Ngubane v Safety and Security Sectoral Bargaining Council and Others (J 1668 / 09) [2022] ZALCJHB 172; (2022) 43 ILJ 2543 (LC) (5 July 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: J 1668 / 09

In the matter between:

M P NGUBANE

Applicant

and

SAFETY AND SECURITY SECTORAL BARGAINING

COUNCIL

First Respondent

RONNIE BRACKS N.O.

Second Respondent

SOUTH AFRICAN POLICE SERVICES

Third Respondent

Heard: 28 June 2022

Delivered: 5 July 2022

Summary: Rescission application – no proper rescission application brought – rescission not competent – none of the requirements under section 165 of the LRA or Rule 16A for rescission established – no basis for rescission

Review application – applicant seeks reviewing and setting aside of decisions by SAPS as employer to dismiss applicant – not competent for applicant to pursue such a review – applicant obliged to pursue dismissal dispute in bargaining council

Res judicata – principles considered – applicant seeking relief that has already been decided by Bargaining Council and Labour Court – issue in dispute res judicata

Dismissal – unlawful dismissal – Labour Court has no jurisdiction to entertain unlawful dismissal challenge

Costs – proceedings an abuse of process and hopeless – costs ordered

JUDGMENT

SNYMAN, AJ

Introduction

[1] This Court has been critical in the past of applications such as the current application brought by the applicant, which in my view is an application that should have never burdened this Court with its already stretched resources. The application was brought as if it was a rescission application, however in reality it was nothing else but a resurrection, long after the fact, of an unfair dismissal dispute launched by the applicant to take issue with his dismissal for misconduct by the third respondent that had actually already been disposed of. The application was opposed by the third respondent, who raised a number of preliminary issues.

[2] This application came before me for argument on 28 June 2022. After considering the application, and hearing arguments on behalf of the applicant and the third respondent, I issued the following order:

‘(1) The applicant’s application is dismissed.

(2) The applicant is ordered to pay the third respondent’s costs.

(3) Written reasons for this order will be handed down on 5 July 2022.’

This judgment now constitutes the written reasons in terms of paragraph 3 of the above order.

Background facts

[3] The background facts in this case are straight forward, and mostly undisputed. For ease of reference, I will refer to the third respondent in this judgment as ‘SAPS’.

[4] The applicant was a police officer employed by SAPS as a sergeant. It was alleged that on 22 April 2005, the applicant committed misconduct relating to a protection order. The gist of the alleged misconduct was that the applicant had attended to a domestic violence complaint on 22 April 2005, with the suspect being one David Kgalabi Kgorimetso (Kgorimetso). The applicant took Kgorimetso to the police station where the protection order was explained to him. It was contended that the applicant informed Kgorimetso to pay R400.00 as bail, so he could be released, in circumstances where Kgorimetso had not been taken into custody and no bail was payable. In short, it was contended that the applicant misled Kgorimetso into believing he had to pay bail of R400.00 to be

released, which payment the applicant then appropriated for himself.

[5] The applicant was suspended on 6 July 2005, pending disciplinary proceedings to be held on the aforesaid misconduct charge. On or about 26 August 2005, the applicant was then formally charged with the aforesaid misconduct, and one Superintendent Thomson was appointed as the disciplinary hearing chairperson.

[6] The disciplinary hearing took place on 30 September 2005. The outcome of the hearing was conveyed to the applicant on 3 October 2005, in terms of which he was found guilty of the aforesaid misconduct charge, and his dismissal was recommended by the chairperson. The applicant was then dismissed on the same date. The applicant pursued an internal appeal against such dismissal on 6 October 2005, however this appeal was refused on 22 March 2006.

[7] The applicant then pursued an unfair dismissal dispute to the first respondent, as the bargaining council having jurisdiction in this instance. Case number PSSS 860-05/06 was allocated to the dispute. The second respondent was the arbitrator tasked by the first respondent to decide the matter.

[8] It appears that the matter was part heard and then set down again on 12 February 2009. The applicant failed to arrive at the hearing on 12 February 2009. In a dismissal ruling issued by the second respondent on the same date, it is recorded that the matter had been ongoing since 2007, that it had been postponed on at least three occasions, and that the applicant’s attorney was specifically notified of the hearing date already in November 2008. As a result, the applicant’s unfair dismissal dispute was dismissed by the second respondent.

[9] The applicant lodged a rescission application with the first respondent, seeking to rescind the dismissal of his dispute by the second respondent. This rescission application was however refused, bringing an end to the applicant’s unfair dismissal case in the bargaining council.

