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[2018] ZALCJHB 459
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Zulu v Eskom Rotek Industries (SOC) Ltd (JS154/18) [2018] ZALCJHB 459 (10 December 2018)
THE
LABOUR COURT OF SOUTH AFRICA,HELD AT JOHANNESBURG
case No: JS154/18
Of interest to other
judges
In
the matter between:
NTOKOZO
PATRICK ZULU
Applicant
(Respondent
in the exception)
and
ESKOM
ROTEK INDUSTRIES (SOC) LTD
Respondent
(Excipient)
Heard
:
6 December 2018
Delivered
:
10 December 2018
Summary:
(Exception and condonation – claim for damages – lack of
clarity in terms of employment contract
relied on – existence
of tacit term must be expressly pleaded – intended amendment
capable of being read to set out
a cause of action –
uncertainty created about the terms of the employment contract
nonetheless rendering statement of claim
vague and embarrassing)
JUDGMENT
LAGRANGE
J Background
[1]
The court must determine an application for condonation for the late
filing of an exception
and if granted the exception itself.
[2]
In December 2018 various exceptions were taken to the applicant’s
statement of case.
Only one exception was upheld partially. The
applicant was required to file an amended statement of case, which he
did on 7 March
2019. Accordingly, any answering statement should have
been filed by 22 March 2019, but instead of filing an answering
statement,
the respondent filed an exception on 23 April 2019.
[3]
The respondent had obtained the consent of the applicant to file a
statement of response
by that date. The applicant did not regard its
indulgence for the late filing of a statement of response to include
another notice
of exception.
[4]
The respondent contends that since the filing of the exception was
covered by the indulgence,
on that basis, the only period of delay is
the period between 22 March 2019 and the dates the indulgence was
granted for in April.
[5]
The applicant counters that the indulgence did not extend to filing
an exception and accordingly
the period of delay is not merely 10
days but just over one month.
[6]
It is true that in terms of the normal applicable time periods a
party may file an exception
instead of an answering statement within
the period for filing the letter. However, when an indulgence is
sought specifically to
file an answering statement, it does not
follow in my view that the party granting the indulgence tacitly
agreed that the respondent
could also file a notice of exception
instead, or that the party seeking the indulgence could assume that
the other party necessarily
contemplated any other form of response
that could be filed within the time permitted for filing an answering
statement in terms
of the rules of court.
[7]
Why it took the respondent so long to come up with the exception is
not adequately explained.
Nonetheless, there was no demonstrable
prejudice suffered by the applicant and he was willing to accept some
further delay in the
matter, even if not to receive a notice of
exception. Moreover, the merits are such that it is better the defect
in the notice
of amendment be addressed now than much later at trial.
[8]
The applicant has brought a claim concerning his contract of
employment with the respondent,
which he entered into on 1 November
2010. He was appointed as the Head of Statutory Equipment Section in
the Power Generation Service
Business Unit of the respondent. Later
he claims he was appointed as an Asset Manager. In April 2015 he was
dismissed on two charges
of misconduct. His subsequent appeal was
also dismissed.
[9]
In the statement of claim he sets out his various contractual
entitlements including his
entitlement to four weeks’ notice in
the event of the termination of his contract. He also notes that he
would have been
due to retire on 31 December 2040 and would have
received an increased pension payment on reaching retirement age as
well as postretirement
benefits.
[10]
He claims that, in dismissing him, the respondent had breached
various provisions of the disciplinary code
and grievance procedure
as well as dismissing him in consequence of the hearing and failing
to pay his notice pay. After setting
out these averments in his
original statement of claim paragraph 17 read:
“
Had
the respondent not breached the contract of employment as stated, the
applicant would have remained in the respondent’s
employment
till retirement age.”
[11]
The remainder of the statement quantifies the damages he claims he
has suffered amounting to R27 990 401,60.
