IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO.: J324/97
NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA Appellants
and
DRIVELINE TECHNOLOGIES (PTY) LTD First Respondent
DORBYL LTD Second Respondent
JUDGEMENT
CONRADIE JA
[1] This is an appeal against a refusal by the court a quo to grant an
application for amendment to the appellants’ statement of case. The
individual appellants contend that their dismissal for operational reasons
was unfair because the respondent had not fully complied with its
obligations under section 189 of the Labour Relations Act 66 of 1995 (‘the
Act’). The amendment which was disallowed sought to attack the fairness
of the dismissals, one supposes in the alternative, on the footing that they
were automatically unfair in terms of section 187(1)(c) of the Act.
[2] I should say in passing that the Act in section 173(1)(a) provides
that only appeals against final orders and final judgments of the labour
court are appealable. It was not argued that the refusal of the amendment
by the court a quo was anything other than a final order. (see: South
British Insurance Co Ltd v Glisson 1963 (1) SA 576 (D))
[3] During November 1996 the respondent had purchased the business
of TMI Propshafts (‘TMI’) as a going concern. The employment contracts
of all TMI employees were transferred to the respondent. I refer to it as ‘the
respondent’ because it has become common cause that the second
respondent should not have been cited as a party to the application.
[4] During January 1997 there were discussions between the
respondent, its employees and the first appellant concerning the
amalgamation of TMI’s business, which was conducted at Selby in
Johannesburg, with the respondent’s operations which were conducted at
Spartan in Kempton Park. One of the difficulties which came to the fore
during these consultations was that some of the TMI employees would not
relocate to the Spartan premises unless a transport allowance was paid to
them. Another concern of the former TMI employees was that at Selby
they were paid a canteen allowance which the respondent’s employees at
Spartan were not. They insisted upon not losing their canteen allowance.
The respondent advised the Selby employees that anyone who was
prepared to work at Spartan without a transport or a canteen allowance
would be employed there. The others would be dismissed.
[5] The application for the amendment was opposed, the respondent
alleging that the application was late, that a dispute involving an
automatically unfair labour practice had not been ‘processed in terms of
the dispute resolution mechanisms … of the Act’ that the conclusion of a
pretrial agreement precluded the granting of the amendment and that the
respondent would, if the amendment were to be allowed, suffer incurable
prejudice.
[6] Mr Pretorius who appeared for the respondent argued that the
conciliation of the dispute concerning an automatically unfair dismissal was
a jurisdictional precondition to a consideration of the matter by the labour
court. Since this particular question had not been submitted to conciliation
it could not now, by way of amendment, be introduced as an issue before
the court.
[7] It has often been held that unless a dispute had been referred for
conciliation to an industrial council or a conciliation board, the industrial
court had no jurisdiction to determine it. (See, by way of example, Benicon
Earthworks & Mining Services (Pty) Ltd v Jacobs NO & others [1994] 9
BLLR 1 (LAC) at 3 D, one of the latest cases on the topic). The decisions
were based on the wording of section 46(9)(a) of the Labour Relations Act
28 of 1956 which provided that ‘the industrial court shall not determine a
dispute regarding an alleged labour practice unless such dispute has
been referred for conciliation …’
[8] There is in the Act no comparable provision which might be thought
to impose preconditions to a labour court’s jurisdiction. Section 157(4)(a)
provides that the labour court may refuse to determine a dispute if the
court is not satisfied that an attempt has been made to resolve the dispute
through conciliation. The court clearly has jurisdiction: it may or may not, in
its discretion, determine a dispute which has not been submitted to
conciliation. Subsection (4) finds itself in a section dealing with jurisdiction.
I do not think that I should pay too much attention to that. The subsection
does not really belong where it is. Subsection (1) gives the labour court
“jurisdiction in respect of all matters that elsewhere in terms of this Act or
in terms of any other law are to be determined by the Labour Court”. This
jurisdiction should not in my view be made to depend upon the parties’
compliance with prescribed procedures. A court may and, absent special
circumstances, probably will, refuse to entertain a dispute if a party has not
done what was supposed to have been done to bring it before the court.
This is the party’s fault. It may very well deprive him or her of a hearing. It
does not deprive the court of jurisdiction. Obligations imposed on parties
are not usually intended to be jurisdictional preconditions. I think that
regarding them as such in the Act will lead to a resurgence of the kind of
point that made the industrial court a forensic minefield. Noncompliance
with conciliation formalities made the court powerless to deal with certain
issues other than to declare itself powerless. I do not consider that one
should travel that road again. In exercising its discretion the court will
undoubtedly ask itself whether the dispute, in the sense of the essential
quarrel between the parties, had been submitted to conciliation. It is the
factual matrix which should be looked at. The idea of the Act, after all, is
that parties should, in the presence of a knowledgeable outsider, have an
opportunity of talking over their differences before going to court. What is
discussed before the conciliator are the difficulties in the way of the parties’
working together. The legal characterisation of a particular set of facts is
irrelevant.
[9] The certificate which a mediator is obliged to issue in terms of
section 135(5)(a) of the Act requires a statement only that the dispute has
remained unresolved. Naturally enough the conciliator would state what
dispute remained unresolved, otherwise the certificate of outcome would
be unsatisfactorily vague. It would not serve to alert the labour court to
what the parties had discussed in the conciliation phase. But it has no
bearing on the future conduct of the proceedings. The forum for
subsequent proceedings is determined by what the employee alleges the
dispute to be. According to this characterisation, the employee may either
request the commission to arbitrate the dispute or may refer it to the labour
court. It is unnecessary to consider here what the consequences are if the
employee’s categorisation of the dispute turns out to be incorrect. In the
present case, the dispute could, so the appellants allege, either have been
classified as an unfair dismissal for operational reasons in terms of section
188(1)(a)(ii) or as an automatically unfair dismissal in terms of section
187(1)(c) of the Act – to compel the employee to accept the employer’s
demand on a matter of mutual interest. In either case the appropriate
forum would be the labour court.
[10] Landman J in the court a quo, although sympathetic to the
application for amendment, considered that he was bound to refuse the
amendment by virtue of the decision in Zeuna Stärker Bop (Pty) Ltd v
Numsa (1998) 11 BLLR 1110 (LAC). The Zuena St ärker decision dealt
with an appeal against a decision of the labour court upholding a review
application. The appellant sought to review the decision of a CCMA
commissioner who found that he lacked jurisdiction to conciliate a dispute
because it had arisen before the Act came into operation. The labour court
held that the commissioner had erred in investigating the facts of the
matter. He should only have considered the assertion of the party referring
the dispute for conciliation. The labour appeal court upheld the labour
court’s order reviewing the decision of the commissioner but disagreed
with the judge a quo that the commissioner should not have investigated
the facts. It held that the commissioner was obliged to enquire into the
facts so that he might ascertain the real dispute between the parties in
order to decide whether he had jurisdiction to conciliate the dispute.
[11] The decision of the labour appeal court does not mean that the
categorisation of the conciliator in the certificate of outcome binds the
parties to the dispute. The labour appeal court merely stated that, in a
case where it has to be determined whether a dispute arose before or after
11 November 1996, the decision has to be based on the actual facts. This
proposition has no implications for the question whether or not the
description of a dispute in the certificate of outcome is binding on the
parties.
