IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. JS173/2003
In the matter between:
HENDRIK PIETER STRAUSS Applicant
and
INVESTEC GROUP LIMITED Respondent
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JUDGMENT
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NDLOVU AJ
[1] This is an application for amendment of the Statement of Claim
launched by the Applicant in the main action. The application was
opposed by the Respondent.
[2] The Statement of Claim was filed on the 18 March 2003. The
Respondent's response, in terms of Rule 6(3), was filed on 2 April
2003. In its response the Respondent raised a few points in limine ,
which included the following:
"1 Although the respondent commenced and
engaged the applicant in respect of
consultations relating to his intended
termination for operational requirements the
applicant resigned from his employ from the
respondent (sic) by letter dated 2 January
2002 to take employment with Citibank with
effect from 13 January 2002. In the
circumstances the respondent denies that the
applicant has any claim against the
respondent arising out of his employment or
the termination thereof and denies that it
dismissed the applicant;
2 In the event of its being established that the
applicant’s services were terminated by the
respondent for operational requirements
(which is denied for the reasons set out
above) then the respondent avers that:
2.1 the termination of employment of
the applicant for operational
requirements was at the latest 3 January
2002. The applicant however filed an
application to the Commission for
Conciliation, Mediation and Arbitration
("CCMA") on 7 October 2002. No
application for condonation was sought
by the applicant in respect of such
application and no application for
condonation was accordingly granted;
2.2 in the circumstances the respondent
avers that the application of the
applicant has not been brought within
the time limits prescribed within the
Labour Relations Act and accordingly
this Honourable Court does not have
jurisdiction to entertain that claim...…"
[3] The proposed amendment related to a few aspects of the Applicant’s
original Statement of Claim, but it was only item 2 thereof which the
Respondent objected against. For this reason, it is only that
specific item of the Applicant’s notice of amendment which I propose
to deal with in more detail. In terms of this item the Applicant
sought to amend paragraph 3 of his Statement of Claim which in its
original and present form reads as follows:
"3. The Applicant is Hendrik Pieter Strauss
an adult male who was at all relevant
times hereto in the employ of the
Respondent and who resides at 117
Boundary Lane, Parkmore."
[4] In terms of Item 2 of the notice of amendment the Applicant
proposes that the said paragraph 3 be amended as follows:
"2. by deleting paragraph 3 on page 2 and
substituting same with The Applicant is
Hendrik Pieter Strauss an adult male
who was in the employ of the
Respondent from 1 December 1998 and
who was unfairly dismissed on 7
January 2002 and whose last working
day was 8 January 2002 (the period of
the employment as well as the period
after the termination thereof up to and
including 24 October 2002, being the
relevant time period in respect of this
action), and who resides at 117
Boundary Lane, Parkmore, Sandton,
Gauteng."
[5] On 26 June 2003 Respondent filed its notice of intention to oppose
the Applicant’s proposed amendment. On 18 July 2003
Respondent filed its affidavit in support of its opposition to the
proposed amendment.
[6] In particular, paragraphs 5 and 6 of the Respondent’s opposing
affidavit read as follows:
"5. The respondent objects to the
notice of amendment in respect of
item 2 thereof. In this regard the
respondent wishes to point out that
in terms of its response it has
contested the jurisdiction of this
Honourable Court to entertain this
application by virtue of the fact that
the alleged dispute relates to an
unfair dismissal which is alleged to
have taken place on " 8 January
2002". The respondent has
indicated that the Applicant only
filed an application to the
Commission for Conciliation,
Mediation and Arbitration on 7
October 2002.
"6. Accordingly, it is submitted that the only
purpose of the amendment which is sought by
the applicant is in an attempt to incorporate
into the application a time period way beyond
the date of the alleged dismissal in order to
avoid the consequences of him having
brought the application late. Accordingly, it
is submitted that on the basis of an allegation
of an alleged unfair dismissal on 8 January
2002 (which is denied by the respondent) that
there is no basis for the amendment sought
by the applicant in terms of which he states
the following "(the period of the employment
as well as the period after the termination
thereof up to and including 24 October 2002,
being the relevant period in respect of this
action)". The applicant may well have had
other remedies that he could have sought but
on the basis of the claim brought by the
applicant i.e. his alleged unfair dismissal
which is alleged to have taken place on " 8
January 2002 " the amendment sought is not
only not competent but is prejudicial to the
respondent. "
[7] Mr Snider (for the Applicant) submitted that the Applicant had always
maintained that his dismissal was on 8 January 2002. The Applicant had
never pretended that he was dismissed in October 2002. What
happened was that he only realised of the real reasons of his dismissal
from the events that took place up to and including 24 October 2002,
which, in the Applicants submission, were the reasons which rendered his
dismissal unfair. Mr Snider further argued that by the proposed
amendment it was not intended to put the referral of dispute to the CCMA
within the prescribed time limits. He further contended that the
Respondent ought to have filed its objection to the CCMA that it (the
CCMA) did not have jurisdiction to conciliate the dispute which had been
referred out of time in terms of the Act and its Rules, without the
application for condonation of the late referral having first been granted.
