South Africa Municipal Workers Union Obo O D Ngalo and Others v Mangaung Metropolitan Municipality and Others (J2038/19) [2022] ZALCJHB 5 (1 February 2022)

Reportable

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case No: J2038/19

In the matter between:

SOUTH AFRICAN MUNICIPAL WORKERS UNION

OBO O D NGALO AND OTHERS

Applicant

and

MANGAUNG METROPOLITAN MUNICIPALITY

First Respondent

THE MUNICIPAL MANAGER: MANGAUNG

METROPOLITAN MUNICIPALITY/

ADV. DANKISO MEA NO

Second Respondent

HEAD OF DIRECTORATE: CORPORATE SERVICES:

MANGAUNG METROPOLITAN MUNICIPALITY –

MR DAVID NKAISEN NO

Third Respondent

NALEDI LOCAL MUNICIPALITY

Fourth Respondent

Heard : In chambers

Delivered: 01 February 2022 (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 01 February 2022)

JUDGMENT – LEAVE TO APPEAL

NHLAPO, AJ

Introduction

[1] What serves before me is an application for leave to appeal against the judgment and order of this Court handed down on 01 June 2020. There is also a condonation application for the late application for leave to appeal. The reasons provided for the lateness are accepted and thus condonation is granted.

[2] What this Court was invited to do, by the applicant, was to exercise its discretion and ignore non-compliance with the Practice Manual on the premise that it would be entirely impractical and illogical to amend the entire application to be an ex parte application.

[3] The application for leave to appeal is predicated on the grounds that I failed to exercise my discretion judicially and/or that my discretion was influenced by wrong principles and/or a misdirection on the facts and/or that I reached a decision which in the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles. It is further submitted by the applicant that Tlhotlhalemaje J did not strike the matter from the roll for lack of compliance with clause 13 of the Practice Manual, but for lack of urgency.

[4] My view is that Tlhotlhalemaje J made his decision that the application for contempt was not in compliance with the Practice Manual.

Tlhotlhalemaje J also applied his mind on whether or not there were any circumstances that called for a deviation to condone the

non-compliance with provisions of the Practice Manual. Tlhotlhalemaje’s J finding in that regard was that there was no basis for doing so.

[5] Despite the findings of Tlhotlhalemaje J, the applicant put before me the same application for contempt without any adjustment to the facts that were before Tlhotlhalemaje J. In essence, the same contempt application and facts presented to Tlhotlhalemaje J, was put before this Court for adjudication asking for the same relief. I was further requested to exercise the same judicial discretion that was exercised by Tlhotlhalemaje J premised on the same facts.

[6] The respondent defence on this aspect was that of res judicata premised upon the determination made by Tlhotlhalemaje J.

[7] With regards to the defence of res judicata and in view of what I was invited to order by the applicant, it is important to consider the principle as set out by the Constitutional

Court in Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation & Others[1] where the following was stated:

[110] The Commissioner rightly discerned that the “real issue” between the parties was whether the judgment of the Supreme Court of Appeal, which rebuffed Ascendis’s attempt to revoke Merck’s patent, conclusively determined the patent’s validity. Throughout, the parties’ contest has been about nothing other than whether Merck’s patent is valid. Why else are they litigating? That has been the issue and the sole issue all along. And it is the issue here. In my view, that question – the patent’s validity – has been conclusively determined between these parties. In lawyer speak, it is res judicata.

[111] In differing from the first judgment, I borrow with appreciation from its thorough overview of the principles. The doctrine of res judicata has ancient roots as an implement of justice. It seeks to protect litigants and the courts from never ending cycles of litigation. Its strict terms applied when a later dispute involves the same party, seeking the same relief, relying on the same cause of action.

[112] But the doctrine’s roots lay in good sense and fairness. This demanded wider application, that barred repeat cycles of litigation on less stringent exaction of the “same cause of action” requirement. And that happened. First, in Boshoff, in the early twentieth century, and then through a line of more recent Appellate Division and Supreme Court of Appeal decisions.

[113] And so it has become well accepted that enforcing the requirements of res judicata should yield to the facts in each

case. Thus, the doctrine was enforced when a plaintiff demanded the same thing on the same ground, or (which is the same) on the same cause for relief, or further, where the same issue had been subjected to final previous judicial determination. And the breadth of what is required when repeat litigation is barred is still being developed. The Supreme Court of Appeal has recently remarked that there is “no reason in principle why a court cannot relax [even] the same person requirement”.

[114] The label “issue estoppel” came to refer to instances where the same cause of action requirement was not rigorously enforced. Initially, it was contested whether issue estoppel was part of our law and not some alien innovation. Happily, this debate has been put to rest. Issue estoppel as an extension of res judicata is a firm part of our law. And so it should be, for whatever the sobriquet it was merely an extension of the well-established principles of res judicata. That is why there is no need here to reinvent res judicata.

[8] In the application that was before Tlhotlhalemaje J the aspect of compliance with clause 13 of the Practice Manual was also in issue

hence it was determined in that application that there was non-compliance. The same issue arises in this application premised on

the same facts and asking for the same relief. In essence, the applicant demanded the same thing on the same ground, or (which is the same) on the same cause for relief.

[9] In response to such a request, the respondent raised the defence of res judicata.

