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[2014] ZALCPE 7
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Du Toit v MTO Forestry (Pty) Ltd (P342/12) [2014] ZALCPE 7 (27 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
NOT
REPORTABLE
CASE
NO: P342/12
In
the matter between:
PIETER
WOUTER DU
TOIT Applicant
and
MTO FORESTRY (PTY)
LTD Respondent
Heard:
22 November 2013
Delivered:
27 May 2014
Summary:
An application for leave to amend the statement of claim will be
granted if the applicant is not mala
fide in bringing the application
and the amendment will not cause injustice to the respondent.
JUDGMENT
LALLIE
J
[1]
This is an application for leave to amend the statement of claim. The
factual background of this application is that the respondent
terminated the services of the applicant for operational requirements
on 31 January 2012. The applicant filed his statement of
claim on 1
August 2012. On 17 August 2012, the respondent filed the response to
the statement of claim and on 29 April 2013 the
parties filed their
pre-trial minute. On 4 November 2013, the applicant launched the
present application. It is opposed by the
respondent.
[2]
In the amendment the applicant seeks to add paragraph 57A in which he
alleges that his dismissal was unlawful as it was effected
in breach
of Section 189A of the Labour Relations Act 66 of 1995 (the “LRA”).
He further seeks to add paragraph 63A
in which he alleges that the
omission to refer a dispute regarding his intended dismissal to the
CCMA rendered his dismissal premature,
impermissible in law and
unlawful. The applicant further seeks to add paragraph 66A which will
have the effect of expanding the
relief he initially sought by
declaring his dismissal premature, unlawful and of no force and
effect. He also seeks to add to the
relief he is seeking, his
reinstatement retrospectively until his contract is terminated
lawfully.
[3]
The respondent sought to rely on a number of grounds in opposing this
application. It submitted that the applicant sought to
raise, late in
the day, a new cause of action that his dismissal was governed by
section 189A of the LRA. The submission is misplaced
as a facilitator
had been appointed. The applicant waived his right to the protection
of section 189A. Alternatively, the applicant
is estopped from
invoking the provisions of section 189A as he created to the
respondent, the impression that he had no intention
of doing so. The
parties settled their differences and agreed on a termination date,
the provisions of section 189A are therefore
inapplicable. The
amendment sought offends the respondent’s constitutional right
to fair labour practices as it is sought
just before trial in an
effort to have the entire retrenchment process invalidated. And the
last ground the respondent seeks to
rely on is that the amendment
will render the statement of claim excipiable.
[4]
The leading authority in matters regarding amendment of pleadings is
Moolman
v Estate Moolman and Another
[1]
where the court held as follows:
‘
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 side 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 file’.
The
above dictum has been referred to with approval by different Courts
including the Constitutional Court in
Affordable
Medicines Trust and Others v Minister of Health and Others
[2]
.
[5]
The respondent argued that the amendment was sought very late, on 6
November 2013 when the matter had been enrolled for trial
on 26
November 2013. It sought to rely on
Nzimande
and Others v Zenex Oil (Pty) Ltd and others
[3]
,
where the applicant sought to amend its statement of claim to base
its claim on a new cause of action. The amendment was refused
on the
basis that where there is a permanent relationship between the
parties, a lengthy delay before a dispute can be resolved
may harm
the relationship and cause considerable prejudice to one or both
parties. The Court added that an unexplained delay of
eighteen months
can justify the refusal to amend a statement of claim.
[6]
Nzimande
(supra)
is distinguishable from the matter at hand as the applicant does not
seek to base his entire claim on a new cause of action but
seeks to
expand on the relief he originally sought. The respondent did not
plead the existence of an unexplained delay. Our Courts,
in balancing
the expediency in which disputes have to be resolved as envisaged in
the letter and spirit of the LRA and ensuring
that justice is done in
the resolution of labour disputes, have made justice the overriding
principle. In
Sondorp
and Another v Ekurhuleni Metropolitan Municipality
[4]
an appeal against a judgment refusing an application for amendment of
pleadings which was brought more than seven year into the
matter, the
respondent had closed its case and the applicant had finished leading
its first witness. The Court held as follows:
‘…
In
exercising its discretion in this regard. The lower court should
always reflect, in its assessment of the application, a degree
of
generosity and strive to ensure, as its objective, a proper
ventilation of the real dispute between the parties’.
[7]
It is not the respondent’s case that this application is
mala
fide
.
Further, the respondent proved no
mala
fides
on the part of the applicant in bringing this application. I am not
convinced that the time at which this application was brought
justifies its dismissal. While pleadings have been closed and the
pre-trial minute filed, no evidence has been led. The importance
of
having the dispute resolved expeditiously is eclipsed by the need to
have all the aspects of this matter ventilated properly.
In a number
of decisions when dealing with delays, the Constitutional Court has
expressed the view that the interest of justice
is the overriding
principle. See
F
v
Minister
of Safety and Security and Another
(Institute
for Security Studies, Institute for Accountability in Southern
African Trust and Trustees of the Women’s Legal
Centre as Amici
Curiae)
[5]
.
The prejudice the applicant stands to suffer in the event of this
application being refused out weighs by far any prejudice the
respondent may suffer should an order to the contrary be granted. In
addition, the respondent’s prejudice may be compensated
by an
appropriate costs order.
[8]
The argument that the amendment will be unfair towards the respondent
does not assist the respondent’s case. The unfairness
is an
issue which is inextricable linked to the merits and cannot be
determined at this stage in the absence of evidence. The same
applies
to the remaining grounds the respondent sought to rely on. As the
application to amend the statement of claim is not
mala fide
and the amendment will not cause injustice to the respondent, this
application must succeed. Considerations of the law and fairness
require that the applicant pay the respondent’s costs.
[9]
In the premises, the following order is made:
9.1 The application to
amend the applicant’s statement of claim is granted.
9.2 The applicant is
directed to pay the respondent’s costs.
___________________________________
Lallie
J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant: Mr
Unwin of Chris Unwin Attorneys
For
the Respondent: Advocate Costhuizin
Instructed
by:
Werksmans Attorneys
[1]
1927 CPD 27
at 29
[2]
2006 (3) SA 247 (CC)
[3]
[2001] 4 BLLR 419 (LAC)
[4]
[2013] 9 BLLR 866 (LAC)
[5]
(2012) 33
ILJ
93 (CC)