IN THE LABOUR COURT OF SOUTH AFRICA,JOHANNESBURG
Not Reportable
Case No: JS 259/21
In the matter between:
ZIBUSISIO KGANYAGO Applicant
and
TSOGO SUN CASINO MANAGEMENT COMPANY First Respondent
TSOGO SUN GAMING LIMITED Second Respondent
Heard: 25 October 2023
Delivered: 30 January 2024
JUDGMENT
ADAMS, AJ
[1] I was advised by counsel for both parties that there was no objection to the
Applicant’s application for condonation for the late delivery of h er application
for leave to amend and accordingly condonation was granted from the outset.
2
[2] The test for determining whether to grant an amendment is whether the
interests of justice permit the granting of such an amendment.1 This is a broad
test.
[3] In deciding whether to grant or refuse an application for amendment courts lean
in favour of granting them in order to ensure that justice is done between the
parties by deciding the real issue between them. An application for amendment
will always be allo wed “unless it is mala fide or would cause prejudice to the
other party which cannot be compensated for by an order for costs or by some
other suitable order such as postponement”.
[4] These principles are set out and were applied by this Court in SATAWU v SAA.2
That is one of the many examples where this Court has adopted and applied
the Uniform Rules in situations governed by Rule 11(3)3.
[5] It is trite that the primary objective of allowing an amendment is to obtain a
proper ventilation of the dispute between the parties and to determine the real
issues between them, so that justice may be done.4
[6] One of the prime considerations in the decision of whether to grant an
amendment is whether the amendment will cause the other party such
prejudice as cannot be cured by an order for costs and, where appropriate, a
postponement.5
[7] In the matter of Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en ‘n ander6, the
Court stated that an applicant for an amendment must, in his application for the
amendment, show prima facie that he has something deserving of
consideration – a triable issue.
1 Stainbank v SA Apartheid Museum at Freedom Park and Another 2011 (10) BCLR 1058 (CC); [2011]
ZACC 20 at para 23.
2 SATAWU & another v SAA (Pty) Ltd [2010] JOL 24956 (LC) paras 15 - 19.
3 GN 1665 of 14 October 1996: Rules for the conduct of proceedings in the Labour Court.
4 Trans-Drakensberg Bank Ltd (under judicial management) v Combined Engineering (Pty) Ltd 1967
(3) SA 632 (D); [1967] 4 All SA 105 (D) at 638A.
5 Ibid at 638A-B.
6 2002 (2) SA 447 (SCA).
3
[8] A triable issue is (1) a dispute which, if it is proved on the basis of the evidence
foreshadowed by the applicant in his application, wil l be viable or relevant, or
(2) a dispute which will probably be proved by the evidence so foreshadowed.
Background
[9] The Applicant sought an amendment to her Statement of Claim in terms of a
notice to amend (notice) dated 21 November 2022.
[10] This was objected to by the Respondents in a Notice of Objection delivered on
6 February 2023.
[11] As a result of the objections raised by the Respondents, the Applicant has
applied for leave to amend.
[12] In terms of the Respondent’s Notice of Objection, it is contended, inter alia, that
the objection is premised on the following:
12.1. The applicant pleads two claims: an unfair dismissal claim, and an unfair
discrimination claim. Both claims are vague and embarrassing and/or fail
to establish a cause of action recognised in law;
12.2. The proposed amendment is the fourth attempt by the applicant to set
out her claims arising from her employment and the termination thereof
(the applicant having delivered a statement of claim, alternatively a
notice of her intention to amend her statement of claim, on the following
dates: 18 June 2021, 6 September 2021, 26 August 2022 and 21
November 2022;
12.3. The proposed amendment re-introduces Tsogo Sun Gaming Limited as
the second respondent. This party was cited as the second respondent
in the applicant’s first and second iteration of h er statement of claim
(dated 18 June 2021 and 6 September 2021);
12.4. The respondents successfully excepted to the statement of claim dated
6 September 2021 and the Court ordered, inter alia, that Tsogo Sun
Gaming Limited was mis -joined. The Applicant was granted leave to
4
amend her statement of claim to limit it to an unfair discrimination claim
and with no reference to Tsogo Sun Limited. Accordingly, Tsogo Sun
Gaming was not cited in the next iteration of the statement of claim dated
26 August 2022 and the applicant only a ttempted to plead an unfair
discrimination claim;
12.5. Following a further exception raised by the respondents to this version
of the applicant’s statement of claim, the applicant is now intending to
again amend her statement of claim and to re -introduce Tsogo Sun
Gaming Limited as the second respondent. She a lso proposes to re -
