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[2013] ZAFSHC 236
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Moshou v Truworths Limited t/a Truworths (5188/2010) [2013] ZAFSHC 236 (21 November 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case
No: 5188/2010
In
the matter between
ISHMAEL
MOLEHE
MOSHOU
........................................................................................
Plaintiff
and
TRUWORTHS
LIMITED t/a
TRUWORTHS
.................................................................
Defendant
JUDGMENT
BY
:
POHL, AJ
HEARD
ON
:
1 NOVEMBER 2013
DELIVERED
ON:
21
NOVEBER 2013
INTRODUCTION
[1]
Plaintiff in this matter
issued summons against the defendant in which he claims an amount of
R1 552 000,00 from the defendant.
There were previous exceptions
filed by the defendant against the plaintiff’s particulars of
claim, after which the plaintiff
amended his particulars of claim.
After amending the particulars of claim the defendant once again
excepted against two of the
three claims contained in the plaintiff’s
particulars of claim. The exceptions, which will be dealt with in
more detail hereunder,
were aimed at claim 1 and claim 2 of
plaintiff’s particulars of claim.
THE
PLEADINGS
[2]
The relevant portion of
plaintiff’s claim 1 as it appears from the particulars of
claim, reads as follows:
“
3.
On
or about 15 December 2006, defendant appointed plaintiff as employee
in defendant’s clothing shop at Thaba ‘Nchu,
Free State
Province as appears from annexure
“
A”
hereto, namely the appointment as accepted by plaintiff.
4.
In
terms of annexure
“
A”
above:
4.1
plaintiff was appointed as
service desk consultant;
4.2
plaintiff was appointed on
probation. The period of probation lapsed and plaintiff’s
appointment became permanent. At all
relevant times hereto, plaintiff
was in the permanent employ of defendant.
5.
Plaintiff
was appointed in terms of the rules of defendant until the age of 65.
Plaintiff’s appointment was therefore a full
time appointment
until plaintiff would reach the age of 65.
6.
It
was an express, alternatively and(sic) implied term of plaintiff’s
agreement of employment (contract):
6.1
that his services
would only be terminated (including any suspension) if done lawfully.
CLAIM
1:
7.1
During February or March
2008, defendant accused plaintiff orally of theft of approximately
R118 000,00 in cash from defendant’s
shop where plaintiff was
working.
7.2
On 10 March 2009 defendant
suspended plaintiff with immediate effect on full pay and on full
benefits as appears more fully from
annexure
“
B”
hereto.
7.3
On 3 April 2008, defendant
gave notice of a disciplinary hearing, charging plaintiff with:
7.3.1
misconduct: gross
dishonesty (charge 1) or
7.3.2
misconduct: gross
negligence (charge 2).
7.4
The full particulars of the
allegations levelled against plaintiff appear from annexure
“
C”
hereto being the notification to appear at the disciplinary hearing
on 4
th
April 2008.
7.5
At conclusion of the
disciplinary hearing, defendant terminated plaintiff’s contract
as appears more fully from annexure
“
D”
hereto being a letter of dismissal.
8.
Defendant
and its officials, representing defendant at all relevant times, and
more particular:
8.1
in suspending plaintiff
and;
8.2
conducting the disciplinary
hearing against plaintiff;
were
at all relevant times aware that plaintiff was not guilty of any of
the charges against him, did not believe in the truth thereof
and
knew that there were no grounds for charging plaintiff with
misconduct and terminating his contract.
9.
In
terminating plaintiff’s contract on 4
th
April 2008
with the said knowledge that he is not guilty of and did not commit
any misconduct, defendant:
9.1
acted intentionally,
wrongfully and unlawfully and;
9.2
intentionally, wrongfully
and unlawfully repudiated the contract (agreement of employment)
between plaintiff and defendant.
10.
In
conclusion, defendant’s conduct constituted an unlawful breach
of agreement and a repudiation of the agreement of employment
between
the parties. Plaintiff accepts defendant’s repudiation of the
agreement of employment and claim damages.
11.
Also,
as a result of defendant’s unlawful repudiation of plaintiff’s
employment contract, plaintiff suffered damages
in the amount of R1
152 000.00, made up as follows:
Remainder
of employment agreement until age 65
(32
years x R3 000,00 per month) R115 200.00”
[3]
After properly giving the
plaintiff notice in terms of the provisions of rule 23(1) that
plaintiff’s particulars of claim
is alleged to be vague and
embarrassing and lack averments necessary to sustain a cause of
action, the plaintiff excepted to claims
1 and 2 of plaintiff’s
particulars of claim, as amended. The first exception against claim 1
of plaintiff’s particulars
of claim reads as follows:
“
1.
