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[2013] ZALAC 13
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Sondorp v Ekrhuleni Metropolitan Municipality (JA 87/11) [2013] ZALAC 13; [2013] 9 BLLR 866 (LAC); (2013) 34 ILJ 3131 (LAC) (26 June 2013)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JA 87/11
REPORTABLE
In the matter between:
FRANCOISSONDORP
............................................................................
First
Appellant
PETRUS JACOBUS DE VAAL
..........................................................
Second
Appellant
and
EKURHULENI
METROPOLITAN MUNICIPALITY
......................................
Respondent
Fly note
:
Appeal: Amendment of statement of case - Judicial discretion -
Long delay partly due to dilatory conduct of respondent -
Automatically
unfair dismissal is species of unfair dismissal - Same
cause of action -
Driveline
principle restated –
Appeal upheld and amendments allowed
.
Coram
:
Ndlovu JA etZondi AJA et Musi AJA
JUDGMENT
NDLOVU JA
Introduction
[1] This appeal is
against the judgment and order of the Labour Court (per Modise AJ)
handed down on 6 April 2011 (the reasons whereof
were furnished on 1
August 2011), in terms of which the Court
a quo
dismissed with
costs the appellants’ application to amend their statement of
case.
[2] On 16 August 2011,
the appellants filed the application for leave to appeal against the
said judgment. The respondent, Ekurhuleni
Metropolitan Municipality
(Ekurhuleni) opposed the application, in terms of its notice dated 7
October 2011. Notwithstanding, on
6 December 2011, the Court
a quo
granted leave to the appellants to appeal to this Court.
The issue
[3] The only issue in
this case is whether the Court
a quo
properly exercised its
discretion when it disallowed the proposed amendment of the
appellants’ statement of case.
Background facts
[4] The first and second
appellants were employed by the Municipal Council for the Greater
Benoni (the Benoni City Council or the
BCC) during May 1970 and June
1973 respectively. Ekurhuleni is the statutory successor of the BCC.
The appellants pursued their
careers in the fire and emergency
services department of the BCC and, over the years, they climbed up
the promotion ladder, until
they both reached the rank of senior
divisional officer. However, they were both dismissed on 31 October
2000 on the ground of
their employer’s operational
requirements.
[5] Prior to the
appellants’ dismissal, certain developments and dynamics had
evolved which impacted on the status of their
employment, in relation
to the identity of their employer at one stage or another. This
situation had a significant influence on
the application for
amendment of the statement of case which was brought before, and
rejected by, the Court
a quo
.
[6] During the period
1991-1992, the BCC embarked on a programme of seeking to outsource
its fire and emergency services. As a result,
in or about September
1991, a “privatisation agreement” was concluded between
the BCC and a company known as Benoni
Fire and Emergency Services
(Pty) Ltd (BFES) in terms of which the BCC retained the
responsibility of the fire and emergency services
but the actual
rendering of these services was outsourced to BFES.
[7] Negotiations were
commenced aimed at BFES taking over those employees of the BCC who
worked in the fire and emergency services
department, including the
two appellants. Consequently, on or about 7 April 1992, the
appointment of the appellants by BFES was
confirmed and they were
both appointed as assistant chief fire officers.
[8] On or about 20
October 2000, the appellants met separately with Mr Barber and Mr
Hurford, BFES managing director and chief fire
officer respectively.
It was then that the appellants were informed that BFES had decided
that it was necessary to restructure
the management of BFES and, as a
result, the three positions of assistant chief fire officer (two of
which were occupied by the
appellants) would become redundant as from
31 October 2000. The third position was held by a Mr Meyer. The
appellants were further
advised that two new posts would be created
with effect from 1 November 2000 and the new posts were described as
follows:
Manager: Operations and
Quality Control (Deputy Chief Fire officer level) and
Manager: Fire Safety and
Logistics (Senior Divisional Officer level)
[9] On 23 October 2000,
the appellants were served with written confirmation that their
positions would become redundant with effect
from 31 October 2000 and
they were invited to apply to be considered for the newly created
posts which would be filled on 1 November
2000. They were further
advised that in the event of their applications being unsuccessful,
they could then opt for either early
retirement or retrenchment
packages.
[10]
Both the appellants applied for both newly created posts on 25
October 2000. However, on the same day, they were advised by
BFES
management that their applications were unsuccessful. This then
placed them in the situation where they had to elect either
early
retirement or retrenchment packages. It may be pointed out that on
the same day (i.e. 25 October 2000) the appellants’
then
representative trade union, the Independent Municipal Allied Trade
Union (IMATU or the union) wrote a letter to BFES complaining
that
BFES had not complied with the provisions of section 189 of the
Labour Relations (the LRA)
1
when
it took, what the union described as a unilateral decision against
the appellants. BFES replied on the same day and denied
that the
decision it had taken was unilateral, stating that the issues of
restructuring of BFES had been discussed with the appellants.
[11] There was a period
of over a month during which there were some exchanges between BFES
and IMATU. In the main, BFES sought
to know whether the appellants
opted for early retirement or retrenchment packages. On the other
hand, IMATU was persistently querying
the manner in which the
appellants’ dismissal had been handled by BFES.
[12] Eventually, on 22
December 2000, BFES paid retrenchment packages directly into the
appellants’ respective bank accounts.
On 12 February 2001, the
appellants referred a dispute to the CCMA against BFES claiming
unfair dismissal, unfair labour practice
and breach of their
employment rights. The conciliation meeting was held on 23 October
2001, but it failed to resolve the dispute
between the parties. A
certificate of outcome to that effect was issued on the same date.
Thereupon the appellants referred the
matter to the Labour Court for
adjudication.
The original statement
of case
[13] On 3 January 2002,
the statement of case (the original statement of case) was issued by
the registrar of the Labour Court at
the instance of the appellants.
As part of their pleaded case in terms thereof the appellants made
the following allegations (which
will be particularly referred to
later in this judgment):
‘
21. During
the course of their employment with the respondent [then BFES], the
first and second applicants [appellants] served as
members of the
Board of Trustees of the Fire & Emergency Services Pension Fund,
representing the Members. Barber and two other
individuals
represented the respondent and Barber also served as Chairman of the
Fund.
22. Between 1998 and 2000, the
applicants [appellants] made certain enquiries in respect of,
inter
alia
, the allotment of certain demutualized shares to the Pension
Fund, the failure of the employer [BFES] to pay contributions
regularly
between the period 1999 and 2000 and the issue of a
contribution holiday in respect of the Fund. The first and second
applicants
[appellants] were still in dispute with Barber on the
above issues as at the date of their dismissal.
44. The applicants contend that their
dismissal was procedurally and substantively unfair and not effected
in accordance with the
fair procedure as envisaged by section 189 of
the LRA, in that:
44.1 …
44.2 the dismissal of the applicants
[appellants] was motivated not by a
bona fide
, commercial
rationale or sound operational requirements as defined in s213 of the
LRA, but due to the applicants’ [appellants’]
activities
in respect of,
inter alia
, the Fire & Emergency Services
Pension Fund in their respective capacities as elected employee
trustees.’