introduce the unfair dismissal claim;
12.6. For the first time in four versions of the statement of claim prepared by
her attorneys and legal advisors on her behalf, the applicant has now
alleged that the second respondent was also the applicant’s employer;
12.7. The belated introduction of the second respondent, coupled with the
allegations of co -employment, appear to have been made in order to
attempt to support the legal claims of unfair dismissal and unfair
discrimination but are not based on facts which the ap plicant can prove
in evidence. The proposed amendment is not bona fide;
The dismissal claim
12.8. A dismissal in a retrenchment scenario is substantively unfair if it is not
for a fair reason based upon the employer’s op erational requirements
(Section 188(1)(a)(ii) of the Labour Relations Act 7 (LRA)). No,
alternatively insufficient, allegations are made in the proposed amended
Statement of Claim to establish that the dismissal as not for a reason
related to the employer’s operational requirements;
12.9. The proposed amended Statement of Claim at paragraph 45 (read with
the paragraphs referred to therein) is vague and embarrassing,
alternatively fails to establish that the termination of the employee’s
employment was unfair or “grossly unfair” . The facts alleged in the
7 Act 66 of 1995, as amended.
5
proposed amendment, if proved, do not establish a basis upon which a
Court can conclude that the conduct on one or both of the Respondents
caused or is a reason for a dismissal which was not based on the
employer’s operational requirements;
The Discrimination Claim
12.10. There are no or insufficient facts alleged which support the allegation
that the Applicant was unfairly discriminated against by the First or
Second Respondent on the basis of her race or gender in breach of the
Employment Equity Act8 (EEA);
12.11. The application fails to plead that the persons against whom she
compares herself are similarly placed either in terms of their own
employment with the alleged employers of the Applicant, or, if they are
employed by one or more of her alleged employers, th at their
circumstances are comparable to her own;
12.12. For these reasons the proposed amended claims, if allowed, would be
excipiable as being vague and embarrassing, or as failing to make out a
cognisable claim or cause of action;
12.13. The Respondents are accordingly prejudiced by the intended
amendment on one or more of the grounds as set out above.
[13] The Applicant contends in her proposed amended statement of claim that at all
times material to her retrenchment, she was employed by the first respondent
and the second respondent.
[14] The Applicant’s employment was allegedly terminated by the First Respondent
on 21 December 2020 , following a process under section 189(A) of the LRA.
The Applicant’s claim has been brought under section 189A(8) of the LRA,
being an unfair dismissal claim which is categorised as Claim 1 in the proposed
amended Statement of Claim.
8 Act 55 of 1998.
6
[15] In addition to the above, the Applicant referred a dispute to the Commission for
Conciliation, Mediation and Arbitration ( CCMA) for conciliation alleging unfair
discrimination in terms of the EEA, which is categorised as Claim 2 in the
proposed amended Statement of Claim.
[16] The Respondents contend, in their heads of argument, that the objections to
the amendments are premised, in summary, on the following:
16.1. The amendment is excipiable, in that it makes out no cognisable cause
of action;
16.2. It is not bona fide, in that the Applicant has no supporting evidence or
foundation for what she has pleaded.
[17] Notably, the second ground above is not a ground that was contained in the
Notice of Objection. It is, however, trite that a party is not required to provide all
of the evidence for their claim in their Statement of Claim, in any event.
[18] After argument of the matter and considering the papers filed in this matter it is
clear that the objection raised by the Respondents is, in summary, premised on
the following aspects:
18.1. The purported excibiability of the pleadings (with regards to both the
unfair dismissal and the unfair discrimination claim);
18.2. This is the fourth attempt that the Applicant has made to amend her
pleadings (although it was unclear whether the Respondents still
persisted with this ground I still deal with same hereunder);
18.3. The re-introduction of the Second Respondent and unfair dismissal
claim was done in bad faith and is not made bona fide.
The excipiability of the amendment
[19] The Applicant has contended tha t with the Respondents’ contentions that the
pleadings are vague and embarrassing , the Respondents ’ should have
7
delivered the requisite notice in terms of Rule 23(1) 9 to remove the cause of
complaint (after the amendment having been effected).