[12] Numsa & Others v Cementation Africa Contracts (Pty) Ltd (1998) 19
ILJ 1208 (LABOUR COURT) was also relied upon before us. In that case
the court, in dealing with an application to amend, said the following –
‘[25] In the circumstances, and having regard to ss 135 and 191 of the
Act, I am satisfied that as long as the party who refers the matter to
conciliation indicates, for example, that the dispute is about his or her
dismissal, both on substantive and procedural grounds, despite any
specific issue or issues he or she raises with regard to why he or she
disputes his or her dismissal to be fair, if the matter is not resolved at the
conciliation, he or she is not barred from raising new issues at arbitration
or adjudication. A party may not, however, change the nature of the
dispute, that is if the dispute referred to conciliation concerns an unfair
dismissal, it must be clear whether what is being conciliated is an unfair
dismissal relating to (I) operational requirements, (ii) misconduct, (iii)
incapacity, or (iv) an automatic unfair dismissal. The commissioner must
then in his or her certificate clearly indicate what the dispute it attempted to
conciliate concerned and the party intending to take the matter further is
bound by the commissioner’s determination of the nature of the dispute.’
[13] Landman J understood these dicta as support for the proposition
that a court is jurisdictionally unable to adjudicate a dispute other than the
one which is described in the commissioner’s certificate. Having regard to
the terms of his judgment I am not persuaded that Waglay AJ intended to
go that far. A party would be ‘bound’ by the commissioner’s categorisation
only in so far as the court may conclude that the issues before it had not
been ventilated adequately or at all during the conciliation phase and,
before hearing the matter, refer it back to the CCMA for this to be done
properly.
[14] For these reasons I conclude that the respondent’s contention that
the labour court lacked jurisdiction to entertain the dispute and therefore
correctly declined to grant the amendment ought not to be sustained.
[15] Mr Pretorius also advanced other contentions which were, because
of the view it took of the matter, not dealt with by the court a quo . He
argued that the conclusion of a pretrial minute indicating that the issue
before the court would be the fairness or otherwise of a dismissal for
operational reasons, precluded the appellants from thereafter adding
another or a different cause of action to their statement of case.
[16] It is true, of course, that a pretrial agreement is a consensual
document which binds the parties thereto and obliges the court (in the
same way as the parties’ pleadings do) to decide only the issues set out
therein. In particular, a party who agrees to claim only limited relief would
be bound by his agreement ( Shoredits Construction (Pty) Ltd v Pienaar
NO & others [1995] 4 BLLR 32 (LAC) at 34 C – F) The agreement in
Reunert Industries (Pty) Ltd t/a Reutech Defence Industries v Naicker &
others [1997] 12 BLLR 1632 (LABOUR COURT) was not a pretrial
agreement which served to further define issues in a set of pleadings; it
was an agreement that the fairness of the sanction imposed on an
employee would not be challenged before a CCMA commissioner. It was,
quite correctly, held that the commissioner exceeded her powers in then
redetermining the sanction. It was an agreement limiting the issues which
is usually binding ( Filta – Matrix (Pty) Ltd v Freudenberg & others 1998 1
SA 606 (SUPREME COURT OF APPEAL) at 614 B – D)
[17] The flaw in Mr Pretorius’s argument is that the pretrial minute in the
present case was, on a proper interpretation thereof, not a settlement of
any issue between the parties. All it did was to more closely define the
issues as they were then perceived to be. There is not the faintest
suggestion that the appellants intended to abandon any claim for relief not
already incorporated in their statement of case. The contention that by
framing the issues as they did the parties intended to exclude every other
issue from consideration is not supported by the wording of the pretrial
minute.
[18] It was finally argued that allowing the amendment would cause the
respondent irreparable prejudice. The reason for this is said to be that, had
the respondent at the conciliation stage been alerted to a claim involving
an automatically unfair dismissal, it would then have been in a position to
properly assess it liability with a view to effectively engaging the appellants
in the conciliation process. I do not find the argument acceptable. The
facts were known at the time of the conciliation. It was open to the
respondent to assess its risk on the footing that the appellants, properly
advised, might very well come to take the view, and to conclude the facts
amounted to an automatically unfair dismissal, In any event, any question
of prejudice should be dealt with by the trial court.
[19] Mr Pretorius expressed the desire that this court should itself allow
the amendment rather than refer it back to the court a quo . In the light of
the comment from the trial judge that he would have been inclined to allow
the amendment had it not been for the impediment which he perceived,
and in view of the proximity of the trial date, I think that we should,
exceptionally, allow the amendment ourselves. The appellants asked for
an indulgence. Opposition by the respondent was not unreasonable. I
therefore do not consider that there is, despite the reversal of the order,
sufficient reason to interfere with the costs order given in the court below.
The appeal succeeds with costs including the costs of the application for
leave to appeal;
The order of the court a quo is set aside and replaced by an order reading:
‘The amendments sought in the applicants’ notice of intention to amend dated
10 May 1996 are granted.
The applicants are to pay the respondent’s costs relating to the application
including the costs reserved on 19 May 1999.’
_____________
CONRADIE JA
ZONDO AJP:
Introduction
[20] In this matter argument was heard on the 29th September 1999. On
the 11 th October 1999 this Court handed down an order. The order was in
the following terms:
"1. The appeal is upheld with costs including the costs of the application for
leave to appeal;
2. The order of the Court a quo is set aside and replaced with an order
reading
"(a) the amendments sought in the applicants notice of intention to
amend dated 10 th May 1999 are granted
(b) the applicants are to pay the respondent's costs relating to the
application for amendment including the costs reserved on 19 May
1999."
[21] No reasons were furnished at the time of the issuing of the order. We
decided to hand down the order at the time we did and to furnish the
reasons later because it was essential that the outcome of the appeal be
made known as soon as possible as the main dispute between the parties
was set down for trial in the Labour Court in a matter of about two weeks
at the time. Any further delay in the announcement of the result of the
appeal could have necessitated a postponement of the trial a result we
wanted to avoid especially because this dispute has been going on for a
long time between the parties.
[22] When this Court issued the order referred to above, it was indicated
that the reasons for the order would be furnished in due course. Since then
my Colleague, Conradie JA, has prepared reasons for that order as he
sees them. I have had the benefit of reading his reasons. Regrettably, the
angle from which Conradie JA approaches the matter differs from mine.
There are also certain statements in Conradie JA’s reasons with which I
am unable to agree. In the light of all this I have deemed it necessary that I
give my own reasons for the order that we issued on the 11 th October
1999.My reasons follow here below.
[23] This is an appeal against a ruling of the Labour Court dismissing an
application by the appellants for an amendment of their statement of claim
in a matter pending before that court. The ruling is that of Landman J. In
order to properly consider the appeal, it is necessary to refer to such facts
of the matter are as necessary for the proper understanding of the
background to the application for an amendment, its refusal by the court a
quo as well as the appeal to this Court.
