Brief Summary

Labour Law — Union's Duty of Care — Negligence in Representation — Plaintiff, a former employee of EFS Security Company, claimed damages from NUMSA for loss of income following his dismissal, alleging that the union failed to represent him adequately in a labour dispute. He contended that NUMSA's negligence in not timely referring his case to the CCMA resulted in his unfair dismissal not being challenged. NUMSA denied the existence of a contract of mandate and asserted that it acted within its discretion regarding the representation of members. The court found that the plaintiff had not disclosed his subsequent employment in the security industry and had pleaded guilty to charges justifying his dismissal, undermining his claim for loss of income. The court held that NUMSA was not liable for the alleged negligence as the plaintiff's own actions and circumstances contributed to the outcome of his case.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a civil damages action in the High Court (Free State Division, Bloemfontein) in which the plaintiff claimed compensation for past and future loss of income allegedly caused by the defendant trade union’s negligent handling of a labour dispute.

The plaintiff was Samuel Mokete Yika. The defendant was cited and described in the pleadings and judgment as the National Union of Metalworkers of South Africa (NUMSA). The dispute arose from the plaintiff’s dismissal by his employer (EFS Security Company) and the subsequent handling of the plaintiff’s intended unfair dismissal challenge at the Commission for Conciliation, Mediation and Arbitration (CCMA).

The matter proceeded to trial. After the plaintiff testified and closed his case without calling any further witnesses, NUMSA brought an application for absolution from the instance in terms of Uniform Rule 39(6). The judgment concerned that application and whether the plaintiff had produced sufficient evidence to require the defendant to answer.

The general subject-matter of the dispute was whether a trade union could be held delictually and/or contractually liable in damages to a member for an alleged failure to timeously refer an unfair dismissal dispute to the CCMA, resulting in the dispute not being adjudicated because condonation was refused.

2. Material Facts

The plaintiff was employed as a security guard by EFS Security Company in Bethlehem until his dismissal on 6 July 2020. He contended that his dismissal was unfair and that he was, at the time, a member in good standing of NUMSA, paying monthly subscriptions. On that basis, he alleged the existence of a contract of mandate between himself and NUMSA under which NUMSA was obliged to render labour-related assistance, including representation in labour disputes, with reasonable skill and care.

It was common cause in the pleaded narrative that a NUMSA shop steward, Mr Ezekiel Mngomezulu, represented the plaintiff at his disciplinary hearing. It was also part of the plaintiff’s case that thereafter a NUMSA organiser in Bethlehem, Mr Chris Seotsane, undertook to refer the dispute to the CCMA. The plaintiff’s case was that he was assured the dispute had been referred, but later discovered that the referral was lodged outside the 30-day period, and that an application for condonation had been brought without his knowledge. Condonation was refused, with the practical effect (on the plaintiff’s version) that the substantive fairness of his dismissal was never determined.

NUMSA’s version was that Seotsane consulted with the plaintiff and requested that he provide the documentation necessary to assess the merits of the dispute, including the disciplinary record and charge sheet, before expiry of the referral period. On NUMSA’s account, the plaintiff failed to provide those materials timeously, impairing NUMSA’s ability to assess the case. NUMSA nevertheless referred the dispute and was told it was one day late, after which Seotsane brought a condonation application.

A material factual development relied upon by the court was that, during the condonation exchange, the employer produced the disciplinary record. From that record it emerged (as recorded in the judgment) that the plaintiff faced six counts of misconduct and pleaded guilty to four, namely deviation from laydown procedure for an asset in transit, putting client assets at risk, putting colleagues’ lives at risk, and risking the company’s financial/future operations. It also emerged in cross-examination that at the time the plaintiff committed the misconduct he had an existing written warning for similar misconduct that had not expired.

A further key factual aspect relevant to damages, and treated as significant by the court, was the plaintiff’s post-dismissal employment. In evidence-in-chief, the plaintiff presented himself as unemployed. In cross-examination he accepted that PSIRA records reflected his employment by Royal Security CC from 12 May 2021, that his PSIRA certificate status and renewal history supported that he had been working in the security industry for an extended period, and that he had in fact been employed when he issued summons in May 2022. The court treated the absence of disclosure of this employment in the particulars of claim and in evidence-in-chief as materially damaging to the plaintiff’s loss-of-earnings case.

The plaintiff’s quantification was based on a monthly salary figure and claimed past loss for a stated 17 months and future loss to an asserted retirement age of 65, producing a total claim exceeding R3.6 million. The court treated the calculation method as materially flawed on the evidence presented.

3. Legal Issues

The principal question was whether, at the close of the plaintiff’s case, there was evidence upon which a court could or might find for the plaintiff, such that the defendant should be required to answer, or whether absolution from the instance should be granted.

Within that overarching enquiry, the court identified interrelated issues of pleading and proof. These included whether the plaintiff had properly pleaded and supported the alleged contract of mandate in compliance with Uniform Rule 18(6), and whether the plaintiff had placed sufficient evidence before the court to establish negligence by NUMSA’s representatives (and thus vicarious responsibility), as well as causation and damages.

The dispute involved a combination of questions of law (the applicable test for absolution and the pleading requirements where reliance is placed on a contract), questions of fact (what documentation was provided to NUMSA, whether NUMSA acted negligently, and the plaintiff’s employment history), and the application of law to fact (whether the evidential material met the threshold to survive absolution).

