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[2025] ZALCCT 81
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LSM Distributors (Pty) Ltd TA Porsche Centre Cape Town v George and Others (C300/2023; C111/2024) [2025] ZALCCT 81 (22 September 2025)
THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
Case
no: C300/2023 & C111/2024
Not
reportable
In
the matter between:
LSM
DISTRIBUTORS (PTY) LTD
T/A
PORSCHE CENTRE CAPE TOWN
Excipient/
Applicant
and
LUKE
GEORGE
First
Respondent (Applicant in C111/2024)
T
NDZOMBANE
N.O.
MIBCO
DISPUTE RESOLUTION
CENTRE
CAPE TOWN
Second
Respondent
Third
Respondent
Date
of Hearing:
11 September 2025
Date
of Judgment:
22
September 2025
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email, publication on
the Labour Court website and
release to SAFLII. The date and time for handing down judgment is
deemed to be 10h00 on 22 September
2025.
Summary:
(Application to consolidate review and
counter-review applications in respect of the same arbitration award
– granted –
applicant’s notice of exception
irregular and without merit - dismissed).
JUDGMENT
LESLIE
AJ
[1]
On 5 June 2023, the second respondent, acting in his capacity as an
arbitrator under the auspices of the third respondent,
issued an
arbitration award (“the award”) in which he held that the
dismissal of the first respondent (“Mr George”)
had been
substantively and procedurally unfair. Compensation equivalent to two
months’ salary was awarded.
[2]
Under case number C300/2023, the applicant (“Porsche Centre”)
seeks to review and set aside the award. This
application was
instituted on 28 June 2023. It is opposed by Mr George.
[3]
Under case
number C111/2024, Mr George seeks to review and set aside the award,
insofar as he takes issue with the relief awarded.
[1]
Since this “counter-review” application was filed out of
time, Mr George has applied for condonation. This application
is
opposed by Porsche Centre.
[4]
Mr George has applied for the consolidation of the two review
applications. Porsche Centre opposes the consolidation application.
[5]
In addition, Porsche Centre has issued a “Notice of Exception”.
[6]
This judgment addresses the notice of exception and the consolidation
application.
The
notice of exception
[7]
The “Notice of Exception” runs to 27 pages. It is highly
irregular and, for the reasons set out below, it
borders on an abuse
of the process of this court.
[8]
At the
hearing of this matter, I asked Mr Holliday, who appeared for Porsche
Centre, whether he had any authority for the proposition
that an
exception may be raised in motion proceedings. Mr Holliday relied on
two cases:
Mothulwe
v Labour Court, Johannesburg
(“Mothulwe”)
[2]
and
Zwane v
Sasol Technology
(“Sasol”).
[3]
[9]
Neither
case remotely offers support for the proposition that an exception
may be raised in motion proceedings.
[4]
This is unsurprising. In motion proceedings, the notice of motion and
founding affidavits comprise the pleadings and the evidence.
If a
respondent in motion proceedings forms the view that no cause of
action has been disclosed (or are vague and embarrassing)
his
recourse is to seek that the application be dismissed.
[5]
[10]
Even if it were permissible in principle to consider an “exception”
to the founding papers in C111/2024,
the respondent has failed to
make out any cogent case in this regard.
[11]
At the
hearing of this matter, Mr Holliday submitted that his first ground
of exception was that the papers in C111/2024 had never
been served
on the respondent.
[6]
This is
clearly not a cognisable ground of exception. It also places Porsche
Centre in an invidious position, as it is difficult
to discern how it
can succeed in “excepting” to papers which it (allegedly)
has not received.
[12]
On perusal of the Notice of Exception, it appears that Porsche Centre
raises a host of complaints that do not fall within
the permissible
ambit of exceptions (namely, an objection that the pleadings either
do not disclose a cause of action or are vague
and embarrassing).
[13]
In this regard:
13.1
Porsche Centre’s first complaint pertains to the contents of Mr
George’s
answering affidavit filed in opposition to the review
in case number C300/2023 – which, in Porsche Centre’s
view, does
not disclose a “defence”. There is no basis on
which to effectively strike out Mr George’s answering
affidavit.
