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[2017] ZALCJHB 225
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Mazibuko and Others v JJF Construction CC and Others (JS1016/16) [2017] ZALCJHB 225 (13 June 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Of
interest to other judges
Case
no: JS 1016/16
In
the matter between:
Emmanuel
MAZIBUKO & 44 others
Applicants
and
JJF
CONSTRUCTION CC
First
respondent
JJF
READYMIX (PTY) LTD
Second
respondent
JJF
PLANT HIRE CC
Third
respondent
JPH
PLANT HIRE
T/A
JJF PLANT HIRE CC
JJF
ROOFING CC
JJF
LOCHNER
Fourth
respondent
Fifth
respondent
Sixth
respondent
Heard
:
21 April 2017
Delivered
:
13 June 2017
Summary:
Exception – applicants given opportunity to amend statement of
claim.
RULING
ON EXCEPTION
STEENKAMP
J
Introduction
[1]
The applicants are 45 former employees of one or more of the six
respondents. The respondents are all under the control of the
sixth
respondent, Mr JJF Lochner. All of the respondents carry on business
in the building and plant hire trades from the same
premises in
Springs.
[2]
The applicant’s claim that they were all dismissed, ostensibly
for operational requirements, on 2 December 2016. They
say that the
dismissal was automatically unfair, as the real motive or primary
reason was because of the membership of a trade
union. Alternatively,
they claim that the dismissal was in any event procedurally and
substantively unfair.
[3]
The respondent are all represented by Du Randt, Du Toit & Pelser
attorneys. They have raised a number of exceptions.
Exceptions
[4]
The overriding exception raised by the respondents is that the
statement of claim is vague and embarrassing because various
causes
of action have been initiated against all six respondents. Five of
them are either close corporations or companies and therefore
separately registered legal entities. They say that it is unclear
which applicants have been employed by which respondents and
why all
six respondents should be liable to all of the applicants in respect
of all the various alleged causes of action.
[5]
The respondents further raise the following specific exceptions:
5.1
The
applicants have not pleaded the facts or complied with the procedural
requirements in support of a referral or application in
terms of
section 189A(13) of the Labour Relations Act.
[1]
5.2 There is no proof
that the matter has been referred to conciliation.
5.3
The
applicants have not pleaded the facts with sufficient particularity
to substantiate a claim in terms of s 74(2) of the Basic
Conditions
of Employment Act.
[2]
More
particularly, the respondents are not in a position to determine
whether any part of the claims may have prescribed.
5.4 The applicants have
not identified which of them were employed by which of the
respondents.
5.5 The applicants claim
that they were “laid-off” without pay and that they have
a contractual claim for wages in terms
of s 77 of the BCEA. They have
not pleaded the details of the employment contracts on which they
rely.
5.6 One of the
applicants, TE Mamhunze, claims refunds for Unemployment Insurance
Fund (UIF) contributions. He does not set out
the basis on which this
court has jurisdiction to adjudicate such a claim.
5.7 The applicants claim
alleged unpaid amounts of overtime pay, pay for Sunday work and pay
for public holidays. They do not state
the dates on which they are
alleged to have worked overtime and the total number of hours in
respect of each of those days.
Exceptions raised by the
applicants in turn
[6]
The applicants, in turn, have raised an “exception to the
exception”. They say that the respondents did not indicate:
6.1 the basis upon which
they claim that this court lacks jurisdiction to entertain the
applicants’ claims;
6.2 that the applicants
are not the former employees of the respondents;
6.3 that all six
respondents are not correctly cited; and
6.4 that an application
for joinder should have been made.
Evaluation / Analysis
[7]
I shall
deal first with the applicants’ exception. Although this is an
unusual step, since an exception itself constitutes
a pleading, the
courts have entertained an “exception to an exception”.
[3]
An exception is bad in law if it does not properly set out the
grounds on which it is based.
[8]
Having said that, I do not agree with the applicants that the
respondents have not properly set out the grounds on which they
based
their exceptions. The have stated the grounds properly; whether they
should succeed, is a different question.
[9]
The general
principles governing exceptions are summarised by Erasmus:
[4]
(a) In each case
the court is obliged first of all to consider whether the pleading
does lack particularity to an extent amounting
to vagueness. Where a
statement is vague it is either meaningless or capable of more than
one meaning.
(b) If there is
vagueness in this sense, the court is then obliged to undertake a
quantitative analysis of such embarrassment
as the excipient can show
is caused to him or her by the vagueness complained of.
(c) In each case an
ad hoc ruling must be made as to whether the embarrassment is so
serious as to cause prejudice to the
excipient if he or she is
compelled to plead to the pleading in the form to which he or she
objects. A point may be of the utmost
importance in one case, and the
commission thereof may give rise to vagueness and embarrassment, but
the same point made in another
case be only a minor detail.
(d) The ultimate
test as to whether or not the exception should be upheld is whether
the excipient is prejudiced.
