About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 239
|
|
Umbhaba Estates (Pty) Ltd v Minister of Police and Another (58679/2018) [2019] ZAGPPHC 239 (27 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case number: 58679/2018
Date: 27/6/2019
In
the matter between:
UMBHABA ESTATES (PTY)
LTD
APPLICANT
AND
THE
MINISTER OF POLICE
FIRST RESPONDENT
FOOD
AND ALLIED WORKERS' UNION
SECOND RESPONENT
JUDGMENT
TOLMAY
J:
[1]
The
Applicant (Umbhaba) applied in terms of Rule 28 for an amendment of
its particulars of claim. The amendment is opposed by the
second
defendant, the Food and Allied Workers Union (FAWU). In the pending
action, Umbhaba as Plaintiff has claimed damages from
the first
defendant, the Minister of Police (the Minister) and FAWU, arising
from protest action at the plaintiff's farming operations
in
Mpumalanga.
[2]
The
damages claimed against the Minister relates to the inaction of the
Police to take steps to prevent damage to the Applicant's
farming
operations during a four month period of protests and riots. As far
as FAWU is concerned, these damages are claimed in
delict, for both
direct and consequential loss arising from the protest action. As an
alternative, liability is claimed in terms
of Sec 11(3) of the
Regulation of Gatherings Act, 2005.
[3]
In
the particulars of claim as presently formulated, Umbhaba sues the
Defendants for damages arising out of industrial/strike action.
In
the amendment Umbhaba seeks to substitute the word "industrial/strike
action" with "protest action" and
the word ''strikers"
with the word "protestors".
[4]
Umbhaba
stated in the papers that the reference to strike action in the
original particulars of claim was never meant to refer to
conduct
specifically referred to in the
Labour Relations Act 66 of 1995
(LRA). The incorrect reference came to Umbhaoa's attention when FAWU
filed a notice of exception to the particulars of claim. The
gist of
the exception was that damages caused by strike action falls within
the exclusive jurisdiction of the Labour Court.
[5]
As
a result of the aforesaid exception Umbhaba's legal representative is
prepared a notice of amendment. In terms of the notice
of amendment
all references to "strike action" were deleted and replaced
with "protest action" and all references
to "strikers"
were replaced with "protestors".
[6]
FAWU
objected to the notice of intention to amend on three grounds. The
first was that Umbhaba seeks to withdraw an admission. The
admission
FAWU alleged was that the conduct in question arose out of and was in
furtherance of strike actions.
[7]
The
second objection was that Umbhaba's proposed amendment does not cure
FAWU's objection to the jurisdiction of this Court. It
wa s stated
that, if the amendment is granted, it will have the consequence that
this issue cannot be determined at the exception
stage, but only by
way of a special plea, after the leading of evidence.
[8]
The third objection was that it was
allegedly not clear whether Umbhaba's particulars of claim are based
in delict or whether it
arose out of riot damage. This objection was
not proceeded with at the hearing.
[9]
It
is trite that a Court will take a benevolent approach to a proposed
amendment and will be inclined to grant it, if it ensures
the proper
ventilation of all material issues at trial, as was stated in
Randa
v Radopile Projects CC
[1]
:
“
Almost
invariably, the decision by the courts to allow an amendment is made
by reference to the statement of the rule or practice
as 'always' to
allow an amendment unless the party applying for it
has
acted
'ma/a
fide' or the
'injustice' to the other side 'cannot be compensated by
costs'
or words to
similar effect..
”
[2]
[10] The
importance of creating an opportunity for the proper ventilation of
disputes in Court was stated
as follows in
Four
Tower Investment (Pty) Limited vs Andre's Motors:
[3]
"The function of
a
court
is,
of course, to
resolve disputes between litigating parties, and justice can only be
done if the real
issues
are defined in
the pleadings and ventilated in court. For this reason it is by now
well established that an application for amendment
will always be
allowed unless it is made
ma/a
fide or would
cause prejudice to the other party which cannot be compensated for by
an order for costs or by some other suitable
order such as a
postponement.
"
[4]
[11] From the aforesaid
three principles crystalized, regarding the approach that should be
followed when
an amendment is sought:
a)
a
Court will generally grant an amendment especially if it ensures a
proper ventilation of all the material issues at trial;
b)
it
will not be granted if it does not introduce or relate to a triable
issue; and
c)
it
will be granted unless the other party suffers prejudice of a nature
which cannot be cured by means of an appropriate costs order.
[12]
The first objection to the objection is
formulated by FAWU as follows:
"1.
The plaintiff's intended amendment seeks to delete all references to
'strike action'
where presently pleaded and replace them with the
words 'protest action'.
2.
