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[2019] ZALCCT 41
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Du Plessis v Public Protector and Others (C272/19) [2019] ZALCCT 41; (2020) 41 ILJ 919 (LC) (12 December 2019)

THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
Reportable
case
no: C272 /19
In
the matter between:
CLEMENT ROLAND DU
PLESSIS

Applicant
and
PUBLIC PROTECTOR:
ADV
BUSISIWE MKWEBANE

First Respondent
REGINALD NDOU
EXECUTIVE MANAGER:
PROVINCIAL INVESTIGATIONS
PUBLIC
PROTECTOR HEAD OFFICE

Second Respondent
MR D I K WILSON
SENIOR
COMMISSIONER: CCMA: CAPE TOWN

Third Respondent
MR CAMERON MORAJANE
THE
DIRECTOR: CCMA: NATIONAL OFFICE

Fourth Respondent
PROF CHRIS NHLAPO
THE
VICE CHANCELLOR: CPUT,
BELLVILLE

Fifth Respondent
Heard
:
10 December 2019
Delivered
:
12 December 2019
Summary:
Review application
–
application to review decision by Public Protector to decline to
investigate complaint by applicant against CCMA commissioner –

issue of jurisdiction considered – Labour Court not having
jurisdiction to review and set aside decision of Public Protector
Res
judicata
–
principles considered – applicant
seeking relief that has already been decided by Labour Court and
Labour Appeal Court –
issue
res judicata
Review
application – no provision in the LRA providing for
consideration of review application
Review
application – application dismissed for want of jurisdiction
Costs
– proceedings an abuse of process – punitive costs
ordered
JUDGMENT
SNYMAN, AJ
Introduction
[1]
The current application is one that should
have never burdened this Court. It constitutes the most recent step
in a barrage of litigation
launched by the applicant to take issue
with his dismissal for misconduct by the fifth respondent. The
application is couched as
a review application, in which the
applicant seeks to review and set aside a decision by the Public
Protector (the first respondent)
not to investigate a complaint
brought by the applicant concerning the conduct of a commissioner of
the Commission for Conciliation,
Mediation and Arbitration (‘CCMA’).
The application is opposed by the Public Protector and the fifth
respondent (his
erstwhile employer).
[2]
Upon considering the application in this
matter, it became apparent to me that the first issue that needed to
be decided was whether
this Court has jurisdiction to entertain the
applicant’s application in the first place. Thus, and when this
matter came
before me for argument on 10 December 2019, I required
the parties to only address me on the issue jurisdiction, as this
issue
would be dispositive of the matter, without the need to
consider the merits thereof, should the requisite jurisdiction be
lacking.
[3]
After hearing argument by all the parties,
I indicated that I will first decide the issue of jurisdiction, and
hand down judgment
in this regard on 12 December 2019. I will now
proceed with giving such judgment, by first setting out a summary of
only the background
facts that are relevant in deciding the issue of
jurisdiction.
Background
facts
[4]
For ease of reference, I will refer in this
judgment to the applicant’s erstwhile employer, the fifth
respondent, as ‘CPUT’,
the third respondent as
‘commissioner Wilson’ and the first respondent as the
‘Public Protector’.
[5]
The applicant was employed by CPUT as a
lecturer in its media and journalism department. The applicant was
dismissed on 30 June
2014 for misconduct concerning the sexual
harassment of two female students he lectured and the intimidation
and threatening of
these two students and their parents. The
applicant alleged that these charges were all part of a conspiracy by
CPUT to get rid
of him.
[6]
The applicant was dismissed following a
disciplinary hearing presided over by the third party chairperson,
one Ms Arthi Singh-Bhoopchand
(‘Singh-Boopchand’). Of
relevance to this current application is the fact that
Singh-Boopchand is a panellist of an
organization known as IR Change.
[7]
When
Boopchand-Singh recommended the dismissal of the applicant following
the conclusion of the disciplinary proceedings over which
she
presided, the applicant sought to challenge her determination on
review to this Court, alleging that the disciplinary proceedings
were
in fact arbitration proceedings as contemplated by section 188A
[1]
of the Labour Relations Act (‘LRA’).
[2]
The application came before Steenkamp J under case number C 817 / 14,
and the learned Judge held that the matter did not concern
a
pre-dismissal arbitration in terms of section 188A of the LRA, but
was an internal disciplinary hearing in the ordinary course,
simply
presided over by the third party chairperson. The learned Judge
determined that the applicant had to refer his dispute to
the CCMA as
an unfair dismissal dispute, and dismissed the review application for
want of jurisdiction.
[8]
The
applicant then indeed referred an unfair dismissal dispute to the
CCMA, in the ordinary course, in terms of section 191 of the
LRA.
[3]
However, and unfortunately, this referral was now out of time,
[4]
being some 69 days late, requiring a condonation application.
[5]
The applicant indeed applied for condonation, and it is this
condonation application that came before commissioner Wilson for
determination.
[9]
Commissioner Wilson held that the degree of
lateness was substantial, but he found that the explanation for the
delay was acceptable.
The commissioner decided that the issue of
prejudice was a neutral factor. The commissioner however declined to
grant condonation
because he considered that the application had no
prospects of success. As a result, the condonation application was
dismissed,
which disposed of the applicant’s unfair dismissal
case against CPUT.
[10]
Dissatisfied with this condonation ruling,
the applicant then approached this Court on review, seeking to review
and set aside the
condonation ruling by commissioner Wilson. The
review application came before Rabkin-Naicker J on 22 October 2015
under case number
C 169 / 15. In a judgment handed down on 17
February 2016, the learned Judge dismissed the review application,
with costs. The
learned Judge specifically considered the issue of
prospects of success as part of the condonation application, on the
basis as
it was raised by the applicant in the condonation
application itself. After a full evaluation of the issue, the learned
Judge held
that the reasoning of commissioner Wilson on the issue of
prospects of success was reasonable, that the commissioner had
applied
the test for condonation correctly, and his decision was
unassailable on review.
[11]
Next, the applicant sought leave to appeal
against the judgment of Rabkin-Naicker J of 17 February 2016. The
learned Judge refused
leave to appeal, again with costs, on 9 May
2016. Undeterred, the applicant petitioned the Labour Appeal Court
(‘LAC’)
for leave to appeal. The LAC refused to leave to
appeal by way of an order granted under case number CA 12 / 16 on 18
August 2016.
[12]
It appears that the applicant’s
failure in the Labour Court before Rabkin-Naicker J and being turned
down by the LAC simply
spurred him on, rather than bringing him to
different insights. According to the applicant, he then realized that
commissioner
Wilson was tainted by a conflict of interest, in that he
was also a panellist of IR Change, being the same organization that
Boopchand-Singh
also served as a panellist on. This prompted the
applicant to lay a complaint with the Public Protector in 2016, in
which he sought
that the Pubic Protector investigate the conduct of
commissioner Wilson and the CCMA, by virtue of the fact that he
considered
this conflict of interest to constitute maladministration
and maleficence by the CCMA as public institution deserving of the
attention
of the Public Protector.
[13]
However, the Public Protector declined to
entertain the applicant’s complaint. In a letter to the
applicant dated 17 April
2017, the applicant was informed by the
Public Protector that it had no jurisdiction to entertain the
applicant’s complaint,
for a number of reasons. The first
reason was that the condonation application had already been disposed
of by the Labour Court
and LAC. Secondly, the applicant was informed
that only the Labour Court and LAC could entertain the complaint
raised by the applicant,
in any event. And finally, the applicant was
informed that the Public Protector Act did not permit the Public
Protector to perform
judicial functions, which was in essence what
the applicant wanted it to do.
[14]
The applicant pressed on. He pursued an
internal review in the office of the Public Protector. Yet again, and
in a letter dated
28 November 2017, the applicant was informed that
the Public Protector had no jurisdiction to entertain the applicant’s
complaint.
In this letter, the Public Protector however gave some
further background upon which the decision not to investigate was
based.
Specifically, the conflict of interest issue was dealt with in
the letter. It was indicated that this issue had to be dealt with
by
the Labour Court, however the issue was already disposed of when the
condonation application was disposed of. The Public Protector

