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[2019] ZALCJHB 258
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Gauteng Provincial Government and Others v Thelma (JS256/15) [2019] ZALCJHB 258 (28 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no:
JS
256/15
In
the matter between:
GAUTENG
PROVINCIAL GOVERNMENT
First
Applicant
THE
PREMIER, GAUTENG PROVINCIAL
GOVERNMENT Second
Applicant
THE
OFFICE OF THE PREMIER GAUTENG
PROVINCIAL
GOVERNMENT Third
Applicant
and
NGCOBO
THEMBEKILE THELMA
Respondent
Heard
:
23 August 2019
Delivered
:
28 August
2019
Summary:
An amendment of a statement of response. The amendment seeks to
introduce a
lis
which could be defeated by the
undue delay rule. Allowing such an amendment will cause an injustice.
Held: (1) Leave to amend is refused; (2) The applicants to pay the
costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
The
applicant herein sought an amendment to introduce a counterclaim in
this matter. The respondent objected to the proposed amendment,
therefore, the applicants brought this application seeking to be
granted leave to amend – by introducing the
counterclaim, which is to be heard together with the applicant’s
(the respondent in this matter) claim for payment of money
contractually owed brought in terms of section 77 (3) of the Basic
Conditions of Employment Act
[1]
(BCEA). This application is opposed by the respondent.
Background
facts
[2]
For the purposes of this judgment, it is unnecessary to traverse all
the facts of this case.
Suffice to mention that on or about 04 May
2015, the Respondent, Ngcobo referred a claim to be adjudicated by
this Court in terms
of the provisions of section 77(3) of the BCEA.
On or about 17 June 2015, the applicants, the Gauteng Premier and his
office, filed
a statement of response to the claim of Ngcobo. In the
response, they raised a special plea, which prompted Ngcobo to seek
condonation.
On or about 11 September 2015, Acting Justice Baloyi
granted the necessary condonation.
[3]
On or about 04 August 2017, the applicants sought an amendment in
order to insert a counterclaim.
Effectively, the counterclaim aims at
declaring the contract extensions to be unlawful and null and void
ab
initio
. The respondent objected to the proposed amendment. Owing
to the objection, the applicants approach this Court for leave.
Evaluation
[4]
In terms of the rules of this court, an action or process is
instituted
by a statement of case and defended by a statement of
response. Other than those documents, the Rules of this Court does
not make
provision for any other document
en route
to
adjudication.
[5]
Rule
11(3)
[2]
of the Rules of this
Court provides that if a situation for which the rules do not provide
arises in proceedings or contemplated
proceedings, the Court may
adopt any procedure that it deems appropriate in the circumstances. I
must point out, the rule does
not specifically provide that the
procedure to be adopted is one provided in the Rules of another
Court, for instance the Uniform
Rules. It leaves the court with
discretion to adopt any procedure that is appropriate in the
circumstances. I may add, litigants
in this Court seem to abuse this
Rule. Whenever they have the urge to invoke rules of other Courts
they do so by invoking this
Rule. In my view, it is wrong to do so.
The Rule permits the Court to adopt any procedure not litigants to
invoke a rule in another
Court. It could be argued that section 77(3)
claims are effectively civil claims and as such must be treated the
same way as how
the other civil Courts treat them. However, if a
party approaches the Labour Court and not any other civil Court, that
party must
play the game in accordance with the Rules of the Labour
Court
[6]
The notion
of a counterclaim is foreign to the Rules of this Court. The Uniform
Rules of the High Court has in place a procedure
for what it terms a
claim in reconvention. Rule 24
[3]
of the Uniform Rules sets out a procedure for counterclaim. The
question this Court must ask itself is whether it is appropriate
to
adopt the procedure in Rule 24? In my view, it is appropriate to
adopt that procedure. In terms of that procedure, a counterclaim
ought to have been part of the statement of response and it was not.
Therefore, what was then required, was for the applicants
to seek an
agreement from Ngcobo to introduce the counterclaim. It is common
cause in this matter that the agreement of Ngcobo
was not sought.
That being the case, what was available to the applicants was to
approach this Court for leave to bring a counterclaim.
It is also
common cause that the applicants did not do so.
