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[2018] ZALCPE 19
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East Cape Midlands College v Abdullah (PS35/17) [2018] ZALCPE 19; [2018] 8 BLLR 788 (LC) (4 May 2018)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
Case
no: PS35/17
In
the matter between:
EAST
CAPE MIDLANDS
COLLEGE
Applicant
and
MOEGAMAT
RIDWAAN
ABDULLAH
Respondent
Heard:
02 May 2018
Delivered:
04 May 2018
Summary:
An amendment of a statement of response-no prejudice shown.
Where an objection and opposition is frivolous costs
order to be
made. Held: (1) Leave to amend granted. Held: (2) The respondent to
pay the costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is an application for leave to amend a statement of response.
The applicant, the respondent in the main referral sought
to amend
certain paragraphs in its statement of response. The respondent, the
applicant in the main referral 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
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 section
77(3)
of
the
Basic
Conditions of
Employment
Act
.
[1]
The applicant opposed the referral. At a particular
point, the applicant sought to amend certain paragraphs in the
statement of response. It is apparent that at first the
applicant amended without affording the respondent an opportunity
to
object to the proposed amendments. The respondent objected to this
step. Consequent thereto, the applicant filed a notice of
intention
to amend. The respondent objected to the proposed amendment. The
respondent raised two grounds for objection, namely,
no delegation
attached and that the purported delegation is illegal.
[3]
The objection prompted the applicant to file a notice of motion on
9 October 2017 seeking leave to amend and
costs.
The respondent opposed. The matter came before me as an opposed
motion.
The
proposed amendment.
[4]
The main paragraph objected to reads thus:
The
Respondent denies that the decision [its council did not resolve] to
terminate the Applicant's services was unlawful for the
reason
provided by the Applicant, or for any other reason. On the contrary,
the decision was taken [at a duly constituted meeting
of the council
by a proper and valid resolution] by the Executive Committee of the
Council [Exco], to which the council had delegated
the authority to
take the decision by proper and valid resolution, a copy of which is
annexed hereto marked "C".
The
objection
[5]
The respondent raised two principal objections. The first objection
is directed to the non-attachment of the delegation. The
respondent contended that annexure "C" did not contain a
delegation to the effect that the Council
authorized EXCO to terminate the respondent's contract of
employment. Further, the respondent contended that annexure
C is
vague and meaningless and renders the proposed amendment
vague and embarrassing. In addition, the delegation
does not contain
sufficient allegations to sustain a defence.
[6]
The
second objection is directed to the legality of the
delegation. Effectively the respondent contended that the delegation
offends the provisions of sections 12 (1) (a) and 12 (3) of
Continuing Education and Training Act
[2]
.
Argument
[7]
Kroon SC appeared for the respondent. He prepared detailed heads of
argument in support of the opposition. Strange
enough, it
was submitted that the application must fail because the
applicant has failed to explain the
reason why it wishes
to change its case. This is different from the first ground for the
objection to the proposed amendment.
[8]
The second ground, upon which it was submitted that the
application must fail, was that the amendment would
render the
pleading excipiable. This again is different from the second
objection of the illegality of the delegation. The third
ground was
that there is no factual basis to support the proposed
amendment. The submission being that
in terms
of clause 9 of the Constitution of the applicant a notice of motion
is required before any matter may be placed
before council for
consideration. Since the applicant is unable to provide a copy
of the aforesaid notice of
motion, the proposed
amendment is not supported by facts, so the
argument went.
[9]
On
the other hand, Grogan appearing for the applicant
contended that the principles governing amendments
as
succinctly spelled out in
Commercial
Union Assurances
Co
Ltd
v Waymark N.
O
[3]
have been met.
Evaluation
[10]
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
[4]
. The
case made by the respondent in the main referral is that he was
terminated without the requisite authority from the
council of the
applicant. That being the case, in order to defend such a case,
the applicant is behoved to present material
facts which
demonstrates that the termination was with the requisite authority
.
[11]
Alleging that the council delegated its powers to
its committee and that its committee
exercised
those powers is an appropriate
statement to make. The initial statement that the
decision was taken
at a duly constituted meeting of council by a proper and valid
resolution lacked sufficient particularity.
By seeking to amend, the
applicant is complying with the requirement of sufficient
particularity. Whether the
applicant would be able to
demonstrate this defence at the trial of the matter is an issue that
does not arise at this stage. Questions
like whether the delegation
is lawful and effective, are questions to be decided by the trial
court after receiving evidence. The
issue of a notice of
motion, may not be a relevant issue even at the
trial stage. To that extent,
this court fails to
understand why such a notice of motion should be exhibited at
this stage in order to make
a sustainable averment as required
by the Rule.
[12]
The
SCA in
Foxlake
Investments v Ultimate Raft Foundation
Design
[5]
,
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
[6]
·
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 760-1]. The practical rule that emerges from these
cases is that amendments will always be allowed
[7]
unless
the amendment is ma/a tide (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".
[13]
The
proposed amendment shall facilitate a proper ventilation
[8]
of the dispute-was the termination authorised. 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 the legality of the delegation. Alleging that there was a
delegation is appropriate for the proper ventilation of
the dispute.
I see no reason why the amendment should not be
allowed.
The
issue of costs
[14]
What
remains is the issue of costs. Since the judgment of
Zungu
[9]
there seem to be a growing view that this court has been stripped of
its discretion to award costs against employee parties.
This view is incorrect. What the Constitutional Court did was to
remind this court of what was said in
Dorki
n
1
[10]
.
The discretion to award costs remains intact.
[15]
As a reminder, the LAC in
Dorkin
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.
[16]
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 frivolous cases does not only affect the opposing 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
[11]
will be
severely compromised.
[17]
The
applicant was represented by a Senior 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 him. 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
unreasonabl
e
[12]
, the
other
party
should
bear
the
costs.
[18]
In the results, I make the following order:
Oder:
1.
The applicant is granted leave to amend its statement of response in
accordance with
its notice of intention to amend dated 7 September
2017.
2.
The applicant (Moegamat Ridwaan Abdullah) is to pay the costs
of this application.
_______________
GN
Moshoana,
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant :
Advocate J G Grogan
Instructed
by :
Joubert Galpin & Searle Attorneys, Port Elizabeth
For
the Respondent :
Advocate P N Kroon
SC
Instructed
by
: McWilliams & Elliott Inc, Port Elizabeth.
[1]
Act 75 of 1997
[2]
Act 16 of 2006. Suffice to mention that section 12 deals with
committees of council to assist council in the performance of its
functions and that the council is not divested of the delegated
responsibilities.
[3]
1985 (2) SA 73 (TK)
[4]
Rule 6 (1) (b) read with sub (3) (b)
[5]
(144/15) [2016] ZASCA 54 (01 April 2016) .
[6]
My own underlining and emphasis,
[7]
My own underlining.
[8]
See Whittaker v Roos and Another
1911 TPD 1092
at
1102.
[9]
Ibid 2
[10]
Ibid 3
[11]
Constitution of the Republic of South Africa, 1996
[12]
Embling v Two Oceans Aquarium CC
2000 (3) SA 691
(C)