The Facts
[24] The first appellant is the National Union of Metal Workers of South
Africa, a registered trade union which is well known in this country and
which has members in many companies which deal with metal. The
second and further appellants are, it would appear, members of the union.
They were previously employed by the first respondent but were
dismissed. No reference will be made to the second respondent as it was
common cause that the second respondent should not have been cited.
Accordingly the first respondent will be referred to hereinafter simply as the
respondent.
[25] The second and further appellants were employed by the
respondent. Following upon disagreement on certain issues between the
appellants and the respondent, the latter dismissed the second and further
appellants. Thereafter a dispute arose between the appellants ans the
respondent about the fairness or otherwise of the dismissal of the second
and further appellants. Obviously, the appellants maintained that the
dismissal was unfair whereas the respondent maintained that it was fair.
[26] The appellants referred that dispute to conciliation in terms of
sec 191(1) of the Labour Relations Act, 1995 (Act No 66 of 1995) ( "the
Act"). Sec 191(1) of the Act provides: "If there is a dispute about the
fairness of a dismissal, the dismissed employee may refer the
dispute in writing within 30 days of the date of dismissal to
(a) a council, if the parties to the dispute fall within the registered scope
of the council; or
(b) the Commission, if no council has jurisdiction".
[27] In referring the dispute to conciliation, the appellants described their
dismissal as an "unfair termination of services of (NUMSA) members
(unfair retrenchment)." Conciliation failed and the dispute was certified
as unresolved in terms of sec 191(5) of the Act. In the certificate
contemplated in section 191(5) of the Act the dispute was described as an
"alleged unfair termination of services of our members (unfair
retrenchment)".
[28] Later the dispute was referred in terms of sec 191(5)(b)(ii) of the Act
to the Labour Court for adjudication on the basis that it was a dismissal for
operational requirements. A statement of claim was filed on behalf of the
appellants. A copy thereof was also served on the first respondent. The
first respondent filed and served a response to the statement of claim.
[29] A pretrial minute was subsequently agreed to between the parties in
terms of which the parties sought to limit the issues which would be the
subject of the trial in the Labour Court.
However, prior to the trial, the appellants appear to have had a closer look
at the respondent's response to their statement of claim and concluded
that, in the light thereof, they wanted to amend their statement of claim.
The amendment would entail an allegation that the dismissal was an
automatically unfair dismissal as envisaged in sec 187(1)(c) of the Act in
that the reason for the dismissal of the second and further appellants was
that the respondent sought to compel them to accept a demand that they
should not get a transport.
[30] Subsequently, the appellants made an application before Landman J
for an amendment of their statement of claim along the lines indicated
above. The respondent opposed the application. After hearing argument,
the Court a quo dismissed the application. This appeal then ensued.
The appeal
[31] Before us, Mr P. Pretorius SC, who, together with Mr A T Myburgh,
appeared for the respondent, opposed the appeal on two grounds. For
convenience I will refer to the first ground as the jurisdictional ground and
to the second as the pretrial minute ground. I propose dealing with these
two grounds in turn. I deal first with the jurisdictional ground, and, later,
with the pretrial minute ground.
The jurisdictional argument
[32] Mr Pretorius submitted that the dispute which the appellants had
referred to conciliation was a dismissal for operational requirements and
that, in effect, by seeking to amend their statement of claim so as to allege
that the dismissal was an automatically unfair dismissal, the appellants
were introducing another dispute which had not been referred to
conciliation. He submitted further that, as such dispute had not been
referred to conciliation, the court a quo did not have jurisdiction to
adjudicate it and, therefore, by implication, it would have served no
purpose to allow the amendment.
[33] Mr Pretorius submitted further that, before the Labour Court could
have jurisdiction to adjudicate a dispute, there had to have been
meaningful conciliation. He said that this was very important from the
point of view of the first respondent because the first respondent had to be
afforded an opportunity to conciliate the automatically unfair dismissal
dispute, especially because an employer who is facing an automatically
unfair dismissal claim could be at risk for huge compensation claims under
the Act. He also contended that the dispute had been described in the
certificate of outcome issued in terms of sec 191(5) as a dismissal for
operational requirements and said the appellants were bound by that
description of the dispute. From the quotation about of the description of
the dispute in the certificate, it will be seen that the dispute was not
described as “a dismissal for operational requirements” but as an “ alleged
unfair termination of services of our members.”
[34] The fundamental basis of Mr Pretorius' submission is that the
appellants' proposed amendment will introduce a new dispute which is
distinct and separate from the dispute which was referred to conciliation.
The respondent's submission has as its basis the notion that there are two
disputes between the parties now, namely, a dispute concerning a
dismissal for operational requirements and a dispute concerning an
allegedly automatically unfair dismissal.
[35] For the reasons that follow, I am of the view that it is a fallacy to
regard the proposed amendment as introducing a new dispute. To my
mind, this approach is a result of a failure to appreciate the nature of the
dispute between the parties, the event giving rise to the dispute, and the
cause of, or the event giving rise, to the dispute and the grounds of each
party's case to the dispute.
[36] In a line of cases stretching over many years, it has been accepted
by our courts that a dispute postulates, as a minimum, the notion of
expression by the parties opposing each other of conflicting views, claims
or contentions. (See Selke J (with De Wet concurring) in Durban City
Council v Minister of Labour and Another 1953(3) SA 708 (D) at 712A).
In Williams v Benoni Town Council 1949(1) SA 501 (W) at 507 Roper J
said, among other things, that a dispute exists " when one party
maintains one point of view and the other the contrary or a different
one". (see also SA. Commercial, Catering and Allied Workers Union v
Edgar Stores Ltd & Another (1997) 18 ILJ 1064 (LABOUR COURT) at
1070E to 1079J and the authorities referred to therein.)
[37] The Act makes provision for the resolution of various disputes in the
workplace by the employment of certain mechanisms in certain fora. One
of such disputes is the dispute that arises between an employee or his
union, on the one hand, and, an employer, on the other, when the
employer dismisses the employee. That dispute consists of the employee
side contending that the dismissal is unfair whereas the employer side
contends it to be fair. The Act calls such a dispute a "dispute about the
fairness of a dismissal". This is to be found in sec 191(1) where the
subsection begins by saying: "If there is a dispute about the fairness of
a dismissal ....." . It must be noted that in sec 191(1) the dispute about the
fairness of a dismissal is not described with reference to the reason for the
dismissal. It is simply referred to as "a dispute about the fairness of a
dismissal".
[38] The Act requires some disputes to be referred to arbitration, and,
others, to adjudication, if conciliation fails. (see Sec 191(5)). Whether a
dispute will end up in arbitration or adjudication it must first have been
referred to conciliation before it can be arbitrated or adjudicated. Subject
to referrals to the Labour Court which the Director of the Commission for
Conciliation, Mediation and Arbitration has power to make under sec
191(6) of the Act, it depends on the reason for dismissal as alleged by the
employee whether a dispute should be referred to arbitration or
adjudication.
[39] If the employee alleges reasons specified in sec 191(5)(a) as
reasons for his dismissal or if he does not know the reason for his
dismissal, the dispute goes to arbitration. If he alleges reasons specified
in sec 191(5)(b), the dispute goes to adjudication by the Labour Court.
