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[2015] ZALCCT 21
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Du Toit v Cape west Coast Biosphere Reserve (C790/2014) [2015] ZALCCT 21 (11 March 2015)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C790/2014
DATE: 11 MARCH 2015
In the matter between:
Janette DU
TOIT
.......................................................................................................................
Applicant
And
CAPE WEST COAST BIOSPHERE
RESERVE
...............................................................
Respondent
J U D G M E N T
STEENKAMP, J:
The applicant in this matter, Ms Du
Toit, raises an exception to a counterclaim brought by die
respondent, her employer, the Cape
West Coast Biosphere Reserve,
which is a non-profit organisation (NPO).
The main issue before the Court is a
claim by the applicant, who was the CEO of the respondent, for
specific performance arising
from her contract of employment. The
respondent, in turn, brought a counterclaim on the basis that the
applicant had made certain
fraudulent misrepresentations causing the
respondent to suffer damages.
The parties are ad idem that the
contract of employment that governed the relationship between the
parties contained a clause which
set out the basis of commission
payments to her. That clause, which is Clause 4.2 to the contract of
employment, specifies that
she would be paid 10% commission on all
funds raised for the employer,
“…provided that such
commission shall only be paid on government, parastatal, NGO or other
similar national or international
sources, where such sponsors/donors
specifically provide for such payment by way of commission,
administration fee or otherwise.”
In his argument before Court today, Mr
Aggenbach made it clear that that is the only condition precedent
that governs the contract
of employment. However, what the
applicant excepts to is:
1. what it calls a “further
condition” pleaded by the respondent; and
2. the issue of the claim of fraudulent
representation.
I will deal with them separately.
The issue of the so-called variation or
further conditions arises from paragraph 6 of the respondent’s
response which is specifically
incorporated in the counterclaim.
That paragraph deals both with the alleged fraudulent
misrepresentation and the so-called conditions.
The respondent
pleads that “on or about” 12 April 2013 the applicant in
her executive position as CEO fraudulently
misrepresented to one
Rauch, a non-executive director, that there were funds available to
pay her commission and that she was entitled
to that commission.
The respondent goes on to say that on
the “abovementioned date”, without specifying whether
that was on the 12th of
April or about the 12th of April 2013, Rauch,
acting ultra vires and on the fraudulent misrepresentation of the
applicant, Rauch
authorised her to make payment to herself “but
on the conditions that the applicant: (1) not refer to the payment as
‘management
fees’, but as commission as only the
respondent is entitled to management fees as the ‘implementing
agent’ and/or
‘implementer’; (2) obtain written
authorisation from the department, allocating the alleged commission
due to her;
(3) inform the Board of the alleged commission due to
her; and (4) obtain approval of the Board that the alleged commission
is
due and payable to her.”
The respondent says that Rauch did not
have the authority to unilaterally authorise the payments and that
the applicant “at
no material time executed the conditions set
out above.”
The excipient maintains that, although
Mr Aggenbach says that there was no variation of the contract of
employment, these supplementary
conditions imposed by Rauch are not
pleaded in a way that makes it possible for the applicant to respond
thereto. Specifically
she points out that the respondent has not
pleaded location or whether the contract was written or oral. I
leave aside for the
moment the issue of authority as Mr Aggenbach has
specifically pointed out that the respondent’s case is that
Rauch had no
authority to impose those further conditions or
stipulations.
The principles in this respect are
trite. Both parties pointed to the relevant case law and it is
perhaps convenient to refer simply
to the one authority that both Mr
Ackermann and Mr Aggenbach referred to, and that is Levitan v New
Haven Holiday Enterprises CC
1991 (2) SA 297
(C) at 298h-299c where
the Court stated:
“Prejudice to a litigant faced
with an embarrassing pleading must ultimately lie in an ability
properly to prepare to meet
his opponent’s case.”
The question then is whether the
applicant in this case is able to properly prepare for trial and to
properly plead to the respondent’s
counter claim. Much of what
Mr Aggenbach submitted is based on interpretation of the pleadings
after the fact, for example that
the documents that are still to be
discovered will make it clear where and how Mr Rauch imposed these
further conditions on the
applicant.
The applicant, as I see it, is not at
this stage placed in a position where she can properly plead thereto.
She is therefore prejudiced.
The respondent, on the other hand, will
suffer no prejudice by the simple means of amending its response and
counterclaim. I
am not persuaded that the counterclaim should simply
be struck out, but I am of the view that the respondent should be
given the
opportunity to remedy that defect.
With regard to the issue of fraudulent
misrepresentation, that allegation is in itself based on the prior
representations allegedly
made by the applicant to Rauch. What is
not clear is, for example, whether the applicant is alleged to have
intentionally made
fraudulent representations; and when the
respondent says that the applicant “at no material time
executed the conditions
set out above” it is also not clear
whether that was wilful and intentional and whether the applicant in
fact represented
to Rauch whether she had executed those conditions
or not, despite the fact that the respondent says he had no authority
to impose
them in first place.
In that regard as well, the applicant
is embarrassed from pleading properly to that allegation and I am
again of the view that that
is a defect that can be simply be
remedied by way of an appropriate amendment which will lead to no
prejudice to either party and
will place both parties and the Court
in a position to properly consider these matters at trial.
As far as costs are concerned I take
into account that the applicant is represented pro bono and that this
is simply a preliminary
skirmish in a further battle. In law and
fairness I do not think it appropriate to impose a costs order on
either party at this
stage.
I therefore make the following ruling:
1. The applicant’s exception to
the respondent’s counterclaim is upheld.
2. The respondent must file an amended
response and counterclaim within 15 days.
3. There is no order as to costs.
STEENKAMP, J
APPEARANCES
APPLICANT (Excipient): L W Ackermann
Instructed by De Jong attorneys.
RESPONDENT: M Aggenbach
Instructed by K J Bredenkamp