Moetji v General Public Service Sectoral Bargaining Council and Others (JR973/19; JR678/19) [2023] ZALCJHB 320 (15 February 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

case no: JR 973 / 19

In the matter between: THALOKI DAVID MOETJI Applicant and GENERAL PUBLIC SERVICE SECTORAL BARGAINING COUNCIL First Respondent M I RAMALATSO N.O. Second Respondent DEPARTMENT OF INFRASTRCUTURE AND DEVELOPMENT Third Respondent AND:- case no: JR 678 / 19 In the matter between: THALOKI DAVID MOETJI Applicant and COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION First Respondent V N SIBEKO N.O. Second Respondent DEPARTMENT OF INFRASTRCUTURE AND DEVELOPMENT Third Respondent

Heard: 2 August 2022

Delivered: 15 February 2023

Summary: Reinstatement application – reinstatement of withdrawn review application – principles considered – withdrawal of review application clearly final – applicant abandoning review challenge – no proper case for reinstatement of review in any event made out on the facts – reinstatement application dismissed

Waiver – principles considered – conduct of applicant consistent with finally abandoning review application – application of waiver rendering reinstatement application incompetent

Review application – jurisdictional ruling by arbitrator – review test considered – de novo determination of whether determination right or wrong – findings of arbitrator of lack of jurisdiction based on res judicata correct

Res judicata – principles considered – same issue before bargaining council already decided by CCMA – res judicata principle applicable – review application dismissed

Costs – principles considered – conduct of applicant justifying costs order

JUDGMENT

SNYMAN, AJ

Introduction:

[1] This entire matter makes for rather unfortunate reading. Much of what ultimately went wrong in this case would not have happened, if the applicant simply listened to reason. The applicant however deliberately chose an ill founded stratagem in pursuit of his litigation against the third respondent, and when the problematic consequences of this chosen course of action later dawned on the applicant, he attempted to change tack, but then it was simply too little and far too late. Whilst I appreciate that the applicant

is a lay litigant, and that some leeway should be extended to him, there is however certain conduct and actions that cannot be

overlooked just because a litigant is unrepresented. Unfortunately, the current matter is a case in point.

[2] What is now before me is two review applications, one reinstatement application, and a consolidation application. The reinstatement application relates to the review application brought by the applicant under case number JR 678 / 19 which the applicant had earlier withdrawn with the view to only prosecute his other review application brought at the same time, being the review application under case number JR 973 / 19. The consolidation application seeks to consolidate the two reviews applications under case number JR 973 / 19 and JR 678 / 19.

[3] As to the two review applications themselves, the applicant seeks to challenge two jurisdictional rulings made against him, one by an arbitrator in the Commission for Conciliation, Mediation and Arbitration (CCMA), and the other by an arbitrator of the General

Public Service Sectoral Bargaining Council (GPSSBC). The review applications have been brought in terms of section 158(1)(g) of the Labour Relations Act (LRA)[1]. All the applications have been opposed by the third respondent.

[4] I need to mention that the review application under case number JR 678 / 19 was brought out of time. The jurisdictional ruling was handed down on 24 March 2019, and the review application was filed on 10 May 2019. The six weeks’ time limit within which to bring the review application expired on 6 May 2019.[2] This makes the review application four days late, and no condonation was applied for. However, and considering what subsequently happened to this review application, there is no need to determine this issue separately, and it will be dealt with later in this judgment.

[5] The review application under case number JR 973 / 19 has been timeously brought. The jurisdictional ruling sought to be challenged by the applicant in this application was handed down on 15 April 2019, and the review application was also filed on 10 May 2019

along with the other review application. This is within the prescribed six weeks’ time limit. This review application is

properly before Court for determination and has been properly prosecuted by the applicant to finality.

[6] All the applications came before me for argument on 2 August 2022. Having heard argument, I reserved judgment. I will now proceed to hand down judgment, commencing with a summary of the relevant background facts.

Background facts:

[7] In summarizing the background facts, and for the sake of being complete, I shall also summarize those facts that form the basis of the applicant’s claim against the third respondent, in both review applications, on the merits. These facts are identical in both these review applications and are in my view relatively straight forward.

[8] In 2014, the third respondent issued a request for tenders relating to a project for restorative repair work to be done at the Prinshof School for the Visually Impaired (Prinshof project). One of the entities that submitted a proposal in terms of this request was Fikile Construction (Pty) Ltd (Fikile), which was ultimately the successful bidder. On 16 September 2014, the tender was awarded by the third respondent to Fikile and an agreement was concluded between those two parties, specifically for the Prinshof project. Fikile was an independent third-party service provider to the third respondent. One of the project requirements was that Fikile

had to source and utilize local labour, which was in any event required by the third respondent’s “Expanded Public Works Programme” (EPWP), in terms of which the tender was issued and which applied to this project.

[9] As a result of the contractual requirements applicable to the Prinshof project, as well as the EPWP, the applicant was then recruited by Fikile, being an influential member of the community in which the Prinshof project was to be executed. The applicant was appointed by Fikile as community liaison officer, and his duty was to establish a link between the community, Fikile, and the third respondent, with regard to the Prinshof project. He was never employed by the third respondent.

[10] It was undisputed that the applicant was in fact employed pursuant to the contract concluded between Fikile and the third respondent as aforesaid. In this context, the applicant signed a fixed term contract of employment with Fikile on 17 March 2015, which confirmed his employment with Fikile, and that such employment was for a fixed term directly linked to the Prinshof project. The third respondent itself was not a party to this employment contract between the applicant and Fikile. A further fixed term contract was signed between Fikile and the applicant on 10 November 2015, in virtually identical terms. The applicant’s salary was also paid by Fikile.

[11] It must also be pointed that on his own version in the review application under case number JR 973 / 19, the applicant stated that in May 2017, he demanded a salary increase and referred a dispute to the CCMA against both Fikile and the third respondent on 1

June 2017 in this regard. The case was set down for conciliation on 23 June 2017 and only Fikile attended. The applicant and Fikile

concluded a settlement agreement at the CCMA on 23 June 2017 to the effect that the applicant be paid the sum of R40 5108.00 by Fikile as arrear salary. The third respondent was not involved in any of this, nor was it a party to the settlement agreement.

[12] The Prinshof project was due to come to an end in 2018. On 28 June 2018, the third respondent sent an e-mail to the third respondent, which was headed “Request for Permanent Employment”. In the e-mail, the applicant suggested that he had been working for the third respondent “through Fikile Construction”. He stated further that he had been struggling to get his salary out of Fikile, and that he was available to be transferred by the third respondent to any post anywhere in Gauteng. He accepted that his employment contract was with Fikile, and contended that this was unlawful. He requested to be permanently appointed by the third respondent. The third respondent did not respond to this e-mail. Ironically, and also because the Prinshof project was coming to an end, the applicant sent an e-mail to Fikile on 21 June 2018, requesting that he be paid his severance package.

[13] It appears that the applicant met with one Sebastian Hlatshwayo (Hlatshwayo) from the third respondent on or about 29 October 2018. Hlatshwayo inter alia told the applicant that he had been employed with Fikile and not the third respondent. This discussion was confirmed in an e-mail by Hlatshwayo dated 30 October 2018.

[14] The applicant’s employment with Fikile ultimately terminated on 23 November 2018. This is evident from the salary schedule form issued by Fikile to the applicant reflecting his earnings from Fikile as his employer, for the period 19 November 2015 to 23 November 2018.

[15] On 29 November 2018, the applicant referred an unfair discrimination dispute in terms of the Employment Equity Act (EEA)[3], only against the third respondent, to the CCMA. In this referral, the applicant alleged that Hlatshwayo had discriminated against him on 31 October 2018, by using Fikile as a “scapegoat”. The applicant relied on his e-mail of 28 June 2018 to the third respondent and the e-mail by Hlatshwayo of 30 October 2018 in support of his referral. Considering the applicant sought reinstatement from the third respondent, the referral must have contemplated that the applicant was employed by and had been dismissed by the third respondent, and this conduct constituted some kind of act of discrimination.