[14] In the original
statement of case, the appellants sought relief in the following
terms:
‘
1. Declaring
that their respective dismissals were neither for fair reasons based
on the respondent’s [i.e. BFES’s]
operational
requirements, nor in accordance with a fair procedure
2. Compensation in terms of s194 of
the LRA
3. A severance payment calculated in
terms of section 41 (2) of the Basic Conditions of Employment Act 75
of 1977
4. Four months’ notice pay in
terms of clause 7(1)(b)(ii) of the respondent’s Terms and
Conditions of Employment
5. Costs
6. Further and/or alternative relief.’
Proceedings in the
Labour Court In Re: Trial pursuant to the original statement of case
[15] The trial in the
Court
a quo
commenced on 16 February 2004. The proceedings
continued up to the stage where the witness for the then respondent
(BFES) had testified
and BFES had closed its case, and the first
witness on behalf of the appellants’ case had also given
evidence. It was at
that stage that, on 8 July 2004, when the matter
was already part-heard, BFES brought an interlocutory application for
an order
declaring that a settlement agreement between itself and
Ekurhuleni constituted a transfer of business in terms of section 197
of the LRA and that Ekurhuleni be substituted as respondent in the
matter.
[16] It is apparent that
Ekurhuleni opposed the interlocutory application aforesaid, but the
appellants did not. However, it is
common cause that on 18 May 2005,
the Court
a quo
granted the declarator sought and thus
substituted Ekurhuleni for BFES, as the respondent, in the part-heard
matter before the
Court
a quo.
[17] On 31 May 2005,
Ekurhuleni filed a notice of its intention to apply for leave to
appeal against the order granted by the Court
a quo
on 18 May
2005 substituting it for BFES, as the respondent (the substitution
order). Leave to appeal was granted on 19 April 2006.
However, no
further steps were taken by Ekurhuleni in terms of prosecuting the
intended appeal. BFES lodged a further interlocutory
application
seeking an order compelling Ekurhuleni to prosecute the appeal.
However, BFES subsequently withdrew this application
on 19 September
2007, although when this information came to the attention of the
appellants, on 12 December 2007, it was as though
the appeal itself
had been withdrawn by Ekurhuleni. But, it seems to me, nothing turns
on that aspect of the matter. What is important
is that the order of
the Court
a quo
substituting Ekurhuleni for BFES, as the
respondent, thus stood.
Application for
amendment of the original statement of case
[18]
Since 12 December 2007 nothing happened in terms of reinstating the
part-heard matter before the Court
a
quo
until
16 April 2009 when the appellants filed an application for amendment
of the original statement of case, in the light of the
substitution
order. The appellants’ current attorney of record, Mr Schmidt,
deposed to the affidavit in support of the appellants’
amendment application.
[19] Mr Schmidt alleged,
among other things, that it was only after perusal of the Court file,
the transcript of the record (in
the part-heard main trial) and the
order substituting the respondent as the responsible employer, as
well as consultations with
the appellants that it became apparent
that an order for the reinstatement of the appellants became an
option. It was also only
then that it became relevant and necessary
to prove that the dismissals of the appellants were automatically
unfair and to claim
their reinstatement.
[20]
It was further alleged that, after all, the appellants had, initially
and after their retrenchment, insisted upon their reinstatement
until
they became aware of the fact that the BFES’s service delivery
contract with Ekurhuleni was not to be renewed.
2
[21]
To the extent relevant to this appeal, the appellants’ proposed
amendments to the original statement of case included
the following:
3
‘
2. That
paragraphs 21
bis,
21
ter
,
21
quad
and 21
quin
be inserted as follows:
‘
21(
bis)
During or about March 1996 Mr SJC Barber proposed that the Benoni
Fire and Emergency Services’ employee’s trust invest
its
capital alternatively the value of its shares in a farm in which Mr
Barber had interest alternatively which he owned. The Applicants
[appellants] opposed the proposal and/or the terms thereof.
21
(ter)
During 1996 the
Applicants’ [appellants] researching the possibility that the
employees join another medical scheme than the
one they were members
of. The Benoni Fire and Emergency Services’ Mr Barber was
opposed to the employees’ proposed
joining of any other medical
scheme despite the better benefits and/or reductions in premiums that
were offered and prevented (sic)
alternatively opposed the employees
from joining the other medical scheme and accused the Applicants
[appellants] of acting in
their own interests.
21
(quad)
During or about
November 1998 to April 1999 the Benoni Fire and Emergency’s Mr
Barber proposed that the employees’
trust exchange[d] its
shares in the company for shares in another company in which Mr
Barber had interests and/or an interest.
The Applicants [appellants]
opposed the proposal and/or the terms thereof.
21
(quin)
During or about
February 2000 the Applicants [appellants] opposed the Benoni Fire and
Emergency’s Mr Barber’s proposal
that the employees’
pension retain[ed] their shares in the Old Mutual and not [to] sell
the shares and distribute the proceeds
of the sale among the
members.”
3. That paragraph 22
bis
be
inserted as follows:
‘
22(
bis)
During
1999 and 2000 and at the Pension Fund’s trustees meetings the
Applicants [appellants] raised and/or objected to the
employer’s
failure to make all the contributions to the Pension Fund that it was
obliged to make and raised alternatively
objected to the deficiencies
that existed in the administration of the Pension Fund, alternatively
the employer’s administration
alternatively participation in
the administration of the fund.’
4. By introducing the following words
after the words ‘the applicants contend that their dismissal
was’ in paragraph
44: ‘automatically unfair and/or’.
5. By introducing a paragraph 44.3 as
follows:
‘
44.3. Their
dismissals were on account of or partly on account of them having
raised the employer’s failure to make all the
contributions to
the Pension Fund that it was obliged to make and having raised
alternatively objected to the deficiencies that
existed in the
administration of the Pension Fund, alternatively the employer’s
administration alternatively participation
in the administration of
the fund and having opposed the Benoni Fire and Emergency’s Mr
Barber’s proposals relating
to the employees’ trust funds
and assets and having made proposals and having done research that
the said Mr Barber dislike,
disagreed with and did not want
introduced.
44.4 Their dismissals on the aforesaid
grounds and/or the direct and indirect influence that the aforesaid
grounds had on them having
been dismissed lead to and constituted
discrimination against them on arbitrary grounds as contemplated in
section 187(1)f alternatively
the reason for their dismissals were
that they took action and/or indicated that they intended to take
action against the employer
by exercising a right conferred by the
LRA and that they opposed the employer’s Mr Barber as aforesaid
and their dismissals
therefore constituted discrimination against the
Applicants [appellants] for the exercise of their rights to social
justice and/or
their rights to fair labour practices.
44.6 Consequently and pursuant to
clause 187 their dismissals were automatically unfair as contemplated
in section 187 of the Labour
Relations Act.’
By introducing the following words
after the words ‘declaring that their respective dismissals
were’ the following:
‘automatically unfair,
alternatively
that their respective dismissals were’.
9. By substituting prayer 2 with the
following:
‘
2. (a)
Compensation in terms of Section 194 of the LRA
(b) Reinstatement in terms of Section
193(2), retrospectively from the dates of dismissals to the dates for
the retirement of the
First and Second Respondent respectively;
(c) Payment in terms of the
reinstatement for the period between the dates of the applicant’s
respective dismissals to the
dates for their respective retirements
together with payment of all benefits attached to the positions which
they should have occupied
had they not been dismissed.’