[12]
In his notice to amend paragraph 17, he elaborates and rephrases the
original paragraph cited below and then
expands upon it to try and
explain why he would have continued working for the respondent until
retirement. The paragraph above
was amended to read:
“
Had the respondent
not breached the contract of employment as stated, the applicant
would have remained in the respondent’s
employment till
retirement age, which is 65 years of age i.e. December 2040,
alternatively beyond any notice period in terms of
the contract of
employment.”
[13]
In the subsequent sub-paragraphs of paragraph 17 he sets out the
basis on which he believes his future long-term
employment was
assured. These relate to issues such having been sent on various
courses funded by the employer, the fact that he
was engaged in a
plant maintenance department and the “…
intention
was
that the applicant’s employment in the plant
maintenance department of the respondent
should be akin to
a fixed term of employment linked to the period required for the
completion
of the said Data Maintenance and Service and
Maintenance of Assets under the control of the Plant Maintenance
Department
and it was understood as such by all concerned
”
[emphasis added).
[14]
He further maintains that it was the intention of the respondent to
employ him on a long-term basis and that
its conduct created a
reasonable expectation thereof.
[15]
Lastly, he concludes that the breach of his contract was unlawful and
his dismissal invalid and he was entitled
to declaratory relief
invalidating his termination. Alternatively, in paragraph 18 of his
statement of claim, he claims damages
based on projected earnings and
other benefits he would have earned had he worked until retirement.
He states that these damages
“…
flow naturally from
the respondent’s breach of the contract of employment and are
damages that are normally to be anticipated,
and are in law to be
regarded as within the contemplation of the parties as probable
consequences of a breach of a contract of
employment. Alternatively,
it was at the time of concluding the contract of employment within
the contemplation of the parties
or ought reasonably to have been
within contemplation of the parties, that all the damages as
aforesaid, alternatively or the type
of damages as aforesaid,
probably would flow from a breach of the contract of employment. It
was at the time of concluding of the
contract of employment so within
the actual contemplation of the parties that the contract of
employment was in truth concluded
on that basis
.”
[16]
The exception the respondent takes to the amended paragraph 17 is
that he has not set out a contractual basis
for his claim that he
would have remained employed until the age of retirement, or for the
extensive damages he claims. On the
applicant’s own version, he
was employed on an indefinite basis and his contract was terminable
on one months’ notice.
The respondent argues that the applicant
cannot claim “…contractual damages for a fixed or
determined period when
there is no pleaded contractual provision to
establish a right to be employed until his retirement age”. It
contends that
the reasons he cites in the subparagraphs of paragraph
17 do not establish the existence of a contract of employment
persisting
until his due date of retirement. Alternatively, it pleads
that the statement of claim is vague and embarrassing making it
impossible
for the respondent to plead to it.
[17]
It must be mentioned that the test for succeeding with an exception
sets a relatively high bar for the excipient.
As explained in
Lewis
v Oneanate (Pty) Ltd and Another
[1992] ZASCA 174
;
1992 (4) SA 811
(A):
“
Since these are
proceedings on exception, it must be borne in mind that the appellant
has the duty as excipient to persuade the
Court that
upon
every interpretation which the particulars of claim
,
including annexure 'D',
can
reasonably bear, no cause of action is disclosed
.”
[1]
(emphasis added)
[18]
I agree that there is a tension in the applicant’s
statement of claim, taking into account the
intended amendment of
paragraph 17. On the one hand, he pleads an ordinary indefinite
contract terminable on one months’
notice, which I presume is
in writing, but was not attached to the statement of claim as it
ought to have been. On the other, assuming
the most generous
interpretation of the reformulated paragraph 17, he is contending for
a tacit agreement that his term of employment
was dependent on the
completion of work relating to data maintenance in the Plant
Maintenance Department. Accordingly, he ought
to have expressly
pleaded the existence of a tacit term and whether or not it varied
the original written contract of employment.
