Booi v Wesley Pretorius & Associates (1212/2020) [2021] ZAECMHC 21 (29 June 2021)

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[2021] ZAECMHC 21
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Booi v Wesley Pretorius & Associates (1212/2020) [2021] ZAECMHC 21 (29 June 2021)

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IN THE HIGH COURT
OF SOUTH AFRICA
(EAST LONDON
CIRCUIT LOCAL DIVISION)
CASE NO: EL
1212/2020
In the matter
between:
MLUNGISI
BOOI
Plaintiff
and
WESLEY
PRETORIUS & ASSOCIATES
Defendant
JUDGMENT
RUSI AJ:
[1]
This is an exception taken by the Defendant to the Plaintiff’s
particulars of claim. In his particulars
of claim the Plaintiff
claims an amount of R25 000 000.00 (twenty-five million
rand) for damages in respect of pain and
suffering, ‘a bank loan’,
loss of property and legal expenses.  While the Plaintiff
represents himself in these proceedings,
the Defendant, a firm of
attorneys, is represented by Mr Rorke, assisted by Ms Young.
Background
[2]
It is common cause that proceedings were held in the South African
Local Government Bargaining Council
in respect of an employment
dispute between the Plaintiff and the Amathole District Municipality
(“ADM”).  An arbitration
award (“the award”) was issued
on 17 December 2016 in terms of which the ADM, as employer, was
ordered to reinstate the Plaintiff,
as its employee.
[3]
An application was subsequently made by the ADM, in terms of section
145(1) of the Labour Relations Act
[1]
(“the LRA”), to the Labour Court for the review of the award
(“the review application”).  The Defendant represented
the
ADM in the review proceedings held in the Labour Court. A security
bond was furnished by the Defendant as envisaged in section
145(7)
and (8) of the LRA, as a result of which the operation and execution
of the award was suspended, pending the finalisation
of the review
application.  In the security bond the Defendant stated as
follows,
inter
alia
:
“
NOW
THEREFORE
, I the undersigned
Wayne
Smith
of
Wesley
Pretorius and Associates
confirm that
Wesley Pretorius and Associates
holds in security an amount equivalent to 24 months’ remuneration
which will be paid over to the
First
Respondent
within fifteen days of the
Application for Review being dismissed by the above Honourable Court
or any appeal being dismissed.”
[4]
The review application was dismissed, whereupon the security bond
furnished by the Defendant took effect.
However, there was a delay in
the payment to the Plaintiff of the amount set out in the security
bond. When the amount was eventually
paid, it was paid by the ADM,
not the Defendant.
Proceedings in
this Court
[5]
Aggrieved by the delay in the payment of the amount stipulated in the
security bond, and the fact that
it was not the Defendant who
effected the payment, the Plaintiff instituted an action in this
Court claiming a globular amount of
R25 000 000.00 for
unspecified damages. The Plaintiff alleged that the amount stipulated
in the security bond was not paid within
fifteen days from the date
of dismissal of the review application, as the Defendant undertook.
[6]
The Plaintiff furthermore pleaded that the late payment made by the
ADM, and not the Defendant, was indicative
of the fact that the
security bond was non-existent, to begin with, and that it was a ploy
by the Defendant to secure the hearing
of the review application by
the Labour Court.
[7]
On 13 January 2021, the Defendant delivered a notice in terms of Rule
23(1) of the Uniform Rules of Court,
contending that the Plaintiff’s
particulars of claim were vague and embarrassing, alternatively do
not disclose a cause of action.
In this notice, the Defendant
gave the Plaintiff fifteen days within which to remove the cause of
its complaint, failing which
the Defendant would deliver its
exception.
[8]
The crux of the Defendant’s complaint was that the Plaintiff’s
particulars of claim were not in compliance
with the Rule relating to
pleadings
[2]
, in that the
Plaintiff did not set out how the claimed amount of damages was
computed.  The Defendant furthermore alleged that
it was a
contradiction in terms for the Plaintiff to allege that the security
bond was non-existent, yet the Plaintiff annexed the
security bond to
its particulars of claim.
[9]
The Defendant furthermore contended that, while on the face of it,
the security bond was in compliance
with the LRA, the Plaintiff
alleged that the security bond was a deliberate lie by the Defendant,
without which the application for
review would not have been allowed.
This, said the Defendant, the Plaintiff alleged without making
any corresponding averment
to the effect that the security bond was
not in compliance with section 145(7) of the LRA.
