IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN) OF INTEREST
CASE NO: C428/00
DATE HEARD: 11-09-2002
DATE DELIVERED: 12-9-2002
In the matter between:
ANDRE MYBURGH First Applicant
PIETER PAUL DANIEL LE ROUX Second Applicant
ARMAND GERHARDUS GELDENHUYS Third Applicant
CHRISTIAAN ERNST GERHARDUS Fourth Applicant
JORDAAN
RAYNARD HERMY MARS Fifth Applicant
and
AUTONET (PASSENGER SERVICES) First Respondent
AUTOPAX (PTY) LIMITED Second
Respondent
JUDGEMENT
PILLAY, J:
1. This is an application for the amendment of the applicants'
statement of claim.
2. The first ground of objection is to the applicants seeking to
compel the respondent to abide by the provisions of Rule 28 of
the Rules of the High Court without first having obtained leave of
this Court. Rule 11(3) and (4) do not confer rights on litigants to
utilise the procedure of the High Court without first having
obtained leave of this Court, so it was submitted for the
respondent.
3. The applicants countered that litigants cannot be expected to
apply to the Court each time recourse is had to Rule 11(3) and
(4) of the Rules of the Labour Court. Furthermore, the
respondent, having given notice of its objection to the
amendment, failed to formally set out the grounds thereof as
required to by Rule 28(3) of the Rules of the High Court. The
respondent has, therefore, lost the right to object to the
amendment. So it was submitted for the applicants.
4. Rule 11 of the Rules of the Labour Court provide:
"(3) If a situation for which these Rules do not provide arises in
proceedings or contemplated proceedings, a Court may adopt
any procedure that it deems appropriate in the circumstances.
(4) In the exercise of its powers and in the performance of its
functions or in any incidental matter the Court may act in a
manner that it considers expedient in the circumstances to
achieve the objects of the Act."
5. I agree with Mr Rautenbach for the respondent that it is only the
Labour Court that can, by having recourse to Rule 11(3) and (4),
permit the adoption and adaption of the High Court Rules.
However, that does not imply that every time recourse is had to
Rule 28 of the High Court Rules, a litigant must first apply to the
Labour Court to do so. Applications for amendment of pleadings
are heard routinely in the Labour Court. I agree with Mrs Klopper
for the applicants that for such applications to be prefaced by an
application for leave to use Rule 28 of the Rules of the High Court
would be cumbersome and costly and would serve no practical
purpose.
6. When an application for amendment is made, the Labour Court
may adopt, adapt or reject the Rule 28 procedure or act in any
manner that it considers expedient. I am not aware of any
authority, nor was I referred to one, where the Labour Court
refused to apply Rule 28 of the High Court Rules when confronted
with an application for amendment. In the circumstances, the
respondent had no reason to doubt that the Labour Court would
refuse to apply Rule 28. It should have complied with Rule 28
fully.
7. However, whether the respondent complied or not is now
academic. When the applicants sought to secure confirmation
from the Labour Court that the pleadings had already been
amended, the Court (per Wagly J) rejected the submission and
ordered the applicants on that occasion to launch a substantive
application. That is the application now before me as a properly
opposed motion.
8. Whether pleadings had closed or not was also raised as a
peripheral issue in this application. The applicants wanted
discovery to cure the vagueness of their pleadings. The
respondent refused to make discovery as pleadings had not
closed. For the same reason it also took the view that it was
premature to hold a pre-trial conference.
9. Whether the pleadings had closed or not is irrelevant to this
application for amendment. Either the applicants have a valid
cause of action or they do not have such a cause. They cannot
depend on the respondent to create a cause of action for them
through disclosure. Besides, if the applicants seriously believed
that they were entitled to discovery they should have brought a
separate application for that. Furthermore, I agree with the
respondent that the pre-trial would be premature if the issues in
dispute have not been defined in the pleadings. This application
for amendment is, I understand, a step in that direction.
10. The second issue for determination is whether the applicants'
late filing of the reply should be condoned. The application for
condonation is embodied in paragraphs 7 and 8 of the replying
affidavit. No substantive application for condonation was made.
11. The reply was delivered on 28 August 2002, three months late
and 13 days before the hearing. The explanation for the delay
was that the applicants' representative only became aware that a
reply was warranted when the heads of argument were being
prepared.
12. The explanation for the delay is wholly inadequate. The
applicants had the benefit of two legal minds - that of counsel
and their attorney - throughout the matter. They could not
reasonably have had any doubt about whether a reply was
warranted. I say so against the following backround:
13. The applicant referred a dispute to the CCMA based on an alleged
unfair labour practice. The referral form dated 19 October 1999
confirmed that it was in terms of Schedule 7 Item 3(4)(b) of the
Labour Relations Act 66 of 1995 (the LRA). They described the
nature of the dispute as follows:
"Die geskil gaan oor die werknemer - is op dieselfde voordele as
permanente werkers geregtig, maar die werkgewer versuim om
dit aan die werknemer te verskaf."
