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[2017] ZAGPPHC 355
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Bhengu and Others v G4S Cash Solutions (SA) (Pty) Ltd (34196/2014) [2017] ZAGPPHC 355 (28 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
PROVINCIAL DIVISION, PRETORIA
Case
No: 34196/2014
28/3/2017
In
the matter between:
DAVID
BHENGU & 52
OTHERS
Plaintiffs
and
G4S
CASH SOLUTIONS (SA) (PTY)
LTD
Defendant
Case
Summary:
Exception - against summons
that particulars of claim lacked averments necessary to sustain an
action - delictual claim based on
a novel legal duty not to act
negligently- objection that the legal duty relied upon, which amounts
to a duty on the part of an
employer to act fairly in dealing with
its employees, does not exist in our law and that the common law
should not be developed
to recognise such duty - a decision on the
existence of the novel legal duty asserted entails a policy decision
and value judgment
and should not be taken without evidence and only
on the allegations in the particulars of claim, which only reflect
the facts
on which the plaintiffs rely. Exception dismissed with
costs.
JUDGMENT
[1]
This is an exception, raised by the defendant, G4S Cash
Solutions (Pty) Ltd, against the summons of the plaintiffs, David
Bhengu
and 52 others, asserting that the particulars of claim lacked
averments necessary to sustain an action.
[2]
By the nature of exception proceedings the correctness of the
facts averred in the particulars of claim must be assumed (see for
example
Trustees, Two Oceans Aquarium Trust v Kantey
&
Templer (Pty)
Ltd
2006 (3) SA 138
(SCA) paras 3-10;
Stewart
&
another v Botha
&
another
[2008] ZASCA 84
;
2008 (6) SA 310
(SCA)
para 4). And as was said by Brand JA in
Trustees, Bus
Industry Restructuring Fund v Break Through Investments
CC &
others
2008 (1) SA 67
(SCA) para 11-
Because
the respondents chose the exception procedure - instead of having the
matter decided after the hearing of evidence at the
trial - they had
to show that the appellants' claim is (not may be) bad in law.'
[3]
According to the particulars of claim the defendant conducts
business in the security services industry and renders,
inter
alia,
cash handling services to its clients. The plaintiffs were
all employed by the defendant at its Cleveland branch and they were
members
of the Motor Transport Workers Union of South Africa, a trade
union registered in terms of the Labour Relations Act 66 of 1995 (the
union). On 16 January 2009, the union issued a strike notice to the
defendant advising it that the union's members would embark
on a
strike action, which would commence at 6.00 am on 20 January 2009
(the planned strike action). On 17 January 2009, the defendant
obtained an interim interdict from the Labour Court interdicting the
planned strike action pending the finalisation of the interdict
proceedings. The union provided the defendant with such an
undertaking and issued a notice to its members advising them that the
planned strike action would be postponed. On 20 January 2009, the
defendant obtained a final interdict from the Labour Court declaring
the planned strike action unprotected and interdicting the union from
encouraging and inciting the defendant's employees to participate
in
the strike action. In compliance with the interim and final
interdicts, and the undertaking given by the union, the plaintiffs
returned to work on 20 January 2009.
[4]
However, on 20 January 2009, as a result of certain unrelated
events that were the source of grievances and fears on the part of
the plaintiffs, they refused to commence work. In response to the
plaintiff's refusal to commence work, the defendant's Mr Jiggs
de Wet
issued an ultimatum (the first ultimatum) to the plaintiffs, which
reads as follows:
'RE
PROCEDURAL AND UNPROTECTED INDUSTRIAL ACTION
This
is to confirm that you have embarked on an unprocedural and
unprotected industrial action in terms of the
Labour Relations Act No
66 of 1995
.
Such
action is detrimental to the company's operations.
Any
employee involved in this unprocedural and unprotected industrial
action and failing to report for duty by 08h30 will be subject
to
disciplinary action, which may result in their dismissal.
An
employee wishing to make representations prior to the expiry of this
ultimatum may do so by contacting Carl Delport/Jiggs de
Wet.'
Mr
de Wet thereafter issued another ultimatum (the second ultimatum)
extending the deadline for the plaintiffs to return to work
to 9.00
am.
[5]
Prior to the expiry of the second ultimatum, at approximately 8.45
am, the plaintiffs nominated two intermediaries, Messrs Gys
and
Saunders (the plaintiffs' intermediaries), to make representations to
the defendant's Mr de Wet to explain the reason for their
refusal to
commence work. The plaintiffs' intermediaries made representations to
Mr de Wet, who made a proposal to them, which
included the condition
that they return to work. The plaintiffs' intermediaries communicated
Mr de Wet's proposal to the plaintiffs
who, according to the
particulars of claims, accepted his proposal. When the plaintiffs'
intermediaries returned to Mr de Wet to
inform him that they had
accepted his proposal and would return to work, he advised them that
the ultimatum had expired and that
they had been suspended pending a
disciplinary enquiry at the instruction of the defendant's operations
director, Mr Jack Rode.