[20] Instead, the Respondents followed this process of raising an objection to the
amendment of the Statement of Claim.
[21] I am mindful of the findings made in Manyatshe v South African Post Office
Ltd10, as referred to in the Applicant’s Heads of Argument.
[22] I am also mindful of the matter of De Klerk and Another v Du Plessis and
Others11, where the Court held that:
‘The grounds of objection are appropriate to an exception and accordingly the
Application will be dealt with as if it is an exception. This is preferable to allowing
the amendment in the sure knowledge that the Defendant would immediately
note an exception.’
[23] I therefore intend to treat the Respondents’ objection, insofar as the excipiability
of the pleadings is concerned, as though it were an exception.
[24] With regards to pleadings that are vague and embarrassing , the following
principles are trite:
24.1. An exception on the grounds that a pleading is vague and embarrassing
strikes at the formulation of the cause of action and not at its legal
validity;12
24.2. An exception to a pleading on the ground that it is vague and
embarrassing entails a two-fold consideration. The first consideration is
whether the pleading lacks particularity to the extent that it is vague. The
second consideration is whether the vagueness causes prejudice.13
9 GN 1665 of 14 October 1996: Rules for the conduct of proceedings in the Labour Court.
10 [2008] ZAGPHC 253; [2008] 4 All SA 458 (T) at para 3.
11 1995 (2) SA 40 (T); 1994 (6) BCLR 124 (T) at 43I-44B (Also reported at 1994 (6) BCLR 124 (T) – ED)
12 Trope and Others v South African Reserve Bank (Trope 2) 1993 (3) SA 264 (A); [1993] ZASCA 54 at
269; Venter and Others NNO v Barritt, Venter and Others NNO v Wolfsberg Arch Investments 2 (Pty)
Ltd 2008 (4) SA 639 (C); [2008] JOL 21239 (C) at para 10.
13 Trope v South African Reserve Bank (Trope 1) 1992 (3) SA 208 (T) at 211B.
8
[25] With regards to prejudice, the Court is “obliged to undertake a
quantitative analysis of such embarrassment as the excipient can show
is caused to him, in his efforts to plead to the offending paragraph, by
the vagueness complained of”.14
[26] What must also be borne in mind with regards to the lack of particularity
in the pleading resulting in vagueness is that the object of pleadings is
to set forth a clear and succinct summary of the grounds on which a
claim is made. Where a pleading is vague, it is either ”meaningless or
capable of more than one meaning”.15
[27] In respect of Rule 6 of the Rules of this Court, in Harmse v City of Cape
Town16, Waglay J (as he then was) said the following:
‘[6] The statement of c laim serves a dual purpose. The one purpose is to
bring a Respondent before the Court to respond to the claims made of
and against it and the second purpose of a statement of c laim is to
inform the Respondent of the material facts and the legal issues arising
from those facts upon which applicant will rely to succeed in its claims.
[7] The material facts and the legal issues must be sufficiently detailed to
enable the Respondent to respond, that is, that the Respondent must
be informed of the nature or essence of the dispute with sufficient
factual and legal particularity so that it knows what it is that the Applicant
is relying upon to succeed in its claim.
[8] The Rules of this Court do not require an elaborate exposition of all
facts in their full and complex detail – that ordinarily is the role of
evidence, whether oral or documentary. There is a clear distinction
between the role played by evidence and that played by pleadings – the
pleadings simply give the architecture, the detail and the texture of the
factual dispute are provided at the trial. The pre -trial conference
provides an occasion for the detail or texture of the factual dispute to
begin to take shape. In terms of Rule 6(4)(b) the parties in the pre -trial
14 Quinlan v McGregor 1960 (4) SA 383 (D) at 393F – G.
15 Lockhat and Others v Minister of the Interior 1960 (3) SA 765 (N); 1960 (2) PH K86 (D & CLD) at
777 D.
16 [2003] 6 BLLR 557 (LC); [2003] ZALC 53.
9
conference must attempt to reach consensus on facts that are common
cause, facts that are in dispute, the issues that the Court is required to
decide and the precise relief claimed.’