The Plaintiff contends, in paragraph 6 of the Amended Particulars,
that it was an express, alternatively an implied term of the
Plaintiff’s
employment
contract with the Defendant that his services would only be
terminated (including any suspension) if done “
lawfully”
.
2.
The Plaintiff contends
further, in paragraphs 7 - 8 of the Amended Particulars, that he was
dismissed following a disciplinary hearing
where he was found guilty
on a charge of dishonesty, despite the fact that there was no merit
in the charges against him and that
the Defendant was aware of this.
3.
The Plaintiff contends
further, in paragraph 9 of the Amended Particulars, that in
terminating his employment contract with the
knowledge that he is not
guilty of and did not commit any misconduct, the Defendant
“
acted
intentionally, wrongfully and unlawfully
”
and
“
intentionally,
wrongfully and unlawfully repudiated the [employment] contract
”.
4.
When regard is had to the
Plaintiff’s employment contract (attached as annexure (“A”)
to the Amended Particulars),
it is evident that the contract does
not
contain an
express term to the effect that the Plaintiff’s employment
would only be terminated if done “lawfully”,
as alleged.
5.
In the premises, the
Plaintiff can only rely on an alleged implied contractual term to
that effect.
6.
The Plaintiff’s
purported reliance on an implied contractual term that his employment
would only be terminated if done
“
lawfully
”,
is however bad in law in
that such a term is
not
implied as a
matter of law into contracts of employment of the kind relied upon by
the Plaintiff.
7.
When regard is had
particularly to paragraph 8 of the Amended Particulars, it appears
that, in this instance, the alleged
“
unlawfulness”
of the Defendant’s
termination of the Plaintiff’s employment contract lies therein
that the Defendant allegedly terminated
the Plaintiffs employment for
an unfair reason (i.e. finding the Plaintiff guilty of dishonesty
when in fact he was not).
8.
Apart from referring to the
reasons for his dismissal as aforesaid, no other factual basis for
the alleged
“
unlawfulness
"
of the Defendant’s
termination of the
Plaintiff’s employment contract, appears from the Amended
Particulars.
9.
In the light of the
aforegoing, it is patent that the Plaintiff’s allegation that
he has been
“
unlawfully
”
dismissed, is in fact no
other than an allegation that he has been dismissed for an unfair
reason and possibly, in accordance with
an unfair procedure.
10.
Such claim should, in terms
of the Labour Relations Act, No. 66 of 1995 (“the LRA”),
have been referred to the Commission
for Conciliation, Mediation and
Arbitration (“the CCMA”) as an unfair dismissal dispute
instead.
11.
The attempt by the
Plaintiff to pursue a contractual damages claim for unfair dismissal
in the High Court (based on an alleged implied
contractual right not
to be
“
unlawfully
”
dismissed), is a blatant
attempt to circumvent the LRA and should not succeed.
12.
In the premises, the
Amended Particulars, insofar as Claim 1 is concerned, fail to make
out a coherent or ascertainable cause of
action, or to plead facts
capable of sustaining a cause of action; ...”
[4]
Mr Zazeraj, who appeared
for the defendant, referred the court to the case of
South
African Maritime Safety Authority v
McKenzie
2010 (3) SA 601
(SCA)
wherein the court stated at 610 paras [12] - [13]:
“
[12]
In our law as it stands at present the usual test for the existence
of a tacit term is that of the interfering bystander who
asks what is
to happen in the particular situation and receives the answer: ‘Of
course X will be the position. It is too
obvious for us to say so.’
The application of that test in relation to the term pleaded on
behalf of Mr McKenzie is destructive
of the contention that his
employment contract is subject to that term. I have little doubt that
the bystander’s query as
to what would happen if Mr McKenzie
was unfairly dismissed would have attracted the response: That is
dealt with in the LRA. We
don’t need to provide for it’,
rather than the unequivocal and
mutual agreement that is the necessary cornerstone of a case founded
on a tacit term. If the question
had been posed in terms that
suggested there might be a contractual entitlement to the damages
claimed in this case that might
have been welcomed by Mr McKenzie,
but I doubt that SAMSA would have agreed.
[13]
That leaves, as the foundation for the pleaded allegation, only the
possibility of an implied term properly so called. Such
a term could
either be said to flow from the provisions of s185 of the LRA dealing
with unfair dismissal or could lie in a development
of the common law
in accordance with section 39(2) of the Constitution. In argument the
appellant based his case on the first of
these and it is that
argument that I now address. In doing so I first address some issues
of principle.”
