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[2012] ZALCJHB 96
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Chauke v Machine Tool Market (Pty) Ltd (JS 128/12) [2012] ZALCJHB 96; (2013) 34 ILJ 1150 (LC) (13 September 2012)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE NO:
JS128/12
Reportable
In the matter between:
CHAUKE, ELIAS
...............................................................................................
Applicant
and
MACHINE TOOL MARKET (PTY) LTD
.
.......................................................
Respondent
Heard
:
12 September 2012
Delivered
:
13 September 2012
JUDGMENT
Exception to statement of case – vague and embarrassing
pleading alleged – pleading drafted by a layman –
exception
dismissed – issues relating to the standard of
pleading required of lay litigants and access to justice raised.
MYBURGH AJ:
Introduction
This is the hearing of an exception raised by the
respondent against the applicant’s statement of case. The
matter raises
important issues about the standard of pleading
required of lay litigants and access to justice.
The applicant is employed by the respondent as a
security guard. He resides in Tokoza, with his February 2011 payslip
reflecting
his earnings as being little more than R2300 net per
month. English is not his first language and it is clear that he is
not
proficient in it. He has now become embroiled in a dispute about
whether his handwritten statement of case is vague and embarrassing.
Statement of case and exception
On 14 February 2012, following an unsuccessful referral
to conciliation by the CCMA, the applicant delivered a handwritten
statement
of case. Three paragraphs thereof warrant mention.
Paragraph 7 (statement of facts) records:
‘
Issue
started about a query of overtime payment.
Worked on Sunday and was due
to be paid R350 – equal to other colleagues but was only paid
R59 only for a whole night-shift.
And for the whole day shift he
paid me R54.
He does not count the hours
that I’ve worked like he does with the other colleagues. It
does not reflect on my payslip the
amount I’m supposed to earn
per hour
.’
Paragraph 8 (legal issues) goes on to record:
‘
Unfair
discrimination.
Not paid for the hours
worked.
Overtime not paid fairly.
Not being honest about the
hours that I’ve worked
.’
Finally, paragraph 9 (relief sought) records:
‘
Issue
started when I worked for over time and my normal time and he pay me
my normal hours and don’t pay me my over time from
2009 till
now which is 2012
.’
From what I can gather from the handwriting and
language used, someone appears to have written paragraphs 7 and 8
for the applicant,
while he wrote paragraph 9 himself. The text of
paragraph 9 and the poor quality of the applicant’s physical
handwriting
demonstrate that he is not highly literate (certainly
not in English).
On 28 February 2012, in response to the applicant’s
statement of case, the respondent’s attorneys of record filed
a notice of intention to except to the applicant’s statement
of case. It runs to 5 pages and raises every possible criticism.
To
give a few examples, it is contended that the statement of case is
vague and embarrassing because it:
does not ‘
identify the “issue”
that [the applicant] refers to that sparked the litigation
’;
does not state ‘
who does not count the hours
that the applicant has worked and which other colleagues’
hours are counted
’;
does not state ‘
what legal foundation is it
that the applicant relies upon in support of his claim that his work
hours must be reflected on his
payslip
’;
does not ‘
set out what relief [the applicant]
seeks. He merely makes an allegation that he was not paid for
overtime from 2009 till 2012
’; and
does not include ‘
proof as to the amount of
hours overtime worked between 2009 and 2012
’.
On 3 May 2012, and after the applicant had failed to
react, the respondent filed a notice of exception.
Proceedings in court
The matter came before me as part of a pilot project
being run by the court aimed at expediting interlocutory matters.
When the matter was called, Ms Ewang (who appeared for
the respondent) asked that it be removed from the roll because she
wished
to amend the notice of exception by adding a prayer that the
respondent sought the dismissal of the applicant’s claim. In
circumstances where the applicant was present in court and
unrepresented, I declined the request, allowed the amendment, and
referred the matter to the SASLAW
pro bono
advice office with
a view to the applicant obtaining legal representation. This
resulted in Mr Wilken (an attorney on duty at
the advice office at
the time) then appearing on behalf of the applicant. The court is
indebted to him for the efficiency with
which he dealt with the
matter at short notice.
In argument, Ms Ewang pursued the exception in all
respects, save that she no longer sought the dismissal of the
applicant’s
claim, but rather an order that he be required to
supplement his statement of case. Wisely, Ms Ewang did not seek any
order as
to costs.
Mr Wilken, in turn, argued in favour of the dismissal
of the exception. In so doing, he clarified (as appeared to me on a
reading
of the statement of case) that the applicant’s claim
is not based on discrimination in the legal sense of the term, but
rather simply on the fact that, while paying others correctly for
overtime worked, the respondent has failed to pay the applicant
either at all or not at the agreed rate. As far as Mr Wilken was
concerned, the respondent should have all the records at its
disposal to determine what overtime the applicant worked during the
period 2009 to date, what he was paid and what the agreed
rate (on
its version) was / is. Mr Wilken also stressed that the applicant
remained in the employ of the respondent, and that
it was remarkable
that it had apparently not taken the trouble to find out what his
complaint actually is. In the result, Mr
Wilken sought the dismissal
of the exception and an order that the respondent pay the
applicant’s disbursements.
