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[2020] ZALCJHB 15
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Fourie v Alleyroads Construction (Pty) Ltd; Beyer v Alleyroads Construction (Pty) Ltd (J1544/19) [2020] ZALCJHB 15 (29 January 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no
j 1544/19
In
the matter between
CEDRIC FOURIE
Applicant
and
ALLEYROADS
CONSTRUCTION (PTY) LTD
And
in the matter between:
ALBERTUS
CHRISTIAAN BEYER
and
ALLEYROADS
CONSTRUCTION (PTY) LTD
Respondent
Date
of application: 6 December 2019
Date
of judgment: 29 January 2020
JUDGMENT
JUDGMENT
VAN
NIEKERK J
[1]
The applicants have referred disputes to this court in terms of Rule
6, contending
that the respondent unfairly dismissed them. The
referrals are cast in similar terms, as are the responses to the
statement of
claim. In essence, each of the applicants contends that
he was unfairly retrenched both in a substantive and procedural
sense,
that the respondent failed to pay them severance pay and other
statutory monies, and their salaries for the last month worked. In
each response to the statement of case, the respondent denies any
relationship of employment and avers that the applicants were
engaged
in terms of consultancy agreements. Each response contains a
counter-claim, to which the applicant has excepted.
[2]
The counter-claims, which are conditional on a finding that the true
nature between
the parties is one of employment, read as follows:
1. The Respondent brings
herewith a conditional counter-claim against the Applicant should it
be found that this honourable Court
has jurisdiction over the matter
as a result of the consultancy agreement being found to be an
employment contract.
2. The parties in
reconvention of the parties as in convention and for the sake of
convenience will be referred to as in convention.
3. The Respondent repeats
the content of the Response to the Statement of Case above and
specifically paragraph 7.
[Paragraph 7.4 reads:
‘The Respondent agreed to pay the invoices rendered by the
Applicant once completed on condition that
the Applicant compete
(sic) certain work prior to the end of February 2019 which was the
date which the Applicant wished the retrenchment
to take effect.’
Paragraph 7.5 reads: ‘The
work which was agreed to be completed including but not limited to
inter-alia
the calculation, quantification and reporting back
on counterclaims relating to ALU 2000, Thekwini Reinforcing, Viva
Bricks and
Independent Plumbing Supplies and (sic) well as the
completion of cash flow forecasts for the sites of the Respondent and
assisting
with claims against Live Green, MacSreel and Voltex
Weltevreden.’]
4. As a result of the
Applicant breaching his undertakings to the Respondent the Respondent
suffered damages in that it was required
to:
4.1 engage the services
of another contractor, Chris Muller, in order to complete the work
which the applicant had agreed to complete
at a cost of R125 000.00;
4.2 purchase a new QS DIM
software licensed in the amount of R 80 000.00 as a result of the
Applicant unlawfully
alternatively
negligently reformatting
the laptop which he was using, and which was the property of
Respondent, which resulted in the QS DIM
software including the
existing licence being irretrievably deleted.
5. As a result the
Respondent has suffered damages in the amount of R 205,000.
[3]
The applicants (excipients) contend that the counter-claim is vague
and embarrassing,
and lacks averments necessary to sustain a cause of
action. In particular, the applicants contend that there is
uncertainty as
to the agreement on which it relies. Secondly, the
applicants contend that it cannot be ascertained from the pleadings
which terms
of what undertakings are alleged to have been breached.
Specifically, the excipients contend that:
1. The Labour Court has
jurisdiction over the counterclaim provided that it involves a
contract of employment. The respondent fails
to state, or fails to
state with sufficient particularity, which contract of employment
relies upon in its counterclaim.
2. The respondent fails
to state which terms of the said contract of employment, if any, it
relies upon.
3. The respondent fails
to allege what work it engaged the other contractor (Chris Muller) to
complete.
4. The applicant is
unable to decipher how the respondent’s claim in respect of the
purchase of QS DIM software is related
to the terms of any contract
of employment concluded between the applicant and the respondent.
5 The
respondent fails to allege how the applicant has acted in breach.
6. In the
circumstances, the respondent has failed to plead facts sufficient to
establish a cause of action in its counterclaim
against the
respondent, alternatively the counterclaim is vague and embarrassing.
[4]
The test to be applied when an exception is taken to particulars of
claim on the basis
that they disclose no cause of action is whether
the particulars disclose every fact which it would be necessary for
the plaintiff
to prove if traversed, in order to support the right to
judgment. A pleading is excipiable only if no possible evidence
led
on the pleading can disclose a cause of action (
McKelvey v
Cowan NO
1980 (4) SA 525
(Z)). A distinction is drawn between
facta probanda
, primary factual allegations that must be made,
and the
facta probantia
, or secondary factual allegations in
support of the former. Generally, the latter are matters for
particulars for trial or matters
of evidence.
[5]
What is not apparent from the terms of the counter-claim is the basis
on which the
applicants are alleged to have acted in breach of any
contract of employment and in particular, the clauses of that
contract, or
any undertakings given pursuant to its terms or
otherwise, that they are alleged to have breached. The respondent has
annexed a
consultancy agreement to the statement of response, which
is presumably the source of the obligations to which the respondent
refers.
Thes cope of work is said to be contained in annexure B to
the agreement, which si not annexed to the agreement that has been
filed.
Further, clause 12 of the consultancy agreement contains a
number of warranties by the applicants in relation to work to be
performed.
Clause 9.3 regulates any breach of the agreement and
limits the respondent’s right to cancel the agreement. While as
indicated
above, paragraph 3 of the counter-claim makes specific
reference to paragraph 7 of the statement of claim (and the scope of
work
that the respondent avers was agreed) it is not apparent from
the pleading that the agreement to complete an agreed scope of work
directly or indirectly constituted a specific term of the consultancy
(or employment) contract, or whether the breach of undertaking
on
which the respondent relies is founded in discrete agreements reached
on 20 February 2019.
[6]
In short, the applicants are entitled to be apprised specifically of
the nature of
the agreement and the specific terms of the agreement
and/or other specific undertakings given by them consequent on their
employment
which they are alleged to have breached. These are
facta
probanda
in any claim for damages on account of a breach of
contract.
[7]
There is no reason why costs would not follow the result. It is
practice in this court
in successful exception proceedings to afford
the party concerned an opportunity to file an amended pleading. There
is no reason
why this course of action ought not to be followed in
the present instance.
I
make the following orders:
1. In
case number J1542/19, the exception to the respondent’s
counter-claim is upheld, with costs.
2. In
case number J1544/19, the exception to the respondent’s
counter-claim is upheld, with costs.
3. In
both cases, the respondent is afforded 14 days from the date of this
order to file an amended counter-claim
that records, with reference
to the terms of any contract of employment, the undertakings that the
applicants are alleged to have
breached.
André
van Niekerk
Judge
APPEARANCES
For
the applicants/excipients: Adv. Withaar, instructed by Len Dekker
Inc.
For
the respondent: Adv. M Lennox, instructed by R Stafford.