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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE NO: JS94/2024
JS507/2023
In the matter between:
BRIAN MOHLABANE Applicant
and
SANDVIK MINING & CONSTRUCTION (PTY) LTD Respondent
Heard: 22 May 2026
Delivered: 1 June 2026
Summary: Amendments, applications for consolidation, and case management.
JUDGMENT
(1) Reportable: NO
(2) Of interest to other Judges: NO
Signature Date
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DANIELS J
Background
[1] The applicant is a layperson and self -represented. His pleadings are,
unfortunately, not a model of clarity. A ttempts to c larify the underlying
disputes in court were ineffectual. Nevertheless, the following is apparent:
1.1 The applicant was employed by the respondent in a senior position. This
relationship was not harmonious and led to several disputes. The
applicant, an African male, believed that he was not being paid the same
as white individuals employed in the same or similar positions . He
therefore initiated an unfair discrimination dispute. In addition, he claimed
that the respondent withheld his bonus for unfair and discriminatory
reasons. Further, he claimed that he was dismiss ed by the respondent
and the dismissal was automatically unfair. This dispute was referred to
the court on 29 August 2023, under case number JS507/23.
1.2 In a further dispute with the respondent, the applicant sought the following
relief: “(7.1) relief with respect to unlawful restraint of trade, (7.2) directive
with respect to the actual termination date, (7.3) condonation for late
termination if related, (7.4) reinstatement if late termination not related to
termination (dated a year later )”. That dispute was referred to the court
under case number JS94/24.
1.3 In a third dispute between the same parties , the applicant alleged that he
had been unfairly dismissed by the respondent . He referred the dispute to
the CCMA for conciliation and arbitration. When that failed, he instituted
review proceedings under case number JR1483/23. The applicant
informed the court that the review has been argued and he is awaiting
judgment.
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Context of the litigation
[2] In respect of JS507/23, the respondent took exception to his statement of
claim on the basis that it was vague and embarrassing, and failed to disclose
a cause of action. On 24 March 2024, the exception was upheld by Norton AJ,
who dismissed the statement of claim. The applicant applied for leave to
appeal, but that application was dismissed. Thereafter, the applicant
petitioned the Labour Appeal Court ( “LAC”) for leave to appeal . On 31 May
2024, the LAC refused the petition. Next, the applicant applied to the
Constitutional Court for leave to appeal. On 17 December 2024, the
Constitutional Court dismissed the application. Thereafter, on 13 January
2025, the applicant filed a notice of amendment. The respondent objected to
the amendment on the basis that the statement of claim had been dismissed
and could not be amended.
[3] In respect of JS94/24, the respondent took exception to his statement of claim
on the basis that it was vague and embarrassing, and failed to disclose a
cause of action. In a judgment handed down on 12 July 2024, Peer AJ upheld
the exception on the basis that the pleading did not disclose a cause of action.
The learned acting judge struck out all the relief and declared that no
competent claim remained. The acting judge held that no amendment could
be brought to save the claim. The court dismissed the inevitable application
for leave to appeal , and the LAC dismissed the petition for leave to appeal.
Despite this, on 24 February 2025, the applicant filed a notice of intention to
amend his statement of claim.
1 The respondent objected on the basis that the
statement of claim was incapable of amendment , and the pleading was set
aside.
1 In the amendment, the applicant sought to introduce a new claim alleging that the respondent
breached his employment contract by failing to pay certain benefits to him. The benefits claimed are
unclear. What these benefits are or why the applicant is entitled to them is not clarified. The applicant
also seeks payment of a bonus, but provides little clarity on what it relates to and why he is entitled to
it. Finally, the applicant seeks “adjustment of (sic) salary wage gap”. Again, there is little clarity about
what this means.
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[4] On 18 February 2025, the applicant filed an application to consolidate the
disputes under case numbers JS94/24 and JS507/23 and place the matters
under case management . The registrar has now enrolled the amendments ,
the application to consolidate and place the matters under case management
for hearing.
Analysis
[5] The purpose of an exception, brought on the basis that the pleading fails to
disclose a cause of action, is to dispose of a defective case or defective part
of a case in an expeditious manner . The court must consider whether a case
can be established on every interpretation that the pleading can reasonably
bear. Accordingly, the threshold for the granting of an exception is high.
[6] In Ocean Echo Properties 327 CC and another v Old Mutual Life Assurance
Co (South Africa) Ltd
2 the Supreme Court of Appeal held:
“The upholding of an exception disposes of the pleading against which the
exception was taken, not the action or defence. An unsuccessful pleader is
given the opportunity to amend the plea, even when the plea has been set
aside because it does not disclose a defence. The rationale for this seems to
be that, although the defence contained in the pleading may be bad, the
pleading as such continues to exist. Ordinarily therefore the court should
grant leave to amend and not dispose of the matter . Leave to amend is not a
matter of an indulgence; it is a matter of course unless there is a good reason
that the pleading cannot be amended.” (own emphasis)
[7] In JS94/24, the court dismissed the statement of claim and refused leave to
amend. The court held that no amendment could cure the defects in the
pleading. Thereafter, the LAC refused leave to appeal. Accordingly, this court
cannot reconsider the matter . The issues referred to in that pleading have
2 2018 (3) SA 405 (SCA) at 409 at para [8]
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been finally disposed of and cannot be resurrected through a new pleading.
The registrar is directed to close that file and archive it.
[8] However, in respect of JS 507/23, leave to amend the defective pleading may
yet be granted. The proper approach was for the applicant to bring an
application in a timely manner seeking leave to amend. Fairness dictates that
the applicant be granted an opportunity to file an application seeking leave to
amend. It goes without saying that the applicant cannot introduce the claims
previously disposed of in JS94/24, nor can he introduce a claim that is bad in
law. Given that the court order upholding the exception was handed down on
22 March 2024, it is appropriate that the applicant be directed to apply for
condonation.
[9] It follows from what is set out above that the applications for case
management and consolidation are incompetent and fall to be dismissed.
Costs
[10] In this court, costs do not follow the result and are determined by the criteria
of law and fairness. Law and fairness do not prohibit the court from ordering
costs where a litigant’s conduct amounts to an abuse of the court. While I may
have been inclined to award costs against the applicant on that basis, the
respondent did not seek costs. It is therefore not appropriate to award costs.
Conclusion
[11] I make the following order:
11.1 The registrar is directed to close the court file in respect of case number
JS94/24 and archive it;
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11.2 In respect of JS 507/23, the applicant is directed to file an application,
within 15 days of this order , for (i) leave to amend his pleadings , (ii)
condonation of the delay in filing the application.
11.3 Each party is to bear their own costs.
RN Daniels
Judge of the Labour Court of South Africa
For the applicant:
Self-represented
For the respondent
Ms D Willem
Fasken Attorneys