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[2017] ZALCJHB 362
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Reddi and Others v Mercedes-Benz South Africa Limited and Others (J3053/14) [2017] ZALCJHB 362 (28 September 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
case No: J3053/14
In
the matter between
RAJANDRAN
REDDI
1
st
Applicant
FURTHER
APPLICANTS
(Identified
in Annexure “RR1” to the founding affidavit)
2
nd
to 130
th
Applicants
and
MERCEDES-BENZ
SOUTH AFRICA LIMITED
1
st
Respondent
DFM
(PTY)
LIMITED
2
nd
Respondent
MERCEDES-BENZ
FINANCIAL
SERVICES
SOUTH AFRICA (PTY)
LTD
3
rd
Respondent
Heard:
04 May 2017
Delivered:
28 September 2017
Summary:
[Motion proceedings-Rule 6(5), Rule 18(6) of the Uniform
Rules-Failure to annex a contract relied upon to the founding
affidavit—Rule 7(3) of the Rules of this Court-The importance
of confirmatory affidavits]
JUDGMENT
MABASO,
AJ
Introduction
[1]
Recently, the Supreme Court of Appeal in the matter of Mashamaite and
others v Mogalakwena Local Municipality and others, Member
of the
Executive Council Coghsta, Limpopo and another v Kekana and others[1]
in re-emphasising the applicable principles in motion
proceedings
held that:
“
It is trite that an applicant
in motion proceedings must, in the founding papers, disclose facts
that would make out a case for
the relief sought, and sufficiently
inform the other party of the case it was required to meet.”[2]
[2]
Those “disclose[d] facts” may either be primary or
secondary facts. Secondary facts do not constitute evidential
material that one might conclude that there is a cause of action if
the primary facts are not in the papers, either by way of a
founding
affidavit or confirmatory affidavit, as such secondary facts will
remain the deponent’s views.[3]
[3]
In January 2015 the applicants lodged this application[4], by way of
notice[5],they seek the following order:
“
1. A
declaratory order in terms of which it is declared that the
unilateral amendments by the first, second
and third respondent,
alternatively intended amendment by the first, second and third
respondent of the clause in the employment
contracts between the
applicants(identified in Annexure “RR12”) and the
aforementioned respondents in terms of which
the applicants are
entitled to a company car and a fuel allocation of 33,000 km each
calendar year…, without the consent
and/or signatures
constitutes an unlawful breach of the aforementioned clause in the
aforementioned contracts of employment;
2. An
order in terms of which the car scheme implemented, alternatively,
announced, as a substitution
of the aforementioned terms and
conditions is declared to be unlawful and invalid substitution.
3. An
order in terms of which the respondents are ordered to reinstate the
status quo in respect of
the applicant’s contractual rights
(entitlement to
a company car and fuel allocation)
prior to the aforementioned breach;
4.
Alternatively to paragraph 3: an interdict in terms of which the
first to third respondents are
prohibited from changing the aforesaid
terms and conditions in the applicant’s contract of employment
and substituting it
with a new car leasing…”
[4]
The applicants are as per Annexure “RR1” of the founding
affidavit[6], with the exception of seven applicants who
delivered
notice of withdrawal of their involvement in this application. The
first respondent is Mercedes-Benz South Africa Limited,
and the
second respondent is DFM (PTY) LIMITED and Mercedes-Benz Financial
Services South Africa (Pty) Ltd is the third respondent.
All the
respondents are firms within Mercedes-Benz South Africa,[7] and they
would be collectively referred to hereinafter as the
respondents.
Relevant
Background
[5]
The founding affidavit (the first affidavit) is deposed to by one of
the applicants, Ms Rajendran Reddi (Ms Reddi), in respect
of her
authority to bring this application on behalf of further applicants,
Ms Reddi avers that,
“
My authorisation appears from
the confirmatory affidavits by the 2nd to 156th applicants. I
have been advised in order not
to overburden the papers before the
court, not to attach the confirmatory affidavits to the founding
affidavit. Copies of the confirmatory
affidavits will be made
available to the respondents on the request and the original
confirmatory affidavits will be available
for inspection. Due to the
fact that many of the applicants have left on holiday, I have not
been able to collect all the confirmatory
affidavits. The facts
and/or circumstances set out hereunder fall within my personal
knowledge, unless the contrary is explicitly
stated or where it
appears from the context hereof, and are true and correct”.