[16] At about the same time, and on 27 November 2018, the applicant referred an unfair dismissal dispute against the third respondent to the GPSSBC. This referral also relies on the date of 31 October 2018 as the date the dispute arose. The applicant also refers

to and relies upon the same two e-mails relied on in his unfair discrimination referral to the CCMA. The applicant clearly considered

the e-mail by Hlatshwayo as establishing his dismissal by the third respondent, and he sought fully retrospective reinstatement as a result. This dispute remained unresolved and a certificate of failure to settle was issued by GPSSBC on 16 January 2019. The applicant then referred the dispute to arbitration.

[17] The unfair discrimination dispute of the applicant came before commissioner Liesl Du Plessis at the CCMA on 9 January 2019. It became apparent in the course of the proceedings that a material issue in dispute between the parties was whether the applicant was employed by Fikile, or by the third respondent. It meant that Fikile had a substantial interest in the outcome of the matter and needed to be joined to the proceedings. In a ruling issued on 9 January 2019, commissioner Du Plessis joined Fikile as a party to the applicant’s unfair discrimination dispute. Commissioner Du Plessis also issued a certificate of failure to settle on 9 January 2019, indicating that the applicant’s unfair discrimination dispute needed to be referred to arbitration, which the applicant then did.

[18] The unfair discrimination dispute was set down for arbitration before commissioner Valicia Sibeko on 18 February 2019. Commissioner Sibeko is the second respondent in the review application under case number JR 678 / 19. The applicant, Fikile and the third respondent attended at the arbitration.

[19] In the arbitration before commissioner Sibeko, the applicant raised the contention that his employer was not Fikile, but the third respondent. The applicant in essence relied on the same facts in his referral, as set out above, and on that basis contended that despite all the evidence to the contrary, Fikile was merely come kind of conduit through which the third respondent employed him. On the other hand, the third respondent explained how the applicant came to be employed with Fikile, what EPWP provided for, and that the third respondent was never the applicant’s employer. It was further explained by the third respondent that it was not possible for it to simply employ someone without following due and prescribed process, being that there must be an advertised position, which must be applied for, and only if the employment application is successful, will the person be issued with a proper letter of appointment with the third respondent as well as a PERSAL number. None of this happened with regard to the applicant in this case. Based on this dispute articulated at the outset of the arbitration proceedings, commissioner Sibeko was thus required to first determine if the applicant was an employee of the third respondent, because if that was not the case, the CCMA would have no jurisdiction to entertain any claim between the applicant and the third respondent.

[20] Commissioner Sibeko issued her ruling on 24 March 2019. She considered the documentary evidence before her, as well as the submissions of the parties. She preferred the explanation by the third respondent and found it unlikely, in this context, that the applicant was an employee of the third respondent. She specifically considered the e-mail of 28 June 2018 in which the applicant had in fact asked the third respondent to permanently employ him which according to her contradicted the version that he was a permanent employee of the third respondent from the outset. She concluded that the applicant had failed to prove that he was an employee of the third respondent and determined that the applicant was in fact an employee of Fikile. She then ruled that the CCMA did not have jurisdiction where it came to the dispute between the applicant and the third respondent, and directed that the dispute between the applicant and Fikile be rescheduled for arbitration.

[21] The arbitration between the applicant and Fikile was rescheduled for 21 May 2019. The applicant failed to arrive at the arbitration, and the dispute was then dismissed.

[22] Turning next to the unfair dismissal dispute referred by the applicant to the GPSSBC, that dispute only came before arbitrator M I Ramalatso on 15 April 2019. Arbitrator Ramalatso is the second respondent in the review application under case number JR 973 / 19. When the matter came before arbitrator Ramalatso, the jurisdictional ruling by commissioner Sibeko in terms of which it was held that the applicant was not an employee of the third respondent had already been handed down. Both the applicant and third respondent attended at the arbitration, with both parties being legally represented.

[23] Because of the ruling of commissioner Sibeko that had already decided the applicant was not an employee of the third respondent, the third respondent raised an objection in limine to the effect that the matter was res judicata, considering the very same issue as to whether the applicant was an employee of the third respondent lay at the heart of the proceedings

before arbitrator Ramalatso.

[24] Therefore, the difficulty raised before arbitrator Ramalatso was that he would also have to first decide whether the applicant was an employee of the third respondent, as this was again in dispute. The applicant was adamant that he was employed by the third respondent, whilst the third respondent was in turn adamant that the applicant was an employee of Fikile. This left the applicant

with the difficulty of the existing determination by commissioner Sibeko in the CCMA, in which it had been specifically determined that the applicant was not an employee of the third respondent, but was an employee of Fikile. The applicant’s legal representative

conceded this and provided the ruling to the arbitrator, but indicated that such ruling was subject to review proceedings in the

Labour Court instituted under case number JR 678 / 19. It must be added that at that stage, there had been no actual review application

filed, and only a case number had been applied for an was allocated to the applicant.

[25] Arbitrator Ramalatso decided that the existence of the ruling of commissioner Sibeko of 24 March 2019 was a key issue to consider, as it involved exactly the same issues. He also considered that the same ruling was subject to review proceedings in the Labour

Court, where this very question needed to be finally determined. He in essence held that he would have to review that ruling in order to make a finding in favour of the applicant as prayed for, and he had no jurisdiction to do so. In a ruling dated 15 April 2019, arbitrator Ramalatso then dismissed the referral on the basis of a want of jurisdiction.

[26] As referred to above, both review applications then followed on 10 May 2019. These are the two review applications now placed before me to decide.

The review test

[27] Both review applications concern jurisdictional rulings, the one by a CCMA commissioner, and the other by a GPSSBC arbitrator. In the one ruling by the CCMA commissioner, it was decided that the applicant was not an employee of the third respondent. In the other ruling of the GPSSBC arbitrator, is was in essence decided that the matter was res judicata, as the same issue as to whether the applicant was an employee of the third respondent had already been decided by the CCMA. As such, the jurisdiction of the CCMA and / or the GPSSBC to entertain this matter was at stake, because, if the applicant was not an employee of the third respondent, these dispute resolution bodies would have no jurisdiction to decide the applicant’s referrals.

[28] In Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others[4] the Court considered the well-known review test postulated in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[5] and said:

‘… Nothing said in Sidumo means that the CCMA’s arbitration award can no longer be reviewed on the grounds, for example, that the CCMA had no jurisdiction in a matter or any of the other grounds specified in section 145 of the Act. If the CCMA had no jurisdiction in a matter, the question of the reasonableness of its decision would not arise …’ (emphasis added)

[29] The aforesaid means that where the issue to be considered on review is about the jurisdiction of the CCMA or the applicable bargaining council, it is not about a reasonable outcome. What happens is that the Labour Court is entitled to, if not obliged, to determine the issue of jurisdiction of its own accord. In doing so, the Labour Court determines the issue de novo in order to decide whether the determination by the arbitrator is right or wrong.[6]

[30] Thus, in the case of a wrong decision by a CCMA or bargaining council arbitrator, as the case may be, where it comes to the issue of jurisdiction, the decision of the arbitrator would be reviewable on objectively justiciable grounds.[7] It does not matter what the reasoning of the arbitrator may have been and it is up to the Court to, from an objective perspective, decide whether the requisite jurisdiction exists. In Universal Church of the Kingdom of God v Myeni and Others[8] the Court said:

‘… the value judgment of the commissioner in a jurisdictional ruling has no legal consequence and that it is only a ruling for convenience. … If, from an objective perspective, such jurisdictional facts did not exist, the CCMA did not possess the requisite jurisdiction to entertain the dispute, regardless of what the commissioner may have determined.’

[31] Turning to the specific instance of the existence or not of an employment relationship as a jurisdictional fact that needs to exist in order to clothe the CCMA with jurisdiction, the Court in Sanlam Life Insurance Ltd v Commission for Conciliation, Mediation and Arbitration and Others[9] held:

‘It was, therefore, incumbent upon the Labour Court to deal with the issue whether or not there had been an employment relationship

between the appellant and the third respondent and, therefore, whether the CCMA had the requisite jurisdiction to deal with the

dispute… The Labour Court was called upon to decide de novo whether there was an employer-employee relationship between the parties. It was not called upon to decide whether the commissioner's findings were justifiable or rational.’

[32] Accordingly, and in this instance, insofar as the merits of the two review applications of the applicant need to be considered, the aforesaid would be the applicable review test to be applied. The problem for the applicant in this case is however that there are formidable obstacles standing in the way of his review applications being susceptible to determination on the merits. I shall next deal with these obstacles.