Mr George has an award in his favour. Porsche Centre bears
the onus of proving that it should be set aside on review. The
paucity
of the submissions in Mr George’s answering affidavit
may or may not assist Porsche Centre in convincing the review court
that the award falls to be set aside. The review court will in any
event be required to assess whether Porsche Centre has discharged
its
onus on review.
13.2
As regards Porsche Centre’s complaint in relation to C111/2024,
it is difficult
to understand how Porsche Centre can except to the
contents of the founding papers while simultaneously asserting that
it has not
received them. Its complaint about lack of service is,
again, something that can be raised before the review court. Porsche
Centre’s
opposition to Mr George’s condonation
application is also a matter to be decided by the review court.
13.3
Overall,
having regard to the contents of Mr George’s founding affidavit
in C111/2024, they are clearly not “excipiable”.
A cause
of action is disclosed and the case set out is clear – Mr
George seeks the award to be set aside and replaced with
different
relief.
[7]
[14]
In the premises, the Notice of Exception is both irregular and devoid
of merit. It falls to be dismissed.
[15]
Turning to
the consolidation application, the purpose of consolidating
proceedings is to have issues which are substantially similar
tried
at a single hearing so as to avoid the disadvantages attendant upon a
multiplicity of trials (or applications). The critical
elements are
convenience and the absence of substantial prejudice to one of the
parties.
[8]
[16]
In the present matter, the parties are the same. Both parties are
seeking to review aspects of the award (albeit that
Porsche Centre
challenges the finding of unfair dismissal while Mr George challenges
the extent of the relief granted). The issues
are substantially
similar and interwoven to justify consolidation. These are clearly
issues that should be determined “once
and for all” by
the same court. A weighty factor is that, if two separate cases are
permitted to proceed, the spectre of
conflicting judgments arises.
For example, if Porsche Centre succeeds in its review, it would
render the question of greater relief
(raised in Mr George’s
review) moot. Accordingly, I propose to grant the consolidation order
sought.
[17]
In my view, Porsche Centre’s opposition to the consolidation
application was meritless. In addition, its Notice
of Exception was
highly irregular and ill-considered. I am of the view that an adverse
costs order is warranted.
[18]
Finally, since a full record of the arbitration proceedings has been
filed under C300/2023, there is no reason why this
process should be
duplicated. Mr George will be directed to comply with Rule 37(20)
within 10 days of this order.
[19]
In the premises, the following order is made:
Order
[1] The applicant’s
Notice of Exception is dismissed.
[2] The
applications under C300/2023 and C111/2024 are consolidated.
[3] The applicant
(LSM Distributors t/a Porsche Centre Cape Town) shall pay the first
respondent’s (Mr George’s)
costs of the consolidation
application.
[4] The first
respondent is directed to comply with Rule 37(20), in respect of the
review application under C111/2024, within
10 days of this order.
Leslie
AJ
Acting
Judge of the Labour Court of South Africa
Representatives
–
For
the applicant: M L Holliday
For
the first respondent: J Van Der Schyff, instructed by M S Nacereodien
Attorneys
[1]
In his notice of motion, Mr George seeks to have the award
substituted with one of reinstatement. However, in court Mr Van Der
Schyff, who appeared for Mr George, clarified that this would no
longer be pursued but an order of maximum compensation would
be
sought.
[2]
[2025] 8 BLLR 761 (CC).
[3]
[2023] ZAGPPHC 131; 91849/2015 (22 February 2023).
[4]
Mothulwe
involved
the rescission of previous orders made by the Constitutional Court.
Sasol
involved
an exception raised to the plaintiff’s particulars of claim in
action proceedings.
[5]
On the other hand, if an exception in action proceedings is upheld,
it is the pleading to which exception is taken which is destroyed.
The remainder of the edifice does not crumble (
Group
Five Building Ltd. v Government of the Republic of South Africa,
Represented by Minister of Public Works and Land Affairs
1993 (2) SA 593 (AD) 603.
[6]
This was a surprising submission, as there is a notice to oppose the
review application under case number C111/2024 on file,
signed by Mr
Holliday in his capacity as Porsche Centre’s representative.
Be that as it may, service is an issue that may
properly be raised
before the review court.
[7]
Reinstatement, alternatively, maximum compensation.
[8]
Nel v
Silicon Smelters (Edms) Bpk
1981
(4) SA 792
(A) 802B.