[6]
Ms Reddi further asserts that all the contracts of employment of the
applicants contain terms and conditions in respect of a
company car
and the annual allocation of fuel and that these terms and conditions
can only be varied or altered by two conditions.
Namely, there must
be consultation with the employee concerned, and if an agreement is
reached in respect of change of any term,
it must be in writing and
signed by both parties. This clause reads thus: “Any
alterations or variations in terms of this
contract will be handled
through consultations and must be put in writing and be duly signed
to be effective”.[8] It is further
stated that “Some of
the contracts of employment ( see for example the contract of
employment between SG Cooper…and
the first respondent , dated
16 October 2013, contain additional information such as “Car
policies are subject to periodic
revision in line with prevailing
circumstances.”[9]
[7]
The importance of this excerpt is that the respondents raised the
point in limine that since the genesis of this application
is one of
breach of contracts allegedly entered into between the applicants and
the individual respondents, Ms Reddi’s statement
cannot be
correct as it will appear below. In this affidavit, Ms Reddi states
inter alia, that the applicants concluded written
contracts of
employment with the respondents, however, such contracts are not
attached to this affidavit.
[8]
In the same vein, she says not all applicants were able to submit
copies of their respective contracts of employment nor letters
of
appointment from the respondents. Moreover, that those available
copies of contracts of employment were to be made available
“in
a separate bundle provided with an index and paginated contents”
, and that in any event, the respondents are in
possession of the
contracts of employment. Indeed, later some 16 copies of contracts of
employment were delivered to the Registrar
of this Court.
[9]
The affidavit continues to provide that there were consultations
between the respondents and the applicants in respect of the
new
changes by the respondents and that these changes were anticipated
and subsequently implemented. However, according to the
applicants,
the reason for not accepting these changes is because they did not
consent in writing. Therefore, the bone of contention
is that they
did not consent to the changes.
[10]
Following the delivery of this application, the respondents delivered
a notice of intention to oppose, later, on 30 January
2015 dispatched
a letter to the applicants’ attorneys raising their concerns
regarding the way this application has been
prepared, partly
this letter reads as follows:
“
While there are various issues
that stand to be raised in due course, we are constrained to raise
the issue of the identity of the
further applicants were properly
before court.
In this regard we commence by pointing
out that the notice of motion refers to a total of 130 applicants.
However, Annexure “RR1”
lists a 129 individuals.
Furthermore, paragraph 1 of the founding affidavit records that the
confirmatory affidavits by the 2nd
to 256th applicants
(i.e. a total of 157 applicants)
The matter is complicated by the fact
that our client is satisfied that a “number of those who
you have identified as
applicant have expressly agreed to and
or accepted the new scheme.
Under the circumstances we must insist
that we be favoured with the proper schedule of the applicants and be
favoured with confirmatory
affidavits from those individuals before
we are required to reply.
We also note that you acknowledge that
employees have different contracts of employment. This is correct.
However you failed to
identify which applicant is employed on which
contract and have failed to favour as the copy of each different
contract. In order
for us to respond we are entitled to know each
applicant is employed on what contract and by which respondent.”[10]
[11]
In response to the letter, on 12 March 2015, Ms Reddi delivered a
first supplementary affidavit (the second affidavit)
wherein in
answering the issue of contracts of employment as requested by
the respondents, she again avers that some of the
applicants were in
possession of the contracts of employment and others were not, and
that copies of those contracts of employment
“will be provided
to the respondents’ attorney of record”.[11]
[12]
Instead of submitting confirmatory affidavits as requested, the
applicants made an undertaking that the confirmatory affidavits
were
to be delivered by the attorneys[12], and in respect of that some of
the applicants have expressly agreed and accepted the
new scheme, as
per the letter, the second affidavit states that “according to
my instructions all the applicants mentioned
in annexure RR12
are persisting with the objection against the new scheme which had
been implemented unilaterally”.[13]
That those who had entered
into new employment agreements with the respondents have done so
under protest and are not abandoning
the application. Ms Reddi
further made the assertion that the respondents are in possession of
the contracts of employment.