The reinstatement application

[33] The application by the applicant to reinstate the review application under case number JR 678 / 19 has a long history to it, which must first be dealt with. This entire history arose because of the existence of the second review application under case number JR 973 / 19, and deliberate tactical decisions taken by the applicant in prosecuting his disputes. It must be remembered that both review applications were brought at the same time by the applicant.

[34] Because both review applications would require the determination of the exact same issue, being whether the applicant was indeed an employee of the third respondent, the third respondent’s attorneys at the onset of the review proceedings requested the applicant to agree that both review applications be consolidated into one matter. Inexplicably, the applicant viewed this as a stratagem on the part of the third respondent’s attorneys to scupper his reviews. In an e-mail sent to the third respondent’s

attorneys on 19 August 2019, the applicant refused to agree to such consolidation. In fact, the applicant proceeded to set the review application number case number JR 973 / 19 down on the unopposed roll for hearing, as the third respondent had only filed notice to oppose the review application under case number JR 678 / 19. In reaction to the stance adopted by the applicant, the third respondent then also filed a notice of oppose the review application under case number JR 973 / 19 on 19 August 2019, and requested the applicant to remove the matter from the unopposed roll. The applicant however refused to agree to remove the matter from the unopposed roll.

[35] Because the applicant refused to agree to the consolidation of the two review applications, the third respondent then prepared a formal application for consolidation. This application was served on the applicant on 26 August 2019 by e-mail, with a covering request as to whether the applicant would accept serve of the application by e-mail or would prefer an alternative method of service by telefax. The consolidation application was filed in Court on 3 September 2019.

[36] In response to being served with the consolidation application on 26 August 2019 by e-mail, the applicant answered the third respondent’s attorneys by e-mail that same afternoon. The e-mail recorded the following: “Please Take Notice that CASE NO: JR 678/19 is withdrawn from the Labour Court. Take Notice Further that, you do not need to serve me with your consolidation application documents” (sic).

[37] In order to be sure what the applicant had meant, the third respondent’s attorneys sent a further e-mail to the applicant on 26 August 2019. In such e-mail the third respondent’s attorneys inter alia requested the applicant to confirm whether he, in the light of the consolidation application, would be persisting with the withdrawal of the review application under came number JR 678 / 19, and informed him that he should rather not withdraw the matter. The applicant answered on 27 August 2019, in unequivocal terms, as follows:

‘Firstly, I will stand by my withdrawal of CASE NO: JR 687/19. For that reason, I cannot be forced by you or your office to reinstate the matter that I withdrew, but by the Honourable Court. I am the one who instituted the matter and NOT you or your office. It is my Constitutional right to withdraw or reinstate it and the state has a duty to protect that right rather than infringe it like you are doing now. I am not going to be intimidated by your conduct or costs that you talk about. When I instituted these cases, I already knew that there are costs that I may have to suffer, but that did not deter me from going on with what I know is right because I did not bring frivolous case to the Honourable Court. …

I will now serve you once again, notice of withdrawal of CASE NO: JR 678/19 …’ (sic) (emphasis added)

[38] The third respondent’s attorneys replied on 27 August 2019, stating that the e-mail answer from the applicant was not a proper notice of withdrawal in terms of the Court Rules. The applicant reacted on 29 August 2019 by e-mail, stating that “I stand by my withdrawal of the said matter and I will send you another notice of withdrawal once again …”. The applicant then served and filed a formal notice of withdrawal of the review application under case number JR 678 / 19,

on or about 3 September 2019.

[39] Following the withdrawal of the review application under case number JR 678 / 19, the applicant only proceeded with prosecuting the review application under case number JR 973 / 19. In an e-mail dated 29 August 2019 to the third respondent’s attorneys, he stated that “I have withdrawn CASE NO: JR 687/19. The only matter that is with the Labour Court is CASE NO: JR 973/19”. The applicant then proceeded to state in the same e-mail that he had sent the third respondent the supplementary affidavit and the record under case number JR 973 / 19. He indicated that the transcript of the recording of the arbitration had not yet been filed because it had not been discovered by the GPSSBC. There was further correspondence between the parties as to whether the applicant had in fact complied with Rule 7A, but none of this is important in this matter. Suffice it to say that the applicant ultimately did obtain the recording, and filed the transcript on 18 September 2019. The third respondent served and filed an answering affidavit on respectively 30 September 2019 and 7 October 2019.

[40] Despite the review application under case number JR 973 / 19 being clearly opposed, the applicant nonetheless attempted to move his review application under case number JR 973 / 19 on the unopposed roll on 29 October 2019. The third respondent, represented by counsel, attended at Court on 29 October 2019 and as a result, the applicant did not succeed having the matter determined as

unopposed. The application was removed from the unopposed roll and re-enrolled on the opposed motion roll. It appears to be common cause that the applicant was advised by the Court on the day that he should reinstate his application under case number JR 678 / 19 and consolidate the two matters.

[41] After the application under case number JR 973/19 had been removed from the unopposed roll and placed on the opposed roll, on 29 October 2019, the applicant, on the same day, served and filed an application, seeking to reinstate the review application under case number JR 678 / 19, and consolidating the same with the review application case number JR 973 / 19. However, and immediately

after he filed this application, the applicant did a compete volte face, and on 30 October 2019 filed formal written notice withdrawing

this reinstatement and consolidation application. In this withdrawal notice, the applicant expressly records that he would only pursue case number JR 973 / 19. The applicant also sent correspondence to the third respondent’s attorneys, confirming that he had proper consideration of his position in this regard, and decided to only pursue the review application under case number JR 973 / 19. The applicant followed through on this intention, and only prosecuted case number JR 973 / 19 to the point of finality, so that it could be set down for hearing.

[42] Then, on 15 January 2021, some fifteen months later, the applicant filed another reinstatement and consolidation application. In this application, he once again seeks to reinstate the review application under case number JR 678 / 19 that he had withdrawn, and prays that it be consolidated with case number JR 973 / 19. Ironically, this is the approach which he on several occasions in the past had expressly disavowed.

[43] As to the grounds advanced for the reinstatement of the review application under case number JR 678 / 19, the applicant explains that he withdrew the application under case number JR 678 / 19 on 26 August 2019 out of “ignorance, frustration and desperation”, because case number JR 973 / 19 was on the roll for 29 October 2019. He then further explains that when the matter was heard on 29 October 2019 and then removed from the unopposed roll, the Court advised that he consolidate his two matters, and he then did bring the reinstatement and consolidation application. According to the applicant, there was “never any set down date” for this reinstatement application he had brought. The applicant also relied on his precarious financial circumstances as a basis for justifying reinstatement, and contends that the application under case number JR 678 / 19 had “more” prospects of success than the application under case number JR 973 / 19. Finally, the applicant even blamed the third respondent for his withdrawal of the review application under case number JR 678 / 19, because the third respondent allegedly did not comply with time limits.

[44] It is trite that the Labour Court is entitled to decide whether a review application that has been withdrawn, can be re-opened.[10] It is also trite that the withdrawal of a case itself is considered to be comparable to absolution of the instance being granted,[11] which means that an applicant is not barred by the principle of res judicata from reinstituting the proceedings.[12] But how can a withdrawn case be re-opened? There are two views in this regard. The one view is that it is not competent to simply apply for a withdrawn matter to be reinstated, and what is needed is for the application itself to be brought, served and filed de novo, as a “fresh” application, so to speak.[13] The other view is that it is not necessary to reinstitute the application de novo, and a litigating party would have an election to either reinstate the proceedings de novo, or to bring a substantive application that the same proceedings that had been withdrawn simply be reinstated (re-opened).[14] In my view, this conundrum has been resolved by the judgment of the Labour Appeal Court (LAC) in Ellies Electronics (Pty) Ltd v Commission for Conciliation Mediation and Arbitration[15] where the Court held as follows:

‘The withdrawal of a matter at the instance of a party is a unilateral act which results in the matter being removed from the roll in the same manner as if absolution from the instance had been granted. The fact that a matter has been withdrawn does not in principle bar either the reinstitution of proceedings or the institution of fresh proceedings (in which case the absolved defendant may not raise the defence of res judicata if sued again on the same cause of action). In finding differently, the Labour Court erred. Faced with an application to have the matter reinstated, it was for a court to determine whether or not to grant such application having regard to the relevant facts and issues of prejudice, while recognising that employment disputes by their nature are urgent and require speedy resolution. …’

[45] This Court is bound by the judgments of the LAC. It must therefore follow that the appropriate and proper position where it comes to the reinstatement of a review application brought to this Court, and which has been withdrawn by an applicant party, is that such applicant has an election on how to bring about the reinstatement. The applicant party can either launch the proceedings de novo, by serving and filing a fresh application. This of course of action may necessitate a condonation application, depending on applicable

time limits. Or the applicant may bring a separate substantive application for reinstatement, seeking to reinstate the withdrawn

application under the same case number before Court. In casu, the applicant chose the latter option, which is thus a permissible and competent course of action, and calls for this Court to decide that reinstatement application.