indicated that its file ‘
remained
closed
’.
[15]
This outcome has little impact on the
applicant’s resolve. He then turned his attentions to the
Western Cape High Court. He
brought an application to review and set
aside the decision by the Public Protector not to investigate his
complaint. However,
and importantly, he sought, as consequential
relief, that he be reinstated by the CPUT with full back pay and that
the disciplinary
proceedings against him reconvene
de
novo
. The applicant’s review
application was dealt with by Hlophe JP in the Western Cape High
Court. In an order dated 19 February
2019 under case number 19493 /
18, it was ordered that the applicant’s review applicant be
withdrawn, with the applicant
paying the wasted costs. That should
have been the end of things, but once again, that turned out not to
be so.
[16]
The next twist came when the applicant
contended, after his abortive review application in the Western Cape
High Court, that it
had been directed by Hlophe JP that the
applicant’s review application simply be referred to the Labour
Court. So, in short,
the applicant contended that he came to the
Labour Court by way of an order from Hlophe JP giving him permission
to do so and in
effect transferring the application to this Court.
[17]
I however was unable to find such an order
or directive in the pleadings. The high water mark of this part of
the case, on the evidence,
is an e-mail exchange in the period
between 27 February and 27 March 2019, in which the applicant
communicated with the associate
of Hlophe JP about the purported
transfer of his matter to the Labour Court. In this e-mail exchange,
he suggested that the Judge
President had transferred the matter to
the Labour Court, and he then required the assistance of the office
of the Judge President
to in effect conduct the necessary
administrative steps to have the transfer to the Labour Court come
about. This exchange came
to an end on 27 March 2019, when the
associate of Hlophe JP made it clear that it was the applicant’s
responsibility to take
his matter to the Labour Court should he wish
to do so, and this simply did not concern the office of the Judge
President. This
final e-mail made no reference to a ‘
transfer
’.
[18]
The applicant however saw this e-mail of 27
March 2019 as some kind of invitation to come back to this Court.
Virtually an identical
review application to the application which
the applicant had filed in the Western Cape High Court then followed
in this Court
on 30 May 2019, being the current application now
before me. Once again, the review application is not directed at CPUT
as the
applicant’s erstwhile employer, but at the Public
Protector. The applicant again seeks an order that the decision of
the
Public Protector not to investigate his complaint be reviewed and
set aside. However, and where it comes to the consequential relief