[13]
On 14 May 2015, a further supplementary affidavit (third affidavit)
was delivered on behalf of the applicants.[14]
[14]
On 17 July 2015 the respondents delivered the answering affidavit
wherein the following preliminary points were raised:
14.1 that the
applicants delivered the founding affidavit, thereafter two
supplementary affidavits were delivered
without the leave of this
court and that the latter two affidavits should not be taken into
account as the applicant had failed
to ask for the leave of this
Court for the submittal of these affidavits.[15](Rule 6(5)
point-Point 1)
14.2 that the matter
before this Court is the one that should have been dealt with
regarding the provisions of
the Labour Relations Act[16] (LRA), as it
is an issue which involves allegations of a unilateral change in the
terms and conditions
of employment.(Point 2)
14.3 that the
founding affidavit does not adequately disclose the cause of action
taking into account that the
reliance in this matter is the one of
breach of contract. Therefore failure to attach the same contract for
every employee falls
foul of the trite law that calls for the
attachment of a contract of employment of an applicant. Even if some
documents were delivered
to the Registrar of this Court, it does not
assist the applicants’ case as, according to the respondents,
the applicants
should have attached them to the founding
affidavit.[17] (Rule 18(6) point-Point 3)
14.4 the identity of
the applicants herein.[18](Point 4)
14.5 the full
details of the parties are not mentioned in the papers. Therefore, it
is against rule 7(3). (Point
5)
14.6 the details of
the respondents, specifically the third respondent and its
involvement in this matter is not
clear. (Point 6)
14.7 authority of
the deponent in respect of bringing this application on behalf of
further applicants. (Point
7)
14.8 failure to
attach the same policy that the applicants rely on. (Point 8)
The
applicants before this Court (points 4 and 5).
[15]
Counsel for the Applicants,Mr Van Graan SC, has asked this
Court to make an order as prayed for in the amended notice
of motion
in respect of those who had signed similar contracts of employment as
one by A E Mtemeni-which are Gubushe,Nomvhethe,
Mokoena, Ngwebo,
Steel, Williams, Msezane, Simpson, Nonkomo, Oberley, Cooper, Mabashua
and van Rooyen (for the sake of convenience
this list is
hereinafter referred to as the Ntemeni’s group). Below I state
as to what happened to the remaining applicants.
[16]
Mr Van Graan confirmed that seven of the applicants; namely; E
Mutseura, YZ Zitumane, PP Ndhlovu, N Sook, BSE Yam, D Keller,
Ramokoka had withdrawn their involvement in this application as they
are no longer employed by the respondents.
[17]
Mr Van Graan further submitted that he can only proceed with
the case in respect of those applicants whose contracts
have been
incorporated into the application, taking into account that the
application is based on what is contained in the founding
affidavit.
Therefore it is not necessary for this Court to consider the case for
those who have not pleaded the contractual terms.
Therefore, their
case may be dismissed.[19]
[18]
During submissions, the applicants Counsel submitted a list of 32
applicants, which I proceeded to mark as “S”,
and I was
advised that this list is for those whose contracts of employment
were later delivered to the Registrar. Out of this
32 applicants,
only 16 wherein the clause that they were relying on is a condition
in terms of the contracts of employment, whereas
the other remaining
16 rely on the policy of the respondents, to which according to Mr
Van Graan , correctly conceded, that the
respondents may change their
policy without consultation with its employees. Therefore the
remaining 16 applicants, under those
circumstances, do not have a
claim against the respondents.
Ntemeni’s
group
[19]
In respect of Point 4; following the delivery of the confirmatory
affidavits by this group, the respondents during argument
confirmed
that they were no longer pursuing the status of these individual
applicants. Therefore, the individual applicants in
Ntemeni group are
the only group of applicants which were properly before this Court.
Are
the terms of contracts properly placed before this Court (point 3)?
[20]
Mr Van Graan’s submission in respect of this aspect was as
follows: according to the first affidavit it is stated that
the terms
which the applicants were relying on were incorporated therein and
contracts of employment were to be submitted in a
separate bundle,
the reason for this was to not overburdened the court. Indeed, later
contracts of employment were delivered, although
without being
accompanied by an affidavit(s) from the Ntemeni group confirming that
those contracts of employment were theirs.
[21]
Mr Myburgh SC, on behalf of the respondent submitted that: since the
contracts of employment were not annexed to the founding
affidavit,
as required by Rule 18(6) of the Uniform Rules there is no cause of
action, taking into account that the contracts of
employment are
crucial documents in this case. Despite the fact that the applicants
in the Ntemeni group delivered their confirmatory
affidavits,
according to him, nowhere did this group say that “my contract
is, in fact, my contract, as the copy”.
Moreover, he regards
this is a quagmire for the respondents, as according to him, without
the contracts of employment, this matter
should be dismissed.