[7]
Instead,
for reasons best known to themselves, they invoked a procedure
contemplated in Rule 28
[4]
of
the Uniform Rules
[5]
. This was
wrong, as this rule was not available to the applicants as it exists
to amend existing pleadings and documents. Therefore,
introduction of
a counterclaim is not an amendment. The counterclaim did not exist
together with the statement of response. Strictly
speaking, this
matter was not supposed to serve before this Court. Rule 24 (5)
provides that if the defending party fails to obtain
consent and/or
leave before delivering a counterclaim, the delivery thereof (which
has not yet happened in this matter) amounts
to an irregular step,
which ought to be dealt with in terms of Rule 30
[6]
of the Uniform Rules. As pointed out above, instead of delivering the
counterclaim, the applicants sought to adopt the Rule 28
procedure.
Thus, Ngcobo could not adopt the procedure in Rule 30
[7]
within the contemplation of Rule 24 (5).
[8]
What Ngcobo should have done was to seek refuge from the Rule 30
procedure once the applicants invoked the Rule 28 procedure. Ngcobo
did not, but she is not to blame for that. Therefore, before
me is an
interlocutory application commenced by the applicants purportedly
brought in terms of Rule 28(4). As I have pointed out
above, Rule 28
was never available for the applicants from the get go. What this
means is that the application is defective and
improperly before me.
This of course would affect the question of costs at the end. Given
my views above, the applicants are bound
to fail.
[9]
However, even if I were to adopt the procedure unavailable to the
applicants and consider this application as a Rule 28 (4)
application, I have fundamental difficulties with the counterclaim.
If allowed, it shall lead to an injustice.
[10]
In
Affordable
Medicines Trust & others v Minister of Health and another
[8]
,
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
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”.
[11]
The
injustice manifests itself in the following manner. Properly
interpreted, in the counterclaim, the applicants are effectively
seeking to review and set aside own decision. I fully agree with Mr
Kela for the respondent that what the applicants are seeking
to do is
not necessarily to invalidate the contract upon which the respondent
sues, but to review its own decision to extend the
appointment on the
principle of legality. In terms of section 158 (1) (h) of the
Labour Relations Act
[9]
(LRA),
this Court has jurisdiction to review any decision taken by the State
in its capacity as an employer. The decision, which
the applicants
allege was unlawful was taken around March 2012 or 2013. Under
section 158(1) (h) an illegal and/or unlawful decision
is capable of
being reviewed and set aside
[10]
.
[12]
The section does not provide a time period within which the review
could be launched. What
then applies is the undue delay rule. It
takes the court of review to decide whether the delay may be
overlooked or not. I doubt
whether a court of review would overlook a
delay of 7 years or so. Therefore, if the amendment is allowed, this
Court would be
allowing the applicants to seek a review but not in
terms of the section available for such reviews. The net effect of
that would
be to deny the respondent, Ngcobo to raise, as an
available defence, a defence of undue delay to review and setting
aside of an
administrative decision, as correctly submitted by Mr
Kela.
[13]
I disagree with a submission from Malindi SC appearing for the
applicants to the effect
that the decision to extend an appointment
is not an administrative action. It is, the official who motivated
for the extension
was seeking the Premier to exercise a statutory
power and not a contractual power. Should the applicants choose to
invoke the provisions
of Promotion of Administrative Justice Act
(PAJA), they would have to contend with the 180 days prescribed
period. Should they
choose the section 158(1) (h) process, they would
have to contend with the undue delay rule. Allowing them to bypass
all the above
hurdles would be nothing but an injustice.
[14]
This being a civil claim under section 77(3), Prescription Act, may
not be available to
the respondent. Equally, the undue delay rule may
not be available to the respondent. Therefore, an injustice would be
allowed
if the amendment is granted. For all the above reasons, this
application is bound to fail.
The
issue of costs
[15]
What remains is the issue of costs. I take a view that regard being
had to the conduct
of the applicants in invoking the wrong procedures
and most of all attempting to by-pass the available remedy in section
158(1)(h),
the dictates of the law and fairness commands that an
order as to costs must be made. It is unfair to expect Ngcobo to be
mulcted
with costs in an instance where the applicants, who were
properly represented from the word go, invoked wrong procedures and
attempted
to by-pass the available remedies in the LRA. This is a
conduct this Court must frown upon and as mark of displeasure make an
order
as to costs.