14. The relief sought was:
"Permanente aanstelling en vergoeding en voordele van
permanente werkers vanaf datum van aanstelling, alternatiewe
kompensasie."
15. They described the special circumstances of the case thus:
"Die werkgewer weier om die werknemer permanent aan te stel
en wysig deur voorwaardes eensydig."
16. After conciliation, the commissioner issued a certificate stating
that the dispute about the alleged unfair labour practice in terms
of Schedule 7 Item 3(1) remained unresolved.
17. On 9 June 2000 the applicants referred a dispute to this Court.
Predictably, the respondent in opposing the claim objected in
limine to the jurisdiction of the Court on two grounds: The claim
referred to this Court was based on constructive dismissal which
had not been conciliated and which, in any event, should have
been referred for arbitration. Furthermore, the alleged unfair
labour practice dispute should have been referred to arbitration
and not for adjudication by the Labour Court.
18. The applicants conceded in a letter to the Registrar that the
Labour Court had not jurisdiction because the issue that was
pleaded was not addressed in the preceding referral to the
CCMA. They said that they intended to make a fresh referral
based on the constructive dismissal, together with an application
for condonation to the CCMA. In due course, the CCMA dismissed
the application for condonation.
19. Subsequently, it was agreed that the applicants would make an
application to amend their pleadings. The respondent disputes
that it ever agreed to the amendment. There is no evidence that
the respondent agreed to the amendment. All the evidence
points to the contrary. I would be surprised if the respondent
consented to an amendment that might deprive it of the tactical
advantage that it acquired from its jurisdictional objection.
20. The applicants then delivered their proposed amendment. Their
claims were now to be based on an alleged unfair labour practice
in terms of Schedule 7, their cause of action being unfair
discrimination. The relief they sought was no longer
reinstatement but compensation. The cause of action was
amplified in argument to be an automatically unfair constructive
dismissal based on discrimination and other alleged violations of
the applicants' constitutional rights.
21. The respondent's jurisdictional objection raised in limine to the
original referral therefore remained substantially valid for the
referral of the proposed amended statement of claim. The
grounds of objection were reaffirmed in a letter to the applicants'
representative as early as 12 September 2001, 12 days after
receiving the notice of the proposed amendment. It is therefore
astounding that the applicants failed to set out fully in their
founding papers their reliance on evidence that would allegedly
prove that, in discussions with the commissioner at conciliation,
the true nature of their dispute was identified as that of unfair
discrimination. These allegations which underscore the
amendment, were also not made in the reply for which
condonation is now sought. The applicants could not reasonably
have been under any misapprehension that the objection in
limine would not be pursued through the opposition to the
amendment since they both related to the cause of action.
22. The primary purpose of the replying affidavit is to introduce new
evidence about what transpired at the conciliation. This the
applicants may not do, not only as a rule, but in all the
circumstances described herein.
23. Furthermore, the respondent was not at conciliation. There is no
record or evidence from the conciliating commissioner. All that
the Court has is the version of the applicants. Made as it is at
such a late stage of the proceedings, after having conceded that
the Court had no jurisdiction and after having been unsuccessful
in the application for condonation, the Court has serious doubts
about the veracity of the applicants' version. These doubts are
fortified by the commissioner's description of the dispute in the
certificate as one of an unfair labour practice in terms of
Schedule 7 Item 3(1). The applicants have also not attempted to
set aside that certificate which appears to be consistent with
their referral to conciliation.
24. If the issue of discrimination was alive at the conciliation, as
alleged, then the applicants had no reason to abandon their
claims for constructive dismissal for want of jurisdiction. Their
objective of applying for condonation was, it was submitted, to be
able to re-refer a dispute about an automatically unfair
constructive dismissal based on discrimination and other
infringements of their constitutional rights. It seems to me that
having shopped for a forum, the applicants were now shopping
for a cause of action.
25. Against this factual background the explanation for the delay is
not only unreasonable, but also shows that the applicants have
little prospects of succeeding in their application for the
amendment. The amendment changes the cause of action
substantially. It is also a cause that has not been conciliated. As
there has not been compliance with a jurisdictional prerequisite,
the amendment cannot be allowed.
26. The application for condonation of the late delivery of the
replying affidavit must therefore fail. It follows, therefore, that in
the absence of condonation and any prospects of success on the
merits, the application for amendment must also be dismissed.
27. In deciding the issue of costs I have taken into account that the
applicants were forewarned of the respondent's stance from the
outset. They have chosen this course of action and they have
therefore put the respondents to expense. In the circumstances
they must pay the costs. I order as follows:
1. The application in which relief is sought in terms of paragraphs 1,
2 and 3 of the notice of motion is dismissed.
2. The applicants are to pay the costs.
PILLAY, J