IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS34/21
In the matter between:
BARLOWORLD EQUIPMENT (A DIVISION OF
BARLOWORLD SOUTH AFRICA (PTY) LTD Applicant
and
SOLIDARITY First Respondent
MJ GEYSER Second Respondent
J NEL Third Respondent
S SMIT Fourth Respondent
Consolidated with:
Not Reportable
Case No: JS1036/20
BARLOWORLD EQUIPMENT (A DIVISION OF
BARLOWORLD SOUTH AFRICA (PTY) LTD Applicant
and
NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA First Respondent
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ABEGAIL BOTOLO AND 35 OTHERS LISTED
IN ANNEXURE A Second Respondent
Heard: 26 October 2023
Delivered: 05 February 2024
JUDGMENT
ADAMS, AJ
Introduction
[1] Both application s before me involve application s for leave to amend. The
matters have been consolidated. It is for this reason that I address both
applications together in this judgment.
[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 e nsure that justice is done between the
parties by deciding the real issue between them. An application for amendment
will always be allowed “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”2.
[4] These principles are set out and were applied by this Court in SATAWU &
another v SAA (Pty) Ltd3. That is one of the many examples where this Court
has adopted and applied the Uniform Rules4 in situations governed by Rule 11.
1 Stainbank v SA Apartheid Museum at Freedom Park and Another 2011 (10) BCLR 1058 (CC); [2011]
ZACC 20 at para 23.
2 Imperial bank Limited v Barnard NO and others [2013] JOL 30943 (SCA) at para 8.
3 SATAWU & another v SAA (Pty) Ltd [2010] JOL 24956 (LC) paras 15 to 19.
4 GNR. 48 of 12 January 1965: Uniform Rules of Court: Rules Regulating the Conduct of the
Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa.
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[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.5
[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.6
[7] In the matter of Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Limited and Another7,
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.
[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, will be viable or relevant, or
(2) a dispute which will probably be proved by the evidence so foreshadowed.
The application in terms of case number JS34/21
[9] The Applicant sought an amendment to its statement of response in terms of
a notice to amend (notice) dated 3 February 2023, for the incorporation of a
special plea as contained at paragraphs 1.1 to 1.5 of its notice.
[10] This was objected to by the Respondents in a notice titled ‘objection against
amendments sought by Respondent’ dated 17 February 2023.
[11] The grounds for objection were, in summary, as follows:
11.1. The amendments as sought would not have the effect that there would
be a proper ventilation of the dispute between the parties and would not
serve to determine the real issues between them (which issues have
5 Trans-Drakensberg Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd and
Another 1967 (3) SA 632 (D); [1967] 4 All SA 105 (D) at 638A.
6 Trans-Drakensberg supra at 638A-B.
7 2002 (2) SA 447 (SCA).
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already cryst alised from the statement of claim and statement of
response);
11.2. The amendments are sought extremely belated and some 24 months
after the statement of response was served and filed. The amendment
(if allowed) would be prejudicial to the Claimants since the parties have
already extensively engaged in a pre-trial process, with the intervention
of this Honourable Court;
11.3. The issue raised by the Respondent that the contents of the statement
of claim seeks to introduce an adjudication of a dispute about the
procedural fairness of an operational requirements dismissal is
misguided, since it is trite that deficiencies in a procedure may impact on
the substantive fairness of an operational requirements dismissal;
11.4. The issues in dispute have been properly ventilated in the pleadings and
the amendment would only serve to prolong the finalisation of the current
matter in circumstances where the matter was already delayed
substantially due to an inability to conclude a pre-trial minute;
11.5. The Respondent’s proper cause of action would have been to make an
application to strike out those portions of the statement of claim that they
may contend are irrelevant in relation to the relief sought by the
Claimants;
11.6. The amendments sought are consequently unnecessary since the
Claimants do not seek an order holding that their dismissals were
procedurally unfair; and
11.7. The Respondent’s conduct borders on the contemptuous si nce
Honourable Judge Prinsloo ordered the parties to conclude and file a
signed pre-trial minute, but instead the Respondent is embarking upon
a course that is further delaying the finalisation of this matter instead of
concentrating on finalising and signing the pre-trial minute.