Evaluation
Rule 6(1)(b)(ii)
and (iii) require an applicant to provide a clear and concise
statement of the ‘
material facts
’
and legal issues. Significantly, only material facts
need to be stated. Material facts, of course, are those which must
be proved
in order for an applicant to succeed in his claim, and not
the facts that are evidence to prove those facts. If further
statements
had been required, then arguably the rule would have
required ‘
relevant
’
rather than ‘
material
facts
’
.
1
In practice, statements of case prepared by
practitioners in this court often do not exhibit the required degree
of succinctness,
and instead assume the form of unsigned affidavits
containing heaps of facts outside of the material facts. It is
perhaps familiarity
with this practice which informed the decision
to bring the exception in this matter.
On the interpretation of rule 6(1)(b)(ii) set out
above, the applicant’s statement of case is by no means as
lacking as
contended for by the respondent. Indeed, the majority of
particularity that is said to be lacking does not involve material
facts,
but rather facts going to establishing them.
But more importantly than an interpretation of the
aforesaid rule, this case raises the issue of the standard of
pleading that
should be required of a lay litigant, particular one
who is not proficient in English. Here a balance needs to be struck
between
access to justice in favour of the lay litigant and fairness
to the respondent party.
If this court were to set the standard as being
equivalent to that expected of a legal practitioner (which is what
the respondent
is effectively contending for), this has the
potential to deprive huge numbers of unrepresented applicants from
access to justice.
This would run counter to this court’s
mandate to ensure the effective resolution of labour disputes, and
undermine the
various initiatives that this court has undertaken to
promote access to justice, including the housing of
pro bono
advice offices at the Labour Courts around the country. If, on the
other hand, this court were to countenance total laxity in
the
compliance with its Rules when it comes to the drafting of pleadings
by lay litigants, this would no doubt serve to prejudice
respondents, which must also be guarded against.
To my mind, the middle road is this. At a minimum, a
statement of case drafted by a lay litigant (such as the applicant)
must
set out the essential nature of his or her claim and the
essential basis therefor in broad terms. Provided the respondent is
apprised of these essentials, it would typically be in a position to
investigate the matter itself and would not be prejudiced
by
pleading to the claim. This is particularly so where the dispute, as
occurred in this matter, has formed the subject of CCMA
conciliation, during the course of which the respondent typically
comes to learn of the substance of the complaint.
If the aforesaid essentials are not stated, then the
statement of case would be excipiable. But if they are stated, then
the respondent
should plead to those essentials. If in the process
of doing so, the respondent legitimately cannot plead to some of the
allegations
in the absence of particularity, then the respondent
would be at liberty to state as much in its reply. Further
particularity
could then be obtained in the process of preparing for
trial through the pre-trial process.
Returning to the applicant’s statement of case,
in my view, it measures up to this standard. This is so because the
applicant
has set out the essential nature of his claim and the
basis therefor – the claim is one for the payment of overtime
for
the period 2009 to 2012, it being the applicant’s
contention that he was either not paid or short paid for overtime
worked
during this period. This places the respondent in a position
of being able to investigate the claim, with the result that it is
unlikely to suffer any prejudice through the formulation of its
reply.
As Mr Wilken correctly submitted, the respondent knows
what its practice is in relation to the payment of overtime, and
should
have records reflecting what overtime the applicant worked
and what he was paid. Indeed, Ms Ewang herself confirmed that her
instructions are that the applicant has been paid everything due to
him. If that is so, and given that the applicant is a lay litigant,
then it would surely be in the interests of justice – and
access to it – that the respondent pleads to the applicant’s
statement of case, instead of pursuing the technical route it has
chosen.
In summary, save in circumstances where the statement
of case drafted by a lay litigant does not set out the essential
nature
of the claim and the essential basis therefor, it is not
appropriate to challenge it by way of an exception on the grounds of
it being vague and embarrassing. The standard of pleading in this
matter meets the proposed standard, with the result that the
exception is without merit.
Turning now to the issue of whether the respondent
should be held liable for the applicant’s disbursements in the
form of
travelling costs to court, as Mr Wilken correctly pointed
out, this must be assessed in the context of the fact that the
applicant
appears to take home little more than R100 per day. Seen
thus, the applicant’s travelling expenses are no doubt a
burden
to him.
While I am of the
view that this court does have the power to award costs limited to
actual disbursements reasonably incurred
by a lay litigant,
2
I have decided not to do so in this matter in
circumstances where, through the intervention of Mr Wilken, the
applicant certainly
received value for his money.
Order
In all the circumstances, the following order is made:
the exception is dismissed;
the respondent shall deliver its response to the
applicant’s statement of case within 10 days hereof.
________________________________________
A.T. MYBURGH
ACTING JUDGE OF THE LABOUR COURT
For the applicant: St E Wilken (SASLAW advice office / Tabacks)
For the respondent: J Ewang (Eversheds)
1
See
Landman & Van Niekerk
Practice in
the Labour Courts
at D-29 (revision
service 7, 2003).
2
See
generally
Nationwide Detectives &
Professional Practitioners CC v Standard Bank of Namibia Ltd
2008 (6) SA 75
(Nm).