sought, that is then directed at CPUT, as he once again seeks that he
be reinstated and the disciplinary proceedings against him
be
conducted
de novo
.
[19]
It is based on the above factual matrix
that I will now decide whether this Court in fact has jurisdiction to
entertain the applicant’s
current review application.
Analysis
[20]
Jurisdiction
cannot be assumed or implied. It either exists or it does not.
Jurisdiction is the power of the Court to decide a matter
that has
been brought before it. If the Court does not have the power to do
so, it cannot consider the matter, no matter what the
merits or
equities may be. As held in
Gcaba
v Minister for Safety and Security and Others
[6]
:
‘
The
specific term 'jurisdiction', which has resulted in some controversy,
has been defined as the 'power or competence of a court
to hear and
determine an issue between parties …'
In
Makhanya
v University of Zululand
[7]
,
the Court also dealt with the meaning of jurisdiction as follows:
‘…
.
Judicial power is the power both to uphold and to dismiss a
claim. It is sometimes overlooked that the dismissal of a claim
is as
much an exercise of judicial power as is the upholding of a claim. A
court that has no power to consider a claim has no power
to do either
(other than to dismiss the claim for want of jurisdiction)
.’
[21]
Jurisdiction
is determined on the basis of the case as pleaded by the applicant,
which pleaded case in motion proceedings is determined
by reference
to the notice of motion and founding affidavit.
[8]
In the notice of motion
in
casu
,
the applicants prays that the ‘review decision’ of the
Public Protector of 26 June 2018, which refers to the internal
review
by the Public Protector of the decision to refuse to entertain the
applicant’s complaint, be declared to be unlawful,
and be set
aside. The second part of the relief sought in the notice of motion
is a prayer by the applicant that his dismissal
by CPUT in effect be
set aside, and that he be reinstated with back pay so the
disciplinary proceedings against him could be conducted
de
novo
.
The applicant also relies in the notice of motion on the purported
directive of Hlophe JP transferring the matter to the Labour
Court.
[22]
In the founding affidavit, the applicant
contends that the conflict of interest allegation concerning
commissioner Wilson had not
yet been decided by a Court, and
constitutes ‘maladministration’ the Public Protector is
required to investigate. As
such, he pleaded that he is entitled to
pursue the decision of the Public Protector not to investigate his
complaint founded on
this conflict of interest case on review to this
Court, because it concerns the CCMA. In the founding affidavit, the
applicant
however concedes that there is no employment relationship
between himself and the CCMA, or himself and the Public Protector.
Finally,
and in the founding affidavit, the applicant expansively
elaborates on the merits of his conflict of interest complaint, which
in a nutshell is based simply on the fact that commissioner Wilson
was a panellist for IR Change, as was the chairperson of his
enquiry,
Singh-Bhoopchand.
[23]
On
this pleaded case, as it stands, the applicant cannot overcome the
jurisdictional hurdle, for two principal reasons. The first
reason is
that this Court has no power or competence to review and set aside a
decision of the Public Protector. I specifically
asked the applicant
on that provision of the LRA he relies in bringing his review
application, as the power of this Court to consider
review
applications concerning organs of state flows only from the LRA. The
applicant was not able to provide an answer. However,
the only
possible place to find an answer has to be sections 157 and 158 of
the LRA. In this regard, and firstly, the functions
of the Public
Protector are not regulated by the LRA or other statute specifically
resorting under the jurisdiction of the Labour
Court, and thus
section 157(1) cannot find application.
[9]
Secondly, Section 157
(2)
of the LRA provides that the Labour Court has concurrent jurisdiction
with the High Court only in respect of alleged or threatened

violation of any fundamental right arising from employment and from
labour relations, or any dispute over the constitutionality
of any
executive or administrative act or conduct, or any threatened
executive or administrative act or conduct, by the State in
its
capacity as an employer. The result is that the insurmountable
problem confronting the applicant is that the decision of the
Public
Protector
in
casu
is
not a decision arising from employment or labour relations or made by
the State in its capacity as employer.
[10]
In
Motor
Industry Staff Association v Macun NO and Others
,
[11]
the Court said:
‘
Section
157(2) of the LRA was enacted to extend the jurisdiction of the
Labour Court to disputes concerning the alleged violation
of any
right entrenched in the Bill of Rights which arise from employment
and labour relations, rather than to restrict or extend
the
jurisdiction of the High Court. The Labour Court and Labour Appeal
Court were designed as specialist courts that would be steeped
in
workplace issues and be best able to deal with complaints relating to
labour practices and collective bargaining. Put differently,
the
Labour and Labour Appeal Courts are best placed to deal with matters
arising out of the LRA. Forum shopping is to be discouraged.
When the
Constitution prescribes legislation in promotion of specific
constitutional values and objectives then, in general terms,
that
legislation is the point of entry rather than the constitutional
provision itself
.’
[24]
This
then only leaves section 158. Even though this provision on face
value appears to deal with powers that are conveyed to the
Labour
Court only once jurisdiction is first established to exist, this
section must be read in conjunction with section 157 as
a source of
jurisdiction as well. This was recognized in
Merafong
City Local Municipality v SA Municipal Workers Union and Another
,
[12]
where the Court held as follows:
‘
Section
158 is such a section. Its introductory wording specifically states
that it deals with the powers of the Labour Court. Because
the
introductory words of the previous section, that is s 157, state that
it deals with the jurisdiction of the Labour Court, the
immediate
expectation is that s 158 is not a source of jurisdiction, but merely
contains provisions defining the powers of the
Labour Court in
respect of matters, which, in terms of some other provision of that
Act, falls under the jurisdiction of the Labour
Court. However, a
close reading of the entire s 158 dispels that initial notion. It
does deal with powers (post jurisdiction),
but also with powers,
which cannot but be construed and understood as sources of
jurisdiction.
’
[25]
Does
section 158 however assist the applicant? Unfortunately not. The
Public Protector functions in terms of the Public Protector
Act.
[13]
Because of that, section 158(1)(b) cannot apply to decisions of the
Public Protector, as it does arise from the LRA or an employment
law.
The review powers of the Labour Court are found in sections 145,
158(1)((g) and 158(1)(h) of the LRA. Section 145 cannot apply,

