THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS 453/24
In the matter between:
ROBERT MHLUPHEKI MTHEMBU Applicant
and
KITSO BOTLHALE CONSULTING
ENGINEERING (PTY) LTD Respondent
Heard: 15 May 2025
Delivered: 02 October 2025
JUDGMENT
SCHENSEMA, AJ
Introduction
[1] This is an application in which the respondent has filed an exception against
the statement of case delivered by the applicant on the basis that it lacks
averments which are necessary to sustain a cause of action.
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The Applicant’s Case
[2] The applicant’s statement of case sets out the following:
2.1. The parties;
2.2. I n respect of the facts which the applicant intends to rely upon to
establish a claim, the applicant simply refers to a number of annexures;
2.3. With reference to the legal issues that arise from the facts, the
applicant once again only makes reference to annexures; and
2.4. In respect of the relief sought by the applicant, the applicant is claiming
his overtime pay for the period 1 February 2021 to 31 January 2024, a
request for a comprehensive overtime review and that the settlement
agreement concluded on 22 February 2024 at the Commission for
Conciliation, Mediation and Arbitration (CCMA) be set aside.
The respondent’s exception
[3] The respondent excepted to the statement of case on the following basis:
3.1 The applicant has failed to set out the material facts upon which he
relies to establish his claim, referring only to annexures without
articulating the factual basis of the claim;
3.2 In terms of paragraph 6 of the statement of case, the applicant is
required to set out the legal principles relevant to the claim. The
applicant has, however, failed to identify or rely on any legal principles
capable of sustaining such a claim;
3.3 In relation to the relief sought for payment of overtime for the period 1
February 2021 to 31 January 2024, the applicant has not pleaded the
existence of an agreement as required by section 10(1)(a) of the Basic
Conditions of Employment Act
1 (BCEA). In the absence of such an
averment, the applicant has failed to disclose a cause of action in
respect of the overtime claim;
1 Act 75 of 1997.
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3.4 Regarding the applicant’s request for a comprehensive overtime
review, and in the absence of an agreement to work overtime, there is
no legal obligation on the respondent to provide such a review;
3.5 In relation to the relief sought to set aside the settlement agreement,
the applicant has failed to establish why the agreement is not legally
binding on the parties and has not pleaded any basis upon which the
agreement is not enforceable;
3.6 The respondent further disputes this Court’s jurisdiction on the grounds
that, even if it were found that the applicant has pleaded sufficient facts
to sustain a claim for overtime, this Court lacks the authority to
adjudicate the claim. This is due to the settlement agreement
concluded between the parties at the CCMA in February 2024, which
was intended to constitute a full and final settlement of the dispute and,
according therefore extends to any future disputes arising from the
employment relationship. The respondent contends that, unless and
until this settlement agreement is set aside, this Court lacks jurisdiction
to entertain the overtime claim; and
3.7 A portion of the applicant’s overtime claim has prescribed, as the
applicant only served his statement of case in August 2024.
[4] In opposition the applicant, in what purports to be a letter to Mr Derik van der
Linde, inter alia records the following:
4.1 Case law pertaining to the applicant’s request for a comprehensive
overtime review and that an employer is required to maintain accurate
records and has a duty to account , with specific reference to the
settlement agreement;
4.2 The applicant reiterates the relief he seeks by requesting that this
Court compel the respondent to provide a detailed account of all the
payments made under the settlement agreement;
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4.3 In respect of the legal principles, the applicant refers to his heads of
argument contained in the annexures attached to his statement of
case;
4.4 The instructions to work overtime were verbal and were consistent, and
the applicant considers that each verbal instruction and the resulting
overtime worked constitutes an acknowledg ement of debt. Prescription
is not applicable as the period of prescription should only be calculated
from the last date of overtime worked, being 31 January 2024, and
accordingly, the period would only expire in January 2027;
4.5 The applicant further reiterates that he has provided detailed reports
attached as annexures in confirmation of his claim;
4.6 This Court has jurisdiction in terms of section 77 of the BCEA , which
grants this Court exclusive jurisdiction in respect of all matters in terms
of the BCEA. Furthermore, that section 77(3) of the BCEA provides this
Court with concurrent jurisdiction with the civil courts to hear and
determine any matter concerning a contract of employment.