[19]
It also appears to me that his claim for an extraordinary sum of
damages is expressed more in terms of the
language that is used for a
claim of special contractual damages. The distinction between general
and special contractual damages
has been expressed thus:
‘
To ensure that
undue hardship is not imposed on the defaulting party . . . the
defaulting party’s liability is limited in
terms of broad
principles of causation and remoteness to (a) those damages that flow
naturally and generally from the kind of breach
of contract in
question and which the law presumes the parties contemplated as a
probable result of the breach, and (b) those damages
that, although
caused by the breach of contract, are ordinarily regarded in law as
being too remote to be recoverable unless, in
the special
circumstances attending the conclusion of the contract, the parties
actually or presumptively contemplated that they
would probably
result from its breach (Shatz Investments (Pty) Ltd v Kalovyrnas
1976
(2) SA 545
(A) at p 550). The two limbs, (a) and (b) of the
above-stated limitation upon the defaulting party’s liability
for damages
correspond closely to the well-known two rules in the
English case of Hadley v Baxendale
(1854) 150 ER 145
, which read as
follows (at p 151):
“
Where two parties
have made a contract which one of them has broken, the damages which
the other party ought to receive in respect
of such breach of
contract should be such as may fairly and reasonably be considered
either arising naturally, ie according to
the usual course of things,
from such breach of contract itself, or such as may reasonably be
supposed to have been in the contemplation
of both parties, at the
time they made the contract, as the probable result of the breach of
it.”
[2]
[20]
Taking the above into account, it appears to me that there is one
possible interpretation of the averments
in paragraph 17, namely that
the applicant is postulating a tacit term regarding the longevity of
the contract of employment and
secondly that his claim for damages
estimated against his expected earnings until retirement can only be
a claim for special damages,
which were within the contemplation of
the parties when the contract was entered into.
[21]
Consequently, I cannot say in applying the test for upholding an
exception that a claim fails to disclose
a cause of action, that no
possible cause of action can be discerned in the proposed amendments
to paragraph 17 of the statement
of case. However, that does not mean
the statement of claim is not vague and embarrassing on account of
the murky way in which
the applicant has drafted paragraph 17. The
respondent cannot be sure whether the applicant is relying on a tacit
term about the
length of his employment, or whether such a term
existed at the time the contract was concluded or later in the form
of a tacit
amendment of the original contract. In so far as the
applicant speaks of an expectation about the life of the contract, he
owes
it to the respondent to clarify whether he is specifically
claiming to have acquired a contractual right based on a reasonable
expectation. All of these things are necessary for the respondent to
be able to know the true nature of all the contractual claims
that
might be lurking in the opaque wording of paragraph 17.
[22]
In conclusion I am satisfied that the exception that the notice of
amendment to the applicant statement of
claim does not disclose a
cause of action cannot be upheld, but the alternative claim that the
amendment would render the statement
of claim vague and embarrassing
should be upheld.
[23]
On the question of costs, a party defending itself against an action
brought by another should not have to
struggle to obtain clarity
about the claims initiated by the other party. The amended paragraph
17 seems almost designed to raise
ambiguity and uncertainty rather
than provide clarity. Such an evasive form of pleading must be
discouraged. Accordingly, I am
satisfied that it is appropriate to
award costs against the applicant.
Order
[1]
The late filing of the respondent’s exception is condoned.
[2]
The respondent’s exception to the applicants notice of
amendment filed on 26 November
2018 on the basis that it does not
disclose a cause of action is dismissed.
[3]
The respondent’s exception in the alternative to the said
notice of amendment on the
basis that it is vague and embarrassing is
upheld.
[4]
The applicant must pay the respondent’s costs.
[5]
The applicant must file a further notice of amendment remedying the
defects in the notice
of amendment filed on 26 November 2018, within
10 court days of this judgment.
_______________________
Robert
G Lagrange
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
H
Gerber instructed by Welman & Bloem Inc.
RESPONDENT:
T
Manchu instructed by Madhlopha & Thenga Inc.
[1]
At 817F-G
[2]
Holmdene
Brickworks (Pty) Ltd v Roberts Construction Co Ltd
1977
(3) SA 670
(A) 687
.