because it only relates to review applications concerning arbitration
awards handed down by commissioners of the CCMA. Section
158(1)(g)
equally cannot apply, because it only relates to functions performed
in terms of the LRA.
[26]
This
leaves only section 158(1)(h), which provides that: ‘
The
Labour Court may … review any decision taken or any act
performed by the State in its capacity as employer, on such grounds

as are permissible in law.
’
A review application brought in terms of section 158(1)(h) could
include an application based
the
grounds listed in PAJA
[14]
provided the decision constitutes administrative action, or in terms
of the common law in relation to domestic or contractual disciplinary

proceedings, or in accordance with the requirements of the
constitutional principle of legality.
[15]
I will also accept, without deciding, to benefit the applicant, that
CPUT could be seen as the State in its capacity as employer.
Even
considering the wide parameters of section 158(1)(h) in this context,
the applicant still remains unassisted by this provision,
where to
comes to the issue of jurisdiction.
[27]
In
this instance, a decision taken by the Public Protector does has
nothing to do with domestic or contractual disciplinary proceedings.

Further, a decision taken by the Public Protector does not constitute
administrative action and PAJA cannot apply. In
Minister
of Home Affairs and Another v Public Protector of the Republic of
South Africa
[16]
the Court held:
‘
First,
the Office of the Public Protector is a unique institution designed
to strengthen constitutional democracy. It does not fit
into the
institutions of public administration but stands apart from them.
Secondly, it is a purpose-built watch-dog that is independent
and
answerable not to the executive branch of government but to the
National Assembly. Thirdly, although the
State Liability Act 20 of
1957
applies to the Office of the Public Protector to enable it to
sue and be sued, it is not a department of state and is functionally

separate from the state administration: it is only an organ of state
because it exercises constitutional powers and other statutory
powers
of a public nature. Fourthly, its function is not to administer but
to investigate, report on and remedy maladministration.
Fifthly, the
Public Protector is given broad discretionary powers as to what
complaints to accept, what allegations of maladministration
to
investigate, how to investigate them and what remedial action to
order – as close as one can get to a free hand to fulfil
the
mandate of the Constitution. These factors point away from decisions
of the Public Protector being of an administrative nature,
and hence
constituting administrative action. That being so, the PAJA does not
apply to the review of exercises of power by the
Public Protector …
’
[28]
Can
the applicant then finally rely on the constitutional principle of
legality as basis for contending that the utilization of
section
158(1)(h) is competent? The simple answer must be no. Where it comes
to section 158(1)(h), the legality issue as basis
for review must
arise in the context of the employment relationship. In short, it
must be a decision taken that prejudicially impacts
upon the review
applicant, as being an employee of the State, or the State in the
capacity as the employer of an employee.
[17]
The decision of the Public Protector is not such a decision.
[29]
Accordingly,
that has to be the end of it insofar as it concerns the jurisdiction
of this Court to review and set aside the decision
of the Public
Protector not to investigate the complaint brought by the applicant,
even if it concerns the conduct of a commissioner
of the CCMA. The
simple reason for this is that the LRA does not provide for it. The
LRA provides for the review of the conduct
of a commissioner which
may include an issue of conflict of interest, by the Labour Court
under section 145(2) of the LRA.
[18]
This power includes exercising a supervisory duty over any irregular
conduct of such a commissioner.
[19]
This would also include any contention of bias or conflict of
interest on the part of a commissioner.
[20]
However, this cannot include a decision of a third party functionary
such as the Public Protector not to become involved in this
process,
which is exclusively reserved for the Labour Court and LAC.
[30]
The point can perhaps be illustrated by a
simple example. If there is an allegation concerning bribery and
corruption by the management
of the CCMA, such as for example in
awarding a tender to supply a research database to the CCMA, then
that would be an issue that
the Public Protector can investigate. Any
decision made by the Public Protector in this context would be
subject to review by the
High Court, and not the Labour Court.
However, and where is comes to allegations of bribery or misconduct
by individual commissioners
of the CCMA in the course of discharging
their duties as commissioners in terms of the LRA, those are issues
that must be brought
to the Labour Court in terms of the LRA, and
does not concern the Public Protector.
[31]
Applying
the most generous approach to the applicant, it can perhaps be said
that the applicant’s notice of motion contemplates
a prayer
that his dismissal be reviewed and set aside, and that he be
reinstated, which would of course be something the Labour
Court has
the power to decide. Even accepting this is so, and considering it in
isolation, the applicant faces an insurmountable
obstacle. That
obstacle can be found in the fact that the applicant already pursued
an unfair dismissal dispute to the CCMA and
lost. He then challenged
the matter further to the Labour Court and Labour Appeal Court, and
also lost. It simply does not matter
on what basis he lost. What
matters is that his unfair dismissal case is finally disposed of, and
therefore, it is simply not competent
to afford the applicant any
relief setting aside his dismissal and affording him reinstatement.
That kind of relief is prohibited
by the
exceptio
res judicata
.
In
SA
National Defence Union and Another v Minister of Defence and Others;
SA National Defence Union v Minister of Defence and Others
[21]
it was held:
‘
The
requisites for a valid defence of res judicata are that the matter
adjudicated upon must have been for the same cause, between
the same
parties and the same thing must have been demanded …
’
In
Yellow
Star Properties v MEC Department of Development Planning and Local
Government
[22]
the
Court amplified on this
dictum
in
SA
National Defence Union
as follows:
‘…
.
it is necessary to stress not only that the parties must be the same
but the same issue of fact or law which was an essential element