[46] Even though a party would be free to reinstate (re-open) or reinstitute a review application that had been withdrawn, it does not follow that the earlier withdrawal would be entirely without any consequence. Even though the exceptio res judicata would not apply, an application for reinstatement or the reinstitution of the withdrawn application may still be met with defences such as waiver, election or settlement.[16] For example, a settlement agreement may call upon an applicant to withdraw an application, and in such circumstances an application to reinstate would not be competent. Another example would be where the conduct of the applicant in withdrawing the application is such that it could reasonably be said that such withdrawal manifested a clear intention on the part of the applicant to finally abandon the same, which brings waiver into play.

[47] Where the elected process is a separate substantive application to reinstate the withdrawn application, such an application would be akin to an application for condonation and would have to be dealt with on the same basis. As held in Pudi v Tshwane University of Technology[17]:

‘… the Court must determine a reinstatement application like a condonation application. It is trite that condonation is not there for the taking. In such applications, the applicant is seeking an indulgence from the Court to reinstate his matter that he has voluntarily

withdrawn. Therefore, the discretion whether to reinstate or not must be exercised judiciously taking into account the length of the delay, the reason for the delay, prospects of success, prejudice and interest of justice …’

[48] Taking a leaf out of the book of the Practice Manual in the Labour Court, clause 11.2.3 of the Practice Manual provides for a deemed withdrawal of a review application if prescribed time limits are not complied with.[18] In my view, this would have the same consequence where the review applicant decides to withdraw the review application of its own accord. Simply put, withdrawal is withdrawal. It is now trite that a substantive application can be brought to reinstate a review application that is deemed to be withdrawn under the Practice Manual, and that such application takes the form of a condonation application. As held in Zono v Minister of Justice and Correctional Services; In Re: Minister of Justice and Correctional Services v Zono and Others[19]:

‘An application for reinstatement of a review application deemed to have been withdrawn is, in essence, an application for condonation. It is incumbent on the applicant to show good cause why, in this case, the record of the proceedings under review was not filed within the prescribed time limit. Condonation is not there merely for the asking, nor are applications for condonation a mere formality …’

[49] In Samuels v Old Mutual Bank[20] the Court dealt with clause 11.2.7 of the Practice Manual, in terms of which a reinstatement application is required to retrieve a review application that has been archived in terms of the Practice Manual, from archives, and held:

‘In essence, an application for the retrieval of a file from the archives is a form of an application for condonation for failure to comply with the court rules, time frames and directives. Showing good cause demands that the application be bona fide; that the applicant provide a reasonable explanation which covers the entire period of the default; and show that he/she has reasonable prospects of success in the main application, and lastly, that it is in the interest of justice to grant the order. …’

I can see no reasons why these same principles should not equally apply to the consideration of an application to reinstate a review application that has been withdrawn by the applicant itself, as is the case in casu.

[50] As discussed above, the Court may decline to determine a reinstatement application where there exists an imperative not to do so. One such an imperative would be waiver. Thus, an attempt to re-open a withdrawn case can be answered with a defence of waiver, depending on the circumstances of the withdrawal and whether the requirements of waiver are met. In National Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others[21] the Court held as follows, where it comes to the requirements of waiver:

‘… Waiver is the legal act of abandoning a right on which one is otherwise entitled to rely. It is not easily inferred or established. The onus to prove it lies with the party asserting waiver. That party is required to establish that the right-holder, with full knowledge of the right, decided to abandon it.

So waiver depends on the intention of the right-holder. That can be proved either through express actions or by conduct plainly inconsistent with an intention to enforce the right. …’

[51] It must always be borne in mind that waiver is not readily inferred, considering the following dictum in Ullman Bros Ltd v Kroonstad Produce Co[22]: ‘… A waiver is not presumed, but must be clearly established by the party who relies on it. …’. As to what constitutes ‘clear establishment’, the Court in Victoria Falls and Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd[23] referred with approval to the following dictum from the judgment in Smith v Momberg (12 SC 295):

‘Under certain circumstances a renunciation of rights may be implied from the conduct of the person entitled to them, but his conduct must be such as to leave no reasonable doubt in the mind that he not only knew what his rights were, but intended to surrender them …’

[52] A further consideration when deciding a case of waiver is aptly articulated in Greathead v SA Commercial Catering and Allied Workers Union[24] where the Court said that: ‘… The appellant could not have considered abandoning his rights if he (and his legal advisers) had not appreciated it …’. This same approach was followed in EHCWAWU obo Tshabalala and Others v M & P Bodies CC[25] where it was held that: ‘It is also trite that before a waiver can be upheld, it must be demonstrated that the person who is alleged to have waived his or her right knew that he or she was waiving her right …’.

[53] Finally, it is trite that any reliance on a defence of waiver must be pleaded.[26] If waiver is not pleaded, it cannot be relied upon when the matter is argued. As succinctly said in Rockliffe v Mincom (Pty) Ltd[27]: ‘… The defence of waiver must be pleaded. …’.

[54] In casu, and in an answering affidavit opposing the applicant’s reinstatement application, filed on 26 February 2021, the third respondent refers to several of the background facts relating to the withdrawal of the review application under case number JR 678 / 19 by the applicant, and contends that these facts establish an abandonment of the review application by the applicant. The specific words used by the third respondent in one of the paragraphs in the answering affidavit specifically state that the applicant has made his bed by withdrawing case number JR 678 / 19, and now he must lie in it. The issue of waiver is clearly up for determination in this case.

[55] On the facts, I am convinced that the application of the principle of waiver is an insurmountable obstacle to the success of the applicant’s reinstatement application, as a result of which it cannot succeed, without even considering the merits thereof. There are a number of facts supporting this conclusion, which I will deal with below.

[56] But before I deal with the facts relating to waiver specifically, I must say something about the conduct of the applicant when seeking to make out a case for reinstatement, which in my view is simply not forthright and tantamount to an attempt to mislead the Court. Two issues stand out. First, the applicant suggested he withdrew the review application on 26 August 2019 out of frustration, ignorance and desperation. This simply does not accord to the true facts as evidenced by the e-mail correspondence between the applicant and the third respondent’s attorneys. It is clear to me that the applicant deliberately considered his position and his rights with regards to his two review applications, made a tactical decision on the course of action to only pursue one of the review applications, and acted accordingly. When the third respondent tried to dissuade him from the possible errant nature of his ways, he took offence and wrote an e-mail in essence saying he knew what he was doing in withdrawing the review application, that it was his right in do so, and the third respondent could not tell him what to do. He even admonished the third respondent’s attorneys for their suggestions. This is hardly communication speaking of ignorance, frustration and desperation. The second issue relates the reinstatement application filed by the applicant on 29 October 2019. He suggests in the founding affidavit this application is still pending without a hearing date being allocated. This suggestion is simply false, considering that on 30 October 2019, he withdrew this reinstatement application and made it clear that he would only be pursuing case number JR 973 / 19. This kind of conduct must weigh heavily against the applicant when deciding whether he should be afforded the indulgence that he has applied for.

