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[2015] ZALCJHB 212
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SA Solidarity obo Booi and Others v Technistrut (Pty) Ltd t/a Selati Roofs (JS381/12) [2015] ZALCJHB 212 (15 July 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS381/12
SA SOLIDARITY obo
MT BOOI & 22 OTHERS
Applicants
and
TECHNISTRUT (PTY)
LTD t/a SELATI ROOFS
Respondent
Delivered:
15 July 2015
JUDGMENT-
APPLICATION TO AMEND PRE-TRIAL MINUTE
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This
is an interlocutory application brought in terms of Rule 11 of the
Rules of this Court in which the applicants seek leave to
amend the
signed pre-trial minute. This application was launched mid-stream the
trial with the leave of the Court.
[2]
The
applicants essentially seek to strike out paragraphs 3.23 and 3.24 of
that minute, or in the alternative, they seek an order
amending the
aforesaid paragraphs to become issues in dispute under section 4 of
the minute, or alternatively, an order that a
further pre-trial
conference to be convened to be presided over by the Judge. The
respondent opposes the application.
Background:
[3]
The
sixteen individual applicants were dismissed by the respondent on or
about 6 May 2011. They subsequently referred a dispute
to the CCMA
with the assistance of SA Solidarity, and a certificate of outcome
was issued when the dispute could not be resolved.
They had then
approached Wits Law Clinic for assistance and a statement of case was
then filed on 22 May 2012.
[4]
The
dismissal of the individual applicants followed upon the following
events;
4.1
They
were members of SA Solidarity Union which had referred a matter of
mutual interest dispute regarding
wages
to the
CCMA on 13 January 2011. The dispute could not be resolved and a
certificate of outcome was issued on 11 February 2011.
4.2
A
protected strike commenced on 14 February 2011. The strike action
turned violent to such an extent that an interdict was obtained
from
this Court under case number J273/11.
4.3
On
24 March 2011, the parties agreed to resolve the wage dispute
resulting in an agreement signed on the same date. All the striking
employees undertook to resume their duties at 07h00 on 28 March 2011,
and the respondent reserved its rights to institute formal
disciplinary action against the employees who had allegedly committed
acts of misconduct during the strike.
4.4
On
12 April 2011 after an internal investigation, the respondent
identified 16 employees whom it sought to institute disciplinary
proceedings against for alleged serious acts of misconduct during the
strike. Some of the cases that had resulted in a dismissal
have since
been finalised at the CCMA.
4.5
On
12 April 2011, the respondent’s management met with SA
Solidarity’s Messrs Jack Chuma, Tshabalala and shop stewards
in
order to discuss the anticipated disciplinary action against the
identified employees who had then been placed on suspension.
Disciplinary hearings were scheduled to take place on 14 and 20 April
2011 respectively.
4.6
About
31 employees including the individual applicants embarked on an
unprotected strike on 13 April 2011 in sympathy with the 16
employees
who were on suspension. An ultimatum was issued on 13 April 2011
advising the union and the applicants to go back to
work by 13h30
failing which they would face disciplinary action and possible
dismissal. Despite the respondent’s Frans Labuschagne’s
attempts to persuade the striking employees to return to work, they
made it clear that they would not until the suspensions of
the 16
others were uplifted.
4.7
A
second ultimatum was issued on 13 April 2011 at 14h50 advising the
employees to go back to work by 15h00, and this yielded no
results. A
final ultimatum was issued on the same day at about 15h00 whereby the
employees were instructed to resume work at 07h00
on 14 April 2011
and warned that failure to heed the ultimatum would result in
disciplinary action.
4.8
According
to the respondent, the unprotected strike continued on 14 April 2011,
Chuma had addressed the employees and failed to
honour a meeting
arranged with management for 12h00 on that day. A meeting with him
was eventually held on 15 April 2011 and thereafter,
he (Chuma)
sought to but failed to persuade the employees to go back to work.
4.9
According
to the respondent’s version, eight employees abandoned the
strike action and on 19 April 2011, Mr. Mampuru, from
the union
attended a meeting arranged with management where an offer was made
by management for the employees to return to work
with warnings.