[10] In 2009, the applicant then challenged the refusal of his rescission application on review to the Labour Court. This review application was brought under the same case number as the case number in the current application (J1668/09). The review application came before Whitcher J on 26 April 2016, and the learned Judge dismissed the review application. No appeal was launched by the applicant against the refusal of his review application by Whitcher J.

[11] For all intents and purposes, that should have been the end of the matter. However, and on 30 September 2018, being close on two and a half years later, the applicant launched the current application. In the notice of motion, the applicant seeks the rescission of the order granted by Whitcher J on 26 April 2016 dismissing his review application. But not only that, the applicant’s

notice of motion also contains four further prayers, in which the applicant seeks the setting aside of the decision of the disciplinary

hearing chairperson on 30 September 2005 that he be dismissed, the setting aside of the decision of the appeals authority of SAPS

refusing his appeal, and lastly the setting aside of the decision by the Provincial Commissioner of SAPS confirming his dismissal. And finally, there is also a prayer to set aside the ruling on 12 February 2009 made by the second respondent that the applicant’s

case be dismissed because of his non-attendance at the arbitration on that date.

[12] In his founding affidavit supporting this application, the applicant stated that the application is two years late, and thus he accepted that condonation was required. In seeking condonation, the basis on which the applicant seeks to explain this material delay is somewhat perplexing. He contends, in a single paragraph, that he did not in the past have in his ‘possession’

any evidence to show that SAPS misled the Labour Court into believing that his dismissal was lawful and authorized. He states that only in January 2018 he enlisted the services of a private investigator to investigate the lawfulness of his dismissal. According to the applicant, this investigator concluded his task in September 2018, and from the outcome of this investigation it became clear that SAPS has misled the Court as to the lawfulness of his dismissal.

[13] The basis of the applicant’s assertion that his dismissal was unlawful is founded on a simple contention that the presiding officer of his disciplinary hearing that recommended his dismissal was not properly authorized by SAPS to conduct the disciplinary enquiry in the first place. This assertion is motivated by the SAPS Disciplinary Regulations (the Regulations), which, according to the applicant, prescribed that presiding officers in disciplinary hearings can only be appointed by either the National or Provisional Commissioners of SAPS, and in this case, the presiding officer in his disciplinary hearing was appointed by the West Rand Area Commissioner, thus rendering the appointment of the presiding officer to be ‘fraudulent and unlawful’.

[14] As stated above, SAPS opposed the application. In its opposition, SAPS raised two points in limine. The first point is that insofar as the application by the applicant is a rescission application, it would only apply to the order of Whitcher J of 26 April 2016, and in this regard rescission is not competent as the only basis to have challenged such order would have been to appeal. The second point in limine is that relief sought in the other paragraphs of the notice of motion fell foul of the principle of res judicata. In argument, counsel for SAPS also pointed out that insofar as the applicant seeks to challenge his dismissal on the basis of it being unlawful, this Court would in any event not have jurisdiction to decide such a case.

[15] Insofar as the merits of any rescission application is concerned, SAPS has pertinently raised in the answering affidavit that the applicant’s founding affidavit failed to make out a proper case for rescission as contemplated by section 165 of the LRA and / or Rule 16A of the Rules of this Court. SAPS has also pointed out that any rescission application would be ‘excessively late’.

[16] In my view, the applicant’s application can readily be disposed of on the basis of the aforesaid objections raised by SAPS, without even delving into the merits of the applicant’s complaints. The reasons for my view in this respect now follow.

Jurisdiction

[17] In Du Plessis v Public Protector and Others[1] the Court said:

‘Jurisdiction cannot be assumed or implied. It either exists or it does not. Jurisdiction is the power of the Court to decide a matter that has been brought before it. If the Court does not have the power to do so, it cannot consider the matter, no matter what the merits or equities may be …’

[18] Jurisdiction is determined on the basis of the case as pleaded by the applicant, which pleaded case in motion proceedings is determined by reference to the notice of motion and founding affidavit.[2] In the notice of motion in casu, the applicant has included four prayers in terms of which the applicant clearly seeks to set aside decisions taken by SAPS functionaries in the course of the disciplinary proceedings against him, as well as the decision of the second respondent as bargaining council arbitrator to dismiss his unfair dismissal case. This case is repeated in the founding affidavit. This is undoubtedly a review case. The question now is simple, being does the Labour Court have jurisdiction to entertain such a review application?

