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[2008] ZALCD 9
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NASAWU and Others v Pearwood Investments (Pty) Ltd t/a Wolf Security and Another (D364/05) [2008] ZALCD 9 (4 December 2008)
In
the Labour Court of South Africa
(Held
at Durban)
Case
number D364/05
In
the matter between:
Nasuwu
First Applicant
Individual
employees as set out in Annexure X
Second to Further Applicants
and
Pearwood
Investments (Pty) Ltd t/a Wolf security
First Respondent
Enforce
Security Services (Pty)
Ltd
Second Respondent
Judgement
Bhoola
AJ
Introduction
[1] There are two matters
before the court. The first is an application by the applicants for
leave to amend their Statement of
Claim. The respondents oppose the
application. The second is an application by the second respondent
for an order setting aside
the applicants’ Statement of Claim.
A third matter that arises is whether the Supplementary Affidavit of
the applicants’
attorney representative should be admitted in
the absence of a formal application for leave.
Background facts
[2] The second to further
applicants (“the individual Applicants”), were employed
by the respondent as security guards
prior to the termination of
their employment on 31 October 2004.
[3] The first applicant
referred a dispute concerning the alleged unfair dismissal of the
individual Applicants to the Commission
for Conciliation, Mediation
and Arbitration (“CCMA”) on 23 November 2004. The case
reference allocated by the CCMA
was KNDB8457-04 (“the first
referral”).
[4] The CCMA responded
with a notice dated 7 December 2004 advising that the referral was
fatally defective on the grounds,
inter alia,
that proof of
service on the first respondent was unclear, the application had not
been signed and the citation of the referring
party was incorrect.
[5] On 23 December 2004
applicants filed a subsequent referral (“the second referral”)
accompanied by an application
for condonation of its late filing. The
referral was duly served on the first respondent and included an
Annexure (referred to
interchangeably as either A or X) identifying
the individual applicants.
[6] The CCMA issued a
notice advising the parties that the second referral was set down for
a joint conciliation – arbitration
(“con-arb”) on 7
March 2005. The second respondent objected to the con-arb and the
matter was conciliated but was not
resolved. The CCMA granted the
application for condonation and duly issued a certificate of outcome.
The CCMA ruling refers to
the case number as KNDB10195/04.
[7] The CMMA then issued
a further notice setting the first referral down for con-arb on 14
March 2005. The matter was dismissed.
[8] The second respondent
acquired the guarding division of first respondent as a going concern
on 1 April 2005.
[9] The applicants filed
their Statement of Claim on 31 May 2005. Mr W Hardie, the Human
Resources Manager of second respondent
confirmed that he received the
Statement of Claim on 13 June 2005.
[10] On 24 June 2005 the
second respondent launched an application for an order setting aside
the Statement of Claim on the grounds,
inter alia
, that:
(a) There was no
compliance with Rule 6(1) of the Rules of the Labour Court;
(b) The Annexure
purporting to identify the second to further applicants was not
attached;
(c)The Labour Court had
no jurisdiction to adjudicate the claim in terms of section 191,
191(5) (b), and 191 (11) (a) in that the
application was out of time;
(d)The Statement of Claim
had not been signed; and
(e)A Schedule of material
and relevant documents was not attached as required by Rule 6(1) (e).
[11] This application was
not enrolled for hearing.
[12] On 21 November 2006,
more than a year later, the applicants filed a notice of intention to
amend their Statement of Claim as
follows:
“
1.
By the delivery herewith of Annexure “A” identifying the
individual applicants.
2.
By the addition of the word “First” in paragraph 3.4
before Respondent.
3.
By the addition of paragraph 3.5:
“
The
Second Respondent is Enforce Security Services (Pty) Ltd, a company
duly registered with limited liability according to the
Company laws
of the Republic of South Africa and which has its principal place of
business at 43 Sea Cow Lake Road, Springfield
Park, Durban”.
4.
By the addition of the following paragraphs:
“
4.5
The said transfer occurred during August 2002. The individual
Applicants were, after the said transfer,
deployed to various sites
guarding property belonging to the Durban Metro.
4.6
The Respondent alleged that the Durban Metro had failed to renew its
contract with the Respondent.
4.7
A process of consultation was embarked upon between the Respondent
and the First Applicant.
4.8
During the said process of consultation, following various requests
for further information
by the First Respondent, the contracts of
services of the individual Applicants were terminated.
4.9
At the time of the aforesaid transfer, all of the individual
Applicants were permanent employees.
4.10
When they were deployed to the Durban Metro sites, the Respondent
placed the individual Applicants
in the same position as other
persons employed on limited duration contracts.
4.11
The Respondent could and should have accommodated the individual
Applicants by virtue of their length
of service and should have
distinguished between employees employed on limited duration
contracts as opposed to the applicants
who were at all times
permanent employees.