Mampuru’s stance was also that the employees would only go back
to work once the suspension of others were
uplifted.
4.10
Management
once again extended an invitation to the union that if the striking
employees went back to work by 12h00 on 19 April
2011 they would only
be issued with final written warnings. Again, this did not yield any
positive results.
4.11
The
striking employees including the individual applicants were then
placed on suspension on 20 April 2011, with disciplinary hearings
scheduled for 3 May 2011. The individual applicants were ultimately
dismissed on 6 May 2011
[5]
The
events of 19 and 20 April 2011 according to the applicants are in
contention, hence the application to amend the paragraphs
in the
pre-trial minute which are;
Paragraph
3.23, which states that;
“
On the
19
th
of April 2011, Mr. Kgoroba Mampuru (hereinafter referred to as
Mampuru), an National Representative of SA Solidarity Union, arrived
for a meeting scheduled with the Respondent”
And
paragraph 3.24, which states that;
“
On the
20
th
of April 2011, 23 (twenty three) employees faced the following
charges:-
Gross misconduct alternatively,
misconduct in that you participated in an unprotected strike which
commenced on Wednesday 13 and
ended on Tuesday 19 April 2011; and/or
Gross insubordination alternatively
insubordination in that despite having received no less than three
(3) written ultimatums to
return to work as normal on Wednesday 13
April 2011 and a further final ultimatum to return to work by no
later than 12h00 on Tuesday
19 April 2011 you elected, for reasons
best known to you personally, to continue with your participation in
the unprotected strike.”
[6]
In
seeking an amendment, Mr. Dakalo Singo, the applicants’
attorney of record from the Wits Law Clinic, averred the following
in
his founding affidavit;
6.1
The
applicants had approached the Clinic and were assisted by another
attorney who has since left the employ of the Clinic. Singo
became
the attorney in this matter in July 2012 at a stage when a pre-trial
conference was to be convened. Singo had attended a
pre-trial
conference at the offices of the respondent’s attorneys on 13
March 2013 in the absence of counsel.
6.2
Following
the conference, he and the respondent’s attorney of record, Ms
Diepenaar undertook to make certain reversions after
having consulted
with their respective clients, more in particular in regards to the
contents of the paragraphs in contention.
6.3
Between
13 March 2013 and 12 April 2013 when the minute was eventually
finalised and filed with the Court, Singo had met and consulted
with
Mr Themba Matunjwa, one of the individual applicants, and exchanged
various correspondence with Ms. Diepenaar regarding the
contents of
the minute.
6.4
The
trial was initially set-down for 17 October 2013 but could not
proceed on account of the unavailability of the applicants’
initial counsel. The new counsel, Ms Magano attended to the matter on
17 October 2013 when it was postponed. When the matter again
commenced on 17 February 2014, and during the course of preparation
for the trial, the individual applicants brought it to the
attention
of Ms Magano that the pre-trial minute contained incorrect dates as
recorded in paragraphs 3.23 and 3.24 of the minute.
6.5
Engagements
with Mr Du Randt of the respondent to consent to the said paragraphs
being struck out altogether or to be placed under
issues in disputes
yielded no results, with Mr Du Randt indicating that he would oppose
such steps.
6.6
The
applicants’ case is that the dates in the paragraphs of the
minute were incorrect and did not amount to an accurate version
of
their case. These dates have accordingly always been issues in
dispute, and it was Singo’s contention that their recordal
as
it currently stood was either intentionally or erroneously recorded
by Ms Diepenaar who had filed a copy with the Court, or
was as a
result of oversight by himself.
6.7
He
contended that it was never his intention to record the paragraphs as
being common cause facts, and that the applicants’
statement of
case reflected the applicants’ true version of their case in
accordance with their instructions.
