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[2015] ZALCJHB 42
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Putco Limited v Transport And Allied Workers Union of South Africa and Another (J 2578/10) [2015] ZALCJHB 42 (18 February 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURTOF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: J 2578/10
DATE: 18 FEBRUARY 2015
Not Reportable
In the matter between:
PUTCO
LIMITED
....................................................................................................................
Applicant
And
TRANSPORT AND ALLIED WORKERS
UNION OF SOUTH
AFICA
........................................................................................
First
Respondent
MANGE
ZACK
........................................................................................................
Second
Respondent
Heard: 26 November 2014
Delivered: 18 February 2015
Summary: Application to amend statement of
defence. Amend statement of defence to withdraw an admission.
Principles governing amendment
of pleadings.
JUDGMENT
MOLAHLEHI, J
[1]
This
is an interlocutory application in terms of which the respondents
seek to amend their statement of response which they have
filed in
opposition to the statement of claim of the applicants. The
applicants are claiming damages in the amount of R106 2012.20
in
terms of section s158 (1) (a) (V) read with s 68 (1) (b) of the
Labour Relations Act of 1995 ( the LRA). The application is
opposed.
The background facts
[2]
It
is common cause that during 2010, the parties to the South African
Road Passenger Bargaining Council (the bargaining council)
engaged in
wage negotiations. The majority of the employer parties in the
negotiations were represented by the South African Bus
Employers
Association (the SABEA) and the union parties were SATAWU, TOWU and
TAWUSA.
[3]
The
parties having failed to reach a consensus on their own resolved to
engage the services of the mediator in terms of the constitution
of
the bargaining council. Initially, when the process failed to
facilitate consensus, the union parties to the bargaining council
issued a notice of intention to go on strike on 26 March 2010 and
that such a strike would have commenced on 29 March 2010.
[4]
In
the meantime, the employer parties revised their offer to a 10% which
was communicated to the union parties by the mediator.
The revised
offer was accepted in writing by TOWU and verbally by SATAWU on 28
March 2010. The two unions then suspended the strike
pending
signature of the main collective agreement which was to take place on
29 March 2010. TAWUSA did not agree with the approach
of the other
unions.
[5]
The
acceptance of the offer by TOWU and SATAWU meant that a binding
agreement was reached in terms of the constitution of the bargaining
council. This also meant that the agreement was binding l, even on
the parties that did not sign the agreement such as the first
respondent.
[6]
The
signing ceremony of the agreement took place on 29 March 2010 and
present there was amongst others the representative of the
first
respondent, Mr Mankge. . He, on that day at about 11h15, sent an
email to a number of people including the representatives
of the
other unions wherein he said:
“
...
neither
SATAWU nor
TOWU
have
agreed
with
us
on
the
suspension
of
the
strike.
We
therefore
record we do
not
agree
to the suspension
of
the
strike.”
[7]
SATAWU
responded to the email and expressed its surprise at the position
that had been taken by the first respondent particularly
because its
representative was present through the discussions regarding the
negotiations. They indicated that they did not agree
with the
respondent and believed that in the circumstances, the constitution
of the bargaining council should apply.
[8]
According
to the applicant, Mr. Mr Mankge indicated that the first respondent
did not accept the revised offer of 10% wage increase
and that the
strike on their part would continue.
[9]
The
applicant further states in its statement of case that the shop
stewards of the first respondent were informed during the afternoon
of 29 March 2010, that the collective agreement regarding the wage
dispute had been signed by the majority members of the bargaining
council and that the agreement was for that reason binding on
everyone.
[10]
It
is also alleged by the applicant that the members of the first
respondent did not return to work after being told to do so and
continued with the strike on 30 March 2010. The strike, accordingly,
became unprotected. The member of the first respondent ceased
their
action only after the applicant obtained an interdict from the court
against them.
[11]
The
applicant’s claim for damages in this matter is based on the
complaint that it had suffered damages as a result of the
unlawful
conduct of the first respondent and its members.
The issue for determination
[12]
The
issue for determination in this matter is whether the respondents, in
their founding affidavit, have made out a case justifying
the
withdrawal of the concession they made at paragraph 5.13 of
their statement of defence. Paragraph 5.13 of the statement
of claim
of the applicant reads as follows:
“
On
the afternoon of 29 March 2010, Mr Mankge attended the signing
ceremony and indicated that TAWUSA did not accept the
across-the-board
increase and that the strike on the part of TAWUSA
would continue. The 2010 Main Collective Agreement was signed by
SABEA, SATAWU
and TOWU on the afternoon of 29 March 2010.”
[13]
The
respondents, at paragraph 4.9 of their statement of response, do not
dispute the correctness of the above facts. The respondents’
statement of defence at paragraph 4.9 reads as follows:
“
AD
PARGRAPH 5.12 and 5.3
The contents of these paragraphs
are admitted.”
[14]
Mr
Mankge the deponent to the founding affidavit does not dispute the
correctness of the above concession but states that he would
have
said that the strike on the part of TAWUSA continues. He states
further that he made an error in that the statement does not
accord
with the instruction given to their attorney. According to Mr Mankge
the reason for bringing this application at the point
when the trial
should commence is that although the instructions came from him, he
never had sight of the contents of the statement
of defence. He
became aware of the error when the admission was brought to his
attention in preparation of this application.