[19] The applicable review powers of the Labour Court are found in sections 145, 158(1)((g) and 158(1)(h) of the LRA. Section 145 however cannot apply, because it only relates to review applications concerning arbitration awards handed down by commissioners of the CCMA. As to section 158(1)(g), the applicant specifically refers to this section in his founding affidavit.[3] However, this provision can only apply to functions performed in terms of the LRA, and thus would only apply to the prayer and case of the applicant relating to the ruling of the second respondent dismissing his unfair dismissal case in the bargaining council. It cannot apply to any of the prayers relating to the decisions by the various internal disciplinary functionaries of SAPS in terms of which he was dismissed.

[20] This leaves section 158(1)(h).[4] The problem however is that the applicant has not pleaded any reliance on section 158(1)(h). Even if it can be said that the grounds as set out in his founding affidavit implies a reliance on section 158(1)(h), the point remains that the true gist of all his prayers to set aside the decisions of the various SAPS functionaries is nothing more than a challenge of his dismissal by SAPS. In this context, two problems arise for the applicant, as will next be dealt with.

[21] As stated, and at its core, everything the applicant has done in this case, from the outset, and even in the current application, is nothing else but a challenge of his dismissal by SAPS. This dismissal would certainly be a decision of the State in its capacity as employer, as contemplated by section 158(1)(h), which this Court in principle would have jurisdiction to consider and decide.[5] But that is not where the enquiry ends. In Mohlomi v Ventersdorp/Tlokwe Municipality and Another[6] the Court held:

‘The enquiry whether or not to entertain such a review application however does not stop just because it may be accepted that the Labour Court in general terms has jurisdiction to do so. Simply put, the fact that the Labour Court has jurisdiction/power does not mean that the court should exercise this power. In other words, and even though the court may have jurisdiction to consider such a review under s 158(1)(h), it does not mean that it is appropriate for it to exercise such power, especially where there are other specifically prescribed

alternative means by way of which the issue can be resolved …’

[22] In Chirwa v Transnet Ltd and Others[7] the Court dealt with an instance where an employee challenged her dismissal for poor work performance on review on the basis of the principle of legally, and the Court held as follows in this regard:[8]

‘… The LRA is the primary source in matters concerning allegations by employees of unfair dismissal and unfair labour practice irrespective

of who the employer is, and includes the state and its organs as employers.’

Ms Chirwa’s case is based on an allegation of an unfair dismissal for alleged poor work performance. The LRA specifically legislates the requirements in respect of disciplinary enquiries and provides guidelines in cases of dismissal for poor work performance. She had access to the procedures, institutions and remedies specifically designed to address the alleged procedural unfairness in the process of effecting her dismissal. She was, in my view, not at liberty to relegate the finely tuned dispute-resolution structures created by the LRA. If this is allowed, a dual system of law would fester in cases of dismissal of employees by employers, one applicable in civil courts and the other applicable in the forums and mechanisms established by the LRA.’

[23] The aforesaid means that the LRA has a unique scheme where it comes to resolving disputes that arise in the scope of the employment

relationship, and this even includes the State as employer.[9] The LRA creates a right to a fair dismissal and then provides for a prescribed dispute-resolution process to give effect to such right. At the heart of this dispute-resolution process lies the notion of fairness as between both employer and employee, which notion is incompatible with concepts such as unlawfulness or illegality or invalidity.[10]

[24] It must follow that in the context of the employment relationship in the public service, this Court when faced with a review application is duty bound to ascertain whether the decision to dismiss would be a decision normally susceptible to challenge under the auspices of what is defined as a dismissal in chapter VIII of the LRA, irrespective of the fact that the review applicant may label it as a legality challenge. If so, that dispute must be resolved by way of the proper prescribed processes under chapter VIII of the LRA in the forum properly and specifically designated to deal with such a dispute. In Public Servants Association of SA on behalf of De Bruyn v Minister of Safety and Security and Another[11] this was aptly described as follows:

‘The supposition that public servants had an extra string to their bow in the form of judicial review of administrative action, ie acts and omissions by the state vis-à-vis public servants, evaporated

when the Constitutional Court in Chirwa v Transnet Ltd & others, held that the dismissal of a public servant was not “an administrative act” as defined in PAJA and therefore not capable of judicial review in terms of that Act. Any uncertainty regarding the interpretation of the Chirwa judgment was removed in the subsequent decision in Gcaba v Minister for Safety & Security & others. The result is that a public servant is confined to the other remedies available to him or her.’