[10]   In
response to the Defendant’s Rule 23(1) notice, the Plaintiff
delivered his amended particulars of claim on 2
February 2021.  What
appears hereunder is an extract from the Plaintiff’s amended
particulars of claim:
4.
“
On
the
24
th
November 2016
the Defendant misled
and/or deceived the Labour Court into believing that it held security
in an amount equal to 24 months of
the Plaintiff’s
remuneration by filing in court a document titled “Security Bond”.
Annexed hereto marked “
A”
is the Security Bond document
.
5.
The Defendant
further claimed in the “Security Bond” document that such
amount/security it held would be paid over by the Defendant
to the
Plaintiff within 15 days should the Review Application that been
instituted by its client (Amathole District Municipality
– “ADM”)
being dismissed by the Labour Court.
6.
When at the
conclusion of the Review Application the Defendant was directed by
the Labour Court, by way of an award in favour of the
Plaintiff, to
make payment to the Plaintiff within the timelines stipulated in the
Defendant’s “Security Bond” document, it
failed to do so.
Instead, the Defendant’s client (“ADM”), and not the Defendant,
made the payment far beyond 15 days and after
the plaintiff engaged
the services of Attorneys for the purposes of demanding such payment.
7.
The events as
conversed
[sic]
in the preceding paragraphs
vis
[sic]
lead up to and eventual payment by ADM to the plaintiff,
confirms/ed
[sic]
that the “Security Bond” document filed
by the Defendant was solely to mislead/deceive the Labour Court, as
indeed, the Defendant
did not hold such security as claimed in the
said document.
8.
Without the
misleading /deceiving “Security Bond” document, the Review
Application would not have been entertained by the Labour
Court, and
instead, the Plaintiff would have been re-instated in terms of the
Arbitration Award that ADM had taken on review.
9.
Attached hereto is a
letter of Demand marked “
B”
, as well as Defendant’s
response marked “
C”.
[11]   On
5 March 2021, the Defendant delivered its exception to the
Plaintiff’s amended particulars of claim on the ground
that they do
not disclose a cause of action on the grounds that:
1.
it is wrong in law, for the Plaintiff to conclude as he did in
paragraph 8 of its amended particulars
of claim, that without the
deceptive security bond the review application would not have been
entertained by the Labour Court, and
that he would instead be
reinstated in his employment with the ADM. The hearing of the review
application by the Labour Court was
not conditional upon the filing
of the security bond, as paragraph 8 of the Plaintiff’s amended
particulars of claim suggests;
and
2.
the facts alleged by the Plaintiff in paragraphs 4 to 7 of the
amended particulars of claim regarding
the security bond, do not
support the conclusion of law made by the Plaintiff in paragraph 8 of
his amended particulars of claim,
when regard is had to the relevant
provisions of the LRA.
The provisions of
section 145 of the LRA
[12]   The
relevant provisions of section 145 of the LRA read as follows:
(1)
Any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of
the Commission may apply to the
Labour Court for an order setting aside the arbitration award.
(3)
The Labour Court may stay the enforcement of the award pending its
decision.
(7)
The institution of review proceedings does not suspend the operation
of an arbitration award,
unless the applicant furnishes security to
the satisfaction of the court in accordance with sub section (8).
(8)
Unless the Labour Court directs otherwise, the security furnished as
contemplated in subsection
(7) must –
(a)
in the case of an order of reinstatement or re-employment, be
equivalent to 24 months’ remuneration;
or
(b)
in the case of an order of compensation, be equivalent to the amount
of compensation awarded.
Submissions
of the parties
[13]   At the
hearing Mr Rorke submitted that the fundamental allegations of the
Plaintiff’s cause of action are contained
in paragraphs 7 and 8 of
the amended particulars of claim. Counsel submitted that those
averments are insufficient to sustain a cause
of action.
[14]   The
Plaintiff, on the other hand, was at pains to explain that what he
intended to convey in paragraphs 7 and 8 of the
amended particulars
of claim was that, owing to the filing of the security bond by the
Defendant, he was prevented from enforcing
the arbitration award.
The submission continued that, as a result of the hearing of
the review application after the security
bond was filed, he suffered
financial loss as he could not earn a salary from the ADM.  He
was subjected to humiliation, pain
and suffering. The Plaintiff
however conceded that this was not his pleaded case.
[15]
The Plaintiff further submitted that the hearing of the review
application was founded on the Defendant’s deception
when it filed
the security bond.  The Plaintiff submitted that after the
review application was dismissed, he suffered further
due to the
delay in the payment of the 24 months’ salary stipulated in the
security bond.