4.12
The Respondent failed to consult with the First or Further Applicants
in accordance with the requirements
of s189 of the Act read with the
Code of Good Practice pertaining to Operational Dismissals.
4.13
The business of the Respondent has been transferred to Enforce
Security Services (Pty) Ltd, a company
duly registered with limited
liability according to the Company laws of the Republic of South
Africa and which has its principal
place of business at 43 Sea Cow
Lake Road, Springfield Park, Durban”.
[13] The respondent
objected to the notice of intention to amend on 29 November 2006.
[14] Thereafter the
applicants launched this application for leave to amend. The
respondents oppose the application and this opposition
was heard
together with the application to set aside.
[15]
I deal firstly with the application to set aside.
No condonation and
certificate of outcome
[16] The second
respondent’s contention is that :
1.
The first referral is the dispute pending before this court.
2.
No condonation was sought or granted in respect of that referral. It
was not
subject to conciliation and no certificate of outcome was
issued.
3.
Condonation was only granted and a certificate of outcome issued in
respect of
the second referral.
4.
The referral to this court is accordingly out of time in terms of
section 191(1)
(b) (i).
[17] It was submitted by
Ms Harries, the attorney for the applicants, that there was an
obvious error on the part of the CCMA, and
that both referrals are in
respect of the same matter between the same parties, the first being
defective and having been replaced
by the second. The second
respondent had at all material times been party to the second
referral. Its objection to the con arb
was in respect of the second
referral.
[18] Ms Harries
investigated the matter with the CCMA and made certain conclusions
regarding the first and second referrals being
in respect of the same
issue and between the same parties. Her evidence was presented to the
court in the form of a supplementary
affidavit, which the
respondents’ Counsel, Adv G Van Niekerk SC submitted was
pro
non scripto
in that,
inter alia,
application for leave to
admit it had not been sought. I will deal with this below. Even if
regard is not had to the supplementary
affidavit, in my view the
error committed by the CCMA is obvious. The first referral should
never have been set down for con-arb.
It had been returned to
applicants as being “fatally defective”. The condonation
granted and certificate of outcome
issued was in respect of the
second referral. Furthermore, the Respondents had a remedy at the
time and chose not to exercise it.
They could have objected
in
limine
at the conciliation and failing that, sought to review the
certificate of outcome. They did none of this. It cannot behove them
now to seek to set aside a process in which they willingly
participated, on a mere technicality.
[19] In my view, the
second referral is properly before this court.
Non-joinder
[20] The Respondent’s
case is that the purported joinder of second respondent is defective
in that Rule 22(6) of the Rules
of the Labour Court were not complied
with. Rule 22(6) requires copies of all previously delivered
documents to be served on the
party to be joined. This is a technical
and frivolous point. The applicants’ attorney submitted that
all process was duly
filed on the respondents’ attorneys of
record, and the same firm represents both respondents. Furthermore,
she submitted
that it was common cause that the second respondent
acquired the business of the first respondent in April 2005. The
second respondent
has not adduced any evidence of prejudice suffered
as a result of the non-compliance with Rule 22(6), and moreover the
second respondent
was in possession of the relevant documents and
this enabled it to launch the application to set aside.
Claims compromised
[21] The respondents
contend that the claim in respect of the unfair dismissal brought by
the applicants has been compromised in
that certain of the individual
applicants were awarded severance pay. Furthermore, they contend that
the applicants are seeking
to bring multiple actions.
[22] I do not agree.
Acceptance of and claims for severance pay cannot constitute a waiver
of the rights of the individual applicants
to pursue their claim in
respect of their unfair termination based on operational
requirements.
[23] Furthermore, as was
submitted by Ms Harries, the applicants have a constitutionally
guaranteed right to fair labour practices,
and are entitled to seek
to have the merits of their claim in respect of the alleged unfair
dismissal adjudicated.
Exception
[24] Counsel for the
respondents submitted that the amendment sought through the
introduction of background facts in paragraphs
4.5 to 4.13 (“the
background facts”) is excipiable in that,
inter alia
, it
is nonsensical, incongruous, vague and embarrassing and exacerbates
uncertainty. He cited the following authorities in support
of the
proposition that amendments which would render pleadings
excipiable should be disallowed :
Trans-Drakensberg Bank Ltd
(under judicial management) v Combined Engineering (Pty) Ltd &
Another
1967(3) SA 632 (D) at 641 A
, Benjamin v SOBAC South
African Building and Construction (Pty) Ltd
1989 (4) SA 940
(C)
at 958 D and
Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en ń
Andere
2002(2) SA 447 (SCA) at paragraphs [34], [36], [42] and
[43] . These authorities become relevant should I find that the
amendment
is indeed excipiable. I do not understand the respondents
to be arguing that the original Statement of Claim is excipiable, but
the background facts are excipiable and would, if allowed, result in
the pleadings becoming excipiable. The grounds relied on are,
inter
alia
, that there is no previous reference to an alleged
“transfer” and yet the background facts make reference to
this;
the dates are wrong and the amendment is accordingly illogical
and nonsensical.