[57] Returning then to the facts relating to waiver, I am convinced that when considering the conduct of the applicant, as whole, he not only deliberately and directly disavowed any intention to proceed with the review application under case number JR 678 / 19, but his conduct in general is equally inconsistent with any intention on his part to continue to reply upon or prosecute that application. In simple terms, he clearly and unambiguously made it clear that the application under case number JR 678 / 19 had been finally abandoned and will not be pursued. He clearly knew he was always entitled to pursue the review application under case number JR 678 / 19 to finality, despite the simultaneous existence of the review application under case number JR 973 / 19. He deliberately elected to only pursue the application under case number JR 973 / 19, and he must be held to this election.[28]

[58] The specific facts that establish the aforesaid can be firstly found in the e-mail communication emanating from the applicant in the period between 26 and 30 August 2019. These facts are set out in detail above and really speak for themselves. In short, the applicant was confronted with a consolidation application he did not like. He considered his options and decided to defeat the consolidation by withdrawing the review application under case number JR 678 / 19. He was asked if he was certain he wanted to do this, and he responded he stood by such withdrawal, and it was his right to withdraw it. He recorded more than once in no uncertain terms that the review application was withdrawn, and that he stood by such withdrawal. When pointed out to him that an e-mail notice of withdrawal (meaning simply referring to the withdrawal in the body of the e-mail) is insufficient, the applicant reiterated that he stood by the withdrawal and followed this point of view up with a formal notice of withdrawal. Following all of this, the applicant then only prosecuted the application under case number JR 973 / 19, making it clear in the course of doing so that it would be the only application that will be persisted with. If this does not constitute an out and out and final abandonment of the review application under case number JR 678 / 19, it is difficult to understand what would be.

[59] But even if there was a shred of doubt left in this regard, that must have been dispelled following the events when the review application under case number JR 973 / 19 came before the Court on 29 October 2019. The applicant was advised by the Court to reinstate the review application under case number JR 678 / 19, and the applicant indeed filed an application on the same date to this effect. However, and the very next day (30 October 2019) the applicant withdrew that reinstatement application, and in the notice of withdrawal yet again made it clear that he will only pursue the application under case number JR 973 / 19. What makes this even worse is that the applicant attempts to mislead the Court as to the status of this reinstatement application, implying it still existed and was

awaiting a set down, when it was actually withdrawn. This surely puts things beyond the realm of any doubt. The applicant intended to finally abandon the application under case number JR 678 / 19, and acted accordingly.

[60] A final consideration is the fifteen months, after 29 October 2019 when the applicant was advised by this Court that he should bring a reinstatement application, that it took to finally bring such application. This kind of material delay is consistent with the

proposition that the applicant had actually finally abandoned the review application under case number JR 678 / 19, especially if considered in conjunction to what he did on 30 October 2019. Comparable is the judgment in Mngomezulu v Vodacom (Pty Ltd and Others[29] where the Court referred to the following factual considerations, in refusing an application to re-open a case that had been withdrawn:

‘… Both the applicant and Vodacom were represented at the arbitration proceedings before Commissioner Wilson when both parties confirmed,

in the presence of the applicant, that the application to review Commissioner Isaacs’s ruling had been withdrawn. The applicant

did not object. Neither did he do so until a year later. …’

[61] I thus conclude that the requirements of waiver have been satisfied in this case. The applicant has clearly and deliberately, despite being fully aware of his rights, considered those rights and decided to abandon his review application under case number JR 678 / 19. Even when having the opportunity to reconsider such decision on at least three occasions, he made it clear that he stood by that decision. It is now simply too late to change his mind, and seek to resurrect that application. This renders the reinstatement application incompetent, and it should fail on this basis alone.

[62] However, and the interest of being thorough, it is in any event my view that the reinstatement application, on the substance thereof, is close on hopeless. The basis upon which the applicant seeks to justify his application for reinstatement is so poor that it is virtually non-existent. The applicant has not taken the Court into his confidence and offered a full and proper explanation as to why did what he did in withdrawing the review application under case number JR 678 / 19, especially considering the clear content of the correspondence between the parties in the course of August, September and October 2019, as well as the applicant’s actual actions in this period. To make a simple bald statement of being ignorant, frustrated and desperate is entirely insufficient and unhelpful to his cause. He needed to provide proper and comprehensive detail in the explanation in order to effectively dispel the clear intention exhibited on the facts, as they stood, that he had deliberately decided to finally abandon the review application. This kind of explanation has unfortunately not been provided. In short, there is simply no factual basis provided by the applicant to undo what he had actually deliberately decided to do, and this Court cannot come to his assistance in such circumstances. In E Tradex (Pty) Ltd t/a Global Trade Solution v Finch and Others[30] the Court, in dealing with an application to reinstate a review application that was similarly lacking in substance to the one in casu, had the following to say in refusing that application:

‘Plainly, there is neither an explanation of the circumstances that allowed the archiving to occur nor, for that matter, a traverse of the prospects of success in the review. Mr Finch filed a replying affidavit to the employer’s answer. That affidavit is also bare of substantive content.

It must therefore follow that the reinstatement application cannot succeed.’

[63] The applicant provides no explanation why it took some fifteen months to file the reinstatement application, which explanation is essential, especially considering the events on 29 and 30 October 2019 pertaining to the applicant’s Court appearance, being given guidance by the Court, then bringing a reinstatement application, but immediately deciding to withdraw it. The applicant needed to provide a proper and comprehensive explanation why it took fifteen months after these events for him to change his mind yet again. He did not do so. In Kgobokoe v Commission for Conciliation, Mediation and Arbitration and Others[31] the Court held as follows:

‘The fact that the applicant has the right to reinstate the matter on the roll does not mean that he or she is guaranteed success in every such case. I'm of the view that where the respondent may be prejudiced by the reinstatement, for example, where a long time has elapsed before such a case is reinstated and all evidence is lost, eg witnesses can no longer be traced, have died, etc an applicant should not succeed …’

[64] The final aspect of the applicant’s explanation involves him making reference to his current financial predicament and debts owing. The difficulty with this part of the explanation is that it has consistently been held that a financial predicament or lack of funds, barring exceptional circumstances, cannot serve as an explanation supporting an indulgence sought.[32] The applicant has shown no exceptional circumstances, and in particular, has demonstrated an insufficient nexus between the existence of his debts and his conduct relating to the initial withdrawal and then only much later attempt to reinstate the review application. In simple terms, it is difficult to understand how the applicant’s debts could be the cause for the manner in which he acted. As said in Du Plessis v Wits Health Consortium (Pty) Ltd[33]:

‘… a claim of lack of funds on its own cannot constitute reasonable explanation for the delay. In other words, when pleading lack of funds as the cause of the delay, the applicant needs to provide more than a mere claim that the reason for the delay is lack of funds. In this respect, the applicant has to take the Court into his or her confidence in seeking its indulgence by explaining "when" not only that he or she finally raised funds to conduct the case but also how and when did he or she raise those funds. The "when" aspects of the explanation is important as it provided the Courts with the information as to whether there was any further delay after raising the funds and whether an explanation has been provided for such a delay.’

[65] Finally, and even if the prospects of success of the review application is considered, none exist. First, the review application is out of time without any condonation application, which in itself would non-suit the applicant.[34] Second, and even if the merits of the case is considered, it is clear that the finding of commissioner Sibeko that the applicant was not an employee of the third respondent but was an employee of Fikile is correct, and unassailable on review. Because this case on the merits is identical to the case under case number JR 973 / 19, the reasons for my view in this regard will appear from what is discussed below, in this judgment, where I deal with that application.

[66] For all the reasons set out above, the applicant’s application for the reinstatement of the review application under case number JR 678 / 19 must be refused. Once this is so, then the withdrawal of the review application stands, and it must follow that

the ruling of commissioner Sibeko dated 24 March 2019 stands as unchallenged. This in turn has a direct and material adverse impact

on the applicant’s case under case number JR 973 / 19.

The review under case number JR 973 / 19

[67] Where is comes to the review application under case number JR 973 / 19, arbitrator Ramalatso in essence disposed of the matter on the basis of the exceptio res judicata. As discussed above, he decided that the issue as to whether the applicant was employed by the third respondent, being the central issue he was called on to decide, had already been decided by the CCMA, and he thus had no jurisdiction to revisit the issue.

[68] The finding of arbitrator Ramalatso is undoubtedly correct. The factual matrix in the unfair discrimination dispute in the CCMA, and the unfair dismissal dispute in the GPSSBC, which disputes were simultaneously pursued by the applicant, is identical. The relief sought was identical, in that the applicant sought reinstatement from the third respondent. The core issue for initial determination in both matters was whether the applicant was employed by the third respondent, or by Fikile, as this was very much in dispute. By the time when the applicant came before arbitrator Ramalatso for the arbitration of his unfair dismissal dispute, the CCMA had already decided he was not an employee of the third respondent. This was the undeniable reality facing arbitrator Ramalatso. Whether this reality establishes res judicata will next be addressed.