Ekurhuleni’s
opposition to the application for amendment
[22] On 20 April 2009,
Ekurhuleni filed a notice of its opposition to the granting of the
proposed amendments referred to in paragraphs
2 to 5 and 7 of the
appellants’ notice of amendment. The opposition was based on
several grounds, mainly the following:
22.1. At no stage during
the trial proceedings did the appellants request the Labour Court to
amend their statement of case and
it was already eight and a half
years after instituting the said proceedings and after BFES had been
replaced by Ekurhuleni as
the respondent that the appellants sought
the amendment.
22.2. The Labour Court
made an order, on 18 May 2005, substituting the respondent in the
place of BFES, which meant that a period
of three years and10 months
had elapsed since the order was made, and thus the conduct of the
appellants in only applying for amendment
after the lapse of such
long period of time severely prejudiced the respondent.
22.3. Evidence had
already been adduced in the case before the Labour Court to the
extent that the then respondent (BFES) had already
closed its case
and the appellants’ first witness had already testified.
22.4. The proposed
amendment sought to introduce a new claim, namely the claim for
reinstatement; alternatively the claim had since
become prescribed.
22.5. In their original
statement of claim, the appellants expressed their wish and made the
election to seek an order for compensation
and not reinstatement.
Proceedings in the
Labour Court In Re: Application for amendment of the original
statement of case
[23] It would appear that
the application for amendment was argued before the Court
a quo
on 29 June 2009 and the Court order (without reasons) was handed down
on 6 April 2011. The reasons for the judgment and order were
furnished on 1 August 2011.
[24] In rejecting the
appellants’ application for amendment of the original statement
of case, the Court
a quo
stated the following:
‘
9. It is
trite that this Court has to exercise its decision whether to allow
an amendment of pleadings. While the Court will generally
lean
towards granting an application to amend pleadings, in doing so, the
overriding consideration is that where an amendment is
allowed it
must be done without prejudice and without causing an injustice to a
party. In
Moolman
v Estate Moolman and Another
1927 CPD at 29, the Court held as follows:
“
The
practical rule adopted seems to be that amendments will always be
allowed unless the application to amend is
mala
fide
or
unless such amendment would cause an injustice to the other which
cannot be compensated by costs, or in other words, unless the
parties
cannot be put back for the purposes of justice in the same position
as they were when the pleading which is sought to amend
was filed.”
12. The applicants’ notice of
amendment was served on 17 February 2009. The notice of amendment was
served more than three
years after my judgement was handed down on 18
May 2005. In my view the amendments also have the effect of
introducing new claims.
One of the new and far reaching claims sought
by the proposed amendments is an order for reinstatement. The
applicants initially
did not ask for reinstatement but
opportunistically sought to do so by way of an amendment.
13. I am further of the view that the
amendments allowing will cause an injustice and prejudice to the
respondent. I am therefore
not persuaded that it would be in the
interests of justice to allow the amendments.’
[25] Accordingly, the
Court
a quo
dismissed with costs the appellants’
application for amendment of the original statement of case. It is
against this order
that the appellants now appeal to this Court.
The appeal
[26] The appellants’
grounds of appeal, as set out in the notice of appeal, included the
following:
26.1. The Court
a quo
erred in finding that the appellants’ proposed amendment to the
original statement of case would cause an injustice and prejudice
to
the respondent.
26.2. The Court
a quo
should have found that the delay in the proceedings after the
judgment by the Court, in terms of which the respondent was
substituted
for the erstwhile respondent (BFES) was not caused by and
was not as a result of any inaction, failure to act or dilatoriness
on
the part of the appellants.
26.3. The Court
a quo
should have found that it was as a result of the respondent’s
actions, alternatively failure to act, alternatively dilatoriness
that there was a lapse of more than three years and six months after
the judgment in the aforementioned application was handed
down and
that the appellants are not to blame for the delay between 17 May
2005 and 17 February 2009.
26.4. The Court
a quo
further erred in finding that the amendments which the appellants
seek to effect, introduce new claims. The Court
a quo
should
have found that the claims which the appellants sought to introduce:
26.4.1. Were the same as
the claims which were set out in the statement of claim and that the
claims were based upon the unfair
dismissal of the appellants; and
26.4.2. That the facts
set out in the notice of amendment had already been, alternatively
had already largely been canvassed during
the hearing.
26.5. The Court
a quo
should further have found that, even if new claims are introduced
through the amendment, the amendment should be allowed if there
is no
specific prejudice caused to the respondent which cannot be
compensated by costs.
26.6. The Court
a quo
further erred in not giving consideration to the fact that the
respondent had given notice that it intends to re-open its case
and
present further evidence and that the respondent itself has not yet
lead any evidence in the matter. The Court
a quo
should have
also considered that, by giving the aforesaid notice, the respondent
indicated that the witnesses necessary to address
the issues which
have been dealt with in evidence so far in the hearing, are available
and will be called to give evidence.
26.7. The Court
a quo
erred in not finding that the objections which Ekurhuleni raised to
the appellants’ application to amend and which deal with
special defences or the merits of the appellants’ entitlement
to the relief sought should be dealt with during the hearing
of the
matter and in light of the evidence which is to be presented. The
Court
a quo
should have found that such issues cannot and
should not be decided upon without having regard to all the evidence.
The Court
a quo
should have found that the amendments should
be allowed to facilitate a proper ventilation of all the issues
between the parties.
[27] Mr van Vuuren, for
the appellants, submitted that the objective of the proposed
amendments was to enable certain issues to
be placed before the trial
Court which would then decide whether the appellants were entitled to
the rights which they claimed
in terms of the amendments. It was not
for this Court to assess the evidence whether the appellants were
entitled to those rights.
[28]
Counsel further submitted that, after all, the claims for unfair
dismissal and for automatically unfair dismissal remained
the same
dispute, in the context of this case. In this regard he referred us
to the decision of this Court in
National
Union of Metalworkers of SA and Others v Driveline Technologies (Pty)
Ltd.
4
He
further argued that, according to the decisions of the Courts,
applications for amendment of pleadings should always be granted
unless doing so would cause prejudice and injustice to the other
party, which could not be compensated by costs or postponement
of the
case.
[29]
Mr Pauw SC, for Ekurhuleni, submitted that the facts necessary to
prove unfair dismissal were not the same as those necessary
to prove
automatically unfair dismissal. He further submitted that the
pronouncement by this Court in
Driveline
that
an automatically unfair dismissal was but a species of unfair
dismissal, could not be correct as a broad exposition of the
law, in
that automatically unfair dismissal had special and distinguishing
attributes.
[30]
Counsel further argued that the appellants could have claimed
reinstatement in the original statement of case but they chose
not to
do so. They must, therefore, be bound by their election. The
principles of election applicable in the case of breach of
contract
should equally apply in the case of an alleged unfair dismissal and
remedies consequent thereto. In this regard, Mr Pauw
referred us to
the decision in
Mahabeer
v Sharma NO and Others
5
in
support of his proposition. He further argued that the proposed
amendments sought to introduce new claims which had, in any event,
become prescribed.
The judicial
discretion to grant or refuse an application for amendment of
pleadings
[31]
Clearly, this case has a long and curious historical background, but
much of which is not, in my view, really relevant to the
outcome of
this matter. The issue on appeal is about the refusal by the Court
a
quo
to
grant the appellants’ application for amendment of the original
statement of case.
[32] Rule 28(10) of the
Uniform Rules provides that ‘[t]he court may … at any
stage before judgment grant leave to
amend any pleading or document
on such other terms as to costs or other matters as it deems fit.’