[25] The Rules of the
Labour Court are silent on exceptions. However, the Labour Court can
have regard to the principles espoused
by the High Court, as was held
in
Eagleton & Others v You asked for Services (Pty) Ltd
[2008] 10 BLLR 1040
(LC). The court,
per
Basson J,
reiterated the ultimate test as being whether the excipient is
prejudiced by the amendment (at 1045 B). Furthermore,
citing Erasmus,
Superior Court Practice
, Basson J accepts that the onus is on
the excipient to show both “
vagueness amounting to
embarrassment and embarrassment amounting to prejudice”
(at
1045 A).
[26] Rule 6 (1) of the
Labour Court rules requires that statements of claim should contain,
inter alia:
“
a
clear and concise statement of the material facts, in chronological
order, on which the party relies, which statement must be
sufficiently particular to enable any opposing party to reply to the
document;…a clear and concise statement of the legal
issues
that arise from the material facts, which statement must be
sufficiently particular to enable any opposing party to reply
to the
document”
[27] Waglay J in
Harmse
v City of Cape Town
(2003) 24 ILJ 1130 (LC) articulates the test
as follows in instances where an exception is raised to the statement
of claim :
“
the
court must consider…whether the matter presents a question to
be decided which, at this stage, will dispose of the case
in whole or
in part. If not, then this court must consider whether there is any
embarrassment that is real and that cannot be met
by making
amendments or providing particulars at the pre-trial conference
stage”.
(At paragraphs 6, 7 and
10).
[28] In my view, the
amendment will result in “
real embarrassment
”, in
that it is riddled with errors. It is not clear that it actually
pertains to this matter at all as the facts referred
to and the dates
appear to relate to another matter. Even though it may be possible
for the respondents to file what the Court
in
Levitan v Newhaven
Holiday Enterprises CC
[1991] 4 All SA 226
(C) at 298H-299C
referred to as “
an unobjectionable plea to an objectionable
declaration”
this is unlikely to assist in expediting the
ultimate resolution of the main claim, which was the test the Court
had regard to.
The amendment sought is likely to prejudice the
respondents in the formulation of a defence, and is accordingly not
allowed.
Delay
[29] The respondents’
relied on
Nzimande v Zenex
(2001) BLLR 419
(LAC) in support of
the submission that the inordinate delay (of more than a year in this
instance), in bringing the application
to amend on its own justifies
the dismissal of the application. I do not agree. The delay may well
have been unacceptable but the
Respondent has not shown that it has
been prejudiced thereby.
Nzimande
is authority for the
dictum
that both are relevant considerations, and that, despite delay, the
court should grant an amendment unless there is a likelihood
of
prejudice which cannot be cured by a suitable order of costs. Of
course, in the labour relations context these
dicta
have to be
viewed in regard to whether the interests of expedition and efficacy
are undermined. In my view, this matter is
distinguishable in
that
Nzimande
dealt with a substantive amendment replacing the
original Statement of Claim in its entirety; the original Statement
of Claim had
laid no factual basis for allegations of discrimination
and arbitrariness, and furthermore there was a continuing permanent
relationship
between the parties. This is not a matter akin to
Nzimande
where the background is “
extremely difficult
to describe coherently as a result of the unsatisfactory manner in
which the Statement of Claim both in its
initial and amended versions
has been drafted”
(at 420 A). I accordingly find no reason
to depart from the principle that leave to amend will generally be
granted unless there
is a likelihood of prejudice that cannot be
cured by an appropriate costs order, even though the unexplained
delay of more than
a year in proceeding with the application to amend
may be unreasonable. The respondents have not shown any prejudice if
the applicants
are permitted to exercise their rights to have their
dispute adjudicated to finality.
Hearsay
[30] I turn now deal with
the supplementary affidavit of the applicants’ attorney. This
is the affidavit that is the subject
of the Respondents’
contention that it is not properly before the court in that no leave
was sought for its admission, which
would have required the exercise
of judicial discretion in regard to its relevance and other matters.
Counsel submitted furthermore
that the supplementary affidavit was
entirely hearsay and speculative and that no confirmation or
explanation was forthcoming from
the CCMA. Accordingly, it was
submitted that the supplementary affidavit was
pro non scripto.