[69] The exceptio res judicata was described in SA National Defence Union and Another v Minister of Defence and Others; SA National Defence Union v Minister of Defence and Others[35] as thus:

‘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 …’

And in Yellow Star Properties v MEC Department of Development Planning and Local Government[36] 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.’

[70] 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[37], 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.'

[71] In casu, the parties to both disputes are the same, as are the facts giving rise to both claims. The relief sought in both cases are the same. But what is undoubtedly true in casu is that the one claim is a discrimination claim and the other claim is an unfair dismissal claim, which are different causes of action. A discrimination claim is a claim under the EEA, which is a distinct and separate claim to a claim for unfair dismissal under the LRA.[38] Therefore, and as an example, should the CCMA have found that the applicant was not unfairly discriminated against, that finding would not stand in the way of the applicant still being entitled to pursue his unfair dismissal claim in the GPSSBC.

[72] But what makes the matter in casu entirely different is the fact that based on identical facts, the employment of the applicant with the third respondent was in dispute in both matters. In both the unfair discrimination case under the EEA in the CCMA, and the unfair dismissal case under the LRA in the GRSSBC, neither fora would have jurisdiction if the applicant was not an employee of the third respondent. This jurisdiction question, which first had to be answered in both matters, and is an essential issue that needed to be decided first, is identical in both matters.[39] This being the case, it would, simply speaking, be the same ”thing” that had to be decided in both cases. In Boshoff v Union Government[40] it was said:

‘Where the decision set up as a res judicata necessarily involves a judicial determination of some question of law or issue of fact, in the sense that the decision could not have been legitimately or rationally pronounced by the tribunal without at the same time, and in the same breath, so to speak, determining that question or issue in a particular way, such determination, though not declared on the face of the recorded decision, is deemed to constitute an integral part of it as effectively as if it had been made so in express terms …’

[73] In Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union and Others[41] the Court accepted that the “same cause of action” requirement in the context of res judicata meant a matter of fact or question of law in dispute between the 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. In National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors (Pty) Ltd[42] the Court provided the following summary:

‘… the exceptio can be raised by a defendant in a later suit against a plaintiff who is 'demanding the same thing on the same ground' (per Steyn CJ in African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 562A); or which comes to the same thing, 'on the same cause for the same relief' (per Van Winsen AJA in Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) at 472A - B; see also the discussion in Kommissaris van Binnelandse Inkomste v ABSA Bank Bpk 1995 (1) SA 653 (A) at 664C - E); or which also comes to the same thing, whether the 'same issue' had been adjudicated upon …’

[74] In Democratic Alliance v Brummer[43] the Court dealt with what should be considered when determining whether the same issue had already been decided, and had the following to say:

‘Where the judgment does not deal expressly with an issue of fact or law said to have been determined by it, the judgment and order must be considered against the background of the case as presented to the court and in the light of the import and effect of the order. Careful attention must be paid to what the court was called upon to determine and what must necessarily have been determined, in order to come to the result pronounced by the court. The exercise is not a mere mechanical comparison of what the two cases were about and what …’

[75] Considering all the above, I have little hesitation in concluding that the same issue before arbitrator Ramalatso had already been decided in the CCMA, as contemplated by the exceptio res judicata. This was a necessary issue to decide in the context of both disputes, and is applicable between the same parties and based on the exact same facts. What arbitrator Ramalatso would need to decide is the issue of the identity of the employer of the applicant, based on the same facts already placed before the CCMA. Arbitrator Ramalatso would have to come to the same conclusion (decision) the CCMA was called upon to come to applying the same principles of law, in order to assist the applicant. In this context, and on this exact same basis the CCMA had decided that the applicant was not an employee of the third respondent, and arbitrator Ramalatso would have to decide differently in the face of this clear determination. It may be added that it is irrelevant for the application of the exceptio res judicata whether the ruling in the CCMA by commissioner Sibeko was correct or not.[44]

[76] In sum, and when the unfair dismissal dispute came before arbitrator Ramalatso, the issue as to whether the applicant was an employee of the third respondent had already been decided by way of a written ruling in the CCMA, which determination stood. The finding in the CCMA that the applicant was not an employee of the third respondent would equally apply to the unfair dismissal dispute before the GPSSBC. This would trigger the application of the exceptio res judicata, which arbitrator Ramalatso as arbitrator of the GPSSBC was bound to apply. In Myers v National Commissioner of the SA Police Service and Another[45] it was held as follows:

‘In general, the issue estoppel principle, or the relaxation of the res judicata principle, does not seem to lend itself to application in the proceedings of the CCMA or bargaining councils, particularly because these bodies are not courts and do not have the same powers that courts have as envisaged in s 173 of the Constitution. … Unless an arbitrator in the CCMA or bargaining council has the same or similar powers to a court, the basis upon which an arbitrator would be able to relax the application of the res judicata principle in any particular case would be impossible, legally …’

[77] The matter in casu actually properly illustrates the point of what is sought to be achieved by the exceptio res judicata. Accepting there exists a ruling by the CCMA that the applicant is not an employee of the third respondent, it would be necessary for the GPSSBC to directly contradict this ruling in order to entertain the claim before it, by finding that the applicant was an employee of the third respondent. What will then exist, on the exact same facts, is one finding that the applicant was an employee of the third respondent, and another finding that the applicant was not an employee of the third respondent, in what is in reality sister fora. In my view, this is an untenable proposition. As a matter of principle, the applicant cannot be allowed to raise the same case as to whom is his employer before arbitrator Ramalaso in the GPSSBC, because that very same issue has already been decided by commissioner

Sibeko in the CCMA.[46]

[78] For all the reasons as set out above, I therefore conclude that the finding by arbitrator Ramalatso that he had no jurisdiction to determine whether the applicant was an employee of the third respondent, because that issue had already been decided in the CCMA and could only be overturned in the Labour Court, is correct. Such conclusion is unassailable on review and must be upheld. As a result, the applicant’s review application under case number JR 973 / 19 falls to refused.

[79] Despite the fact that the applicant’s review application must fail for the reasons already given, I shall, for the benefit of the applicant, shortly touch on the merits of his challenge to the effect that he was indeed an employee of the third respondent. On the facts as contained in record of both review applications, the applicant’s case that he was an employee of the third respondent has no substance at all. The facts speak for themselves. In summary, the third respondent never sought to employ the applicant. All the third respondent did was to award a EPWP project to Fikile, with one of the project conditions being the employment of local employees on the project by the contractor. The applicant was one of these local employees, and was recruited and employed by Fikile accordingly. The applicant signed fixed term employment contracts with Fikile specifically linked to the project, and was paid by Fikile. Employment disputes that arose in the course of his employment was resolved between the applicant and Fikile and did not involve the third respondent. As the applicant’s employment was also specifically linked to the particular project,

this would be irreconcilable with permanent employment with the third respondent. Fikile at all times accepted that it was the employer of the applicant. Knowing that the project was about to finish, the applicant in fact asked the third respondent to permanently employ him, which simply cannot be the case if he was already permanently employed by the third respondent in the first instance.

[80] The third respondent’s case that in order for it to employ someone like the applicant, there has to be a vacant post, which post must be advertised, applied for, and then filled, in compliance with the legal prescripts under the Public Service Act, 1994 (PSA), was undisputed and in fact consistent with what is required of an employer in the Public Service. It was also explained that even if these processes are complied with, any employee must be issued with a letter of appointment and be registered on the PERSAL system, which explanation was also not contradicted. None of these prescripts ever applied to the applicant, so as to establish the existence of employment with the third respondent.

[81] The applicant effectively seized upon a job description issued by the third respondent setting out the requirements for the position of community liaison officer, contending that because this is what the third respondent required and prescribed, it had to mean that it employed the applicant. In my view, this contention is entirely misconceived. The fact that the third respondent may stipulate the requirements for a position, does not mean that Fikile could not employ the applicant in compliance with these requirements. In any event, and even if this job description is considered as a possible form of involvement of the third respondent in the employment of the applicant, it would be wholly insufficient to upset the overwhelming evidence to the contrary, and to the effect that Fikile was the applicant’s employer, and not the third respondent.

