THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No. JS488/22
In the matter between:
SOUTH AFRICAN COMMERCIAL CATERING AND ALLIED
WORKERS UNION obo BIYELA, SICELO & 349 OTHERS Plaintiffs
and
MASSTORES (PTY) LTD t/a MASSMART LOGISTICS Defendant
Heard: 17 & 19 August 2026
Delivered: 24 August 2026 (By circulation to the parties’ legal representatives
by email)
JUDGMENT
(APPLICATION FOR LEAVE TO AMEND)
MAKHURA, J
Introduction
(1) Reportable: No
(2) Of interest to other Judges: Yes/No
(3) Revised: No
____________ 24 August 2026
Signature Date
2
[1] This matter concerns a claim of unfair dismissal arising from the retrenchment of
the individual plaintiffs by the defendant for operational requirements. The
dismissals occurred on 1 March 2022 following a facilitated retrenchment
process undertaken in accordance with section 189A of the Labour Relations
Act1 (LRA). Pursuant thereto, the plaintiff s referred the dispute to this Court in
terms of section 191(5)(b)(ii) of the LRA.
[2] The trial commenced on 13 April 2026 and proceeded until 15 April 2026. During
this period, the defendant led the evidence of one witness, who was subjected to
cross-examination and subsequently re- examined, before he was excused. The
matter remained part -heard at the conclusion of the proceedings and was re-
enrolled, by agreement between the parties on 15 April 2026 and in consultation
with the Registrar, for continuation from 17 to 21 August 2026.
The amendment application and opposition
[3] On 7 July 2026, the plaintiffs served and filed a notice of amendment in terms of
which they intended to introduce various amendments to their statement of claim.
On 21 July 2026 , the defendant objected to part of the proposed amendment .
The objection was directed at the proposed inclusion of the following three
paragraphs under the theme addressing the challenge to the commercial
rationale, namely:
‘9A Throughout the consultation process, and despite numerous requests by the
SACCAWU members, the Defendant declined to consider and/or provide
information that is directly relevant to the commercial rationale. This information
includes the following: (1) the precise and reliable details of EXCO’s decision to
retrench; (ii) the conversion of labour brokers … or temporary employment
service workers; (iii) the high proportion of employees who rejected the 120- hour
contract.
1 Act 66 of 1995, as amended.
3
9B The Defendant’s failure to consider and/or provide this information is
indicative of the fact that the retrenchments were a fait accompli and thus had no
commercial rationale.
10A The respondent’s decision to require employees to accept the reduced
minimum hours was pre- determined before the consultation process was
complete, as evidenced by, inter alia, the respondent’s conduct in approaching
employees directly and offering t hem new contracts before the sec tion 189
process was concluded, and converting labour broker employees to permanent
employment during the consultation process. The consultation process was
accordingly not conducted in good faith and was a sham.’
[4] On 6 August 2026, the plaintiffs launched this application for leave to amend their
statement of claim. Mr Dockrat, the plaintiffs’ attorney of record, deposed to the
supporting affidavit and articulated the reason/s for the amendment as follows:
‘… During the course of the trial, counsel for the Defendant indicated that the
Defendant intended to object to certain propositions and submissions advanced
by the Plaintiff’s representative on the basis that those propositions had not been
pleaded.
At that time, the Plaintiff’s legal representatives were of the view, and so advised
the Plaintiff, that there was no merit in the anticipated objection. This view was
informed by the well -established principle that the overall onus to establish the
substantive fairness of dismissal for operational requirements – including the
existence of a genuine and bona fide commercial rationale – rests squarely on
the employer in terms of section 192(2) of the Labour Relations Act … On that
basis, and at the conclusion of the trial proceedings in April 2026, the Plaintiff did
not take any immediate steps to amend its pleadings.
Subsequently, on 29 May 2026, Prinsloo J handed down judgment in South
African Commercial Catering and Allied Workers Union obo Tshokodo and 210
African Commercial Catering and Allied Workers Union obo Tshokodo and 210
Others v Mass Discounters (Pty) Ltd t/a Game and Dion Wired Store Case No.
