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[2018] ZALCJHB 153
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Liquid Telecommunication (Pty) Ltd v Carmichael-Brown (JS987/17) [2018] ZALCJHB 153; [2018] 8 BLLR 804 (LC); (2018) 39 ILJ 1779 (LC) (27 March 2018)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
CASE
NO: JS 987/17
In
the matter between:
LIQUID
TELECOMMUNICATION (PTY)
LTD
Excipient
and
VALERIE
CARMICHAEL-BROWN
Respondent
Application
heard: 16 March 2018
Judgment
delivered: 27 March 2018
JUDGMENT
VAN
NIEKERK J
[1]
On 7 December 2017, the respondent filed a statement of claim in
which she claimed payment of the amount of R15 151 688.00,
being
damages that she contends were suffered in consequence of a premature
termination by the excipient of a fixed-term employment
contract.
[2]
The relevant portion of the statement of claim reads as follows:
5.
On 15 August 2017 and at Midrand, the applicant acting personally and
the respondent
acting through its CEO (Kyle Whitehill) concluded an
oral agreement with the following material terms:
5.1
the applicant was appointed in an executive position;
5.2
the applicant would serve in the aforesaid position for a term of
five years;
5.3
the applicant would commence service in the aforesaid position with
effect from 15 August
2017;
5.4
the applicant would earn a salary of R3 030 337.60 per annum.
6.
On 29 August 2017 the respondent repudiated the aforesaid contract by
purporting
to terminate it with effect from 30 August 2017 on the
grounds that the applicant’s position had become redundant.
7.
The applicant accepted the repudiation on 30 August 2017,
alternatively accepts
it herewith, with the result that the contract
came to an end.
8.
As a result of the aforesaid breach by the respondent in the
termination of the
agreement, the applicant suffered damages equal to
the salary she would have earned for the remainder of the contract.
[3]
On 14 December 2017, the excipient filed what is termed a ‘Notice
in terms of Rule 23 (1) of the Uniform Rules of Court’.
In that
notice, the excipient gave notice of its intention to except to the
statement of case on the basis that it was vague and
embarrassing,
alternatively, that it lacked the averments necessary to sustain the
respondent’s claim. The notice proceeded
to set out six grounds
of complaint. These can be summarized as follows. The first ground of
complaint is one based on Rule 18
(6) of the Uniform Rules of Court
(‘the Uniform Rules’) which requires a party relying on a
contract to state in his
or her pleading whether the contract is
written or oral and when, where and by whom it was concluded, and
that if the contract
is written, a true copy of the contract or the
relevant part of it is required to be annexed to the pleading. The
excipient contends
that the respondent has failed to comply with this
Rule insofar as she fails to allege where the contract was concluded,
when it
was concluded, which position the respondent would undertake
for the term of the contract, the terms and conditions of the
contract, the date on which the contract would commence, the date on
which it would terminate, the basis of the five-year fixed
term
period, the position the applicant would undertake from the inception
of the contract, the annual salary that the applicant
contends she
would earn, how the applicant would be paid and what payments would
be deducted from her salary.
[4]
The second ground for complaint is that the respondent failed to
state who from the excipient repudiated the contract, what
position
became redundant, what discussions took place between the excipient
and the respondent, who from the excipient had these
discussions with
the respondent, if any. The excipient also notes, in a rare reference
to the Rules of this Court (as opposed to
the Uniform Rules), that
the statement of case does not contain a clear and concise statement
of material facts and the legal issues
that arise from those facts,
with the consequence that the excipient is unable to respond properly
to the averments in the statement
of case.
[5]
The third ground for complaint is based on Rule 18(1) of the Uniform
Rules. It suggests that the respondent has failed to comply
with this
Rule in that she fails to allege in what manner she is entitled to
the damages claimed, who from the excipient terminated
the agreement,
on what date the contract was terminated and how the damages claimed
were computed.
[6]
The fourth ground of complaint is one related to the third, and
suggests that the respondent does not allow the excipient ‘to
reasonable access the quantum claimed…(sic)’.
[7]
The fifth ground of complaint is one rooted in Rule 6 of the Rules of
this court and is to the effect that the statement of
claim was not
accompanied by a schedule of documents as required by Rule 6 (1)(e).