(e) The onus is on
the excipient to show both vagueness amounting to embarrassment and
embarrassment amounting to prejudice.
(f) The
excipient must make out his or her case for embarrassment by
reference to the pleadings alone.
(g) The court would
not decide by way of exception the validity of an agreement relied
upon or whether a purported contract
may be void for vagueness.”
[10]
In
Harmse
v City of Cape Town
[5]
the Court noted that the Rules of this Court “do not require an
elaborate exposition of all facts in their full and complex
detail –
that is the role of evidence, whether oral or documentary.” And
what is more, the pre-trial conference provides
an occasion “for
the detail or texture of the factual dispute to begin to take shape”.
[11]
Bearing that cautionary note in mind, and bearing in mind that the
parties in this case have not yet had a pre-trial conference,
the
Court must decide if the respondents are prejudiced because of the
vagueness in the statement of claim as it stands.
[12]
Firstly, I agree that the applicants have not set out the factual or
legal basis for their reliance on s 189A with sufficient
particularity to enable the respondents to plead meaningfully
thereto. They say that they were dismissed for operational
requirements
on 2 December 2016. But apart from an oblique reference
to an earlier request for a facilitation process in terms of s 189A,
they
do not explain why this dismissal falls within the parameters of
s 189A; or, if it does, why s 189A(13) is applicable in circumstances
where they have already been dismissed.
[13]
The applicants have also not alleged that they the dispute (or those
disputes that require conciliation) have been conciliated.
That is a
jurisdictional prerequisite. They need to do so.
[14]
I also agree that the applicants have not pleaded the facts with
sufficient particularity to substantiate a claim in terms
of s 74(2)
of the Basic Conditions of Employment Act. The alleged unlawful UIF
deductions and overtime payments are not pleaded
with sufficient
particularity. It is so that some of the documentation will have to
be provided by the employer or employers; more
of that later.
[15]
Perhaps the
most important and overriding exception is that the applicants have
not set out which of them was employed by which
employer. The
applicants are all listed, together with their clock numbers. The
respondents do not deny that they are all under
the control of JJF
Lochner – either as sole owner, sole director or sole member --
and that they operate from the same premises.
The applicants say that
they worked for the different entities interchangeably. That is,
perhaps, a matter for evidence; but more
importantly, it is something
that is in the peculiar knowledge of the respondents. They are
compelled to have records of their
employees in terms of the BCEA;
they must know who worked for whom, especially in the light of having
been furnished with clock
card numbers. That is typically something
that can be established at a pre-trial meeting; but even more simply,
it can be done
by a proper and courteous exchange of documents and
information even before such a conference. The applicants must be
given an
opportunity to provide these details once the employer has
given them the necessary information; it is, in my view, incumbent
upon
the employer in a court of equity to help the court to come to
the truth by providing the information within its knowledge. It
cannot simply sit back and wait for the applicants to prove even the
underlying common cause facts. As Zondo JP commented in
NUM
v Hernic Exploration
[6]
,
“
in certain
circumstances it is possible for the employer to know which employees
are concerned in proceedings or in a referral even
though the union
has not furnished the names of the employees. For example, where an
employer dismissed all its employees on a
certain date, he would know
which employees the union was referring to if it referred to ‘all
employees dismissed’
on that date by the employer. A
failure by the union to give the names of the employees concerned
would not affect the jurisdiction
of the CCMA nor that of the Labour
Court but may affect issues such as relief because, for example, in
defending the unfair dismissal
claim the employer may well wish to
put up specific facts relating to specific individuals which he
cannot do if he does not know
who the dismissed employees are.”
[16]
And in
Board of
Executors Ltd v McCafferty
[7]
Satchwell
J pointed out that “[a] multiplicity of employers in certain
circumstances and on appropriate and objective facts
is not unknown
to this court.”
[17]
It must
also be borne in mind that the applicants may be able, through
evidence, to pierce the corporate veil and show the interrelationship
and liability of all the respondents. In
Zeman
v Quickelberge
[8]
this
Court relied on the judgment of the LAC in
Footwear
Trading cc v Mdlalose
[9]
, summarising the facts of that case, to point out the following:
“
The respondent was
dismissed. She referred her dispute to the CCMA, obtained an award in
her favour, and asked for her employer,
Fila (Pty) Ltd, to pay her
the compensation as awarded. Fila declared that it was dormant as a
company and that Footwear Trading
had taken over certain of its
assets. The respondent sought an order declaring Footwear and Fila to
be co-employers and as such
jointly and severally liable to comply
with the award. Footwear filed an answering affidavit stating that
Fila was a separate juristic
entity and that it merely performed
administrative functions for Fila.
The court
a quo
found that Footwear was jointly and severally liable with Fila for
complying with the order.