Nor has the Respondent (Mr Snider further argued) taken the
Commissioners decision to conciliate the dispute on review. He submitted
that the issuance of the certificate of nonresolution of the dispute (which
was common cause between the parties) was the basis on which this
Court found its jurisdiction to adjudicate the dispute. The Respondent was
not challenging the certificate of outcome either.
[8] Mr Snider further submitted that the granting of the proposed
amendments would not prejudice the Respondent in any manner.
[9] Mr Bleazard (for the Respondent) submitted that the proposed
amendment was simply unacceptable and that, therefore, the
question of prejudice did not come into the picture. He submitted
that the intention and purpose of the proposed amendment was to
circumvent the time frame provided for by the Act within which to
refer a dispute to the CCMA. The Applicant was allegedly
dismissed on 8 January 2002. He referred his dispute to the
CCMA for conciliation only on 7 November 2002, which was way out
of time in terms of the Act. (Incidentally, it may be mentioned for the
record that although the referral form (LRA 7.11) reflects that the
dispute was referred on 7/10/02 it was common cause between the
parties that this was a clerical error. The correct date was 7/11/02).
No application for condonation of the late referral was filed. Now, by
seeking the proposed amendment, the Applicant was attempting to
ensure that the period, within which the dispute was referred to the
CCMA for conciliation, was calculated from 24 October 2002 and not
(as it should be) 8 January 2002. He pointed out that if the
calculation was started from 24 October 2002 the Applicant would be
within the prescribed time limit to have referred the dispute, as he
did, on 7 November 2002. In terms of section 191 of the Act the
dismissal dispute must be referred for conciliation within 30 (thirty)
days from the date of dismissal.
[10] The Court has a discretion whether to grant or refuse an application
of this nature, which discretion must be exercised judicially.
(Robinson v Randfontein Estates Gold Mining Co Ltd, 1921 AD 168
at 243; Caxton Ltd v Reeva Forman (Pty) Ltd 1990(3) SA 547 (A)
at 565 G). It has been held by the courts that the primary object of
allowing an amendment is :
"to obtain a proper ventilation of the dispute between the
parties, to determine the real issues between them, so that
justice may be done." (Cross v Ferreira 1950(3) SA 443 (C) at
447; TransDrakensberg Bank Ltd v Combined Engineering (Pty) Ltd
1967(3) SA 632 (D) at 638 A; Viljoen v Baijnath 1974(2) SA 52 (N)
at 53 H; Barclays Bank International v African Diamond Exporters
(Pty) Ltd (1) 1976(1) SA 93 (W) at 96 A C; Kirsh Industries Ltd v
Vosloo & Lindeque 1982(3) SA 479 (W) at 484 G).
[11] Prejudice is the main consideration which the Court would take
account of in determining an application for amendment of
pleadings. Where the amendment will cause, or is likely to cause,
prejudice to the other party, which prejudice cannot be compensated
by a costs order and, where applicable, an adjournment of the
matter, the amendment shall be refused.
(TransDrakensberg Bank Ltd, supra at 638 H H 639 C; Amod v S
A Newveld Fire & General Insurance Co Ltd 1971(2) SA611 (N) at
618 (A); Euroshipping Corporation of Monrovia v Minister of
Agriculture 1979(2) SA 1072 (C) at 1087 C. The following well
renown statement by Watermeyer J in Moolman v Estate Moolman
1927 CPD 27 at 29, is needless to emphasise:
"..... the practical rule adopted seems to be that
amendments will always be allowed unless the
application to amend is mala fide or unless such
amendment would cause an injustice to the other
side which cannot be compensated by costs, in
other words, unless the parties cannot be put back
for the purposes of justice in the same position as
they were when the pleadings which is sought to
amend were filed."
[12] It does not seem to me that the granting of the proposed amendment
would cause the Respondent to suffer any prejudice which could not
be compensated by an appropriate costs order and, if deemed
necessary, an adjournment of the matter to accord the Respondent
the opportunity to readjust its pleadings and/or its preparation for
the trial, or for whatever other reason the Respondent might
reasonably require the adjournment for, being occasioned by the
amendment.
[13] It would appear that the particulars of the proposed amendment are
not entirely new. In terms of the Applicant’s referral form (LRA
7.11), at paragraph 4 thereof, the following information was
furnished by the Applicant:
"4. DATE DISPUTE AROSE
The dispute arose on: 8/01/2002 /
Alternatively Malicious intent revealed
to me on 8/10/02 when speaking to Veli
Sithole;
The dispute arose where: Sandton (both
8/01/2002; 8/10/2002)."
