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[2019] ZAECMHC 57
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Ntangazana v Member of the Executive Council for the Department of Education, Eastern Cape Province (5479/2018) [2019] ZAECMHC 57 (22 October 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION :MTHATHA
Case
No.: 5479/2018
Date
heard
:
17
October 2019
Date
delivered :
22
October 2019
In
the matter between:
THEMBAKAZI
NTANGAZANA Plaintiff
and
MEMBER OF THE
EXECUTIVE COUNCIL
FOR THE DEPARTMENT OF
EDUCATION,
EASTERN
CAPE
PROVINCE Defendant
JUDGMENT
BENEKE,
A.J.:
[1]
This matter involves an exception which the
Defendant took against the Plaintiff’s particulars of claim.
[2]
The Defendant’s notice of exception
alleges only that the Plaintiff has failed to plead whether or not
the claim for damages
arises either out of a
delict
or a
contract
or out of
both
.
The Defendant further alleges that, irrespective of whether or not
the claim is based in
contract
or
delict
or
both
,
there are insufficient allegations to sustain a cause of action or to
quantify the damages claimed. The Defendant does not
allege
that it is impossible to determine
any
other cause of action
or the
sufficiency of the allegations in respect thereof.
[3]
The
onus is on the Defendant to prove that the pleading under attack is
excipiable on every interpretation that can reasonably be
attached to
it.
[1]
However, in this
regard,
the
Defendant is obliged to confine the complaint to the stated grounds
of the exception.
[2]
Accordingly, if the claim does not fall within contract or delict,
the exception must fail.
[4]
During argument, the attorney for the
Plaintiff submitted that the claim was based neither in contract nor
in delict, but rather
in labour law. This is supported by the
contentions in the Plaintiff’s heads of argument and
supplementary heads of
argument. He submitted further that
sufficient allegations were contained in the particulars of claim to
make out a case
based in labour law. He argued that the
appropriate action for the Defendant, if it was of the view that the
High Court lacked
the requisite jurisdiction to determine a labour
matter, was to raise the point in the plea
.
[5]
From the particulars of claim the following
is apparent:
a.
The Defendant issued an advertisement to
recruit an administrative clerk;
b.
The applicants for the positions should
meet certain requirements;
c.
The Plaintiff applied for the position and
was shortlisted for an interview;
d.
The Plaintiff met more requirements than
the person appointed;
e.
After a dispute was raised the Plaintiff
was eventually appointed;
f.
The Plaintiff claims loss of income as a
result of the delay in appointing her, which delay was occasioned by
the conduct of the
Defendant’s employees in not properly
applying the requirements.
[6]
The allegations are sufficient to suggest,
albeit no more than that, that the claim does not found its basis in
either contract
or delict, but rather in some form of labour law
claim. I am, however, not called upon to decide whether or not
these allegations
are sufficient to meet any claim purportedly based
in labour law. I have, therefore, not dealt with the
sufficiency or otherwise
of those allegations herein.
[7]
Given that the Defendant has not sought to
except on grounds other than insufficiency in relation to
contract
or
delict
,
I am constrained to find in favour of the Plaintiff.
[8]
In light of what I set out above, the
following order shall issue:
1.
The exception is dismissed;
2.
The Defendant shall pay the costs of the
exception.
_______________________________
M
BENEKE
JUDGE
OF THE HIGH COURT (ACTING)
Appearances: For
the Plaintiff :
Mr M Pangwa
On
the Instructions of : Caps Pangwa and
Associates
For
the Defendant :
Mr F Pretorius
On
the instructions of : Changfoot van Breda
Inc.
: c/o Potelwa & Company
[1]
Stewart
v Botha
[2008] ZASCA 84
;
2008 (6) SA 310
(SCA) at 313E-F.
[2]
Feldman
NO v EMI Music SA (Pty) Ltd; Feldman NO v EMI Music Publishing SA
(Pty) Ltd
2010
(1) SA 1
(SCA) at 5A.