IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: 2026-060674
In the matter between:
PLASMA TAKWANA BANDASON Applicant
and
WOOLWORTHS HOLDINGS LIMITED First Respondent
WOOLWORTHS (PROPRIETARY) LIMITED Second Respondent
Heard: 24 July 2026
Delivered: This judgment was handed down electronically by circulation to the
parties and their legal representatives by email; and publication on the Labour
Court website and released to SAFLII. The date for hand-down is deemed to be
3 August 2026.
Summary: Application for leave to amend a statement of claim in terms of Rule
20 of the Labour Court Rules – proposed statement of claim substituted in its
entirety without identification of the amendments – amendment nonetheless
determined on its own terms – whether the proposed statement of claim
identifies which facts sustain which cause of action and against each
respondent – prejudice in responding – leave to amend refused – no order as
to costs.
(1) Reportable No
(2) Of interest to other Judges: No
____________ ______________
Signature Date
2
JUDGMENT
MOTSHEKGA, AJ
Introduction
[1] In this interlocutory application, the applicant, a self -represented litigant and
the plaintiff in the main proceedings , seeks leave in terms of R ule 20(4) of the
Rules of the Labour Court 1 to amend her statement of claim by the
substitution of a fourth a mended statement of claim (‘the proposed statement
of claim’). The first respondent, Woolworths Holdings Limited (‘WHL’), and the
second respondent, Woolworths (Proprietary) Limited (‘WPL’), oppose the
application.
[2] The respondents object to the proposed statement of claim on two grounds.
The first is that the proposed statement of claim does not plead the material
facts necessary to sustain a direct claim under section 6(1) of the Employment
Equity Act2 (‘the EEA’) against WHL. The applicant pleads that WPL was her
contractual employer and, that WHL is not cited in that capacity but as a
person who directly participated in the employment policies or practices
applied to her . The second objection is that the proposed amendment does
not delineate the factual allegations against the separate causes of action,
and further, it fails to allocate the factual allegations to each respondent,
thereby making it difficult for the respondents to identify the case each is
required to meet.
[3] The grounds of objection are intertwined in that, the second objection, which
is broader in ambit, is dispositive and axiomatically renders unnecessary any
determination on the first objection. For avoidance of doubt, in order to decide
1 GN 1665 of 1996: Rules of the Conduct of Proceedings in the Labour Court (repealed, effective 17
July 2024).
2 Act 55 of 1998 as amended.
3
whether sufficient facts have been pleaded to sustain a s 6(1) claim under the
EEA, the Court would need to first consider whether those facts have be en
allocated to that respondent at all . As it will become apparent, this exercise
cannot lie within the province of either respondent and it is not one the Court
will undertake on their behalf . Accordingly, the Court will not make a
determination on the first objection.
The form of the proposed amendment of the statement of claim
[4] The applicant’s notice of intention to amend states that the existing statement
of claim is to be amended by t he substitution of the proposed statement of
claim ‘in its entirety’. It identifies no paragraphs sought to be amended, nor is
any schedule of amendments provided. Additionally, the ‘existing operative
statement of claim ’ sought to be amended does not form part of the
application. Consequently, the Court is without a comparator statement of
claim, a difficulty which was raised with the parties during argument.
[5] A notice of intention to amend ser ves to notify the opposing party of what is
sought to be amended and, in the event of an objection, to enable the Court to
determine what was prior to the proposed amendment, vis -à-vis what will be
should leave to amend be granted.
[6] Accordingly, the Court considers the current amendment application on the
proposed statement of claim as introduced by the applicant in its entirety. The
respondents have approached it on that footing, with the grounds of objection
resting against its four corners.
