About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2014
>>
[2014] ZALCJHB 6
|
|
Makhanye v South African Airways (JS 265/13) [2014] ZALCJHB 6 (6 January 2014)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JS 265/13
In
the matter between:
PHAKISO
JOSIAH MAKHANYE
Applicant
and
SOUTH AFRICAN
AIRWAYS
Respondent
Date
heard: 27 November 2013
Judgment
delivered: 28 November 2013
Judgment
edited: 6 January 2014
EX-TEMPORE JUDGMENT
VAN NIEKERK J
[1] This is a matter heard
yesterday in which the respondent in the main action objects to the
applicant's notice of intention
to amend his statement of claim.
[2] The brief history of the
matter is the following. The applicant filed a statement of claim on
22 March 2013. The
claim brought before this court is one in
terms of Section 77(3) of the Basic Conditions of
Employment Act, in which
the applicant contends that the
respondent breached his contract of employment. As a
consequence he claims the
amount of some R25 million. The
respondent filed a notice of exception, excepting to the claim on the
ground that
it lacked a cause of action.
[3] That matter came before this
court on 24 July 2013, where my colleague Molahlehi J upheld the
exception and granted to
the applicant leave to amend his
statement of claim within 30 days of the date of the order, failing
which the claim "would
be regarded as dismissed".
[4] The applicant filed an
amended statement of claim. However, that claim was not filed within
the 30 day period stipulated
by the order granted by Molahlehi J.
The 30 day period expired on 23 August. The
application, it
seems, was telefaxed to the respondent on the
afternoon of 26 August, and telefaxed to the Registrar's office at
the same
time.
[5] While the rules provide that
service by telefax is permissible in this court, where service by
telefax is effected, although
service is deemed to have been effected
on completion of the transmission, it is incumbent on the
party serving by telefax,
to file the original document
with the Registrar within five days of telefaxing the process
concerned.
[6] From the bar, the applicant,
who appeared in person, conceded that he had not filed the original
document. He also
conceded that a document referred to in the
amended statement of claim, being JD01, a job description, had not
been attached to
the amended statement of claim.
[7] The merits of the matter
aside, it is clear to me that by filing the amended statement of
claim on 26 august, the applicant
failed to comply with
the court's order made on 24 July.
[8] There is no application for
condonation that accompanied the amendment to the statement of claim,
and at no stage has
the applicant sought condonation from this
court for what amounts to a breach of the order. We are not dealing
here with
the breach of a regulation or a rule or a
directive, the applicant has acted in breach of a court order,
thereby placing
himself technically in contempt of this court.
[9] The terms of the order
granted by Molahlehi J on 24 July 2013 are clear - if the
applicant failed to file the
amended statement of claim within the
prescribed period of 30 days, his claim would be regarded as
being dismissed.
[10] I see no reason, given
particularly the absence of any application for condonation, or
indeed any explanation whatsoever
for the late filing of the amended
statement of claim, to consider that the consequence foreshadowed by
Molahlehi J's order should
be any different. On that
basis alone, in my view, the referral of the applicant's claim stands
to be dismissed.
[11] Even if I am wrong in
coming to that conclusion, the amended statement of claim manifestly
fails to deal with the issues
that were raised at the hearing of the
exception. In particular the claim appears to be one that extends
beyond damages ordinarily
available in contract. The applicant
claims general damages for pain and suffering, loss of enjoyment and
amenities, emotional
suffering, loss of dwelling, humiliation and
embarrassment and the like.
[12] The fact that damages under
these heads do not flow from a breach of contract was drawn to the
applicant's attention
at the time the exception was argued, but save
to reduce his claim from some R25 to some R16 million, none of the
fundamental issues
raised in the hearing of the exception have been
addressed in the amendment. In particular, the applicant fails
to set out
any basis on which he is entitled to damages for an
alleged breach of his contract.
[13] There are a number of other
instances, all of them particularly drawn to the applicant's
attention in the exception,
which again have simply not been
addressed. I do not intend, for present purposes to deal with
each of these, an example
might be found in paragraph 10 of the
statement of claim where the applicant pleads a non-variation clause
to his written contract
of employment. Indeed that is the very
basis of his claim. Notwithstanding this, he continues to allege a
number of further
oral agreements that were concluded with him, and
on which he specifically relies. The applicant's statement of
claim remains
contradictory and it remains excipiable. None of
the fundamental defects identified in the original statement of claim
have
been remedied by the notice of amendment. So for those
reasons, in my view, the applicant's claim falls to be dismissed.
[14] In regard to the question
of costs, ordinarily this court would have no hesitation in making an
order for costs against
the applicant. This litigation is
misguided to say the least. The applicant was warned by way of
the exception that
his pleadings were vague and embarrassing and
required fundamental rethinking and redrafting.
[15] Despite this he appears to
have learnt no lessons during the course of that process, and as I
have indicated, has addressed
none of the material issues that were
the subject of the exception.
[16] However, I also bear in
mind that the applicant is an individual and that this court is
reluctant to make orders for
costs against individuals who refer
their matters to this court for determination, albeit on a misguided
basis.
[17] As a matter of interest, I
am aware of a similar claim brought before one of my colleagues,
where precisely the same
pleadings were used and the same claim for
damages calculated on the same basis was made. It appears that
there is a cottage
industry out there where somebody ordinarily
specialising in Road Accident Fund claims or the like is dispensing
advice to gullible
members of the public, and raising their
expectations in relation to employment-related litigation that they
are encouraged to
institute against their employers.
[18] So I accept that perhaps
the applicant, to give him the benefit of the doubt, has been badly
advised in this matter.
But that he has pursued his claim in the
genuine belief that it has merit. In my view and in the
exercise of the discretion
I have in terms of Section 162 of the Act
it seems to me that there ought to be no orders as to costs. The
effect of the order
I make will hopefully put paid to this
litigation.
I make the following order:
1. The applicant's claim is
dismissed.
2.
There is no order as to costs.
ANDRE VAN NIEKERK
JUDGE OF THE LABOUR
COURT