[28] In Liquid Telecommunication (Pty) Ltd v Carmichael - Brown17, Van Niekerk J
quoted with approval the views expressed by Wadley, J (as he then was), as to
the e mphasis on complying with Rule 6 so as to inform the Court and the
Respondent of the facts, not the evidence, upon which the Applicant wishes to
rely. Both the Court and Respondent need to know what the Applicant’s case
is about in respect of factual allegations and legal issues.
[29] When the Respondent pleads to the Statement of Claim, it will also be expected
of the Respondent to similarly state the facts and legal issues to enable the
Applicant at the pre-trial conference to deal with same.
[30] In Association of Mineworkers and Construction Union and Others v Chamber
of Mines South Africa and Others18, this Court had the following to say relating
to exceptions raised in this Court:
‘It is my view, that such court in deciding on this aspect has to take into account,
inter alia, (i) the manner in which the pleadings have been crafted, (ii) the onus
of proof, (iii) burden to adduce evidence, (iv) the manner in which such point
has been raised, (v) the relief sought, and (vi) the type of exception (either lacks
averments which are necessary to sustain an action or vague and
embarrassing) that has been raised by such party and other factors.’
[31] Insofar as a party relies on claiming that a pleading lacks averments which are
necessary to sustain an action, the following principles need to be taken into
consideration:
31.1. The challenge on the basis that a pleading does not disclose a cause of action
or defence is directed at its legal validity;19
17 (2018) 39 ILJ 1779 (LC); [2018] ZALCJHB 153.
18 [2017] ZALCJHB 462; [2017] 7 BLLR 641 (CC).
19 Manyatshe v SAPO at para 6.
10
31.2. In McKenzie v Farms’ Co-operative Meat Industries Ltd20 the following definition
of “cause of action” was adopted by the Appellate Division:
‘... every fact which it would be necessary for the plaintiff to prove, if traversed,
in order to support his right to judgment of the Court. It does not comprise every
piece of evidence which is necessary to prove each fact, but every fact which
is necessary to be proved’;
31.3. A pleading is excipiable if no possible evidence led on the pleadings can
disclose or make out a cause of action or a defence;21
31.4. In deciding an exception, a Court must accept all allegations of fact made
in the particulars of claim as true; may not have regard to any other
extraneous facts or documents; and may uphold the exception to the
pleading only when the excipient has satisfied the court that the cause
of action or conclusion of law in the pleadings cannot be supported on
every interpretation that can be on the facts. The purpose of an
exception is to protect litigants against claims that are bad in law or
against any embarras sment which is so serious as to merit the costs
even of an exception. It is a useful procedural tool to weed out bad claims
at an early stage, but an overly technical approach must be avoided”22;
31.5. The defendant must persuade the court that upon every interpretation
which the particulars of claim can reasonably bear, no cause of action is
disclosed.23
[32] With the above in mind, I now turn to the Respondents’ Grounds of Complaint
raised in their Notice of Objection insofar as the excipiability of the pleadings is
concerned.
20 1992 AD 16 at 23 – quoted with approval in Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at
838E-F; Minister of Law and Order v Thusi 1994 (2) SA 224 (N) at 226H-L.
21 Vermeulen v Goose Valley Investments (Pty) Ltd [2001] ZASCA 53; [2001] 3 All SA 350 (A) para 7.
22 Pretorius and another v Transport Pension Fund and others 2019 (2) SA 37 (CC); [2018] 7 BLLR
633 (CC) para 15.
23 Theunissen en andere v Transvaalse Lewendehawe Koöp Bpk 1988 (2) SA 493 (A) at 500E (also
reported at [1998] 1 All SA 289 (A) – Ed) and Lewis v Oneanate (Pty) Ltd and another 1992 (4) SA
811 (A) at 817F-G (also reported at [1992] 2 All SA 498 (A) – ED).
11
[33] The Respondents have contended that the Applicant was granted leave to
amend her Statement of Claim to limit it to an unfair discrimination claim and
with no reference to the Tsogo Sun Gaming Limited. I deal with this further
below in my judgment.
[34] I do not believe that the Applicant was limited in only being able to plead an
unfair discrimination claim. I turn to deal with the dismissal claim hereunder.
Dismissal claim
[35] The Respondents have contended at paragraph 8 of their Objection that, “A
dismissal in a retrenchment scenario is substantively unfair if it is not for a fair
reason based upon the Employer’s operational requirements (Section
188(1)(a)(ii) of the LRA). No, alternatively insufficient allegations are made in
the proposed amended Statement of Claim to establish that the dismissal was
not reason related to the employers’ operational requirements”.