Some of the reasons for dismissal which the legislature envisages in the
Act are those set out in sec 191(5)(a)(I), (ii) and (iii) and in (b)(I)(iv) of the
Act. Sec 191(5)(a) and (b) provide as follows: "If a council or
commissioner has certified that the dispute remains unresolved, or, if
30 days have expired since the council or the Commission received
the referral and the dispute remains unresolved
(a) the council or the commission must arbitrate the dispute at the
request of the employee if
(I) the employee has alleged that the reason for dismissal is related to the
employee's conduct or capacity unless paragraph b(iii) applies;
(ii) the employee has alleged that the reason for dismissal is that
the employer made continued employment intolerable ; or
(iii) the employee does not know the reason for dismissal ; or
(b) the employee may refer the dispute to the Labour Court for
adjudication if the employee has alleged that the reason for dismissal
is
(i) automatically unfair
(ii) based on the employer's operational requirements
(iii) the employee's participation in a strike that does not comply
with the provisions of chapter iv; or
(iv) because the employee refused to join, was refused membership
of or was expelled from a trade union party to a closed shop
agreement". (underlining supplied).
[40] In my view a reading of sec 191(1) to (5) leaves one in no doubt that
the phrase "operational requirements" as used in the Act does no more
than give a reason for a dismissal the fairness of which may be in dispute
between the parties as contemplated at the beginning of sec 191(1) where
the Act refers to "a dispute about the fairness of a dismissal". It does
not itself constitute a dispute on its own. The same applies to a situation
where an employee alleges or seeks to allege that his dismissal
constitutes an automatically unfair dismissal. This refers simply to a
reason for dismissal the fairness of which may be the subject of a dispute
between the parties as contemplated in sec 191(1) of the Act.
[41] It follows, therefore, from what I have said above in regard to a
dismissal for operational requirements that also the reference to a
dismissal as an automatically unfair dismissal is nothing more than giving
a reason for the dismissal. That this is the case is confirmed by a reading
of the provisions of sec 187(1) which deal with automatically unfair
dismissals. It is clear from sec 187(1) that whether a dismissal is
automatically unfair depends on the reason for the dismissal. Of course,
once the reason for dismissal has been established, this may have various
implications in terms of the Act which may differ from the implications
which would flow from the establishment of another reason as the reason
for dismissal.
[42] An amendment of the appellants' statement of claim to the effect that
the dismissal is an automatically unfair dismissal will therefore not
introduce a new dispute but will simply be an allegation of another reason
for dismissal or will be the reason relied upon by the appellants in the
place of, or, as an alternative to, the reason of operational requirements.
The dispute remains the same dispute that was referred for conciliation in
terms of sec 191(1) of the Act, namely, the dispute about the fairness of
the dismissal of the second and further appellants.
[43] To hold that the amendment sought by the appellants will introduce a
new dispute altogether would not only be illogical but would render the
dispute mechanisms of the Act ineffective, unworkable and nugatory. I
demonstrate this below.
[44] Generally speaking a party is entitled to apply for an amendment of
its pleadings at any time prior to the Court handing down its judgment. In
dealing with such an application, the Court will have due regard to
prejudice to the other party. It will also have due regard to such
agreement as may exist between the parties on what will not be part of the
issues to be decided by the Court. If the allegation by the appellants of a
new reason for dismissal other than the one they had alleged earlier
created a new dispute which is separate from the dismissal dispute that
has been referred to conciliation, two questions would arise. The one is:
in the light of sec 191(1) envisaging a dispute about the fairness of a
dismissal, what would the nature of the new dispute be? It can't be a
dispute about the fairness of a dismissal because no other dismissal would
be alleged to have occurred after the dismissal that is the subject of the
dispute that had already been referred to conciliation. If it cannot be a
dismissal dispute, what dispute can it be said to be then?
[45] If the dispute is not a dismissal dispute, as it cannot be, under what
section of the Act would it fall to be referred to conciliation if Mr Pretorius'
submission that it must still be referred to conciliation were to be
accepted? Sec 191(1) cannot be the section under which it can be
referred to conciliation because sec 191(1) contemplates dismissal
disputes only. Another question that would arise would be: when did that
dispute arise? Also another question would be: what event gave rise to
the dispute? The date as to when the dispute arose would be required for
the purpose of determining whether such dispute is being referred to
conciliation within such time as may be prescribed by the Act. That in turn
is important in respect of the jurisdiction of both a council and the CCMA.
[46] If the dispute is referred to conciliation outside the prescribed period,
the council or the CCMA will lack jurisdiction to conciliate the dispute. (see
sec 191(1) read with (2)) unless it grants condonation. However,
condonation can only be granted on good cause shown. Another difficulty
in the path of the referring party would be that, if the council or the CCMA
discovered, as I think it inevitably would, that the dispute being referred for
conciliation relates to the dismissal in respect of which it has already dealt
with a dispute, it would hold itself to be functus officio and refuse to
conciliate the dispute because it would have already issued the certificate
referred to in sec 191(5). The result of all this is that the approach we are
urged by the respondent to adopt in this matter is one which would render
the dispute resolution mechanism of the Act completely unworkable and
ineffective. I can find no reason why we should adopt such an approach
when there is an approach which we can adopt which would still leave the
mechanisms of the Act operative and effective.
[47] In NTE Ltd v Ngubane & Others (1992) 13 ILJ 910 (LAC) the now
defunct Labour Appeal Court established under the old Act had to consider
the correctness or otherwise of a contention that a lockout which had
been instituted by the employer was illegal. The purpose of the lockout
was to compel its employees to agree to the employer's demands for a
lesser wage increase than that demanded by the union and the employees
and other terms and conditions of employment. The basis of the
contention that the lockout was illegal was that the employer had not
applied for the establishment of a conciliation board in terms of sec 35 of
the old Act in respect of its demands but had sought to rely on the
conciliation board which had been applied for by the union. In terms of the
contention, that conciliation board was in respect of the employee
demands and not the employer's demands. It was contended that
because of this the lockout was illegal.
[48] In NTE the Court rejected the argument referred to above. It held
that the fact that in respect of wages and other terms and conditions of
employment the employer had its own demands and the union had its own
demands did not mean that the parties' respective demands constituted
different disputes. The dispute was the same but it was made up of
demands and counterdemands. (see Page J at 620 HJ). Applying the
same reasoning to the case before us, I would say that a dispute about the
fairness of a dismissal remains the same dispute whether or not the
reason alleged as the reason for dismissal is changed, withdrawn or added
to. The mere allegation of another or an additional reason for dismissal or
the mere allegation of another ground of alleged unfairness does not
change one dismissal dispute into as many dismissal disputes as there are
alleged reasons for the dismissal or into as many disputes as there are
grounds of alleged unfairness. If this was not the case, an employer could
frustrate the entire processing of such a dispute by the mere device of
keeping on changing the alleged reasons for dismissal.
[49] In the same way that at 620 HJ in NTE Page J said the bilateral
demands between an employer and a union did not constitute two disputes
but one dispute and that they were two facets of the same dispute, I would
also say that the allegations by the appellants initially that the dismissal
was a dismissal for operational requirements or retrenchment and the
appellants' allegations later that this was an automatically unfair dismissal
do not each constitute a dispute on its own but are alleged reasons for the
same dismissal about the fairness of which the parties have a dispute.