[31] Ms Harries contended
the supplementary affidavit was relevant and of assistance to the
court, and that no prejudice will be
occasioned to respondents by its
admission. She explained that the applicants had not noticed the two
case numbers in the referrals
as this had not been pleaded by the
respondents nor had it been raised during the con arb. When it came
to light, she undertook
an investigation and accordingly submitted
the affidavit in order to assist the court. Ms Harries submitted that
the court can
exercise its judicial discretion in this regard and
admit the supplementary affidavit.
[32] I am in agreement
with the respondents’ counsel that it is not acceptable to file
supplementary pleadings without a formal
application for leave. Its
probative value is furthermore limited. I have not had regard to it
in deciding this matter.
[33] I now deal with the
application to amend.
[34] The applicants seek
to amend their Statement of Claim by the inclusion of the Annexure
describing the individual applicants;
by joining the second
respondent as party to the unfair dismissal claim, and by the
inclusion of the background facts. The applicants
contend that these
amendments cure the defects complained about by the Respondents as
adhering to the Statement of Claim.
[35] The applicants
contend furthermore that the objection to the amendment and
application to set aside are based on technical
grounds and are
frivolous. The application to set aside is based on a
distinction the respondents seek to draw between the
situation in
this instance where, it is submitted the first applicant elected to
cite but failed to identify its members as co-applicants.
This,
respondent’s Counsel argued, was not the situation envisaged in
Hernic v Hernic Exploration (Pty) Ltd
[2003] 4 BLLR 319
(LAC)
where a trade union was held to be entitled to act in its
representative capacity and bring a claim in its own name.
The
applicants’ legal representative argued that in addition to the
dictum in
Hernic
being applicable, the first respondent knew
who the individual applicants were, it had employed them prior to
their dismissals,
and could hardly claim to have been prejudiced by
the failure to identify them. Moreover, the second respondent became
aware of
the individual applicants when it was served with the second
referral and condonation application. The respondents’ Counsel
relied on an election made by the union to join the individuals as
taking it out of the parameters of
Hernic.
I fail to see
the merits of this submission. The point is that the annexure was an
omission which has subsequently been remedied.
It did not, in my
view, render the Statement of Claim defective in the first place.
However, I am of the view that, even in the
absence of this cure, the
first applicant would have been entitled to proceed in its
representative capacity. The failure to describe
individual trade
union members, irrespective of whether they are cited as
co-applicants or not, cannot possibly deprive them
of their rights to
institute proceedings in respect of an unfair termination. The First
Respondent did not dispute having received
the second referral and
the condonation application, of which the annexure formed part, and
it cannot be said to have been prejudiced
by the belated
identification of the individual applicants.
[36] The applicants’
attorney submitted that the respondents have suffered no prejudice
other than compensation that may become
payable should the main claim
succeed. The applicable test, submitted by Ms Harries, relying on
NUM
v Namakwa Sands –A division of Anglo Operations Ltd
[2008]
7 BLLR 675
(LC), is whether the Respondents are prejudiced by the
amendment.
[37] The applicants
submitted that the notice of objection refers only to the inclusion
of the Annexure but the respondents then
seek, in their pleadings
opposing the application to amend, to raise issues not contained in
the notice of objection. This does
not comply with High Court Rule
28, which applies
mutatis mutandis
given that the Labour Court
Rules are silent in regard to applications to amend, in that Rule 28
provides that an objection to
a proposed amendment shall clearly and
concisely state the grounds on which the objection is founded.
Accordingly, the further
issues the respondents seek to raise should
be dealt with as points
in limine
in the main claim.
I am satisfied with the explanation from respondent’s Counsel
that they are not bound by the
four corners of their objection and
accordingly heard submissions in regard to the further objections.
[38] In my view, for the
aforegoing reasons the application to amend should succeed other than
in respect of the paragraphs I consider
to be excipiable. The
background facts are excipiable and will render the entire pleading
excipiable in that they are vague and
embarrassing, contain
incongruous dates and are nonsensical. They furthermore cause the
respondents to be prejudiced in the formulation
of a defence, which
prejudice may not be sufficiently remedied by way of an appropriate
costs order.
[39] In the premises, the
court accordingly grants the following order
1.
The application for leave to amend is granted in respect of
amendments 1, 2 and 3
of the applicants’ notice of intention to
amend.
2.
The amendment in respect of paragraph 4 introducing the background
facts is not
granted.
3.
The application brought by the second respondent to set aside the
Statement of Claim
issued by the applicants is dismissed.
4.
The Supplementary Affidavit is not admitted.
5.
No order as to costs.
______________________________
U
Bhoola
Acting
Judge of the Labour Court
Date
of hearing : 20 November 2008
Date
of judgement : 04 December 2008
For
the Applicants: Ms J P Harries
For
the Respondents: Adv G Van Niekerk SC instructed by Millar &
Reardon