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[2021] ZAGPJHC 875
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Mamasedi and Others v Gomez and Others (39819/2016) [2021] ZAGPJHC 875 (28 April 2021)
OFFICE
OF THE CHIEF JUSTICE
REPUBLIC
OF SOUTH AFRICA HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 39819/2016
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
28/4/2021
In
the matter between:
SELLO
MAMASEDI
First Applicant
THANYANI
SIMANI
Second Applicant
LEBOHANG
DAVID MOTLATSI
Third Applicant
BABA
ISAAC MOFOKENG
Fourth Applicant
FRANS
VUSI
LEBERA
Fifth Applicant
LERUNO
LUCAS MOTSOAGAE
Sixth Applicant
RAJOALANE
MARIA TSOTETSI
Seventh Applicant
and
ANTONIO
FERNANDEZ GOMEZ
First Respondent
PENSION
FUNDS ADJUDICATOR
Second Respondent
ANNEKE
BARNARD
N.O.
Third Respondent
KGASHANE
CHRISTOPHER MONYELA N.O.
Fourth Respondent
SURAIYA
BALLIM
Fifth Respondent
THE
METAL INDUSTRIES BENEFIT FUNDS
ADMINISTRATORS
(MIBFA)
Sixth Respondent
THE
MASTER OF THE HIGH COURT
Seventh Respondent
JUDGMENT
TERNENT AJ
1.
The plaintiffs have sought leave to amend
their declaration in accordance with the notice of amendment dated 1
March 2019 (as per
the court stamp). They do so because the
first defendant opposes the amendment by way of a notice of objection
dated 14 February
2019. I was advised by Mr Gibson, defendant’s
counsel, at the outset of the hearing that the grounds of objection
set
out in this notice had been expanded in a further notice of
objection which had been delivered to the plaintiffs on 7 April
2021.
The plaintiffs’ attorney, Mr Lebethe, who
represented his clients in this application, confirmed that the
plaintiffs had
no objection to the further notice of amendment albeit
delivered out of time. As such, I was to consider all the grounds of
objection
encapsulated in both notices in considering whether or not
the plaintiffs’ application for leave to amend its declaration
was sound.
2.
The plaintiffs’ declaration is
founded in contract and seeks payment of certain pension fund
contributions deducted from the
plaintiffs’ monthly salaries in
the course of their employment. They were previously employed by the
first defendant’s
close corporation, Vaal Transformers CC (now
in liquidation).
3.
The declaration sets out the periods of
employment of the first to seventh plaintiffs which variously extend
over periods of 5½
to 12 years. The declaration goes on
to aver that Vaal Transformers CC failed or neglected to remit the
plaintiffs’
pension fund contributions to the requisite pension
fund. Liability is now being visited on the first defendant, as the
sole member
of Vaal Transformers CC, as a consequence thereof.
The claim sounds in an amount “
in
excess of R1 000 000,00 (one million rand)”
for
all of the plaintiffs, which amount, as averred in the declaration,
will ultimately be determined via actuarial calculations.
4.
The first notice of objection is squarely
based on Rule 18(10) of the Uniform Rules of Court and provides that:
“
10.
A plaintiff suing for damages shall set them out in such manner as
will enable the defendant reasonably
to assess the quantum thereof.
…”
[1]
5.
The declaration sets out that the seven
plaintiffs as a group are claiming an estimated amount of R1 million
as damages. The formulation
of the quantum is unhelpful. Mr Lebethe,
in an attempt to explain the calculation directed me to Annexure “
A”
of the declaration. This document is a
declaration by Vaal Transformers CC, and signed by the first
defendant, listing the employees
in its employ, as required under the
Unemployment Insurance Act 63 of 2001
. It details
inter
alia
the seven plaintiffs’ names,
identity numbers, gross monthly salaries, hours worked during the
month, and employment duration.
The contention is that this document
sufficed in explaining the damages claimed. Unfortunately, this
document does no such
thing. It makes no reference to,
and does not disclose, what pension deductions were made from each of
the plaintiffs’
salaries, each month over the periods of their
employment, and it is impossible to determine how the R1 million
claim is arrived
at. This information needs to be drawn from the
plaintiffs’ salary slips so that each plaintiff can accurately
reflect what
pension contributions were deducted during his employ.
Once this exercise has been carried out, this individual information
should
be incorporated into the particulars of claim in order
to give the detail that is reasonably required for the first
defendant
to assess whether the individual claims of the plaintiffs
are reasonable and accurate.
6.
To the extent that Mr Lebethe submitted to
me that he is unable at this stage to properly quantify the claims
and that, as in personal
injury matters for loss of future earnings,
an actuarial calculation will need to be furnished, it is apparent to
me that Mr Lebethe
is confusing claims for damages in personal injury
matters with this claim which is not for loss of income and is
grounded in contract,
liquid and easily ascertainable, as also
submitted to me by Mr Gibson. As correctly set out in the
second notice of objection
dated 7 April 2021, without this detail
and explanation the quantum, in an estimated R1 million rand, cannot
be understood.