[25] It is of course true that under exceptional circumstances, this Court may decide to intervene in dismissal disputes placed before it by employees in the public service under the auspices of section 158(1)(h) of the LRA.[12] However, and in such a case, the applicant must make out a proper case of exceptional circumstances in the founding affidavit, which is of course dependent on the facts of every case.[13] However, important considerations would be issues such as whether failure to intervene would lead to grave injustice or whether it would be impossible to attain justice by other means.[14]

[26] In casu, the applicant did challenge his dismissal as an unfair dismissal to the first respondent as applicable bargaining council, which was the correct procedure to follow. That being so, the applicant cannot now change tack and attempt to challenge that same dismissal on the basis of the principle of legality to this Court. The applicant has in any event made out no case of exceptional circumstances as to why such an application should be entertained by this Court. For these reasons, section 158(1)(h) therefore cannot come to the assistance of the applicant.

[27] Insofar as the applicant seeks to rely on the assertion that his dismissal is unlawful, it is now trite that this Court does not have jurisdiction to entertain a challenge to the dismissal of an employee, under the LRA, on the basis that such dismissal is unlawful.[15] This view stems from the following dictum in Steenkamp and Others v Edcon Ltd[16]:

‘I think that the rationale for the policy decision to exclude unlawful or invalid dismissals under the LRA was that through the LRA the legislature sought to create a dispensation that would be fair to both employers and employees, having regard to all the circumstances, including the power imbalance between them. In this regard a declaration of invalidity is based on a 'winner takes all' approach. The fairness which forms the foundation of the LRA has sufficient flexibility built into it to enable a court or arbitrator to do justice between employer and employee. …’

As succinctly said in Shezi v SA Police Service and Others[17], referring specifically to the dicta in Steenkamp supra:

‘The effect of this judgment is that when an applicant alleges that a dismissal is unlawful (as opposed to unfair), there is no remedy

under the LRA and this court has no jurisdiction to make any determination of unlawfulness. …’

[28] In fact, and quite apposite to the case in casu, the Court in Phahlane v SA Police Service and Others[18] dealt with an instance where the applicant objected to the initiation of a disciplinary hearing based on alleged non-compliance with the Regulations, which the applicant in that case said rendered the disciplinary proceedings unlawful. The Court held, in response to this contention and case, as follows:[19]

‘… The cause of action in the present instance is clearly one of unlawfulness, in the form of an alleged breach of regulation 9, and no more.

In short, the pleadings do not disclose a cause of action over which this court has jurisdiction. …’

[29] The applicant’s pleaded case in casu is similarly a procedural complaint relating to alleged non-compliance with the Regulations, also relating to the appointment of the disciplinary hearing chairperson, which the applicant contends to be unlawful. It follows, in line with the trite legal position set out above, that this Court would have no jurisdiction to entertain such a case and grant the applicant any kind of relief pursuant thereto.

[30] Despite all the above difficulties, and as specifically raised by SAPS in its answering affidavit, the applicant faces a further insurmountable obstacle. That obstacle can be found in the fact that the applicant already pursued an unfair dismissal dispute to the first respondent, as applicable bargaining council, and ultimately lost, as the case was dismissed. He then challenged that same matter further to the Labour Court on review, and also lost when his review application was dismissed. It simply does not matter on what basis he lost. What matters is that his unfair dismissal case is finally disposed of, and therefore, it is simply not competent to afford the applicant any relief in the form of setting aside the dismissal of his case by the second respondent under the guise of section 158(1)(g), or the setting aside any of the decisions by SAPS giving rise to his dismissal.[20] That kind of relief would be prohibited by the exceptio res judicata. In SA National Defence Union and Another v Minister of Defence and Others; SA National Defence Union v Minister of Defence and Others[21] it was held:

‘The requisites for a valid defence of res judicata are that the matter adjudicated upon must have been for the same cause, between the same parties and the same thing must have been demanded …’

In Yellow Star Properties v MEC Department of Development Planning and Local Government[22] the Court amplified on this dictum in SA National Defence Union as follows:

‘…. it is necessary to stress not only that the parties must be the same but the same issue of fact or law which was an essential element

of the judgment on which reliance is placed must have arisen and must be regarded as having been determined in the earlier judgment.’

[31] In simple terms, the res judicata principle can hardly be better described than how it was done in MEC Department of Education, KwaZulu-Natal v Khumalo and Another[23], where the Court said:

‘Res judicata literally means "a matter already judged"; the doctrine is that the matter cannot be judged again. This is a presumption founded on public policy requiring litigation not to be endless, to be in good faith and to prevent the same claim being demanded more than once.'