The proposed statement of claim
[7] The applicant claims the following relief: as against WPL, declarations that it
contravened sections 6(1), 6(3) and 60 of the EEA and that it failed to take the
steps contemplated in section 60(2), together with compensation under
section 50; and as against WHL, a declaration that it contravened section 6(1)
of the EEA by directly participating in the later discriminatory employment
of the EEA by directly participating in the later discriminatory employment
practices applied to the applicant, together with compensation under section
50(1). Patrimonial damages under section 50 are also claimed. Three causes
4
of action arise: unfair discrimination under section 6(1), advanced against both
respondents; harassment under section 6(3); and employer liability under
section 60, both advanced against WPL.
[8] The proposed statement of claim c omprises 260 paragraphs spread over nine
parts: Part A identifies the parties and narrates the facts regarding WHL’s
post-escalation conduct, concluding with an a verment that any ‘references to
the Respondents are references to one or both Respondents according to the
conduct specifically pleaded’; Part B pleads jurisdiction; Part C pleads the
grounds relied upon and introduces the claim in terms of section 60 of the
EEA; Part D, which constitutes the substantive portion of the proposed
statement of claim, pleads the facts ; Part E pleads WPL’s liability under
section 60 of the EEA; Part F pertains to WHL’s direct liability under section
6(1) of the EEA; Part G introduces the harassment claim, without identifyin g
the respondent against whom the claim is directed; Part H lists the 'actionable
contraventions' relied upon and cross-references selected facts in Parts C and
D in support of every claim and against both respondents, pleading further
that WHL's post -escalation conduct is relied upon 'as part of the same
continuing employment sequence and not as a separate dispute' ; and Part I
contains the relief as summarised in paragraph 7 above.
Statutory framework – The EEA
[9] Section 6(1) of the EEA prohibits unfair discrimination by any person against
an employee, in any employment policy or practice, on any of the listed
grounds
3 or on any other arbitrary ground. Section 6(3) provides that
harassment is a form of unfair discrimination which is prohibited on any one or
more of the grounds listed in section 6(1). Section 60 deems an employer to
have contravened the relevant provision where the contravening conduct of
an employee is brought to its attention and the employer fails to consult and
take the necessary steps .
take the necessary steps .
4 Section 60(4) exonerates the employer from
3 The listed grounds are: race, gender, sex, pregnancy, marital status, family responsibility, ethnic or
social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief,
political opinion, culture, language, birth.
4 Sections 60(1), 60(2) and 60(3) of the EEA.
5
liability where it is able to prove that it did all that was reasonably practicable
to avert contravention of the Act by the employee.
[10] The question of onus oscillates across the applicant’s three causes of action.
On the discrimination claim based on a listed ground, section 11(1) of the EEA
requires an employer against whom the allegation is made to to prove on a
balance of probabilities that it did not occur as alleged, or that it is rational and
not unfair, or it is otherwise justifiable. Contrastingly, where the discrimination
is based on an arbitrary ground, section 11(2) requires the complainant to
prove that the conduct complained of is not rational, amounts to discrimination
and is unfair. Furthermore, liability of the employer under section 60 of the
EEA is predicated upon a finding of contravention committed by an employee,
notification to the employer regarding the contravention and a subsequent
failure by the employer to take the necessary steps.
[11] It follows that what each respondent bears the burden of proving or disprov ing
depends on the facts pleaded against it, the provision relied upon and the
ground.
Discussion
[12] The generous approach adopted by the Court regarding amendments is trite.
The Court’s discretion is wide and leans towards the proper ventilation of
disputes. An amendment will generally be permitted unless it is made in bad
faith or will result in an injustice not curable by an appropriate order as to
costs.5 That is not, however, carte blanche to introduce a defective pleading
and require the other par ty to plead over its objections. Our Courts have also
held that where an amendment would render a pleading excipiable, leave to
amend will ordinarily be refused.6
[13] The rules require a statement of claim to be a clear and concise statement of
the material facts, with sufficient particularity to enable the opposing party to
5 Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd 2004 (3) SA 160 (SCA) at
5 Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd 2004 (3) SA 160 (SCA) at
para 12; Affordable Medicines Trust and Others v Minister of Health and Another 2006 (3) SA 247
(CC) at para 9.