JS949/2021 (“the Game judgment”) … That matter also involved the Plaintiff and
a member of the Massmart group of companies and similarly concerned a
challenge to the substantive fairness of a retrenchment.’
4
[5] Mr Dockrat further submitted that, in Game , Prinsloo J held that the parties are
confined to the issues defined in their pleadings and the pre- trial minute. The
learned judge emphasised that a court is not entitled to determine a matter on
the basis of factual issues or contentions raised for the first time during cross -
examination or argument where such issues were neither pleaded nor recorded
in the pre- trial minute. Mr Dockrat indicated that, although the plaintiffs do not
agree with all the findings made in Game, they have, on legal advice, decided:
‘ex abundanti cautela, to amend [their] statement of claim…
It was for this reason, and no other, that the notice of amendment dated 6 July
2026 was served…’
[6] The defendant’s primary objection is that the plaintiffs seek, through the
proposed amendment, to introduce a challenge to the procedural fairness of the
dismissal. According to the defendant, any such challenge ought to have been
pursued by way of an application in terms of s 189A(13) of the LRA and cannot
competently be raised in the present proceedings, where the dispute referred to
the Court concerns only the substantive fairness of the dismissal. On that basis,
the defendant contends that this Court lacks jurisdiction to entertain a procedural
fairness dispute, particularly in the absence of a successful application for
condonation.2 The defendant has also questioned the bona fides of the
application.
The legal principles
[7] The Constitutional Court in Affordable Medicines Trust and Others v Minister of
Health and Others3 held as follows:
2 Section 189A (17)(a) provides that an application challenging a consultation process under section
189A(13) must be instituted within 30 days from the date on which the employer gives notice terminating
the employee’s employment or, where no notice is given, within 30 days from the date of dismissal. In
terms of section 189A(17)(b), a challenge may still be brought after the expiry of the 30- day period if the
employees can demonstrate good cause for the delay.
3 2006 (3) SA 247 (CC) at para 9.
5
‘The principles governing the granting or refusal of an amendment have been set
out in a number of cases. There is a useful collection of these cases and the
governing principles in Commercial Union Assurance Co Ltd v Waymark
NO. The practical rule that emerges from these cases is that amendments will
always be allowed unless the amendment is mala fide (made in bad faith) or
unless the amendment will cause an injustice to the other side which cannot be
cured by an appropriate order for costs, or 'unless the parties cannot be put back
for the purposes of justice in the same position as they were when the pleading
which it is sought to amend was filed'. These principles apply equally to a notice
of motion. The question in each case, therefore, is, what do the interests of
justice demand?’
[8] In Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property GmbH 4, the
Constitutional Court clarified the test as follows:
‘[65] ... The legal principles that are restated in Affordable Medicines reflect the
constitutional right to have a dispute resolved by the application of law before a
court. This entails the right of a litigant to frame the dispute that requires
resolution, and in the present matter, to formulate a defence. Hence, the
importance of the permissive principle, to which I have referred.
[66] The Commissioner of Patents failed to adopt the permissive principle, but
instead arrogated to herself a broad discretion to decide the application to amend
under the capacious concept of the interests of justice. That is not our law. More
particularly, as a general principle, courts do not decide for litigants what disputes
the interests of justice permit them to pursue before the courts. Yet, that is what
the Commissioner of Patents decided. The proposed special plea, she found,
would give rise to a protracted enquiry that detracts from the real issue in dispute
in the action. A court cannot exclude a cause of action or a defence because the
in the action. A court cannot exclude a cause of action or a defence because the
enquiry entailed by it is protracted. That is for the litigant to decide. Nor should a
court decide for a litigant, at the stage of pleadings, the real issue in dispute. That
too is a choice which the courts should afford litigants considerable latitude to
determine…
4 2024 (1) SA 331 (CC).