7.
As
set out in Mr Gibson’s heads of argument, Cloete J
[2]
stated that in a claim for damages, a bald allegation as to the
amount of the damages does not comply with
Rule 18(10).
If the
proposed amendment was allowed, it would be non-compliant with
Rule
18(10)
and would render the declaration excipiable.
8.
Furthermore,
this declaration falls foul of the same objection raised against the
particulars of claim in the matter
Nasionale
Aartappel Kooperasie Bpk v Price Waterhouse Coopers Inc en Andere
.
[3]
The Court also upheld an objection, as I intend to do here, on the
basis that the particulars of claim there and the amendment
here did
not comply with
Rule 18(10)
as the plaintiff there and the plaintiffs
here had simply pleaded conclusions of fact without setting out the
particularity required
as to how the amounts claimed had been
calculated and arrived at.
9.
The second objection pertains to the
amendment sought by the plaintiffs, in the alternative, and which is
framed as follows:
“
Alternatively
,
both the 1
st
Defendant and the now liquidated Vaal Transformers CC colluded in
misappropriating the Plaintiffs’ provident fund contribution
to
the tune of R1 000 000,00 and have so been enriched and
unjustifiably at the expense of the Plaintiffs by not paying
the
Plaintiffs provident fund contributions to the 6
th
Defendant.”
10.
Once again, correctly so in my view, the
notice of objection sets out that these averments alone do not
sustain an unjust
enrichment claim which has not been pleaded at
all. Furthermore, insofar as the declaration sought to rely on
a claim based
on enrichment, it was necessary for the plaintiffs to
aver that the first defendant had received the pension fund
deductions, deducted
from the plaintiffs’ respective salaries,
which allegation has not been made and, as a consequence, rendered
the proposed
amendment also vague and embarrassing.
11.
On raising this objection with Mr Lebethe,
he immediately conceded that the plaintiff’s cause of action
was not formulated
on an enrichment claim and these allegations were
simply superfluous. In so doing, this leg of the plaintiff’s
notice of
amendment is wanting.
12.
Mr Lebethe, again, correctly conceded that
the quantification of the plaintiffs’ claim could certainly be
calculated by having
regard to their individual salary slips and that
appeared to be in his words “
another
prudent way, to calculate the quantum”
.
In my view, it is the only way in which this claim can be
calculated. This is not a claim for loss of income and it
is
not a claim for future loss of income, as encountered in
personal injury claims.
13.
I reiterate that the plaintiffs claims
arise from contracts of employment in terms of which pension fund
contributions in fixed
amounts were deducted from the plaintiffs’
salaries to provide for their retirement after termination of their
employ.
14.
It is clear then, as Mr Lebethe
graciously conceded, that the amendment is ill-founded, and cannot be
allowed.
15.
All that remains then is to determine the
issue of costs. The first defendant had sought that I make an
order against the
plaintiffs on an attorney and client scale.
During the course of argument, I asked Mr Gibson to take instructions
as to whether
the first defendant was persisting with this scale of
costs, given its punitive effect. Mr Gibson took instructions
and informed
me that, in the event that I were to uphold the
objection in favour of the first defendant, the first defendant would
seek costs
on the party-party scale. Mr Lebethe, in the face of
his concessions, agreed that in the event that the application for
amendment
was unsuccessful costs should be borne by the plaintiffs on
the party party scale.
16.
In the circumstances, an order is made in
the following terms:
(1)
The application for leave to amend the declaration, in accordance
with the notice of amendment dated
1 March 2019, is dismissed.
(2)
The plaintiffs are ordered to pay the first defendant’s costs,
jointly and severally, the one
paying the other to be absolved on the
party party scale.
P V TERNENT
ACTING
JUDGE OF THE HIGH COURT
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
DATE
OF HEARING: 12 April 2021
DATE
OF JUDGMENT: 28 April 2021 (handed down
electronically, uploaded to Caselines and emailed to the parties)
APPEARANCES
Applicants’
Counsel: Mr D Lebethe
Attorney with right of
appearance in terms of
section 4(2)
of the Right of Appearance in
Courts Act 62 of 1995
Instructed
by:
Ditheko Lebethe Attorneys
Mr D Lebethe
Respondents’
Counsel: Advocate C Gibson
Instructed
by:
Meise Nkaiseng Inc.
Mr M Samons
[1]
Erasmus,
Superior Court Practice, D1-241
[2]
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering
(Pty) Ltd t/a LH Marthinusen
1992
(4) SA 466
(W) at 472B-D
[3]
2001
(2) SA 790
(T) at 803E/F-F/G and 804E/F-805E