About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2008
>>
[2008] ZALCJHB 30
|
|
Tourism Hospitality and Sport Education and Training Authority v TMS - Shezi Industrial and Another (JR1037/05) [2008] ZALCJHB 30 (21 February 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR 1037/05
In
the matter between:
THE
TOURISM, HOSPITALITY &
SPORT
EDUCATION &
TRAINING
AUTHORITY
Plaintiff
and
TMS
– SHEZI INDUSTRIAL
SERVICES
(PTY)
LIMITED Defendant
JUDGMENT
MOLAHLEHI J
Introduction
[1]
The issue for consideration in this case
concerns whether or not this Court should award costs after upholding
the exception raised
by the defendant in an earlier judgment. The
issue of costs was argued only after judgment upholding the exception
was delivered.
[2]
I deem it not necessary to transverse the
details relating to the merits of the exception, the same having been
dealt with in the
earlier judgment. I will however touch briefly on
those background facts which are central to and have a bearing on the
consideration
of whether or not costs should be awarded and in whose
favour.
[3]
The plaintiff issued summons against the
defendant during April 2004, and the defendant filed its plea during
June
of the same year. Thereafter, the
plaintiff amended its particulars of claim. At that stage the
defendant had not indicated an intention
to take an exception to the
plaintiff’s claim.
[4]
The matter was set down for trial for the
17
th
March 2007, and five days before the hearing, the defendant filed an
exception contending that the plaintiff’s particulars
of claim
did not disclose a cause of action.
[5]
The plaintiff objected to the exception on
two grounds. The first ground concerned the late filing of the
exception and the second
ground being that the parties had already
concluded a binding pre-trial minutes.
[6]
In as far as the pre-trial minutes were
concerned, the plaintiff argued at that stage that the Court was
bound by the pre-trial
minutes which requires the Court to determine
whether or not the defendant breached its obligations in terms of the
contract.
[7]
The defendant argued that the Court was not
in a position to make a costs order regarding the merits as the
matter was still to
go to trial. It was further argued on the behalf
of the defendant that what happened prior to the exception can best
be determined
at the end of the trial if the plaintiff was to amend
its papers and proceed with the matter to trial or after the counter
claim
was considered.
[8]
It was held in the earlier judgment that
the pre-trial minutes did not preclude any of the litigants from
raising an exception to
the claim or to the defence of the other
party, once the pre-trial minutes were concluded. See
(Mokgae
v Sentraboer (Koóparasie) Bpk
(1981) 4 SA 239(T)
at
244 M – 245 A).
[9]
As concerning the timing of the exception
the Court accepted the authority of
Bateman
Ltd v Ca Brand Projects (Pty) Ltd
1995 (4) SA 128
(T),
where
the full bench set aside the decision of the Court
a
quo
for refusing to entertain an
exception which was raised informally by counsel on the day of the
trial.
[10]
In as far as the timing of the exception
was concerned, the defendant argued that it was entitled to bring the
exception once the
plaintiff had elected to amend its particulars of
claim. The defendant correctly argued that in filing the amendment
the plaintiff
threw the pleadings wide open and entitled the
defendant to file an exception.
[11]
The plaintiff contended that the defendant
never tendered an explanation to the Court when the matter was argued
as to why the exception
was taken five court days before the trial.
[12]
In the earlier judgment, I shared the
sentiments of the plaintiff that the exception should have been
brought earlier but concluded
that because of the need to determine
whether or not the exception goes to the root of the claim, it was
necessary to consider
it, rather than proceed hearing the evidence
which at the end may produce the same result. I further found that if
there was any
prejudice occasioned by the delay in filing the
exception such prejudice could be addressed through a costs order.
[13]
The plaintiff argued that the exception
could not have been prompted by the amendment to the particulars of
claim. What may have
prompted the exception in all probability,
according to the plaintiff, was when the defendant considered its
preparation for trial
and had a proper look at the particulars of
claim.
[14]
The issue of an exception was apparently
raised for the first time at the pre-trial conference. The plaintiff
further argued that
the appropriate time for the defendant to have
raised the exception would have been between the filing of the
summons which was
during April 2004 and June 2004, when the plea was
filed.
