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[2013] ZALCJHB 125
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Tulwana and Another v City of Johannesburg (JS 871/11) [2013] ZALCJHB 125 (14 June 2013)
5
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case No: JS 871/11
In the matter between -
ALAN TULWANA
....................................................................................
First
Applicant
ROBERT WIEBOSCH
........................................................................
Second
Applicant
And
CITY OF JOHANNESBURG
........................................................................
Respondent
Date heard: 03 June 2013
Date delivered: 14 June 2013
Summary: Application to amend statement of case.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MOLAHLEHI J
This is an interlocutory application in terms of which the
applicants seek to amend their statement of claim. The respondents
oppose the application essentially on the basis that if granted the
amendment would render the applicant's claims exceptiable.
The application to amend includes an amendment to some of the
background facts. It is apparent from the reading of the application
that the key amendment which forms the basic cause of action is
paragraph 63 which reads as follows:
‘
6.1.3.
that the Respondent’s failure to renew the Applicant’s
fixed term contract and /or failure to employ him permanently
constituted an automatically unfair dismissal in terms of section
187(1) (h) of the LRA, alternatively
63.2. that the Respondent’s
failure to renew the Applicant’s fixed-term contract and/or
failure to employ him permanently
upon expiry of his fixed-term
contract constituted an unfair dismissal in terms of section 186 (1)
(b) of the LRA;
63.3. that the Applicant be
reinstated to the position of OPS Revenue Manager with effect from 1
November 2010 . . .’
The background facts
It is common cause that on 21 February 2006, the Independent
Municipal and Allied Trades Union (IMATU) and the South African
Municipal Workers Union (SAMWU), entered into a settlement agreement
which was subsequently made an arbitration award under the
auspices
of the South African Local Government Bargaining Council (the
bargaining Council).
The settlement agreement which has now become an arbitration award
provided that the fixed term contracts of the non-section
57 (1) of
the Municipal Systems Act employees of the municipalities were to
run the full life span. It would appear on the expiry
of the fixed
term contracts, the respondent was obliged to employ the applicant
on a permanent basis.
Another agreement was concluded between the unions and the
respondent during 2012. The 2012 agreement under the heading,
"Background"
records several points, which includes the
fact that the arbitration award referred to above was rescinded. And
also that during
August 2006, the employers’ organisation, the
South African Local Government Association (SALGA) instituted
proceedings
before this court under case number J1232/06 in terms of
which it sought to have the 2006 agreement set aside.
During June 2012 IMATU instituted an urgent application in this
Court under case number J1621/12, in terms of which it sought
a
declarator that the employees employed in the risk and audit service
should remain in the employ of the respondent pending
the outcome of
the case instituted by SALGA.
The respondent contends that the court does not have jurisdiction to
claims falling under the provisions of section 186 (1) (b)
of the
Labour Relations Act of 1995. The respondent further contends that
the Court has no jurisdiction because the issues raised
by the
applicant are issues that have to do with interpretation and
application of the collective agreement in terms of which
the
dispute resolution procedure is provided for in terms of the dispute
resolution procedure.
The applicant on the other hand argue that, the 2012 agreement does
not apply to them because at the time it was concluded they
were no
longer members of the trade unions and therefore the agreement could
not apply to them.
Evaluation
In considering whether to grant or refuse this application, I am
enjoined to exercise a judicial discretion. In exercising that
discretion I have to do so by taking into account factors such as;
(a) the bona fide of the application; (b) the injustice that
may
arise from the granting or refusal of the amendment (c) will the
granting of the amendment prejudice the other party and;
(d) can
prejudice that may result be cured by a cost order. In exercising
that discretion as I do in this judgment I am guided
by the decision
in
Moolman v Estate Moolman & Another
,
1
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.' And in
MacDuff &
Co v Johannesburg Consolidated Investment Co Ltd
1923 TPD 309
,
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.'
In the present instance the applicant seeks to amend the statement
of case to insert therein the allegation that his fixed term
contract of employment was not renewed for reasons prohibited by the
law. The issue relating to the alleged automatically unfair
non-renewal of the employment contract 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.
2
The issues relating to the 2006 and 2012 agreements are in my view
secondary to the fundamental issue of the allegation that
the
non-renewal of the contract based on the alleged ground prohibited
by the law. In fact I see the issues relating to the contracts
as
more of background facts than a cause of action. However even if
they were central to the dispute, I am of the view that the
trial
Court will in all probabilities treat them as issues which it has
incidental powers to deal with.
In light of the above reasons, I am of the view that, applicant’s
application stands to succeed. However, in the circumstances
of this
case I do not believe that the requirements of law and fairness
would permit granting costs against any of the parties.
Order
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 3 June 2013 is
postponed
sine die.
Molahlehi J
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv P E Flynn instructed by Cowan Harper Attorneys
For the Respondent: Adv C Prinsloo instructed by Helena Strijdom
Attorneys.
1
1927
CPD 27
at 29.
See South African Transport and Allied Workers
Union and Another v SA Airways (Pty) Ltd
(2010) 31 ILJ 1938
(LC).
2
See
Twani and Others v Premier of the Eastern Cape
(2008) ZAEHC
169.