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Not reportable

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: J 579/11

In the matter between:

PROFFESSOR SOLEY J.T ..............................................................................First Applicant

DR VAN STADEN S.L ................................................................................Second Applicant

PROFFESSOR BOOTH K ..............................................................................Third Applicant

and

UNIVERSITY OF PRETORIA ......................................................................First Respondent

PROFESSOR MADEKUROZWA ............................................................Second Respondent

Heard: 05 December 2012

Delivered: 24 December 2012

Summary: Interlocutory applications: Application to stay; Application for leave to amend the response to the statement of claim and application for an order to enrol matter for hearing in terms of Rule 6(5)(a) of the Rules of the Labour Court.

JUDGMENT

AC BASSON J

Introduction

[1] In these (interlocutory) proceedings, the first respondent (hereinafter referred to as “the university”) has instituted an application for leave to amend its statement of defence to the statement of claim that was filed on 8 April 2011 and for an order staying the proceedings in this Court (the Labour Court) under case number J579/2011 pending the final determination of subsequent proceedings instituted by the second respondent (Prof Madekurozwa – hereinafter referred to as “Madekurozwa”) against the university in the North Gauteng High Court.

[2] In a counter-application, the applicants (Prof Soley, Dr Van Staden and Prof Booth) are seeking an order directing that the matter be enrolled in this Court for hearing in terms of Rule 6(5)(a) of the Rules of the Labour Court. (For convenience, I will continue to refer to the three individual applicants collectively as “the applicants” with the understanding that they are the applicants in the main application pending before this Court.) The applicants argue that true justice will not be served if their case is not enrolled because of further delays resulting from a stay of their matter which is pending before this Court.

[3] This Court is only called upon to decide on the three interlocutory applications before it. The Court is not called upon to decide the merits of the main application nor is this Court called upon to speculate on what the outcome of the pending High Court application would be. (See hereunder.) I have, however, taken the liberty of making some observations in respect of the prospects of success in the High Court action but have done so strictly in arriving at a decision whether this Court should stay the pending proceedings in the Labour Court pending the outcome of the High Court action instituted by Madekurozwa. These observations remain what they are and this Court is aware of the fact that evidence will be led in the High Court to determine the merits of the action referred to it.

Background: Labour Court Proceedings

[4] The three applicants and the second respondent (Madekurozwa) are employed by the university in its Faculty of Veterinary Science. They are currently lodged in a dispute which essentially centres on certain allegations made by Madekurozwa claiming (or at the very least insinuating) that the applicants are racists. In terms of proceeding pending before this Court, the applicants in turn lodged a dispute against the university in which they, inter alia, allege that the university is discriminating against them on the basis of race. (I will return to their claim in more detail herein below.)

[5] At the outset, it should be made clear that this Court is not called upon to pronounce on the veracity of the claims of racism made by Madekurozwa against the applicants nor on the bona fides of Madekurozwa in making these claims in so far as it is necessary to determine whether Madekurozwa has made a protected disclosure to the university. As already pointed out, this dispute on the merits is still pending before the High Court.

[6] Very briefly, the facts on which the applicants rely in their statement of claim are as follows: In a letter dated 28 August 2009, Madekurozwa alleged that Van Staden and other White colleagues have a lack of trust and respect for Black lecturers. She further alleged that Black lecturers were not supported and were patronized by Van Staden and other academic staff of a lesser rank and academic qualifications. She further alleged that Van Staden is a racist because of an incident that took place on 27 August 2009 relating to the loading of Van Staden’s power point presentation which Madekurozwa allegedly did not arrange 10 minutes before the lecture. On 31 August 2009, Van Staden wrote a letter to the Dean of the Faculty of Veterinary Science and gave her account of the events in response to the allegations made by Madekurozwa. On 11 September 2009, Madekurozwa in a letter, made further allegations against the three applicants. Madekurozwa sent this letter to the Transformation Committee, Faculty of Veterinary Science and the Black Veterinary Forum. Madekurozwa again accused the applicants of being racists. The problem culminated in the filing of grievances, investigations and offers for mediation. On 26 November 2010, the applicants, after exhausting the internal grievance procedures, referred a dispute to conciliation in terms of the Employment Equity Act¹ (“the EEA”). On 2 December 2010, the university summonsed the applicants to a preliminary investigation into their alleged misconduct and threatened to discipline them. On 8 December 2010, the applicants referred a further dispute because of this threat to discipline them. It is common cause that no disciplinary action was ever instituted against them.

