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[2013] ZALCJHB 124
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Khumalo v MSCP Transport CC (JS 988/2011) [2013] ZALCJHB 124 (14 June 2013)
7
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case No: JS 988/2011
In the matter between –
JABULANE KHUMALO
...................................................................................
Applicant
And
MSCP TRANSPORT CC
..............................................................................
Respondent
Heard: 21 May 2013
Delivered: 14 June 2013
Summary: Application to amend pleadings. Principles governing
waiver by conduct.
__________________________________________________________________
JUDGMENT
___________________________________________________________________
MOLAHLEHI .J
This is an opposed application to amend the statement of case. The
application was filed after the parties had filed their pre-trial
minute and the matter was ready for trial. The application is
brought in the context where there have been protracted delays
in
bringing the matter to finality.
The specific details of the proposed amendment are set out in the
application. In essence the applicant seeks to amend his statement
of claim to include therein the allegation that his dismissal was
automatically unfair because the disciplinary proceedings instituted
against him was consequent to him indicating the intention to report
to the authorities the respondent’s failure to comply
with the
labour laws including alleged failure to comply with tax and other
laws of South Africa.
The respondent opposes the application on a number of grounds which
are largely informed by the history of the matter. The history
of
the matter dates back to 28 July 2011 when a default arbitration
award was made by the National Bargaining Council Road Freight
and
Logistic Industry (the bargaining council). The default arbitration
award which was made in favour of the applicant was subsequently
rescinded at the instance of the respondent. It is apparent from the
reading of the arbitration award which is attached to the
pleadings
that the issue which the arbitrator had to determine was the alleged
substantive and procedural unfairness of the dismissal.
In other
words the issue of automatically unfair dismissal was not raised.
Subsequent to the rescission of the default arbitration award, the
arbitration hearing was rescheduled for 27 October 2011. At
that
hearing the applicant apparently raised the issue of automatically
unfair dismissal and it was for that reason that the
arbitrator
ruled that the Bargaining Council did not have jurisdiction and it
was then that the matter was referred to this Court.
Once the matter was referred for adjudication the parties agreed to
hold a pre-trial conference and that was held on 25 January
2012. At
the pre-trial conference the respondent’s attorney pointed out
to the applicant that his statement of case was
defective. The
applicant having insisted in proceeding with the process, the matter
was then placed before Cele J for a pre-trial
conference. At the
hearing the Honourable Judge directed that the applicant be assisted
by
pro bono
attorneys.
On 28 February 2012 the applicant filed an amended statement of case
following consultation with the
pro bono
office but did not
in the statement of case claim that his dismissal was automatically
unfair.
Another pre-trial conference was convened on 27 March 2012. During
the pre-trial conference the attorney for the respondent pointed
out
to the applicant that his amended statement of case did not disclose
the cause of action over which the Labour Court would
have
jurisdiction. This point was raised in the context where the
respondent contended that the Labour Court did not have jurisdiction
to entertain unfair dismissal claims.
The applicant filed the statement of case and therein again did not
claim that his dismissal was automatically unfair.
During April 2012 the applicant was assisted by Maserumule
Attorneys. In a pre-trial minute which the respondent’s
attorneys
forwarded to the applicant's attorneys the point about
lack of jurisdiction on the part of the Court was raised.
Although, there was no formal withdrawal by Maserumule attorneys,
the Legal Aid South Africa, filed a notice of appointment as
attorneys of record during June 2012. Thereafter in correspondence
between the parties, the attorneys for the applicant requested
an
amendment that needed to be made to the pre-trial minutes. It would
appear that because of failure to agree on what was to
go into the
pre-trial minute the matter was set down during November 2012 for a
pre-trial conference before a judge. The pre-trial
minutes were
signed by both parties on the 14 November 2012. In those pre-trial
minutes the applicant persisted with his view
that the dismissal was
unfair and made no averment with regard to the dismissal being
automatically unfair. It would appear that
the applicant's view that
the Labour Court had jurisdiction was based on the fact that the
Bargaining Council had ruled that,
that was the case.
In opposing the amendment the respondent contended that the
applicant could not amend his statement of case subsequent to
signing
the pre-trial minute as those minutes constitute a binding
agreement between the parties and can only be resiled from by
agreement
between the parties. This issue is dealt with in details
later in this judgment.