[22]
In urging this point, both Counsels, put their respective emphasis on
Rule 18(6) of the Uniform Rules, which I deal with in
the following
paragraphs.
[23]
A party who is approaching this Court has a choice of either
delivering a statement of case (equivalent to summons) or by way
of
notice (notice accompanied by an affidavit)[20]. Rule 18 of the
Uniform Rules deals with “generally pleading”, referring
to the summons, and sub-rule (6) provides that:
“
a party who in his pleading
relies upon a contract shall state whether the contract is written or
oral and when, where and by whom
it was concluded, and if the
contract is written a true copy thereof or of the part relied on in
the pleading shall be annexed
to the pleading.”
[24]
On the face of it, this sub-rule is specific as to what happens
when a person is not relying on the entire contract,
but only on a
particular clause therein, however is not clear as to what is
the procedure where such applicants’ cause
of action is based
on a clause in contract which is common cause between the parties.
This subrule does not deal with employment
contracts which are
governed by specific legislation such as Section 29[21] of the Basic
Conditions of Employment Act[22] (BCEA).
Therefore, as to what would
happen where such an employee is aware of a particular clause in a
contract but for whatever reason
he is not in possession of such
contract of employment, and he is of the belief that such clause will
not be disputed by the employer;
or the employer is in violation of
section 29 (1) of the Act, by failing to provide him with a copy of
such employment contract.
[25]
Where an applicant approaches this Court in terms of notice of
motion, the provisions of Rule 7(3) of the Rules
of this Court
will apply where an affidavit is used - where such applicant will
have to present an affidavit which will “sufficiently
particular to enable any person opposing the application to reply
to the document”, [23]and where there is no
clarity then
provisions of Rule 6 of the Uniform Rules will have to be consulted .
In this approach, affidavits are equal to “pleadings”
and
evidence,[24] in that an applicant has to set out the grounds upon
which he relies on. Taking into account that he may not
have a
benefit of presenting oral evidence as compared to an action process,
as the only opportunity to give viva voca evidence
is when the
provisions of Rule 6(5)(g)[25] of the Uniform Rules apply.
[26]
In expounding on Rule 18(6) in Law of South Africa,[26] provides
that,
“
Where a document is the very
foundation of the cause of action or defence, it is good practice,
and a legitimate and perfectly proper
method of pleading, to annex a
copy of the document to it. If only portions of the document are
material, the pleader may either
annex to or incorporate in the
pleading the portions he alleges are material or set out particulars
sufficiently identifying the
documents relied upon.”
[27]
In this matter the Ntemeni group incorporated the relevant clauses of
the contracts of employment, as per the submission before
me. The
respondents are disputing the incorporated provisions.
[28]
The applicants incorporated the terms that they are relying upon,
therefore, what needs to be looked at is what Rule 18(6)
means by
saying “ the part relied on…” and that
such part should be “annexed”. In interpreting
the entire
rule one has to take into account that the rules are there for the
administration of justice.
[29]
The then Appellate Division, in the matter of James Brown and Hamer
(Pty) Ltd (Previously Named Gilbert Hamer and Co Ltd v
Simmons,
NO[27], in explaining as to what the judicial officer has to be
guided by in interpreting the Rules of Court, held that:
“
It is in the interest of the
administration of justice that the well-known and well-established
general rules regarding the number
of sets in the proper sequence of
the affidavit in motion proceedings should ordinarily be observed.
That is not to say that those
general rules must always be rigidly
applied: some flexibility; controlled by the presiding judge
exercising his discretion in
relation to the facts of the case before
him; must necessarily also be permitted.[28]
As
much as the Brown’s matter refers to affidavits, I opine that
in respect of the application of the rules generally, flexibility
would be the key. A presiding officer in interpreting the rules, has
to take into account that they should not be read in a formalistic
way which fails to consider the administration of justice, which
might lead to matters been disposed of due to a party’s
failure
to comply with the procedural step, instead of dealing with the
merits of each case.. In casu, it is important to take
into account
that the clauses that are relied upon, are incorporated in the first
affidavit. Therefore, the question is how this
hampers the
administration of justice if it is not physically “annexed”.