[7] As already pointed out, on 8 April 2011, the applicants filed a statement of case under the EEA. The applicants state in their statement of claim that the allegations levelled against them by Madekurozwa were untrue and that the allegations constituted racist accusations towards them and towards White academic staff in general. The applicants further claim that the university had unfairly discriminated against them by failing to deal properly- or at all - with their grievance against Madekurozwa. The applicants also seek an order from the Labour Court that the failure by the university to take timeous disciplinary action against Madekurozwa amounts to unfair discrimination against them on the ground of race which is prohibited by the EEA and that such conduct also violates their contracts of employment. The applicants further seek an order compelling the university to pay compensation and/or damages to them in the sum of R 300 000.00 each or the maximum allowable by law under section 50(1)(d) or (e) of the EEA.²

[8] It is common cause that the university only decided to act and institute disciplinary proceedings against Madekurozwa after the statement of claim was served on the university. Such disciplinary proceedings were only instituted on 21 April 2011. By this time a long delay had already occurred and the applicants had to live with the stigma of being branded racists by a colleague.

[9] On 10 June 2011, the university filed its statement of defence in which it recorded that it had at last instituted disciplinary action against Madekurozwa. The disciplinary process that has been instituted against Madekurozwa will consider, inter alia, whether Madekurozwa has committed misconduct by making false allegations of racism against the applicants. The university further pleads that it has no knowledge as to the truth of Madekurozwa’s allegations of racism against the applicants but accepts that to date Madekurozwa has failed to substantiate these allegations or to satisfy the university as to the truth of these allegations of racism. What is of importance is the fact that the university pleads, and also did so in the High Court proceedings (see herein below) that there is, according to the university, no protected disclosure. The university further clearly states that it will proceed with disciplinary action against Madekurozwa in the event the High Court dismisses the action pending before it.

[10] The disciplinary hearing against Madekurozwa was postponed by the chairperson of the hearing (Adv K Moroka SC) pending the determination of an action to be brought before this Court against the university for protection under the PDA. Madekurozwa (subsequent to the filing of the statement of claim in this Court), however, elected to institute an action for a declaratory order in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act³ (PEPUDA) before the North Gauteng High Court.

[11] Madekurozwa further did not enter any appearance to defend the Labour Court matter despite the fact that she could have defended the matter by raising the defence of a protected disclosure in this Court. Instead she has elected to approach the North Gauteng for a declaratory order that her disclosure falls within the ambit and scope of the protection afforded by PEPUDA.

[12] It is further common cause that no order has been granted by this Court interdicting the disciplinary enquiry on the basis that Madekurozwa has made a protected disclosure as contemplated by the Protected Disclosure Act⁴.(I will return to the High Court proceedings herein below.)

[13] The applicants submitted that Madekurozwa is patently participating in dilatory conduct and is engaging in impermissible forum shopping which undermines the dispensing of justice, particularly in this Court. It was further submitted that the university, by seeking an order to stay the proceedings in the Labour Court seeks this Court’s stamp of approval for this conduct.

[14] In August 2011, the applicants submitted a draft pre-trail minute to the university and on 26 August, the applicants’ attorneys delivered a notice calling upon the university to attend a pre-trail conference. The notice was ignored and to date the pre-trail minutes remains unsigned. The applicants also submitted that this failure to expeditiously hold a pre-trail conference should weigh heavily against the university in deciding the balance of convenience in the application before this Court as it demonstrates, according to the applicants, that the university is intent on delaying the Labour Court proceedings.

[15] The present application for leave to amend and to stay the Labour Court proceedings was filed on 14 December 2011.

The High Court Application

[16] On 17 June 2011- after the statement of claim and statement of defence have been served, - Madekurozwa launched an action in the North Gauteng Division of the High Court against the university claiming that the disciplinary proceedings instituted against her constituted an “occupational detriment” in terms of the PDA. She is seeking a declaratory order that the university’s institution of disciplinary action against her is unlawful and invalid.⁵ She further seeks an order declaring that the allegations contained in the letter, including the allegations of racism against the applicants were made in good faith and in the reasonable believe of their truthfulness. She alleged that the information contained in the letter shows or tends to show unfair discrimination as contemplated by the PEPUDA and consequently the information fall within the ambit and scope of the protection afforded by PEPUDA.