[16]
In the results, I make the following order:
Order
1.
The application for leave to amend is dismissed.
2.
The applicants are ordered to pay the costs of
this application, jointly and severally, the one paying, the other to
be absolved.
_______________________
G. N. Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant
: Advocate G Malindi
SC with him Molokomme
Instructed
by
: State Attorney, Johannesburg.
For the
Respondent
: Advocate D Kela.
Instructed
by
: Ndumiso Voyi Inc
[1]
Act 75 of 1997.
[2]
11.
Interlocutory applications and procedures not specifically provided
for in other rules –
(3)
If a situation for which these rules do not provide arises in
proceedings or contemplated proceedings, the court may
adopt any
procedure that it deems appropriate in the circumstances.
[3]
24
Claim in Reconvention
(1)
A defendant who counterclaims shall, together with his plea,
deliver a claim in reconvention setting out the material
facts
thereof in accordance with rules 18 and 20 unless the plaintiff
agrees, or if he refuses, the court allows it to be delivered
at a
later stage. The claim in reconvention shall be set out either in a
separate document or in a portion of the document containing
the
plea, but headed 'Claim in Reconvention'. It shall be unnecessary to
repeat therein the names or descriptions of the parties
to the
proceedings in convention.
(2)
If the defendant is entitled to take action against any other
person and the plaintiff, whether jointly, jointly and
severally,
separately or in the alternative, he may with the leave of the court
proceed in such action by way of a claim in reconvention
against the
plaintiff and such other persons, in such manner and on such terms
as the court may direct.
(3)
A defendant who has been given leave to counterclaim as
aforesaid, shall add to the title of his plea a further title
corresponding with what would be the title of any action instituted
against the parties against whom he makes claim in reconvention,
and
all further pleadings in the action shall bear such title, subject
to the proviso to subrule (2) of rule 18.
(4)
A defendant may counterclaim conditionally upon the claim or defence
in convention failing.
(5)
If the defendant fails to comply with any of the provisions of this
rule, the claim in reconvention shall be deemed
to be an irregular
step and the other party shall be entitled to act in accordance with
rule 30.
[4]
28
Amendment of Pleadings and Documents
[5]
Counsel for the applicant conceded correctly in my view that foreign
rules are to be adopted by this Court and not be invoked
by parties.
Contrary to this submission, the applicants invoked a rule 28
procedure.
[6]
30
Irregular Proceedings
(1)
A party to a cause in which an irregular step has been taken
by any other party may apply to court to set it aside.
(2)
An application in terms of subrule (1) shall be on notice to
all parties specifying particulars of the irregularity
or
impropriety alleged, and may be made only if-
(a)
the applicant has not himself taken a further step in the
cause with knowledge of the irregularity;
(b)
the applicant has, within ten days of becoming aware of the
step, by written notice afforded his opponent an opportunity
of
removing the cause of complaint within ten days;
(c)
the application is delivered within 15 days after the
expiry of the second period mentioned in paragraph (b)
of subrule
(2).
(3)
If at the hearing of such application the court is of opinion
that the proceeding or step is irregular or improper,
it may set it
aside in whole or in part, either as against all the parties or as
against some of them, and grant leave to amend
or make any such
order as to it seems meet.
(4)
Until a party has complied with any order of court made
against him in terms of this rule, he shall not take any further
step in the cause, save to apply for an extension of time within
which to comply with such order.
[7]
See:
Shell
SA Marketing (Edms) Bpk v Wasserman h/a Wasserman Transport
2009 (5) SA 212 (O).
[8]
[2005] ZACC 3
;
2006 (3) SA 247
(CC) at para 9.
[9]
Act 66 of 1995, as amended.
[10]
See
Khumalo
and another v MEC for Education: Kwazulu-Natal Case CCT 10[13
[2013]
ZACC 49
(CC).
this
case dealt with a promotion allegedly no complaint with the Public
Services Act. The MEC sought to have the promotion set
aside and
approached this Court under section 158(1) (h), something the
applicant could still do, if so advised.