6.8
Singo
further submitted that the contentious paragraphs clearly
contradicted the case of the applicants’ as appears from
paragraphs 5.18 to 5.23 their statement of case. He further submitted
that the minute on the other hand disposes of the applicants’
case, and that the crux of the dispute will turn around
inter
alia
,
the issue of dates, when the strike action commenced and ended, and
the reasonableness of the ultimatum of the day preceding the
date the
final ultimatum was issued.
6.9
Those
issues were accordingly in dispute and the parties had not reached
agreement on them. It was also contended that the amendments
do not
prejudice the respondent’s case in any manner.
[7]
In
opposition to the application, Mr. Du Randt on behalf of the
respondent in his answering affidavit submitted that:
7.1
The
applicants have been represented by the same attorneys of record
since the inception of the matter, and Singo has dealt with
this
matter at all material times in relation to this application
including the time that the pre-trial meeting was concluded between
the parties on 13 March 2013, and when the pre-trial minute and
subsequent addendum thereto was concluded between the parties on
11
April 2013;
7.2
It
was unscrupulous of the attorneys of the applicants to launch the
application given its timing, and further that the attorneys
had been
silent about the concessions made in the pre-trial until the
commencement of the trial.
7.3
The
application was brought in the light of the realisation that the
applicant’s version as conceded was detrimental to their
case
and the result thereof would be that their case was frivolous. The
concessions could not have been as a result of a
bona
fide
mistake and the applicants were opportunistic in their attempt to
change their version of events at a time when they came to realise
that their defence would not stick.
7.4
The
signed pre-trial minute followed a long process including exchange of
correspondences between the legal representatives of the
parties and
after each party had an opportunity to properly consider their
respective positions. If the applicants’
attorneys/representatives
had discovered that there were contentious
paragraphs in the pre-trial minute, they had an opportunity to raise
these concerns
prior to the initial trial date in October 2013 and
again prior to the scheduled trial date in February 2014.
7.5
By
raising these concerns during the second day of the trial, the
respondent has been severely prejudiced especially since its case
was
prepared in line with the concessions made in the pre-trial minute.
Evaluation:
[8]
This
application was brought at a time when the respondent’s first
witness, Mr Pierre Anton Govea was under cross-examination.
It was
precipitated by a version being put to this witness that the
applicants would dispute the contents of paragraphs in question,
and
that in particular, a meeting was held with the union’s Mampuru
on 19 April 2011, who had thereafter given feedback to
the striking
employees on that date. This issue was also related to whether a
further ultimatum was issued on 19 April 2011, which
was communicated
to the employees, and who had in turn refused to heed to it.
Furthermore, it related to whether the individual
applicants had not
been provided with protective gear as they had alleged, hence they
had not reported for duty on that day.
[9]
The
issue of amendment to the signed pre-trial minute is significant in
that if allowed it may have implications regarding the issue
of
ultimatums issued to the applicants.
[10]
What
is disconcerting with this application however is that it was brought
at a point when Ms. Magano could not get a concession
out of Govea
with regards to these dates, and the question to be posed is whether
such an amendment can be allowed at this stage
of the proceedings,
especially if it is contended that there are material disputes of
fact surrounding these dates.
[11]
The
principles
applicable to the withdrawal of an admission made at a pre-trial
conference were comprehensively considered by Myburgh
AJ in
Chemical,
Energy, Paper, Printing, Wood and Allied Workers Union v CTP Ltd and
Another
[1]
,
and
from which I take the liberty to summarise as follows:
11.1
Rule
6 (4) of the Rules of this Court as with Rule 37 of the High Court
Rules was introduced to shorten the length of trials, to
facilitate
settlements between the parties, narrow the issues and to curb costs.
One of the methods the parties use to achieve
these objectives is to
make admissions concerning the number of issues which the pleadings
raise. Admissions of fact made at a
pre
-trial
conference constitute sufficient proof of those facts. The minutes of
a pre-trial conference may be signed either by a party
or his or her
representative
[2]
.
11.2
A
pre-trial minute is a consensual document and, in effect, constitutes
a contract between the parties.
