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[2015] ZALCJHB 213
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Keulder v Van Heerden t/a De Wet Reitz Attorneys (JS374/2014) [2015] ZALCJHB 213 (15 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JS 374/2014
NICOLEEN YOLANDIE
KEULDER
Applicant
and
CW VAN HEERDEN t/a
DE WET REITZ ATTORNEYS
Respondent
Delivered:
15 July 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
There
are essentially three applications before the Court. The first
pertains to condonation in respect of the late filing of the
applicant’s statement of claim. The second relates to leave to
amend that statement of claim, and the third relates the striking
out
of certain portions of the respondent’s answering affidavit.
The respondent only filed an answering affidavit to the
application
for leave to amend and opposes the other two applications.
[2]
At
the hearing of these applications, the respondent’s contention
was that the application for condonation should be postponed
and
dealt with when the merits of the main claim are heard. The applicant
however seeks that all the applications be disposed of.
Background:
[3]
The
applicant was employed as a candidate attorney with effect from 21
July 2011. She was dismissed on 31 July 2013 and referred
an alleged
unfair dismissal dispute to the Commission for Conciliation,
Mediation and Arbitration (CCMA) on 21 August 2013. She
was informed
by the CCMA on 23 August 2013 that her referral was defective on
account of proof of service of the referral not having
been attached
to the referral.
[4]
The
applicant remedied the defect and applied for condonation on 21
November 2013. A condonation application was considered and
granted
by the CCMA on 10 January 2014. A certificate of outcome was also
issued and in the condonation ruling, the applicant was
advised to
refer the dispute for adjudication by this Court within 90 days from
the date of the ruling.
[5]
The
applicant filed a handwritten statement of claim on or about 10 April
2014 by way of Form 2 in terms of Rule 6 of the Rules
of this Court.
Her claim related to a retrenchment which she deemed to be
procedurally and substantively unfair; and whether she
“was
ultimately” dismissed. She sought compensation for “above
unfair practices”.
[6]
On
29 April 2014 the respondent’s attorneys of record informed the
applicant’s attorneys that even though the statement
of case
was received, a statement of defence could not be filed in the
absence of a case number having been allocated.
[7]
A
case number was ultimately obtained on 11 May 2014, and the statement
of claim was re-served the following day with a case number.
In
response to the statement of claim, the respondent contended that the
statement of case was only filed on 12 May 2014, which
was more than
90 days after the condonation ruling was issued. It was pointed out
that the applicant had not sought condonation,
and that her claim
should be dismissed.
[8]
On
10 June 2014, the applicant filed an application for condonation
wherein she had explained that on 10 April 2014 when the original
statement of case was filed, a request for a case number was
simultaneously made. Despite follow ups with the office of the
registrar
to obtain a case number, this was not issued. Her main
contention was that the respondent had received the initial statement
of
case on time
albeit
without a case number, and that it was afforded an opportunity to
file a statement of defence which it had done.
Condonation:
[9]
As
already indicated, the respondent had not filed an answering
affidavit to the application for condonation. At the hearing of
this
application the respondent had sought a postponement of the hearing
of the application for condonation to the trial date.
It is my view
that the application to postpone the hearing of the application for
condonation from the bar was clearly without
merit, especially in
circumstances where the application was filed on 22 July 2014, and
when the respondent had an opportunity
to oppose it. No justifiable
basis was laid for this application not to be considered as it was
properly before the court.
[10]
I
did not understand the respondent’s case to be that the
application for condonation was not received hence the contention
that its hearing should be postponed. The respondent’s main
contention was that its attorneys of record only got to know
of the
set down of this matter by chance when its Mr. De Wet went to inspect
the court’s file due to inactivity. All of these
issues were
raised within the respondent’s heads of argument. This was
notwithstanding the respondent’s contention
that on 7 November
2014, after it got to know of the set-down, it had through its
attorneys of record, questioned whether the applicant
had any hand in
the set-down without notice to the other side.
[11]
The
factors to be addressed when seeking condonation are as set out in
Melane
v Sandtam Insurance Co Ltd
[1]
.
In
considering such applications, the Court will exercise its
discretion, having taken into account the degree of lateness, the
explanation therefor, the prospects of success and the importance of
the case. These factors are interrelated and they are not
individually decisive
[2]
.
[12]
I
have had regard to the degree of lateness and explanation thereof.
The delay was clearly as a result of a case number not having
been
allocated to the matter by the Registrar of this Court. It is
accepted that Rule 3 (1) of the Rules of this Court requires
parties
initiating proceedings to first apply for a case number and then to
file their papers. Where however a party first files
a statement of
case timeously and then requests a case number thereafter, and where
a case number is allocated at a later stage,
it would not be in the
interests of justice in such circumstances to refuse condonation.