[36] At paragraph 9 of the Respondents’ Objection, the Respondents contend that
“the proposed amended Statement of Claim at paragraph 45 (read with the
paragraphs referred to therein) is vague and embarrassing, alternatively fails to
establish that the termination of the employer’s employment was unfair or
“grossly unfair”. The facts alleged in the proposed amendment, if proved, do
not establish a basis upon which a court can conclude that the conduct of one
or both of the Respondents caused or is a reason for a dismissal which was not
based on the employers’ operational requirements”.
[37] I agree with the Applicant’s submissions that no basis has been set out by the
Respondents for such a claim especially when one considers the Respondent’s
objection in comparison to the argument made out in the Respondent’s Heads
of Argument.
[38] Paragraph 45 of the proposed amended Statement of Claim states that, “the
conduct of the Second Respondent and the First Respondent set out in
paragraphs 18 to 29 and 34 above was grossly unfair and rendered the
retrenchment of the Applicant substantively unfair as contemplated in
Section 189(a)(8) of the LRA”.
12
[39] Applying AMCU supra, this excerpt is a legal conclusion in terms of the
averments made by the Applicant at paragraphs 18 to 29 and 34 of her
proposed amended Statement of Claim. This paragraph must be read in the
context of those paragraphs and cannot be isolated as the Respondents
attempt to do insofar as their objection is concerned.
[40] These paragraphs (namely paragraphs 18 to 29 and 34) may give credence to
the Applicant’s claim. Due to the nature of the dismissal dispute, the Applicant
will have the burden to lead evidence relating to her claim. The Respondent s
will still have an onus to show that the dismissal was fair.
[41] What is also important is that the Respondents’ objection turns on the
Respondents relying on a claim in terms of Section 188(1)(a)(ii) of the LRA. The
Applicant has stated in argument, as well as in the papers that were filed, that
her claim is premised on Section 189A of the LRA. This is also clearly set out
at paragraph 45, being the offending paragraph raised by the Respondents.
[42] In essence, the Respondents have contended that no case is made out in
respect of the substantive unfairness of the Applicant’s dismissal. If one,
however, has regard to paragraphs 18 to 29 and 34 of the Applicant’s proposed
amended Statement of Claim, the Applicant has pleaded the facts leading to
the legal conclusion of the substantive unfairness of her dismissal.
[43] I also agree with the Applicant’s submissions that it has been decided on more
than one occasion that:
43.1. It is not always possible and appropriate to separate substantial and
procedural issues in a retrenchment context. They are often inextricably
intertwined24;
43.2. It has been held by this Court that if an employee believes that an issue
which on its surface appears to be procedural in nature but has
24 NUMSA & others v SA Five Engineering & others [2005] 1 BLLR 53 (LC); (2004) 25 ILJ 2358 (LC);
Watts v Fidelity Corporate Services (Pty) Ltd [2007] 6 BLLR 579 (LC); Unitrans Zululand (Pty) Ltd v
Cebekhulu [2003] 7 BLLR 688 (LAC); [2003] JOL 11143 (LAC).
13
significant substantive fairness ramifications, then this issue should be
raised in the course of the substantive fairness claim.25
[44] From the pleadings, it is clear that the Applicant’s case is premised on Section
189(A) of the LRA.
[45] It would seem from both the objection and the argument led that the
Respondents are attempting to argue the merits of the matter. It is, however,
not for this Court to make a determination on the merits, at the stage of a party
requiring an amendment to the pleadings.
[46] As the rules of this Court do not require an Applicant to elaborate exposition of
all fact in their full and complex detail, as Harmse (supra) concluded, I conclude
that the Applicant has presented enough background in terms of her claim and
that such amendment will not render the amended statement of claim excipiable
by either being vague and embarrassing and/or lacking the necessary
averments to sustain a cause of action.
[47] The grounds for objection in terms of the dismissal claim therefore stand to fail.
The Discrimination Claim
[48] Section 6 of the EEA provides:
‘Prohibition of unfair discrimination – (1) No person may unfairly discriminate,
directly or indirectly, against an employee, in any employment policy or
practice, on one or more grounds, including race, gender, sex, pregnancy,
marital status, family respon sibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscience, belief, political
opinion, culture, language, birth or on any other arbitrary ground.’