This
is
in
response to the second defendant’s exception to the
jurisdiction of this Court because the plaintiff's claim is one for
loss or damages arising out of
a
strike and conduct in furtherance of
such strike, which
section 68(1)(9)
of the
Labour Relations Act 66 of
1995
requires to be adjudicated by the Labour Court;
3.
The
plaintiff accordingly seeks to withdraw an admission that the conduct
in question arose out of and was in furtherance of strike
action and
instead seeks to cloak it with
a
euphemistic phrase that does not
accurately reflect the factual reality."
[13]
An
allegation in a particular of claim does not constitute an admission.
No plea has been filed and it cannot be said that an admission
of the
allegation in the particulars of claim has been made. It is trite
that an admission can only be withdrawn with leave of
the Court.
[5]
[14]
It
seems that the main reason for the objection is that the allegation
as amended differs according to FAWU from the
"factual
reality".
However the factual
correctness will have to be established at trial. Whether the conduct
complained of constitutes strike action
or protest action is a
factual issue on which the parties ostensibly have different views.
This makes it a matter for trial and
the amendment should
consequently be granted to facilitate a trial on this issue. The
amendment of pleadings is not a stage at
which it is permissible to
establish the correctness of factual averments. That is what the
trial is designed for. This ground
of objection is therefore without
merit.
[15]
Regarding the objection that the amendment does not remove the
objection to the jurisdiction of the
High Court FAWU states the
following:
16.1
"The plaintiff's proposed amendment does not cure the second
defendant's objection to the jurisdiction
of this Court. If the
amendment is allowed however, it will have the consequence that this
cannot be determined at the exception
stage, but only by way of
special plea, after leading of evidence. This will simply lead to an
escalation in costs.
"
[16]
The granting of the amendment, by FAWU's
own admission, will provide it with an opportunity to still challenge
the jurisdiction
of the Court by means of a special plea. It is
therefore not prejudiced in a manner that cannot be cured by means of
an appropriate
order for costs.
[17]
FAWU accepts that the amendment will be
destructive of its exception. That too does not constitute the type
of prejudice that will
preclude an amendment from being granted.
Insofar as the exception challenges jurisdiction, that challenge will
still be available
to FAWU at the trial by means of a special plea,
but only after the leading of evidence. There is therefore no basis
in fact or
in law upon which the amendment should not be granted.
[18]
There is also another factor and this is
that FAWU is not the only Defendant. Umbhaba also claims damages from
the Minister. Considerations
of convenience and effective
administration of justice require that actions against multiple
parties be heard in a single process,
rather than piecemeal. The gist
of FAWU's objection is that the Labour Court would have jurisdiction
over the case against it.
It however needs to be noted that the
Labour Court does not have jurisdiction over the claim against the
Minister. Due to the interrelated
conduct of the protesters, and the
response, or lack thereof on the part of the Minister, as set out in
the particulars of claim,
it is necessary that the action against
both the Minister and FAWU be heard in the same proceedings.
[19]
In the light of the aforesaid there is
no merit in the objections raised and the amendment should be
granted.
COSTS
[20]
A party seeking to amend its papers is
seeking an indulgence from the Court and should ordinarily bear the
costs of the application.
[21]
It was argued on behalf of Umbhaba that
the opposition in this matter was unreasonable and that FAWU should
be ordered to pay the
costs. I am of the view that the opposition was
indeed unreasonable and that FAWU should pay the costs. Both parties
were represented
by senior counsel, Umbhaba was also represented by
junior counsel, but it was indicated that costs for two counsel will
not be
sought.
[22]
The following order is made:
21.1
The Plaintiff is
granted leave to amend its particulars of claim in accordance with
its notice of intention to amend served on 26
October 2018.
21.2
Second Defendant is ordered to
pay Plaintiff's costs of this application, which costs will include
the costs of senior counsel.
R G TOLMAY
JUDGE OF THE HIGH COURT
DATE OF
HEARING:
11 JUNE 2019
DATE OF
JUDGMENT:
27 JUNE 2019
ATTORNEY
FOR PLAINTIFF: ADAMS AND ADAMS
ADVOCATE
FOR PLAINTIF: ADV E C LABUSCHAGNE (SC)
ADV S G MARITZ
ATTORNEY FOR FIRST
DEFENDANT:
STATE ATTORNEY
ADVOCATE FOR FIRST
DEFENDANT:
NOT REPRESENTED
ATTORNEY
FOR SECOND
DEFENDANT:
CHEADLE THOMPSON & HAYSIM INC
ADVOCATE
FOR DEFENDANT: ADV T M G EUIJEN (SC)
[1]
2012(6) SA 126 (Randa)
[2]
Randa, par 12
[3]
2001 (4) SA 211
(W) at par [10] (Four Tower)
[4]
Four Tower. Par 15
[5]
President Versekeringsmaatskappy v Moodley 1964(4) SA 109 (T) at p
110