IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C117/2001
In the matter between:
NICOLAAS FRANSCOIS MAARTENS First Applicant
WILLEM HENDRICK KOTZE Second Applicant
HELEN LOUISA HENDRINA LOTTER Third Applicant
PATRICIA YVONNE WOOD Fourth Applicant
MAUREEN LORRAINE SCHARNECK Fifth Applicant
FREDDIE ADAM HANSEN Sixth Applicant
And
SOUTH AFRICAN NATIONAL PARKS Respondent
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JUDGEMENT
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1. The six applicants herein, together with one Bantubonkwe, all erstwhile employees of the
respondent instituted actions against the respondent for payment of compensation on the
grounds that their resignation from respondent’s employ was enforced and as such constituted
an unfair dismissal and that the dismissal was based on respondent’s operational
requirements.
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2. Bantubonkwe proceeded with his action separately. His trial has been finalized. The Court
through Ngamu AJ found that Bantubonkwe’s resignation did not constitute a dismissal and
his action was accordingly dismissed. Leave to appeal against the judgment was refused and
his petition to the Labour Appeal Court was likewise dismissed.
3. The six applicants who are now before me intend to proceed with their claim against the
respondent. The pleadings in their matter were finalized some time ago, however before a
trial date could be allocated, the respondent raised a number of points in limine . This is now
before me for consideration. In raising one of the points respondent relies on the judgment
handed down in the Bantubonkwe matter.
4. According to the respondent, the actions of the respondent towards Bantubonkwe as well as
all of the applicants now before me were identical and that the applicants rely on respondent’s
said actions to succeed in their claim. Since this Court through Ngamu AJ, so respondent
argues, has already pronounced that respondent’s action could not be seen as making the
employment relationship between Bantubonkwe and it intolerable and therefore his resignation
did not constitute a dismissal that decision has the effect that none of the resignations can
be regarded as dismissals and as such the judgment handed down in Bantubonkwe was a
judgment in rem. Because Bontubonkwe’s judgement is a judgement in rem, so respondent
continues, the applicants are precluded from leading evidence in relation to the issue of their
dismissal due to the principles of issue estoppel and/or res judicata .
5. In LazarusBarlow v Regent Estates Co Ltd [1949] 2 KB 465 at 475, [1949] 2 All ER 118 at
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122, (referred to in by Hoffmann and Zeffertt: “ The South African Law of Evidence ” 4 th
edition, page 338) a judgment in rem was defined as follows:
“A judgment of a Court of competent jurisdiction determining the status of a person or thing, or the
disposition of a thing (as distinct from a particular interest in it of a party to the litigation).”
A judgment in rem is a judgment which is conclusive as against all the world in whatever it settles as
to the status of a person or property, or as to the right or title to the property and as to whatever
disposition it makes of the property itself, or of the proceeds of its sale. All persons regardless
whether or not they are parties to any legal proceedings are bound by a judgment in rem and as such
are estopped from averring that the status of persons or things, or the right or title to property is other
than what the Court has by its judgment declared or made it to be.
6. Opposed to a judgment in rem is a judgment in personam or as it is commonly referred to, a
judgement inter partes. A judgment in personam determines the rights of the parties to an
action and those who are privy to them in regard to the subject matter in dispute (See
HALSBURY, 4 th edition Volume 16 paragraph 1525 and Hoffmann and Zeffertt supra at
339340). A judgment in personam does not affect the rights of third parties.
7. The judgment handed down in Bantubonkwe’s case dealt neither with the status of any of the
persons who were parties to that action nor did it deal with any property. The judgment merely
determined whether or not Bantubonkwe had any claim against the respondent pursuant to
the provisions of the Labour Relations Act (the Act), and as such it was a judgment in
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personam and not a judgment in rem .
8. Respondent however goes on to argue that even if this Court finds that the judgment handed
down in Bantubonkwe was not a judgment in rem it is still binding on the applicants herein as
they were parties to the dispute or could at least be regarded as privies of Bantubonkwe.
9. While the applicants herein, like Bantubonkwe claim that their resignation constituted a
dismissal which dismissal was unfair each of them has to individually satisfy the Court that his/
her continued employment had become intolerable due to respondent’s action or inaction. The
fact that all of their resignations may have been related to a particular conduct on the part of
the respondent may not necessarily be conclusive of whether or not the applicants’
resignations amounted to their dismissals. Factors, such as their levels of employment may
well play a role especially since the court in Bantubonkwe held that an “employer is entitled to
treat employees of different levels in a different manner”, and it is common cause that
Bantubonkwe and the applicants herein were not all employed on the same level. In the
circumstances it cannot be said that the applicants herein were parties to the dispute between
Bantubonkwe and the respondent. Respondent’s argument that the applicants were at the
very least privies of Bantubonkwe is likewise misconceived. For applicants to be privies of
Bantubonkwe they must have derived their rights to the action against the respondent from
Bantubonkwe or Bantubonkwe from them. This did not happen. Privies are those who have a
relationship akin to that of an agent and principal. (See Hoffmann and Zefferett supra page
340; HALSBURY at paragraph 1543). One does not become a privy simply by virtue of having
a claim against a common respondent based on the same cause of action.