[49] The case of the Applicant is that based on her race and/or gender she was
unfairly discriminated against by the respondents in respect of not being
afforded the benefit of participation in a special share loan scheme and
payment of ‘ex gratia payments’.
25 SACCAWU and Others v Southern Sun Hotel Interests (Pty) Ltd [2017] 1 BLLR 90 (LC); (2017) 38
ILJ 463 (LC) at para 21.
14
[50] The Respondents contend at paragraphs 10 and 11 of their Objection that:
‘[10] There are no insufficient facts alleged which support the allegation that
the Applicant was unfairly discriminated against by the First and Second
Respondent on the basis of her race or her gender in breach of the
Employment Equity Act 66 of 1995;
[11] The Applicant fails to plead that the persons against whom she
compares herself are similarly placed either in terms of their own
employment with the alleged employers of the Applicant, or, if they are
employed by one or more of her alleged employers, that their
circumstances are comparable to her own.’
[51] An excipient in an ordinary exception has to demonstrate that no matter how
one interprets the pleading, no cause of action is disclosed. Ambiguity does not
make a pleading excipiable; what is needed is that the excipient has to show
that the ambiguity causes the pleading to be excipiable and that it will be
substantially embarrassed if the alleged pleading is not dismissed.
[52] Again, the entire pleading needs to be read in its context. The Applicant has
pleaded the following in her proposed amended Statement of Claim:
’50. The Second Respondent employed a number of senior executives who
carried on the business of the TS Group.
51. Until 2019, a number of senior executives were members of TS Group
Executive Committee (“GEC”). Since 2014, the Applicant was a
member of the GEC. She was one of two black female executives who
were members of the GEC, the other being Laurelle MacDonald.
52. In addition, the Applicant was a member of the boards of several
companies within the TS Group.
53.. As a member of the GEC and as a board member as stated above, the
Applicant carried responsibilities and enjoyed a status similar to those
of other senior executives employed within the TS Group, including
those senior executives who were members of the GEC.
15
54. By reason of the aforegoing the applicant fell within the identifiable
category of senior executives within the TS Group.
55. Subject to what is stated below, the said category of senior executives
consistently enjoyed generous standards of terms and conditions of
employment and entitlement and benefits on termination of employment
(on a no-fault basis).
56. In particular and subject to what is said below, when members of the
said category of senior executives terminated their employment within
the TS Group, they received generous ex gratia payments.
57. The said payments were made by the Second Respondent as ex gratia
payments, over and above other retrenchment and resignation
entitlements and benefits they received on termination of employment.
58. Subject to what is stated below, the said payments were made as part
of their consistent practice applied to the above category of senior
executives.’
[53] The Applicant then goes on further at paragraph 59 on her proposed amended
Statement of Claim to list examples, including, names, races , genders, and
positions of other senior executives that received ex-gratia payments over and
above other retrenchment and resignation entitlements and benefits.
[54] The Applicant then continues to plead as follows:
’60. In addition to the above, certain senior executives who belonged to the
category referred to in paragraph 54 were afforded participation in a
special share participation scheme. The details of the scheme will be
dealt with in evidence. The said scheme afforded those who were
allowed to participate therein the opportunity to borrow money from the
Second Respondent to buy shares in the Second Respondent. On
termination of employment, certain participants in the said scheme were
afforded a relaxation of t he terms of repayment of the loan. The
relaxation allowed them an extension of the date of repayment of the
loan beyond the date of the termination of their employment. Certain of
the said participants were also afforded the possible future release from
any loan repayment obligations.
16
61. Despite her request therefor, the Applicant was not afforded the benefit
of participation in the special share loan scheme. It followed that she
did not receive the further benefit referred to in paragraph 60. Had she
been allowed to participate in the said scheme, she would have also
been afforded the further benefit on termination of employment.’
[55] The Applicant then pleads at paragraph 62 to 62.5 of her proposed amended
Statement of Claim , names, races , genders, and amounts received by the
certain participants that she refers to at paragraphs 60 to 61 of her proposed
amended Statement of Claim.
[56] The Applicant then goes on to plead as follows in her proposed amended
Statement of Claim:
’63. Initially the interest free loans were repayable upon the earlier of the
realisation of the shares or on termination of employment.
