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for counselling. T he claim as pleaded relies upon the
proposition that a policy identified in the papers as the “My
Contribution Group Policy ” formed part of the employment
contract between Absa and Mr Shuma and that it required
that Mr. Shuma be given counselling services . Absa initially
contended that the policy does not form part of the contract
of employment. But I will assume in Mr. Shuma’s favour
that it does .
ABSA takes exception to Mr Shuma 's particulars of
claim. Although the exception as drafted is fairly broad, Ms 10
Seegels -N cube , who appeared for ABSA before me, very
helpfully narrowed ABSA's complaint to a single argument .
She pointed out that the parts of the “My Contribution”
policy that Mr S huma relies upon deal with ABS A's
obligations in the event that one of its employees
underperforms. If there is underperformance, the policy
requires that the employee be given a reasonable period of
time to improve their “contribution ” during which time the
appropriate direction, instruction, training, guidance or
counselling must be provided. It is the failure to provide
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this counselling upon which Mr S huma stakes his case in
the particulars that are presently before me.
On the face of the policy, the obligation to refer Mr.
Shuma to coun selling is only triggered when an employee
underperforms. But Mr Shuma does not accept and certainly
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2025/009388_ 28072026 / bs
3
does not plead that he had underperformed. His case as
pleaded is rather that his damages resulted from
victimi sation, bullying, and other inappropriate conduct to
which he was subjected by another employee. In those
circumstances, the underperformance provisions of the
policy simply do not on apply the face of the particulars.
It may of course be that the bullying caused
underperformance, which then triggered the obligation to
refer to counsellin g. But that is not Mr. Shuma’s pleaded
case . Mr Shuma says he did not underperform at all. There
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is accordingly no causal link pleaded in the particulars of
claim between Absa’s failure to refer Mr. Shuma for
counselling and the damage Mr. Shuma says he suffered.
In those circumstances, the exception is good.
However, it is perfectly possible, perhaps even likely, that
Mr Shuma does have some legally recogni sable complaint
against ABSA . Accordingly, Mr Shuma ought to be given an
opportunity to amend his particulars. Mr Baloyi , who
appeared for Mr Shuma , accepted that 10 days to amend Mr
Shuma 's particulars of claim would be appropriate.
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I turn now to the question of costs. Ms Seegels -
N cube asked for the costs of the exception on Scale B. In a
case like this, however, it seems to me that Mr Shuma 's
complaints against ABSA, if they are legally cogni sable, are
sufficiently serious and complex to justify an order that the