THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No. J3319/18
In the matter between:
MUSAWENKOSI HLONGWA Plaintiff
and
SM XULU INCORPORATED First Defendant
SANDILE MDUDUZI XULU Second Defendant
Heard: 12 - 13 June 2025
Delivered: 10 July 2025
This judgment was handed down electronically by circulation to the parties’
representatives by email. The date for hand-down is deemed to be 10 July 2025.
JUDGMENT
2
MAKHURA, J
[1] The plaintiff referred a claim in terms of section 77(3) of the Basic Conditions of
Employment Act 1 (BCEA) for breach of contract and payment of his outstanding
remuneration. In defence, the defendants raised three special pleas - jurisdiction, res
judicata and lis alibi pendens. The defendants have abandoned the special pleas of
jurisdiction and res judicata. They persist with the plea of lis pendens.
[2] The plaintiff was employed by the first defendant with effect from 23 October
2017 in the capacity of a director, at a cost to company remuneration of R100 000.00
per month. He resigned from his employment with effect from 17 May 2018, citing
“intolerable working conditions in that the first [defendant] failed, refused and/or
neglected to pay [him] his salary per the agreement”. He claimed that for the period 23
October 2017 to 17 May 2018, he received a total remuneration of R123 476.28 and
that at the time of his resignation, an amount of R573 387.91 in outstanding
remuneration remained due and payable.
[3] After his resignation, the plaintiff referred an unfair dismissal dispute to the
Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of section
186(1)(e) of the Labour Relations Act
2 (LRA), alleging that he was constructively
dismissed. During the CCMA arbitration proceedings, the plaintiff alleged that he
resigned from work because the first defendant made his continued employment
intolerable. The CCMA determined that dispute in terms of an arbitration award dated 6
February 2024. The commissioner summarised the plaintiff’s evidence as follows:
‘The applicant’s resignation letter, dated 17 May 2018, set out the reasons for his
resignation… The essence of the reasons for the resignation is that his agreed
salary of R100 000.00 per month was not paid to him , despite numerous
demands, and, in the approximately 7 months that he was employed by the
1 Act 75 of the 1997.
1 Act 75 of the 1997.
2 Act 66 of 1995, as amended; section 186(1)(e) provides that dismissal means that an employee
terminated employment with or without notice because the employer made continued employment
intolerable for the employee.
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respondent, he was paid just R123 386.28, leaving his salary short -paid in the
amount of R573 387.91… The applicant received no response to his resignation
letter. The applicant stated that since he was not being paid by the respondent ,
he worked from home from approximately 7 May 2018.’ [Emphasis added]
[4] In his analysis of evidence, the commissioner noted that the first defendant did
not challenge the reconciliation compiled by the plaintiff , which reflected that he was
owed R573 387.91. The commissioner also took into account the contract of
employment in terms of which the plaintiff was entitled to a total remuneration package
of R100 000.00 per month and rejected the first defendant’s evidence that the payment
of remuneration was conditional on the plaintiff bringing new client s or developing the
first defendant’s business. He then concluded that the plaintiff was dismissed within the
meaning of section 186(1)(e) of the LRA and that his dismissal was unfair.
[5] The commissioner dealt with the issue of remedy as follows:
‘The applicant seeks compensation for his unfair dismissal ... In determining an
appropriate amount of compensation, I have had regard to the circumstances of
the applicant’s dismissal, his length of service (approximately 7 months) and the
fact that he is still unemployed. I have also borne in mind that the amount of
remuneration owed to the applicant at the time of his resignation (R573 387.91)
has still not been paid to him by the respondent. In the circumstances, I am of the
view that compensation equal to 9 months’ remuneration constitutes “just and
equitable” compensation.’ [Emphasis added]
[6] The first defendant was ordered to pay the applicant an amount of R900 000.00,
which is equivalent to 9 months ’ remuneration. Aggrieved by the commissioner’s
decision, the first defendant approached this Court in terms of section 145 of the LRA to
review and set aside the award. That review application remains pending before this
Court.