[15]
Counsel for the plaintiff relied on the
judgment in
Bateman
where the defendant’s counsel informally raised the exception
to the particulars of claim at trial. In Bateman’s
case unlike the present case the exception was brought informally at
the commencement of the trial and no supporting affidavit
was filed
to support the application. The other difference with the present
case is that in Bateman there were no further steps
taken in the form
of amendments to the pleadings as was the case in the present case.
[16]
In Bateman, the Court held that, had the
defendant filed the exception earlier there would have been a great
deal of saving of costs.
In this regard the Court held per De
Villiers J that:
“
Although
the exception should have been upheld on that day, I am nevertheless
of the opinion that, in view of all the relevant facts
and
circumstances, it would be fair and reasonable that the defendant
should pay the plaintiff’s costs in respect of the
first day of
the trial.”
[17]
In Cohen v Heywood
1948 (3) SA 365
at 374,
Greenberg JA in dealing with the same issue said:
“
In
my opinion the question in each case is whether the party who did
take the exception was unreasonable in failing to do so. If
he was,
then he should not be entitled to the costs unnecessarily incurred in
the case of going to trial.
Ordinarily
it would be unreasonable of a party not take an exception which if
allowed would dispose of the case, but there may be
circumstances
which make it impossible to say that the omission to take the
exception connotes unreasonableness.”
[18]
I have already indicated that the plaintiff
in the present case argued that the defendant was not entitled to
costs because the
exception was taken at a very late stage in the
proceedings and further that there was no explanation for such a
delay. The plaintiff
further argued that the defendant failed to
tender an explanation as to why the exception was taken five days
before the trial.
[19]
In
Prope v
South African Bank and Another
1992 (3) SA 208(TPD)
,
the Court in dealing with the argument of the plaintiff that the
defendant was barred from raising the exception because it had
not
objected to the proposed amendment held that :
“
There,
is in my view no merit in the argument. There is nothing in the Rules
to suggest that this should be so. Moreover,
the
plaintiff took the further step
after receipt to remove the complaint, to inform the first
defendant that they did not intend further to amend their
particulars of claim as they did not consider the pleadings to be
vague and embarrassing. The plaintiffs are accordingly bared
under
Rule 30 from suggesting that the exception is an irregular
proceeding.”
[20]
In the present case the plaintiff took a
further step in the proceedings when it filed its amendment and
accordingly opened the
proceedings wide. It was after the amendment
was filed that the defendant filed its exception.
[21]
The applicant opposed the exception and
filled a comprehensive objection to it. In this regard it cannot be
said that the plaintiff
suffered prejudice. Although the exception
was much broader in its scope than the amended clauses of the
plaintiff’s particulars
of claim, it however largely dealt with
the key issues raised by the amendment. However, even if the
exception did not address
itself to the issues that arose in the
amendment, I have not found anything in the rules that an exception
following an amendment
should be confined to the amended clauses.
[22]
In as far as prejudice was concerned, it is
my view that the plaintiff had, as indicated earlier had the
opportunity to respond
to the exception, weigh and assess its
prospects and could have either withdrawn or requested postponement
to amend its particulars
of claim.
[23]
The reasonableness of the timing of the
exception, may have probably been different but for the plaintiff’s
amendment. It
is therefore difficult to see, in the light of the
amendment, how it could be said the defendant acted in an
unreasonable manner
in filing the exception at that time and how the
plaintiff could be said to have been prejudiced by this approach.
[24]
In the circumstances of this case I am of
the view that law and fairness dictate that the respondent should be
awarded the costs
of the exception excluding those of preparation for
the trial. The appropriate time for assessing the costs of the
preparation
would be either at the end of the trial if the applicant
does amend its particulars of claim or at the end of the counter
claim.
[25]
I finally do not agree with the plaintiff
that reserving a judgment on the day the exception was heard amounted
to a postponement
occasioned by the exception.
Order
[26]
In the result I make the following order:
1.The
plaintiff should pay the defendant’s costs from the date on
which the exception was filed up to including the day the
exception
was heard.
____________________
MOLAHLEHI
J
Date
of Hearing: 23 July 2007
Date
of Judgement: 21 February 2008
APPEARANCES:
For the Applicant:
Advocate M M Antonie
Instructed
by: Webber Wenzel Bowens
For
the Respondent: Advocates I J Zidel SC with L Moreno
Instructed
by: Fluxmans Inc