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[12] Having considered these grounds, I cannot find that the grounds demonstrate
that the amendment sought by the Applicant is mala fide or prejudicial to the
Applicant:
12.1. First ground: I do not believe that this constitutes a reasonable ground when
one considers that the Applicant is attempting to ventilate the dispute in a
manner that is logical and practical and may result in unnecessary costs for
both parties should the special plea be granted. Should the special plea be
refused, both parties will be in a position to know what the issues are in the
proceedings. This ground stands to fail;
12.2. Second ground: This is not a reasonable ground to refuse an amendment .
There are no time periods provided for in the Rules of Court 8 or the relevant
authorities. An amendment can be brought at any time of the proceedings but
before judgment. It can also be granted before and after the close of pleadings,
during the hearing of evidence, after the evidence has been given, and even
during or after the closing argument, but not after judgment .9 This ground
stands to fail;
12.3. Third ground: This ground concerns arguing the substance of the proposed
amendment. This aspect can be raised by the Respondents in their response
to the special plea and argued at that stage of the proceedings. Importantly,
amendments are not intended or designed to determine factual issues and
should not deteriorate into mini-trials.10 This ground stands to fail;
12.4. Fourth ground: I do not agree with this contention. One simply has to consider
the averments made by the Applicant in paragraph 13 of their Founding Affidavit
to see that the parties have reached a stalemate in regard to finalising the pre-
trial minute and that this is premised , according to the Applicant, on those
grounds set out at paragraphs 13.1 to 13.6 of its Founding Affidavit. This ground
stands to fail;
8 GN 1665 of 14 October 1996: Rules for the conduct of proceedings in the Labour Court.
9 South African Breweries (Pty) Ltd v Louw [2018] 1 BLLR 26 (LAC); [2016] ZALCJHB 156 (LAC) at
para 28.
10Ergo Mining (Pty) Limited v Ekurhuleni Metropolitan Municipality and another (Ergo Mining) [2020] 3
All SA 445 (GJ); [2020] ZAGPJHC 134 (GJ).
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12.5. Fifth ground: The Applicant’s amendment does not seek to strike out irrelevant
allegations – it is clearly centred around raising a jurisdictional point and not
simply the striking out of allegations based on irrelevance. Rule 6 of the Rules
of Court, furthermore does not provide for such a procedure in any event. This
ground stands to fail;
12.6. Sixth ground: I reiterate my findings in terms of the third ground herein – this is
an argument o n the substance of the amendment which should and can be
raised by the Respondents in response to the special plea. This ground stands
to fail;
12.7. Seventh ground: I reiterate what I have already found in terms of the fourth
ground which would also apply herein. This ground stands to fail.
[13] For the above reasons, I find that the amendment to the statement of response
is neither mala fide nor prejudicial to the Respondents and that leave should be
granted to allow the Applicants to amend their statement of response.
Application in terms of case number JS1036/20
[14] The Applicant sought an amendment to its statement of response in terms of a
notice to amend ( notice) dated 3 February 2023, for the incorpora tion of a
special plea as contained in paragraphs 1.1 to 1.5 of its notice.
[15] This was objected to by the Respondents in a Notice titled ‘ objection against
amendments sought by Respondent’ dated 16 February 2023.