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10. As stated earlier the applicants’ right to proceed with their action against the respondent was
neither dependent upon nor related to the action instituted by Bantubonkwe, it is a right that
stands independently of Bantubonkwe. The fact that the applicants had initially acted together
with Bantubonkwe or that some of them testified at Bantubonkwe’s trial did not make them
privies of Bantubonkwe.
11. The applicants are accordingly not bound by the judgment in Bantubonkwe. While the Court is
mindful of the undesirability of separate actions with its potential for conflicting judgments, that
is not a reason to extend a judgment from one party to another. The respondent had available
to it the right to consolidate the two actions, it chose not to do so. Having succeeded in the first
matter it now seeks to extend that judgment to the applicants herein simply because its
evidence against the applicants will be no different to that tendered in the Bantubonkwe
matter. This is not a basis to grant the relief sought.
12. In view of what I said above respondent’s reliance on the principle of exceptio rei judicata or
principles of issue estoppel cannot be upheld.
13. In order for the respondent to have applicants’ claim dismissed based on the exceptio rei
judicata it must satisfy this Court that all of the following factors have been met:
a) That the judgment was a final or a definitive decision;
b) That a competent Court handed down the judgment;
c) That the judgment was given in earlier proceedings between the same persons;
d) That the judgment pleaded was about the same thing ( eadem res ) as that which
is demanded in the latter proceedings and
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e) That the cause of action in the proceedings in which the defence is raised is the
same as that on which a final judgment was given in earlier proceedings.
(See Hoffmann and Zefferett supra at 335 – 345; Horowitz v Brock and others 1988 (2) SA 160(AD)
at 178 HJ; Kommissaris Van Binnelandse Inkomste v Absa Bank Bpk 1995 (1) SA 653(AD) at 664
CE).
14. Reference to the “same persons” for purposes of the exceptio rei judicata is a reference to the
identical persons who were parties to the previous proceedings and to persons who are privies
to the said parties. As the applicants were not parties in the matter of Bantubonkwe, nor were
they his privies the exceptio rei judicata cannot succeed, I do not therefore need to consider
the other factors nor do I propose to do so.
15. For the reason recorded in the preceding paragraph respondent’s argument that the
applicants’ claim could also be dismissed on the grounds of issue estoppel also cannot stand.
The factors that need to be satisfied for a finding of issue estoppel are the same as that for the
exceptio rei judicata save that issue estoppel does not require for its application that the same
thing must be demanded.
16. As the applicants are not privies of Bantubonkwe the point in limine based on issue estoppel
must also fail.
17. Respondent further appears to raise the point that this court does not have jurisdiction to
entertain applicants’ claims because the applicants were not dismissed but had resigned
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voluntarily. In so far as this was an independent issue and not linked to the issues dealt with
above it is misconceived. This is precisely one of the issues that the court is required to
determine as the applicants allege that their resignation constituted a dismissal as
contemplated by s186 (e) of the Act. If respondent’s argument is that the determination of a
dismissal as contemplated by s186 (e) falls outside this court’s jurisdiction and with the CCMA,
this again is incorrect – See in this respect the matter of Jamela v Accord (2000) 21 ILJ 2463
(LC) where this court held that “s186 (e) simply provides the meaning or a definition of a
dismissal and once the definition is satisfied then there is no bar on the applicant categorizing
his dismissal as he deems expedient and proper” at page 2468 CD.
18. In the present matter therefore, if it is found that the applicants were dismissed then the issue
arises as to whether their dismissal which it is alleged was based on respondent’s operational
requirements was fair and it is for this court and not the CCMA to determine the fairness of a
dismissal based on the respondent’s operational requirements.
19. Respondent also raised a further point in limine relating to a particular claim made by one of
the applicants, this claim was abandoned thus there is no need to deal with that issue.
20. Finally the issue of costs. Notwithstanding that one of the issues was conceded I am of the
view that the points in limine that I was required to deal with were of no merit whatsoever and
therefore it is only equitable that costs follow the result.
21. In the result the points in limine are dismissed with costs.
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WAGLAY J
Date of hearing: 10 May 2004
Date of judgement: 3 June 2004
For the applicant: Adv M de Swardt SC assisted by Adv A de Wet
Instructed by: Buchanan Boyes Smit Tabata Attorneys
For the respondent: Adv C.B. Yeo
(the excipient)
David Short Attorneys (Johannesburg) and Farbridge Anderne Lawton Inc (Cape Town)
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