Clement Roland Du Plessis v Public Protector: Adv Busisiwe Mkwebane and Others

The applicant, Du Plessis, was employed by CPUT as a lecturer and was dismissed for misconduct on 30 June 2014 following a disciplinary hearing for sexual harassment and intimidation of students. He challenged his dismissal through various means. A review application before Steenkamp J was dismissed for want of jurisdiction. He then referred an unfair dismissal dispute to the CCMA but was 69 days late. Commissioner Wilson dismissed his condonation application on the basis that it had no prospects of success. Du Plessis reviewed this decision before Rabkin-Naicker J who upheld Commissioner Wilson's decision. Leave to appeal was refused by both Rabkin-Naicker J and the Labour Appeal Court. In 2016, Du Plessis complained to the Public Protector about Commissioner Wilson's alleged conflict of interest (both Wilson and the disciplinary chairperson were panellists for IR Change). The Public Protector declined to investigate, citing lack of jurisdiction and that the matter had already been adjudicated. Du Plessis then brought a review application in the Western Cape High Court which was withdrawn with costs on 19 February 2019. He subsequently launched the current review application in the Labour Court seeking to review the Public Protector's decision and as consequential relief, reinstatement by CPUT.

• Whether the Labour Court has jurisdiction to review and set aside a decision by the Public Protector not to investigate a complaint
• Whether the matter is res judicata given the prior determinations by the Labour Court and Labour Appeal Court
• Whether there is any provision in the LRA permitting the review of the Public Protector's decision
• Whether the applicant's continued litigation constitutes an abuse of process warranting punitive costs

1. The Labour Court has no jurisdiction to entertain the applicant's application. 2. The applicant's application is dismissed. 3. The applicant is ordered to pay the costs of the application. 4. The applicant shall not be entitled to institute any further proceedings in this Court against the first and fifth respondents until the taxed bills of costs in respect of the costs orders made under case number C 169/15, as well as the costs order in this judgment, have been paid to the respondents.

The Labour Court does not have jurisdiction to review decisions of the Public Protector under sections 157 or 158 of the LRA where those decisions do not arise from the LRA, employment relationships, or the State acting in its capacity as employer. A decision by the Public Protector not to investigate a complaint concerning a CCMA commissioner does not fall within the Labour Court's jurisdiction. The principle of res judicata applies to prevent relitigation of the same cause of action between the same parties seeking the same relief, even if based on different grounds. The 'once and for all' rule requires a litigant to raise all grounds for challenging a decision in a single application; new grounds cannot be raised subsequently to seek the same ultimate relief after the matter has been finally decided. Section 6(6) of the Public Protector Act precludes the Public Protector from investigating judicial functions performed by courts of law, including decisions of the Labour Court.

The Court expressed serious concern about the applicant's conduct in bringing repeated unfounded applications, noting this constituted an abuse of process that wastes court resources and taxpayers' money. The Court observed that the applicant's claim never had substance and that 'a modicum of common sense and circumspection' should have made this clear. The Court commented that it had doubts about whether an order transferring a review application from the High Court to the Labour Court would even be competent, noting that each court must decide its own jurisdiction based on relevant law and the pleadings. The Court gave an illustrative example distinguishing matters the Public Protector can investigate (e.g., bribery in CCMA tender processes) from matters exclusively for the Labour Court (conduct of individual commissioners in discharging their duties under the LRA). The Court warned that the applicant must exercise his right of access to courts responsibly and in compliance with court rules and processes.

This case clarifies the jurisdictional boundaries of the Labour Court in relation to reviewing decisions of the Public Protector. It confirms that the Labour Court's jurisdiction to review administrative decisions is limited to those arising from the LRA or employment relationships where the State acts as employer. The case reaffirms the application of res judicata principles in labour disputes and the 'once and for all' rule that requires litigants to raise all grounds in a single application. It demonstrates the courts' willingness to impose punitive costs and restrictive orders to prevent abuse of process through vexatious and repetitive litigation. The judgment emphasizes that oversight of CCMA commissioners' decisions resorts exclusively to the Labour Court under section 145 of the LRA, not to other institutions like the Public Protector.