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[7] During the trial, the defendant s have pursued the lis alibi pendens point, which
has seen some developments since the filing of the statement of defence. The
defendants argued that the same parties who are before Court on this claim were in the
CCMA for an unfair dismissal dispute where the evidence regarding the plaintiff ’s
outstanding remuneration was the subject matter of his alleged continued employment
intolerability which led to the commissioner determining that the plaintiff was entitled to
compensation after having taken into account the non-payment of the plaintiff’s
remuneration. On that basis, the defendants submit that the issue relating to the
outstanding remuneration or non-payment of the R573 387.91 was the subject matter
before the CCMA, the CCMA made a determination on the issue, which is now pending
for determination before this Court in the form of the review application. The defendants
argued that ultimately, the plaintiff claimed monetary payments caused by the non-
payment of his remuneration in both proceedings – compensation in the CCMA and
outstanding remuneration in these proceedings.
[8] The plaintiff argued first that before the CCMA, the claim was against the first
defendant and that in these proceedings, the claim is against the two defendants , which
of course includes the first defendant. Second, the plaintiff submits that these are two
different causes of action, which he is entitled to pursue. The CCMA claim was based
on the LRA and the fairness of the dismissal , whereas the current proceedings are
based on the BCEA , where he seeks a declaration for breach of contract . Third, the
claims were instituted in the CCMA and the Labour Court , which have two different
jurisdictional competencies and therefore prevent the defendants from raising the plea.
Fourth, the plaintiff submits that there are two different subject matters . In this current
claim, he seeks to recover unpaid remuneration, and in the CCMA, he sought
claim, he seeks to recover unpaid remuneration, and in the CCMA, he sought
compensation for unfair dismissal.
[9] In Nestle (South Africa) (Pty) Ltd v M ars Inc
3, the Supreme Court of Appeal
(SCA) held that:
3 2001 (4) SA 542 (SCA).
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‘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 be revived once it
has been brought to its proper conclusion ( res judicata). The same suit, between
the same parties, should be brought only once and finally.
There is room for the application of that principle only where the same dispute,
between the same parties, is sought to be placed before the same tribunal (or
two tribunals with equal competence to end the dispute authoritatively). In the
absence of any of those elements there is no potential for a duplication of
actions…’
4 [Emphasis added]
[10] In its subsequent judgment in Caesratone S dot-Yam Ltd v World of Marble and
Grantite 2000 CC and Others
5, the SCA explained that:
‘[2] As its name indicates, a plea of lis alibi pendens is based on the
proposition that the dispute (lis) between the parties is being litigated elsewhere
and therefore it is inappropriate for it to be litigated in the court in which the plea
is raised. The policy underpinning it is that there should be a limit to the extent to
which the same issue is litigated between the same parties and that it is
desirable that there be finality in litigation. The courts are also concerned to avoid
a situation where different courts pronounce on the same issue with the risk that
they may reach differing conclusions. It is a plea that has been recognised by our
courts for over 100 years.
[3] The plea bears an affinity to the plea of res judicata, which is directed at
achieving the same policy goals…’
[11] The SCA considered the requirement of “cause of action” and held that:
4 Ibid at paras 16 – 17.
4 Ibid at paras 16 – 17.
5 2013 (6) SA 499 (SCA); [2013] 4 All SA 509 (SCA) at paras 2 - 3.
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‘[21] … the requirement of the same cause of action is satisfied if the other
proceedings involve the determination of a question that is necessary for the
determination of the case in which the plea is raised and substantially
determinative of the outcome of that latter case. Boshoff was followed in a
number of cases in provincial courts, but was regarded as controversial because
it was thought to import into South African law the English principles of issue
estoppel. It is unnecessary to explore that cont roversy because this court laid it
to rest in Kommissaris van Binnelandse Inkomste v Absa Bank Bpk . There Botha
JA held that Boshoff was based on the principles of our law. He said that its ratio
that the strict requirements for a plea of res judicata of the same cause of action
and that the same thing be claimed, must not be understood in a literal sense
and as immutable rules. There is room for their adaptation and extension based
on the underlying requirement that the same thing is in issue as well as the
reason for the existence of the plea.