[6]
On 8 July 2009, all the plaintiffs were dismissed following a
disciplinary enquiry during January and February 2009. The misconduct
with which they were charged related to their refusal to commence
work on 20 January 2009 and their failure to timeously comply
with
the defendant's ultimatums. The plaintiffs appealed the findings of
the disciplinary enquiry, but the appeal was dismissed
during October
2009. They then launched applications for their reinstatement and for
compensation in the Labour Court. On 26 October
2012, the Labour
Court dismissed their applications and upheld their dismissals as
procedurally and substantively fair. It is alleged
that because of
their dismissals, all the plaintiffs have been unemployed since 8
July 2009.
[7]
The plaintiffs then instituted the present delictual claim
against the defendant in which they seek to hold the defendant
vicariously
liable for the pure economic loss that they allege they
had suffered as a result of the alleged negligent conduct of the
defendant's
employees, Messrs De Wet and Rhode, in their dealings
with the plaintiffs and their intermediaries on 20 January 2009.
Based on
s 10 of the Constitution of the Republic of South Africa,
1996, which provides that '[e]veryone has inherent dignity and the
right
to have their dignity respected and protected', and the common
law, the plaintiffs assert a novel legal duty not to act negligently,
which they allege Messrs De Wet and Rhode owed them.
[8]
The exception with which the defendant persisted at the
hearing of this matter is that the legal duty relied upon by the
plaintiffs
- which the defendant contends amounts to a duty on the
part of an employer to act fairly in dealing with its employees -
does
not exist in our law and that the common law should not be
developed to recognise such a duty. I am, however, of the view that a
decision on the existence of the novel legal duty asserted by the
plaintiffs entails a policy decision and value judgment and should
only be decided after the hearing of evidence at the trial, and not
without evidence and on the allegations in the particulars
of claim
alone, which only reflect the facts on which the plaintiffs rely.
[9]
In
Children's Resource Centre Trust and Others v Pioneer
Food (Pty) Ltd and Others
2013 (2) SA 213
(SCA), para 37, Wallis
JA said the following:
'...
Take a delictual claim based on a novel legal duty not to act
negligently. The existence of such a duty depends on the facts
of the
case and a range of policy issues. The need for the court to be fully
informed in regard to the policy elements of the enquiry
militates
against that decision being taken without evidence. As Hefer JA said
[Minister of Law and Order v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(A) at
318E-I:
"As
the judgments in the cases referred to earlier demonstrate,
conclusions as to the existence of a legal duty in cases for
which
there is no precedent entail policy decisions and value judgments
which shape and, at times, refashion the common-law [and]
must
reflect the wishes, often unspoken, and the perceptions, often dimly
discerned, of the people
(per
MM
Corbett in a lecture reported
sub nom
Aspects
of the Role of Policy in the Evolution of the Common Law in
(1997)
SALJ
104
at 67). What
is in effect required is that, not merely the interests of the
parties
inter se
but
also the conflicting interests of the community, be carefully weighed
and that a balance be struck in accordance with what the
Court
conceives to be society's notions of what justice demands.
(Corbett
(op cit
at 68); JC van der Walt Duty of care:
Tendense in die Suid-Afrikaanse en Engelse regspraak 1993 (56)
THRHR
AT 563-4.) Decisions like these can seldom be
taken on a mere handful of allegations in a pleading which only
reflects the facts
on which one of the contending parties relies. In
the passage cited earlier
Fleming
rightly
stressed the interplay of many factors which have to be considered.
It is impossible to arrive at a conclusion except upon
a
consideration of all the circumstances of the case and of every other
relevant factor.'
[10]
Finally, the matter of costs. The plaintiffs seek a punitive
costs order against the defendant. I am, however, in all the
circumstances
not satisfied that this is one of those 'rare'
occasions where a deviation from the ordinary rule that the
successful party is
awarded costs as between party and party, is
justified. (See
LAWSA
Vol 3 Part 22nd Ed para 320.)
[11]
In the result the following order is made: The exception is
dismissed with costs.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
Date
of hearing: 7 September 2016
Date
of judgment: 28 March 2017
Excipient's
counsel: RG Beaton SC
Instructed
by: Cowen-Harper Attorneys, Sandton
C/o
Gross Papadopulo & Associates, Brooklyn,
Pretoria
Plaintiff's
counsel: D Ehrlich
Instructed
by: Mbana Inc, Woodmead
C/o
Savage Jooste and Adams Inc., Brooklyn,
Pretoria