About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 177
|
|
Septoo v City of Johannesburg (JS458/09) [2015] ZALCJHB 177 (5 June 2015)
THE
LABOUR COURT OF SOUTH AFRICA,
HELD IN JOHANNESBURG
Of
interest to other judges
Case
no: JS 458/09
In
the matter between:
ELLENISE
SEPTOO Applicant
and
CITY
OF
JOHANNESBURG
Respondent
Heard:
4
June 2015
Delivered:
5 June 2015
Summary:
(Absolution – evidence
incompatible with claim for specific performance)
JUDGMENT
LAGRANGE,
J
[1]
At the close of the applicant’s case, the respondent applied
for absolution from the instance. The relief sought by the
applicant
is an order declaring that the contract entered into between herself
and the respondent in terms of which she was to
be paid R 550,000 per
annum is binding and enforceable against the respondent and that she
be remunerated in accordance with that
contract. She also claimed
further and alternative relief, though the nature of this relief was
not specified.
[2]
At the commencement of proceedings, applicant’s counsel
submitted that this contract (‘the first contract’)
had
been cancelled. Counsel for the respondent confirmed that the case
was simply a case in which the applicant sought specific
performance
of the contract and was not seeking damages. Under cross-examination,
the applicant confirmed in her evidence that
the first contract had
been cancelled.
[3]
The respondent argues that the simple question raised by the evidence
is how the applicant could pursue a claim for specific
performance,
in the form of payment of the remuneration stipulated in the first
contract, if she agreed that contract had been
cancelled. Applicant’s
counsel argued in reply that in asking for further or alternative
relief, the applicant was still
entitled on the pleadings to pursue
her alternative claim for damages.
[4]
It is trite
law that a party who seeks an order for specific performance of a
contract is necessarily pursuing their claim on the
basis that the
contract exists at the time the claim is made and they are trying to
enforce the obligations undertaken by the other
party in terms of the
contract. Such a party has decided not to treat the other party’s
alleged shortfall in performance
as a repudiatory breach justifying
the cancellation of the contract but is holding that party to its
obligations to perform in
terms of the contract and to remedy the
breach. The alternative claim available to a party faced with a
material failure to perform
by the other contracting party is to
accept the repudiatory breach as grounds for terminating the contract
and to sue for contractual
damages arising there from. The
enforcement and cancellation of a contract are mutually exclusive
choices in the sense that they
cannot both be exercised
simultaneously. That does not prevent a party from claiming
cancellation of the contract and a claim for
damages in the
alternative to an order for specific performance in the event that a
claim for specific performance does not succeed.
[1]
[5]
In this instance, there is nothing in the pleadings to suggest that
in the event that the applicant failed to establish her
claim for
specific performance, she would exercise her right to cancel the
agreement and seek damages in the alternative. Is it
sufficient that
her claim for relief includes a general claim for further and
alternative relief? The difficulty I have with this
proposition is
that the thrust of the applicant’s pleaded case is premised on
the existence of an enforceable agreement,
not on a cancelled one. On
the existing pleadings, it cannot be said , given that the applicant
now regards the agreement as cancelled,
which is a fact incompatible
with a claim for specific performance, that the respondent is
nevertheless not entitled to absolution
because an alternative
prima
facie
claim for damages has been laid which calls for an answer.
[6]
The applicant sought to rely on a number of old authorities cited in
Christie’s Law of Contract of South Africa which
might appear
to suggest that a claim for damages as an alternative cause of action
premised on the cancellation of the contract
can be entertained
simply on the basis of the existence of a prayer for further or
alternative relief. However, closer scrutiny
of the cases of
Norden
v Rennie
(1879) 9 Buch 155;
Cohen v Shires, McHattie and King
(1882) 1 K 41;
Jacobsohn
v Edwards and Ehrlich
(1897) 4
OR 264
cited therein reveals that in
those matters the award of damages under consideration was not
premised on an alternative claim arising
from the cancellation of the
contract, but alternative relief in the form of damages because an
order of specific performance to
which the plaintiff was or might
have been entitled to was not a feasible remedy. In none of those
cases was the alternative relief
in the form of damages premised on
the underlying contract being cancelled.
[7]
The test for absolution has been expressed
in the following terms:
“
When
absolution from the instance is sought at the close of the
plaintiff's case, the test to be applied is not whether the evidence
established what would finally be required to be established, but
whether there is evidence upon which a court, applying its mind
reasonably to such evidence,
could
or might
(not should, or ought to) find for the plaintiff.”
[2]
[8]
In this instance, the applicant’s own
claim that the contract on which the claim of specific performance is
based has been
cancelled is logically incompatible with a claim for
such relief .Further, the alternative claim premised on such
cancellation
was never properly pleaded and in the absence of an
amendment to the statement of claim the court is not able to
entertain such
a claim..
[9]
Accordingly, the application must succeed.
On the question of costs, I am not persuaded that the applicant’s
original claim
was ill founded on the basis of the allegations as
they appear in the pleadings or that respondent’s success in
this application
owes anything to the intrinsic merits of its defence
of its non-payment of the applicant’s salary under the first
contract.
I do not think the interests of justice or law warrant a
cost order in the respondent’s favour.
Order
[10]
The respondent is granted absolution from the instance in respect of
the applicant’s claim for specific performance which
is the
only claim before the Court.
[11]
No order is made as to costs.
____________________
R
LAGRANGE, J
Judge
of the Labour Court
Appearances:
For
the Applicant:
M Sibanda
Instructed
by:
JD Verster Labour Law Office
For
the Respondent: H Viljoen
Instructed
by:
Mncedisi Ndlovu &
Sedumedi Attorneys
[1]
See Christie, Law of Contract in South Africa, (sixth edition) at
562.
[2]
Erasmus:
Superior Court Practice, RS 39, 2012 Rule-B1-p292A