[16]
Indeed, on reading the Plaintiff’s
amended particulars of claim as a whole, taken as they stand, the
Plaintiff postulates that no
review application would have ensued if
the Defendant had not filed the security bond. The Plaintiff further
pleaded that he would
instead have been reinstated in his employment
with the ADM.
Legal principles
[17]
It is trite that in adjudicating an exception on the ground that a
pleading does not disclose a cause of action,
the court considers the
pleading as a whole, taken as it stands.  The court is not
entitled to consider any facts outside the
pleading. In
Minister
of Safety and Security v Hamilton
[3]
,
the court stated thus:
“
An
exception on the ground that a pleading discloses no cause of action
or defence strikes at the root of the entire claim or defence,
since
it charges that the pleading objected to, taken as it stands, is
legally invalid for its purpose.”
[18]
Equally trite is the principle that, the duty rests with the party
excepting, to persuade the court that upon every
interpretation which
the pleading can reasonably bear, no cause of action is
disclosed.
[4]
In his quest
to sustain the contention that the Plaintiff’s amended particulars
of claim taken as they stand, disclose no
cause of action, Mr Rorke
made reference to the context and purport of section 145(1), (7) and
(8) of the LRA.  Counsel further
submitted that a determination
of whether the Plaintiff’s particulars of claim disclose a cause of
action, implicates as of necessity,
a consideration of the proper
interpretation of these provisions.  I now turn to the
interpretation of the provisions of the
above subsections.
The analysis
[19]
Section 145(1) of the LRA confers a right on a party aggrieved by an
arbitration award to challenge it on review.  This
right is,
however, not conditional upon the filing of a security bond.  It
is abundantly manifest from section 145(7) of the
LRA that the
institution of review proceedings does not suspend the operation of
an arbitration award.
[20]
Thus, in order for the operation of the arbitration award to be
suspended while the aggrieved party applies for its
review, one of
two things must take place. The one is that an application must be
made to the court for the stay of the enforcement
of the award
pending finalisation of the review.  The other is that a
security bond must be furnished to the satisfaction of
the court in
accordance with section 145(8).
[21]   The
converse is that the Plaintiff would have been able to enforce the
arbitration award despite the application
by the ADM for the review
of the award, where no application for the stay of the enforcement of
the award was made and granted by
the court, or no security bond was
furnished by the Defendant. Any contrary interpretation of these
provisions will, with respect,
result in absurdity.
[22]
The parties referred to
Rustenburg
Local Municipality v South African Local Government Bargaining
Council and Others
[5]
,
where Snyman AJ, said the following:
[12]
From the outset, an arbitration award issued under the dispute
resolution process under the LRA is final
and binding.  It is
now trite that the filing of a review application to challenge such
an award, does not suspend the operation
of the arbitration award.
The arbitration award remains executable, despite the pending
review.
[13]
It is in this context that the enforcement provisions of section 143
of the LRA have been adopted.  It
enables the beneficiary under
the arbitration award to nonetheless, and despite the award being the
subject of challenge, still execute
and enforce compliance with it.
[14]
The above being the default position, the duty is then squarely upon
the applicant for review to seek
relief, in terms of what is
specifically provided for in section 145, to stay the execution of
the arbitration award pending the
conclusion of the applicant’s
review application.  In other words, the applicant must go out
and secure the stay or suspension
of the award, failing which the
arbitration award will always remain executable and enforceable.
[15]
The design of section 145 of the LRA is specific.  It
provides that a stay or suspension of the execution or enforcement
can
either be in effect purchased by way of security, or obtained by
leave of court
. (
emphasis added
).
Conclusion
[23]   It
is the view of this Court that, any suggestion that the filing of a
security bond is the requirement to be met
for a review application
to be heard, is incongruous with the design of section 145 of the
LRA, as set out in
Rustenburg Local Municipality.
[24]   It
follows that, once the security bond furnished by an applicant for
review is to the satisfaction of the court
as section 145(8) of the
LRA requires, the suspension of the enforcement of the award follows,
and its execution is not competent
while the review is pending.
In
casu
, the Plaintiff conceded, correctly I believe, that it is not
his pleaded case that the security provided was defective or not to
the satisfaction of the Labour Court.  It cannot then avail him
to contend that he was prevented by the security from enforcing
the
award.  By the operation of section 145(7) of the LRA, the
Plaintiff could not have been in a position to enforce the award
while the review application was pending.