[14] On that basis it follows that the Applicant, when he referred the
dispute for conciliation, did not only mention the date of his dismissal
(that is, 8 January 2002) but he further mentioned 8 October 2002,
as being the date on or by which the alleged Amalicious intent,
(presumably on the part of the Respondent, and which was the real
reason for dismissing him), was revealed to him. What he meant
thereby, it seems to me, was that the events which rendered his
dismissal to be unfair were only brought to his attention on or up to 8
October 2002. The only difference from what he alleged at the
conciliation referral stage and what he now alleges in his proposed
amendment is that, instead of referring to 8 October 2002 he now
refers to 24 October 2002. The immediate question is: Does the
difference in these two dates in October 2002 make any material
difference in terms of the Respondent’s ground of objection? In my
view, the answer is “no”. If the referral was made on 7 November
2002 (as was indeed the case) then both dates (that is, 8/01/02 and
24/10/02) would, after all, fall within the prescribed time period within
which the referral would have had to be made.
[15] When I raised the question with Mr Bleazard as to why the dates (as
reflected in paragraph 4 of the LRA 7.11 form, referred to above,
namely: 8/01/02 and 24/10/02 were not queried at the conciliation
meeting) he told the Court that in actual fact there was no
conciliation meeting held in this matter. Therefore, no attempt was
ever made towards conciliation of the dispute. He told the Court
that what happened was that the Commissioner simply issued the
certificate of outcome after a period of 30 (thirty) days had elapsed
without the parties having resolved their dispute. (Section 135(5)(a)
of the Act). Unfortunately, Mr Bleazard’s submission in this regard
related to matters which did not appear in any of the parties’
pleadings before the Court. Therefore, such a submission was
irrelevant and inadmissible.
[16] The Respondent had already raised the point in limine (in its Rule
6(3) Response) which related to the very same issue it now objects
against to be included in the Applicant’s Statement of Claim, by way
of amendment. Paragraphs 2.1 and 2.2 of its Response (quoted
above) appear to refer to this objection. In other words, even
without the amendment, the Respondent was still intent on raising
the issue ( in limine ) of the Court's lack of jurisdiction, by virtue of the
Applicant having allegedly referred the dispute to the CCMA out of
time and there being no condonation application having been sought
and granted in that regard.
[17] The granting of the proposed amendment would not per se mean the
acceptance by the Court of the Applicant's version on the issue. It
should only have accorded the opportunity "to obtain a proper
ventilation of the dispute between the parties, to determine the real
issues between them, so that justice may be done". ( Cross v
Ferreira, supra).
[18] In any event, Mr Bleazard, in his submission, intimated that the issue
of prejudice was not a ground on which the Respondent founded its
objection against the amendment. He argued, instead, that the
proposed amendment was, in law, excipiable and that it was at this
stage the appropriate time for the Respondent to raise the objection.
[19] The matter before the Court was one of an application for
amendment and not one of an exception. These concepts are
governed by different rules and different considerations. The
Respondent opposed the Applicant's application for amendment and
gave its grounds for its opposition. Hence the application for
amendment was set down for hearing. If the Respondent intended
to except to the Applicant's statement of claim or to his application
for amendment, it should have formally done so in terms of the
Rules. The exception would then have been set down for hearing
accordingly.
[20] In any event, it does appear from Mr Bleazard's own submissions,
that the issue the Applicant complained about was likely to
involve a real factual dispute between the parties which could
properly be determined after hearing oral evidence. The trial, in my
view, would therefore be the ideal forum to deal with the issue. As I
have indicated already, this issue was raised by the Respondent as
a point in limine and, as such, will necessarily be dealt with at the
trial of this matter.
[21] As for the question of costs, an amendment is an indulgence in
favour of the party seeking the amendment and, therefore, such
party ordinarily pays the costs occasioned by the amendment.
However, it does not seem to me that the opposition to the
amendment in the present case was a reasonable step for the
Respondent to have taken. It should therefore bear its own costs in
this regard.
[21] In consequence whereof the Court makes the following Order:
1 The application for amendment of the Applicant’s Statement of
Claim is granted.
2 The Applicant is to pay the costs occasioned by the amendment,
save the costs for the opposition.
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NDLOVU, AJ
Appearances:
For the Applicant : Mr A N Snider
Instructed by : Larry Chimes Attorney
Rosebank, Johannesburg
For the Respondent : Mr B Bleazard
c/o Brian Bleazard Attorneys
Saxonwold, Johannesburg
Date of Judgment : 28 November 2003