[32] In this case, the parties to the dispute remain the same, the cause is the same, and what is ultimately demanded as consequential relief is the same. The second respondent as arbitrator and the Labour Court has already disposed of all of this. It seems that what the applicant has now done is to revisit the same issues, but under a new guise, being that the disciplinary hearing chairperson was irregularly and unlawfully appointed, which information he contends only came to his attention after the fact. Even accepting this is true, it simply does not matter. It cannot change what has already come to pass, and the fact that the applicant failed to place the issue of the alleged irregular and unlawful appointment of the disciplinary hearing

chairperson before the second respondent and Whitcher J cannot assist his case, as he simply cannot raise it later, once his case has been finally dismissed.[24]

[33] But even accepting for the purposes of argument that the applicant can competently bring another application, and raise legal grounds and facts not raised before, to substantiate the same relief, the principle of res judicata further contemplates that an applicant needs to raise all the issues upon which the applicant seeks relief, once, and up front, in the same application. Continued piecemeal litigation is equally contrary to public policy. As held in Du Plessis supra:[25]

‘It is entirely undesirable that a litigant brings one claim after another based on in essence the same lis between the same parties, simply by rotating different possible causes of action to justify the same ultimate relief. This principle

is often also expressed as the ‘once and for all rule’, and is nothing else but a manifestation of the exceptio res judicata. …’

[34] In Evins v Shield Insurance Co Ltd[26], the Court described the ‘once and for all rule’ as follows:

'… the rule is to the effect that in general a plaintiff must claim in one action all damages, both already sustained and prospective, flowing from one cause of action (see Cape Town Council v Jacobs 1917 AD 615 at 620; Oslo Land Co Ltd v The Union Government 1938 AD 584 at 591; Slomowitz v Vereeniging Town Council 1966 (3) SA 317 (A) at 330; Custom Credit Corporation (Pty) Ltd v Shembe (supra at 472). …. it is a well-entrenched rule. Its purpose is to prevent a multiplicity of actions and to ensure that there is an end to litigation.'

As further explained in Janse van Rensburg NO and Others v Steenkamp and Another; Janse van Rensburg and Others v Myburgh and Others[27]:

‘The scope of the “once and for all” rule was said, in the National Sorghum case (supra) at 241D–E, to require that all claims generated by the same cause of action be instituted in one action.’

[35] I am satisfied that in casu, the applicant is seeking to do nothing else, where it comes to bringing forward the purported new issue of the unlawful and irregular appointment of the chairperson, but instituting further proceedings between the same parties relating to the same cause of action.[28] As in fact said by the Court in Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union and Others:[29]

‘… What the appellant did in the present matter, however, was to attempt to circumvent these provisions of the law by launching new proceedings on the same issue, albeit on a different basis. That it cannot do …’

It follows that the applicant cannot keep litigating by just changing the grounds of his application, and the ‘once and for all’ rule must find application, bringing matters to an end.

[36] In sum, the issue of the alleged irregularly and unlawfulness of the appointment of the chairperson in the disciplinary proceedings against the applicant needed to be raised before the second respondent and Whitcher J in this Court. If it was not raised, it cannot be raised later, as the basis of the case remains the same. Once the review application is dismissed, the dismissal ruling of the second respondent stands. It will continue to stand no matter what new grounds the applicant may come up with at a later stage. That must therefore be the end of the matter for the applicant where it comes to all the prayers in his notice of motion seeking to set aside decisions taken by the various functionaries referred to therein.

[37] For all the reasons as set out above, I therefore conclude that the Labour Court has no jurisdiction to entertain the applicant’s application where it comes to prayers 2, 3, 4 and 5 in his notice of motion, in terms of which he seeks an order setting aside the decision of the disciplinary hearing chairperson, the decision that his internal appeal be refused and the ruling by the second respondent dismissing his unfair dismissal case in the bargaining council. The applicant’s application falls to be dismissed on this basis alone, without needing to consider the merits thereof or any issue of condonation for the late filing of the applicant’s application.

Rescission

[38] Rescission applications in the Labour Court are governed by section 165 of the LRA and / or Rule 16A of the Labour Court Rules.[30] As a general position, these provisions contemplate the following, as set out in Department of Correctional Services v Baloyi[31]:

‘It now well established in our law that a litigant affected by a judgment or order granted in default can have such a judgment or

order rescinded on the basis of showing that it was granted erroneously or by showing good cause for the default. In this respect

the court has a discretion to rescind a judgment or order erroneously granted or sought in the absence of an affected party. The order or judgment will also be erroneously granted if it is shown that there was an irregularity in the proceedings or that the court did not have the competency to grant the order or judgment. The authorities are in agreement that there is no need to show good cause where it has been shown that the default judgment was erroneously sought or granted. It has also been generally accepted that a judgment is erroneously granted if at the time of granting it, there existed facts which the court had not been aware of and that had it been aware, it would not have granted the judgment or the order …’

[39] In casu, the applicant seeks the rescission of the Order by Whitcher J of 26 April 2016. The applicant has however made out no case for rescission in line with the legal requirements for obtaining rescission. In simple terms, all the applicant is saying is that because he now has the so-called new information relating to the unlawfulness of his dismissal, which he did not place before Whitcher J at the time when the matter was heard, the Order of the learned Judge should be rescinded and he should be afforded the opportunity to place this new case before Court.