6
[67] Plainly, the permissive principle is not without limits. Pleadings that are
excipiable, or, as the holding in Affordable Medicines affirmed, are introduced in
bad faith or cause an injustice that cannot be compensated by an order for costs,
afford grounds for refusing a proposed amendment…’
[9] This Court in Molefe & Others v SA Police Service5 held that:
‘Ultimately, the primary object of permitting 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 … In particular, the court must have
regard to whether the text of the amendment is set out in clear and particular
terms; an amendment that would render the pleading excipiable will ordinarily not
be granted.’
Analysis
[10] The principles that emerge from the foregoing authorities and many others are
that an amendment should generally be permitted where it serves to ventilate the
real issues in dispute between the parties. The amendment must be sought bona
fide and without undue delay. Because pleadings are directed not only to the
parties but also to assist the Court in the proper ventilation of the dispute or
issues, the Court retains discretion to grant or refuse an amendment . That
discretion must be exercised judicially by balancing, on the one hand, the
applicant’s right to amend its pleadings where the proposed amendment is bona
fide and timeous, and, on the other, the respondent’s right to resist the
amendment where allowing it would cause prejudice or injustice. Furthermore, an
amendment that would render the pleading excipiable, or expose it to a special
plea or an application to strike out, should ordinarily not be allowed.
[11] In his heads of argument, Mr. Omar, for the plaintiffs, argued that the proposed
amendment “seeks to align the language of the statement of claim with the
evidence already led and propositions already put to the Defendant’s witnesses
evidence already led and propositions already put to the Defendant’s witnesses
during the course of the trial” . He further argued that, in this context, the
5 (2021) 42 ILJ 1240 (LC) at para 7.
7
proposed amendment is sought “out of an abundance of caution” to avoid any
argument that the evidence was incongruent with the plaintiffs’ pleaded case,
and that the amendment is intended to ensure the proper ventilation of the
dispute.
[12] Mr Omar repeated during argument that the amendment had been sought out of
an abundance of caution. He correctly conceded that the principle articulated in
Game, namely that parties are bound by their pleadings and the pre- trial minute,
is well established and not novel. While he maintained that the proposed
amendment was not prompted solely by the Game judgment, he was unable to
identify any other compelling basis necessitating the amendment, particularly in
light of the plaintiffs’ stated position and that of their legal representatives that
such an amendment was not required. In these circumstances, the inference is
inescapable that the amendment, notwithstanding the explanation that it was
sought out of an abundance of caution, was prompted by the Game judgment.
This is so despite the parties’ common acceptance that the judgment did not
introduce a new legal principle but merely reaffirmed an existing one.
[13] On the proposed amendment, t he plaintiffs seek to add a complain t that the
defendant failed to disclose relevant information requested by the individual
plaintiffs or their union during the consultation process, that it failed to engage in
a meaningful consultation process, approached employees with new contracts
before consultations had been concluded, and had allegedly predetermined the
outcome of the process. Properly construed, t his proposed amendment seeks to
challenge whether the consultations were conducted in good faith and whether
employees were afforded a genuine opportunity to meaningfully participate in the
decision-making process. These proposed additions therefore relate to the
procedural fairness of the retrenchment process , and do not challenge the
procedural fairness of the retrenchment process , and do not challenge the
commercial rationale or the substantive fairness of the dismissals.
[14] Mr Omar submitted that the proposed amendment is competent on the basis
that, in disputes concerning dismissals for operational requirements, the
8
distinction between procedural and substantive fairness may at times become
blurred.6 While that principle is correct , it remains trite that each matter must be
determined on its own facts.
[15] In the present case, the plaintiffs made it unequivocally clear in the pre- trial
minute that they do not challenge the procedural fairness of their dismissal. In
any event, had they intended to do so, they were required to pursue the
appropriate relief through application proceedings in terms of section 189A(13) of
the LRA. They did not follow that course and, as confirmed by their legal
representatives in both the supporting affidavit and Mr Omar’s submissions, they
do not seek any remedy based on alleged procedural unfairness.
