About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2015
>>
[2015] ZAGPJHC 37
|
|
Sun International (South Africa) Ltd v Bosilong (2014/15903) [2015] ZAGPJHC 37 (18 February 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2014/15903
DATE: 18 FEBRUARY 2015
In the matter between:
SUN INTERNATIONAL (SOUTH AFRICA)
LTD
...............................................................
Applicant
And
PERCY GOLEKANYE
BOSILONG
...................................................................................
Respondent
J U D G M E N T
MASHILE, J:
[1] The Applicant launched this
application in terms of Uniform Rule of Court 30(1) asserting that
the founding papers of the Respondent,
the particulars of claim, are
irregular and therefore vulnerable to be set aside. Initially, the
Applicant furnished three reasons
upon which it premised its
complaint. However, it has since abandoned two of the reasons.
[2] The abandonment of the two reasons
that gave rise to the complaint came about as a result of the
Respondent amending its particulars
of claim. While the Respondent
did not amend its particulars of claim in respect of the second
reason, it made allegations in
its answering affidavit, which the
Applicant found them adequate to persuade it not to pursue the point
anymore.
[3] In view of the Applicant’s
desertion of the other two reasons that gave rise to the complaint,
it is not necessary to
mention let alone discuss them. For the
purposes of this judgment, it should suffice to state that the
Applicant argues that the
sole reason for its complaint against the
Respondent’s particulars of claim concerns the infringement of
the provisions of
Uniform Rule 10(3) of this court.
[4] Uniform Rule 10(3) stipulates that
several Defendants may be sued in one action either jointly, jointly
and severally, separately
or in the alternative, whenever the
question arising between them or any of them and the Plaintiff or any
of the Plaintiffs depends
upon the determination of substantially the
same question of law or fact which, if such Defendants were sued
separately, would
arise in each separate action.
[5] The Respondent’s claim is
fundamentally for contractual damages flowing from the position he
would have been in had the
Applicant not contravened and repudiated
an employment contract upon which he now sues. According to the
employment contract,
his total effectual remuneration included a
pension.
[6] The Applicant repudiated the
agreement and the Respondent accepted the repudiation and elected to
terminate the agreement.
The repudiation is alleged to have occurred
between the period of December 2012 to December 2013 and the
acceptance of the repudiation
and termination of the agreement
happened on 10 December 2010.
[7] Had the Applicant not repudiated
the employment contract, the agreement would lapse on 22 August 2018,
a date on which the Respondent
will attain his retirement age of 60
years. The Respondent alleges that he suffered damages which
included the pension benefit
that would have accrued to him during
the balance of the agreement on account of the Applicant’s
repudiation of the employment
contract.
[8] In claiming what he refers to as
the equivalent of the pension benefit that he would have received for
the remainder of his
employment contract had it not been repudiated
by the Applicant, the respondent failed to specify the amount that
constitutes the
equivalent of the pension benefit of the Applicant.
In view of the lack of specificity of the amount for the benefit of
the pension,
the Applicant argues that it is not possible for it nor
this court to establish the precise pension proceeds due to the
Respondent,
if any, without the benefit of the evidence or without
having cited the relevant Fund.
[9] The Applicant believes that its
argument is underpinned by the provisions of sections 13A (3) (aj)
and (bj) of the Pension
Fund Act No. 24 of 1956 (“PFA”),
which stipulates as follows:
“(3)(a) Any contribution to a
fund in terms of its rules, whether it be a contribution contemplated
in subsection (I), a contribution
for the payment of which a member
of the fund is responsible personally, or a contribution to be paid
on a members' behalf-
(i) shall be transmitted directly into
the fund’s account with a bank finally registered as such under
the Banks Act, 1990
(Act No 94 of 1990) ...
(ii) shall be forwarded directly to the
fund in such a manner as to have the fund receive the contribution
...
(Hi) ...
(b) Any contribution forwarded to and
received by a fund in the circumstances contemplated in paragraph (a)
(ii), shall be deposited
in the fund’s bank account ...”
[10] The Applicant asserts that in view
of the provisions of the above section of the PFA, it is unmistakable
that it is not the
ultimate custodian of the Respondent's pension
contributions. For that reason, it contends that it is incapable to
assist the
Respondent and this court with regard to the Respondent's
estimate or actual pension contributions allegedly due to the
Respondent.
