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[2018] ZALCJHB 290
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Di Nardo v Giuricich Bros Construction (Pty) Ltd (JS597/17) [2018] ZALCJHB 290 (31 August 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no:
JS597/17
In
the matter between:
ANTONIO
DI
NARDO
Applicant
and
GIURICICH
BROS CONSTRUCTION (PTY)
LTD
Respondent
Heard
:
24 August 2018
Delivered
:
31 August 2018
Summary:
An amendment of a statement of case – no prejudice shown.
Where an objection and opposition for seeking leave to amend is
frivolous cost order to be made.
Held: (1) Leave to amend
granted (2) The respondent to pay the costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is an application for leave to amend a statement of case. The
applicant sought to amend certain paragraphs in his statement
of
case. The respondent objected to the proposed amendment. Following
the objection, the applicant launched the present application
for
leave to amend. Over and above the objection, which prompted the
present application, the respondent opposed the present application.
Background
facts
[2]
Essentially, the facts relevant to this application are that,
following his dismissal, the respondent referred a dispute to
this
Court in terms of rule 6 of the Rules of this Court. The applicant
opposed the referral. At various points, the applicant
sought to
amend certain paragraphs in the statement of case. Ultimately, on 13
December 2017, the applicant sought an amendment.
It is this
amendment that ignited this application after having being objected
to on 18 December 2017.
[3]
The objection prompted the applicant to file a notice of motion on 26
January 2018 seeking leave to amend and costs on an attorney
and
client scale. The respondent opposed the application. The matter came
before me as an opposed motion.
The
proposed amendment.
[4]
It is not necessary for the purposes of this judgment to set out
fully the proposed amendment. Suffice to mention that the applicant
sought to delete and insert certain paragraphs in the original
statement of case.
The
objection
[5]
The respondent raised an
objection that the applicant had failed to withdraw the previous
attempted amendments. Such failure to
amend creates ambiguity and
confusion, which renders the statement of claim to be vague and
embarrassing, thus excipiable. The
vagueness would make it impossible
for the respondent to present a response. With reference to some
paragraphs in the statement
of case sought to be amended it was
suggested that it is not clear whether the applicant is relying on
section 189A or 189 of the
Labour Relations Act
[1]
.
Argument
[6]
Advocate Roode appearing for the respondent prepared detailed heads
of argument in support of the opposition. He persisted with
an
argument that the applicant was obliged to formally withdraw the
previous proposed amendments. He could not provide the court
with an
authority to this submission. He maintained that the statement of
case would be excipiable and the respondent would suffer
prejudice,
which is not remediable with an order as to costs. He however
conceded that once the amendment is allowed, the right
of the
respondent to raise an exception does not dissipate.
[7]
On the other hand, Advocate Cook appearing for the applicant
contended that the principles governing amendments have been met.
Evaluation
[8]
Strictly speaking statement of
case and of response are not pleadings. What is required is a clear
and concise statement of the
material facts, in a chronological
order, on which a party relies, which statement must be sufficiently
particular
[2]
.
By seeking to amend, the applicant is complying with the requirement
of sufficient particularity. Whether the applicant would
be able to
demonstrate this case at the trial of the matter is an issue that
does not arise at this stage. Questions like whether
section 189A or
189 apply or not, are questions to be decided by the trial court
after receiving evidence.
[9]
The Supreme Court of Appeal in
Foxlake Investments v
Ultimate Raft Foundation Design
[3]
,
had the following to say:
“
[11]
In
Blaauwberg Meat
Wholesalers CC v Anglo Dutch Meats (Exports) Ltd
2004 (3) SA 160
(SCA)
para 12 Heher
JA said:
‘
Amendments
are regulated by a wide and generous discretion which leans towards
the
proper
ventilation of disputes
[4]
and are granted according to a body of rules developed in that
context
’
In
Affordable Medicines
Trust & others v Minister of Health & another
[2005] ZACC 3
;
2006 (3) SA 247
(CC)
para 9 Ngcobo J
said:
‘
The
principles governing the granting or a refusal of an amendment have
been set out in a number of cases. There is a useful collection
of
these cases and the governing principles in Commercial Union
Assurance Co Ltd v Waymark
[1995 (2) SA 73
(Tk) at 76D-I]. The
practical rule that emerges from these cases is that amendments
will
always be allowed
[5]
unless the amendment is mala fide (made in bad faith) or unless the
amendment will cause an injustice to the other side which cannot
be
cured by an appropriate order for costs, or “unless the parties
cannot be put back for the purposes of justice in the
same position
as they were when the pleading which it is sought to amend was
filed”.”