And
at 612, para [16]:
“
[16]
Where a statute creates both a right and a means for enforcing that
right the position is that:
‘
We
must look at the provisions of the Act in question, its scope and its
object, and see whether it was intended when laying down
a special
remedy that that special remedy should exclude ordinary remedies. In
other words, we have no right to assume, merely
from the fact that a
special remedy is laid down in a statute as a remedy for a breach of
a right given under statute, that other
remedies are necessarily
excluded.’
If
on a proper interpretation of the statute in question the legislature
has confined a person harmed by a breach of the right conferred
therein to the statutory remedy then resort to other means of
enforcement is excluded. Accordingly both the scope of the right
itself
and the means
of enforcing that right are determined by the intention of the
legislature as ascertained on a proper interpretation
of the
legislation. It follows from the authorities mentioned in paragraph 7
of this judgment that it is now clearly established
that in order to
enforce the statutory right not to be unfairly dismissed as embodied
in section 185 of the LRA an injured party
must have resort to the
tribunals established under the LRA, being either the CCMA or in some
instances the Labour Court.”
[5]
It must be born in mind
that this exception does not raise the question as to the
jurisdiction of this court. This court always
has jurisdiction over
contractual matters. The question is really whether or not the
plaintiff’s remedy lies within the parameters
of the
Labour
Relations Act. If
so, the persuance of his remedy lies within the
forums created by the
Labour Relations Act and
not in this court.
[6]
From the contract of
employment annexed to the plaintiff’s particulars of claim, it
is clear that there is absolutely no express
term to the effect that
his services could only be terminated if done “lawfully”.
The plaintiff does not rely in his
particulars of claim on a tacit
term, but even if he did so, I find that applying the interfering
bystander test as enunciated
by the Supreme Court of Appeal in the
McKenzie
decision, supra, the answer
of the said interfering bystander would be that the remedy would lie
within the structures created by
the
Labour Relations Act.
[7
]
Even if I accept that the
plaintiff will be able to prove each and every element of the
allegations contained in his particulars
of claim with reference to
his claim 1, it would probably fall squarely within the provisions of
section 188
of the
Labour Relations Act, 66 of 1995
. The relevant
portion of this section reads as follows:
“
188
Other unfair dismissals
(1)
A dismissal that is not automatically unfair, is unfair if the
employer
fails
to prove-
(a)
that the reason for dismissal is a fair reason-
(i)
related to the employee's conduct or capacity; ...”
It
would thus appear that even on that basis, the plaintiff’s
claim and/or remedy lies within the structures of the
Labour
Relations Act.
>
[8]
Based on the
McKenzie
decision, supra,
I also find that there is
no basis for inferring the alleged implied term that the dismissal
would only be done if done “lawfully”.
On the contrary,
if one reads the totality of the plaintiff’s particulars of
claim it is clear that what the plaintiff in
effect alleges by the
allegation that the dismissal could only be done if done lawfully, is
nothing other than the allegation to
the effect that he should not be
dismissed unfairly. Once that is the case and I find that it is so,
then the plaintiff’s
remedy lies within the four corners of the
Labour Relations Act.
[9
]
In the premises I therefore
find that the plaintiff’s claim 1 does not disclose a cause of
action and that the exception to
claim 1 must therefore be upheld.
SECOND
EXCEPTION: CLAIM 2
[10]
This brings me to the
defendant’s second exception to plaintiff’s claim 2. In
this regard it is once again necessary
to have regard to the
pleadings.
[11]
Plaintiff’s claim 2
may be described as one of malicious prosecution. Claim 2 reads as
follows:
“
12.
12.1
Defendant also on 10 March
2008 laid criminal charges against plaintiff with the South African
Police Services at Selosesha, district
Thaba ‘Nchu.
12.2
The complaint was that
plaintiff stole cash in the amount of R118 000.00 at the shop in
Thaba ‘Nchu where plaintiff was employed.
12.3
While initiating the
criminal investigation against plaintiff, defendant knew that there
were no grounds on which plaintiff could
ever be found guilty.
12.4
When laying this charge and
giving this false information, defendant had no reasonable or
probable cause for so doing, nor did they
have any reasonable belief
in the truth of the information given.
12.5
Defendant therefore
wrongfully and maliciously set the law in motion by laying a false
charge of theft against plaintiff with the
South African Police
Services at Selosesha by giving them false information, namely that
plaintiff stole an amount of approximately
R118 000.00 from
defendant.
13.
As
a result of defendant’s conduct, plaintiff was arrested and
held in
custody for
seven days before he was released.
14.
No
criminal trial took place and the charge against plaintiff was
withdrawn by defendant at the Magistrates Court at Thaba ‘Nchu
and with the police at Thaba ‘Nchu on or approximately May
2008.
14.
Plaintiff
was therefore maliciously prosecuted by defendant.