[5] The applicant further raised a number of concerns during the Court
proceedings, in relation to what the applicant considers to be a “serious
procedural irregularity that affects the fairness and lawfulness of these
proceedings”.
[6] The basis of the applicant’ s objection to the exception relates to the
respondent’s failure to serve a complete indexed bundle as is required in
terms of Rule 4(1)(a) of the Labour Court Rules
2. The applicant confirms
having received certain annexures, however ‘ key’ documents, as referred to
by the applicant, were omitted.
[7] The applicant further makes reference to the respondent’s failure to deliver
the pre-trial minute, and it is therefore ‘ irregular’ in the applicant’s view that
2 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect
from July 2024.
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these proceedings continue. Furthermore, there had been no proper service
by the respondent on the applicant.
The Legal Framework
[8] Rule 41 of the Labour Court Rules 3 allows for interlocutory applications and
procedures not specifically provided for in other rules. Rule 41 requires that
the application be brought on notice and in applications dealing with
procedural aspects, no affidavit is required.
[9] The High Court in Living Hands (Pty) Ltd and another v Ditz and others, 4
summarised the basic principles governing exceptions as follows:
‘(a) In considering an exception that a pleading does not sustain a cause
of action, the court will accept, as true, the allegations pleaded by the
plaintiff to assess whether they disclose a cause of action.
(b) The object of an exception is not to embarrass one’s opponent or take
advantage of a technical flaw, but to dispose of the case or portion
thereof in an expeditious manner, or to protect oneself against an
embarrassment which is so serious as to merit the costs even of an
exception.
(c) The purpose of an exception is to raise a substantive question of law
which may have the effect of settling the dispute between the
parties…
(d) An excipient who alleges that a summons does not disclose a cause
of action must establish that, upon any construction of the particulars
of claim, no cause of action is disclosed.
(e) An over-technical approach should be avoided because it destroys the
usefulness of the exception procedure, which is to weed out cases
without legal merit.
(f) Pleadings must be read as a whole and an exception cannot be taken
to a paragraph or a part of a pleading that is not self-contained.
3 GN 4775 of 2024: Rules Regulating the Conduct of the Proceedings of the Labour Court.
4 2013 (2) SA 368 (GSJ); [2012] ZAGPJHC 218 at para 15.
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(g) Minor blemishes and unradical embarrassments caused by a pleading
can and should be cured by further particulars.’
[10] An exception founded upon the contention that a summons discloses no
cause of action, or that a plea lacks averments necessary to sustain a
defence, is designed to obtain a decision on a point of law which will dispose
of the case in whole or in part and avoid the leading of unnecessary evidence
at the trial.
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[11] It is evident that the court grants parties considerable flexibility in how they
frame their pleadings, as there are numerous opportunities later in the
proceedings to elaborate on issues, including a pre- trial conference, the
exchange of documents, and ultimately, the presentation of evidence.
[12] It must also be kept in mind that the C ourt’s role at this stage is not to
determine whether the applicant’s contention is correct, but rather whether the
respondent is unable to plead or properly prepare for trial. This is assessed in
light of the further opportunities available to obtain additional information and
clarification as the proceedings progress.
[13] In respect of Rule 6
6 of the Rules of this Court, in Harmse v City of Cape
Town7 Waglay J (as he then was) said the following:
‘[6] The statement of claim serves a dual purpose. The one purpose is to
bring a respondent before the c ourt to respond to the claims made of
and against it and the second purpose of a statement of claim is to
inform the respondent of the material facts and the legal issues arising
from those facts upon which Applicant will rely to succeed in its
claims.