[11] From the above, the Applicant
concludes that the Respondent’s shortcoming to cite the
relevant pension fund, which would
assist all the parties to assess
the value of the pension benefit is an irregularity as envisaged in
Uniform Rules 10(3) of this
court read with Uniform Rule 30 and
Section 13 A (3 )(a) and (b) of the PFA.
[12] The final submission of the
Applicant in this regard is that it will be greatly prejudiced to
defend the matter in circumstances
where the Respondent seeks payment
of his pension contributions against the Applicant and not against
the relevant Fund in terms
of the PFA.
[13] The issues to be determined by
this court are therefore:
13.1 Is the irregular step procedure in
terms of Uniform Rule 30 adopted by the Applicant correct in the
circumstances of this matter?
13.2 What is the effect of the
Respondent’s lack of specificity of the amount of pension
benefit that it is claiming from
the Applicant?
[14] The question raised in the first
instance above is whether or not Uniform Rule of Court 30 is a
mechanism that can be utilized
to challenge a miss or non-joinder.
In Erasmus: Superior Court Practice, Page B1-191 the following is
stated:
“An objection of non-joinder or
misjoinder may be raised under this rule but the more usual practice
is to raise it by way
of special plea.”
[15] In the case of Skyline Hotel v
Nickloes
1973 (4) SA 170
(W) it was held that when a Defendant
alleges that the proceedings against him are irregular in that
certain interested parties
have not been joined in the action,
although it is the practice to raise this sort of objection by way of
a special plea, it would
appear as if the procedure of Rule of Court
30 can also be used for this purpose.
[16] With reference to the second
issue, in the case of Sasol Industries (Pty) Ltd t/a Sasol 1 v
Electrical Repair Engineering (Pty)
Ltd t/a LH Marthinusen
1992 (4)
SA 466
(W), to which Counsel for the Applicant referred me and which
is also mentioned by Erasmus supra, Cloete J of this court stated
that he had no doubt that if a pleading both fails to comply with
Rule 18 and is vague and embarrassing, the defendant has a choice
of
remedies. Those remedies to which Cloete J referred are of course
the irregular step proceeding which a party may take by way
of Rule
30 and Rule 23(1).
[17] Insofar as the non-joinder is
concerned, the Applicant argues that the Respondent’s failure
to join the pension fund,
which is the ultimate custodian of the
Respondent’s pension contributions, should have fatal
consequences. The Respondent
maintains that such approach by the
Applicant is completely misguided.
[18] The Respondent contends that the
nature of his claim is the equivalent of the pension benefit that
would have accrued to him
during the balance of the agreement. His
claim is one for damages, which were occasioned by the Applicant’s
repudiation
of the employment contract. Those damages cannot be
claimed from any other party other than the party that caused him to
suffer
such damages.
[19] Understood in that manner, the
pension fund, which the Applicant requires the Respondent to join to
these proceedings did not
cause the Respondent to suffer damages.
Accordingly, the Respondent does not and cannot have a damages claim
against the pension
fund. For that reason, he is not seeking any
pension benefit to be paid from the pension fund.
[20] While I agree with the approach of
the Respondent that he does not have a damages claim against the
pension fund, the Applicant
cannot be blamed for having chosen a path
that is less travelled, Uniform Rule of Court 30, to challenge the
non-joinder of the
pension fund. Whether or not he is right or wrong
that the pension fund should have been joined is beside the point.
[21] The Applicant’s contention
is that the joinder of the pension fund would have made the work of
everyone involved in this
matter easier in that the pension fund
would be well disposed to calculate the amount due to the Respondent.
The party making
the allegation must prove it. In this instance,
the Respondent claims that he suffered damages being the equivalent
of the pension
benefit that would have accrued to him for the
remainder of his employment period up to 30 August 2018. The
Respondent should
in the circumstances have put forward a figure of
the amount that he believes is due to him.
