Sibanye Gold Limited operates gold mines divided into three business units (Driefontein, Kloof, and Beatrix). The company recognized four unions for collective bargaining purposes: NUM, Solidarity, UASA, and AMCU. On 14 November 2018, a collective wage agreement was concluded between the applicant and NUM, Solidarity, and UASA, but AMCU was not party to it. AMCU commenced strike action on 21 November 2018 after failing to reach agreement. The applicant contended that by 13 December 2018, NUM, Solidarity and UASA jointly had 51.2% membership, enabling them to extend the collective agreement under section 23(1)(d) of the LRA to all employees. An extension agreement was concluded on 13 December 2018. The applicant launched an urgent application (case J4552/18) to declare the AMCU strike unprotected, which was dismissed on 21 December 2018 by Tlhotlhalemaje J on the basis that the applicant failed to establish a prima facie case with the evidence presented. The court ordered a union membership verification process through the CCMA. When the verification process stalled, the applicant launched the present application (J68/2019) on 23 January 2019, seeking essentially the same relief based on supplemented evidence addressing issues raised in the previous application.
1. The special plea of res iudicata is upheld. 2. The applicant is to pay the First Respondent's costs, such costs to include the costs of two counsel.
When a court dismisses an application in motion proceedings because the applicant has failed to prove its case by necessary and proper evidence, this constitutes a final and definitive decision on the merits of the dispute for purposes of res iudicata. An applicant cannot later institute fresh proceedings for the same relief on the same cause of action on the basis of supplemented or improved evidence. For res iudicata to apply, there must be: (1) a previous judgment on the merits by a competent court; (2) between the same parties; (3) based on the same cause of action; and (4) in respect of the same subject matter. Litigants must place all relevant and material evidence before the court on the first occasion and cannot institute multiple applications, each time adding more evidence until the court is eventually satisfied. The meaning of an order dismissing an application must be gleaned from the judgment read as a whole to determine whether the dispute has been determined.
The court acknowledged the harm caused by the ongoing strike to all parties involved - the applicant suffering massive daily losses, striking employees sacrificing income since November 2018, and loss of life resulting from strike action. The court noted that such conduct can never be condoned. However, these factors cannot cause the court to issue another order where an order has already been issued and the process envisaged in the previous order has not been completed. The court observed that it was unfortunate that the verification process ordered by Tlhotlhalemaje J had stalled, leaving the applicant in what it described as an untenable position with no end in sight. The court expressed sympathy for the situation but held that this could not override the principles of res iudicata and finality in litigation.
This case provides important guidance on the application of res iudicata in labour law matters, particularly in the context of urgent applications concerning strike action. It confirms that where an application is dismissed on the basis that the applicant failed to prove its case with sufficient evidence, this constitutes a final determination on the merits for purposes of res iudicata. The judgment reinforces that parties cannot return to court repeatedly with the same cause of action simply because they have obtained or compiled better evidence. The case demonstrates the Labour Court's approach to balancing the constitutional right to strike with the need for finality in litigation. It also illustrates the court's willingness to award costs in labour disputes where a party has acted unreasonably, despite the general reluctance to do so in matters involving ongoing collective relationships. The case is significant in the context of the long-running industrial action in the South African mining sector and the rivalry between different unions.