[16] There seem to be inherent contradictions in the plaintiffs’ case. On the one hand,
they expressly renounce any challenge to procedural fairness; on the other, they
seek to introduce allegations concerning an unfair consultation process and the
defendant’s failure to disclose information, matters that are typically procedural in
nature. Although they contend that they do not ask the Court to determine
whether this conduct on the part of the defendant constituted procedural
unfairness, they simultaneously rely on the legal principle recognising that
procedural unfairness may be inextricably intertwined with substantive
unfairness.
[17] It is difficult to conceive how this C ourt could conclude that procedural
irregularities or defects affected the substantive fairness of the dismissals without
first considering and determining whether the impugned conduct amounted to
procedural unfairness. Put differently, before it can be said that the line between
procedural and substantive fairness has been blurred, there must be a finding
made by this trial Court regarding the existence of the alleged procedural defect.
In the absence of a properly instituted section 189A(13) application, this Court
In the absence of a properly instituted section 189A(13) application, this Court
does not have jurisdiction to adjudicate procedural fairness disputes or to make
findings on those issues through the present trial proceedings. The contention
6 HeroTel (Pty) Ltd v Moses & Others (2025) 46 ILJ 2850 (LAC); Universal Product Network (Pty) Ltd
(UPN) v Mbatsana N.O. [2026] 7 BLLR 698 (LAC).
9
that the plaintiffs do not seek relief on the basis of procedural unfairness does not
render the proposed amendment permissible as the Court would still inevitably
be required to decide whether there was a procedural defect. The proposed
amendment consequently seeks to introduce matters that fall within the realm of
procedural fairness, which are not permissible in these proceedings.
[18] While the plaintiffs are entitled to define the dispute they wish the Court to
determine, the Legislature has created specific mechanisms to address what
they now seek the Court to determine. E mployees or trade unions who contend
that insufficient information has been disclosed during the facilitated consultation
process under section 189A have sufficient remedies. They may seek disclosure
through the facilitator, invoke the rights contained in section 16 of the LRA, or
approach this Court on application for appropriate relief in terms of section
189A(13) 7. The plaintiffs elected not to avail themselves of any of these
remedies during the consultation and facilitation process. Nor did they institute
proceedings in this Court challenging the procedural fairness of the
retrenchment. Instead, they elected to pursue a claim confined to the substantive
fairness of the dismissals. The present proceedings, instituted in terms of section
191(5)(b)(ii), are not for the determination of procedural fairness disputes.
[19] For all of these reasons, granting the amendment would, in effect, permit the
plaintiffs to introduce a procedural fairness challenge through the back door,
notwithstanding the statutory framework which requires such challenges to be
pursued by different means. To allow the amendment would therefore be to
sanction the introduction of a claim that is not properly justiciable in these
proceedings. As the defendant correctly submitted, the consequence would likely
be the raising of a special plea or an exception. I must add that the allegations
be the raising of a special plea or an exception. I must add that the allegations
would be susceptible to an application to strike out , all of which would serve only
to prolong the litigation, increase costs, and cause unnecessary prejudice to the
7 See also Regenesys Management (Pty) Ltd t/a Regenesys v Ilunga and Others (2024) 45 ILJ 1723
(CC).
10
parties. In the circumstances, the amendment cannot be permitted, and the
application must be dismissed.
Costs
[20] The defendant sought an award of costs. In support of this contention, Mr Itzkin
relied on rule 20(8) of this Court’s Rules, which provides that, unless the Court
directs otherwise, an applicant for an amendment is responsible for the costs
occasioned to the opposing party. However, the issue of costs in this Court is
governed by section 162 of the LRA. The established principle is that costs do
not automatically follow the result, and any order as to costs must be determined
in accordance with the requirements of law and fairness.8
[21] Mr Itzkin submitted that the general principle embodied in section 162, as
affirmed by the Constitutional Court, does not apply to applications for
amendment. He contended that, in light of rule 20(8), the default position is that a
party seeking to amend its pleadings should bear the costs of the amendment
application, unless exceptional circumstances justify a departure from that
position. I am unable to agree with this contention. The matter before this Court
remains a dispute governed by the LRA and, accordingly, the established
principle that costs do not automatically follow the result continues to apply. The
mere fact that a party seeks an amendment does not, without more, justify a
departure from that principle.
