IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JS 721/20
In the matter between:
BRIAN MONNAKGOTLA SEOPOSENGWE Applicant
and
LINDSAY SAKER AUDI CENTRE SANDTON Respondent
Heard: 13 September 2024
Delivered: 01 September 2025
JUDGMENT
KUMALO AJ,
Introduction
[1] This is an interlocutory application in terms of rule 11(3) of the now repealed
Rules for the Conduct of Proceedings in the Labour Court (the Rules), read
together with rule 23 of the Rules Regulating the Conduct of the Proceedings
of the Several Provincial and Local Divisions of the High Court of South Africa
(the Uniform Rules of Court), in which the respondent herein takes exception
to the plaintiff’s statement of claim.
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Background
[2] This matter came before this Court previously on 7 October 2021, wherein the
respondent took exception to the statement of claim. In an order by Mahosi J,
the applicant was ‘granted leave to amend his statement of claim in order to
set out the basis on which he contends that his dismissal was automatically
unfair, and the basis on which he contends that the respondent breached the
employment contract and adequately set out the quantification of the
damages he claimed.’
[3] Thereafter, the applicant filed an amended statement of claim, against which
the current exception was filed. The respondent excepts to the plaintiff’s
statement of claim on the basis that it is vague and embarrassing,
alternatively that it fails to disclose a cause of action.
The respondent’s exception
[4] In the notice of exception, the respondent raises various grounds for the
exception, a quick sum up of which is that they are unable to plead to the
plaintiff’s statement of claim , as it does not adequately disclose a cause of
action. They submit that it is not their responsibility to infer or determine what
the cause of action is and that the plaintiff’s claim lacks sufficient particularity,
particularly in relation to the following:
5.1 The statement of claim does not contain the relevant averments
regarding the cause of action in that it does not state on what legal
bases he is claiming an automatically unfair dismissal;
5.2 The statement of claim does not contain a clear and concise statement
of the material facts that the plaintiff places reliance upon to sustain his
claim of an automatically unfair dismissal;
5.3 The plaintiff has failed to aver sufficiently to sustain a claim of
automatic unfair dismissal, breach of employment contract , or to
sustain a damages claim , and therefore, it is vague and embarrassing
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and does not contain the necessary averments to sustain a cause of
action.
[5] The respondent argued that the claim for an automatic unfair dismissal was a
strategy that the applicant chose to pursue in order to get a higher amount of
compensation and that, as such, is merely submitting facts that it hopes, when
read together, will be enough to sustain his claim. However, by doing so, the
pleadings do not sustain a cause of action for any of the claims made by the
applicant, especially for one made in terms of section 187 of the Labour
Relations Act
1 (LRA), alternatively, lacks the relevant particulars needed to
sustain a breach of contract claim as well as a claim for damages.
Applicant’s response
[6] In argument at the hearing of the matter, t he applicant submits that the
pleadings clearly indicate that the reason behind his dismissal was due to his
refusal to accept a demand from the respondent and therefore his dismissal
was automatically unfair in terms of section 187(1)(c) of the LRA.
Legal Principles
[7] It is now trite that the basic rule of pleading is to set out the legal and factual
averments upon which the plaintiff places reliance to sustain a cause of
action. It must be enough ex facie to determine whether the factual averments
made are enough to sustain the legal merit of a cause of action.
[8] Rule 23 (1) of the Uniform Rules state that:
‘23 Exceptions and Applications to Strike Out
(1) Where any pleading is vague and embarrassing or lacks averments
which are necessary to sustain an action or defence, as the case may
be, the opposing party may, within the period allowed for filing any
subsequent pleading, deliver an exception thereto and may set it
down for hearing in terms of paragraph (f) of subrule (5) of rule (6):
Provided that where a party intends to take an exception that a
pleading is vague and embarrassing he shall within the period allowed
1 Act 66 of 1995.
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as aforesaid by notice afford his opponent an opportunity of removing
the cause of complaint within 15 days: Provided further that the party
excepting shall within ten days from the date on which a reply to such
notice is received or from the date on which such reply is due, deliver
his exception.’
[9] Similarly, rule 18 (4) of the Uniform Rules state that:
’18 Rules relating to Pleading generally
(4) Every pleading shall contain a clear and concise statement of the
material facts upon which the pleader relies for his claim, defence or
answer to any pleading, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto.’
[10] An exception is taken when a party objects to a pleading, who they aver on
the face of it, is materially defective in its formulation, in that an exception
presupposes that the cause of action is without legal merit on the basis that
the averments made to sustain the legal merit of the cause of action is left
wanting, in that there was not sufficient particularity in the averments for the
opposite party to reply thereto.