[82] On the merits, the applicant’s review applications, insofar as these application sought to upset any finding that he was not an employee of the third respondent, were in any event doomed to fail.

Conclusion

[83] The applicant has therefore failed to make out a case for the reinstatement of his review application brought under case number JR 678 / 19, which he had withdrawn. The reinstatement application must therefore de dismissed. The withdrawal of that application thus stands, and thus there is no such review application before Court. It follows that the ruling by commissioner Sibeko in the CCMA dated 24 March 2019 to the effect that the applicant was not an employee of the third respondent, must stand.

[84] As to the review application under case number JR 973 / 19, the ruling by arbitrator Ramalatso dated 15 April 2019 to the effect that he had no jurisdiction to decide the point whether the applicant was an employee of the third respondent because it was already decided in the CCMA and could only be overturned by the Labour Court is correct, and falls to be upheld on review. It follows that this review application must be dismissed.

Costs

[85] In terms of section 162 of the LRA, I have a wide discretion where it comes to the issue of costs. The Constitutional Court has provided some guidance as to how this discretion is to be exercised. In Union for Police Security and Corrections Organisation v SA Custodial Management (Pty) Ltd and Others[47] that Court said:

‘In the labour context, the judicial exercise of a court’s discretion to award costs requires, at the very least, that the court must do two things. First, it must give reasons for doing so and must account for its departure from the ordinary rule that costs should not be ordered. Second, it must apply its mind to the dictates of the fairness standard in s 162, and the constitutional and statutory imperatives that underpin it …’

[86] What is thus required is a proper consideration of the dictates of fairness to both parties, followed by an exposition of reasoning why, despite the general principle in employment law disputes that costs do not follow the result, it was nonetheless decided to award costs.[48]

[87] This is a case where a departure from the normal principle relating to costs, and consequently an award of costs award against the applicant is justified. In this respect, I consider the applicant’s attempt to mislead the Court in this application for reinstatement of the review application under case number JR 678 / 19, which application was in an event completely lacking in substance and should never have been pursued considering the applicant’s own conduct relating to the same in August, September and October 2019. Another consideration is the manner in which the applicant chose to deal with the third respondent’s attorneys which was uncalled for. I also consider the manner in which the applicant tried to push through a default determination of the review application under case number JR 973 / 19, despite numerous protests by the third respondent that this was not appropriate and him clearly being aware that it was opposed. The fifteen months it took to file the reinstatement application without even attempting to provide a proper explanation for this delay is also worthy of censure.

[88] In the review application competently before Court (being under case number JR 973 / 19) the applicant made little effort to deal with the substance of the ruling of arbitrator Ramalatso as to why he decided to decline jurisdiction. The applicant in essence focussed all his efforts on the exact same case he had been pursuing the CCMA and GPSSBC as to whether he was employed by the third respondent. In the end, his actual review case, considering that the ruling of commissioner Sibeko in the CCMA stood, was actually hopeless. In Children’s Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others[49] it was said

‘Whether a case is hopeless has two aspects. It is hopeless if it is advanced on a basis that is legally untenable. It is also hopeless if it is advanced in the absence of any credible evidence to support it. These are categories that have long been recognised in our law and practice. A case is legally hopeless if it could be the subject of a successful exception. It is factually hopeless if the evidence available and potentially available after discovery and other steps directed at procuring evidence will not sustain the cause of action on which the claim is based. …’

[89] The applicant approached the reinstatement application on the basis of one of entitlement. A modicum of proper reflection on the case should have made it clear to the applicant that he had to do a lot more, especially considering past events. Had he applied some kind of care, he would have appreciated that the issue of the identity of his employer was res judicata before the GPSSBC, and he should never have pursued the review application under case number JR 973 / 19. The applicant recognized this lack of prospect of success to some extend in the replying affidavit in the reinstatement application, where he stated that his prospects of success under case number JR 678 / 19 was better than his prospects under case number JR 973 / 19. Yet he persisted with the latter application.

[90] In this case, I am of the view that the applicant took up the valuable time and already stretched resources of this Court. And in the applicant doing so, he compelled the third respondent defend the case out of the pocket of the already long suffering taxpayers of this Country, which is not acceptable.[50] This Court has consistently said that this kind of unfounded litigation is deserving of costs orders.[51]

[91] For all the reasons as set out above, I exercise my discretion by deciding that a costs award against the applicant is justified, and the applicant should be ordered to pay the third respondent’s costs.

[92] In the premises, I make the following order:

Order

1. The applicant’s application to reinstate the review application under case number JR 678 / 19 is dismissed.

2. The applicant’s review application under case number JR 973 / 19 is dismissed.

3. The applicant is ordered to pay the third respondent’s costs in both applications under case numbers JR 678 / 19 and JR 973 / 19, including the reinstatement application.

S Snyman

Acting Judge of the Labour Court of South Africa

Appearances: For the Applicant: In person For the Third Respondent: The State Attorney – Johannesburg

[1] Act 66 of 1995 (as amended).

[2] Even though the six weeks’ time limit is found in section 145(1) of the LRA, it equally applies to review applications under section 158(1)(g) of the LRA – see Lutchman v Pep Stores and Another (2004) 25 ILJ 1455 (LC) at para 18; Rustenberg Platinum Mines Ltd v Monnapula and Others [2003] BLLR 909 (LC) at para 34; Manuel v Jordan NO and Others (C471/2008) [2011] ZALCCT 52 (7 June 2011) at para 10.

[3] Act 55 of 1998 (as amended).

[4] (2008) 29 ILJ 964 (LAC) at para 101.

[5] (2007) 28 ILJ 2405 (CC).

[6] See:Trio Glass t/a The Glass Group v Molapo NO and Others (2013) 34 ILJ 2662 (LC) at para 22; Asara Wine Estate and Hotel (Pty) Ltd v Van Rooyen and Others (2012) 33 ILJ 363 (LC) at para 23; Hickman v Tsatsimpe NO and Others (2012) 33 ILJ 1179 (LC) at para 10; Protect a Partner (Pty) Ltd v Machaba-Abiodun and Others (2013) 34 ILJ 392 (LC) at paras 5–6; Gubevu Security Group (Pty) Ltd v Ruggiero NO and Others Gubevu Security Group (Pty) Ltd v Ruggiero NO and Others (2012) 33 ILJ 1171 (LC) at para 14; Workforce Group (Pty) Ltd v CCMA and Others (2012) 33 ILJ 738 (LC) at para 2; Stars Away International Airlines (Pty) Ltd t/a Stars Away Aviation v Thee NO and Others (2013) 34 ILJ 1272 (LC) at para 21

[7] See SA Commercial Catering and Allied Workers Union v Speciality Stores Ltd (1998) 19 ILJ 557 (LAC) at para 24; Zeuna-Starker Bop (Pty) Ltd v National Union of Metalworkers of SA (1999) 20 ILJ 108 (LAC) at para 6.

[8] (2015) 36 ILJ 2832 (LAC) at para 27. See also SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others (2008) 29 ILJ 2218 (LAC) at para 40.

[9] (2009) 30 ILJ 2903 (LAC) at para 17. See also Melomed Hospital Holdings Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 920 (LC) at para 44; Beya and Others v General Public Service Sectoral Bargaining Council and Others (2015) 36 ILJ 1553 (LC) at para 20.

[10] See Robor Tube (Pty) Ltd v MEIBC and Others (2018) 39 ILJ 2332 (LC) at para 7.

[11] In Kaplan v Dunell Ebden and Co 1924 EDL 91 at p. 93 it was held: ‘… the case disappears from the roll as though absolution from the instance had been given. In my view a plaintiff is not at any time debarred from withdrawing a case and if this is done by him even after set-down the Court no longer has the action before it’. See also Ncaphayi v Commission for Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ 402 (LC) at para 27; SAMWU and Others v Commission for Conciliation Mediation and Arbitration and Another (2014) 35 ILJ 2011 (LC) at para 15; Pudi v Tshwane University of Technology (JR 801/17) [2022] ZALCJHB 160 (3 June 2022) at para 19.

[12] MV Wisdom C United Enterprises Corporation v STX Pan Ocean Co Ltd [2008] ZASCA 21; 2008 (3) SA 585 (SCA) at para 9; Ncaphayi (supra) at para 27; Shibogde v Minister of Safety and Security and others [2014] JOL 31294 (LC) at para 26.