[40] It follows that the applicant does not seek rescission on the grounds of there being a mistake common to the parties, or that the Order of Whitcher J contains some ambiguity or error that needs to be corrected. The applicant also does not pursue a “good cause” rescission under the common law, which is what in essence is contemplated by Rule 16A(1)(b). This only leaves the requirement for rescission being granted on the basis or the Order of Whitcher J having been erroneously granted.

[41] In Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others[32] the Court dealt with a rescission application under Rule 42 of the Uniform Rules of the High Court, which is virtually identical to the provisions of section 165 of the LRA.[33] The Court in particular deal with rescissions under the category of the judgment (order) being erroneously granted. The Court summarized

the position as follows:[34]’

‘At the outset, when dealing with the “absence ground”, the nuanced but important distinction between the two requirements of rule 42(1)(a) must be understood. A party must be absent, and an error must have been committed by the court. Naturally, this might occur because the absent party will not be able to provide certain relevant information which would have an essential bearing on the court’s decision and, without which, a court may reach a conclusion that it would not have made but for the absence of the information. This, however, is not to conflate the two grounds which must be understood as two separate requirements, even though one may give rise to the other in certain circumstances.’

[42] In casu, the applicant was not absent at the proceedings before Whitcher J on 26 April 2016. The applicant has thus not met the first ‘absence’

requirement to succeed with a rescission application on the basis that the order was erroneously granted. For this reason alone, the applicant’s rescission application is rendered incompetent.

[43] Was an error committed? In my view, clearly not. The applicant has been heard before Whitcher J and has had the opportunity to argue and present his case, as he chose to present it. There was nothing standing in his way in this regard. There is further nothing to indicate that Whitcher J did not consider all that the applicant placed before the learned Judge. In this respect, the Court in Zuma supra held:[35]

‘Whether we consider this application in terms of rule 42 or in terms of the common law, to which I will turn my focus next, the insuperable problem that Mr Zuma is confronted with is that the law of rescission is clear: one cannot seek to invoke the process of rescission to obtain a re hearing on the merits. The reason for this is that, as stated by this Court in Daniel: “the general principle is that once a court has duly pronounced a final order, it becomes functus officio and has no power to alter the order”. Of course, rule 42 creates an exception to the doctrine of functus officio, but only in narrow circumstances. As stated in Chetty—

“a distinction is drawn between the rescission of default judgments, which had been granted without going into the merits of the dispute between the parties, and the rescission of final and definitive judgments, whether by default or not, after evidence had been adduced on the merits of the dispute. In the case of a default judgment granted without going into the merits of the dispute between the parties, the Court enjoyed the relatively wide powers of rescission . … In the case of a final and definitive judgment, whether by default or not, granted after evidence had been adduced, the Court was regarded as functus officio.”’

[44] In sum, and once the applicant’s case had been argued before, and heard by, Whitcher J in the Labour Court on 26 April 2016, and the learned Judge then handed down an order dismissing the review application, this Court is functus officio. The only avenue open for the applicant to challenge such Order was to have pursued an appeal. The applicant however did not appeal. For this reason as well, the applicant’s rescission application is rendered incompetent, and must fail. As was said in Zuma supra:[36] ‘Like all things in life, like the best of times and the worst of times, litigation must, at some point, come to an end. …’.

[45] The applicant has therefore failed to make out a case for rescission, in that the basic requirements for successfully obtaining a rescission of the Order of Whitcher J have not been satisfied. The Court is functus officio. The applicant’s rescission application must therefore be dismissed, without even considering any case for condonation relating to the late filing thereof, or the merits of the applicant’s so-called new case.