of the judgment on which reliance is placed must have arisen and must
be regarded as having been determined in the earlier judgment
.’
[32]
In
simple terms, the
res
judicata
principle can hardly be better described than how it was done in
MEC
Department of Education, KwaZulu-Natal v Khumalo and Another
[23]
,
where the Court said:
‘
Res
judicata literally means "a matter already judged"; the
doctrine is that the matter cannot be judged again. This is
a
presumption founded on public policy requiring litigation not to be
endless, to be in good faith and to prevent the same claim
being
demanded more than once.
'
[33]
Whilst it may be so that the Public
Protector has been added as a party to the conflict only after the
conclusion of the original
proceedings in the Labour Court and the
LAC, that does not change the real issue. As was made clear by the
applicant himself in
argument, it was always about his dismissal by
CPUT, his challenge of such dismissal, the decision taken by
commissioner Wilson,
and being reinstated by CPUT so his name can be
cleared. The Public Protector is nothing but an added conduit to
achieve exactly
the same result the applicant was unsuccessful in
obtaining from the CCMA, the Labour Court and the LAC. In short, the
parties
are the same, the cause is the same, and what is ultimately
demanded as consequential relief is the same. The Labour Court has
already decided all of this. The LAC declined leave to appeal. The
case is thus disposed of, and cannot be revisited under a new
guise.
[34]
The
applicant has sought to overcome the aforesaid difficulty by
contending that he did not raise the issue of the conflict of
interest of commissioner Wilson before the CCMA, Labour Court or LAC
until now, because it only came to his attention later in 2016.
Even
accepting this is true, it simply does not matter. It cannot change
what has already come to pass.
In
Bouwer
v City of Johannesburg and Another
[24]
,
an applicant initially sought an order declaring his position
redundant by virtue of the abolition of his post, which would have

entitled him to be retrenched and to receive his full severance
benefits. This application came before Landman J (as he then was),

and the learned Judge ruled that without certain expert evidence on
the evaluation of the respective posts, he could not decide
the
matter, and he consequently dismissed the application. Undeterred,
that applicant then referred another dispute to the Labour
Court,
claiming that as a result of restructuring, the post that he
previously filled had been abolished, and he sought declaratory

relief including an order that he is entitled to terminate his
employment and receive severance benefits.  Francis J (as he

then was) heard the matter, and considered a defence of
res
judicata
in this context, and in particular an argument that Landman J in the
previous application had not made a final and definitive judgment
and
order on the merits of the dispute.
[25]
Francis J held as follows:
[26]
‘
It
is clear from the judgment and order made by Landman J that he had
made a definitive and final order. It is probably appropriate
to
conclude this judgment by referring to
Wolfaardt
v Colonial Government
(1899) 16 SC 250
at 252 where it is stated that:
'The plaintiff cannot, by
now changing the form of action, make substantially the same claim as
he made in the former action. The
test as to what he claimed must be
sought in the pleadings, and not in the evidence tendered by him in
support of his declaration.
It is his own fault if he failed to
substantiate his case by sufficient evidence.'
Landman
J had found inter alia that the applicant had failed to lead expert
evidence on the two different posts and therefore his
case was
shipwrecked. The applicant had failed to substantiate his case by
sufficient evidence in the previous case. In launching
the present
application the applicant has attempted to salvage his wrecked ship
which he clearly cannot do. The special plea stands
to be upheld and
the applicant's claim stands to be dismissed.
’
[35]
The comparisons between the judgment in
Bouwer supra
and the matter
in casu
is immediately apparent. The fact that the applicant failed to place
the issue of conflict of interest before commissioner Wilson
and
Rabkin-Naicker J cannot assist his case, as he simply cannot raise it
later, once his case has been finally dismissed, as a
basis for
seeking the same outcome.
[36]
But
even accepting for the purposes of argument that the applicant can
competently bring another application, and raise legal grounds
not
raised before, to substantiate the same relief, the principle of
res
judicata
further contemplates that an applicant needs to raise all the issues
upon which the applicant seeks relief, once, and up front,
in the
same application. Continued piecemeal litigation is equally contrary
to public policy.  It is entirely undesirable
that a litigant
brings one claim after another based on in essence the same
lis
between the same parties, simply by rotating different possible
causes of action to justify the same ultimate relief. This principle