[10] I am not inclined to exercise my discretion differently from that of Tlhotlhalemaje J. In any event, the same issue is presented before me that was already determined by this Court, which entails that the defence of res judicata should succeed to the extent that a deviation is sought from clause 13 of the Practice Manual.

[11] For these reasons, I am persuaded that the applicant has failed to make out a case that another court might reasonably arrive at a decision different to the one reached by this Court.

[12] The respondents have not filed any submissions, and I am therefore not inclined to award costs against the applicant.

[13] Accordingly, the following order is made;

Order:

1. The condonation application is granted.

2. The application for leave to appeal is dismissed.

3. There is no order as to costs.

___________________________

S B Nhlapo

Acting Judge of the Labour Court of South Africa

Appearances:

For Applicant: G Fourie SC and S Corlett

Instructed by:

Kramer Weihmann and Joubert Attorneys

For the Respondent: H Molotsi SC

Instructed by: Rampai

Attorneys

[1] 2020 (1) BCLR 1 (CC)

Applicant

MANGAUNG METROPOLITAN MUNICIPALITY

First Respondent

ADV. DANKISO MEA NO

Second Respondent

MR DAVID NKAISEN NO

Third Respondent

NALEDI LOCAL MUNICIPALITY

Fourth Respondent

[1] What serves before me is an application for leave to appeal against the judgment and order of this Court handed down on 01 June 2020. There is also a condonation application for the late application for leave to appeal. The reasons provided for the lateness are accepted and thus condonation is granted.

[2] What this Court was invited to do, by the applicant, was to exercise its discretion and ignore non-compliance with the Practice Manual on the premise that it would be entirely impractical and illogical to amend the entire application to be an ex parte application.

[3] The application for leave to appeal is predicated on the grounds that I failed to exercise my discretion judicially and/or that my discretion was influenced by wrong principles and/or a misdirection on the facts and/or that I reached a decision which in the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles. It is further submitted by the applicant that Tlhotlhalemaje J did not strike the matter from the roll for lack of compliance with clause 13 of the Practice Manual, but for lack of urgency.

[4] My view is that Tlhotlhalemaje J made his decision that the application for contempt was not in compliance with the Practice Manual.

Tlhotlhalemaje J also applied his mind on whether or not there were any circumstances that called for a deviation to condone the

non-compliance with provisions of the Practice Manual. Tlhotlhalemaje’s J finding in that regard was that there was no basis for doing so.

[5] Despite the findings of Tlhotlhalemaje J, the applicant put before me the same application for contempt without any adjustment to the facts that were before Tlhotlhalemaje J. In essence, the same contempt application and facts presented to Tlhotlhalemaje J, was put before this Court for adjudication asking for the same relief. I was further requested to exercise the same judicial discretion that was exercised by Tlhotlhalemaje J premised on the same facts.

[6] The respondent defence on this aspect was that of res judicata premised upon the determination made by Tlhotlhalemaje J.

[7] With regards to the defence of res judicata and in view of what I was invited to order by the applicant, it is important to consider the principle as set out by the Constitutional

Court in Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation & Others[1] where the following was stated:

[110] The Commissioner rightly discerned that the “real issue” between the parties was whether the judgment of the Supreme Court of Appeal, which rebuffed Ascendis’s attempt to revoke Merck’s patent, conclusively determined the patent’s validity. Throughout, the parties’ contest has been about nothing other than whether Merck’s patent is valid. Why else are they litigating? That has been the issue and the sole issue all along. And it is the issue here. In my view, that question – the patent’s validity – has been conclusively determined between these parties. In lawyer speak, it is res judicata.

[112] But the doctrine’s roots lay in good sense and fairness. This demanded wider application, that barred repeat cycles of litigation on less stringent exaction of the “same cause of action” requirement. And that happened. First, in Boshoff, in the early twentieth century, and then through a line of more recent Appellate Division and Supreme Court of Appeal decisions.

[114] The label “issue estoppel” came to refer to instances where the same cause of action requirement was not rigorously enforced. Initially, it was contested whether issue estoppel was part of our law and not some alien innovation. Happily, this debate has been put to rest. Issue estoppel as an extension of res judicata is a firm part of our law. And so it should be, for whatever the sobriquet it was merely an extension of the well-established principles of res judicata. That is why there is no need here to reinvent res judicata.

[8] In the application that was before Tlhotlhalemaje J the aspect of compliance with clause 13 of the Practice Manual was also in issue hence it was determined in that application that there was non-compliance. The same issue arises in this application premised on the same facts and asking for the same relief. In essence, the applicant demanded the same thing on the same ground, or (which is the same) on the same cause for relief.

[9] In response to such a request, the respondent raised the defence of res judicata.

[10] I am not inclined to exercise my discretion differently from that of Tlhotlhalemaje J. In any event, the same issue is presented before me that was already determined by this Court, which entails that the defence of res judicata should succeed to the extent that a deviation is sought from clause 13 of the Practice Manual.

[11] For these reasons, I am persuaded that the applicant has failed to make out a case that another court might reasonably arrive at a decision different to the one reached by this Court.

[12] The respondents have not filed any submissions, and I am therefore not inclined to award costs against the applicant.

[13] Accordingly, the following order is made;

For Applicant:

G Fourie SC and S Corlett

Instructed by:

Kramer Weihmann and Joubert Attorneys

Instructed by:

Rampai Attorneys