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[2011] ZAFSHC 133
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Strickett v Matjhabeng Local Municipality (4583/2010) [2011] ZAFSHC 133 (18 August 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 4583/2010
In the matter between:
CARIN STRICKETT
….............................................
Plaintiff/Respondent
and
MATJHABENG LOCAL
MUNICIPALITY
…............
Defendant/Excipient
JUDGMENT:
HANCKE, J
_____________________________________________________
HEARD ON:
12 AUGUST 2011
_____________________________________________________
DELIVERED ON:
18 AUGUST 2011
[1] This is an exception
against the plaintiff’s particulars of claim on the basis of
not disclosing a cause of action, alternatively
being vague and
embarrassing. The plaintiff is seeking damages in the amount of R3
466 684,00 from the defendant, arising from
the alleged breach of a
fixed term contract of employment.
[2] In relation to the
said contract of employment, the plaintiff pleads as follows in her
particulars of claim:
“
3.1 On 1
December 2009 and at Welkom, the plaintiff, acting personally and the
defendant represented by its Municipal Manager, T.
H. E. Pietersen,
entered into an oral contract of employment in terms whereof the
defendant employed the plaintiff as Chief Financial
Officer of the
defendant;
3.2 The employment of the plaintiff by
the defendant as aforesaid was done under the provisions of Section
57 of the Local Government:
Municipal Systems Act No. 32 of 2000
(“the Act”);
3.3 In contemplation of the provisions
of Section 57 of the Act read together with the provision of
Section
29
of the
Basic Conditions of Employment Act, No. 75 of 1997
, the
defendant, represented by its Municipal Manager, T. H. E. Pietersen,
presented the plaintiff, on 1 December 2009, with annexure
“
A
”
hereto, being written Conditions of Employment, the terms and
conditions whereof plaintiff orally accepted at the time of
concluding the oral agreement referred to in paragraph 3.1 above.”
[3] It is the defendant’s
case that in order to disclose a cause of action the plaintiff has to
allege that a
written
contract of employment was entered into
and that a performance agreement was entered into in compliance with
section 57 of the
Act. Furthermore, the particulars of claim do not
disclose a cause of action in that there is no allegation that there
was compliance
with all the conditions as provided for in section 57
of the Act in that:
(a) A written contract of
employment was entered into; and
(b) A performance
agreement was entered into.
[4] Section 57 of the Act
provides as follows:
“
(1) A person
to be appointed as the Municipal Manager of a Municipality, and a
person to be appointed as a Manager directly accountable
to the
Municipal Manager, may be appointed to that position only:
in terms of a written employment
contract with the Municipal complying with the provisions of this
section; and
subject to a separate performance
agreement concluded annually as provided for in sub-section 2.
(2) The performance agreement referred
to in sub-section (1)(b) must:
(a) be concluded within a reasonable
time after a person has been appointed as the Municipal Manager or as
a Manager directly accountable
to the Municipal Manager, and
thereafter, within one (1) month after the beginning of the financial
year of the Municipality;
(b) in the case of the Municipal
Manager, be entered into with the Municipality as represented by the
Mayor or Executive Mayor,
as the case may be; and
(c) in the case of a Manager directly
accountable to the Municipal Manager, being entered into with the
Municipal Manager.
(3) The employment contract referred
to in sub-section (1) (a) must include, subject to the applicable
labour legislation, details
of duties, remuneration, benefits and
other terms and conditions of employment.
(4) The performance agreement referred
to in sub-section (1)(b) must include:
(a) performance objectives and targets
that must be met, and the time frames within which those performance
objectives and targets
must be met;
(b) standards and procedures for
evaluating performance and intervals for evaluation; and
(c) the consequence of substandard
performance.”
[5] Mr Louw, counsel for
the plaintiff, submitted that the above provisions do not require a
written contract that has been signed
by the parties. This is in
contrast to the provisions of certain other statutes that prescribe
formalities for the conclusion of
enforceable agreements, where
signature
is an express requirement. In this regard he relied
on
MAFIHLA v GOVAN MBEKI MUNICIPALITY
[2005] 4 BLLR 334
(LC) where the following was stated at para [29]:
“
It is clear
from this provision and from the provisions of many other similarly
worded statutes that if the Legislature requires
that a written
agreement must be signed by the parties, it says so expressly. …
What is required is an agreement in writing,
it is sufficient that a
written document has been adopted and acted upon by the parties.”
1
[6] It is important to
note that section 57(1) does not require that the written agreement
must be
signed
by the
parties. What is required is an agreement in writing that has been
adopted and acted upon by the parties. It appears from
the
particulars of claim that the parties have adopted a written
agreement, annexed to the plaintiff’s particulars of claim
and
acted upon by the parties in view of the fact that the plaintiff’s
employment commenced on 1 December 2009 and existed
for a period of
more than 6 months until it was cancelled on 12 June 2010.
