REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
Case no:
C321/02
RELATED CASE NO’S C494/01 &
C285/01
DATE: 17 APRIL 2002
In the matter between:
Applicant
and
SOUTH AFRICAN BREWERIES LTD Respondent
________________________________________________________
____________
JUDGMENT
WAGLAY,J:
1. The applicant, dismissed by J B Masikane Labour
Brokers, (hereafter MLB), instituted an action against it
on the grounds that the dismissal was unfair. The
applicant has also instituted action against the SA
Breweries Limited,
( hereafter SAB) on the grounds that she was
discriminated against as an applicant for employment
on arbitrary grounds as provided for in Section 6 of the
Employment Equity Act 66/98. Applicant now seeks an
order from this Court directing that the above-
mentioned two matters, filed under case number
C285/01 and 494/01 respectively, be consolidated for
hearing jointly on 13th May 2001, this being the date
allocated for the hearing of the trial of the matter under
case number C494/01 between applicant and the SAB.
2. In the principle actions all material aspects of the
applicant's claim against the two respondents are in
dispute. In support of the application for consolidation,
applicant avers that the facts which she intends
presenting at the hearings are the same in both actions.
According to the applicant, acts of harassment were
perpetrated against her which led to her dismissal and
that she will rely upon the very same acts of
harassment to prove her claim against the SAB in terms
of Section 6 of the Employment Equity Act. She alleges
that the two separate claims she instituted against MLB
and SAB, are inextricably linked and that it would be
convenient for all concerned for the two matters to be
consolidated.
3. This application for consolidation is opposed by SAB,
principally on the grounds that it is not convenient for
the two matters to be heard jointly and that
consolidation will cause it severe prejudice. Rule 23 of
the rules for the conduct of proceedings in this Court,
provides that separate proceedings may be
consolidated if it is expedient and just to do so.
Whether it would be expedient and just to grant
consolidation, is left for the determination by this Court,
in this regard the rules that regulate consolidation of
matters in the High Court is neither instructive nor
helpful. In terms of the rules of the High Court, mere
convenience of the parties may ground the basis for the
granting of such an order.
4. When one speaks of terms such as “convenience”,
“expedient” and “just”, this implies that it must be
equitable to all parties if condonation of separate
actions is to be allowed. This concept of equitability
goes beyond merely determining the issue on a balance
of convenience. For the Court to grant consolidation of
separate actions, it need not simply consider whether
the balance of convenience may favour such
consolidation, but go further and be satisfied that
consolidation will in no way prejudice the party or
parties sought to be joint. See in this respect NEW
ZEALAND INSURANCE COMPANY LIMITED v STONE 1963
(3) SA 63 (C) at 63 H. The prejudice must, however, be
substantial and in determining whether or not the
prejudice is substantial, one of the issues that the Court
is required to consider is whether the relief sought in
each of the separate actions which are sought to be
consolidated, depends on the determination of
substantially the same questions of law and fact or not.
5. In this matter the claim against SAB relates to unfair
discrimination in terms of the Equity Act. The claim
against MLB relates to unfair discrimination and other
alternatives thereto, based on the Labour Relations Act.
The questions of law and fact which are applicable in
the action between applicant and SAB are not the same
as between applicant and MLB.
6. While it is so that applicant intends leading exactly the
same evidence in both the actions. this only addresses
the issue of the balance of convenience and then again,
only in so far as applicant is concerned. It does not
address the issue that the same facts will have to be
considered in the light of very different statutes that
neither of the respondents have any relation to the
actions instituted by the applicant vis-à-vis the other in
so far as the cause of action against either of them is
concerned. In the light of the fact that since each of the
actions instituted by the applicant is not determinable
on substantively the same questions of law and fact, I
am not inclined to order the consolidation of the matter.
7. This then brings us to the issue of costs. I have a
discretion based on law and equity, to decide whether
or not to order cost. Having considered the matter and
the issues raised, I am not satisfied that this is a matter
in which a cost order should be made.
8. In the result the application for consolidation is refused.
____________________
Waglay J
Date of hearing and judgement: 17 April 2002
Appearances: For the applicant: T Ferguson of Ferguson
Attorneys For the Respondent: D.A. Loxton of
attorneys Findlay and Tait