[12] The respondent further opposed the amendment on the grounds that
by his conduct the applicant had elected to abandon and or
wave the
right to claim that the dismissal was automatically unfair.
The legal
principles governing an amendment
[13]
The principle governing an application for an amendment of pleadings
received attention by this Court in
South
African Transport and
Allied
Workers Union and Another v South African Airways (Pty) Ltd
1
,
where
it
was held that :
‘
The
basic principle is that the Court has discretion to exercise in
considering whether or not to grant an amendment sought by the
applicant. It is also the general principle of our law that amendment
of pleadings will generally be granted where such an amendment
will
not prejudice the other party
2
,’
[14]
The leading case in dealing with an application for amendment in
pleadings is
Moolman
v Estate Moolman & another
3
where
the Court held that:
“
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.”
[15]
In
MacDuff
& Co v Johannesburg Consolidated Investments Co Ltd
4
,
the
Court held that:
“
However
negligent or careless may have been the first omission and however
late the proposed amendment, the amendment should be
allowed if it
can be made without injustice to the other side. There is no
injustice if the other side can be compensated by costs
.”
[16] In
considering an application to amend pleadings the Court is enjoined
to make sure that the interests of justice prevails,
between both
parties. In balancing the interest of both parties the Courts in
general lean towards granting an amendment, in consideration
of
ensuring full and proper ventilation of the dispute between the
parties.
Binding effect of pre-trial minutes
[17] It is trite that a pre-trial
minute constitutes a binding agreement between the parties. It
follows that one party cannot resile
from that agreement without the
consent of the other. In
Filta-Matrix
(Pty) Ltd v Feudenberg and Others
,
5
the Court held:
“
To
allow a party, without special circumstances, to resile in from an
agreement deliberately reached at the pre-trial conference
would be
to negate the object of rule 37, which is to limit issues and to
curtail the scope of the litigation. If a party elects
to limit the
ambit of his case, the election is usually binding.” (footnotes
omitted).
[18] In the present instance the amendment which the applicant seeks
to introduce does not form part of the terms agreed upon by
the
parties in the pre-trial minute. There are two points which the
parties in the present matter may not be able to resile from
without
the consent of the other party and those are set out at paragraph 2
of the pre-trial minutes and reads as follows:
“
2.1.
The applicant was employed by the respondent as a commercial driver
to do cross border deliveries.
2.2. The applicant was dismissed
by the respondent on 25 May 2011 for reasons related to alleged
misconduct pursuant to a disciplinary
hearing held on 19 May 2011”.
[19] The issues which the applicant seeks to introduce are not part
of the agreement reached in the pre-trial minute. There is
no
provision in the pre-trial minutes that takes the right of the
applicant to raise the issue relating to automatically unfairness
of
the dismissal. I do agree with the respondent however that in the
circumstances of this case the amendment to the pre-trial
minute
should properly be effected if and once the amendment is granted.
Waiver
[20]
It is trite that where waiver of a right is claimed the onus is on
the party making the claim.
6
It
is for the party raising waiver to show that the other party with
full knowledge of his or her right, decided to abandon be it,
expressly or by conduct. The question of whether a party has waived
his or her right is a question of fact. In
McGenis
v RAF
,
7
the
Court held that waiver
of
a right is not to be presumed but clear proof thereof is required. It
was further held in that case that it must be shown that
the person
who is said to have waived his or her right had full knowledge of his
rights and that his conduct was irreconcilable
with continued
existence of such rights or with the intention of enforcing them.
[21]
In
Road
Accident Fund v Mothupi,
8
the
Court in dealing with the issue of waiver held that:
"The test to determine intention to waive has been said to be
objective. That means, first, that intention to waive, like
intention
generally, is adjudged by its outward manifestations; secondly, that
mental reservations, not communicated, are of no
legal consequence;
and, thirdly, that the outward manifestations of intention are
adjudged from the perspective of the other party
concerned, that is
to say, from the perspective of the latter's notional
alter ego
,
the reasonable person standing in his shoes."
[22] In
Lufuno
Mphaphuli and Associates (Pty) Ltd v Andrews and Another
,
9
the
Constitutional Court in dealing with whether the applicant who had
agreed to have his dispute referred to private arbitration
had waived
his right under section 34 of the constitution
10
held
that:
‘
[81]
The conclusion reached in paragraph 79 above is in accordance with
common law principles regarding waiver of rights.