[22] Scott JA summarised the current state of our law on this subject in Smith v
Porritt and Others, where he said:
‘Following the decision in Boshoff v Union Government 1932 TPD 345 the ambit
of the exceptio res judicata has over the years been extended by the relaxation in
appropriate cases of the common- law requirements that the relief claimed and
the cause of action be the same ( eadem res and eadem petendi causa) in both
the case in question and the earlier judgment. Where the circumstances justify
the relaxation of these requirements those that remain are that the parties must
be the same ( idem actor) and that the s ame issue (eadem quaestio) must arise .
Broadly stated, the latter involves an enquiry whether an issue of fact or law was
an essential element of the judgment on which reliance is placed. Where the plea
of res judicata is raised in the absence of a commonality of cause of action and
of res judicata is raised in the absence of a commonality of cause of action and
relief claimed it has become commonplace to adopt the terminology of English
law and to speak of issue estoppel. But, as was stressed by Botha JA in
Kommissaris van Binnelandse Inkomste v Absa Bank Bpk 1995 (1) SA 653 (A) at
669D, B 670J – 671B, this is not to be construed as implying an abandonment of
the principles of the common law in favour of those of English law ; the defence
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remains one of res judicata. The recognition of the defence in such cases will
however require careful scrutiny. Each case will depend on its own facts and any
extension of the defence will be on a case- by-case basis … Relevant
considerations will include questions of equity and fairness not only to the parties
themselves but also to others . As pointed out by De Villiers CJ as long ago as
1893 in Bertram v Wood (1893) 10 SC 177 at 180, unless carefully
circumscribed, [the defence of res judicata] is capable of producing great
hardship and even positive injustice to individuals.’6 [Emphasis added]
[12] From the above, it is clear that the requirements for the plea of lis pendens are
akin to those of res judicata. The plea can be invoked where there is litigation pending
between the same parties, based on the same cause of action and in respect of which
the same relief is sought. Whether the requirements have been met must be determined
against the prevailing circumstances and facts of the case.
[13] The question therefore is whether the same parties before this Court are before
this Court litigating on the same cause of action and for the same relief that is pending
in the review application.
[14] There is no dispute that the plaintiff instituted a constructive dismissal claim
before the CCMA, that an award was issued in his favour , and that there is a pending
review application against the award before this Court. The plaintiff argued that the
requirement of the same parties has not been satisfied because before this Court, the
parties include the second defendant, who was not a party before the CCMA. This
distinction is unsustainable. The claims remain against the first defendant. There is no
specific order sought against the second defendant in these proceedings. Accordingly,
the addition of the second defendant in these proceedings i s superfluous . The claim
6 Ibid at paras 21 – 22. On the relaxation of the requirements of the same cause of action and relief, see
also Prinsloo NO and others v Goldex 15 (Pty) Ltd and another 2014 (5) SA 297 (SCA) ; [2014] 2 All SA
26 (SCA) at para 23, where the SCA held that our courts have realised that rigid adherence to these
requirements may result in defeating the whole purpose of the plea.
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involves the same parties who were before the CCMA and are currently before this
Court on review.
[15] The second and third requirements, the same cause of action and relief , are not
immutable. In determining whether the requirement of the same cause of action has
been satisfied, the Court must enquire whether an issue of fact or law i s an essential
element of the matter, in this case the constructive dismissal claim, on which reliance is
placed. In Blue Chip 2 (Pty) Ltd t/a Blue Chip 49 v Reyneveldt and other (National
Credit Regulator as Amicus Curiae)
7, the SCA provided the meaning of the concept
“cause of action” as follows:
‘The meaning of the expression ‘ cause of action’ , when the identically worded
predecessor to s 28(1) (d) was in operation, was authoritatively laid down in
McKenzie v Farmers' Co- Operative Meat Industries Ltd where the definition of
'cause of action', adopted from Cook v Gill LR 8 CP 107, was held to be –
‘every fact which it would be necessary for the plaintiff to prove, if traversed, in
order to support his right to the judgment of the Court. It does not comprise every
piece of evidence which is necessary to prove each fact, but every fact which is
necessary to be proved.’