[25]   As
regards the Plaintiff’s conclusion that the security bond provided
by the Defendant was a facade, the Plaintiff appears
to have drawn
this inference from the delay in the payment of the security bond
amount after the review application was dismissed,
and the fact that
such payment was not made by the Defendant, but by its client, the
ADM.
[26]   It
is true that when the review application was dismissed by the Labour
Court, the Plaintiff was entitled to have
the amount stipulated in
the security bond paid over to him within fifteen days of the
dismissal of the review application. Put differently,
when the review
application was dismissed, the ADM became indebted to the Plaintiff
in the amount stipulated in the security bond.
[27]   It
follows that if no such payment was made within the specified period,
the Plaintiff was well within right to claim
such payment, coupled to
a claim for any appropriate relief as to interest as may be
applicable
.
It is of no moment
that it was the ADM, and not the Defendant, who eventually effected
payment to the Plaintiff of the amount stipulated
in the security
bond.
[28]
When
the plaintiff’s amended particulars of claim are taken as they
stand, this Court accepts that the genesis of the Plaintiff’s
claim, is the provisions of subsections (7) and (8) of section 145 of
the LRA. A cause of action, as stated in
McKenzie
v Farmers' Co-operative Meat Industries Ltd
,
[6]
comprises every fact which it would be necessary to prove, if
traversed, in order to support the plaintiff’s right to judgment
of
the court.  Such facts do not comprise of every piece of
evidence which is necessary to prove each fact, but every fact
necessary
to be proved.
[29]   It
was therefore essential that the plaintiff makes an averment in his
particulars of claim, that despite the filing
of the security bond,
he was entitled to enforce the award.  However, in light of the
above interpretation of the relevant provisions
of section 145 of the
LRA, such an averment would also be insufficient to sustain a cause
of action.
[30]   I
have come to the conclusion that, on any interpretation that the
Plaintiff’s particulars of claim may reasonably
bear, they do not
disclose a cause of action.  The exception taken by the
Defendant must therefore succeed.
Costs
[31]   The
general rule is that the successful party should be given his costs,
unless good grounds or exceptional circumstances
exist for the court
to deviate from the rule.
In casu
, there are no such grounds
or exceptional circumstances justifying a departure from the general
rule.
[32]   At
first blush the Plaintiff’s action might appear not to be one of
those cases involving complicated issues of
law such that they
require the expertise of two Counsel. However, Plaintiff not only
claims a large amount of money for damages,
but also makes serious
allegations of fraud or dishonesty against the Defendant. The
Defendant, being a firm of attorneys, was
placed at risk of serious
repercussions of the allegations made against it by the Plaintiff.
This strikes at the good name of the
Defendant as a business entity,
and a legal practice.
[33]
It was significant therefore, for the Defendant to avert judgment of
against it for payment of the amount claimed
or any amount that the
court might determine; and the far reaching implications of
allegations of dishonesty that the Plaintiff makes
against it. The
Defendant was put out of pocket in order to achieve this goal. It is
in the interest of fairness that the Defendant
be reimbursed for the
financial inconvenience that the Plaintiff put it through in
defending the claim, including the costs of two
counsel, where so
employed.
[34]
In the result, the following order is made:
1.
The exception is upheld with costs, such costs to include the costs
of two counsel, where so employed.
2.
The Plaintiff shall, if he elects to do so, serve, within 15 days of
the date of this judgment, a
notice of his intention to amend his
particulars of claim.
L.
RUSI
JUDGE OF THE HIGH
COURT (ACTING)
Appearances:
For
the Plaintiff
:
The
Plaintiff appeared in person
Defendant’s
Attorneys        :
Wesley
Pretorius & Associates
Counsel
for the Defendant :
Mr S. Rorke SC, with him Ms C. Young
Date
Heard
:           17 June
2021
Date
Delivered
:            29
June 2021
[by
electronic mail transmitted to the plaintiff and defendant’s
Counsel, in terms of paragraph 68 of the Eastern Cape National
State
of Disaster Management Directions]
[1]
Labour
Relations Act, 1995 (Act 66 of 1995).
[2]
Uniform
Rule 18(10)
[3]
Minister
of Safety and Security v Hamilton
2001(3) SA 50 (SCA) at 52 G-H.
[4]
Lewis
v Oneanate (Pty) Ltd
1992 (4) SA 811 (A).
[5]
Rustenburg
Local Municipality v South African Local Government Bargaining
Council
[2017] 11 BLLR 1161 (LC).
[6]
Mc
Kenzie v Farmer’s Co-operative Meat Industries Ltd
1922 AD 16
, at
23