This provision clearly
confers a discretionary power on the forum
that considers the application for amendment.
[33]
In
Ex
Parte Neethling and Others,
6
the
Appellate Division (per Greenberg JA) stated:
‘
I think,
therefore, that if an appeal lies, this Court would be entitled to
interfere, not on the ground that in its opinion the
contract was in
the interests of the minors, because if it did so it would be
substituting its discretion for that of the upper
guardian, but only
if it came to the conclusion that the Court
a
quo
had not exercised a judicial discretion.
Rex
v Zackey
1945 AD 505
, dealt with the question of an appeal court’s power
to overrule a lower court’s decision where the decision had
been
on a matter within the discretion of such lower court and three
classes of such cases were referred to, viz decisions on the question
of costs, on a postponement and on an amendment of pleadings in the
lower court. To this might be added the question of an alteration
of
sentence on appeal. … I see no distinction in principle
between these and the present case. At p. 513 of the report in
Rex
vZackeysupra
instances
were given to show what is meant by “judicial discretion”
and these are apposite here. … Can it be
said in the present
case that the Court
a
quo
has exercised its discretion capriciously or upon a wrong principle,
that it has not brought its unbiased judgment to bear on the
question
or has not acted for substantial reasons?’
[34]
In exercising its discretion in this regard, the lower court should
always reflect, in its assessment of the application, a
degree of
generosity and striveto ensure, as its objective, a proper
ventilation of the real dispute between the parties.
7
An
appeal court will not lightly interfere with the exercise of such
discretion unless it is satisfied that the lower court misdirected
itself or failed in its exercise of the judicial discretion.
Whether the long delay
to submit the application justified refusal of the proposed
amendments
[35]
It would appear that the Court
a
quo
placed
too much focus on the fact that there was a long delay before the
appellants filed the application for amendment and that,
on this
basis, Ekurhuleni would suffer prejudice and injustice if the
amendments were allowed. Further, the Court
a
quo
noted
that the notice of amendment was served more than three years after
the Court’s judgment of 18 May 2005; and that the
proposed
amendments had the effect of introducing new claims. For these
reasons, the Court
a
quo
held
that it was not in the interests of justice to grant the amendments.
[36]
However, it should be borne in mind that a delay in bringing forward
an application for amendment is not
per
se
,
in the absence of prejudice to the other party, a ground for the
Court to refuse an amendment.
8
In
this instance, the Court
a
quo
lost
sight, in my view, of the fact that a substantial part of the long
delay in the appellants’ filing of the application
for
amendment was as a result of no fault or blame on the part of the
appellants. In the first place, it was not at the appellants’
instance that BFES (the former respondent) interrupted the trial on 8
July 2004 by its lodgement of the interlocutory application
for the
substitution order, which was granted on 18 May 2005. It was
obviously this interruption that started the derailment of
the trial
focus and, as I have said, it had nothing to do with the appellants.
[37]
The Court
a
quo’s
conclusion,
that ‘the notice of amendment was served more than three years’
after the Court’s judgment, was based
on its computation of the
period 18 May 2005 to 17 February 2009. However, in doing this, the
Court
a
quo
failed,
as I have already pointed out, to appreciate the fact that the
appellants had nothing to do with a substantial part of this
period
of delay. For instance, the Court
a
quo
never
made mention, in its judgment, of the fact that subsequent to its
judgment of 18 May 2005 (the substitution order) Ekurhuleni,
on 31
May 2005, filed a notice of application for leave to appeal against
that judgment, which leave to appeal was granted only
on 19 April
2006 – some 11 months later.Further, that for a long period of
time Ekurhuleni failed to take the necessary steps
to prosecute the
intended appeal, which could justifiably be construed, in the
circumstances, as a deliberate, reckless or negligent
conduct on the
part of Ekurhuleni and which, in turn, could be legitimately regarded
as an act of dilatoriness on itspart.
[38]
As indicated earlier, the application for amendment was argued before
the Court
a
quo
on
29 June 2009 and the Court’s order (short of reasons) was
handed down only on 6 April 2011- nearly 2 years later. The reasons
for the judgment and order were furnished on 1 August 2011. In other
words, the delay during the period 29 June 2009 to 1 August
2011
(over 2 years) cannot be attributed to neither the appellants nor,
for that matter, Ekurhuleni, but the Court
a
quo
itself.
[39] Despite the leave to
appeal against the substitution order having been granted to
Ekurhuleni on 19 April 2006, Ekurhuleni did
nothing to prosecute the
appeal until 15 January 2007 (some nine months later) when BFES
lodged the application to compel Ekurhuleni
to prosecute the appeal.
We now know that BFES subsequently withdrew that application to
compel, on 19 September 2007. Nevertheless,
it is clear that
Ekurhuleni never proceeded with the appeal against the substitution
order.
[40] Thereafter nothing
happened until 12 December 2007, when the appellants made inquiries
from their erstwhile attorneys about
any progress in Ekurhuleni’s
contemplated appeal. The appellants’ explanation for making the
inquiries only on 12 December
2007 was that all along the file was
being handled by their erstwhile attorney Mr A Goldberg of Perrot Van
Niekerk & Woodhouse
and that when Mr Goldberg left that practice
towards the end of 2007 the file was then taken over by another
attorney who did not
perform to the appellants’ satisfaction.
Hence, the appellants had moved on and engaged the services of their
current attorneys
of record.
[41]
However, there was a factual dispute as to whether Mr Goldberg left
the said practice at the end of 2007 or about July 2005.
To my mind,
this makes no much difference, given the fact that by July 2005 the
Court
a
quo
was
still considering Ekurhuleni’s application for leave to appeal,
the ruling whereof was given only on 16 April 2006.
[42] It seems to me,
therefore, that the delay for the period commencing at least from 18
May 2005 (the date of the substitution
order) to 12 December 2007
(the date when the appellants were informed that the appeal against
the substitution order had been
withdrawn) could justifiably be laid
squarely at the door of Ekurhuleni itself, on account of its dilatory
conduct in relation
to the aborted appeal against the substitution
order. This is a period of some 2 years and 7 months.
[43] The appellants could
not be blamed for being unaware about the progress in the aborted
appeal because, even though they had
a direct and substantial
interest in the outcome of that appeal, they were not a party to the
whole process, which was specifically
a dispute between BFES and
Ekurhuleni. Nor can they be faulted for electing not to oppose the
application for the substitution
order, in the first place. Further,
there is no suggestion that either BFES or Ekurhuleni kept the
appellants informed about the
status and progress of the
interlocutory litigation between themselves, until the appellants
investigated the matter through their
erstwhile attorneys on 12
December 2007. In my view, therefore, it cannot be said that any
delay for the period aforesaid was as
a result of any fault, failure
or inaction on the part of the appellants.
[44] It was only after 12
December 2007 that the appellants became discontented with the manner
and pace their erstwhile attorneys
were handling the matter. However,
it is common knowledge that during that time of the year they would
not have been able to appoint
new attorneys and get the process going
at once. It was not unreasonable of them to request their union to
look into the matter
which, indeed, culminated in the union
appointing the current attorneys of record on 4 March 2008. The
attorneys had to requisition
for the transcription of the Court
record in the part-heard matter, which they received on 13 November
2008, consisting of 462-page
material.
