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[2017] ZALCJHB 276
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Mainganya v Improchem (Pty) Ltd and Another (JS512/13) [2017] ZALCJHB 276 (1 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 512/13
In
the matter between:
ISAAC
MAINGANYA
Applicant
and
IMPROCHEM
(PTY) LTD
HENKEL SA (PTY) LTD
First
Respondent
Second
Respondent
Heard:
12 August 2016
Delivered:
01 August 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction
and background:
[1]
In this matter, both the first respondent (Improchem) and the second
respondent (Henkel) raised an exception to the applicant’s
(Mainganya) amended statement of case. Mainganya’s claim has a
protracted history which is summarised below.
[2]
Mainganya was employed by Improchem in May 2012 in terms of a
fixed term/temporary employment contract as an operator.
He was
placed at Henkel’s site, who was a client. Mainganya’s
fixed term contract was renewed in January 2013
for a further
one-year period. On 30 January 2013 however, Henkel served
a notice to terminate its contract with Improchem.
In return,
Improchem issued a notice of termination of the fixed term contract
with Mainganya by giving one month’s notice.
[3]
Mainganya referred a dispute against Improchem to the Commission for
Conciliation, Mediation and Arbitration (CCMA) in February 2013
alleging unfair suspension which he alleged arose on 7 February 2013.
On 12 March 2013, the CCMA issued a ruling
consolidating
the initial suspension dispute with a further dispute pertaining to
an alleged unfair dismissal relating to harassment
and
discrimination, which was referred by Mainganya on 19 February 2013.
On 28 March 2013, the CCMA issued
a certificate of outcome,
indicating that the dispute pertaining to the alleged unfair
discrimination remained unresolved.
[4]
Mainganya had also referred
another alleged unfair dismissal dispute (section 189 of the Labour
Relations Act
[1]
(LRA) dispute) to the National Bargaining Council for the Chemical
Industry, which dispute came for conciliation on 4 April 2013.
The dispute could not be resolved and Mainganya had referred it for
arbitration. Following arbitration proceedings, that dispute
was
dismissed on 4 June 2013. Mainganya has since filed an
application to review and set aside that arbitration award.
That
application was still pending before this Court.
[5]
Following the issuing of the
certificate of outcome by the CCMA on 28 March 2013,
Mainganya filed a statement of claim
on 7 June 2013 in
terms of which he had alleged unfair discrimination under section 6
(3) of the Employment Equity Act
[2]
(EEA); and an automatically unfair dismissal dispute under section
187 (1) (h) of the LRA. He had claimed compensation and damages
from
Improchem.
[6]
On 14 October 2013, Improchem raised an exception to
Mainganya’s statement of claim. That exception was upheld
by
Cele J on 4 December 2013. Mainganya was further ordered to
amend his statement of claim within 40 days from the date
of the
court’s order.
[7]
On 23 January 2014, Mainganya commenced joinder proceedings
against Manie Botha (Botha) and Henkel. Botha is or was
Henkel’s
Operations Manager. The application was granted by Prinsloo AJ (As
she then was) on 14 November 2014.
Mainganya was further
ordered to serve his statement of case at the joined parties.
[8]
Despite having sought the joinder, Mainganya on 3 September 2015,
filed a notice of motion, seeking the separation
of his case against
Botha and Henkel from that against Improchem, on the basis that the
two had not opposed his claim. It is not
clear as to whether that
application was pursued.
[9]
On 21 September 2015, Mainganya filed what appears to be an
amended statement of claim. Improchem had filed and served
its
statement of defence on 28 November 2014. The matter
somehow got to be enrolled on the unopposed roll on 9 June 2015
but was removed as both Improchem and Henkel had filed statements of
defence.
[10]
On 27 November 2014,
Mainganya filed a further notice of amendment. This was followed by
yet another statement of claim
on 16 November 2015, and it
is not clear as to whether this is yet another amendment. On
18 November 2015,
Improchem filed its statement of defence
and notice of exception. Henkel also filed its exception in terms of
Uniform Rule 23
[3]
.
The exception is based on the ground that Mainganya had not laid the
basis for a cause of action.
The
grounds of exception and evaluation:
[11]
I did not understand Mainganya’s case to be that he was not
employed by Improchem and was assigned to its client, Henkel
(Pty)
Ltd.’s site. He had further alleged that he was assaulted by
Botha of Henkel, who had also verbally and racially abused
him. In
the light of these incidents he alleged unfair discrimination and
automatically unfair dismissal, and seeks damages in
the amount of
R1.5 million and 24 months’ compensation. Thus, his claim is
grounded on the provisions of section 6 (3) and
60 of the EEA, and
section 187 (1) (h) of the LRA.
[12]
An exception refers to a legal objection intended to address a defect
inherent in the other party’s pleadings. Where
it is alleged
that the pleadings lack averments, which are necessary to sustain an
action or defence, the litigant is entitled
to take an exception to
have the action or defence dismissed even before the merits of the
matter are considered. I have had regard
to the grounds for exception
as raised by both Improchem and Henkel, and I agree that they are all
sustainable.
[13]
In finding that the exceptions should be upheld, it is taken into
account and appreciated that Mainganya has always represented
himself
and had personally filed his pleadings, and particularly his
statement of case by utilising the pro-forma form issued by
the
office of the Registrar of this Court. Notwithstanding these
problems, a party brought to court is entitled to know what the
basis
of the litigant’s claim is, in order to put up a proper
defence.
[14]
First, I did not understand it to be Mainganya’s case that his
employment was not with Improchem. In these circumstances,
and to the
extent that he had alleged that the unfair discrimination and
harassment emanated from the conduct of Henkel or Botha,
these were
clearly not his employers, and it is therefore correct as stated by
the respondents that the provisions of the EEA are
only applicable as
between employers and employees or applicants for employment. The
implications therefore are that it would be
difficult for Mainganya
to convince the Court that it has jurisdiction to determine his
alleged unfair discrimination claim.