Costs

[46] The third respondent has asked for an award of costs. 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[37] 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 …’

[47] It is however clear from the above that it is not true that costs can never be awarded in employment law disputes before this Court. What is 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.[38] As held in Booi v Amathole District Municipality and Others[39]:

‘However, this is a labour matter and this court’s jurisprudence is settled: the ordinary rule that costs follow the result does not apply in labour matters. Rather, what emerges from the provisions of the LRA and the jurisprudence is that courts, when awarding costs in labour disputes, must consider what fairness demands and err on the side of not discouraging parties from

approaching the courts for the peaceful resolution of labour disputes. [54] Further, if costs are to be awarded in labour matters, there must be reasons that justify a court’s decision to depart from the position that a losing party should not be mulcted in costs in labour disputes…’

[48] In my view, the case in casu is unfortunately one which I believe justifies a departure from the ordinary principle that costs do not follow the result. The

applicant’s case was, truthfully described, hopeless. In Children’s Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others[40]:

‘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. …’

[49] The applicant’s case ticks all the boxes of hopelessness in terms of the dictum in Pioneer Foods supra. The applicant essence sought to conjure up a new case of purported unlawfulness, and then place it before this Court, when it must have been clear that this would never be competent, as it was never raised before. The applicant had the opportunity to properly ventilate his case in the bargaining council, but did not arrive at arbitration, and then had the opportunity to present his case to the Labour Court, but unfortunately lost. Then after more than two years, the applicant seeks to resurrect the challenge of his dismissal, but this time under the guise of a rescission and legality review. A modicum of proper reflection on the case should have made it clear to the applicant that rescission could never be competent, and that the issue of the challenge of his dismissal by SAPS was res judicata. There was also no credible evidence to sustain any case of rescission, rendering this Court functus officio.

[50] In bringing the application 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 (SAPS) to defend the case out of the pocket of the already long suffering taxpayers of this Country, which is not acceptable.[41] What in reality happened in this instance as abuse of process.[42] This Court has consistently said that this kind of unfounded litigation is deserving of costs orders.[43] The applicant must be told, in no uncertain terms, hopefully also serving as an example to others, that exercising his right of access to the Courts must be done in a responsible manner and always in compliance with the rules and processes of the Court.[44]

[51] 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.

Conclusion

[52] In conclusion, it is for all the reasons set out in this judgment, as aforesaid, that I had made the order that I did on 28 June 2022, as set out in paragraph 2, supra.

S Snyman

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Mr A W Baloyi of Dumezulu Inc Attorneys

For the Third Respondent: Advocate S B Nhlapo

Instructed by:

The State Attorney – Johannesburg

[1] (2020) 41 ILJ 919 (LC) at para 20. See also Gcaba v Minister for Safety and Security and Others (2010) 31 ILJ 296 (CC) at para 74; Makhanya v University of Zululand2009) 30 ILJ 1539 (SCA) at para 23. See also SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529 (SCA) at para 8.

[2] See Gcaba (supra) at para 75; Mbatha v University of Zululand (2014) 35 ILJ 349 (CC) at para 157; Ekurhuleni Metropolitan Municipality v SA Municipal Workers Union on behalf of Members (2015) 36 ILJ 624 (LAC) at para 21; Moodley v Department of National Treasury and Others (2017) 38 ILJ 1098 (LAC) at para 37; Mohlomi v Ventersdorp/Tlokwe Municipality and Another (2018) 39 ILJ 1096 (LC) at para 42; Public Servants Association on behalf of Members v Minister of Health and Others (2019) 40 ILJ 193 (LC) at para 15.

[3] Section 158(1)(g) provides that: ‘The Labour Court may- …. subject to section 145, review the performance or purported performance of any function provided for in this Act on any grounds that are permissible in law …’.

[4] Section 158(1)(h) provides that: ‘The Labour Court may … review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law …’.

[5] See Merafong City Local Municipality v SA Municipal Workers Union and Another (2016) 37 ILJ 1857 (LAC) at para 36.

[6] (2018) 39 ILJ 1096 (LC) at para 34.

[7] (2008) 29 ILJ 73 (CC).

[8] Id at 64 – 65. See also Gcaba (supra) at para 56; Hendricks v Overstrand Municipality and Another, (2015) 36 ILJ 163 (LAC) at paras 10 – 12.

[9] Public Servants Association of SA on behalf of de Bruyn v Minister of Safety and Security and Another (2012) 33 ILJ 1822 (LAC) at para 26.

[10] Mohlomi (supra) at para 39.

[11] (2012) 33 ILJ 1822 (LAC) at para 26. See also Chirwa (supra) at paras 41 and 124; Gcani v Minister of Justice and Correctional Services and Others (2019) 40 ILJ 358 (LC) at para 28.

[12] Booysen v Minister of Safety and Security and Others (2011) 32 ILJ 112 (LAC) at para 54; Minister of Labour and Another v Public Servants Association of SA and Another (2017) 38 ILJ 1075 (LAC) at para 52; Mohlomi (supra) at para 44.

[13] Mohlomi (supra) at para 47.