On appeal the Labour
Appeal Court upheld the principle that if circumstances warrant it a
court will be justified in regarding a
company as a separate
personality in order to fix liability elsewhere for what are
ostensibly acts of the company. This is referred
to as lifting or
piercing the corporate veil. In determining whether or not it is
appropriate to lift the veil in the given circumstances
the court
quoted with approval from
Dadoo Ltd & Others vs Krugersdorp
Municipal Council
, where the court confirmed the fundamental
doctrine that the law in these circumstances will have regard to the
substance rather
than the form of things.
Nicholson JA went on to
say that the general principle underlying the lifting of the
corporate veil is that when a corporation is
the mere alter ego or
business conduit of a person it may be disregarded.
While the corporate veil
is normally lifted to identify the shareholders or individuals who
are the true perpetrators of a company’s
acts, the court
extended the principle to situations where companies and close
corporations are juggled around like “puppets
to do the bidding
of the puppet master.”
The willingness of our
courts, and in particular the Industrial and Labour Courts, to pierce
the veil is not new and there have
been a number of decisions in the
old Industrial Court as well as more recently in the Labour Court
that have upheld the principle:
Substance and not form is
determinative.
The liquidation of a
close corporation and the simultaneous creation of a second one to
take its place was a deceptive device used
to get rid of the
workforce without having to retrench them.
In another instance it
was held that the business of a close corporation was so enmeshed
with that of the respondent company that
the respondent could be
regarded as the real employer of the applicant.
It is not necessary for
the purposes of establishing an employment relationship formally to
pierce the corporate veil.”
[18]
The contractual claim for wages during a “lay-off” period
is based on s 77 of the BCEA. The respondents say that
the applicants
have not pleaded the details of the employment contracts on which
they rely. But again, the respondents have those
contracts. Once they
provide copies, at a pre-trial meeting or earlier, the applicants
will be able to state with more clarity
what their starting dates
were and what amounts they claim; and the respondents can respond
thereto. The respondents are not seriously
prejudiced by the fact
that the applicants have not put up the very documents that are in
the respondents’ possession.
[19]
With respect to the overtime claims, the same considerations apply.
The applicants must set out the claims with more clarity;
but the
respondents cannot claim ignorance and refuse to provide them with
the relevant information and documents in the respondents’
possession.
[20]
The applicants have indeed not stated on what basis this Court has
jurisdiction to adjudicate the claims in respect of UIF.
They must do
so in their amended statement of claim.
[21]
The same holds true for the allegation of automatically unfair
dismissal. The applicants have claimed that “the respondents”
refuse to recognise the applicants’ chosen trade union and
victimised them for trade union membership, but it is not clear
if
this allegation holds true for one, some, or all of the respondents.
Conclusion
[22]
The
exceptions are upheld; but the applicants must have an opportunity to
amend their statement of claim. In order to enable them
to do so, the
respondents cannot simply sit back. They have to provide the
underlying and uncontentious information that is within
their
peculiar knowledge. That will enable the parties to set out their
cases with greater clarity and to expand on that in the
pre-trial
conference; and it will provide a clearer picture to the Court before
the parties start leading their evidence.
I intend to
incorporate such an order in my ruling which, I believe, will help
rather than hinder the interests of justice. I do
so, mindful of the
underlying policy of the LRA that “disputes should be dealt
with on their merits rather than on technicalities”.
[10]
[23]
I take into account that the applicants are not legally represented
and that this is merely an initial skirmish in a long battle.
A costs
order at this stage is not called for in law or fairness.
Order
[24]
I therefore make the following order:
24.1 The respondents’
exceptions are upheld.
24.2 The applicants must
request from the respondents the specific documents they need in
order to address the exceptions, such
as their contracts of
employment, by 23 June 2017.
24.3 The respondents must
provide all relevant documents by 7 July 2017.
24.4 The applicants must
deliver an amended statement of claim by 21 July 2017 and the
respondents must respond by 4 August 2017.
24.5 The parties must
convene a pre-trial meeting and file a pre-trial minute by 18 August
2017.
_______________________
Steenkamp
J
APPEARANCES
APPLICANTS:
D
Maluleke (trade union official).
RESPONDENTS:
Linda
Erasmus
Instructed
by Du Randt, Du Toit & Pelser.
[1]
Act
66 of 1995 (the LRA).
[2]
Act
75 of 1997 (BCEA).
[3]
Theophilopoulos
et al,
Fundamental
Principles of Civil Procedure
(LexisNexis 2 ed 2008) at 218, citing
Buthelezi
v Minister of Bantu Administration
1961
(3) SA 256 (N).
[4]
Superior
Court Practice
B1-154.
[5]
[2003]
6 BLLR 557
(LC) par 8.
[6]
[2002]
ZALAC 1
par 41.
[7]
[1997]
7 BLLR 835
(LAC) par 74.
[8]
(2011) 32
ILJ
453 (LC).
[9]
[2005]
5 BLLR 452 (LAC).
[10]
Davidson
v Wingprop (Pty) Ltd
(2010)
31
ILJ
605 (LC) par 31.