,
it
was reiterated that a referral for conciliation is indispensable and
a precondition to Commissioner’s or the Labour Court’s
jurisdiction over unfair dismissal disputes, which means that if a
party is not part of the conciliation proceedings it cannot
be joined
at a later stage.
[9]
[19]
In this case, in the light of the jurisdictional prerequisites not
having been met, there
is no basis in law why the application for a
joinder should be granted. In any event, inasmuch as it is
appreciated with these
applications that the applicants seeking to be
joined have a substantial interest in the matter, the question that
was answered
by the respondent is that the order that will ultimately
be made in the main proceedings will not directly affect their rights
and interests, as no evidence was led insofar as their own personal
circumstances leading to their dismissal are concerned.
[20]
It is further not correct as they have suggested that the respondent
would not be prejudiced.
The trial proceedings are indeed at an
advanced stage with the respondent having closed its case. To the
extent that they further
sought an order to allow them to present
oral evidence, this would clearly necessitate a recall of witnesses
who have already been
cross-examined, and thus further protracting
these proceedings, which have already gone over ten days.
Furthermore, it is not as
if the individual applicants will now find
themselves without a remedy if a joinder is not granted. They are
still at liberty to
approach the
PHSDSBC.
[21]
In the circumstances, the following order is made;
Order:
1. The
application for a joinder is dismissed.
2. There is no
order as to costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants (Joinder):
A. R. S Nxumalo, instructed by Thabang Ntshebe Attorneys (Pro Bono)
For
the Respondent:
M. W Dlamini, instructed by the State Attorney, Johannesburg
[1]
Rule 22
Joinder
of parties, intervention as applicant or respondent, amendment of
citation
and substitution of parties
(1)
The court may join any number of persons, whether jointly, jointly
and
severally, separately, or in the alternative, as parties in
proceedings, if the right to relief depends on the determination of
substantially the same question of law or facts.
(2)(a)
The court may, of its own motion or on application and on notice to
every other party,
make an order joining any person as a party in
the proceedings if the party to be joined has a substantial interest
in the subject
matter of the proceedings.
(b)
When making an order in terms of paragraph (a), the court may give
such
directions as to the further procedure in the proceedings as it
deems fit, and may make an order as to costs.
(3)
Any person entitled to join as a party in any proceedings may, on
notice
to all parties, at any stage of the proceedings, apply for
leave to intervene as a party and the court may make an order,
including
any order as to costs, or give such directions as to the
further procedure in the proceedings as it deems fit.
(4)
If a party to any proceedings has been incorrectly or defectively
cited,
the court may, on application and on notice to the party
concerned, correct the error or defect and may make an order as to
costs.
(5)
If in any proceedings it becomes necessary to substitute a person
for
an existing party, any party to such proceedings may, on
application and on notice to every other
party, apply to the court for an order substituting that party for
an existing party and the court may make such order, including
an
order as to costs, or give such directions as to the further
procedure in the proceedings as it deems fit.
(6)
An application to join any person as a party to the proceedings or
to
be substituted for an existing party must be accompanied by
copies of all documents previously delivered, unless the person
concerned
or that person's representative is already in possession
of those documents.
(7)
No joinder or substitution in terms of this rule will affect any
prior
steps taken in the proceedings.
[2]
[2015] ZASCA 4
; (2015) 36 ILJ 1439 (SCA)
[3]
See
Transvaal
Agricultural Union v Minister of Agriculture and Land Affairs &
others
2005 (4) SA 212 (SCA)
[4]
See
Ex
Parte Body Corporate of Caroline Court
2001
(4) SA 1230
(SCA) at para [9], where it was held that;
“…
It
is a principle of our law that interested parties should be afforded
an opportunity to be heard in matters in which they have
a direct
and substantial interest. In Amalgamated Engineering Union v
Minister of Labour 1949(3) SA 637 (A) (at 651) the following
is
stated:
‘
It
was rather a subtle reasoning, which helped the Court to do what it
no doubt regarded as substantial justice in the peculiar
circumstances of the case, while at the same time enabling it to
stand firm on the two essential principles of law that had to
be
borne in mind, viz.(1) that a judgment cannot be pleaded as res
judicata against someone who was not a party to the suit in
which it
was given, and (2) that the Court should not make an order that may
prejudice the rights of parties before it.’
[5]
See
Bowring
NO v Vrededorp Properties CC
2007 (5) SA 391
(SCA) at para [21]
[6]
(CCT186/15)
[2016] ZACC 54
;
2017 (5) BCLR 604
(CC) (21 December
2016) at para 9
[7]
Act 66 of 1995 (as amended), section
191.
Disputes about unfair dismissals and unfair labour practices
(1)
(a)
If there is a
dispute
about the fairness of a
dismissal
,
or a
dispute
about an unfair labour practice, the dismissed
employee
or the
employee
alleging the unfair labour
practice may refer the
dispute
in writing to -
(i)
a
council
,
if the parties to the
dispute
fall within the registered
scope
of that
council
;
or
(ii)
the Commission, if no
council
has jurisdiction.
[8]
See
Temba
Big Save CC v Kunyuza and Others
[2016] ZALAC 36
;
[2016] 10 BLLR 1016
(LAC); (2016) 37 (ILJ) 2633
(LAC);
Ngema
and Others v Screenex Wire Weaving Manufacturers (Pty) Limited and
others
(2012) 33 ILJ 681 (LC) at para 22 ;
National
Union of Mineworkers of South Africa v Intervalve (Pty) Ltd and
Others
[2015] 2 BCLR 182 (CC).
[9]
Supra
fn (8)
At
para 29; See also
National
Union of Metal Workers of South Africa v Intervalve (Pty) Ltd and
Others
at
paras 40 and 108