[14] See Member of the Executive Council for Education, North West Provincial Government v Gradwell (2012) 33 ILJ 2033 (LAC) at para 46; Madzonga v Mobile Telephone Networks (Pty) Ltd [2013] ZALCJHB 232 at para 63; Zondo and Another v Uthukela District Municipality and Another (2015) 36 ILJ 502 (LC) at para 17.

[15] See Neumann v Western Cape Education Department and Others (2021) 42 ILJ 561 (LC) at paras 13 – 14; Botes v City of Johannesburg Property Co SOC Ltd and Another (2021) 42 ILJ 530 (LC) 16; Mthimkhulu v Standard Bank of SA (2021) 42 ILJ 158 (LC) at para 18; Singhala v Ernst & Young Inc and Another (2019) 40 ILJ 1083 (LC).

[16] 2016 (3) SA 251 (CC) at para 116.

[17] (2021) 42 ILJ 184 (LC) at para 12

[18] (2021) 42 ILJ 569 (LC) para 7.

[19] Id at paras 9 – 10.

[20] Du Plessis (supra) at para 31.

[21] (2003) 24 ILJ 2101 (T) at 2109H-J. See also National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors (Pty) Ltd [2000] ZASCA 159; 2001 (2) SA 232 (SCA) at 239F H; Makhanya (supra) at paras 45, 46 and 98; Score Supermarket Kwathema v Commission for Conciliation, Mediation and Arbitration and Others (2009) 30 ILJ 215 (LC) at para 29 – 31.

[22] 2009 (3) All SA 475 (SCA) at para 22. See also Gauteng Shared Services Centre v Ditsamai (2012) 33 ILJ 348 (LAC) at paras 13 – 14.

[23] (2010) 31 ILJ 2657 (LC) at para 32. See also National Education Health and Allied Workers Union on behalf of Kgekwane v Department of Development Planning and Local Government, Gauteng (2015) 36 ILJ 1247 (LAC) at para 26; Bidvest Food Services (Pty) Ltd v National Union of Metalworkers of SA and Others (2015) 36 ILJ 1292 (LC) at para 24.

[24] See Du Plessis (supra) at paras 33 and 34 and authorities referred to therein.

[25] Id at para 36.

[26] 1980 (2) SA 814 (A) at 835C-E.

[27] [2009] 1 All SA 539 (SCA) at para 27. See also Truter and Another v Deysel [2006] JOL 16961 (SCA) at para 22; Symington and Others v Pretoria-Oos Privaat Hospitaal Bedryfs (Pty) Ltd [2005] 4 All SA 403 (SCA) at para 26.

[28] Compare Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union and Others (1999) 20 ILJ 82 (LAC) at paras 5, 7, 10 – 11.

[29] (1999) 20 ILJ 82 (LAC at para 13. See also Sgt Pepper's Knitwear and Another v SA Clothing and Textile Workers Union and Others (2012) 33 ILJ 2178 (LC) at para 28.

[30] Rule 16A reads: ‘The court may, in addition to any other powers it may have- (a) of its own motion or on application of any party affected, rescind or vary any order or judgment- (i) erroneously sought or erroneously granted in the absence of any party affected by it; (ii) in which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; (iii) granted as the result of a mistake common to the parties, or (b) on application of any party affected, rescind any order or judgment granted in the absence of that party’. In turn, section 165 reads: ‘The Labour Court, acting of its own accord or on the application of any affected party may vary or rescind a decision, judgment or order- (a) erroneously sought or erroneously granted in the absence of any party affected by that judgment or order; (b) in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or (c) granted as a result of a mistake common to the parties to the proceedings’.

[31] (2016) 37 ILJ 2852 (LC) at para 13.

[32] [2021] ZACC 28; 2021 JDR 2069 (CC).

[33] Rule 42(1) reads: ‘The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary: (a) an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby; (b) an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission; (c) an order or judgment granted as the result of a mistake common to the parties’.

[34] Id at para 57.

[35] Id at para 68. See also Ekurhuleni Metropolitan Municipality v Spies and Others (2014) 35 ILJ 1283 (LC) at para 10.

[36] Id at para 1.

[37] (2021) 42 ILJ 2371 (CC) at para 35.

[38] 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 …’.

[39] (2022) 43 ILJ 91 (CC) at para 60.

[40] 2013 (2) SA 213 (SCA) at para 35.

[41] See Botes (supra) at para 50; Moses v Commission for Conciliation, Mediation and Arbitration and Others (2019) 40 ILJ 2371 (LC) para 21.

[42] Compare Pillay v Santam Ltd and Another (2020) 41 ILJ 2695 (LC) at para 19.

[43] 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.

[44] See 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.