Joinder refers to the legal process of adding parties to a case. In labour law, this typically arises when a party seeks to include additional respondents in a dispute, often to ensure that all potentially liable or affected parties are before the court.
The test for joinder is well established: a party must have a direct and substantial interest in the subject matter of the litigation. This means more than a general or financial interest, it must be a legal interest that could be prejudicially affected by the outcome of the case.
Rule 52 of the Rules Regulating the Conduct of the Proceedings of the Labour Court deals with the issue of joinder and Rule 52(1) and (2) reads as follows:
“(1) At any time before judgment is delivered, the court may join any number of persons, whether jointly, jointly and severally, separately, or in the alternative, as parties in proceedings, if the right to relief depends on the determination of substantially the same question of law or facts.
(2) (a) The court may, of its own motion or on application and on notice to every other party, make an order joining any person as a party in the proceedings if the party to be joined has a substantial interest in the subject matter of the proceedings.
(b) When making an order in terms of paragraph (a), the court may give such directions as to the further procedure in the proceedings as it deems fit and may make an order as to costs.”
In this case, Solidarity on behalf of its member (Solidarity) sought to join two additional companies to a claim for unpaid salaries, arguing that the employee had received payments from all three entities. The Labour Court dismissed the joinder application, finding:
The court emphasised that joinder cannot be based on convenience or speculation. Without jurisdiction and a live claim, there is no basis for joining parties.
In this appeal, Murray & Roberts argued that other trade unions should have been joined to a review application challenging a settlement agreement and jurisdictional ruling. The Labour Appeal Court rejected this argument, holding:
The court reaffirmed that joinder is a matter of necessity, not convenience. Mere interest in the outcome does not justify inclusion.
These judgments reinforce several key principles:
Courts have reaffirmed that joinder is only appropriate where the party to be joined has a direct and substantial legal interest in the outcome of the proceedings. This means:
Implication: Future applicants must carefully assess whether the party they seek to join meets the legal threshold. Convenience or shared business premises will not suffice.
In Solidarity, the Labour Court held that joinder cannot be considered unless the court has jurisdiction over the main claim. If the employment relationship is disputed or unclear, jurisdiction must be resolved before joinder is entertained.
Implication: Litigants must ensure that the court has jurisdiction over the primary dispute before seeking to join additional parties. Failure to do so may result in dismissal of the joinder application.
The court in Solidarity also found that the claim against the parties sought to be joined had prescribed. Joinder cannot revive a time-barred claim.
Implication: Parties must act promptly. If the claim against a potential respondent has expired under the Prescription Act, joinder will be refused.
In Murray & Roberts, the Labour Appeal Court rejected the argument that majority unions party to threshold agreements must be joined in disputes involving minority unions. The court held that unless those unions are directly and legally affected, joinder is not required.
Implication: Employers and unions cannot rely on threshold agreements to demand joinder unless they can show a legal interest that may be prejudiced by the outcome.
Both judgments show that courts are willing to award costs against parties who bring ill-conceived or procedurally flawed joinder applications.
Implication: Legal representatives must exercise diligence and avoid speculative or tactical joinder applications. Poorly grounded applications may result in adverse cost orders.
Joinder is a powerful procedural tool, but it must be used with precision. These judgments reinforce the principle that joinder is a matter of legal necessity, not litigation strategy.
Parties must demonstrate a clear, direct, and substantial legal interest before seeking to join others to proceedings. The courts are increasingly vigilant in guarding against procedural abuse and ensuring that litigation remains focused, fair, and efficient. Whether in individual claims or union-led disputes, parties must demonstrate a clear legal basis for including others in proceedings.