4. Court’s Reasoning

The court began with the procedural framework for absolution from the instance. Relying on the established approach derived from Gascoyne v Paul and Hunter 1917 TPD 170, the court stated that the enquiry is not whether the plaintiff’s evidence proved what would ultimately be required at the end of the whole case, but whether there is evidence on which a court, applying its mind reasonably, could or might find for the plaintiff.

The court then considered the plaintiff’s pleaded reliance on a contract. Referring to Uniform Rule 18(6), the court emphasised that a litigant who relies on a contract must state whether it is written or oral, and when, where, and by whom it was concluded, and must annex a true copy if it is written. The court held that the plaintiff’s particulars of claim were deficient: the plaintiff did not state whether the alleged agreement was written or oral, alleged that the date was unknown despite having acted personally, and did not set out circumstances supporting the alleged express, tacit, or implied terms. The court concluded that the plaintiff had not complied with Rule 18(6), and that the alleged mandate and its terms had not been properly established.

On negligence, the court evaluated the competing versions regarding the disciplinary record. It accepted NUMSA’s account as more probable: that NUMSA did not have the disciplinary minutes before the referral and only obtained them when the employer attached them in the condonation proceedings. The court reasoned that, had NUMSA had sight of the disciplinary record earlier, it would likely not have referred the dispute to the CCMA because the plaintiff’s prospects would have been poor. The court therefore was not satisfied, on the plaintiff’s evidence, that NUMSA had negligently failed to act timeously in a way that could found liability.

The court treated the evidence about the plaintiff’s disciplinary case as materially adverse to the plaintiff’s assertion that he had good prospects of success in an unfair dismissal challenge. The plaintiff’s concession in cross-examination that he pleaded guilty to four serious charges, coupled with the existence of an unexpired written warning for similar misconduct and the absence of any substantive challenge to the fairness of the disciplinary process, undermined the plaintiff’s insistence that his unfair dismissal claim had strong prospects. In the court’s assessment, this further weakened the plaintiff’s attempt to link NUMSA’s conduct to the loss he claimed.

On damages, the court considered the plaintiff’s claim for loss of earnings to be especially destructive to his own case. The court relied on the plaintiff’s admissions and the PSIRA documentation showing post-dismissal work. It held that the plaintiff attempted to create the impression that he had been unemployed throughout, when he had in fact been employed for a substantial period after dismissal. The court also found that the computations were flawed because they were based on gross salary without normal deductions, omitted the income earned at Royal Security CC, and made no provision for items such as contingency deductions and tax. The court noted that these calculations would only become relevant if the plaintiff had established unfair dismissal and negligence, which the court held he had not.

Although NUMSA’s counsel referred to Food and Alliance Workers Union v Ngcobo NO 2013(5) SA 378 (SCA) to support the proposition that compensation for loss of earnings in this context is typically limited and discretionary, the court’s conclusion on absolution did not turn on determining a capped quantum. The court’s reasoning was that the plaintiff had not produced sufficient evidence to establish the foundational requirements for the relief claimed, including a properly established mandate, negligent breach, and a coherent evidential basis for damages.

In the result, the court held that it was unable to find that, on the evidence presented, a court could or might find for the plaintiff, and that the plaintiff had failed to make out a case requiring an answer.

5. Outcome and Relief

The court granted absolution from the instance at the close of the plaintiff’s case.

The plaintiff was ordered to pay the defendant’s party-and-party costs.

Cases Cited

Gascoyne v Paul and Hunter 1917 TPD 170.

Food and Alliance Workers Union v Ngcobo NO 2013(5) SA 378 (SCA).

Legislation Cited

No legislation was cited in the judgment as authority for the decision.

Rules of Court Cited

Uniform Rule 39(6).

Uniform Rule 18(6).

Held

The court held that the plaintiff failed, on the evidence led, to establish a properly pleaded and evidenced contractual mandate, failed to place sufficient evidence of negligence by the union, and failed to provide a reliable factual basis for the claimed past and future loss of earnings, particularly in light of his post-dismissal employment and the defects in his calculations. Applying the test for absolution from the instance, the court found there was no evidence on which a court could or might find for the plaintiff, and absolution was accordingly granted with costs.

LEGAL PRINCIPLES

The judgment applied the principle that absolution from the instance at the close of the plaintiff’s case is granted where the plaintiff has not produced evidence upon which a court, reasonably applying its mind, could or might find for the plaintiff, as articulated in Gascoyne v Paul and Hunter 1917 TPD 170 and subsequently endorsed in later authority.

It applied the pleading rule that a litigant who relies on a contract must plead whether it is written or oral, when and where it was concluded, by whom it was concluded, and must annex a copy if written, in accordance with Uniform Rule 18(6). Non-compliance may render the pleaded contractual foundation insufficiently established for purposes of sustaining a claim, particularly where the contract is central to the cause of action.

The judgment further reflected that a claim for loss of earnings requires an evidential foundation that accounts for materially relevant circumstances, including actual post-event earnings and coherent calculation methodology. Where a plaintiff’s own evidence reveals post-dismissal employment and undermines the premise of continuous unemployment, and where the calculation is materially incomplete or flawed, the damages case may be insufficient to survive absolution, especially where the underlying liability case is also not made out.

Yika v National Union of Mineworkers of South Africa (2217/2022) [2023] ZAFSHC 459 (20 November 2023)