[3]
11.3
Where
a party in a pre-trial minute abandons a point, or agrees (expressly
or by necessary implication) not to pursue / rely on
the point, or
otherwise informs the opposing party that the point will not be
relied upon, then he will not be allowed to do so
at a later stage,
unless he is able to resile from the agreement on a basis upon which
he would in law be able to resile from a
contract.
[4]
However, in the absence of special circumstances, a party cannot
resile from the agreement
[5]
.
11.4
In
order for this application to succeed, the applicants
must
show that special circumstances exist for the court to exercise its
discretion in their favour. Three requirements must be
met: firstly,
the applicant must furnish an explanation sufficiently full of the
circumstances under which the concession was made
and why it is
sought to be withdrawn; secondly, he should satisfy the court as to
his
bona
fides
;
and thirdly, show that in all the circumstances justice and fairness
would justify the restoration of the status
quo
ante
[6]
[12]
It
is accepted that once pleadings have been closed, and the parties
have concluded a pre-trial conference and filed signed minutes,
the
parties strategise and formulate their respective cases in accordance
with their pleaded cases, facts that are common cause,
and those that
are in dispute as recorded in a signed pre-trial minute. It follows
that any attempt at either amending pleadings
or the pre-trial
minutes have a detrimental and prejudicial effect against the party
that had relied on those pleadings or minutes
in preparing and
presenting its case.
[13]
The first question therefore is whether Singo in his founding
affidavit has furnished an explanation sufficiently full of the
circumstances under which the concession was made and why it is
sought to be withdrawn. Central to Singo’s submission is
that
in the light of the applicant’s case as captured in paragraphs
5.22 to 5.23, it could never have been his intention
to make the
concessions captured under the contested paragraphs of the minute. In
paragraph 5.22 of the statement of case,
the applicants state
that;
“
On or
about 19 April 2011 all the applicants and the other employees
reported for work. On this day, not one of the applicants was
able to
sign in on the system. They remained outside the respondent’s
premises until they were advised by the respondent
that they were
suspended”
And
at
paragraph
5.23,
the applicants state that;
“
A meeting
was held between the respondent and the trade union, on or about 20
April 2011. At about 11h30, a trade union representative
returned to
inform all the applicants that the respondent had given an ultimatum
to the applicants to return to work by 12:00 pm”
[14]
In
response to the above, the respondent had at paragraph 64 stated
that;
“
64
AD PARAGRAPH 5.22
“
64.1.
The contents of this
paragraph
are denied as if
specifically traversed and the Applicants are put to the proof
thereof.
64.2 On the
19
th
of April 2011 the Respondent met with Mr. Mampuru, a
senior official from SA Solidarity Union who was himself unable to
convince
the Applicants to return to work and to resume their duties
as normal”
65.
AD PARAGRAPH 5.23
65.1
The contents of this paragraph are disputed.
65.2
The meeting had indeed taken
place
at 09h30 on the
19
th
of April 2011. Mampuru informed the management representatives of the
Respondent that the
Applicants
had decided not
to resume their duties and
that
the Respondent
“must do what it had to do”. ”
[15]
Paragraphs
4.31 to 4.41 of the pre-trial minute under the rubric of “
FACTS
IN DISPUTE
”
sets out a number of disputed facts including whether it was agreed
that a meeting would take place at the respondent’s
premises at
08h30 on 19 April 2011 where the higher structures of SA Solidarity
union could address the striking employees including
the applicants;
whether Mampuru arrived one hour late for the meeting scheduled for
19 April 2011; whether the respondent once
again made an offer that
the striking employees including the applicants could return to work
as normal and be issued with written
warnings during the meeting on
19 April 2011; whether at the meeting of 19 April 2011 Mampuru made
it clear that the striking employees
including the individual
applicants could only return to work if the 16 suspended employees’
suspensions were uplifted by
the respondent; whether Mampuru was
informed at the meeting on 19 April 2011 that the disciplinary
hearings against the 16 suspended
employees would proceed as
scheduled; whether Mampuru and the striking employees including the
individual applicants conveyed to
the respondent on 19 April 2011
that the striking employees would not return to work and that the
respondent ‘
must
do what it has to do’
;
whether Mampuru at the meeting of 19 April 2011 indicated that he did
not agree with the striking employees’ viewpoint and
stance;
whether the respondent had extended its invitation to the union on 19
April 2011 that in the event that the striking employees
decided to
return to work at 12h00 on that date those employees who did so would
only be issued with a final written warning; whether
the striking
employees were suspended on 20 April 2011; and whether the applicants
had to comply with ultimatums to return to work
and were made aware
of the repercussions of their actions, as well as given an
opportunity to rectify their behaviour in return
for a lighter
sanction, on the 13
th
, 15
th
,
and 19
th
of April 2011.