[8]
Finally, the excipient complains that the respondent has failed to
state on what basis this court has the power to entertain
a claim for
damages.
[9]
The respondent furnished an answer to the notice of exception. In the
answer, it is recorded that in paragraph 5 of the statement
of case,
it is pleaded that the contract was concluded at Midrand on 15 August
2017 and that in terms of the contract, the respondent
was appointed
in an executive position. Further, the respondent noted that the
relevant terms of the contract were pleaded in that
she was appointed
to an executive position, for a five-year period, at a salary of R 3
030 337,60 per annum. The respondent contends
that any further
information constitutes evidence which will be presented at trial and
is not required for the purpose of pleading.
Insofar as the fourth
ground of complaint is concerned, the respondent avers that she is
not required to make any allegation to
allow the respondent to
‘access’ the damages. The respondent has pleaded that she
claims damages being her remuneration
for the unexpired period of the
five-year contract, to which she is entitled in terms of general
contractual principles. Insofar
as the Rule 6 schedule is concerned,
the respondent avers that since the conclusion and the termination of
the contract were oral,
there are no documents relevant for the
purposes of pleading, and that documents which may become relevant
for the purposes of
trial will be discovered in the ordinary course.
Insofar as jurisdiction is concerned, the respondent avers that it is
not necessary
in this court to allege that the court has jurisdiction
to entertain the matter but be that as it may, the court has
jurisdiction
in terms of
s 77(3)
of the
Basic Conditions of
Employment Act, 75 of 1997
.
[10]
For good measure, the respondent thereafter filed a Notice in terms
of
Rule 30
in which she asserted that the excipient had taken an
irregular step in that the notice of exception was not signed by an
advocate
as required by Rule 18 of the Uniform Rules.
[11]
Both parties have conducted this litigation as if the Rules of this
court did not exist. This court has its own Rules Board,
and the
Board has issued Rules which apply to this court and to the Labour
Appeal Court. There is a good reason for this -= one
of the primary
purposes of the LRA is to establish a system of dispute resolution
that is less formal, efficient, expeditious and
inexpensive. The
Rules are an integral element in achieving this purpose.
[12]
As a starting point, the Uniform Rules are not applicable to
proceedings in this court. Rule 11 of the Rules of this Court
provides, amongst other things, that if a situation arises for which
the Rules do not provide t
he court may adopt any procedure that it
deems appropriate
(own emphasis) in the circumstances (see Rule
11 (3)).
[13]
Rule 11 (3) has often been cited as a basis for applying the Uniform
Rules into this court’s practice and procedure.
This court has
recognised that in the absence of any Rule concerned specifically
with exceptions, parties may, under Rule 11, have
recourse to Rule 23
of the Uniform Rules (see, for example,
Volscenck v Pragma Africa
(Pty) Ltd
(2015) 36
ILJ
494 (LC)). But this court has
never gone so far as to suggest that parties are obliged or entitled
to conduct litigation in this
court on the basis of the Uniform
Rules. It is clear from the formulation of Labour Court Rule 11
(3) that the Uniform Rules
are not a form of default procedure in
this court, nor is it open to litigants and their representatives to
rely selectively on
the Uniform Rules in the conduct of litigation in
this court. Rule 11 (3) is permissive, and provides that the court
(not the parties
and their representatives) may sanction the use of a
procedure not contemplated by the Rules when this is appropriate. In
other
words, Rule 11 (3) establishes a procedural mechanism for the
convenience of the court. It is not an invitation to practitioners
to
invoke the Uniform Rules and conduct litigation in this court on the
basis that the Uniform Rules apply.
[14]
This is not to say that there is no procedure applicable in this
court when a party contends that a pleading is vague and
embarrassing, or discloses no cause of action or defence. Until the
Rules of this court are amended so as specifically to regulate
the
filing of exceptions, Rule 11, as this court has held, is an
appropriate basis on which to file an exception, and that Uniform
Rule 23 is an appropriate guide as to when and how an exception
should be filed. What I wish to emphasise is that this limited
application of Rule 11 is not the gateway to the wholesale
importation and application of the Uniform Rules, and thereby the
creation
of a parallel system of procedure in this court. In the
present instance, for example, the thrust of the excipient’s
complaints
is that the respondent has failed to comply with the
provisions of Uniform Rule 18, which regulates generally pleadings in
the
High Court. Whether or not the respondent’s statement of
claim is excipiable is to be determined by reference to Rule 6 of
the
Rules of this court, not Rule 18 of the Uniform Rules. Rule 6
requires no more than that a party referring a statement of claim
record in a concise manner the relevant facts on which that party
relies, and also in concise terms, the legal issues that arise.
