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[2011] ZALCJHB 254
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Lowies v Vice-Chancellor of the University of Johannesburg and Another (JS 1062/09) [2011] ZALCJHB 254 (7 September 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
Not
reportable
CASE
NO. JS 1062/09
In
the matter between:
A
LOWIES
..........................................................................................................................
Applicant
and
THE
VICE-CHANCELLOR OF THE
UNIVERSITY
OF JOHANNESBURG
.....................................................................
First
Respondent
THE
CHAIRPERSON OF THE
DISCIPLINARY
ENQUIRY
................................................................................
Second
Respondent
Date
of Hearing: 10 AUGUST 2011
Date
of Reasons: 7 SEPTEMBER 2011
JUDGMENT
REDDY
AJ
[1]
This is a hearing of interlocutory applications by the applicant and
the first respondent.
[2]
In the main dispute before this Court, the applicant alleges an
automatically unfair dismissal by the University of Johannesburg
and
seeks relief in respect thereof as follows:
1.
reinstatement into his former post at the University of Johannesburg;
2.
compensation for the automatically unfair dismissal in an amount of
24 months salary;
3.
costs of the action.
[3]
The first respondent excepted to the applicant’s current
statement of case for lack of a cause of action as the University
of
Johannesburg was not cited as a respondent.
[4]
The first respondent has also brought other exceptions but elected
not to proceed with them.
[5]
Both exceptions were delivered out of time and no application for
condonation was submitted by the first respondent. As the
first
respondent only intends pursuing the exception relating to the
University of Johannesburg not being cited as a respondent,
I will
not deal with the other exceptions.
[6]
Subsequent to the delivery of the exception, the applicant sought to
join the University of Johannesburg as a respondent and
to amend its
statement of case. It also withdrew the second respondent as a party
to the matter. These applications were not opposed
by the respondent.
[7]
The applicant filed a notice to amend its statement of case. The
amended statement of case was not delivered. On direction from
this
Court, an amended statement of case was filed. There was no
correlation between the amendments in the notice to amend and
the
amended statement of case. For this reason, it is not necessary for
me to refer to the pleadings in the original statement
of case and
the intended amendments in the notice to amend.
[8]
At the hearing of the applications, the applicant sought to withdraw
the application to amend its statement of case and the
application to
join the University of Johannesburg. It intends substituting the
first respondent with the University of Johannesburg
and amending its
statement of case differently to that set out in its notice to amend.
It wishes to deal with all ancillary issues
that may arise at a
pre-trial conference.
[9]
It is clear from the above that the pleadings in this matter are in a
confusing and muddled state. In this state, they will
be of no
assistance to this Court when deciding the issues in the main
dispute.
[10]
The applicant submitted that the reason why his pleadings are so
haphazard is because the applicant’s representatives
changed
and the erstwhile attorneys are to be blamed for the poor state of
affairs. Unfortunately for the applicant, this does
not explain the
continued ineffective representation post the change in
representatives.
[11]
Both parties have brought applications, some of which lack
necessary
condonation applications;
others do not follow through with the intended relief and are
abandoned and replaced by other applications.
There is no clear way
through this quagmire.
[12]
The parties’ representatives also did not assist the Court in
their respective attitudes to the matter. The most practical
solution
is to give direction to the parties so that the main dispute may be
adjudicated as soon as possible.
The
exception
[13]
The first respondent excepted to the statement of case for a lack of
cause of action as the University of Johannesburg is not
a party to
the proceedings.
[14]
The applicant referred the dismissal dispute against the University
of Johannesburg. The referral form and the certificate
of
non-resolution both record the University of Johannesburg as the
respondent. It is clear that the University of Johannesburg
is a
party to the dispute and should have been cited in the statement of
case. As the relief was not sought against them the Vice
Chancellor
and the Chairman of disciplinary hearing need not have been cited as
the first and second respondents.
[15]
The exception is upheld. Having upheld the exception, I can exercise
my discretion in allowing the applicant to amend its pleadings.
The
applicant intended amending its pleadings in any event. There are
issues in the applicant's claim which are best tested by
evidence.
Further, given the first respondent's exception and its submission in
Court that it will not oppose the citing of the
University of
Johannesburg as a respondent, it is not appropriate or justifiable to
dismiss the applicant’s statement of
claim.
[16]
The applicant is given leave to withdraw its current applications, to
amend the citation of the respondent and to amend its
statement of
case.
[17]
The following order is made:
1.
The applicant Is given leave to withdraw the current applications to
join the University of Johannesburg and to amend its statement
of
case;
2.
The exception is upheld;
3.
The applicant is given leave to amend its statement of case within
t10 court days of the date of this order in accordance with
the
applicable rules for amendments to pleadings;
4.
The applicant, first respondent and the University of Johannesburg
are directed to follow the normal course of pleadings once
the
application to amend is delivered;
5.
Should there be any objections to the intended amendments to the
statement of case, the parties are directed to set that application
down for hearing within 10 court days of the objections being
delivered;
6.
The parties are directed to hold a pre-trial conference within 15
court days of the response to the statement
of
case being filed;
7.
A pre-trial minute must be filed within 20 court days thereafter;
8.
Any interlocutory applications or points
in
limine that may arise must be recorded in the pre-trial minute and
must be dealt with in terms of the rules for the conduct of
proceedings and directives of the Labour Court;
9.
There is no order as to costs.
Reddy AJ
Appearances:
For
the applicant: Mr Van Jaarsveld instructed by Van Greunen and
Associates Inc. For the first respondent; Mr Lennox instructed
by
Mahons Attorneys