[7] Mr Semenya, on behalf
of the defendant, submitted that the particulars of plaintiff’s
claim do not disclose a cause of
action in view of the fact that
paragraph 3 of the particulars of claim is inconsistent of the
language of the statute, more particularly
section 57(1)(a) of the
Act. In the alternative he submitted that it was vague and
embarrassing for the same reason.
[8] Although paragraph
3.1 of the particulars of claim refers to “an oral agreement”
it appears from paragraph 3.3 thereof
that the plaintiff relies on
the fact that the defendant’s municipal manager presented the
plaintiff with annexure “A”
annexed to the particulars of
claim,
“being the written conditions of employment, the
terms and conditions whereof plaintiff orally excepted at the time of
concluding
the oral agreement referred to paragraph 3.1 above.”
Although the reference to
the words “oral contract” is unfortunate and may even be
vague and embarrassing,
I
am of the view that on a proper reading of paragraph 3.3 the
particulars of claim disclose a cause of action.
[9] It is important to
note that in order to succeed an excipient has a duty to persuade the
court that upon every interpretation
which a 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.
2
[10] With regard to the
defendant’s contention that the plaintiff does not allege in
his particulars of claim that there was
compliance with the
provisions of section 57 of the Act, it appears from paragraph 6.6 of
the particulars of claim that the defendant
did not allow the
plaintiff
“
to
comply with the various legislative provisions imposed on her by the
MFMA, alternatively by not allowing the plaintiff to effectively
perform her duties towards the defendant, whether express or
implied”
.
[11] On a proper
construction the plaintiff clearly alleges that the provisions of
section 57 of the Act have been complied with
and it cannot be
contended that upon every interpretation of the particulars of claim,
no cause of action has been disclosed.
[12] As far as
non-compliance with section 57(2) (referring to the performance
agreement) is concerned it is important to note that
the said
agreement must include performance objective targets that must be met
within certain time frames as well as standards
and procedures for
evaluating performance as well as intervals for evaluation. It also
refers to the consequences of substandard
performance. This section
is clearly to the benefit of the employer because it would be
ridiculous to expect an employer to be
the author of these targets
and objectives. The onus was therefore on the defendant to see to it
that section 57(2) has been complied
with within a reasonable time.
In any event it cannot be decided at this stage whether a reason able
time has expired.
[13] In view of the
aforegoing I am of the view that a valid contract of employment
complying with the provisions of section 57(2)
of the Act had been
concluded, notwithstanding the fact that no performance agreement was
entered into.
3
[14] The only question
which remains is whether the exception can succeed on the grounds
that plaintiff’s particulars of claim
are vague and
embarrassing. In this regard, Mr Louw, on behalf of the plaintiff,
submitted that the exception was not taken correctly.
[15] The defendant did
give the plaintiff a notice to remove the cause of complaint. There
is no substance in the first ground relied
on by the defendant,
namely that the plaintiff failed to comply with the requirements of
Rule 18(6).
Second, the defendant’s
contention that the plaintiff failed to plead that the parties
reached an agreement on the terms contained
in annexure “A”
is without merit. It is clear from plaintiff’s particulars of
claim that the parties agreed on
those terms.
Third, as to the
plaintiff’s allegation of the defendants’ breach of
contract by repudiation the breach has been pleaded
with sufficient
particularity to enable the defendant to a respond thereto in its
plea.
[16] It is also important
to note that
“
an exception
that the pleading is vague or embarrassing will not be allowed unless
the excipient will be seriously prejudiced if
the offending
allegations were not expunged.”
4
I am not persuaded that
the defendant has established that in view of the wording of the
particulars of claim it will be seriously
prejudiced.
[17] It follows from the
aforegoing that the defendant has not made out the case for the
relief claimed.
Accordingly, the
exception is dismissed with costs.
___________________
S. P. B. HANCKE, J
On behalf of the
plaintiff/respondent: Adv. M.
C.
Louw
Instructed by:
Peyper Sesele Attorneys
Inc.
BLOEMFONTEIN
On behalf of the
defendant/excipient: Adv. I.
A. M. Semenya SC
Assisted by:
Adv. A. L. Platt
Instructed by:
Moroka Attorneys
BLOEMFONTEIN
/eb
1
An
example of a statute where signature is expressly required is
section 2(1) of the Alienation of Land
Act
68 of 1981.
2
PETE’S
WAREHOUSING & SALES CC v BOWSNIK INVESTMENTS CC
2000
(3) SA 833
(E) at 839
G-H;
FIRST
NATIONAL BANK OF SOUTH AFRICA LTD v PERRY N.O.
[2001]
3 ALL SA 331
(A);
VERMEULEN
v GOOSE VALLEY INVESTMENTS (PTY) LTD
[2001]
3 ALL SA 350
(A).
3
MAFIHLA
supra
at
para [28].
4
Superior
Court Practice by H J Erasmus
et
al
page
B1-154;
NEVETON
v NEWHAVEN HOLIDAY
ENTERPRISES
CC
1991
(2) SA 297
(C) at 298A.