In
the absence of any directive to the contrary, this is all that is
required, and the standard against which any pleading is to
be
measured.
[15]
In
Harmse v City of Cape Town
[2003] 6 BLLR 557
(LC), Waglay J
(as he then was) said the following:
5
.
Rule 6 of the Rules of this Court deals with referrals of disputes by
way of a statement of claim. Rule 6(1) (b) provides
that “a
document initiating proceedings, known as a ‘statement of
claim’ … must have a substantive part
containing the
following information:
(i)
The
names, description and addresses of the parties;
(ii)
A
clear and concise statement of the material facts, in chronological
order, on which the party relies, which statement must be
sufficiently particular to enable any opposing party to reply to the
document;
(iii)
A
clear and concise statement of the legal issues that arise from the
material facts, which statement must be sufficiently particular
to
enable any opposing party to reply to the document; and
(iv)
The
relief sought”.
6.
The
statement of claim serves a dual purpose. The one purpose is to bring
a Respondent before the Court to respond to the claims
made of and
against it and the second purpose of a statement of claim is to
inform the Respondent of the material facts and the
legal issues
arising from those facts upon which applicant will rely to succeed in
its claims.
7.
The
material facts and the legal issues must be sufficiently detailed to
enable the Respondent to respond, that is, that the Respondent
must
be informed of the nature or essence of the dispute with sufficient
factual and legal particularity so that it knows what
it is that the
Applicant is relying upon to succeed in its claim.
8.
The
Rules of this Court do not require an elaborate exposition of all
facts in their full and complex detail – that ordinarily
is the
role of evidence, whether oral or documentary. There is a clear
distinction between the role played by evidence and that
played by
pleadings – the pleadings simply give the architecture, the
detail and the texture of the factual dispute are provided
at the
trial. The pre-trial conference provides an occasion for the detail
or texture of the factual dispute to begin to take shape.
In terms of
rule 6(4)(b) the parties in the pre-trial conference must attempt to
reach consensus on facts that are common cause,
facts that are in
dispute, the issues that the Court is required to decide and the
precise relief claimed.
9.
Accordingly
the rules of this Court anticipate that the relief claimed might not
have been precisely pleaded in the Statement of
Claim filed. The
Rules of this Court further anticipate that the factual matters at
issue will be dealt with more fully and precisely
in the pre-trial
conference. The rules therefore anticipate that the parties at the
pre-trial conference will have dealt in much
more detail not only
with the factual matters but also the legal issues. The statement of
claim and response thereto foreshadows
this activity but is not a
substitute for it. It is for this reason that the rule on pre-trial
conferences provides for reaching
consensus on the issues that the
Court is required to decide.
10.
When
an exception is raised against a statement of claim, this Court must
consider, having regard to what I have said above, whether
the matter
presents a question to be decided which, at this stage, will dispose
of the case in whole or in part. If not, then this
Court must
consider whether there is any embarrassment that is real and that
cannot be met by making amendments or providing of
particulars at the
pre-trial conference stage.
[16]
This remains the basis on which exceptions raised against statements
of claim will be adjudicated.
[17]
In order to succeed, the excipient must necessarily persuade the
court that on every interpretation that the pleading in question
can
reasonably bear, no cause of action is disclosed (
First National
Bank of Southern Africa Ltd v Perry NO
2001 (3) SA 960
(SCA)).
Care must be taken to distinguish the facts which must be proved in
order to disclose a cause of action from the facts
necessary to prove
them. The determination of the latter, in each particular case, is
essentially a matter of substantive law rather
than procedure
(
Alphedie Investments (Pty) Ltd v Greentops (Pty) Ltd
1975 (1)
SA 161
(T)).