[22] Section 162(2) of the LRA requires the Court, when determining costs in
accordance with the requirements of law and fairness, to take into account the
conduct of the parties both in prosecuting or defending the dispute and during the
course of the proceedings. In the present matter, the defendant consented to
certain of the proposed amendments that related directly to the central issue
8 Zungu v Premier of the Province of KwaZulu- Natal and Others [2018] ZACC 1; (2018) 39 ILJ 523 (CC);
National Union of Mineworkers on behalf of Masha & others v Samancor Ltd (Eastern Chrome Mines) &
others (2021) 42 ILJ 1881 (CC) ; Mot or Industry Staff Association v Great South Autobody CC t/a Great
South Panelbeaters; Solidarity on behalf of Strydom v State Information Technology Agency SOC Ltd
(2025) 46 ILJ 481 (CC).
11
before the Court, namely the substantive fairness of the dismissal. Its opposition
was confined to the proposed amendment which sought to introduce a challenge
to the procedural fairness of the dismissal , an issue not for determination before
this Court.
[23] The plaintiffs were aware that the matter had been enrolled for the continuation
of the trial from 17 to 21 August 2026. This allocation was arranged and agreed
upon more than f our months earlier, on 15 April 2026. Despite anticipating the
defendant’s objection, which was placed on record by Mr Itzkin during the trial ,
the plaintiffs’ legal representatives did not consider it necessary at that stage to
seek an amendment to the statement of claim because they considered the
anticipated objection to have no merit . It was only following the judgment in
Game that they elected to pursue the amendment, ostensibly “out of an
abundance of caution” . However, Mr Omar correct ly conceded that the Game
judgment did no more than reaffirm a well -established and trite legal principle. In
those circumstances, it cannot be said that the Game judgment was the
precipitating cause of the amendment. Rather, the necessity for this proposed
amendment, if any existed, was apparent well before that judgment was
delivered.
9
[24] The plaintiffs filed a notice of amendment on 7 July 2026, 12 weeks after the trial
was adjourned part -heard, six weeks before the con tinuation of the trial, more
than five weeks after the Game judgment, which was purportedly one of the
trigger factors for the proposed amendment. After the objection was entered on
21 July 2026, the plaintiffs only filed the application for leave to amend on 6
August 2026, six court days before the trial was set to continue. The plaintiffs
have, in my view, failed to provide any cogent justification for seeking the
amendment at such a late juncture, namely after the trial had been adjourned
amendment at such a late juncture, namely after the trial had been adjourned
9 This should not be understood as an endorsement of the anticipated objection, nor does it imply that an
amendment to the statement of claim (as proposed and objected to) is necessary. The merits of the
anticipated objection remain to be determined (should it be raised) , and nothing in this ruling should be
construed as expressing a view that the plaintiffs must amend their statement of claim to address the
anticipated objection. I have already decided and provided reasons why the current proposed amendment
cannot be allowed.
12
part-heard and in close proximity to the date on which the hearing was due to
resume.
[25] The proposed amendment is misconceived and should not have been pursued. It
disrupted the continuation and possible finalisation of the trial, resulting in a
waste of the court’s resources. The conduct of the plaintiffs and their legal
representatives warrants censure. The defendant should not be burdened with
the costs occasioned by this ill -founded application. The plaintiffs must therefore
pay the costs of the application, including the wasted costs of the trial.
[26] In the premises, the following order is made:
Order
1. The application for leave to amend is dismissed with costs, including the
wasted costs of the 5-day trial.
____________________
M. Makhura
Judge of the Labour Court of South Africa
Appearances:
For the Plaintiffs: Mr A.B. Omar
Instructed by: Dockrat Incorporated
For the Defendant: Mr R. Itzkin
Instructed by: Edward Nathan Sonnenbergs Inc.