[50] Of the contention that he had to consider in NTE, page J had the
following to say at 620J621A: "In fact, this view, taken to its logical
conclusion, would require each party to apply afresh for the
establishment of a conciliation board whenever it modified its
demands during the course of the conciliation process". Of the
respondent's contention in this case I would say: Taken to its logical
conclusion, the respondent's contention would mean, if upheld, that,
whenever a party, be it the employee side or the employer side, wished to
add to or modify, its case with regard to the reason for dismissal or with
regard to the grounds of alleged unfairness of a dismissal after
conciliation, it would have to make a new referral to conciliation. However,
such referral would have no prospect of being accepted and acted upon by
either the CCMA or council with jurisdiction. This is so because it would
be a referral of a dispute in respect of which the certificate contemplated in
sec 191(5) would have already been issued.
[51] Finally Page J said the following in NTE at 621AC in respect of the
contention there under consideration:
"Apart from rendering it practically impossible for the parties to
preserve their right legally to resort to unilateral industrial action in
the event of the failure of the conciliation process, such a limitation
would make a mockery of the process itself. It is of the essence of
that process that the board considering a dispute should be free to
consider and recommend all options arising from the demands of all
the parties to the dispute and any modifications thereof : to limit it to
the consideration of one unilateral demand or set of demands would
render it nugatory".
With certain changes of a contextual nature, this passage would, in my
view, apply with equal force to the respondent's contention in this matter.
[52] Linked to the respondent's contention dealt with above was another
submission. The submission was based on the tense used by the
lawmaker in sec 191(5)(b) of the Act. Sec 191(5)(b) gives an employee
the right to refer a dismissal dispute to the Labour Court for adjudication
but it says the employee may do so "if he has alleged" that the reason for
dismissal is operational requirements or is automatically unfair or is
participation in a protected strike or is because the employee has refused
to join or has been refused membership of or has been expelled from, a
trade union which is party to a closed shop agreement. It was argued on
behalf of the respondent that the use of the tense used in sec 191(5)(b)
demonstrated that the allegation must have been made prior to the
referral. The rejection of the main submission to which this one was linked
means that this one also falls away.
[53] We were also urged by the respondent's counsel to hold that parties
to a dismissal dispute which has been to conciliation are bound by the
conciliating commissioner's description of the dispute in the certificate of
outcome contemplated in sec 191(5). For the reasons that follow, I am of
the opinion that there is also no merit in this submission.
[54] A commissioner who conciliates a dispute is not called upon to
adjudicate or arbitrate such dispute. He might take one or other view on
certain aspects of the dispute but, for his purposes, whether the dismissal
is due to operational requirements or to misconduct or incapacity, does not
affect his jurisdiction. It is also not, for example, the conciliating
commissioner whom the Act gives the power to refer a dismissal dispute to
the Labour Court. That right is given to the dismissed employee (see sec
191(5)(b)). If the employee, and not the conciliating commissioner, has
the right to refer the dispute to the Labour court, why then should the
employee be bound by commissioner’s description of the dispute?
[55] In this case the council's or conciliating commissioner's description of
the dispute in the certificate of outcome and the appellants' allegation that
this is an automatically unfair dismissal are not mutually exclusive. As
already pointed out in the certificate of outcome the dispute was described
as an "alleged unfair termination of services of our members (unfair
retrenchment)." A dismissal that is automatically unfair would also fall
within the ambit of the phrase: "alleged unfair termination of services of
our members." The reference to “unfair retrenchment” is in brackets.
To my mind this indicates that it was not seen as an essential part of the
description of the dispute the essential part of the description being the
"alleged unfair termination of services of (NUMSA) members" . But
even the reference to "unfair retrenchment" is also not inconsistent with
an allegation of an automatically unfair dismissal. I explain this below.
[56] In sec 212 of the Act the phrase "operational requirements" is
defined as meaning "requirements based on the economic,
technological, structural or similar needs of an employer". There
seems little doubt in this case that the appellants want to argue at the trial
that, when the respondent insisted that the employees agree that they
would or should not be paid the transport allowance, it was doing so
because, in its view, that is what was dictated by its economic needs
(which would bring this under the definition of "operational
requirements") and which, according to the appellants, constituted a
reason for dismissal such as is referred to in sec 187(c) of the Act.
[57] In practice it is not unusual to find that a dismissal which an employer
resorts to in circumstances such as those in this case is referred to as a
retrenchment. ( see TAWU & Others v Natal Cooperative Timbers
(1992) 13 ILJ 1154 (D) ). It is, however, different from a rtrenchment which
occurs when an employee’s job has become redundant because in the
former case the emplyee’s job is available but the employee is not
prepared to perform it under certain terms or conditions which the
employer insists upon. Irrespective of whether it is right or wrong to refer to
such a dismissal as a retrenchment, one thing appears clear to me. That
is that such a dismissal can be described as a dismissal for operational
requirements because it falls within the ambit of the definition of the phrase
"operational requirements" in sec 212 of the Act. If I am correct in this,
as I think I must be, then the respondent's complaint about the amendment
is even on weaker grounds on this aspect because, on the respondent's
own version, the dismissal that was referred to conciliation was a dismissal
for operational requirements. In my view the amendment sought by the
appellants does not detract from this but only seeks to add another label to
what remains essentially a dismissal for operational requirements.
[58] In so far as the Labour Court may have intended to suggest in
NUMSA & Others v Cementation Africa Contracts (Pty) Ltd (1998) 19
ILJ 1208 (LABOUR COURT) at 1214I 1215A that, when a party refers a
dismissal dispute to conciliation, it is a requirement of the Act that he
states whether the dismissal relates to operational requirements or
misconduct or incapacity or an automatically unfair reason, this is not
correct. I must say that, despite what the Labour Court said at 1214I
1215J, its statements at 1213H 1214H appear to support the view that
there is no such requirement. While it would be better and preferable if a
party which referred a dismissal dispute to conciliation stated whether the
dismissal was a dismissal for operational requirements or a dismissal for
misconduct or for incapacity, the fact that that is not made clear in the
referral to conciliation would not make the referral defective in terms of the
Act. This must be so because, even when the employee does not know
whether his is a dismissal for misconduct, incapacity, operational
requirements or dismissal for an automatically unfair reason, he is still able
to refer his dismissal dispute to conciliation.
[59] Sec 191(5)(a) does contemplate that an employee may refer to
arbitration a dismissal dispute even if he does not know the reason for his
dismissal. In that case, obviously it cannot be said that the Act requires
such employee to make it clear what he alleges the reason for his
dismissal to be.
[60] If an employee does not know the reason for his dismissal at that
stage of the processing of his dispute, obviously he would not have known
it at the time he referred the dispute to conciliation. It can therefore not be
said that such an employee would have been required by the Act to make
it clear in his referral of the dispute to conciliation what the reason for his
dismissal was. If this cannot be said in respect of such employee, I am
unable to find any provisions in the Act that would justify the conclusion
that the Act requires this in respect of some employees but not in respect
of others.