Waiver is first
and foremost a matter of intention; the test to determine
intention to waive is objective, the alleged intention
being
judged by its outward manifestations adjudicated from the
perspective of the other party, as a reasonable person.
Our
courts take cognisance of the fact that persons do not as a rule
lightly abandon their rights.
Waiver is not presumed; it
must be alleged and proved; not only must the acts allegedly
constituting the wavier be shown to
have occurred, but it must
also appear clearly and unequivocally from those facts or
otherwise that there was an intention
to waive. The onus is
strictly on the party asserting waiver; it must be shown that the
other party with full knowledge of
the right decided to abandon
it, whether expressly or by conduct plainly inconsistent with the
intention to enforce it. Waiver
is a question of fact and is
difficult to establish’.
[23] In the present instance there is insufficient evidence to show
that the applicant had full knowledge and appreciation that,
the
consequences of his conduct could be interpreted to be abandoning his
right. Accordingly the contention that the applicant
has waived his
right to raise the automatically unfairness dismissal stands to fail.
[24] I now turn to deal with the
substance of the application. In this respect I am enjoined to
exercise a judicial discretion and
take into account factors such as;
(a) is the application mala fide; (b) will the granting or refusal
amount to an injustice (c)
will the granting of the amendment
prejudice the other party and; (d) can prejudice that may result be
cured by a cost order. I
have indicated that in exercising that
discretion as I do in this judgment I am guided by the decision in
Moolman v Estate
Moolman & another
,
11
where the court held that:
'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 party 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.’
[25] The applicant in this case seeks to amend his statement of case
to include therein the allegation that his dismissal was
automatically unfair. The issue relating to the alleged automatically
unfair dismissal is important to both parties and the dictates
of
justice would require that it be ventilated through the adjudication
process. It is an issue that warrants attention of the
Court and is
on the face value a triable issue.
12
[26] In light of the above reasons, I am of the view that, the
applicant’s application stands to succeed.
[27] I do accept that, if regard is had to the facts and the
circumstances of this case the respondent has been inconvenienced
by
the delay in applying for the amendment. However, the applicant is a
lay person who drafted the initial statement of case himself.
He was
of course assisted at some stage by attorneys, but the reason why an
application was not filed by them is not clear. Those
attorneys never
formally withdrew from the record. Ordinarily taking into account the
facts and the circumstances of this case,
I would have granted costs
against the applicant even though he was successful, but taking into
account that he is an individual
assisted by the Legal Aid of SA, I
hold a different view. In my view, it would be unfair to make a costs
order against the applicant.
Order
[28] In the premises the following order is made:
The applicant is granted leave to amend the statement of case
with no order as to costs.
The trial which was supposed to have commenced on 13 May 2013 is
postponed
sine die.
E Molahlehi
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr Makinta of E.S. Makinta Attorneys
For the Respondent: Ruben Orton of Snyman Attorneys
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
1
2010
31 ILJ 1938 page 1942
2
See
Papier
& others v Minister of Safety & Security & others
[2003]
12 BLLR 1268
,
N
ASUWU
& Others v Pear wood Investments (Pty) Ltd t/a Wolf Security &
Another (2009) 30 ILJ 1852 (LC).
3
1927
CPD 27
at 29
4
1923
TPD 309
5
[1997] ZASCA 110
;
1998
(1) SA 606
(SCA) at 614.
6
See
FirstRand
Bank Ltd v Soni
2008 (4) SA 71
(N).
7
2009
JOL 24231
(KZD)
8
2000 (4) SA 38
(SCA).
9
2009
(6) BCLR 527
(CC).
10
Section
34 of the constitution
reads as
follows: Everyone has the right to have any dispute that can be
resolved by the application of law decided in a fair
public hearing
before a Court or, where appropriate, another independent and
impartial tribunal or forum.
11
1927
CPD 27
at 29.
See Transport & Allied Workers Union &
another v SA Airways
(Pty) Ltd (2010) 31 ILJ 1938 (LC).
12
See
Twani and Others v Premier of the Eastern Cape
(2008) ZAEHC 169.