is often also expressed as the ‘
once
and for all rule
’,
and is nothing else but a manifestation of the
exceptio
res judicata
.
In
Evins
v Shield Insurance Co Ltd
[27]
,
the Court described the ‘
once
and for all rule
’
as follows:
'
…
the rule is to the effect that in general a
plaintiff must claim in one action all damages, both already
sustained and prospective,
flowing from one cause of action (see
Cape
Town Council v Jacobs
1917 AD 615
at
620;
Oslo Land Co Ltd v The Union
Government
1938 AD 584
at 591;
Slomowitz v Vereeniging Town Council
1966 (3) SA 317
(A) at 330;
Custom
Credit Corporation (Pty) Ltd v Shembe (supra
at 472). …. it is a well-entrenched rule. Its purpose is to
prevent a multiplicity of actions and to ensure that there is
an end
to litigation.
'
[37]
As
further explained in
Janse
van Rensburg NO and Others v Steenkamp and Another; Janse van
Rensburg and Others v Myburgh and Others
[28]
:
‘
The
scope of the “once and for all” rule was said, in the
National Sorghum
case
(
supra
) at
241D–E, to require that all claims generated by the same cause
of action be instituted in one action.
’
[38]
As
to when the cause of action would be considered to be the same for
this purpose, the Court in
Fidelity
Guards Holdings (Pty) Ltd v Professional Transport Workers Union and
Others
[29]
said:
‘
The
cause of action is the same whenever the same matter is in issue:
Wolfaardt v Colonial Government
16 SC 250
at 253. The same issue must have been adjudicated upon. An
issue is a matter of fact or question of law in dispute between two
or more parties which a court is called upon by the parties to
determine and pronounce upon in its judgment, and is relevant
to the
relief sought:
Horowitz v Brock &
others
1988 (2) SA 160
(A) at 179F-H.
….  The reason for the rule is to prevent difficulties
arising from discordant or mutually contradictory
decisions due to
the same action being aired more than once in different judicial
proceedings: Voet 44.2.1. The object of the rule
is that of
public policy which requires that there should be an end to
litigation and that a litigant should not be harassed twice
upon the
same cause:
Boshoff v Union Government
1932 TPD 345
at 350;
Custom Credit
Corporation (Pty) Ltd v Shembe
1972 (3)
SA 462
(A) at 472A-E. ….
’
[39]
The
judgment in
Fidelity
Guards Holdings
is in fact a proper example, directly comparable to the matter
in
casu
,
of how the ‘
once
and for all rule
’
would work in the context of relief sought under the LRA. The Court
dealt with two different applications to declare a strike

unprotected, based on the same factual matrix, but on different
grounds. The Court described the issue as follows:
[30]
‘
The
enquiry in this matter is whether the cause of action in the first
application (heard by Revelas J) was the same in the second

application which is the subject-matter of this appeal. In both
applications the contention was that the strike was unprotected.
What
differed was the basis for that contention. In my view, the cause of
action was nevertheless the same, namely, that the strike
was
unprotected for want of compliance with the provisions of the 1995
Act.
’
The
Court held that a strike could be considered unprotected for various
reasons under the LRA, as contained in Sections 64 and
65, and on
either substantive or procedural grounds, or both.  The Court
then said the following, which in my view finds direct
application to
approach adopted by the applicant
in
casu
:
[31]
‘
If
an employer in the initial application contends that the strike is
unprotected because of a procedural defect, such as that the
48
hours' notice has not been given, and fails in its application, can
the employer thereafter approach the court on another basis,
for
example, that the strikers are bound by a collective agreement that
prohibits a strike in respect of the issue in dispute?
The
answer must be in the negative. In an application for a declaratory
order and an interdict on the basis that a strike is unprotected,
the
employer is obliged to raise all its contentions in that application.
It is not entitled to litigate piecemeal with the union
and its
members. …
’
[40]
I
have little difficulty in concluding that what the applicant is
seeking to do, where it comes to bringing the purported new issue
of
‘conflict of interest’ into the proceedings, is exactly
that which the Court in
Fidelity
Guards Holdings supra
described
as further proceedings relating to the same cause of action. As in
fact said by the Court in
Fidelity
Guards Holdings
:
[32]
‘…
What
the appellant did in the present matter, however, was to attempt to
circumvent these provisions of the law by launching new
proceedings
on the same issue, albeit on a different basis. That it cannot do …
’
[41]
In
my view, and similarly, the applicant cannot keep litigating by just
changing the grounds of his application, and the ‘
once
and for all
’
rule must find application, bringing matters to an end.  In
Sgt
Pepper's Knitwear and Another v SA Clothing and Textile Workers Union
and Others
[33]
the Court held:
‘
Our
courts are not in favour of a piecemeal approach to litigation. Hence
the 'once and for all' approach has been developed …
‘
[42]
The simple fact is that the alleged bias or
conflict of interest of a commissioner constitutes proper cause for
challenging any
determination made by the commissioner on review to
the Labour Court. The issue needed to be raised before Rabkin-Naicker
J in
the review application in this Court. Even if it was not raised,
it cannot be raised later, as the basis of the case remains the
same,
being the application to review and set aside the condonation ruling
of commissioner Wilson. The judgment of Rabkin-Naicker
J (considered
with the refusal of leave to appeal by the LAC) means that the
condonation ruling of commissioner Wilson stands.
It will continue to
stand no matter what new grounds the applicant may come up with at a
later stage. That must therefore be the
end of any relief sought by
the applicant in respect of the setting aside of his dismissal and
his reinstatement.
[43]
The applicant then faces a final
difficulty, being that section 6(6) of the Public Protector Act
specifically precludes the Public
Protector from investigating
judicial functions by a court of law, with the Labour Court clearly
being a Court of law, and the
Labour Court having discharged its
judicial functions in upholding the condonation ruling of
commissioner Wilson. It is out of
bounds for the Public protector to
investigate this.
[44]
All said, the end result is inevitable.
This Court has no jurisdiction to review and set aside the decision
of the Public Protector
complained of by the applicant. It is not a
decision that arises from the LRA or has anything to do with the
employment relationship.
The Public Protector in any event cannot
become involved in the decision making by functionaries tasked to
fulfil dispute resolution
functions under the LRA. The oversight of
those decisions resort exclusively under the jurisdiction of the
Labour Court. The Labour
Court
in casu
has in fact considered the decision taken by commissioner Wilson, and
has upheld the same. It is impermissible to in essence launch
exactly
the same challenge, but just in a roundabout way and under a
different guise, as the applicant in my view did.
[45]
As a final observation, I must deal with
the applicant’s reliance on the purported transfer of this
matter to the Labour Court
by way of an alleged directive by Hlophe
JP of the Western Cape High Court. On the facts, no such directive
and no such transfer
exists. It is trite that the High Court has the
jurisdiction to review decisions and reports made by the Public
Protector, so I
cannot comment why Hlophe JP may have granted an
order on 19 February 2019 that the applicant’s application be
withdrawn.
However, the reason for this cannot be of any moment in
the current matter, because there is no order transferring the
application
brought in the High Court, to this Court. I in any event
have my doubts whether such an order would be competent. It would be
always
up to this Court to decide for itself, based on the relevant
provisions of law and the case as pleaded by the applicant, whether