[18]
In the present instance, the respondent’s cause of action is
one for contractual damages, consequent on what is alleged
to be the
premature termination of a fixed-term contract. The respondent claims
that she was appointed in an executive position,
that she would serve
in that position for a five-year term, that she would commence
service with effect from 15 August 2017 at
a salary of R 3 030 337,60
per annum, that on 29 August 2017, the excipient repudiated the
contract by purporting to terminate
it with effect from 30 August
2017 on the grounds that the respondent’s position had become
redundant, that the respondent
accepted the repudiation on 30 August
2017, alternatively, accepted it in terms of the statement of case,
with the result that
the contract came to an end. As a result of the
breach claimed by the respondent at the termination of the agreement,
the respondent
claims to have suffered damages equal to the salary
that she would have earned for the balance of the contract.
[19]
It is clear from the pleading that the respondent relies on a
repudiation of the contract in order to claim damages. All that
is
required to assert is a repudiation of the fundamental term of the
contract (i.e. conduct which exhibits an objectively deliberate
and
unequivocal intention not to be bound any longer by the contract) an
election to terminate the contract and a communication
of that
election. The remedies open to an aggrieved party in the
circumstances include restitution, damages or specific performance.
[20]
With that background, I turn first to the respondent’s
objection that the notice of exception was not signed by an advocate,
or that it was signed by an attorney without indicating whether that
attorney had the right of appearance in terms of s 4 of the
Right of
Appearance in Court Act, 62 of 1985. The simple answer is that Rule
30 of the Uniform Rules does not apply in this court.
Further, the
Rules of this court do not require an advocate to sign a notice of
exception. The respondent’s objection thus
stands to be
dismissed.
[21]
In so far as the merits of the exception are concerned, despite the
lengthy answer provided by the respondent in response to
the notice
of exception, the excipient persists with the exception, seeking the
production of the same answers. The excipient is
aware where the
alleged contract was concluded, when it was concluded, what position
the respondent would assume, the date on which
the contract would
commence, the date on which the contract would terminate by the
effluxion of time, the respondent’s position,
what position
became redundant and how the amount of damages claimed has been
quantified. Frankly, the demands that the respondent
plead
information as to what payments would be deducted from the
respondent’s salary and the basis for the five-year fixed
term
contract are irrelevant. Information regarding the identity of the
persons who cancelled the contract and what discussions
took place
between the parties are all matters for evidence. In short, the
statement of claim complies with Rule 6 of the Rules
of this court
and all of the excipient’s complaints have been addressed and
in my view, the exception stands to be dismissed.
[22]
In so far as costs are concerned, s 162 of the LRA confers a
discretion on the court to make orders for costs according to
the
requirements of the law and fairness. Although the filing of the Rule
30 notice by the respondent was nothing less than frivolous,
it pales
into insignificance in comparison to the terms on which the excipient
has sought to except to the statement of claim.
The exception has
served to do no more than protract proceedings that are intended to
be efficient and expeditious, and has no
doubt considerably increased
the costs associated with a process of litigation that is intended to
be relatively inexpensive.
[23]
The respondent seeks costs on a punitive scale, on the basis that the
excipient’s persistence with these proceedings
is nothing more
than an abuse of the court process, and an attempt to frustrate the
respondent’s case and to increase the
costs of litigation.
There is merit in these submissions. Technical point-taking has never
been encouraged in this court, inimical
as it is to the statutory
purposes to which I have referred above. Litigating in the
manner in which the excipient employer
has approached this matter is
to be discouraged in the strongest terms. This is particularly so in
litigation between dismissed
employees and their erstwhile employers,
where the promotion of access to justice may be frustrated by the
cost of litigation conducted
in a manner other than that envisaged by
the Rules. At best for the excipient, the terms of the exception
evince an overly-technical
approach to litigation, one that is not
welcome in this court. At worst, it is an attempt consciously to
frustrate the statutory
purposes to which I have referred. Either
way, in my view, a punitive costs order is warranted.
I
make the following order:
1.
The exception is dismissed with costs, such
costs to be paid on the scale as between attorney and client.
André van Niekerk
Judge
REPRESENTATION
For
the excipient: Ms. S Coetzer, Cliffe Dekker Hofmeyr Attorneys
For
the respondent: Adv. J Basson, instructed by Alet Uys Attorney