[16] The grounds for objection were, in summary, as follows:
16.1. The Respondent ought to have filed an application to strike out the allegations
it contends are irrelevant to the relief sought by the Applicants;
16.2. The notice filed by the Respondent is neither a dilatory plea nor is it a plea in
abatement (sometimes also referred to as a plea in bar). It is not a special plea
at all but is an irregular process and amounts to an abuse of court;
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16.3. The plea does not relate to the jurisdiction of this Honourable Court given that
the Applicants do not seek a determination of procedural fairness of the
dismissals;
16.4. The plea is prejudicial to the Applicants who allege that the retrenchment could
have been avoided through alternatives tabled during the consultation process
had they been properly explored;
16.5. The plea is mala fides and brought to delay the determination of the dispute on
the merits and avoid a detailed and thorough examination of alternatives to the
retrenchment;
16.6. The Respondent is aware that the allegations made in the statement of claim,
which may otherwise have supported a case for procedural unfairness, are
raised because they illustrate a lack of bona fides, are so gross that they impact
on substantive unfairness, and they are relevant to the relief sought;
16.7. This Court ordered the p arties to file pre-trial minutes and the Respondent’s
conduct is in contempt of court.
[17] Having considered these grounds, I cannot find that the grounds demonstrate
that the amendment s ought by the Applicant is mala fide or prejudicial to the
Applicant:
17.1. First ground: The Applicant’s amendment does not seek to strike out irrelevant
allegations – it is clearly centred around raising a jurisdictional point and not
simply the striking out of allegations based on irrelevance. Rule 6 of the Rules
of the Court, furthermore, does not provide for such a procedure in any event .
This ground stands to fail;
17.2. Second ground: I do not agree with this ground. The amendment seeks to
introduce a special plea premised on the jurisdiction of this Court. This ground
stands to fail;
17.3. Third and fourth ground: These grounds concern arguing the substance of the
proposed amendment and do not necessarily relate to the amendment itself.
These aspects can be raised by the Respondents in their response to the
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special plea and argued at that stage of the proceedings. Importantly,
amendments are not intended or designed to determine factual iss ues and
should not deteriorate mini-trials.11 These grounds stand to fail;
17.4. Fifth ground: I do not believe that this constitutes a reasonable ground when
one considers that the Applicant is attempting to ventilate the dispute in a
manner that is logical and practical and may result in unnecessary costs for
both parties should the Special Plea be granted. Should the special plea be
refused, both parties will be in a position to know what i ssues are in the
proceedings. This ground stands to fail;
17.5. Sixth ground: I reiterate what I have already stated for the third and fourth
grounds above. This ground stands to fail;
17.6. Seventh ground: I do not agree with this objection. One simply has to consider
the averments made by the Applicant in paragraph 13 of its founding affidavit
to see that the parties have reached a stalemate in regard to finalising the pre-
trial minute s for the rea sons set out by the Applicant in paragraph 13 . The
resolution to this stalemate may be in terms of allowing the amendment so that
both parties may reach a resolution in terms of the issues in dispute between
them. This ground stands to fail.
[18] For the above reasons, I find that the amendment to the statement of response
is neither mala fide nor prejudicial to the Respondents and that leave should be
granted to allow the Applicants to amend their statement of response.
[19] For this reason, I grant the following order:
Order
In terms of the application under case number JS34/21
1. The Applicant is granted leave to amend its statement of response dated
1 February 2021 as per its notice of intention to amend dated 3 February
11Ergo Mining [2020] 3 All SA 445 (GJ).
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2023, which is annexed to the founding affidavit and marked annexure
“BWE7”;
2. The Applicant is authorised to deliver its amended pages within 5 days
of the granting of this Order;
3. No order as to costs.
In terms of the application under case number JS1036/20
1. The Applicant is granted leave to amend its statement of response dated
1 February 2021 as per its notice of intention to amend dated 3 February
2023, which is annexed to the founding affidavit and marked annexure
“BWE7”;
2. The Applicant is authorised to deliver its amended pages within 5 days
of the granting of this Order;
3. No order as to costs.
R Adams
Acting Judge of the Labour Court of South Africa
Appearances
For the Applicant: Advocate Andrew Redding SC
Instructed by: Bowman Gilfillan Inc
For the Respondent
(NUMSA): R Daniels
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Instructed by: CTH Attorneys
For the Respondent
(Solidarity): Wilhelm P Bekker
Instructed by: Serfontein Viljoen & Swart Attorneys