[17] The university defended the High Court action and stated that, should Madekurozwa be unsuccessful, it intends to pursue the disciplinary proceedings against Madekurozwa. Madekurozwa did not cite the applicants as defendants in the action before the High Court.

[18] The university filed a third party notice and joined the applicants (Prof Soley, Dr van Staden and Prof Booth) as third parties in the High Court action and sought a stay of those proceedings pending finalisation of the Labour Court proceedings, alternatively a direction to transfer the matter to the Labour Court. The third parties (the applicants) filed a plea and raised inter alia a special plea of lis alibi pendens.

[19] It was agreed by the parties that the action would be postponed sine die with no order as to costs and that only the special plea would be argued before the High Court.

[20] In support of this plea, it was, inter alia, claimed that the facts and allegations that form the subject matter of the matter before the High Court were essentially the same as that which would be raised before the Labour Court.

[21] On 6 September 2012, the High Court delivered its judgment and declined to grant either order ruling that the matter was not lis pendens:

1. Firstly, with reference to the requisites of the plea of lis alibi pendens, the High Court pointed out that the plaintiff, Madekurozwa, did not cite the third parties (the three applicants in the pending proceedings in the Labour Court) in the action in the High Court and that in the premises no lis existed between the plaintiff (Madekurozwa) and the third parties (the three applicants).

2. Secondly, and in the alternative, the Court held that the litigation in the Labour Court and the High Court is not based on the same cause of action. Moreover, in the Labour Court, the applicants seek no relief against Madekurozwa: She is merely cited as a result of her direct and substantial interest and in consequence of the fact that the orders sought may affect her rights. The letter written by Madekurozwa is only referred to in the pending Labour Court matter in order to sustain a cause of action against the university.

[22] The High Court accordingly dismissed the special plea of lis alibi pendens. The result of this order is that the action brought in the High Court by Madekurozwa will proceed on the merits at a time yet to be allocated.

[23] The High Court further accepted the arguments on behalf of both the university and Madekurozwa aimed at resisting the applicants’ prayers for a stay of the High Court proceedings or their transfer to the Labour Court.

Interlocutory applications before this Court

[24] The university argued that it is only logically that the application for leave to amend should be heard first as it contains the application to stay and the application to amend its statement of response. As already pointed out, the university is seeking an order to stay the Labour Court proceedings pending the final determination of Madekurozwa’s High Court action and secondly an order granting it leave to amend its response to the applicants’’ statement of claim in accordance with its notice of intention to amend dated 26 October 2011. As will appear more fully herein below, I have decided to dismiss the application for leave to amend. Consequently, the application for leave to stay should also be dismissed. I have, however, nonetheless decided to deal with the application to stay separately although I have dismissed the application for leave to amend.

[25] At the outset, I should point out that Mr Freund on behalf of the university did not aggressively pursue the point that the Labour Court proceedings should be stayed. He was, however, adamant that this Court should allow it to amend it pleadings. I will now proceed to deal with the application to stay first.

Application to stay the Labour Court proceedings

[26] At the outset, it is accepted that the applicants have a statutory right to come before this Court and have their day in Court. It is also accepted that an integral part of this right is the principle that the statutory dispute resolution structure provided for in the Labour Relations Act 66 of 1995 is aimed at resolving labour dispute expeditiously and without undue delay. The dispute that is before this Court falls within the exclusive jurisdiction of this Court. Almost 21 months have now passed and the applicants are nowhere near exercising their statutory right to have their dispute placed before this Court without unnecessary and unreasonable delays.

[27] I am of the view that the order that the university is seeking will only result in a further delay in the proceedings pending before this Court: The university is seeking an order to stay the Labour Court proceedings “pending the final determination” of the High Court proceedings. Needless to say that the present legal dispensation allows for appeals to at least three possible forums once the High Court has heard the matter. A stay may therefore potentially result in an indefinite postponement of the applicants’ case pending before this Court. In order to avoid further delays, the applicants are seeking an order directing that the matter be enrolled for hearing in terms of Rule 6(5)(a) of the Rules of the Labour Court (the third interlocutory application. I will deal with that application herein below).