[13] See Ellies Electronics (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others, In re Ellies (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others 2018) 39 ILJ 1748 (LC) at para 20; PSA obo Sehloho and Others v NCEDA (C63/15) [2017] ZALCCT 19 (4 May 2017) at para 12; Letlatsa v Air Chefs (Pty) Ltd (J1074/13, JR1155/13) [2015] ZALCJHB 338 (5 October 2015) at para 16; South African Municipal Workers Union and Others v Zenzeleni Cleaning and Transport Services CC and Others (JR852/13) [2015] ZALCJHB 47 (23 February 2015) at paras 10 and 12; Barberton Mines (Pty) Ltd v Association of Mineworkers and Construction Union and Others (J1780/14) [2015] ZALCJHB 302 (25 August 2015) at paras 17 – 18; Public Servants Association of SA on behalf of Strydom v SA Revenue Services (2007) 28 ILJ 2037 (LC) at para 7.

[14] See Robor Tube (supra) at paras 7 – 8; Kgobokoe v Commission for Conciliation, Mediation and Arbitration and Others (2012) 33 ILJ 235 (LC) at para 56; Pudi (supra) at para 25.

[15] 2020 JDR 2897 (LAC) at para 12.

[16] See Robor Tube (supra) at para 7; SA Municipal Workers Union (supra) at para15; Letlatsa (supra) at para 16.

[17] (JR 801/17) [2022] ZALCJHB 160 (3 June 2022) at para 27.

[18] Clause 11.2.3 reads: ‘If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application …’.

[19] [2020] 11 BLLR 1160 (LC) at para 17. See also SA Municipal Workers Union on behalf of Mlalandle v SA Local Government Bargaining Council and Others (2017) 38 ILJ 477 (LC) at para 6.9; MJRM Transport Services CC v Commission for Conciliation, Mediation and Arbitration and Others (2017) 38 ILJ 414 (LC) at para 21; Kock v Commission for Conciliation, Mediation and Arbitration and Others (JR764/18) [2021] ZALCJHB 101 (31 May 2021) at para 53.

[20] (2017) 38 ILJ 1790 (LAC) at para 17. See also E Tradex (Pty) Ltd t/a Global Trade Solution v Finch and Others (2022) 43 ILJ 2727 (LAC) at para 20.

[21] (2015) 36 ILJ 363 (CC) at paras 60 – 61.

[22] 1923 AD 449 at 454.

[23] 1915 AD 1.

[24] (2001) 22 ILJ 595 (SCA) at para 17.

[25] (1999) 20 ILJ 1787 (LC) at para 26.

[26] Montesse Township and Investment Corporation (Pty) Ltd and Another v Gouws, NO and Another 1965 (4) SA 373 (A) at 381B-E; Constantia Insurance Co Ltd v Nohamba 1986 (3) SA 27 (A) at 37I-38B; McGrane v Cape Royale The Residence (Pty) Ltd 2021 JDR 2378 (SCA) at para 21; The National Commissioner of South African Police Services v Tsogile Foundation Security Services & Trading (Pty) Ltd 2019 JDR 2107 (GP) at para 29.

[27] (2008) 29 ILJ 399 (LC) at para 27.

[28] In Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 2507 (CC) at para 54 the Court said: ‘The principle of the right of election is a fundamental one in our law. Equity made an election not to ask Mr Mawelele to render his services, nor did they offer him alternative employment. When exercising an election, the law does not allow a party to blow hot and cold. A right of election, once exercised, is irrevocable particularly when the volte face is prejudicial or is unfair to another …’. Also compare Universal Product Network (Pty) Ltd v Mabaso and Others (2006) 27 ILJ 991 (LAC) at para 46; Groom v Daimler Fleet Management (Pty) Ltd(2021) 42 ILJ 2179 (LAC) at para 78; Mohlomi v Ventersdorp/Tlokwe Municipality and Another (2018) 39 ILJ 1096 (LC) at para 78, as similar examples.

[29] (C801/13) [2017] ZALCCT 27 (21 June 2017) at para 18.

[30] (2022) 43 ILJ 2727 (LAC) at paras 21 – 22.

[31] (2012) 33 ILJ 235 (LC) at para 57.

[32] See Jonker v Wireless Payment Systems CC (2010) 31 ILJ 381 (LC) at paras 16 – 18; Harley v Bacarac Trading 39 (Pty) Ltd (2009) 30 ILJ 2085 (LC) at para 8; Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC) at para 37.

[33] [2013] JOL 30060 (LC) at para 16. See also Transport and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others (2019) 40 ILJ 827 (LAC) at para 23.

[34] In SA Transport and Allied Workers Union and Another v Tokiso Dispute Settlement and Others (2015) 36 ILJ 1841 (LAC) at para 18, the Court held ‘… where the steps constitutes a jurisdictional step, a time-limit, and the party is out of time then, in the absence of an application for condonation , a court cannot come to the party's assistance …’.

[35] (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; Score Supermarket Kwathema v Commission for Conciliation, Mediation and Arbitration and Others (2009) 30 ILJ 215 (LC) at para 29 – 31.

[36] 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.

[37] (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. In Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another 2014 (5) SA 297 (SCA) at para 10, the Court said that: ‘… The expression 'res iudicata' literally means that the matter has already been decided. The gist of the plea is that the matter or question raised by the other side had been finally adjudicated upon in proceedings between the parties and that it therefore cannot be raised again …’.

[38] See SA Airways (Pty) Ltd v Jansen van Vuuren and Another (2014) 35 ILJ 2774 (LAC); Evans v Japanese School of Johannesburg (2006) 27 ILJ 2607 (LC); Bedderson v Sparrow Schools Education Trust (2010) 31 ILJ 1325 (LC); Wallace v Du Toit (2006) 27 ILJ 1754 (LC); Hibbert v ARB Electrical Wholesalers (Pty) Ltd (2013) 34 ILJ 1190 (LC) Independent Municipal & Allied Trade Union on Behalf of Hlabisa and Others v Umkhanyakude District Municipality (2022) 43 ILJ 1842 (LC).

[39] Compare C3 Shared Services (Pty) Ltd v Grange 2022 JDR 0987 (GJ) at para 68.

[40] 1932 TPD 345 at 350 – 351. See also Horowitz v Brock and Others 1988 (2) SA 160 (A) at 179A-D; Aon South Africa (Pty) Ltd v Van den Heever NO and Others 2018 (6) SA 38 (SCA) at para 22; Caesarstone Sdot-Yam Ltd v World of Marble and Granite 2000 CC and Others 2013 (6) SA 499 (SCA) at para 20.

[41] (1999) 20 ILJ 82 (LAC) at para 7.

[42] [2000] ZASCA 159; 2001 (2) SA 232 (SCA) at para 2 per Olivier JA. In Horowitz (supra) at 179H it was held as follows: ‘… An issue, broadly speaking, 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 …’. See also African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 562D.

[43] 2022 JDR 3159 (SCA) at para 15.

[44] Brummer (supra) at para 16; African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 564C.

[45] (2022) 43 ILJ 2469 (LAC) at para 57.

[46] See Du Plessis v Public Protector and Others (2020) 41 ILJ 919 (LC) at paras 33 and 34 and authorities referred to therein.

[47] (2021) 42 ILJ 2371 (CC) at para 35. See also Booi v Amathole District Municipality and Others (2022) 43 ILJ 91 (CC) at para 60

[48] As said in SA Custodial Management (supra) at para 34: ‘Do the principles I have enunciated dictate that costs can never be ordered against a party in labour matters? I think it is clear from this court’s jurisprudence that the answer to this question is a resounding ‘no’. This court has previously affirmed the principle that costs are discretionary to the court adjudicating a matter. That applies no differently to labour matters …’.

[49] 2013 (2) SA 213 (SCA) at para 35.

[50] See Moses v Commission for Conciliation, Mediation and Arbitration and Others (2019) 40 ILJ 2371 (LC) para 21; Ngubane v Safety and Security Sectoral Bargaining Council and Others (2022) 43 ILJ 2543 (LC) at para 50.

[51] 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; Ntombela and Others v United National Transport Union and Others (2019) 40 ILJ 874 (LC) at para 70; 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.