64. The Second Respondent (together with the First Respondent) extended
a special dispensation to messrs Huddy and Tyrrell:
64.1 extending the date for repayment of the interest free loan;
64.2 determining that if at the time of maturity of the interest free
loans the shares were still trading below the price at which
messrs Huddy and Tyrrell acquired their shares, the Second
Respondent would:
64.2.1 consider a further extension of the duration of the interest free
loans; or
64.2.2 write off the interest free loans.
65. In addition, Mr Booysen was granted an extension to dispose of his
shares and repay his interest free loan to September 2022.
66. All the above persons received ex gratia payments and benefitted from
the special share participation scheme were executive employees of
the TS Group and belonged to the category of senior executives
referred to in paragraphs 54 and 55 above.
17
67. The Applicant’s services were terminated by the First Respondent and
the Second Respondent on 21 December 2020.
68. Despite the Applicant’s request for an ex-gratia payment on termination
of her employment commensurate with her status as a senior executive
as was received by other employees who fell within the category of
senior executives referred to in paragraphs 54 and 55 abo ve, the First
Respondent and Second Respondent refused to do so.
69. The Second Respondent’s refusal to treat the Applicant on the same
basis as the other senior executives who fell within the same category
as she did:
69.1 the constituted conduct relating to the remuneration and
employment benefits of an employee;
69.2 was irrational and incapable of reasonable explanation;
69.3 offended the dignity of the Applicant; and
69.4 constituted unfair discrimination on the ground of the Applicant’s
race and gender as contemplated in Section 6 of the
Employment Equity Act 55 of 1998 (“EEA”).’
[57] Accordingly, I find that the Applicant has pleaded every fact which it would be
necessary for the Applicant to prove, if traversed, in order to support her rights
to judgment of the Court. This is the test in terms of the authorities which have
already been dealt with above.
[58] As the Rules of this Court do not require an Applicant to elaborat e exposition
of all facts in their full and complex detail, as Harmse (supra) concluded , I
conclude that the Applicant has presented enough background which links the
Applicant’s contentions that she was unfairly discriminated against by the First
or Second Respondent on the basis of her race or gender in breach of the EEA.
[59] Accordingly, the grounds of objection pertaining to the excipiability of the
pleading insofar as the discrimination claim is concerned, stands to fail.
18
Applicant’s Fourth Attempt to Amend
[60] It is unclear whether the Respondents intended proceeding with this Objection
as raised at paragraph 2 of the Objection. There is, however, nothing in the
rules or authorities limiting a party’s ability to amend their pleadings and the
number of amendments a party is entitled to make.
[61] This ground therefore too stands to fail.
Reintroduction of the Second Respondent as well as the Unfair Dismissal Claim
seen as not acting bona fide and acting in bad faith
[62] The Respondents have contended that the Applicant was granted leave to
amend her Statement of Claim to limit it to an unfair discrimination claim and
with no reference to Tsogo Sun Gaming Limited.
[63] The Respondents have also contended that, “the belated introduction of the
Second Respondent, coupled with the allegations of co-employment, appear to
have been made in order to att empt to support the legal claims of unfair
dismissal and unfair discrimination but are not based on facts which the
Applicant can prove in evidence. The proposed a mendment is not made bona
fide”.
[64] Importantly, the judgment of my Learned Brother Mahomed AJ , consisted of
the following findings having been made by him in terms of the Second
Respondent:
‘[18] Whilst the Applicant positively asserts that she was an employee of the
First Respondent she fails to make any such allegation in respect of the
Second Respondent or even an allegation of co -employment between
the Respondents. This is a material omission.
...
[21] Effectively what the Applicant seeks to do in the citation of the Second
Respondent and was clear to me in submissions, is through the back
door, to pierce the corporate veil. I indicated to Mr Ngcukaitobi that it
appeared to me that what the Applicant sought to do in relation to the
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Second Respondent was to impute liability on such party under Section
2(B) of the LRA. Clearly, there are no averments made in the Statement
of Claim to lay the basis for such liability.
[22] I am not persuaded that a cause of action is made out for the second
respondent to be a co -employer of the Applicant in the Statement of
Claim. It has been mis-joined in the proceedings and must now be let
loose.’