[45]
There was then a need for the responsible attorney in charge of the
file to conduct an extensive perusal and consideration
of the
relevant documentation. The documentation would naturally include the
pleadings in the Court file, the said 462-page transcript,
the Court
a
quo’s
judgment
in the substitution order and the aborted appeal.
[46]
The appellants alleged that they had then established that there were
three Court files in respect of the matter and that one
of them could
not be found, until it was found by the registrar on 4 December
2008.
9
This
allegation was not disputed, but merely noted, by Ekurhuleni in its
answering affidavit.
10
It
seems, therefore, that it was only then (after 4 December 2008) that
any meaningful consultation of the appellants by the responsible
attorney could take place.
[47]
It was not in dispute that on 17 February 2009 the appellants filed
their initial notice of amendment which relied mostly on
the
Protected Disclosures Act
11
and
that Ekurhuleni, on 5 March 2009, correctly objected to their
reliance on the said Act on the ground stated earlier. Just over
a
month later (on 16 April 2009) the appellants filed the second
application for amendment, which is the subject of this appeal.
In
comparison, therefore, to the long unexplained delay caused by
Ekurhuleni, which I have alluded to already, it does not appear
to me
that the appellants are to be solely blamed, if at all, for the
lateness of their amendment application filed on 16 April
2009.
Whether the proposed
amendments would introduce a new cause of action
[48]
It has also always been said that the Court will allow the amendment
of a pleading or prayer where the main issue between the
parties
remains the same. In
Tomassini
v Dos Remendos and Another,
12
the
Court (per Kruper J), after distinguishing that case with the facts
in
Hy-cap
Vulcanising Co (Pty) Ltd v South African Motor Trade Association,
13
stated
as follows:
‘
I do not
think that that case
[i.e.
Hy-cap Vulcanising]
is applicable to the circumstances in the present case. Here the main
issue remains the same. The main issue is whether or not
a contract
of sale was entered into between the parties. That is fundamental to
both questions, whether the plaintiff would be
entitled to obtain
specific performance, or whether he would be entitled to claim
damages.
It
is quite true, of course, that the claim for damages introduces
certain further features that have to be considered, but in my
view
that does not make a different case from the case originally
envisaged by the parties to the proceedings
.’
(Underlined for emphasis)
[49]
Whilst the Court will not readily grant an amendment where the
granting thereof would introduce a new cause of action,
14
the
courts have recognized that in many cases it may be convenient to
incorporate fresh causes of action in original proceedings;
15
provided
that an amendment which introduces a new cause of action will only be
allowed if no prejudice is occasioned thereby.
16
[50]
There is no objection in principle to a new cause of action or
defence being added by way of amendment, even though it has
the
effect of changing the character of the action and necessitating the
reopening of the case for fresh evidence to be led, where
that is
necessary to determine the real issue between the parties.
17
Of
course, the amendment must be
bona
fide
,
18
especially
where the effect of refusing it would again bring the same parties
before the same court on the same issue.
19
[51]
Importantly, there should be a distinction made between an amendment
introducing a new cause of action (i.e. the right of action)
20
and
one which merely introduces fresh and alternative facts supporting
the original right of action.
21
In my
view, the latter appears to be the case here. Whether the dispute is
about unfair dismissal in terms of section 186 of the
LRA or
automatically unfair dismissal in terms of section 187, the cause or
right of action, in this case, remains the same –
i.e. the
dispute about the fairness of their dismissal. In
National
Union of Metalworkers of SA and Others v Driveline Technologies (Pty)
Ltd and Another,
22
this
Court (
per
Zondo
AJP, as he then was) stated, amongst others, as follows:
‘
[62] At
1214J-1215A in
Cementation
Africa Contracts
23
the
Labour Court made statements to the effect that, after conciliation,
a party which wants to take a dismissal dispute further
is bound by
the conciliating commissioner’s description of the dispute in
the certificate of outcome. I do not agree with
this. The position
is, as the Labour Court correctly pointed out in that case, that a
party cannot change the nature of the dispute.
I would add that the
conciliating commissioner is also bound not to change the nature of
the real dispute between the parties.
If he did, the party that seeks
to take the matter further would not be bound by a wrong description
of the dispute but would have
a right to take further the true
dispute that was referred to conciliation and to give a correct
description of the dispute. What
the parties are bound by is the
correct description of the real dispute that was referred to
conciliation.
[63] …
[64] At any rate,
it matters not
for purposes of jurisdiction whether at the time of the conciliation
of a dismissal dispute, the reason alleged for
the dismissal was
operational requirements or an automatically unfair reason. The
dispute is about the fairness of the dismissal.
Therefore,
provided the alleged reason is one referred to in s 191 (5)(b), the
Labour Court will have jurisdiction to adjudicate
the real dispute
between the parties without any further statutory conciliation having
to be undertaken
as long as it is the same dismissal
.’(Underlined
for emphasis).
[52] Mr Pauw submitted
that the decision in
Driveline
should, after all, be seen in
light of the facts thereof. He contended that in that case the
argument raised by Driveline was that
the Labour Court did not have
jurisdiction over the proposed automatically unfair dismissal
dispute, because that dispute had not
been conciliated. To my mind, I
do not see why
Driveline
should be distinguished from this
case. On the principle, it is, in my opinion, practically on all
fours with the present case.
Driveline
involved an application
for amendment of the statement of case. Originally, the dismissed
employees had alleged that their dismissals
for operational
requirements were unfair in that the employer had not fully complied
with its obligations under section 189 of
the LRA. In the proposed
amendment, which was declined by the Labour Court, the employees
sought to attack the fairness of their
dismissals, apparently in the
alternative, on a further ground that the dismissals were
automatically unfair in terms of section
187(1)(c) of the LRA. This
is about the same scenario as in the present case.
[53] The fact that an
automatically unfair dismissal has special and distinguishing
attributes, as Mr Pauw submitted, does not,
in my view, detract from
it being a species of the broad concept of unfair dismissal. Having
considered the reasoning of the Court
in
Driveline
, I have no
cause to doubt that the decision remains good law on the subject.
Whether the appellants
are bound by their original election of compensation
[54]
Indeed, it is settled law that where in breach of a contract, an
aggrieved party has a choice of remedies, that party must
exercise an
election to enforce the remedy within a reasonable time. However, the
decision in
Mahabeer,
to
which we were referred by counsel, does not assist Ekurhuleni.
In
Mahabeer,
24
,
the Appellate Division (per Hefer JA) stated the position clearly,
thus:
‘
It is often
said (usually on the authority of Voet
Commentarius
Ad Pandectas
18.3.2) that the right to cancel an agreement must be exercised
within a reasonable time. I have no quarrel with that statement
–
as far as it goes.
But
it does not follow that failure to exercise the right within such a
time results
ipso
iure
in its loss
.
In
Potgieter’s
case
supra
this Court also approved in the present context of a passage which
appears in
Pollock
at 629 to the effect that
“
the
contract must be rescinded within a reasonable time, that is, before
the lapse of a time after the true state of things is known,
so long
that under the circumstances of the particular case the other party
may fairly infer that right of rescission is waived”,
which puts failure to exercise the
right to cancel within a reasonable time in its perspective.