[7] The material facts and the legal issues must be sufficiently detailed to
enable the respondent to respond, that is, that the respondent must be
informed of the nature or essence of the dispute with sufficient factual
5 Inzalo Communications & Event Management ( Pty) Ltd v Economic Value Accelerators ( Pty) Ltd
2008 (6) SA 87 (W); [2008] 4 All SA 103 (W).
2008 (6) SA 87 (W); [2008] 4 All SA 103 (W).
6 Practice Manual of the Labour Court of South Africa, effective 2 April 2013, repealed with effect from
July 2024.
7 (2003) 24 ILJ 1130 (LC); [2003] 6 BLLR 557 (LC).
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and legal particularity so that it knows what it is that the a pplicant is
relying upon to succeed in its claim.
[8] The Rules of this Court do not require an elaborate exposition of all
facts in their full and complex detail – that ordinarily is the role of
evidence, whether oral or documentary. There is a clear distinction
between the role played by evidence and that played by pleadings –
the pleadings simply give the architecture, the detail and the texture of
the factual dispute are provided at the trial. The pre-trial conference
provides an occasion for the detail or texture of the factual dispute to
begin to take shape. In terms of rule 6(4)(b) the parties in the pre-trial
conference must attempt to reach consensus on facts that are
common cause, facts that are in dispute, the issues that the court is
required to decide and the precise relief claimed.’
[14] In Liquid Telecommunication (Pty) Ltd v Carmichael – Brown8 Van Niekerk J
(as he then was) quoted with approval the views expressed by Wag lay, J (as
he then was), as to the emphasis on complying with Rule 6 so as to inform the
Court and the respondent of the facts, not the evidence, upon which the
applicant wishes to rely. Both the Court and the respondent need to know
what the a pplicant’s case is about in respect of factual allegations and legal
issues.
[15] In Association of Mineworkers and Construction Union (AMCU) v Chamber of
Mines South Africa and Others 9 this Court had the following to say relating to
exceptions raised in this Court:
‘It is my view, that such court in deciding on this aspect has to take into
account, inter alia, (i) the manner in which the pleadings have been crafted,
(ii) the onus of proof, (iii) burden to adduce evidence, (iv) the manner in which
such point has been raised, (v) the relief sought, and (vi) the type of exception
(either lacks averments which are necessary to sustain an action or vague
and embarrassing) that has been raised by such party and other factors.’
and embarrassing) that has been raised by such party and other factors.’
8 (2018) 39 ILJ 1779 (LC); [2018] 8 BLLR 804 (LC).
9 [2017] ZALCJHB 462.
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[16] In respect Rule 11 of the Rules of this Court10, an applicant is required to file a
statement of claim in order to initiate proceedings in this C ourt, which
statement of claim must inter alia include:
‘(ii) a clear and concise statement of the material facts, in chronological
order, on which the party relies, in sufficiently particular terms to
enable any opposing party to plead to the statement of claim;
(iii) a clear and concise statement of the legal issues that arise from the
material facts, in sufficiently particular terms to enable any opposing
party to plead to the statement of claim.’
Analysis
[17] As aforementioned, the applicant has simply filed the template document
provided by this Court and only refers to annexures in support of the
statement of material facts he is required to provide and the legal issues that
arise from the material facts similarly , no statement is provided, and the
applicant simply attaches annexures in support hereof.
[18] The applicant, in terms of the statement of case, has not set out a clear and
concise statement of the material facts, in chronological order and in sufficient
particularity to enable the respondent to plead to the statement of case.
[19] It would seem from the reading of the statement of case that the applicant
attaches his annexures in support of his claim, however, he does not provide
any statement to substantiate his reliance on the annexures and accordingly
fails to provide sufficient particularity to enable the respondent to plead
thereto.
[20] Similarly, the applicant has also not provided a clear and concise statement of
the legal issues that arise from the material facts as he once again only refers
to annexures. It can only be gleaned from the relief sought by the applicant
that the applicant seeks to set aside the settlement agreement concluded in
the CCMA in February 2024, the payment of overtime for the period 1
February 2021 to 31 January 2024 and a comprehensive overtime review.