[61] If, at the time of referring a dismissal dispute to arbitration after
conciliation has failed, an employee is not compelled to decide on what
reason he relies upon as the reason for dismissal, there can be no reason
either in principle or logic why such employee must be compelled at an
earlier stage than that to state the reason for dismissal he relies upon. On
the contrary the nature of the conciliation proceedings is such that, in my
view, there can be no reason why the employee has to make such an
election because at conciliation the parties would, through conciliation, be
attempting to settle their dispute. Also the contents of their discussions
are such that they should, and would, not be used in subsequent
arbitration or adjudication proceedings to the prejudice of any party.
[62] At 1214J 1215A in Cementation Africa Contracts ( supra) the
Labour Court made statements to the effect that, after conciliation, a party
which wants to take a dismissal dispute further is bound by the conciliating
commissioner's description of the dispute in the certificate of outcome. I
do not agree with this. The position is, as the Labour Court correctly
pointed out in that case, that a party cannot change the nature of the
dispute. I would add that the conciliating commissioner is also bound not
to change the nature of the real dispute between the parties. If he did, the
party that seeks to take the matter further would not be bound by a wrong
description of the dispute but would have a right to take further the true
dispute that was referred to conciliation and to give a correct description of
the dispute. What the parties are bound by is the correct description of the
real dispute that was referred to conciliation.
[63] In so far as the Court a quo felt that it was bound by the decision of
this Court in Zeuna Starker Bop (Pty) Ltd v NUMSA (1998) 11 BLLR
1110 (LAC) , I do not share that view. In Zeuna the issue this Court had to
deal with related to what a commissioner had to do where there was a
dispute about whether or not the dispute had arisen prior to or after the
date of commencement of the Act which would in turn determine whether
the old Act or the new Act applied. There this Court held that the
commissioner was obliged to inquire into the real dispute to establish
exactly when it was that the dispute arose. In my view, the Court a quo's
hands were not in any way "shackled" by this decision.
[64] At any rate, it matters not for purposes of jurisdiction whether at the
time of the conciliation of a dismissal dispute, the reason alleged for the
dismissal was operational requirements or an automatically unfair reason.
The dispute is about the fairness of the dismissal. Therefore, provided the
alleged reason is one referred to in sec 191(5)(b), the Labour Court will
have jurisdiction to adjudicate the real dispute between the parties without
any further statutory conciliation having to be undertaken as long as it is
the same dismissal.
[65] Mr Pretorius emphasised that fundamental to his argument was the
proposition that the Act required meaningful conciliation before a dispute
can be adjudicated by the Labour Court and that, in the absence of
meaningful conciliation in respect of a dispute, the Labour Court would not
have jurisdiction to adjudicate such a dispute. As Mr Pretorius
subsequently conceded, correctly in my view, during argument, this
proposition was too widely stated.
[66] The Act does contemplate that the Labour Court will have jurisdiction
to adjudicate a dispute even when there has been no meaningful
conciliation in respect of such a dispute. This is supported by the fact that
sec 191(5) of the Act contemplates, among others, that a dispute may be
referred to arbitration or adjudication if the dispute remains unresolved
after a period of 30 days has lapsed since the council or the CCMA
received the referral of such dispute to conciliation. Obviously, this
provision was the product of past experience under the old Act.
[67] Under the old Act our experience taught us that, without a provision,
such as is referred to in the preceding paragraph, there could be long
delays in the conciliation of disputes. All an employer would need to do in
order to frustrate the process if a meeting for conciliation was a sine qua
non before a dispute could be adjudicated would be to ensure that he did
not cooperate in having the conciliation meeting held. In the light of all
this the respondent's submission falls to be rejected.
[68] That I reject the respondent’s above submission on the meaningful
conciliation as a jurisdictional requirement before a dispute can be
adjudicated by the Labour Court, does not mean that I agree with Conradie
JA when, in par 8 of his judgement read with par 7 thereof he says it is not
a precondition that a dispute should have been referred to conciliation
before the Labour Court can have jurisdiction to adjudicate it. I deal with
this proposition below.
[69] Conradie JA says in effect that the Labour Court “clearly has
jurisdiction” to adjudicate a dispute which has not been referred to
conciliation but it has a discretion to refuse to adjudicate it if it is not
satisfied that an attempt has been made to resolve the dispute through
conciliation. He says it is up to the Labour Court to decide whether it
adjudicates it or not .
[70] For his proposition, Conradie JA relies on the provisions of sec 157
(4)(a) of the Act. With respect, my Learned Colleague’s proposition is
erroneous and is not supported either by the provisions of sec 157 read as
a whole or by other provisions of the Act. My reasons for saying this follow
here below.
[71] Sec 157(4)(a) of the Act provides:
“ (4)(a) The Labour Court may refuse to determine any dispute other
than an appeal or review before the Court if the Court is not satisfied
that an attempt has been made to resolve the dispute through
conciliation.”
Those provisions must be read together with the provisions of sec 157 (4)
(b) as well as other provisions of the Act. Sec 157 (4)(b) provides:
“A certificate issued by a commissioner or a council stating that a
dispute remains unresolved is sufficient proof that an attempt has
been made to resolve that dispute through conciliation.”
[72] Furthermore regard must be had to the provisions of sec 191(1)
which require a dispute about the fairness of a dismissal to be referred to
conciliation and, then, more importantly, the provisions of sec 191(5)(a)
and (b). In so far as the provisions of sec 191(5)(a) and (b) are relevant to
this aspect of this judgement, they read thus:
“If a council or commissioner has certified that the dispute remains
unresolved, or, if 30 days have expired since the council or the
Commission received the referral and the dispute remains
unresolved
(a) the council or the Commission must arbitrate the dispute at the
request of the employee if
(i) ....
(ii) ....
(b) the employee may refer the dispute to the Labour Court for
adjudication ...” (underlining supplied).
[73] To me it is as clear as day light that the wording of sec 191(5)
imposes the referral of a dismissal dispute to conciliation as a precondition
before such a dispute can either be arbitrated or be referred to the Labour
Court for adjudication. I cannot see what clearer language the legislature
could have used other than the language it chose to use in sec 191(5) if it
had intended that the referral of a dismissal dispute to conciliation should
be a precondition to such dispute being arbitrated or being referred to the
Labour Court for adjudication. In sec 191(5) the legislature used the
wording : “If a council or commissioner certified that ..., or, if 30 days
have expired since ... and the dispute remains unresolved
(a) the council or the Commission must arbitrate the dispute ...
(i) ...
(ii) ...
(iii) ... or
(b) the employee may refer the dispute to the Labour Court for
adjudication ...”
[74] It will have been realised that sec 191(5) envisages that one of two
events must have occurred or taken place before a dispute can be the
subject of an arbitration or before an employee can acquire the right to
refer a dismissal dispute to the Labour Court for adjudication. The one
event is that of a council or a commissioner having certified that the
dispute remains unresolved. The second event is that of a period of 30
days having expired since the referral was received by the council or the
commission. In the absence of one of these two events, there is no
competence to refer the dispute to arbitration nor does the Labour Court
have jurisdiction to adjudicate a dispute in such circumstances.