[65] I do not, in that, see my Learned Brother Mahomed AJ limiting the Applicant’s
claim or ordering that the Applicant may not join the Second Respondent ever
again the future.
[66] This Court, could not, in any event, limit a litigant’s ability to amend its claim
and/or to join further parties if one considers that a party may amend to
introduce a new cause of action or to add or substitute a party , at any time
before judgment, in any event.26
[67] It was the shortcomings in terms of the citation of the Second Respondent at
that stage of the pleadings that led to the finding that the Second Respondent
had been mis-joined at that stage, which I agree with insofar as the Statement
of Claim stood and the allegations that were made in the Statement of Claim at
that stage.
[68] In terms of the allegations involving the Second Respondent’s joinder now,
however, the Applicant has clearly pleaded the following regarding the Second
Respondent:
‘5. At all times material to her retrenchment, the Applicant was employed
by the First Respondent and the Second Respondent.
6 In her capacity as an employee of the First Respondent and the Second
Respondent, the Applicant worked under the control and direction of the
Second Respondent and assisted in the carrying on and the conduct of
the business of the First Respondent and the Second Respondent.
26 Levi Strauss & Co v Coconut Trouser Manufacturers (Pty) Ltd [2001] ZASCA 60; [2001] 4 All SA 1
(A) at para 11.
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7. The First Respondent is a wholly owned subsidiary of the Second
Respondent.
8. The Second Respondent is and was the holding company of several
subsidiary companies. The Second Respondent together with the
subsidiary companies which existed as such from time to time formed
or form the group of companies referred to herein as the TS Group.
9. The Second Respondent became the holding company of the TS Group
in or about 2010.
10. Prior to 2010, the business of the TS Group was owned and conducted
by various holding companies and subsidiary companies. Since 1997,
the applicant was employed by one or more companies within the TS
Group as it was comprised from time to time.
11. In 2019, the Second Respondent underwent a name change from
Tsogo Sun Holdings Limited to Tsogo Sun Gaming Limited.
12. Throughout the course of her employment as outlined above, the
Applicant performed the same or similar functions for the benefit of the
business of the TS Group.
13. The operation of Section 197 of the Labour Relations Act, 1995 (“the
LRA”) or as agreed between the Applicant and her employer or
employers from time to time, all of the Applicant’s employment rights
and entitlements that accrued to her from time to time remained in place
for the full duration of her employment, comm encing 6 January 1997.
Concomitantly, all the employer obligations and duties relevant to the
employment of the Applicant since 1997 devolved upon the First
Respondent and the Second Respondent.’
[69] I agree with the Applicant that whether as a matter of law any of, any
combination of or all of the above establish an employment relationship with the
Second Respondent, is not a matter for this Court to determine at this stage.
This is for the Trial Court to decide. All that I am required to satisfy myself with
at this stage, is that there are sufficient allegations that the Applicant is an
employee of the Second Respondent . The evidence in this regard, does not
need to be produced by the Applicant at thi s stage. If the Respondents take
21
issue with this, they may do so in their Statement of Defence and this aspect
will then be determined by the Trial Court in due course.
[70] In terms of the contentions made by the Applicant in her proposed amended
Statement of Claim, however, I am satisfied that there are sufficient averments
to demonstrate the joinder of the Second Respondents to the proceedings.
Accordingly, this ground too stands to fail.
[71] I also do not find that my brother Mahomed AJ placed any restrictions on the
Applicant in terms of the claims it may or not may bring. The exception raised
to the cause of action at the stage that it was argued before my learned brother
was different to the objection/s raised by the Respondents at this stage.
[72] I thus do not find that the amendment sought by the Applicant is mala fide, done
in bad faith or prejudicial to the Respondents.
[73] In the premises I make the following Order:
Order
1. Condonation is granted for the late filing of the Applicant’s Application;
2. The Applicant is granted leave to amend her Statement of Claim as per
her Notice of Amendment attached as Annexure “ZK1” to the Founding
Affidavit;
3. The Applicant is authorised to deliver her amended Statement of Claim
within ten days of this Order;
4. No order as to costs.
R Adams
Acting Judge of the Labour Court of South Africa
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Appearances
For the Applicant: Adv. Paul Pretorius SC & Ndumiso Luthuli
Instructed by: Harris Nupen Molebatsi Attorneys
For the Respondents: Adv. Andrew Redding SC
Instructed by: ENS Africa