[11] In the matter of Trope v South African Reserve Bank and another and two
other cases
2 the court held that when an exception is taken on the basis of
the pleadings being vague and embarrassing, the enquiry into same is a two
stepped enquiry, the first being whether the pleading lacks particularity to the
extent that it is vague and second whether the vagueness causes
embarrassment to the extent that the excipient is prejudiced.
[12] In the matter of Uys v Municipality of Heidelberg
3 the Court held that as long
as the cause of action is stated and or identifiable from your statement of
claim or summons , and there is not enough information for the excipient to
plead, they may then ask for further particulars. However, if the cause of
action is not identifiable from the particulars, then that is a defect that cannot
be sustained.
2 1992 (3) SA 208 (T).
3 1937 CPD 174.
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[13] In the matter of Simmadari v ABSA Bank Ltd 4 the court in upholding an
exception to the statement of claim held that the test is whether, even on a
generous reading of the particulars, a cause of action can be made out. When
it comes to a claim for an automatic unfair dismissal, the pleadings have to
show at the very least the basic framework on which the applicant relies to
prove their claim.
[14] It is trite law that a party stands and falls by its pleadings. As held in
Simmadari supra the Court needs to read the pleadings generously to
establish whether it contains all material facts on which the applicant relies to
sustain his or her cause of action. A plaintiff cannot merely make a statement
as a matter of legal certainty without pleading when and how that statement
came into effect. As the Constitutional Court in Le Roux and Another v
Johannes G Coetzee and Seuns and Another
5 stated:
‘In pleadings, conclusions of law must be supported by facts … This is
because the material facts and the legal conclusions that are to be drawn
from those facts, are determined by the plaintiff’s pleaded claim.’
Analysis
[15] There are various factual submissions made in the applicant’s statement of
claim, however, as can be seen by the order of Mahosi J previously, there
seems to be allegations regarding various claims that the applicant makes, in
that there is a claim of an unfair automatic unfair dismissal, a procedurally and
substantively unfair dismissal, constructive dismissal, breach of contract and a
claim for damages arising from the breach of contract.
[16] The plaintiff’s pleadings leave one somewhat confus ed as to what exactly is
the cause of action, what sustains that cause of action and the facts that they
rely on. The pleadings then read as though it is a foregone conclusion that the
facts placed before the court support his claim of an automatic unfair
dismissal without stating how.
4 [2018] 7 BLLR 710 (LC).
5 2024 (4) BCLR 522 (CC) at paras 160 and 161.
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[17] The court has to read the pleadings generously . However , even on a
generous reading of the pleadings , it is hard to point to the case the
respondent has to meet and what facts the plaintiff relies upon to support that
case. On the most generous reading of the pleadings, it seems as though the
case the plaintiff wishes to advance is that his dismissal was automatically
unfair and all the instances that he raises in his pleadings sustain that claim.
[18] It only became clearer in argument at the hearing of this interlocutory
application what the plaintiff was trying to advance in his pleadings , i.e. that
his dismissal was automatically unfair because the true cause for his
dismissal was not for misconduct due to abscondment but due to his failure to
accede to a demand of his employer. Unfortunately, this is not borne out by
his pleadings. It is not for the Court to read into pleadings but to find whether
the pleadings, on their own, sustain that cause of action with the relevant
factual material required.
[19] In casu the plaintiff had to show in his pleadings that his cause of action is
based on the action of the employer, that ‘but for’ his refusal to accede to their
demand, he would not have been dismissed, thereby making his dismissal
automatically unfair. Again, unfortunately, this is not borne out in the
pleadings. To compound matters, the pleadings do not demonstrate whether
the applicant, who is an individual employee, is permitted to refer a dispute
within the meaning of section 187(1)(c) of the LRA.
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Conclusion
[20] On the most generous reading of the pleadings , there is no pleading of
sufficient particularity to sustain a cause of action of an automatic unfair
dismissal based on his refusal to accede to a demand by his employer. Had it
not been for the probing of the Judge at the hearing of the matter, this too
would have remained an enigma, with the cause of action being a mystery.
[21] Therefore, in conclusion, I believe that the pleadings are vague and
[21] Therefore, in conclusion, I believe that the pleadings are vague and
embarrassing on a reading of the same.
6 Hofmeyr v Saaiman t/a SA Endovascular Group Practice (2020) 41 ILJ 659 (LC) at apars 40 – 47.
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[22] In the premises, the following order is made:
Order:
1. The respondent’s exception is upheld.
2. The applicant is granted 21 days to file a further amended statement of
claim.
3. In the event of non- compliance with order (2) above, the respondent is
granted leave to apply for the claim to be dismissed.
4. There is no order as to costs.
___________________
M. Kumalo
Acting Judge of the Labour Court of South Africa
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APPEARANCES:
For the applicant: F. Makhanya, of Floyd Makhanya Incorporated.
For the respondent: M. Hatherell, Official of CTL Management Forum.