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[2014] ZALCJHB 70
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Coetzee v SA Water Cycle Group (Pty) Ltd and Another (JS103/12) [2014] ZALCJHB 70 (5 March 2014)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO JS 103/12
JACOBUS
SCHALK
COETZEE APPLICANT
and
SA
WATER CYCLE GROUP (PTY) LTD
1
ST
RESPONDENT
MVELASERVE
LTD
2
ND
RESPONDENT
Application
heard: 5 March 2014
Judgment
delivered: 5 March 2014
JUDGMENT
VAN
NIEKERK J
[1]
This is an interlocutory application brought in terms of rule 11 of
the rules of this court in which the applicant seeks leave
to amend
his statement of claim. The applicant’s notice of intention to
amend, dated to April 2013, is some 29 pages long.
The respondents
objected to the proposed amendment in two respects, on the basis that
the proposed amendments would result in pleadings
that are
excipiable. First, the respondents contend that the amendments fail
to establish that a protected disclosure, as envisaged
by the
Protected Disclosures Act, 26 of 2000
, was made. Secondly, the
respondents contend that the amendments fail to establish that the
second respondent has any direct and
substantial interest in the
matter. A third objection, to the effect that the amendments failed
to establish that this court’s
jurisdiction to grant the relief
sought, is related to the first.
[2]
This matter has a history. In response to his statement of claim
filed on 7 February 2012, the respondents raised three special
pleas.
These were set down for argument on 17 April 2013, when the court
directed that the matter be removed from the roll and
that the
special pleas be argued at trial. The applicant had, as at that date
and during the same month, filed a notice of its
intention to amend
its statement of case. On 18 April 2013, the respondents filed a
notice of objection to the proposed amendments.
The present
application was filed in May 2013 in terms of which and in the face
of the respondents’ objections, the applicant
seeks leave to
amend his statement of claim. To the extent that there may be any
residual confusion concerning the court order
made on 17 April 2013,
it seems to me that the directive has been overtaken by events and
that in the present circumstances, it
is no longer applicable since
the issues raised in the present proceedings, in effect, address the
objections taken by way of special
plea.
[3]
I turn first to the objection to the amendment reflected in paragraph
2 of the notice of intention to amend. The proposed amendment
would
reflect that the second respondent has been joined on the basis that
substantially the same questions of law and fact as
between the first
respondent and the applicant stand to be resolved. The respondents
concede that the first respondent is a wholly
owned subsidiary of the
second respondent. This is not disputed, nor is it disputed that the
applicant was employed by the first
respondent and dismissed by the
first respondent. In short, the second respondent has no relationship
with the applicant other
than its being the sole shareholder of the
first respondent.
[4]
It is a well-established principle that a party may only be joined as
a respondent in litigation if that party has a direct
and substantial
legal interest in the matter. While the second respondent may have an
indirect financial interest in the outcome
of the present litigation,
this is not a sufficient ground for it to be joined. There is no
basis in the present circumstances
for any order to be made against
the second respondent and it ought not, on the facts currently
pleaded and having regard to those
disclosed in the proposed
amendment, to have to defend these proceedings. The only reason
proffered on the applicant’s behalf
for the proposed amendment
relates to the second respondent’s powers as a sole
shareholder. The concern, as I understood
it, was that it might
decide to dispose of or otherwise disinvest in the first respondent,
to the prejudice of the applicant. This
submission does not enjoy any
support in the papers before me, nor is the applicant’s concern
one that properly forms the
basis of joinder. For these reasons, the
respondent’s objection to the proposed amendment sought to be
introduced by paragraph
2 of the notice of intention to amend stands
to be upheld.
[5]
In regard to the objection that relates to the applicant’s
averments that he made a disclosure that was protected in terms
of
the PDA, the essence of the objection is that the two communications
relied upon by the applicant to constitute protected disclosures
for
the purposes of the Act. That may be so, but in my view this is a
matter best determined by the trial court. The purpose of
pleadings
is to identify the issues in dispute. The amendment that the
applicant seeks to introduce avers that he made a disclosure,
that
the disclosure was protected in terms of the Act, and that he was
dismissed on this account. Given the requirements of
rule 6
in
relation to the content of a statement of case, in my view, this is
sufficient. It is not for a party to prove its case in a
statement of
claim; the primary intention is to articulate a claim, in broad
terms, and in sufficient detail for any respondent
to appreciate the
case that it has to meet. In the circumstances, in my view, there is
no basis for the objection to the proposed
amendment
[6]
Finally, and by way of a general observation, it seems to me that the
manner in which this litigation has been approached is
not what is
contemplated by the LRA or the rules of this court. The statement of
case runs to some 60 pages, and the proposed amendments,
as I have
observed, run to some 28 pages.
Rule 6
requires a concise
statement of the facts on which a party relies and a concise
statement of the legal issues that arise. A statement
of claim is not
the equivalent of a combined summons in the High Court, and
deliberately so. Both parties are urged to convene
a pre-trial
conference as soon as possible and to seek to identify, as the
relevant rule requires, the real issues in dispute and
to state them
with the degree of conciseness that the rules envisage. In the
exercise of the broad discretion conferred on the
court in terms of
section 162
, it seems to me that the requirements of the law and
fairness dictate that there should be no order for costs in respect
of the
present application.
I
make the following order:
1. The
respondents’ objection to the applicant’s proposed
amendment reflected in paragraph 2 of the
applicant’s notice of
intention to amend is upheld.
2. The
respondents’ objection to the applicant’s proposed
amendments reflected in paragraphs 29, 30
and 31 of the applicant’s
notice of intention to amend is dismissed.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the applicant: Adv A Boswel, instructed by MC Van der Berg Inc
For
the respondents: Adv A snider, instructed by Bowman Gilfillan.