it has jurisdiction.
[46]
For all the reasons as set out above,
I
therefore conclude that the Labour Court has no jurisdiction to
entertain the applicant’s application. The applicant’s

application falls to be dismissed on this basis alone, without
needing to consider the merits thereof or any issue of condonation

for the late filing of the applicant’s review application. I
may add that the applicant’s application never had any
merit,
and a modicum of common sense and circumspection of the matter should
have made it clear to the applicant that he had his
day in the CCMA
and in this Court, but unfortunately lost, and that to doggedly press
on with the case was entirely unfounded and
unreasonable.
Costs
[47]
The fifth respondent brought a counter
application to declare the applicant a vexatious litigant. I however
indicated in Court that
I did not believe that there was a basis for
granting such relief in this case, and it was not persisted with. The
fifth respondent
however did persist in seeking a costs order against
the applicant, and prayed for an order that this Court expresses its
dissatisfaction
at what is tantamount to an abuse of process by the
applicant.
[48]
Considering
all of the above events, it is unfortunately now the time to properly
warn the applicant, and to convey censure for
the manner in which he
has chosen to conduct himself and his clear abuse of the processes of
this Court. On each occasion he does
so, he takes up the valuable
time and already stretched resources of this Court without any basis
for doing so. And also on every
occasion, the Public Protector and
CPUT are compelled to come and defend themselves, using taxpayers’
money and their own
limited resources to do so. This Court has
consistently said that this kind of frivolous and unfounded
litigation is deserving
of punitive costs orders.
[34]
[49]
The
applicant’s claim, as stated above, never had substance, and
was
res
judicata
.
When he did not achieve the outcome he wanted in this Court, the
applicant switches forum to Public Protector, then the High Court,

but when he does not come right at these
fora
,
he switches back to this Court.
[35]
The conduct of the applicant is nothing else but an abuse of process.
The applicant must now be told, in no uncertain terms, that

exercising his right of access to the Courts must be done in a
responsible manner and always in compliance with the rules and
processes of the Court.
[36]
The only way that the applicant can learn this lesson is by way of an
appropriate punitive costs order. As held in
Sepheka
v Du Pont Pioneer (Pty) Ltd
[37]
:
‘
Punitive
costs will also be justified where a litigant adopts what is called
an ‘unconscionable stance’, or conducts
him/herself in an
unacceptable manner in the course of the proceedings. Punitive costs
also serve as a mark of a court’s
displeasure. …’
[50]
Because the applicant seems undeterred by
past costs orders made against him, something more is needed to
prevent this kind of abuse
of process to simply happen again, going
forward. What I shall therefore do is to make an order to the effect
that all the costs
orders granted by this Court against the
applicant, including the order I will make in this judgment, must be
taxed and must first
be paid by the applicant before the applicant is
entitled to institute any litigation against CPUT or the Pubic
Protector in this
Court.
[51]
In the premises, I make the following
order:
Order
1.
The Labour Court has no jurisdiction to
entertain the applicant’s application.
2.
The applicant’s application is
consequently dismissed.
3.
The applicant is ordered to pay the costs
of the application.
4.
The applicant shall not be entitled to
institute any further proceedings in this Court against the first and
fifth respondents,
until the taxed bills of costs in respect of the
costs orders made against the applicant under case number C 169 / 15,
as well
the costs order in paragraph 3 of this order, have been paid
to the respondents by the applicant.
_____________________
S Snyman
Acting
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:

In person
For the First
Respondent:
Mr M Sithole of the Office of the Public
Protector
For the Fifth
Respondent:
Adv J K Felix
Instructed
by:

Gunston Stradvik Attorneys
[1]
The section deals with pre-dismissal arbitration proceedings, which
serves as substitute for internal disciplinary proceedings.
[2]
Act 66 of 1995 (as amended).
[3]
Section 191(1) reads: ‘
(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 …  (ii)  the Commission
…’
.
[4]
Section 191(1)(b) requires the referral to be made within 30 days of
date of dismissal.
[5]
Good cause may be shown to permit a late referral in terms of
section 191(2).
[6]
(2010)
31 ILJ 296 (CC) at para 74.
[7]
(2009)
30 ILJ 1539 (SCA) at para 23. See also
SA
Maritime Safety Authority v McKenzie
(2010) 31 ILJ 529 (SCA) at para 8.
[8]
See
Gcaba
(
supra
)
at para 75;
Mbatha
v University of Zululand
(2014)
35 ILJ 349 (CC) at para 157;
Ekurhuleni
Metropolitan Municipality v SA Municipal Workers Union on behalf of
Members
(2015)
36
ILJ
624 (LAC)
at
para
21
;
Moodley
v Department of National Treasury and Others
(2017)
38
ILJ
1098 (LAC)
at
para
37
;
Mohlomi
v Ventersdorp/Tlokwe Municipality and Another
(2018) 39 ILJ 1096 (LC) at para 42;
Public
Servants Association on behalf of Members v Minister of Health and
Others
(2019) 40 ILJ 193 (LC) at para 15.
[9]
The
section reads
:
‘
Subject
to the Constitution and section 173, and except where this Act
provides otherwise, the Labour Court has exclusive jurisdiction
in
respect of all matters that elsewhere in terms of this Act or in
terms of any other law are to be determined by the Labour
Court
’
.
[10]
See
Public
Servants Association
(
supra
)
at paras 11 and 13.
[11]
(2016)
37
ILJ
625 (SCA)
at
para
20
.
[12]
(2016)
37
ILJ
1857 (LAC)
at
para 31.
[13]
Act 23 of 1994 (as amended).
[14]
Promotion of the Administration of Justice
Act
3 of 2000
.
[15]
See
Hendricks
v Overstrand Municipality and Another
(2015)
36 ILJ 163 (LAC) at para 20;
Merafong
(
supra
)
at para 38.
[16]
2018
(3) SA 380
(SCA) at para 37.
[17]
See
Mohlomi
v
Ventersdorp/Tlokwe Municipality and Another
(2018)
39 ILJ 1096 (LC) at para 29.
[18]
The
section reads: ‘
A
defect
referred to in subsection (1), means- (a) that the
commissioner- (i) committed misconduct in relation to the

duties of the commissioner as an arbitrator; (ii) committed a
gross irregularity in the conduct of the arbitration proceedings;
or
(iii)  exceeded the commissioner's powers; or (b) that
an award has been improperly obtained.
’
[19]
See
Pep
Stores (Pty) Ltd v Laka NO and Others
(1998)
19
ILJ
1534 (LC)
at
para 23;
ZA
One
(Pty)
Ltd t/a Naartjie Clothing v Goldman NO and Others
(2013)
34
ILJ
2347 (LC)
at
para
34;
Baur
Research CC v Commission for Conciliation, Mediation and Arbitration
and Others
(2014) 35 ILJ 1528 (LC) at para 24;
Satani
v Department of Education, Western Cape and Others
(2016) 37 ILJ 2298 (LAC) at para 21.
[20]
Compare
Premier
Foods (Pty) Ltd (Nelspruit) v Commission for Conciliation, Mediation
and Arbitration and Others
(2017) 38 ILJ 658 (LC).
[21]
(2003)
24 ILJ 2101 (T) at 2109H-J.
See
also
National
Sorghum Breweries Ltd (t/a Vivo African Breweries) v International
Liquor Distributors (Pty) Ltd
[2000] ZASCA 159
;
2001
(2) SA 232
(SCA) at 239F H
;
Makhanya
(
supra
)
at paras 45, 46 and 98;
Score
Supermarket Kwathema v Commission for Conciliation, Mediation and
Arbitration and Others
(2009) 30 ILJ 215 (LC) at para 29 – 31.
[22]
2009
(3) All SA 475
(SCA) at para 22.  See also
Gauteng
Shared Services Centre v Ditsamai
(2012)
33 ILJ 348 (LAC) at paras 13 – 14.
[23]
(2010)
31 ILJ 2657 (LC) at para 32. See also
National
Education Health and Allied Workers Union on behalf of Kgekwane v
Department of Development Planning and Local Government,
Gauteng
(2015)
36 ILJ 1247 (LAC) at para 26;
Bidvest
Food Services (Pty) Ltd v National Union of Metalworkers of SA and
Others
(2015) 36 ILJ 1292 (LC) at para 24.
[24]
(2006)
27 ILJ 2590 (LC).
[25]
See
para 5 of the judgment.
[26]
Id
at paras 12 – 13.
[27]
1980
(2) SA 814
(A) at 835C-E.
[28]
[2009]
1 All SA 539
(SCA) at para 27.  See also
Truter
and Another v Deysel
[2006] JOL 16961
(SCA) at para 22;
Symington
and Others v Pretoria-Oos Privaat Hospitaal Bedryfs (Pty) Ltd
[2005] 4 All SA 403
(SCA) at para 26.
[29]
(1999)
20 ILJ 82 (LAC) at para 7.
[30]
Id
at para 5.
[31]
Id
at paras 10 – 11.
[32]
Id
at para 13.
[33]
(2012)
33 ILJ 2178 (LC) at para 28.
[34]
See
for
example
Democratic
Nursing Organisation of SA on behalf of Ramaroane v Member of the
Executive Council for Health, Gauteng Province and
Others
(2019)
40 ILJ 2533 (LC) at para 20;
Sihlali
and Others v City of Tshwane Metropolitan Municipality and Another
(2017)
38
ILJ
1692 (LC)
at
para 29.
[35]
Compare
Maluleke
v Greater Giyani Local Municipality and Others
(2019) 40 ILJ 1061 (LC) at paras 35 – 36
[36]
See
Mashishi
v Mdladla NO and Others
(2018)
39 ILJ 1607 (LC) at para 14;
Ngobeni
v Passenger Rail Agency of SA Corporate Real Estate Solutions and
Others
(2016)
37 ILJ 1704 (LC) at para 14.
[37]
(2019)
40 ILJ 613 (LC)
at
para 42.