10 Supra.
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[21] In considering Rule 11 of the Labour Court Rules , the applicant has not
complied with his obligations, and it is for this reason that the exception raised
by the respondent must succeed.
[22] In relation to the concerns raised by the applicant, particularly regarding the
respondent’s service of the N otice in terms of Rule 41 of the Labour Court
Rules, there is no basis for such concern given that the applicant has
responded to the respondent’s exception. As for the documents the applicant
alleges he did not receive, this issue need not be addressed in view of the
relief granted below.
[23] I have further considered whether there would be any value in giving the
applicant an opportunity to file an amended statement of case.
[24] The applicant ultimately seeks to have the settlement agreement in respect of
an unfair dismissal dispute filed under case number GATW1592/34,
concluded in the CCMA in February 2024 set aside, and to compel the
respondent to conduct a comprehensive overtime review and to make
payment of outstanding overtime.
[25] With reference to the settlement agreement, the parties had specifically
agreed that the agreement was in full and final settlement of the dispute
referred to the CCMA , as well as in full settlement of all statutory payments
due to the applicant as reflected in paragraph 5 of the settlement agreement.
[26] I have further considered the jurisdictional ruling made by Commissioner
Christine Levey on 29 July 2024 under case number GATW9757/24, in
respect of a dispute the applicant had subsequently referred to the CCMA in
terms of section 73A of the BCEA in July 2024.
[27] The ruling ultimately concluded that in light of the fact that the parties had
settled the dispute, in terms of the settlement agreement signed in February
2024, which settlement agreement was in full and final settlement of the
dispute, the applicant was directed to approach this Court to have the
settlement agreement set aside.
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[28] Having regard to the applicant’s opposition to the exception, the applicant
submits that the dispute in relation to the unpaid overtime remains unresolved
and for this reason is not included in the settlement agreement .
Notwithstanding this submission, the applicant has set out no basis in the
statement of case as to why the settlement agreement should be set aside.
[29] Whilst the applicant’s statement of case does not comply with Rule 11 of the
Labour Court Rules , in the matter of Evrigard (Pty) Ltd and Another v Select
PPE (Pty) Ltd 11 this case highlights that a court has permitted, in instances
where the court has struck out particulars of claim based on the failure to
disclose a cause of action, plaintiffs may be given leave to amend their
particulars of claim. The Supreme Court of Appeal has described this as an
“established practice”.
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[30] The Constitutional Court in Affordable Medicines Trust and Others v Minister
of Health and Others
13 has clearly stated that amendments are only
impermissible in exceptional cases:
‘[A]mendments 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.’
[31] As was underscored in Affordable Medicines Trust and Others v Minister of
Health and Others , the applicable test is one grounded in the interests of
justice. Having regard to this principle, I am satisfied that it would be in the
interests of justice to afford the applicant an opportunity to amend his
statement of case. Such an amendment would enable the Court, in due
course, to properly consider whether the applicant is able to establish a basis
for setting aside the settlement agreement.
[32] In the premises, I make the following order:
[32] In the premises, I make the following order:
11 [2024] ZAGPJHC 183; [2024] JOL 63283 (GJ) as referred to in the matter of Element Six
(Production) (Pty) Ltd v Solidarity and Others [2025] ZALCJHB 109; (2025) 46 ILJ 1426 (LC).
12 Rowe v Rowe 1997 (4) SA 160 (SCA) at 167G – H.
13 2006 (3) SA 247 (CC) at para 9.
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Order
1. The exception is upheld, and the applicant’s statement of case dated 8
August 2024 is struck out.
2. The applicant is granted leave to amend his statement of case within
15 days from the date of this order.
3. There is no order as to costs.
_______________________
H. Schensema
Acting Judge of the Labour Court of South Africa
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Appearances
For the Applicant: Self-represented
For the Respondent: Advocate P Kirstein
Instructed by: Couzyn Hertzog & Horak Attorneys