Makhanya v University of Zululand - LexisNexis South Africa

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38[97] While the special defence might indeed not strictly be before us Ithink it would be fruitless to remit the matter for a decision on that point.The court below has already expressed itself, albeit tentatively, on that issue(which was against Makhanya) and if it were to confirm that view the matteris destined to return because I think that view is not correct. Moreover, theissues that are raised by that defence were interwoven in the submissionsthat were advanced before us and I think it would be wasteful for them to beargued again.[98] I think it is clear that the defence of res judicata, in the full sense ofthat term, 44 cannot succeed for at least one reason. It is clear that the claimthat is now before us, and the claim that was pursued in the CCMA, were notthe same claims, as I observed earlier in this judgment.[99] For that reason counsel for the University confined herself instead to anarrower meaning in which the term has also been used – at times alsocalled ‘issue estoppel’. 45 She submitted that the question whether Makhanyahad an employment contract – an essential element of the present claim andalso the claim that was pursued in the CCMA – had been finally pronouncedupon by the arbitrator and could not be pursued a second time.[100] I have considerable doubt that a finding by an arbitrator of the CCMAcan prevent a litigant from raising the issue once more in the high court but Ineed not decide that question. It is apparent from the award of the arbitratorthat no definitive finding was made on that issue. It was found only that the44Lawsa ed WA Joubert 2ed Vol 9 paras 623-646 for a discussion of that defence.45Lawsa, above, paras 647-650.
39agreement had not been established and not that there was no suchagreement. On that ground alone Makhanya cannot be prevented fromsubmitting the question to the high court for decision. No doubt the findingsof the arbitrator will be given serious consideration when deciding whetherto persist in the action but that is another matter.[101] The following orders are made:1 The appeal is upheld with costs. The order of the court below is setaside and the following orders are substituted:‘(a) Both special pleas are dismissed with costs.(b) The action is postponed sine die for disposal of the remaining issues’.2 The matter is remitted to the high court for disposal of the remainingissues in the action._________________R W NUGENTJUDGE OF APPEAL
Page 1 and 2: THE SUPREME COURT OF APPEALREPUBLIC
Page 4 and 5: 4[4] Whatever explanation is given
Page 6 and 7: 6ratio for the order that was made.
Page 8 and 9: 8ordinary power to consider claims
Page 10 and 11: 10[20] Much the same happened to Ms
Page 12 and 13: 12excluding the ordinary power of t
Page 14 and 15: 14[31] The disposal of a jurisdicti
Page 16 and 17: 16Training, Eastern Cape, 23 and th
Page 18 and 19: 18TWO CLAIMS ARISING FROM COMMON FA
Page 20 and 21: 20occurred), could a plea of res ju
Page 22 and 23: 22present purposes. Upon that suppo
Page 24 and 25: 24The Second Unsound Proposition: A
Page 26 and 27: 26[62] The approach taken by the co
Page 28 and 29: 28should be the subject only of cla
Page 31 and 32: 31court found itself able to find t
Page 33 and 34: 33what constitutes the ratio of a c
Page 35 and 36: 35[88] While the ratio of a decisio
Page 37: 37CONCLUSIONS[94] To summarise, I a

Makhanya v University of Zululand - LexisNexis South Africa

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