[13]
It
is apparent that the applicant always had intentions to lodge the
claim on time and had done so. Even if the applicant had not
acted in
accordance with the provisions of Rule 3 (1) of the Rules of this
Court, it is my view this irregular step is not as material
as to
call for a refusal to grant condonation. In these circumstances, it
would thus not be necessary to deal with other considerations
pertaining to the application.
The
application to amend the statement of case:
[14]
Following
the filing of the original statement of case by the applicant on 10
April 2014, and an answer to that statement, the applicant
served a
notice to amend on 10 June 2014. On 20 June 2014, the respondent
objected to the amendment.
[15]
With
the application to amend, the applicant essentially seeks to delete
the original statement of case in its entirety and to replace
same
with another. The amended statement of case essentially raises the
same legal issues as in the initial statement of case,
albeit
in a more concise and coherent manner. The issues that the Court is
required to determine from the factual matrix contained in
the
amended statement pertains to whether the retrenchment of the
applicant was procedurally and substantively fair.
[16]
The
grounds upon which the respondent had opposed the application were
that;
a)
The
referral to the CCMA was out of time.
b)
The
applicant was the only employee retrenched as others reached
settlement, and the CCMA should have arbitrated the dispute.
c)
The
referral to the Court was out of time.
d)
The
applicant had still not produced a copy of her statement of case with
a stamp from the Registrar of the Court.
e)
The
applicant does not seek to amend the statement of case but wants to
delete it completely and rearrange its paragraphs.
[17]
The
first four grounds are clearly without merit in the light of the
background set out in this judgment. The CCMA had considered
and
granted condonation in respect of the late referral of the dispute
and had determined that the matter should be adjudicated
by this
Court. The issue of the late referral of the dispute to this Court
has been dispensed with, and the Court is in possession
of statement
of case with the Registrar’s stamp on it. Ground (e) of the
objections is unclear as to whether the objection
pertains to the
initial statement of case being deleted completely or the fact that
its paragraphs were being ‘rearranged’.
[18]
The
principles applicable to applications to amend pleadings were
elucidated in
South
African Transport and
Allied
Workers Union and Another v South African Airways (Pty) Ltd
[3]
where this
Court
held
that:
“
The
basic principle is that the Court has discretion to exercise in
considering whether or not to grant an amendment sought by the
applicant. It is also the general principle of our law that amendment
of pleadings will generally be granted where such an amendment
will
not prejudice the other party
”
[19]
In
Moolman
v Estate Moolman & another
[4]
where
the Court held that:
“
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 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 filed.”
[20]
It is further trite that in exercising its discretion to allow the
amendment, the Court will further take into account
the
interests of justice as between both parties, and the need to ensure
a full and proper ventilation of the dispute between the
parties. The
Court is enjoined to further consider whether the application to
amend is
mala
fide
[5]
.
The Labour Appeal Court in
Sondorp
v Ekrhuleni Metropolitan Municipality
[6]
in
considering whether the Labour Court should have granted the
application to amend a statement of case further held that:
“
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.”
[21]
Further principles affirmed in
Sondorp
,
by the Labour Appeal Court are that the Court will allow the
amendment of a pleading or prayer where the main issue between the
parties remains the same
[7]
.Whilst
the Court will not readily grant an amendment where the granting
thereof would introduce a new cause of action, the courts
have
recognized that in many cases it may be convenient to incorporate
fresh causes of action in original proceedings provided
that an
amendment which introduces a new cause of action will only be allowed
if no prejudice is occasioned thereby
[8]
.
There is no objection in principle to a new cause of action or
defence being added by way of amendment, even though it has the
effect of changing the character of the action and necessitating the
reopening of the case for fresh evidence to be led, where
that is
necessary to determine the real issue between the parties
[9]
.
There should be a distinction made between an amendment introducing a
new cause of action (i.e. the right of action) and one which
merely
introduces fresh and alternative facts supporting the original right
of action
[10]
.
[22]
The amendment as already stated, restates the applicant’s claim
as pertaining to the substantive and procedural fairness
of her
retrenchment. Thus no new cause of action arises from the amendments,
and the only difference between the initial and amended
statement of
case is that the latter addresses the applicant’s claim in more
precise and coherent terms.
[23]
As correctly pointed out on behalf of the applicant, the respondent’s
answering affidavit does not raise any prejudice
it may suffer as a
consequence of the amendments, and I fail to appreciate what the
respondent implies when it states that the
‘rearrangement’
of the statement of case ‘takes the parties back to square
one’.
[24]
The respondent’s further objection was based on its view that
the amendment was not
bona fide
. In this regard, the
respondent made reference to the fact that it could not cede the
applicant’s articles as she was employed
at ABSA Trust, and
that despite intense negotiations, the applicant seeks to ‘
stretch
out litigation to hold out for more money’
. This contention
cannot in my view form a basis for a conclusion to be made that the
application is
mala fide,
and bears little bearing to the
applicant’s main claim. To this end, the Court should exercise
its discretion in favour of
the amendment as sought.