6 Cross v Ferreira 1950 (3) SA 443 (C) at 450.
6
reply, and a statement of the legal issues that arise from those facts .7 The
evident purpose of these requirements is to define the issues so that each
party knows the case it must meet, and every fact necessary to establish the
claim must be clearly set out.8
[14] The enquiry into whether a pleading is vague and embarrassing is twofold:
whether the pleading lacks particularity to the extent that it is vague; and
whether the vagueness causes embarrassment such that the excipient is
prejudiced, in the sense of being unable to plead or properly prepare for trial.
The excipient must show that the pleading is ambiguous, meaningless,
contradictory or capable of more than one meaning, to the extent of
vagueness which causes embarrassment .9 In Roberts Construction Co Ltd v
Dominion Earthworks (Pty) Ltd, the Court held that:
‘The inquiry is not - whether a cause of action lies somewhere wrapped up in
the particulars of the plaintiff’s claim...The enquiry relates to the
embarrassment arising from the form of the pleadings . A plaintiff is certainly
not entitled to plead a jumble of facts and to require the defendant to sort
them and fit them together in order to determine the real basis of the claim.’10
[15] The objection in this matter is not that the proposed statement of claim is
incoherent. The proposed document, albeit lengthy, appears organised and
arranged in parts as discussed in paragraph 8 above. It contains headings,
with genuine attempts to narrate the facts in accordance with the pleaded
grounds and contraventions. These attempts, however, fail to allocate the
facts founding each cause of action to either respondent. Resultantly, the
question upon which the enquiry rests is rather crisp: are the respondents
able to respond to the proposed statement of claim in its current form.
7 Rule 11(1)(b)(ii) and (iii) of the Labour Court Rules.
8Harmse v City of Cape Town (2003) 24 ILJ 1130 (LC) at paras 6 - 7; McKenzie v Farmers’ Co-
8Harmse v City of Cape Town (2003) 24 ILJ 1130 (LC) at paras 6 - 7; McKenzie v Farmers’ Co-
operative Meat Industries Ltd 1922 AD 16 at para 23.
9 Trope v South African Reserve Bank and Another 1992 (3) SA 208 at 211; BFLM SA (Pty )Limited v
Sequence Logistics (Pty) Limited (2023/061832) [2025 ZAGPJHC 831] (6 March 2025) at para 18.
10Roberts Construction Co Ltd v Dominion Earthworks (Pty) Ltd 1968 (3) SA 255 (A) at 262H - 263A.
7
Do Parts E and F cure the complaint?
[16] The applicant submits t hat Part E delineates WPL’s liability and Part F
delineates WHL’s liability, and that t his resolves the objection. The Court
accepts that both parts are discrete, that each is directed at an identified
respondent, and that Part E is a properly constituted section 60 claim in terms
of the EEA . The subm ission nonetheless does not meet the objection, for
reasons following hereunder.
[17] Firstly, Parts E and F address the section 60 claim against WPL and the
section 6(1) claim against WHL. The relief goes further. A declaration is
sought at paragraph 260.1 that WPL contravened section 6(1), yet no part of
the proposed statement of claim pleads that case against it. Part G pleads
harassment without naming a respondent, yet relief under section 6(3) is
sought against WPL, in circumstances where the conduct relied upon as
harassment at paragraph 246.5 is the same conduct relied upon against WHL
at paragraph 241.2.
[18] Secondly, Parts E and F allocate conclusions and not facts. Part F identifies
which conclusion is directed at whom. It does not identify which of the
underpinning fac ts are alleged against whom. C onclusions of law are not a
substitute for the material facts grounding those conclusions , and marshalling
the conclusions while leaving the facts unallocated does no t cure the defect
complained of.
[19] Thirdly, there is discordance between the two parts. Paragraph 79 pleads as a
primary averment that the group- level functions were WPL’s authorised
representatives. Part F pleads as its primary case that those same functions
were WHL acting in its own right. Paragraph 237 then pleads, as an
alternative within Part F, the very averment advanced as primary at paragraph
79. The same conduct by the same persons is thus attributed to both
respondents on competing primary cases, without a delineable construction.