[30]
The relevant paragraphs in the first affidavit read thus:
“
8.5
All the aforementioned contracts of employment contain a term and
condition relating to the company,
and annual allocation of fuel,
which relates more or less as follows:
“
you will be able to select one
company car from the range of vehicles applicable to your band (as
per the company Policy), which
a fuel allocation of 30,000 km each
calendar year (pro rata from the date of appointment)”
However, see the relevant terms of
available contract of employment reflected in Annexure “RR1”
hereto.”
[31]
The question that is triggered by the circumstances of this case,
specifically the aforecited paragraphs, is whether the applicants
were correct in incorporating the clauses in the founding affidavit
instead of annexing those contracts of employment to the affidavit.
I
share the same approach as in LAWSA that the party can incorporate
“the part relied upon”.I, therefore, conclude
that the
relevant clauses of the contract of employment that the Ntemeni group
is relying upon has been properly presented before
this Court,
however, as to whether they “disclose facts that would be made
out a case for the relief sought”[29] is
another issue which is
dealt with below.
Supplementary
affidavits and confirmatory affidavits, and cause of action
[32]
Counsels for the respondents, in their heads of argument referred
this Court to the judgment by Lagrange J,in the matter
of Bafokeng
Rasimone Platinum Mine (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and others,[30] whereby he
held that
further affidavit after the close of the pleadings would only be
accepted if there are exceptional circumstances that
have been shown.
However, I have noted that in that matter the court was dealing with
a review application where an applicant wanted
to submit further
affidavit after an answering affidavit had been delivered. I disagree
with the respondents in this regard as
Bafokeng’s case is not
similar to the matter in casu. I am in agreement with their
submission that the Rules of this Court
do not allow submittal of the
further affidavit, as they are specific as to how many sets of
affidavits should be delivered.
[33]
The aspect of the delivery of the further affidavits is covered by
Rule 6 (5) of the Uniform Rules, which requires such party
to ask for
a leave of court in delivering further affidavits.[31]
[34]
In the matter of Hano Trading CC v JR 209 Investments (Pty) Ltd and
another[32] the court held as follows, regarding the delivery
of
further affidavits,
“
[10]
…Should a litigant decide to proceed by way of application,
Rule 6 of the Uniform Rules of Court
applies. …Unlike actions,
in application proceedings the affidavits take the place not only of
the pleadings, but also of
the essential evidence which would be led
at a trial… It is, therefore, not surprising that the rule
6(5) (e) provides that
further affidavits may only be allowed at the
discretion of the court.
[11]
Rule 6(5) (e) establishes clearly that the filing of further
affidavits is only permitted with
the indulgence of the court. A
court, as arbiter, has the sole discretion whether to allow the
affidavits or not. A court will
only exercise its discretion in this
regard where there is good reason for doing so.” (Own
emphasis)
[35]
Brown’s matter[33], mentioned in paragraph 27 above is
applicable herein, in that rules should not be rigidly applied,
some
flexible control by a judge exercising his discretion prevails.
[36]
I have taken into account that in the matter of Hano[34], the SCA was
dealing with the issue whereby a court a quo was referring
to a
situation of filling of a further affidavit out of sequence,
and there was no service on the other party of such affidavit.
Therefore, in casu, I need to take into account that the reason for
these two affidavits to be delivered was necessitated by the
letter,
dated 30 January 2015, which inter alia called upon the applicants to
clarify its papers. Taking into account that at the
time when these
affidavits were served and filed, the respondents had not delivered
their answering affidavit. Therefore pleadings
had not been closed.
[37]
Taking into account Rule 6(5)(e) where it deals with further
affidavit, I am of the view that it refers to a situation whereby
a
respondent had already delivered an answering affidavit and/or a
replying affidavit had been delivered by an applicant, and thereafter
any of the parties in such application upon realising that it
needed to supplement either the founding affidavit, answering
and/or
replying affidavits, that is when such party will be expected to
bring an application, asking for the leave of the
court, for
such affidavit be taken into account , as that affidavit
will be clearly a separate “sets of affidavit”.
[38]
Based on the above, I am of the view that the second and third
affidavits cannot be disregarded as there is no prejudice suffered
by
the respondent by the delivery of such affidavits.
[39]
In respect of contracts of employment, the applicants should have
asked for leave of this Court for the delivery of these contracts
of
employment, taking into account what Ms Reddi’s affidavit says
about the contract of employment, in that they did not
want to
overburden the Court with the documents, however at the same time
they decided to deliver some documents for this Court
to look at. I
am of the view, also taking into account what the respondents are
saying that none of the applicants has confirmed
that those copies
belong to them, that this is a step that required an application for
leave to deliver these contracts of employment.