[15]
A second consideration is that
in his amended statement of claim, Mainganya’s did not disclose
a cause of action against Henkel,
Botha or Improchem as contemplated
in the EEA. It is trite that a complainant alleging unfair
discrimination within the meaning
of s 6(1) of the EEA, must
establish that the differential treatment complained of, amounts to
discrimination that is unfair
[4]
.
Thus, it is required of the complainant to not only allege the
discrimination but also to link the differentiation to a listed
ground. Sadly, Mainganya’s amended statement of claim failed to
establish how the discrimination came about, and if so how
it was
unfair. As already stated, on Mainganya’s own version, any form
of discrimination or harassment complained of appears
to relate to
the conduct of Botha or Henkel. As to how this conduct could be
imputed to his employer, Improchem for the purposes
of the
application of section 6 of the EEA, or how a compensation amount of
24 months can be made is not clear from the amended
statement of
claim.
[16]
Regarding the claim pertaining to an alleged automatically unfair
dismissal, and to the extent that Mainganya alleged that
there was a
breach of the Protected Disclosure Act, it is again not apparent from
the amended statement of claim as to the basis
of this allegation. As
I understand his case, the claim emanated from the fact that he had
allegedly complained about the conduct
of Botha and was subsequently
suspended from duty and forced to go on ‘special leave’
and thus victimised. The Court
has jurisdiction to determine claims
emanating from the provisions of section 187 (1) (h) of the LRA. As
to whether there is a
case for Improchem to answer to in regard to
this claim however is still not clear from the amended statement of
claim.
[17]
Other than the flaws pointed out in the statement of claim, Mainganya
further seeks damages in the amount of R1.5 million.
This amount is
however not quantified and it is not known on what basis that amount
should be due to him. It appears that these
figures were merely
thumb-sucked.
[18]
On the whole therefore, Mainganya’s particulars of claim are
clearly excepiable. His contentions in respect of the alleged
discrimination, alleged automatically unfair dismissal or even the
damages and compensation amount claimed are clearly vague,
embarrassing and lacking in particularity.
[19]
Mainganya was afforded an opportunity after the previous exceptions
were held to amend his statement of claim, in order for
the first and
second respondents to understand what his claim was all about and to
appropriately respond in that regard. The amended
statement of claim
clearly failed, despite a second opportunity being afforded to him,
to make averments necessary to disclose
or sustain a cause of action
as against the respondents.
[20]
It was argued on behalf of both Henkel and Improchem that in the
light of the statement of case being excepiable, Mainganya’s
claim should be dismissed, or that in the alternative, the pleadings
excepted to should be set aside. I have already indicated
that
Mainganya is representing himself in these proceedings and had also
formulated, filed and served his own papers. To the extent
that this
Court has jurisdiction to determine his alleged automatically unfair
dismissal, considerations of equity dictate under
the circumstances
that he should be afforded a further opportunity to amend his
statement of case.
[21]
I have further had regard to the requirements of law and fairness and
I am of the view that notwithstanding my order as below,
a cost order
is not warranted.
Order:
[22]
Accordingly, the following order is made;
1.
The exceptions raised by the First and Second Respondents are upheld.
2.
The Applicant has not established a cause of action in respect of his
alleged
unfair discrimination claim.
3.
The Applicant’s alleged unfair discrimination claim is
accordingly dismissed.
4.
The Applicant is granted a final opportunity to amend his statement
of case in
respect of the alleged automatically unfair dismissal
claim, which must be filed and served within 30 days from the date of
this
order.
5.
In compliance with (4) above, the Applicant is directed to
approach the office of SASLAW for
pro bono
assistance.
6.
There is no order as to costs.
_____________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
In Person
For
the First Respondent:
Mr. Bongani
Masuku of Mervyn Taback INC
For
the Second Respondent:
Adv. W. Hutchinson
Instructed
by:
Fluxmans INC
[1]
Act 66 of 1995.
[2]
Act 55 of
1998.
[3]
23 Exceptions and Applications to Strike Out
(1)
Where any pleading is vague and embarrassing or lacks averments
which are necessary to sustain an action or defence,
as the case may
be, the opposing party may, within the period allowed for filing any
subsequent pleading, deliver an exception
thereto and may set it
down for hearing in terms of paragraph (f) of subrule (5) of rule
(6): Provided that where a party intends
to take an exception that a
pleading is vague and embarrassing he shall within the period
allowed as aforesaid by notice afford
his opponent an opportunity of
removing the cause of complaint within 15 days: Provided further
that the party excepting shall
within ten days from the date on
which a reply to such notice is received or from the date on which
such reply is due, deliver
his exception.
[Subrule
(1) amended by GN R2164 of 1987, by GN R2642 of 1987 and by GN R1262
of 1991.]
(2)
Where any pleading contains averments which are scandalous,
vexatious, or irrelevant, the opposite party may, within the period
allowed for filing any subsequent pleading, apply for the striking
out of the matter aforesaid, and may set such application
down for
hearing in terms of paragraph (f) of subrule (5) of rule (6), but
the court shall not grant the same unless it is satisfied
that the
applicant will be prejudiced in the conduct of his claim or defence
if it be not granted. (3) Wherever an exception
is taken to any
pleading, the grounds upon which the exception is founded shall be
clearly and concisely stated. (4) Wherever
any exception is taken to
any pleading or an application to strike out is made, no plea,
replication or other pleading over shall
be necessary.
[4]
Numsa and Others v Gabriel
(Pty) Ltd
(2002) 23 ILJ
2088 at paras 18 – 20