Employment law update – Vexatious litigation or reasonable cause to pursue litigation

June 1st, 2022

AngloGold Ashanti Ltd v Moloko (LC) (unreported case no J1199/20, 9-3-2022) (Moshoana J).

On 28 September 2018, the applicant employer and respondent employee amicably parted ways, by way of a mutual termination agreement, which saw the employee being ‘handsomely’ remunerated.

However, some months later, the employee became aware of certain rights he had in terms of the Labour Relations Act 66 of 1995 (LRA) and other labour legislations. In pursuit of exercising these rights, the employee referred ten separate disputes to the Commission for Conciliation, Mediation and Arbitration (CCMA).

In terms of proceedings at the Labour Court (LC), the respondent, on 10 March 2020, launched a review application to set aside an award, which dismissed his claim for unfair dismissal.

On 23 October 2020, the respondent launched a second review application seeking to set aside a jurisdictional ruling made by the CCMA.

Both review applications were dismissed and at the time of this judgment, the respondent’s petition to the LAC in respect of one of his review applications, was also dismissed.

On 29 October 2020, the respondent initiated a claim for unfair discrimination.

On 11 March 2021 and relying on a different ground, the respondent launched his second claim for unfair discrimination. On 5 August 2021, the respondent referred a contractual claim to the LC in terms of s 77(3) of the Basic Conditions of Employment Act 75 of 1997 (BCEA).

Each discrimination claim, as well as the contractual application are currently pending before the LC.

Annoyed by the number of alleged vexatious disputes it had to defend, the applicant brought an application in terms of s 2(1)(b) of the Vexatious Proceedings Act 3 of 1956 (the Act).

In terms of this section, if a court, on application, is satisfied that a person is persistently and without reasonable grounds, instituting legal proceedings, then the court may order that no legal proceedings may be instituted by that person without leave of the court in which the person intends initiating legal proceedings and that leave will not be granted unless that court is satisfied that the proceedings are not an abuse of the court process and that there are prima facie grounds for the intended proceedings.

The LC, on the strength of the Supreme Court of Appeal judgment in Member of the Executive Council for the Department of Co-operative Governance and Traditional Affairs v Maphanga [2020] 1 All SA 52 (SCA), began by making the point that disputes to the CCMA, does not amount to legal proceedings as envisaged in the Act. As such, the applicant’s complaint in respect of the ten referrals to the CCMA, was misplaced.

The court noted further that the Act was enacted nearly 66 years ago, and that a stringent and restrictive approach had to be adopted by the courts so as not to unduly limit an employee’s right, set out in the LRA, Employment Equity Act 55 of 1998 or the BCEA. Such an approach is buttressed by the fact that when an employee approaches the LC, they are in fact exercising a right, be it a right not to be unfairly dismissed or a right not to be unfairly discriminated against.

Moreover, as a court of equity, the LC would not unrestrictedly grant an application, which seeks to limit another’s right.

The question before the court was whether the respondent has persistently and without reasonable cause instituted legal proceedings.

Did the respondent persistently pursue litigation?

The court noted that appealing the LC orders dismissing the respondent’s review applications, were not akin to ‘recurrently’ instituting legal proceedings – an appeal is in respect of the same issue that served before a lower court and cannot be categorised as a new application. Thus, even if the respondent wishes to pursue their appeal rights further in respect of both review applications, they are well within their rights to do so without being restricted by an application of this nature.

Turning to the two unfair discrimination claims, the court found that the applicant entertained both actions, which were at the pre-trial stage. The fact that the respondent is relying on two grounds of alleged discrimination, does not, according to the court, mean that the respondent is being unduly persistent. Likewise, the court recognised the fact that the same set of facts can lend itself to multiple claims, such as unfair dismissal, unfair discrimination, and breach of contract.

The next inquiry was whether the respondent’s litigation was without reasonable cause.

Reasonable cause, according to the court ought not be confused with reasonable prospects of success. Reviewing an award is a right that any aggrieved party has – there is no ‘gate keeper’, such as an application for leave to review, when claiming such a right. Therefore, the respondent has reasonable cause to review any decision, which he is of the view stands to be set aside on review. His actions in this regard cannot be said to be an abuse of the court process. There is nothing to suggest, that in instituting the review applications and other actions, there was something obviously unsustainable in the respective claims. The fact that the parties entered into a mutual termination agreement did not aid the applicant. Section 2(1)(b) of the Act does not require a court to consider pre-litigation arrangements. In any event, in his contractual claim, the respondent sought to set aside the termination agreement.

In conclusion, the court held:

‘I venture to say that in interpreting the provisions of the [Act], regard must be had to the rights protected in the LRA and the EEA. A restrictive interpretation is required to not only trammel the justifiable limitations to section 34 but also to trammel the trampling of other corresponding rights in the Bill of Rights.

In the final analysis, this court is constrained to dismiss the present application because Ashanti failed to demonstrate persistence and litigating without reasonable cause on the part of Moloko. As demonstrated above, Moloko has not been persistent and without reasonable cause. The court in Beinash [and Another v Ernst and Young and Others 1999 (2) SA 116 (CC)] described a vexatious litigant as one who manipulates the functioning of the courts so as to achieve a purpose other than that for which the courts are designed. Moloko does not fit this description. His quest is to win, the question whether he has a winnable case, it is a matter for a court of law, and not to manipulate this court. The recent decision of the High Court by the learned Acting Justice Nziweni in PricewaterhouseCoopers Inc v Pienaar and Others [(WCC) (unreported case no 1845/2021, 10-9-2021) (Nziweni AJ)] is distinguishable. The respondents in that matter persisted with litigation even after the Constitutional Court dismissed their matter. The respondents sought to rescind orders granted against them by the Constitutional Court. Such is not the case in casu’.

The application was dismissed with no order as to costs.

Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2022 (June) DR 34.