[40]
Further, the contracts of employment that were delivered to the
Registrar without being accompanied by an affidavit and /or
an
application cannot be taken into account, as none of the applicants
confirmed that those contracts of employment were theirs,
and even
their confirmatory affidavits do not say anything about the contracts
of employment, other than confirming the “founding
affidavit”
of Ms Reddi.
[41]
Moreover, I must mention that the confirmatory affidavits are dated
December 2014, whereas the first and second supplementary
affidavits
are dated 11 March 2015 and 13 May 2015 respectively. Therefore, the
applicants are not confirming what was served
and filed from
March 2015 to the date of the hearing of this matter, especially the
contracts of employment delivered in 2015.
As to whether these are
the same contracts of employment that were referred to by Ms Reddi,
Counsel for the applicants could not
make any persuasive submission
in this regard. Therefore, the
applicants
stand or fall with their founding affidavit.[35] The applicants did
not follow the correct procedure in delivering the
contracts of
employment.[36]
[42]
The respondents in answering the issue in respect of the terms of
contracts that were being relied upon by the applicant had
this to
say:
“
44.1 allegations in these
paragraphs are denied.
44.2 annexure RR1 is a list of
the purported applicants. The alleged terms applicable to only 39 of
the identified person
is summarised in the table, with no summary
provided for the remainder of the so-called applicants.
44.3 in any event, in the absence of
the applicant providing the contract of employment, relied upon, the
respondents deny that
the summaries an accurate reflection of the
contractual terms in each instance”.
This
assertion, was preceded by the letter mentioned in paragraph 10
above, and is also supported by the respondents assertion that
the
first affidavit does not identify the firm in which each of the
applicants entered into a contract of employment with,
except to say
they reached agreements with Mercedes and DFM, which is being denied
by the respondents.
[43]
The respondents in responding to the above, at the beginning of their
affidavit capitalised on what the applicants had said
in paragraph
8.7 of the first affidavit, where they acknowledged that their
respective contracts of employment were not the same.
I am in
agreement with the respondents that the case for the applicants is
not properly pleaded, as they admitted that there were
differences in
their respective contracts of employment. Therefore failure to
present the contracts of employment makes the “disclose[d]
facts” not supporting the relief sought.[37] Based on the
above, I conclude that the applicants have failed to prove their
case.
[44]
In view of the conclusion arrived at in this matter, it is not
necessary to deal with the other points that have been raised
by the
parties.
I
make the following order:
Order
1.
The applicants application is dismissed.
2.
There is no order as to costs.
—————————————
S.
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Advocate Van Graan SC
Instructed
by:
Dayson Inc.
For
the Respondent:
Advocate Myburgh
SC with Advocate Engelbrecht
Instructed
by:
Kirchmann’s Inc.
[1]
[2017] 2 All SA 740
(SCA).
[2]
Ibid, at para 21. See also Rule 7(3)(b) of the Rules of this Court.
[3]
Zuma v Democratic Alliance and others
[2014] 4 All SA 35
(SCA), at
para 26; Radebe v Eastern Transvaal Development Board
1988 (2) SA
785
(A), 793C-E.
[4]
In terms of the provisions of ss 77(3) of the Basic Conditions of
Employment Act 55 of 1997(the Act).
[5]In
terms of Rule 7 of the Rules of this Court. These prayers are as
contained in the amended notice of motion, which was delivered
on
the date of the hearing.
[6]
Changes to the number of applicants were further made as the
proceedings before this court progressed.
[7]
Answering affidavit, page 32.
[8]
First affidavit, page 14.
[9]
Ibid.
[10]
Index, page 322.
[11]
Second affidavit.
[12]
Second affidavit.
[13]
Own emphasis.
[14]
Third affidavit, page 21-25.
[15]
Answering affidavit, pages 37-38.
[16]
Act 66 of 1995 as amended.
[17]
Ibid, at page 39 -41.
[18]
Ibid, page 42
[19]
CUSA v Tao Ying Metal Industries and Others 2009 (1) BCLR (CC), at
para 28.
[20]
Rule 7 of the Rules of the Labour Court.