[28] It was submitted on behalf of the university that the High Court’s judgment may dispose of a number of issues pending before the Labour Court. It was further submitted that there will be a material overlap between the issues in the High Court proceedings and the issues in the Labour Court proceedings. The main issue, so it was submitted, will be whether Madekurozwa’s allegations of racism against the applicants were true or were at least made in good faith and, if so, whether the PDA prohibited the university from taking disciplinary steps against her. It was therefore submitted that this will lead to a duplication in processes which is not in the interest of justice. More in particular, it was submitted that the same evidence will be led before the High Court and the Labour Court in respect of whether a protected disclosure was made. Lastly it was submitted that a finding by the High Court that Madekurozwa made a protected disclosure and consequently that the failure of the university to hold a disciplinary enquiry will be unlawful, will materially impact on the proceedings in this Court.

[29] I do not agree with these submissions for the following reasons:

1. It is common cause on the facts before the Labour Court that Madekurozwa did not make a protected disclosure. Madekurozwa has, by not entering opposition to the Labour Court matter, therefore effectively waived her right to defend the pending proceedings before the Labour Court. There exists therefore no reason to wait for a determination by the High Court about whether a protected disclosure has been made in light of the fact that on the pleadings before this Court, it is common cause that no protected disclosure has been made.

2. The issues pending in the High Court and those pending in the Labour Court are not the same.⁶ The causes of actions are further based on two different actions. The plea of lis pendens failed for that reason in the High Court. I am in agreement that it must logically follow that this application must fail for the same reason.⁷ Furthermore, there is no lis in the Labour Court proceedings between the applicants and Madekurozwa and no relief is sought against her. Consequently, it follows that a finding by either court will not render that in the other res judicata. There is therefore no basis for a stay of the present proceedings pending the High Court’s ruling on Madekurozwa’s claim. Furthermore, the applicants have appealed the costs order alone and in the absence of abandonment thereof the university is bound by that judgment. It is not for this Court to revisit the issue as that is now res judicata.

3. The claim against the university instituted by the applicants in this matter is based on the EEA and the contract of employment. The Labour Court has exclusive jurisdiction over a dispute arising from the EEA. Furthermore, the High Court does not have equitable jurisdiction as the Labour Court has.⁸ More in particular, one of the causes of action is the contention that the university is vicariously liable and responsible in terms of section 60(3) of the EEA for the racist comments made by Madekurozwa in terms of the complaints raised by her on 26 August 2009 and 11 September 2009. Madekurozwa has not sought to declare that a protected disclosure has been made. Moreover, it makes no sense to stay an action in the Labour Court on an issue over which the High Court has no jurisdiction.

4. The applicants also contended that the pending lis before this Court came first. This is borne out by the facts.

5. One of the fundamental complaints in the applicants’ statement of claim is that the university’s delay in dealing with the complaints against Madekurozwa only served to perpetuate their suffering as a result of the stigma attached to them being branded racists. I am in agreement that delaying the pending matter before the Labour Court will further undermine the very purpose of the dispute pending before this Court and which forms the basis of the dispute before this Court.

[31] There is, in my view, no reason to stay these proceedings in light of these facts.

Legal Principles

[32] The Labour Court has inherent jurisdiction to prevent abuse of their processes by staying proceedings in certain circumstances. The power to do so will be exercised sparingly and only in exceptional circumstances.⁹ In this regard, the Court has the same inherent powers that a High Court has.¹⁰ The authors Herbstein and Van Winsen¹¹ point out that ‘[s]trong grounds must be shown to justify a court in staying an action, for “the courts of law are open to all, and it is only in very exceptional circumstances that the doors will be closed upon anyone who desires to prosecute an action”’.

[33] Some of these grounds include where the action is frivolous or vexatious, the action is lis pendens; the process is an abuse of court; the action is hopeless or impossible; the dispute is subject to arbitration, criminal proceedings are pending, and where previous costs are unpaid.¹² None of these circumstances apply in this matter. The application to stay is therefore dismissed.