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[16] The Court must carefully examine the facts and consider whether the other
proceedings, in this case the constructive dismissal claim now pending on review,
involve the determination of a question that is necessary for the determination of the
case in which the plea is raised, the current claim.
[17] In casu, t he constructive dismissal dispute in terms of the LRA , which was
arbitrated before the CCMA and currently pending before this Court on review, and the
current claim for breach of contract and outstanding remuneration in terms of the BCEA,
have one common denominator , which is the non-payment of remuneration. Therefore,
what caused the plaintiff to resign and refer the constructive dismissal on the one hand
7 2016 (6) SA 102 (SCA); [2016] ZASCA 98.
7 2016 (6) SA 102 (SCA); [2016] ZASCA 98.
8 Ibid at para 12.
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and the referral of the breach of contract and claim for outstanding remuneration on the
other, is the first defendant’s failure to pay the applicant his remuneration.
[18] The plaintiff’s constructive dismissal claim was grounded on the same factual
matrix - the plaintiff’s contract of employment, the agreed remuneration of R100 000.00
per month, the actual payments received and the outstanding remuneration of R573
387.91 as at the date of his resignation, reflected in the reconciliation document
prepared by the plaintiff . These exact same facts are now used to seek to prove the
breach of contract and outstanding remuneration claim. Accordingly, this requirement
has been satisfied.
[19] The CCMA awarded the plaintiff compensation and the first defendant is
challenging the award by way of a review application before this Court. This
compensation, as is evident from the award, was made after the commissioner found
that the first defendant failed to pay the plaintiff’s remuneration and had expressly taken
this factor into account when awarding compensation of 9 months’ remuneration. In
terms of section 77A(e) of the BCEA, this Court has the power to make an order that it
considers appropriate, including an order that it considers reasonable on any matter
concerning a contract of employment in terms of section 77(3), which determinat ion
may include an order for specific performance, an award of damages or an award of
compensation.
[20] I accept that the relief sought before the CCMA in the constructive dismissal
claim (compensation) is different from the relief sought in these proceedings (payment
of outstanding remuneration), and that there is no strict compliance with the relief
requirement. Rigid adherence to and the adoption of form over substance would
suggest that the relief sought is different , and therefore, this requirement has not been
satisfied. However, the relief need not be identical for a successful invocation of the lis
satisfied. However, the relief need not be identical for a successful invocation of the lis
pendens. In my view, rigid adherence would defeat the very purpose of lis pendens and
thereby result in the repetition of lawsuits. Further, this multiplicity of actions is a
harassment of the first defendant and may possibly lead to conflicting decisions. This
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Court may find that the R573 387.91 was due and payable to the plaintiff , and again on
review, this same Court may dismiss the review and thereby confirm the
commissioner’s finding that the plaintiff was owed R573 381.91. This is the mischief the
lis pendens is intended to prevent. This requirement has been satisfied.
[21] The plaintiff’s last defence is that the current claim was instituted in this Court ,
whereas the constructive dismissal claim was instituted in the CCMA with a different
jurisdictional competency compared to this Court. The CCMA is a competent tribunal to
deal with and consider, as it has done, the issue relating to the non- payment of the
plaintiff’s remuneration, albeit under the umbrella of section 186 of the LRA. The non-
payment of the plaintiff’s remuneration is an essential issue before this Court. Upholding
the plaintiff’s submission would defeat the very policy that underpins the lis pendens -
which is non- replication of claims , conclusion and finality of the claim , and equity and
fairness
[22] For the above reasons, the defendants’ plea of lis pendens must succeed. The
defendants asked that no costs order be awarded regardless of the outcome. I see no
reason to disregard their request and wish. Accordingly, there will be no costs order
awarded.
[23] In the premises, the following order is made:
Order
1. The special plea of lis alibi pendens is upheld, with no order as to costs.
M. Makhura
Judge of the Labour Court of South Africa
Appearances:
For the Plaintiff: Mr O Mfuloane of AJ Venter & Associates
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For the Defendants: Mr S Mafuyeka of Mafuyeka & Associates