Depending on the circumstances
, such a failure may, eg,
justify an inference that the right was waived or, stated
differently, that the party entitled to cancel
has elected not to do
so (cf
Pienaar v Fortuin
1977 (4) SA 428
(T) at 433G;
Becker
v Sunnypide Park (Pty) Ltd
1982 (1) SA 958
(W) at 964-5;
Smit
v Hoffman en 'n Ander
1977 (4) SA 610
(O) at 616G-H), or it may
open the door to some other defence. In such cases the lapse of an
unreasonably long time forms part
of the material which is taken into
account in order to decide whether the party entitled to cancel
should or should not be permitted
to assert his right.
But
per
se
it cannot bring about the loss of the right.
(Cf
Alfred
McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
1977 (4) SA 310
(T) at 325F-G)’. (Underlined for emphasis)
[55]
Clearly, therefore, it does not follow that the appellants, by not
making their election to claim reinstatement ‘within
a
reasonable time’, have to lose their right in that regard. The
peculiar facts and circumstances of this case do not justify
that
conclusion. There is nothing, in my view, to suggest that the
appellants waived their right to claim reinstatement at the
time they
filed the original statement of case. Their election at that time to
claim only compensation and not reinstatement should
be properly
contextualized on the facts and circumstances of the case. I have
noted that, notwithstanding their former employer,
BFES, having
persistently urged them, directly and through their union, to make an
election between early retirement or retrenchment
packages, the
appellants stood their ground and declined to commit themselves to
either of the two options presented to them. Indeed,
it was as a
result of their steadfastness on this point that BFES eventually
unilaterally decided to proceed and deposit the cash
retrenchment
packages into the appellants’ respective bank accounts on 22
December 2000.
25
[56]
It is apparent, on the papers, that the contractual relationship
between Ekurhuleni and BFES had started getting frosty and
limping at
least as early as during or about December 2001. Certain factual
background material in this regard appeared in the
judgment of Botha
J of the Transvaal Provincial Division (as it was then known) under
case number 7905/2003,
26
to
which I refer presently.
[57] The initial service
delivery contract between Ekurhuleni and BFES dated 28 September 1998
was for a period of four years, effective
from 27 September 1996 and
expiring on 27 September 2000. This contract was subsequently
extended by means of an addendum for another
year to 28 September
2001. In terms of the addendum, it was agreed that after the expiry
date, the contract would continue to operate
until either party gave
the other six months’ notice of its termination. On 19 December
2001, Ekurhuleni’s Executive
Mayor, on behalf of Ekurhuleni,
served the BFES with the notice of intention to terminate the
contract. BFES challenged the decision
and launched a court
application, under case number 6446/2002, to have the decision to
terminate set aside. However, that matter
was settled between the
parties on 15 May 2002. Then on 5 December 2002 the Executive Mayor
again decided, on behalf of Ekurhuleni,
to terminate the contract
with six months’ notice. That dispute culminated in the matter
before Botha J.
[58]
There seems to have been no doubt that the appellants’
continued stable employment with BFES was dependent on the continued
operation of the service delivery contract between BFES and
Ekurhuleni. Therefore, when the appellants filed the original
statement
of case on 3 January 2002, the future of the continued
contractual relationship between BFES and Ekurhuleni was in doubt, or
at
least no longer guaranteed. On this basis, it was reasonably not
unexpected that the appellants did not claim reinstatement. However,
the substitution order completely changed the complexion of the
situation. Once Ekurhuleni was substituted as the respondent, on
the
basis of its receipt of transfer of the business of BFES as a going
concern, the right to claim reinstatement from Ekurhuleni
became an
option available to the appellants. I am, therefore, satisfied that
they tendered a plausible explanation as to why they
did not elect to
claim reinstatement against BFES, which is outlined above. Their
right of action against Ekurhuleni is founded
on the same alleged
unfair dismissal
27
which
they alleged in the original statement of case. They were dismissed
only once, not twice.
[59]
It would therefore, in my view, be unreasonable and unfair to hold
and pin the appellants to their election of compensation
only, in
terms of the original statement of case, because that would be
completely overlooking and ignoring the changed circumstances
brought
about by the effect of the substitution order. The fact that the
appellants may now have entered the retirement age and,
therefore,
unable to tender their services in return for reinstatement is, in my
view, irrelevant for the purpose of determining
whether to grant the
proposed amendments. That would be an issue for consideration by the
trial Court, which will have a discretionary
power in relation to the
extent of the retrospectivity of the reinstatement, if the
reinstatement is ordered at all. In determining
whether such order is
appropriate, the trial Court will have to consider, as its focal
point, the underlying notion of fairness
between both Ekurhuleni, as
the employer, and the appellants, as the dismissed employees, on the
objective assessment of the particular
facts of this case.
28
Whether Ekurhuleni was
likely to suffer prejudice if amendments were allowed
[60]
In
Moolman
v Estate Moolman and Another,
29
the
Court held as follows:
‘
The
practical rule adopted seems to be that amendments will always be
allowed unless the application to amend is
mala
fide
or unless such amendment would cause an injustice to the other which
cannot be compensated by costs, or in other words, unless
the parties
cannot be put back for the purposes of justice in the same position
as they were when the pleading which is sought
to amend was filed.’
[61]
The
onus
is on
the party seeking the amendment to prove that the other party will
not be prejudiced by the amendment.
30
In
Union
Bank of South Africa Limited v Woolf; Union Bank of South Africa
Limited v Shipper,
31
the
Court stated:
‘
Where there
is a real doubt whether or not prejudice or injustice will be caused
to the defendant if the amendment is allowed it
should be refused.’
[62] It does not appear
to me that there was a likelihood of any specific prejudice being
suffered by Ekurhuleni if the amendments
were allowed. After all, it
is noted that Ekurhuleni did not allege any specific prejudice in
this regard. For instance, there
is no suggestion that its witnesses
would no longer be available to testify.
[63]
Indeed, it is not uncommon that, in many instances, the amendments
have the effect of changing the character of the action
and thus
necessitate the other party requesting to reopen its case, which is
reasonable and necessary in the determination of the
real issue
between the parties.
32
In my
view, the following events are significant to note in relation to
that aspect. In their initial reaction to the proposed amendments,
Ekurhuleni, among other things, filed a notice requesting to reopen
its case.
33
On 1
June 2005, the appellants filed a notice of opposition to Ekurhuleni
being allowed to reopen its case.
34
Hence,
Ekurhuleni, in its answering affidavit, further reacted as follows:
‘
Save
to admit that the Respondent gave notice on 31 May 2005 that it
intended to reopen its case, the remainder of the allegations
herein
are denied… It appears that the First and Second applicant(s)
are still intending to oppose the respondent’s
intention to
reopen its case and as a result there is prejudice to the respondent
of the proposed amendment being applied for at
this stage.’
[64] However, Mr Van
Vuuren made it clear that the appellants were no longer opposing
Ekurhuleni’s application to reopen its
case. Thus, any
potential prejudice which Ekurhuleni may have complained about in
this regard should fall away. Similarly, any
other defence that
Ekurhuleni would seek to raise, consequent upon the introduction of
the amendments, it would be entitled to
do so when it reopens its
case and during the trial.
[65]
Indeed, I do not believe that the granting of the amendments would
place the appellants at an advantage over Ekurhuleni at
the hearing.
It does not necessarily follow that allowing the amendments will
necessarily entail a finding that the appellants’
dismissals
were automatically unfair and that the appellants are entitled to
reinstatement. Again, those are matters for consideration
by the
trial Court. In the event of Ekurhuleni possibly thinking that, for
whatever reason, the amendments would result in it losing
some
tactical advantage over the appellants at the trial, such a scenario
would not
per
se
translate
to any sort of prejudice or injustice to Ekurhuleni.