15.
As
a result of defendant’s (unlawful) conduct, plaintiff suffered
damages in the amount of R300 000.00 for deprivation of
his freedom,
discomfort and
contemelia."
In
essence the defendant’s exception to this claim is that it is
excipiable as it fails to disclose of a cause of action alternatively
is vague and embarrassing because, according to defendant, plaintiff
pleads his own conclusions as to opposed to material facts
he would
have to prove in order to sustain the cause of action. According to
defendant it thus lacks the requisite particularity
to allow the
defendant to plead thereto in a meaningful manner as defendant does
not know which case it has to meet and defendant
would thus be
prejudiced if the exception is not upheld.
[12]
It is apposite to quote the following dictum of Gamble J in
M
N v A J
2013
(3) SA 26
(WCC), relying on
Suid-Afrikaanse
Onderlinqe
Brand- en Algemene Versekerinqsmaatskappy
Bpk v Van den
Berg en 'n Ander
1976 (1) SA 607E:
“
[24]
While pleadings must be drafted carefully, a court should not read
them pedantically nor should it over-emphasise precise formalistic
requirements: the substance
of the allegations should be properly considered.”
[13]
When dealing with an
exception I am mindful of the trite legal principle that in order to
succeed an excipient has a duty to persuade
the court that upon every
interpretation of the pleading in question, and in particular the
document on which it is based, can
reasonably bear, no cause of
action or defence is disclosed: failing this, the exception ought not
to be upheld. It is thus furthermore
apposite to refer to the dictum
of CJ Claassen J in the decision SANAN v Eskom Holdings
2010 (6) SA 638
(GSJ) at
page 645D:
“
[21]
It would seem to me that the nature of the defence raised by a
special plea or exception is more important than the procedure
adopted. It is the nature of such defence which would determine
whether or not evidence is required, and whether or not the defence
should have been raised in initio litis,
or whether it can be raised
on appeal. How the defence is raised is of lesser importance than the
grounds for the defence and point
in time that it is raised. It is
trite law that an exception which can be cured by evidence at the
trial will not succeed. It is
also trite that an exception will only
succeed if it held good on any interpretation of the pleading. Thus,
whether the defence
is raised as a special plea or by way of
exception will matter little if evidence will cure the defect, or if
a proper interpretation
of the pleading will cure the defect.”
[14]
If one has regard to the
totality of the particulars of claim in casu, and all the allegations
contained therein, I cannot find
that it lacks sufficient
particularity and/or allegations to the extent that it is vague and
embarrassing and/or that it does not
disclose a cause of action. I am
thus also not persuaded that on every interpretation of the relevant
claim (claim 2), it does
not disclose a cause of action. The
exception raised against plaintiff’s second claim should
therefore be dismissed.
COSTS
[15]
The last question that
falls to be determined by this court is the question with regards to
the appropriate order as to costs. Mr
Heymans who appeared for the
plaintiff submitted to the court that if I should uphold one of the
exceptions and dismiss the other
exception, then each party should
pay its own costs.
[16]
Mr Zazeraj however
submitted that even on that scenario, the plaintiff was substantially
successful. His argument was that the plaintiff
could have amended
its pleading, but chose not to do so and chose to argue the
exception. Both counsel also submitted that in exercising
my
discretion, I should have regard to the extent of the monetary values
of the relevant claims so decided in this exception.
[17]
In this regard it
must be noted that claim 1 is by far the largest claim of plaintiff's
three claims. Claim 1 is for R1 152 000.00,
Claim two is for R300
000.00.
[18]
Although the defendant only
succeeded with one of the two exceptions, it is by far the larger of
the two claims. I agree with Mr
Zazeraj that in all the circumstances
of the case, the defendant was substantially successful. There is
thus no reason why the
order as to costs should not be awarded to the
defendant.
ORDER
:
[19]
In the premises I make the following Order:
1.
The exception to claim 1
(dated 11 September 2013), succeeds.
2.
The exception to claim 2
(dated 11 September 2013), is dismissed.
3.
The plaintiff is granted
leave, if so advised, to amend claim 1 of his particulars of claim
within 21 days of date of this order.
4.
Should the plaintiff fail
to comply with 4 above, the defendant is granted leave to apply,
without further notice to plaintiff,
for an order dismissing the said
claim.
5.
The plaintiff must pay the
defendant's costs.
L.
le R. POHL, AJ
On
behalf of plaintiff: Adv. P. J. Heymans
Instructed
by: Mphafi Khang Inc
BLOEMFONTEIN
On
behalf of defendant: Adv. L. Zazeraj
Instructed
by:
Lovius
Block
BLOEMFONTEIN