[16]
Significant
throughout the facts in disputes as summarised above is that it is
not the date of 19 April 2011 that appears to be
in dispute, but the
events that took place on that date. Throughout the factual disputes
raised, the 20
th
of April 2011 came up once, and in relation to whether the
suspensions took place on that date or not.
[17]
According
to Singo, the applicants’ counsel, Ms. Magano took over the
matter in October 2013 when it was postponed. It is
therefore
inconceivable in the light of the disputed facts as opposed to those
that are common cause that Ms. Magano throughout
her consultations,
would have missed that there was an error in the paragraphs sought to
be amended. Even more significant is that
it is not known when the
applicants had raised the matter with Singo or counsel. Furthermore,
the objection came about during cross-examination
of a witness, and
surely if there was such an obvious and material error in the
pre-trial minutes, Ms Magano would have raised
it prior to the
commencement of the proceedings, and not at the stage when she could
not get a concession from a witness under
cross-examination. In these
circumstances, I am not satisfied that Singo has furnished an
explanation sufficiently full of the
circumstances under which the
concessions were made and why it is sought to be withdrawn at this
stage of the proceedings.
[18]
Further
in the light of the history of this matter, the disputed facts as
outlined in the pre-trial minute and the timing of the
raising of the
objection, it is doubted that the applicants’ application is
bona
fide
,
especially in the light of it not being disclosed as to when the
applicants had become aware of the alleged error.
[19]
In
the circumstances, given the binding nature of the pre-trial minutes,
the prejudice to be suffered by the respondent if the amendment
is
granted, the disputed facts as outlined in the pre-trial minute,
considerations of justice and fairness do not justify the application
being granted. I am further of view that contrary to Singo’s
contentions, the applicants’ case does not necessarily
collapse
on account of the concessions made in the relevant paragraphs, and
that the disputed facts as captured in the pre-trial
minute remains
to be ventilated. In conclusion, I am not satisfied that the
applicants have established special circumstances for
the court to
exercise its discretion in their favour. Accordingly, the following
order is made;
Order:
i.
The
application to amend, or strike out paragraphs 3.23 and 3.24 of
parties’ signed pre-trial minute is dismissed.
ii.
The
matter remains part-heard and the Registrar of the Court is to set it
down for continuance.
iii.
The
costs associated with this application are to be in the cause.
_________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicants:
Adv. F Magano
Instructed
by:
WITS Law Clinic (
Pro Bono
)
On
behalf of the Respondent:
J Du Randt of Du Randt Du Toit Pelser
Inc
[1]
[2013] 4 BLLR 378
(LC) at paragraphs [103] to [110]
[2]
With reference to
MEC
for Economic Affairs, Environment & Tourism, Eastern Cape v
Kruizenga and Another
2010
(4) SA 122
(SCA)
[3]
With reference to
Shoredits
Construction (Pty) Ltd v Pienaar NO & others
[1995]
4 BLLR 32(LAC)
at 34E-F.
[4]
NUMSA v
Driveline Technologies (Pty) Ltd and Another
[2007] ZALC 66
;
[2000]
1 BLLR 20
(LAC) at para 16-17
[5]
With reference
to
Filta-Matrix
(Pty) Ltd v Freundenberg
[1997] ZASCA 110
;
1998 (1) SA 606(SCA
[6]
Rademeyer v
Minister of Correctional Services
[2008]
JOL 21787
(W);
[2008] ZAGPHC 141.