[75] In the light of the above I am of the opinion, with respect, that in
making the proposition that he makes in par 8 of his judgement, my
Colleague has overlooked the provisions of sec 191(5) of the Act and has
relied exclusively on sec 157(4)(a). In my view it is necessary to consider
the Act as a whole rather than to focus on one section of the Act in dealing
with an issue such as this one.
[76] Sec 157(4)(a) will only apply, in my view, in a dispute where no
certificate such as is referred to in sec 191(5) was issued but where the
employee acquired the right to refer the dispute to the Labour Court by
virtue of the happening of the second event mentioned in sec 191(5),
namely, the expiry of a period of 30 days. Sec 157(4)(a) cannot apply to a
dispute where the first event occurred, namely, where a certificate of
outcome was issued.
[77] I say the above because in terms of sec 157(4)(a) the Labour Court
only has the discretion which my Colleague relies upon for his proposition
where it is not satisfied that an attempt was made to conciliate the dispute.
In a case where a certificate of outcome saying the dispute remains
unresolved has been issued in terms of sec 191(5), the Labour Court
would not be able to say it is not satisfied that an attempt has been made
to conciliate the dispute because sec 157(4)(b) of the Act says such a
certificate issued by a commissioner or a council is “sufficient proof that
an attempt has been made to resolve the dispute through
conciliation.”
[78] There are other provisions of the Act which clearly show that the Act
contemplates that disputes must be referred to conciliation before they can
be arbitrated or adjudicated. Without going into details, it should suffice to
refer to secs 135 and 136. In particular reference must be made to sec 136
(3).
[79] In conclusion on this proposition, it seems most relevant to refer to
what the drafters of the Bill (before it became an Act) had to say about the
place of conciliation in the new dispute resolution dispensation. Their
explanatory memorandum appears at (1995) 16 ILJ 278 336. AT 327 the
drafters explained: “ In almost every instance it is a requirement that a
dispute is lodged with the Commission before the institution of
proceedings in the Labour Court.”
[80] Later on in the same page the drafters went further and said:
“The Commission is designed as a one stop shop for resolving disputes.
Its commissioners will attempt in the first place to resolve disputes by
conciliation, mediating where appropriate ... Only where these attempts fail
will the commissioner determine certain disputes through arbitration.
Where disputes are to be adjudicated by the Labour Court, the
Commission will first seek actively to engage the parties in an
attempt to resolve disputes to avoid unnecessary litigation.”
[81] The long and short of the above is therefore that, in my view, sec
157(4)(a) provides no basis for the proposition that the Labour Court has
jurisdiction to adjudicate a dismissal dispute which has not been referred
to conciliation. It is only a basis for the proposition that, in a case where no
certificate of outcome stating that a dispute remains unresolved has been
issued but the dispute was referred to conciliation but no attempt was
made to conciliate the dispute, the Labour Court may in its discretion
refuse to determine the dispute.
The pretrial minute argument
[82] Another ground on which the respondent opposed the appeal was
that, in terms of the pretrial minute which was signed by both parties, the
only issue the parties had agreed the Court should decide was a
retrenchment and there was no reference to the issue of an automatically
unfair dismissal. Counsel for the respondent emphasised that the pretrial
minute was a binding agreement from which neither party could resile in
the absence of one or other ground generally accepted in law as justifying
a party resiling from a contract.
[83] I think it is necessary to immediately accept as a point of departure
that, where a litigant is a party to a pretrial minute reflecting agreement on
certain issues, our Courts will generally hold the parties to that agreement
or to those issues. ( Price NO v Allied JBS Building Society 1986 (3)
SA 874 (A) at 882D E; FiltaMatix (Pty) Ltd v Freudenberg & Others
1998 (1) SA 606 (SUPREME COURT OF APPEAL) at 613E 614D).
Counsel for the respondent submitted that in this case no such
circumstances existed or were argued by the appellants to exist. He
submitted that, through the proposed amendment, the appellants were
seeking to introduce an issue which in terms of the pretrial agreement
they were not entitled to introduce.
[84] I am unable to uphold the respondent’s submission on this point.
What the cases relied upon by the respondent's Counsel reveal is that
where our Courts have refused to allow a party to raise, rely upon or
introduce, a new issue after a pretrial minute has been agreed is in those
cases where the party can be said to have abandoned such an issue or
cause of action or where such a party can be said to have agreed not to
rely upon or raise or pursue such an issue or cause of action. I refer to
those cases below.
[85] In Chemfos Ltd v Plaasfosfaat (Pty) Ltd 1985 (3) SA 106 (A) the
Court refused the appellant an opportunity to rely upon a cause of action
which had been pleaded originally but which Miller JA was satisfied the
appellant had expressly informed the Court of first instance it was not
relying upon. According to Miller JA in that case the appellant had
indicated "if not in express terms, by the clearest implication," that it
was foregoing or abandoning the cause of action(see Miller JA at 114 F
H). In Price NO v Allied JBS Building Society 1980 (3) SA 874 (A) the
Court refused a party the opportunity to pursue or raise a cause of action
which Van Winsen AJA was satisfied such party had abandoned (see
Van Winsen AJA at 881G 822H).
[86] In Shoredits Construction (Pty) Ltd v Pienaar NO and Others
[1995] 4 BLLR 32 (LAC) and Shoprite Checkers (Pty) Ltd v Busane
[1996] 17 ILJ 701 (LAC), the old Labour Appeal Court held in each case
that the industrial court had been bound to decide the matter on the basis
of the issues as agreed between the parties in a pretrial minute and set
aside orders made by the industrial court in disregard of such pretrial
minutes.
[87] In Shoredits Construction the parties had agreed in a pretrial
minute that in the event of the industrial court granting a reinstatement
order, the retrospectivity of such order should be limited to three months.
The industrial court disregarded such agreement. The old Labour Appeal
Court set the order of the industrial court aside. It is clear that in that case
the employee party had abandoned whatever right he might have had to
longer retrospectivity of the reinstatement order.
[88] In Checkers Shoprite the parties had agreed in effect that whether
the dismissal was or was not fair would be determined by whether the
Court found that the employee had unlawfully removed goods belonging to
the employer. Despite this agreement the industrial court decided the
fairness of the dismissal with reference to whether the sanction was a
reasonable one. The old Labour Appeal Court set this order aside. No
amendment had been sought.
[89] During argument after a trial in FiltaMatix (Pty) Ltd v Freudenberg
1998(1) SA 606 (SUPREME COURT OF APPEAL) appellant's counsel
sought to rely on claims "A" and "B" when, at a pretrial conference, he
had specifically said he would rely upon claim "BB". Counsel sought to
"resile" from the agreement by stating in an affidavit that the limitation of
the claim to claim "BB" had been the result of confusion caused by the
nature of the questions asked. The Supreme Court of Appeal held that
that excuse could not, "in the light of the facts recited, be accepted" (at
614C). Harms JA continued and said: "To allow a party, without special
circumstances, to resile from an agreement deliberately reached at a
pretrial conference would be to negate the object of Rule 37 which is
to limit issues and to curtail the scope of the litigation. (Cf Price NO
v Allied JBS Building Society 1980(3) SA 874 (A) at 822 D H). If a
party elects to limit the ambit of his case , the election is usually
binding (AJ Shepherd (Edms) Bpk v Santam
Versekeringsmaatskappy 1985 (1) SA 399 (A) at 415 B D; Chemfos
Ltd v Plaasfosfaat 1985 (3) SA 106 (A) at 114I 115B). No reason
exists why the principle should not apply in this case." (My
underlining).