[66]
As indicated earlier, what the Court should be concerned about is
ensuring that as much relevant facts and material as possible
are
placed before it, to facilitate and expedite the determination of the
real issue between the parties. In
Myers
v Abramson
35
the
Court stated:
‘
The attitude
of the Courts is that pleadings are made for the Court and not the
Court for the pleadings (
Robinson
v Randfontein Estates Gold Mining Co., Ltd.,
1925 AD 173
at p. 198), and in my opinion no Court would so interpret
the rules, unless thereto compelled by the plain meaning thereof, as
to create a situation wherein the Court loses its power to allow such
amendments to the pleadings as are designed to ensure that
the real
issue between the parties is determined.
It
may well be that to allow the interposition of an application for an
amendment during the hearing of an application for absolution
may
deprive the party applying for absolution of a tactical advantage he
might otherwise enjoy over his opponent, but I do not
think that this
can outweigh the major concern of the Court to secure the expeditious
and most direct determination of the real
dispute between the
parties
.’
(Underlined for emphasis)
Whether the claim of
reinstatement was precluded by prescription
[67]
It was further argued on behalf of Ekurhuleni that the appellants’
claim of reinstatement had, after all, become prescribed
in terms of
the relevant provisions of the Prescription Act.
36
In
this regard counsel referred us to the decision of the Labour Court
in
Gaoshubelwe
and Others v Pie Man’s Pantry (Pty) Limited
37
in
terms of which the Labour Court held that any claim based on an
unfair dismissal is a debt contemplated by the Prescription Act.
[68]
Mr Pauw submitted, however, that the Labour Court (in
Gaoshubelwe
)
was wrong in holding that prescription was interrupted by the
initiation of the process through the referral to the CCMA, in that
the Labour Court failed to have regard to section 15 of the
Prescription Act, which dealt with the interruption of prescription
under certain specified conditions.
[69]
When dealing with an application for amendment of pleadings it is
important to avert confusing that process with the determination
of
whether there has been interruption of prescription, as one envisaged
in section 15(1) of the Prescription Act. Even though
the two
situations may sometimes be practically closely linked in a given
case, they remain different concepts and are governed
by different
rules and principles. In
Blaauwberg
Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd,
38
theSupreme
Court of Appeal (per Heher JA) remarked as follows, in part:
‘
[12] The
approach adopted by the Court a quo reveals confusion. There seems to
have been no consideration of whether a difference
in approach is
called for between applications for amendment of pleadings and the
determination of whether there is compliance
with a statutory
provision such as s 15(1). The cases referred to in para [8], which
related to the first problem, were applied
willy-nilly to the second.
It is clear that there are fundamental differences between the two
situations.
Amendments
are regulated by a wide and generous discretion which leans towards
the proper ventilation of disputes and are granted
according to a
body of rules developed in that context.
Whether there has been compliance with a statutory injunction depends
upon the application of principles wholly unrelated to the
rules just
mentioned and without the exercise of a discretion, principles which
were expressed by Van Winsen AJA in the well-known
passage from
Maharaj
and Others v Rampersad
1964 (4) SA 638
(A) at 646C-E as follows:
“
The
enquiry, I suggest, is not so much whether there has been ''exact''
or ''substantial'' compliance with this injunction but rather
whether
there has been compliance therewith. This enquiry postulates an
application of the injunction to the facts and a resultant
comparison
between what the position is, and what according to the requirement
of the injunction it ought to be. It is quite conceivable
that a
court might hold that, even though the position as it is is not
identical with that which it ought to be, the injunction
has
nevertheless been complied with. In deciding whether there has been
compliance with the injunction the object sought to be
achieved by
the injunction and the question of whether the object has been
achieved are of importance. Cf JE
M
Motors Ltd v Boutle and Another
1961 (2) SA 320
(N) at 327-8.”’ (Underlined for emphasis)
[70]
The present instance is about the application for amendment of the
original statement of case, and not about whether the claim
of
reinstatement, in terms of the proposed amendments, had become
prescribed, or whether the running of prescription in that regard
was
interrupted in terms of section 15 of the Prescription Act. As
stated, the issue is about whether the Court
a
quo
exercised
its discretion judiciously, when it disallowed the proposed
amendments. In other words, the determination of whether the
Court
a
quo
properly
exercised its discretion in that regard is not dependent on the
determination of the prescription-related issues that I
have just
mentioned. It further has to be borne in mind that the exercise of
judicial discretion, in relation to amendment of pleadings,
has to
reflect a degree of generosity on the part of the Court or tribunal
considering the application.
39
[71]
Like the allegation of discrimination raised by the appellants in the
proposed amendments (that Mr Meyer was unfairly preferred
over them
and not dismissed), the defence of prescription (raised by
Ekurhuleni) is a triable issue which, in my view, also deserves
a
proper ventilation and consideration at the trial. To my mind,
therefore, these issues are rather premature to deal with at this
stage. I also note that although Ekurhuleni did raise the issue of
prescription in its notice of opposition to the amendments,
the
learned Acting Judge
a
quo
elected,
correctly so in my view, not to deal with that issue in his reasons
for the ruling.
[72]
However, even if I am wrong with the view that I postulate above, I
would still hold, for the reasons that follow, that the
appellants
have a reasonable prospect of success against Ekurhuleni’s
defence of prescription against the amendments. In
Evins
v Shield Insurance Co Limited,
40
the
Appellate Division (per Corbett JA, delivering the majority judgment)
stated:
‘
Where the
plaintiff seeks by way of amendment to augment his claim for damages,
he will be precluded from doing so by prescription
if the new claim
is based upon a new cause of action and the relevant prescriptive
period has run,
but
not if it was part and parcel of the original cause of action and
merely represents a fresh quantification of the original claim
or the
addition of a further item of damages
(see
Wigham
v British Traders Insurance Co Ltd
1963 (3) SA 151
(W);
Schnellen
v Rondalia Assurance Corporation of SA Ltd
1969 (1) SA 517
(W);
Lampert-Zakiewicz
v Marine & Trade Insurance Co Ltd
1975 (4) SA 597
(C) at 601 - 2).’ (Underlined for emphasis)
[73]
It seems to me, therefore, that the additional facts proposed to be
introduced in terms of the amendments in this case are
‘part
and parcel of the original cause of action and merely represent a
fresh quantification of the original claim’.
Hence, the
amendments would not render the appellants’ claim a new right
of action and, thus, the defence of prescription
would probably not
succeed.
[74]
In other words, the running of prescription would have been
interrupted because the right of action sought to be enforced by
the
appellants in the proposed amended statement of case is, in my view,
recognizable as the same or substantially the same right
of action as
that disclosed in the original statement of case. In
FirstRand
Bank Ltd v Nedbank (Swaziland) Ltd,
41
the
Supreme Court of Appeal (per Scott JA) once again visited this issue
and stated as follows:
‘
Even a
summons which fails to disclose a cause of action for want of one or
other averment may therefore interrupt the running of
prescription
provided only that the right of action sought to be enforced in the
summons subsequent to its amendment is recognisable
as the same or
substantially the same right of action as that disclosed in the
original summons. (See
Sentrachem
Ltd v Prinsloo
1997 (2) SA 1
(A) at 15H - 16B;
Churchill
v Standard General Insurance Co Ltd
1977 (1) SA 506
(A) at 517B - C.)