The
application to strike out:
[25]
The applicant seeks the striking out of paragraphs 9.2, 9.3, 9.6,
16.1 and 16.2 of the respondent’s answering affidavits
as well
as annexures “OBJ12” to “OBJ13; “OBJ14 to
OBJ15” and “OBJ31” to “OBJ34”
as
inadmissible evidence in that it contains privileged matters. She
also seeks the striking out of paragraphs 9.4 and 16.3 to
the
respondent’s answering affidavit as well as annexure “OBJ23”
to “OBJ24” as irrelevant.
[26]
There is no provision in the Labour Court Rules for the striking out
of matters from affidavits. However, it is trite that
where the
Labour Court Rules are silent on a particular issue, the Uniform
Rules of the High Court may be applied
[11]
.
In this regard, Rule 6(15) of the Uniform Rules of Court provides
that:
“
The court
may on application order to be struck out from any affidavit any
matter which is scandalous, vexations or irrelevant,
with an
appropriate order as to costs, including cost as between attorney and
client. The court shall not grant the application
unless it is
satisfied that the applicant will be prejudiced in his case if it is
not granted.”
[27]
The Labour Appeal Court in
PSA
v Minister Department of Home Affairs
further held that an application to strike out can be based on any
one or all three grounds mentioned above, or on other grounds
not
mentioned in Rule 6(15).
[12]
Thus the grounds mentioned in Rule 6 (15) are not exhaustive, and may
include objections based on evidence that is privileged.
[28]
An application to strike out matters is an interlocutory application
or an application incidental to pending proceedings, and
should thus
in terms of Rule 11 of the Labour Court Rules, be brought on notice
supported by affidavit
[13]
.
[29]
The respondent pointed out that only the Notice of Motion in respect
of the application to strike out was filed. The applicant
did not
file an affidavit in this regard. As it was pointed out in
PSA
v Minister Department of Home Affairs
[14]
,
the facts and circumstances of the case will dictate whether it is
necessary for the notice to be supported by an affidavit. In
this
case, the basis of seeking to strike out the relevant paragraphs and
annexures was laid out in clear terms in the applicant’s
replying affidavit. It is therefore my view that in such
circumstances, it would not have been necessary to repeat the same
assertions
in a separate supporting affidavit.
[30]
In respect of the above, paragraphs 9.2, 9.3, 9.4, 9.6, 16.1, 16.2
and 16.4 were contended to be in reference to discussions
held
between the parities legal representatives and that annexures “OBJ12”
to “OBJ15” and “OBJ31”
to “OBJ34”,
were letters exchanged between the representatives subsequent to the
dismissal in an attempt to resolve
the matter. It was further
contended that these annexures were accordingly marked ‘without
prejudice’, and were thus
privileged.
[32]
It was conceded on behalf of the respondent that at best, the
applicant could only argue that the contents of the said paragraphs
and annexures were not relevant. In the light of this concession, I
fail to appreciate the persistence with the opposition to strike
these out. It is indeed correct that the issues raised in these
paragraphs and annexures are not pertinent to the resolution of
the
main dispute and were also matters that are privileged between the
parties. I am in agreement with the applicant’s contentions
that they should be struck out from the answering affidavit on
account of not being relevant or on the basis of being privileged.
I
have further considered the issue of costs, and I am of the view that
considerations of law and fairness militate against such
an order
being made.
Order:
i.
The
late filing of the applicant’s statement of case is condoned.
ii.
The
application to amend the statement is granted.
iii.
Paragraphs
9.2, 9.3, 9.4, 9.6, 16.1, 16.2 and 16.4 of the respondent’s
answering affidavit, together with its annexures “OBJ12”
to “OBJ15” and “OBJ31” to “OBJ34”
are struck out.
iv.
There
is no order as to costs.
_________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Adv. H Viljoen
Instructed
by:
Metclafe Attorneys
On
behalf of the Respondent:
Adv C Roodt
Instructed
by:
De Wet Reitz Attorneys
[1]
1962 (4) SA 531 (A)
[2]
At 532B-E
[3]
(2010) 31 ILJ 1938
at page 1942. See also In
MacDuff
& Co v Johannesburg Consolidated Investments Co Ltd
(1923 TPD 30
, where the Court held that:
“
However
negligent or careless may have been the first omission and however
late the proposed amendment, the amendment should be
allowed if it
can be made without injustice to the other side. There is no
injustice if the other side can be compensated by
costs.”
[4]
1927 CPD 27
at 29
[5]
Transport &
Allied Workers Union & another v SA Airways
(
supra
)
[6]
[2013] 9 BLLR 866
(LAC) at para [34]
[7]
At para [48]
[8]
At para [45]
[9]
At para [50]
[10]
At para 51
[11]
PSA v Minister
of Department of Home Affairs & Others
Case
no: JA 90/11 at para [7]
[12]
At para [12]
[13]
PSA v Minister
of the Department of Home Affairs & Others
at para [10]
[14]
At para [14]