[22] I therefore disagree with the
Applicant that it was necessary to join the pension fund at all in
order to arrive at the precise
figure due because that is an
allegation that should be made and proved by the Respondent. The
Applicant is, however, correct
that lack of reference to a specific
quantified amount of the pension benefit due to the Respondent
renders the claim of the Respondent
defective. In this regard
Uniform Rule of Court 18(10) provides as follows:
“A plaintiff suing for damages
shall set them out in such a manner as will enable the defendant
reasonably to assess the quantum
thereof …”
[23] Even in the above instance, the
Applicant still has a choice whether to utilize Uniform Rules of
Court 30 or 23(1). Uniform
Rule of Court 18(12) provides that where
there is non-compliance with any of the provisions of Rule 18, such
pleading shall be
deemed to be an irregular step and the opposite
party shall be entitled to act in accordance with Rule 30. The
Applicant has elected
to use Rule 30 procedure to challenge the
irregularity and the procedure is countenanced by the rules.
[24] I am at loss why Counsel for the
Respondent avers that Counsel for the Applicant misconceives the
nature of the Respondent’s
claim, which is clearly the
equivalent of the pension benefit “that would have accrued to
him during the balance of the agreement”.
The particulars of
claim of the Respondent provides as follows in respect of the claim
for pension benefit:
“20. In the result, the Plaintiff
has, as result of the repudiation, suffered damages as follows:
20.1 in the amount of R1 601 936.00
excluding the deductions, calculated as follows:
20.1.1 R28 606.08 x 56 months (i.e.
from 1 January 2014 to 30 August 2018)
20.2 The bonuses that he would have
earned during the balance of the agreement;
20.3 The remuneration that he would
have earned from the Kersaf Share Option Scheme during the balance of
the agreement; and
20.4 The pension benefit that would
have accrued to him during the balance of the agreement.”
[25] The particulars of claim mention a
claim for a pension benefit but there is no specific prayer for
payment of the equivalent
of the pension benefit to which the
Respondent would become entitled on his retirement age, sixty.
[26] The court was left to speculate on
whether the pension benefit is a separate claim falling under the
prayer that requires the
Applicant to be directed to pay any and/or
statutory deductions associated with the Respondent’s earnings
until 30 August
2018, such as tax as well as any other deductions
that may be applicable to the relevant authority and/or organization
in the Republic
of South Africa or that the amount for the pension
benefit is part of the R1 716 364.80.
[27] From the paragraph of the
particulars of claim quoted in paragraph 24 above, it is plain that
the Respondent is claiming an
amount for pension benefit over and
above the R1 716 364.80. If it were not a separate claim the
formulation of the sentence would
have been different from what it is
now.
[28] That must be so because it is
evident that the amount of R1 716 364.80 was computed by multiplying
60 months being the balance
of the Respondent’s employment
contract by R28 606.08. It is also unmistakable that that figure
does not include what the
Respondent refers to as pension benefit.
[29] The pension benefit must therefore
be a separate amount, which the Respondent has failed to disclose.
It is understandable
that the Applicant would in the circumstances be
prejudiced to plead in that it is impossible for it to plead to an
undisclosed
amount.
[30] In the circumstances the summons
and particulars of claim do constitute an irregularity. The
irregularity, however, is not
of such a nature that it requires the
whole action to be set aside. In terms of Rule 30(3) the court will
make the appropriate
order that will enable the Respondent to amend
its papers. That leaves this court to deal with the question of
costs.
[31] Insofar as costs are concerned,
the attitude that this court adopts is that the Respondent could have
articulated his claim
more coherently and lucidly such that the
Applicant would not have had a reason to doubt what his claim is.
[32] It was as a direct consequence of
the Respondent’s lack of intelligibility in his pleadings that
the Applicant had to
come to court to seek clarity. The Respondent
should therefore bear the costs and in any event the costs should
follow the results.
In this case I regard the Applicant as having
been successful.
[33] Against that background, I make
the following order:
1. To the extent that the Respondent
failed to state the amount of the pension benefit, the summons and
particulars constitute an
irregularity and are set aside;
2. The Respondent is granted 10 days
from the date of this order within which to amend his summons and
particulars of claim by stating
the amount of the pension benefit or
deleting that part of the particulars of claim that refers to a claim
for pension benefit;
3. The Respondent is to pay the costs
of the Applicant.
B A MASHILE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Date of Hearing: 30 October 2014
Date of Judgment:
Counsel For the Applicant: Adv. E
Mokutu
Instructed by: Salijee Du Plessis
Van Der Merwe Attorneys
Counsel For the Respondent: Adv. HP
Van Niewenhuizen
Instructed by: Tshabalala Attorneys