If
it is, the running of prescription will have been interrupted and it
will not matter that the effect of the amendment is to clarify
or
even expand the claim
.
(As to the expansion of the claim, see eg
Schnellen
v Rondalia Assurance Corporation of SA Ltd
1969
(1) SA 517
(W) at 520H - 521G.) The sole question in the present
appeal is therefore whether the right of action relied upon in the
particulars
of claim as amended is recognisable as the same or
substantially the same as that relied upon in the particulars of
claim in its
original form.’ (Underlined for emphasis)
[75] Indeed, the
appellants’ averments contained in paragraphs 2, 3 and 5 of the
proposed amended statement of claim, referred
to above, are, in my
opinion, merely an elaborate replica of the allegations in paragraphs
21, 22 and 44.2 of the original statement
of case, also referred to
above. Put differently, the appellants’ evidence to prove the
allegations in paragraphs 21, 22
and 44.2 of the original statement
of case would basically be the same evidence as to prove the
allegations contained in paragraphs
2, 3 and 5 of the proposed
amended statement of case.
[76]
In my judgment, I am satisfied that the Court
a
quo
failed
in the exercise of its judicial discretion when it refused the
application. In my view, the appellants succeeded to show
prima
facie
that
they had something deserving of consideration
42
and,
thus, the proposed amendments should have been allowed.
[77] As the granting of
the amendments would be an indulgence to the appellants, there is no
reason, in my view, why they should
not bear the costs of the
application. With respect to the costs of the appeal, it seems to me
fair and just that no order be made
in that regard.
The order
[78] In the result, the
following order is made:
1. The appeal is allowed.
2. The order of the Court
a quo
is set aside and replaced with the following order:
‘
(1)
The application for amendment is granted as prayed.
(2) The applicants are
directed to pay the costs of the application, jointly and severally
the one paying the other to be absolved.
3. The matter is remitted
to the Court
a quo
for a further hearing, in the light of this
judgment, and in accordance with the Rules or as the Court may
otherwise direct.’
4. There is no order as
to costs of the appeal.
_______________
Ndlovu JA
Zondi AJA and Musi AJA
concur in the judgment of Ndlovu JA
APPEARANCES
:
FOR THE APPELLANTS: Adv
PHJ van Vuuren
Instructed by AC
ScmidtInc, Brakpan
FOR THE RESPONDENT: Adv P
Pauw SC
Instructed by Du Plessis
De Heus& Van Wyk, Benoni
Heard : 6 November 2012
Delivered : 26 June 2013
1
Section
189 of Act 66 of 1995.
2
Appellants’
founding affidavit, para 31 at p12 of the indexed papers.
3
At
pp21-25 of the indexed papers.
4
(2000)
21 ILJ 142 (LAC).
5
1985
(3) SA 729
(A).
6
1951
(4) SA 331
(A), at 335A-C.
7
Blaauwberg
Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd
2004 (3)
SA 160
(SCA) para 12.
8
Trans-Drakensberg
Bankv Combined Engineering (Pty) Ltd
1967 (3) SA 632
(D), at
642C-D. See also
: SA Steel Equipment Co (Pty) Ltd v Lurelk (Pty)
Ltd
1951 (4) SA 167
(T) at 175A-F;
Kali v Incorporated
General Insurances Ltd
1976 (2) SA 179
(D) at 182A-B.
9
Appellants’
founding affidavit, para 27 at p. 11 of the indexed papers.
10
Respondent’s
answering affidavit, para 8.9 at pp61-2.
11
Act
26 of 2000.
12
Tomassini
v Dos Remendos and Another
1961 (1) SA 226
(W) at 228B-C.
13
1946
W.L.D. 495.
14
Bestenbier
v Goodwood Municipality
1955 (2) SA 692
(C).
15
OK
Motors v Van Niekerk
1961 (3) SA SA 149 (T) at 152C. See also:
MacDonald, Forman & Co v Van Aswegen
1963 (2) SA 150
(O)
at 153H-154A;
Fiat SA (Pty) Ltd v Bill Troskie Motors
1985
(1) SA 355
(O) at 357G-H;
Tengwa v Metrorail
2002 (1) SA 739
(C) at 745H.
16
MacDonald
v Forman
, above, at 153D.
17
Myers
v Abramson
1951 (3) SA 438
(C) at 449H-450A.
18
Trans-Drakensberg
Bank Ltd v Combined Engineering above
at 643A-C.
19
Greyling
v Nieuwoudt
1951 (1) SA 88 (O).
20
Sentrachem
Ltd v Prinsloo
1997 (2) SA 1
(A) at 15B-E.
21
Sentrachem
,
above, at 15B-16C. See also:
Evins v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 836D.
22
(2000)
21 ILJ 142 (LAC).
23
NUM-SA
and Others v Cementation Africa Contracts (Pty) Ltd
(1998) 19
ILJ 1208 (LC).
24
At
736E-I.
25
See
original statement of case, paras 33 and 40, at 44 and 47
respectively of indexed papers.
26
The
case was between the BFES and Mr Barber as first and second
applicants respectively, on the one hand, and Ekurhuleni and its
Executive Mayor as first and second respondents respectively, on the
other. A copy of this judgment was made available to us.
27
See
Driveline
, above.
28
Equity
AviationServices (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
(2008) 29 ILJ 2507 (CC) Also reported
as
[2008] 12 BLLR 1129
(CC), para 39. See also:
Billiton
Aluminium SA Ltd v Khanyile and Others
2010 (5) BCLR 422
(CC).
29
1927
CPD 27
, at 29. See also:
Four Tower Investments (Pty) Ltd v
Andre’s Motors
2005 (3) SA 39
(N) at 42H47I.
30
Union
Bank of South Africa Ltd v Woolf
1939 WLD 222
at 225. See
also:
Euro-shipping Corporation of Monrovia v
Minister of Agriculture
1979 (2) SA
1072
(C) at 1090B.
31
1939
WLD 222
, at 225.
32
Myers
v Abramson
, above.
33
Respondent’s
application dated 31 May 2005, referred to in appellants’
founding affidavit, para 42 at p15 of the indexed
papers.
34
See
notice to oppose, at pp 78-79 of the indexed paper.
35
Above,
at 446D-G
36
Act
68 of 1969
37
(
2009)
30 ILJ 347 (LC) para 17
38
2004
(3) SA 160
(SCA) para 12
39
Blaauwberg
Meat Wholesalers
, above.
40
1980
(2) SA 814
(A) at 836D-E. See also:
Dladla v President Insurance
Co Ltd
1982 (3) SA 198
(W) at 199E-G. Compare:
Driveline
,
above.
41
2004
(6) SA 317
(SCA), at 321A-C; para 4. See also:
Churchill v
Standard General Insurance Co Ltd
1977 (1) SA 506
(A) at 517B–C;
CGU Insurance Ltd v Rumdel Construction (Pty) Ltd
2004 (2)
622 (SCA) ([2003]
2 All SA 597)
at 26H-27B;
Mntambo v Road
Accident Fund
[2007] ZAGPHC 151
;
2008 (1) SA 313
(W).
42
Ciba-Geigy
(Pty) Ltd v Lushof Farms (Pty) LtdEn’ Ander
2002 (2) SA 447
(A) at 463E, 462J-463B, 464F/G-G/H, 464E/F.