Summary of Judgment

1. Introduction

The proceedings were an exception in terms of Rule 23(1) of the Uniform Rules of Court, in which the defendant in the main action sought to have the plaintiff’s particulars of claim set aside on the basis that they did not disclose a cause of action.

The parties were the South African Policing Council (the plaintiff in the main action and the party resisting the exception) and the Public Service Co-ordinating Bargaining Council (the defendant in the main action and the excipient in the exception proceedings).

Procedurally, the matter arose after the South African Policing Council issued summons in the High Court against the Bargaining Council, claiming payment said to be due under an agency shop agreement. The Bargaining Council responded by filing an exception contending that the claim was legally defective because, on the pleaded case, the Bargaining Council was not alleged to be a party to the agency shop agreement and thus could not be burdened with obligations under it.

The dispute concerned the enforcement consequences of an agency shop collective agreement (common cause to be a collective agreement as defined in the Labour Relations Act 1995), and whether the pleadings sufficiently alleged a legal basis for the Bargaining Council’s duty to act in accordance with that agreement and a related Bargaining Council resolution.

2. Material Facts

It was common cause that an agency shop agreement was concluded on 10 February 2005 between representative trade unions and the State as employer. It was also common cause that this agency shop agreement constituted a collective agreement as defined in section 1 of the Labour Relations Act 1995.

In terms of the collective agreement as pleaded and summarised by the court, the State was obliged to deduct an agency fee from the salaries of all employees and to pay those fees to the Bargaining Council. The Bargaining Council, through its Secretary, was then required to divide the amount received between the relevant trade unions in proportion to the number of members in good standing.

On 1 April 2005, the Bargaining Council adopted a resolution confirming the agency shop agreement and recording that the Bargaining Council would monitor the implementation of the agreement.

The South African Policing Council’s particulars of claim alleged (in substance) that the parties to the relevant resolution were the parties constituting the Bargaining Council, and that the Bargaining Council was therefore obliged, as a matter of law, to give effect to the resolution. The pleading further alleged that the resolution was a resolution of the Bargaining Council and that the Bargaining Council was bound to give effect to its own resolutions by operation of section 28 of the Labour Relations Act read with provisions of its constitution, alternatively that the resolution’s provisions imposed an obligation on the Bargaining Council to deposit agency fees into the plaintiff’s bank account which obligation the Bargaining Council had accepted and undertaken to perform. The particulars of claim then quantified the alleged indebtedness with reference to the Bargaining Council’s annual audited statements.

The material dispute for purposes of the exception was not a factual dispute about whether the agreement and resolution existed, but whether the pleaded allegations were legally sufficient to found a cause of action against the Bargaining Council, given the excipient’s contention that the Bargaining Council was not pleaded to be a party to the agency shop agreement.

3. Legal Issues

The central legal question was whether, on the particulars of claim as pleaded, the plaintiff disclosed a cause of action against the Bargaining Council, or whether the particulars were excipiable because they did not allege a legally cognisable duty resting on the Bargaining Council.

This was primarily a question of law and pleading (the legal sufficiency of the pleaded material facts), with an important aspect of application of law to pleaded facts, namely whether the pleaded reliance on the Bargaining Council’s resolution, the statutory framework in section 28 of the Labour Relations Act, and the Bargaining Council’s constitution could potentially sustain the alleged obligation.

A further issue, relevant to the exception enquiry, was the extent to which the court could determine the question where the Bargaining Council’s constitution (which was said to be relevant to the duty contended for) was not attached to the particulars of claim and was not properly before the court, beyond limited extracts quoted in written submissions.

4. Court’s Reasoning

The court approached the matter through established principles governing exceptions. It reiterated that an excipient bears the burden to satisfy the court that upon every interpretation of the pleading, no cause of action is disclosed. In support of this approach, the court referred to Sanan v Eskom Holdings Ltd 2010 (6) SA 638 (GSJ).

The court further reaffirmed that, to disclose a cause of action, a pleading must allege every material fact that would be necessary for the plaintiff to prove at trial. It emphasised that the function of an exception is not to determine whether the plaintiff will ultimately succeed on the evidence; rather, if evidence can be led that would establish the cause of action as alleged, the pleading is not excipiable.

Applying these principles to the particulars of claim, the court considered the Bargaining Council’s argument that no duty could accrue to it unless it was a party to the agency shop agreement, and that the particulars were defective because they did not aver that the Bargaining Council was a contracting party. The court held that this contention did not render the particulars clearly and inevitably bad on every interpretation. The judge indicated that the issue was open to interpretation because the Bargaining Council’s constitution could potentially provide evidence of the nature and extent of its duties when concluding collective agreements under section 28(1)(a) and when enforcing them under section 28(1)(b) of the Labour Relations Act.

A significant feature of the court’s reasoning was its treatment of the absence of the Bargaining Council’s constitution from the pleadings and the record. The constitution was not attached to the particulars of claim, nor was it properly placed before the court, beyond selective quotations in written argument. The court treated this as material because, in exception proceedings, the excipient is confined to the four corners of the pleading and cannot rely on evidentiary matter or documents not incorporated in a manner that makes them part of the pleadings under consideration.

On the pleadings as they stood, the court accepted that the plaintiff had in fact alleged a legal duty on the Bargaining Council arising from the agreement being concluded by its constituent members together with the operation of the Bargaining Council’s constitution and section 28 of the Labour Relations Act, and/or acceptance of the obligation described. The court held that whether these allegations could ultimately be proven was a matter for trial, and that the defendant would remain entitled to advance its contentions in the main proceedings. For purposes of an exception, however, the pleaded allegations were sufficient to avoid the conclusion that no cause of action was disclosed on every interpretation.

5. Outcome and Relief

The court dismissed the Bargaining Council’s exception.

The court ordered the Bargaining Council (as excipient/defendant) to pay the costs of the exception proceedings.

Cases Cited

Sanan v Eskom Holdings Ltd 2010 (6) SA 638 (GSJ)

Legislation Cited

Labour Relations Act 66 of 1995, section 1

Labour Relations Act 66 of 1995, section 28 (including references to section 28(1)(a) and section 28(1)(b))

Rules of Court Cited

Uniform Rules of Court, Rule 23(1)

Held

The High Court held that the excipient failed to show that, on every interpretation of the particulars of claim, no cause of action was disclosed. The plaintiff had pleaded that the Bargaining Council was obliged to give effect to an agency shop agreement and related resolution, relying on the Bargaining Council’s resolution and the statutory and constitutional framework said to bind it. Given that the Bargaining Council’s constitution was not properly before the court and that the exception had to be determined within the four corners of the pleading, the pleaded basis for the alleged obligation was regarded as sufficient for purposes of surviving exception, leaving proof to be determined at trial.

LEGAL PRINCIPLES

An exception on the ground that a pleading discloses no cause of action will succeed only if the excipient establishes that on every reasonable interpretation of the pleading, the pleading is bad in law and cannot sustain the claim advanced.

A pleading discloses a cause of action only if it alleges the material facts necessary for the claimant to succeed. However, exception proceedings do not determine the truth of the allegations or the probability of proof; if evidence may be led to establish the claim as pleaded, the pleading is not excipiable on the basis of lacking a cause of action.

In deciding an exception, the court is confined to the four corners of the pleading. Where an alleged duty depends on the content of a document (such as a constitution) that is not attached or otherwise properly incorporated into the pleadings, the excipient cannot cure the deficiency in its argument by reliance on selective extracts in submissions; the absence of that material from the record limits the court’s ability to conclude, on exception, that the claim is legally unsustainable.