[90] Another case is F&T Advisers (Edms) Bpk v Eerste Nasionale
Bank van SA 1999 (1) SA 515 (SUPREME COURT OF APPEAL) . It
does not appear to me that F & T Advisers can be said to be inconsistent
with the approach shown above in respect of the various cases. It seems
to me that, in essence, the Supreme Court of Appeal concluded in that
case that the agreement to which the appellant in that case was a party
was inconsistent with an intention on its part to rely on the in duplum rule
and, that, for that reason, it could not be allowed to rely on the in duplum
rule. Indeed, Harms JA said that, had the respondent known that the
appellant intended relying on the in duplum rule, it might have conducted
its case at the trial on a completely different basis. Accordingly this case,
like all the others referred to above, is distinguishable from the case before
us.
[91] To my mind the cases are consistent that whether or not a party will
be allowed to raise or rely upon or introduce a cause of action or issue
after a pretrial agreement or pretrial minute has been concluded in a
case depends on whether it can be said that the party seeking to rely upon
or to introduce or raise such cause of action or issue has abandoned that
cause of action or has agreed either expressly or by implication (I would
say necessary implication) not to pursue or rely upon such cause of action
or point or has informed the Court or the other party that such point or
such cause of action or issue will not be relied upon. If he has, he cannot
be allowed. If he has not, he can be allowed. This is quite apart from
those circumstances where a party would be able to resile from such an
agreement on the same basis as he would be able in law to resile from any
other contract.
[92] It is clear from a reading of the pretrial minute in this case that there
is no reference to an automatically unfair dismissal. There is no
suggestion that the appellants ever informed the respondent or its
attorneys or the Court below that they would not rely upon any other cause
of action other than retrenchment. If the amendment sought by the
appellants was granted, the effect thereof would be to introduce a new
cause of action which had not been pleaded. But that is a new cause of
action in respect of the same dispute that has been conciliated. To my
mind, as this is a new cause of action, the appellants cannot be said to
have abandoned their right to raise it or rely upon it when it was not even
covered by the pleadings at the time the pretrial minute was concluded.
[93] The purpose of a pretrial conference is for parties to try and redefine
issues which emerge from the pleadings. If a party wishes to introduce
another cause of action or defence other than the cause of action or
defence disclosed in the pleadings, such a party will usually be required to
apply for an amendment first. The other party would then consider such
application for amendment on its merits in due course and decide whether
or not to oppose it. There may be cases where parties reach an
agreement in a pretrial minute the terms of which are such that a cause of
action not covered by the pleadings cannot be introduced later even by
way of an amendment. However, in my view, before a Court could hold
this to be the case in a matter, the agreement of the parties would have to
be clear and to leave no doubt that that is what the parties intended. This
is not such a case.
[94] I think I find support in certain authorities for my view that, generally
speaking, a pretrial minute redefines those issues which appear from the
pleadings (and not issues relating to a cause of action which falls outside
the ambit of the pleadings). In FiltaMatix ( supra) at 614C Harms JA,
speaking in the context of the object of rule 37 in the High Courts, said: "If
a party elects to limit the ambit of his case, the election is usually
binding." I think this sentence may well support my view because the
election to limit one's case that is referred to must be a reference to the
limiting of one's case as pleaded and not as can be pleaded at a later
stage if an amendment is granted by the Court. Also, when Harms JA
refers at 614B to the object of rule 37 in the High Courts as being "to limit
issues and to curtail the scope of litigation" , this must, in my view, be a
reference to limiting issues as they appear from the pleadings.
[95] In the light of all the above I conclude that the appellants are not
precluded by the pretrial minute from seeking to amend their statement of
claim so as to rely on an allegation that their dismissal was an
automatically unfair dismissal. Lastly, I mention, in passing, that it appears
from the pretrial minute that the respondent disputes the identity of the
second and further appellants. This raises another interesting question.
That is: in the light of the respondent's argument on the pretrial minute
being based on the proposition that a pretrial minute is a legally
enforceable agreement, how can it be said that the pretrial minute in this
case is a legally enforceable agreement in this case when the identity of
the parties against whom the agreement is sought to be enforced legally is
being disputed by the same party who wants to enforce it?
[96] In all the circumstances I conclude that the appeal must succeed. In
the light of this conclusion the question arises whether or not the
application for an amendment must be remitted to the Court a quo to
decide it in the light of this judgment or whether this Court must deal with it
itself. Mr Pretorius indicated that the better route would be for this Court to
decide the amendment itself. I agree. At any rate the Court a quo had also
indicated that, had it not considered itself "shackled", it would have
granted the amendment. The result of the application, if remitted, would
be a foregone conclusion. We are also in as good a position as the Court
a quo would be to decide the application. To remit the application to the
Court a quo would simply serve to unduly delay finality on the issue.
[97] The respondent submitted that, if the amendment sought was
granted, it would be seriously prejudiced, because, with the issue not
having been referred to conciliation, it has not had an opportunity to
conciliate on it. In the light of the conclusion I have reached above that the
introduction of this new alleged reason for dismissal does not constitute a
new dispute, it must follow that it would not be competent to refer the new
alleged reason for dismissal to conciliation as a new dispute. Actually, as
pointed out earlier, the allegation that the dismissal is an automatically
unfair dismissal is not necessarily inconsistent with the dismissal being for
operational reasons.
[98] At any rate, the respondent is free to initiate nonstatutory initiatives
at conciliation with the appellants in the light of this further reason alleged
as the reason for dismissal. If conciliation would have been successful
earlier if this new reason for dismissal had been alleged, there is no
reason why it cannot be successful at this stage. In fact, if past experience
is anything to go by, there would be greater prospects of conciliation now
than there would have been earlier because now the trial is imminent.
There is no prejudice to the respondent which warrants the refusal of the
appellants' application for amendment.
[99] For the above reasons I came to the conclusion that this Court
should grant the order that was handed down on the 11th October 1999 as
set out earlier in this judgment.
R.M.M. ZONDO
Acting Judge President
Mogoeng AJA
[100] I have had the benefit of reading both judgments prepared by my
Colleagues Zondo AJP, and, Conradie JA, in this matter. Except for what
Conradie JA says in paragraphs 8 and 13 of the judgment, I agree with
both judgments.
M.T.R. MOGOENG
Acting Judge of Appeal
APPEARANCES
For the Appellants : MR H CHEADLE
Instructed by : Cheadle, Thompson and Haysom.
For the Respondent : MR P PRETORIUS SC
(With Mr A T Myburgh)
Instructed by : Deneys Reitz.
Date of Hearing : 29 September 1999
Date of Order : 11 October 1999
Reasons furnished on : 21 October 1999