[15]
[16]
It
should be noted that the admission sought to be withdrawn is
confirmed in the pre-trial minutes and no application to withdraw
the
admission in that regard has been made. In this respect Mr
Maimane argued that there was no need to withdraw the admission
made
in the pre-trial minutes because there is a distinction between an
admission made in the pleadings and that which is made
in the
pre-trial minutes. He argued that the admission of the contents of
paragraph 5.13 in the pre-trial is of no legal consequences
as it
would fall away once the admission made in the statement of defence
was withdrawn. His argument is that the admission in
the pre-trial
minutes is not binding because it did not come as a result of the
agreement between the parties but it was rather
stated as common
cause fact which came as a result of the directive from the Judge
President. According to him, the admission made
in the pre-trial
minutes is a mere compliance and a recordal which the employee could
not refuse to make as it is a directive.
It does not, according to
the submission made, constitute an agreement between the parties.
[17]
It
was further argued that the pre-trial minutes do not constitute an
agreement in terms of the law of contract but rather it is
a type of
an agreement governed by the law of procedure whose purpose is to
assist the Court in knowing what the issues are.
The legal principle in relation to amendment of pleadings
[18]
It
is trite that the court is generally inclined to granting an
application to amend pleadings to ensure a proper ventilation of
the
dispute between the parties. However, as stated in
Twani
and Others v Premier of the Province of the Eastern Cape and
Others
,
[1]
“
an
amendment is not there for the taking”.
[19]
In
considering an application for an amendment of pleadings, the Court
has discretion to exercise. In exercising its discretion,
the Court
has to consider whether the application is
mala
fide
and whether if granted or refused, will it result in an injustice and
or prejudice. Another factor to take into account in considering
the
application to amend is whether prejudice in granting it cannot be
cured by a cost order.
[2]
[20]
In
order to succeed, the party seeking amendment of pleadings must
provide a full explanation to convince the Court of his or her
bona
fides
for seeking the amendment. This is even more so where the amendment
relates to the withdrawal an admission. In this respect, the
applicant has to provide a full and satisfactory explanation of the
circumstances in which the admission was made and the reason
for
seeking its withdrawal.
[3]
[21]
In
the present instance, the respondents do not provide a satisfactory
explanation as to how the admission was made. The respondents
simply
state that Mr Mankge did not have sight of the statement of response
and that the admission does not accord with the instruction
given to
their attorney. They do not address the prejudice that the applicant
will suffer if the amendment was to be granted.
[22]
The
reading of the respondents founding affidavit reveals very little
effort on the part of the respondent to persuade this court
that
there is justification to indulge them and grant the amendment. Mr
Mankge states, in the founding affidavit, that his attorney
was not
aware of the significance of the admission.
[23]
It
is significant in considering this application to note that the
respondents have not attached any confirmatory affidavit,
particularly
from the attorney, confirming the following:
a.
That
the admission was not made on the instruction of Mr Mankge;
b.
That
Mr Mankge did not until this application have sight of the statement
of response;
c.
There
is no explanation as to why this application was made after the same
admission was made in the pre-trial minutes.
[24]
I
am in agreement with the applicant that the fact that this
application is made after the same admission was made in the
pre-trial
minutes is an indication of bad faith on the part of the
respondents. For these reasons, the respondents’ application
stands
to fail.
[25]
Turning
to the admission as made in the pre-trial minutes, it has to be noted
that the respondents have not filed any application
to have the
admission withdrawn.
[26]
The
approach adopted by the courts in dealing with the status of
pre-trial minutes in our law is well established. It has been stated
in this regard by the Labour Appeal Court in
NUMSA
v
Driveline
Technologies (Pty) Ltd and Another
,
[4]
that:
“
It is
true, of course that a pre-trial minute is a consensual document
which binds the parties thereto and obliges the court (in
the same
way as parties pleadings do) to decide the issues set out therein.’
[27]
And
as concerning the issue of withdrawal of an admission made in the
pre-trial minute, the court in
Filta-
Matrix (Pty) Ltd v Freudenberg
,
[5]
held
that:
“
to
allow a party, with a special circumstances, to resile from an
agreement reached at a pre-trial conference will be to the
objects of rule 37 which is to curtail the scope of the litigation.”
[28]
In
light of the above, I am of the view that the respondents’
application stands to fail.
Order
[29]
In
the circumstances, the respondents’ application to amend their
statement of defence to effect the withdrawal of the admission
made
is dismissed with costs.
Molahlehi, J
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr K Makapane from Bowman Gilfillan Inc.
For
the Second Respondent: Advocate Maimane instructed by Masango
Attorneys.
[1]
(460/99)
ZAECHC
169
[2008]
ZAECHC 169
(1 October 2008)
at
para 20.
[2]
South
African Transport and Allied Workers Union and Others v Collett
Armed Security Services
(JS 1280/09)
[2013]
ZALCJHB 111
(2
May 2013)
at
para 18.
[3]
See
SMM
Papier and
Others
v The Minister of Safety and Security and Others
(C552/2001)
[2003]
ZALC 112
(17
October 2003)
at
para 15.
[4]
[2007] ZALC 66
;
[2000]
1 BLLR 20
(LAC) at para 16.
[5]
[1997] ZASCA 110
;
1998
(1) SA 606
(LAC) at 614B-D.