[21]
Written particulars of employment 29. (1) An employer must supply an
employee, when the employee commences employment, with
the following
particulars in writing— (a) the full name and address of the
employer; (b) the name and occupation of the
employee, or a brief
description of the work for which the employee is employed; (c) the
place of work, and, where the employee
is required or permitted to
work at various places, an indication of this; (d) the date on which
the employment began; (e) the
employee’s ordinary hours of
work and days of work; (f) the employee’s wage or the rate and
method of calculating
wages; (g) the rate of pay for overtime work;
(h) any other cash payments that the employee is entitled to; (i)
any payment in
kind that the employee is entitled to and the value
of the payment in kind; (j) how frequently remuneration will be
paid; (k)
any deductions to be made from the employee’s
remuneration; (l) the leave to which the employee is entitled; (m)
the period
of notice required to terminate employment, or if
employment is for a specified period, the date when employment is to
terminate;
(n) a description of any council or sectoral
determination which covers the employer’s business; (o) any
period of employment
with a previous employer that counts towards
the employee’s period of employment; (p) a list of any other
documents that
form part of the contract of employment, indicating a
place that is reasonably accessible to the employee where a copy of
each
may be obtained. (2) When any matter listed in subsection (1)
changes— (a) the written particulars must be revised to
reflect
the change; and 15 5 10 15 20 25 30 35 40 45 50 55 (b) the
employee must be supplied with a copy of the document reflecting the
change. (3) If an employee is not able to understand the written
particulars, the employer must ensure that they are explained
to the
employee in a language and in a manner that the employee
understands. (4) Written particulars in terms of this section
must
be kept by the employer for a period of three years after the
termination of employment.
[22]
Act 75 of 1997.
[23]
See also sub-rule 18(4) of the uniform rules.
[24]
Transnet Ltd v Rubenstein
2006 (1) SA 591
(SCA), at para 28: “in
motion proceedings the affidavits constitute not only the evidence,
but also the pleadings”
[25]
“Where an application cannot properly be decided on affidavit
the court may dismiss the application or make such order
as [to it
seems meet] it deems fit with a view to ensuring a just and
expeditious decision. In particular, but without affecting
the
generality of the aforegoing, it may direct that oral evidence be
heard on specified issues with a view to resolving any
dispute of
fact and to that end may order any deponent to appear personally or
grant leave for [him] such or any other person
to be subpoenaed to
appear and be examined and cross-examined as a witness or it may
refer the matter to trial with appropriate
directions as to
pleadings or definition of issues, or otherwise.”
[26]
LAWSA, Vol 4, 3rd Edition, para 172
[27]
[1963] 4 All SA 524(A).
[28]
Ibid, at 530.
[29]
See fn 1 above.
[30]
[2015] 36 ILJ 3045 (LC), at paras 2 and 5.
[31]
Fn 26 above, at para 143.
[32]
[2013] 1 All SA 142
(SCA).
[33]
Ibid
[34]
Fn 31 above.
[35]
Netherlburn Engineering CC t/a Netherburn Ceramics and Others (2009)
30 ILJ 269 LAC, at para 26: “ When you are a party
to a
dispute or when you were the arbitrator or presiding officer in some
proceedings and one of the parties brings a review
application, you,
of course, read the papers to understand what the applicant’s
case is and to decide whether to oppose
or to consent to the order
sought or to abide the decision of the Court. What you do will
depend partly upon the view you take
of the applicant’s case
as disclosed in the papers. If, after reading the applicant’s
papers, you conclude that there
is absolutely no case for you to
answer in the light of the contentions or the grounds of the
application as disclosed in the
founding affidavit and you decide to
abide the decision of the Court, you would feel legitimately
aggrieved if you subsequently
learn’t that the award was set
aside by the Court not on the grounds contained in the founding
affidavit but on grounds
that were advanced in oral argument which
were not foreshadowed in the founding affidavit and without you
being afforded an opportunity
to oppose the new case. On my
understanding the rule that in motion proceedings the applicant must
make his case in his founding
affidavit and that you stand or fall
by your papers has not been abolished and still applies. It serves a
very useful purpose
in terms of fairness”
[36]
Hano Trading CC, at para 7 , “the appellant filed with this
document seemingly with the registar and placed them on
the court
file without leave of the court as envisaged in rule 6(5)(e) of the
Rules of Court.”
[37]
Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd,
[1957] 1 All SA 123
(C), at page 124, the Court held that: ".
It seems to me that where there is a dispute as to the facts a final
interdict
should only be granted in notice of motion proceedings if
the facts as stated by the respondents together with the admitted
facts
in the applicant’s affidavits justify such an order.”