8
Averments which are contradictory and are not pleaded in the alternative are
patently vague and embarrassing.11
[20] It behoves an applicant to formulate a statement of claim which marshals the
material facts and allocates them to each cause of action and to each
respondent, so as to enable each to engage separately and meaningfully with
the case made against it. Th erefore, the respondents in the present matter
cannot be expected to assemble their respective cases from the applicant’s
supporting affidavit, the replying affidavit, a roadmap, a chronology and a
table in the heads of argument. That the applicant found it necessary to
provide a roadmap and a chronology demonstrates that the statement of claim
does not speak for itself. Ultimately, t o require the respondents to collate and
synthesise those documents in an attempt to decipher which case each must
meet represents the vagueness and embarrassment contained in the
proposed statement of claim.
The applicant’s remaining submissions
[21] The applicant further submitted that the respondents’ own objection
demonstrates that they ‘ understand’ the case pleaded. As the applicant
appears in person, the Court explains the distinction plainly. To understand in
general terms what a litigant has submitted as their case is not synonymous
with being able to respond in a manner that allows for a matter to be triable. A
statement of response is a formal document in which each respondent must
consider the allegations made against it and state, of each, whether it is
admitted, denied, or admitted subject to explanation. That requires knowing,
allegation by allegation, whether the allegation is made against that
respondent at all. The difficulty is exacerbated by the citing of multiple
respondents, each of which must deliver its own statement of response, and
WHL not being the applicant’s contractual employer. Yet paragraph 48 of the
proposed statement of claim directs the respondents to determine for
proposed statement of claim directs the respondents to determine for
themselves which allegations are made against which of them.
11 Ferris v Naledi Local Municipality (121/2022) [2022] ZANWHC 55 (6 December 2022) at para 14.
9
[22] The applicant in addition submits that no statement of response has been
filed, that pleadings have not closed, that no pre- trial conference has been
convened and that no trial date has been allocated such that no prejudice can
arise. This submission speaks to the delay, wasted preparation or the
disruption of an allocated trial date. The prejudice relied upon by the
respondents arises because no statement of response has yet been
delivered, their complaint being directed at the document they have been
called upon to answer. The submission carries a further difficulty. An objection
to a proposed amendment of a statement of claim is taken before the
response is delivered. If the absence of a statement of response were an
answer to such an objection, Rule 20 12 would prove otiose. The submission
therefore finds no basis.
[23] Finally, the applicant submitted that any prejudice occasioned by the
amendment may be cured by an appropriate order as to costs. The Court is in
agreement with counsel for the respondents that this is not such a case. An
order as to costs compensates a party for wasted expenditure and cannot
piece together the material facts for the respondents. The respondents would
thus remain unable to determine which allegations are directed at each of
them. The prejudice occasioned by a vague and embarrassing pleading is
accordingly not one curable by costs.
Conclusion
[24] Leave to amend accordingly falls to be refused. This or der does not dispose
of the applicant’s claims. The applicant’s operative statement of claim is
accordingly extant.
Costs
[25] Rule 20(8)13 holds a party who gives notice of amendment liable for the costs
occasioned to any other party by the amendment , unl ess the Court directs
otherwise. Having regard to the requirements of law and fairness , the
12 The Rules of the Labour Court.
13 Ibid.
10
application being neither frivolous nor vexatious, 14 each party is to bear their
own costs.
[26] In the result, the following order is made:
Order
1. The application for leave to amend the statement of claim in terms of rule
20(4) is dismissed.
2. There is no order as to costs.
__________________________
M. J. Motshekga
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: In person.
For the Respondents: Advocate P Maharaj-Pillay.
Instructed by: Edward Nathan Sonnenbergs Incorporated.
14MEC for Finance, KwaZulu-Natal v Dorkin NO and Another (2008) 29 ILJ 1707 (LAC) at para 19.