Application to amend

[34] The university gave notice of an intention to introduce a plea in limine to the effect that the Labour Court proceedings should be stayed until after the final determination of the High Court proceedings and to introduce a new paragraph 102A into the university’s reply which will result in the introduction of a new paragraph 1A.4.The proposed amendment seeks to introduce as an alternative plea the contention that the applicants’ Labour Court claim falls to be dismissed because, on the basis alleged by Madekurozwa in the High Court proceedings, the university is precluded by the PDA from taking disciplinary action against her. The proposed amendment reads as follows:

‘In the alternative to what has been pleaded by the First Respondent in the High Court proceedings, in the alternative to all its other defences in the present proceedings, and without prejudice to its right to pursue the disciplinary proceedings which it has initiated against the Second Respondent should it finally be determined by a competent court that it is legally entitled to do so, the First Respondent pleads that the Applicants’ claim in the present proceedings falls to be dismissed because, on the basis alleged by the Second Respondent is precluded by the PDA from taking disciplinary steps against her.’

[35] The applicants opposed the proposed amendment and essentially base their objection on the following:

1. The proposed amendment “seeks to withdraw significant admissions made on the pleadings before this Honourable Court” and

2. The application for leave to amend “is not bona fide”.

[36] The university argues that these two submissions have no substance and that leave to amend should be granted. In this regard, the Court was referred to the fact that it is a tendency of our courts to allow amendments where this can be done without prejudice to the other party. (See in this regard in Moolman v Estate Moolman and Another.¹³)

[37] The same principle applies where the amendment seeks to withdraw an admission previously made, but with the proviso that a full explanation must be tendered to show bona fides. (See in this regard: President-Versekeringsmaatskappy Bpk v Moodley.¹⁴

[38] The university argued that a reasonable explanation has been given in the Founding Affidavit as to the circumstances giving rise to the application to amend. It was further argued that the applicants will not suffer irreparable harm – particularly not the harm that it is alleged they will suffer. It therefore argued that there exists no proper basis on which the university should be precluded from including this point as a point in limine.

[39] The applicants argued that the application for leave to amend is not bona fide because if it was, Bakker (the attorney of record) would have signed the pre-trail minute timeously. It is further submitted that the application for leave to amend is simply designed to further frustrate the applicants having their day in court and to delay the proceedings.

[40] In respect of bona fides, the university submitted that the application to stay the proceedings pending the outcome of the High Court’s application is not motivated to prolong litigation, but motivated by its view that it would be inappropriate for the two different courts to adjudicate the same question with the attendant risk of contradictory findings. Furthermore, Bakker’s reasons for not having signed the pre-trail minutes are set out in the replying affidavit. The university, so it is submitted, is bona fide and that the amendment is not aimed at withdrawing admissions.

[40] From the pleadings before this Court, it is common cause that Madekurozwa did not make a protected disclosure. I am in agreement that no purpose would be served to allow the university to raise a defence at this stage which has no merit in law. As already pointed out, Madekurozwa has made a deliberate choice not to defend the proceedings pending before the Labour Court and to raise the issue of a protected disclosure. I am in agreement with the submission that to permit the amendment would allow the university to introduce a defence which is contrary to the admitted facts and, in my view, in any event premature. In the event the application to amend is dismissed

Counter-application

[41] In their counter-application, the applicants seeks an order directing that the matter be enrolled for hearing in terms of Rule 6(5)(a) of the Rules of the Labour Court. I am in agreement that justice demands that the applicants’ claim should not be further delayed.¹⁵. This matter has been dragging on for years and it is in the interests of justice that finality should be reached. The counter-application is therefore granted.

[42] In order to expedite the pending Labour Court’s matter, the parties are ordered to serve and file their signed pre-trail minutes on or before Friday 11 February 2013.

Costs

[43] In respect of costs, I am of the view that costs should follow the result.

Order

[44] In the event, the following order is made.

1. The Application to Stay the proceedings in the Labour Court pending the outcome of the action pending in the High Court is dismissed.

2. The application for Leave to Amend first respondent’s Statement of Response is dismissed.

3. The first respondent to pay the applicants’ costs in respect of the Application to Stay and the Application for Leave to Amend which costs include the costs of Senior Counsel.

4. The applicants’ counter application is granted with costs.

5. The parties are ordered to serve and file their signed pre-trail minute on or before Friday 11 February 2013.

_______________________

AC BASSON, J

Judge of the Labour Court

APPEARANCES:

FOR THE APPLICANT: Advocate J G Grogan SC

Instructed by Du Toit Attorneys

FOR THE RESPONDENT: Advocate A J Fruend SC

Instructed by Anton Bakker Attorneys

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