[10]
The proposed amendment shall
facilitate a proper ventilation
[6]
of the dispute – i.e. was the dismissal fair or not. It has not
been demonstrated that the amendment is made in
bad
faith
or that the amendment
would cause an injustice. At the trial of the dispute, there is
nothing that would prevent the respondent
to probe and also argue
that section 189A does or does not apply. With regard to the
withdrawal of the previous amendments, I venture
to say that a proper
reading of rule 28 (7) of the Uniform Rules of Court suggests that if
an amendment is not effected by delivering
the amended pages, such a
proposed amendment does not exist anymore
[7]
.
I see no reason why the proposed amendment should not be allowed.
The
issue of costs
[11]
What remains
is the issue of costs. Since the judgment of
Zungu
v Premier of the province of Kwa Zulu Natal and Others
[8]
there seem
to be a growing view that this court has been stripped of its
discretion to award costs against parties in the Labour
Court. This
view is incorrect. What the Constitutional Court did was to remind
this court of what was said in
Member
of the Executive Council for Finance, KwaZulu-Natal and Another v
Dorkin No and Another
[9]
.
The
discretion to award costs remains intact.
[12]
As a reminder, the Labour Appeal Court (LAC) in
Dorkin
(supra)
had the following to say:
“
[19]
With regard to costs I have been tempted to award costs against the
second respondent because the second appellant has had
to come to
court to seek to alter the sanction imposed upon the second
respondent but, I think that, having obtained a sanction
of final
written warning which was not his decision but that of the first
respondent- he was entitled to come to Court and seek
to defend it.
Indeed, he was successful in the Court below. The rule of practice
that costs follow the result does not govern the
making of orders of
costs in this Court. The relevant statutory provision is to the
effect that orders of costs in this Court are
to be made in
accordance with the requirements of the law and fairness. And the
norm ought to be that
cost
orders are not made unless those requirements are met.
In
making decisions on cost orders this Court should seek to strike a
fair balance between on the one hand, not unduly discouraging
workers, employers, unions and employers’ organisations from
approaching the Labour Court and this Court to have their disputes
dealt with, and on the other
,
allowing those parties to bring to the Labour Court and this Court
frivolous cases that should not be brought to Court.
That is a balance that is not always easy to strike but, if the Court
is to err, it should err on the side of not discouraging
parties to
approach these Courts with their disputes. In that way these Courts
will contribute to those parties not resorting to
industrial action
on disputes that should properly be referred to either arbitral
bodies for arbitration or Courts for adjudication.”
[13]
The LAC was
acutely aware that what is required is not a blanket approach but a
striking of a balance, a process that is not easy.
To my mind if the
evidence is overwhelming that the case is frivolous the scale must
tip in favour of making an order as to costs.
Allowing parties to
bring or oppose cases frivolously does not only affects the one party
but it also affects the administration
of justice, the business of
the court and judges. The resources of this court, judges that is,
are thinly spread country wide.
If this court were to allow those
thinly spread resources to be abused, then the provisions of section
34 of the Constitution
[10]
will be severely compromised.
[14]
The
applicant was represented by Counsel, who is fully aware of the
generous approach adopted by courts when it comes to amendments.
Had
the respondent not objected to this perfectly appropriate amendment,
this substantive application would have been obviated.
The applicant
was compelled to bring this application when it should not have been
brought. The opposition by the respondent was
frivolous. The
respondent should not have opposed this application prompted by its
objection. It is indeed so that a party seeking
an amendment is
effectively seeking an indulgence and such a party must bear the
wasted costs. However in instances where the objection
and opposition
is vexatious, frivolous and unreasonable
[11]
,
the other party should bear the costs. I am not persuaded that a case
for a punitive costs order has been made.
[15]
In the results, I make the following order:
Order
1.
The applicant is
granted leave to amend its statement of case in accordance with its
notice of intention to amend dated 13 December
2017;
2.
The respondent
to pay the costs of this application.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant
: Advocate A L
Cook
Instructed
by
: Allardyce & Partners, Midrand
For
the Respondent
: Advocate B L Roode
Instructed
by
: Nicole Ross Attorneys, Woodmead.
[1]
66 of 1995, as amended.
[2]
Rule 6 (1) (b) read with sub (3)(b).
[3]
(144/15)
[2016] ZASCA 54
(01 April 2016).
[4]
My own underlining and emphasis.
[5]
My own underlining.
[6]
See Whittaker v Roos and another
1911 TPD 1092
at 1102.
[7]
See in this regard Becker v MEC for the Department of Economic
Development & Environmental Affairs and others (3366/2013)
[2014] ZAECPEHC 43 (24 June 2014) at paragraph [17] …The
effect of those judgments is that absent the delivery of amended
pages pursuant to rule 28(5) read with sub rule (7
)
there is in fact no amendment
.
[8]
[2018] 4 BLLR 323 (CC).
[9]
(2008) 29 ILJ 1707 (LAC).
[10]
Constitution of the Republic of South Africa, 1996
[11]
Embling v Two Oceans Aquarium CC
2000 (3) SA 691
(C).