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24 Indus Lj Juta

24 Indus Lj Juta

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Citation: 24 Indus. L.J. Juta 1580 2003 Content downloaded/printed from HeinOnline (http://heinonline.org) Thu Jun 13 09:27:30 2013 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0258-249X

1580
FrancisJ

Peake v Global Tcchnoloqy Ltd
(2003) 24 II. 1380 (LC)

have been regarded as suitable for the alternative positions they sug-

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gest, why the respondent's assessment that they were not was wrong, or why the respondent's actions lacked a commercial rationale. On the papers before me I assessed the applicants' prospects of success on both the alleged unfair discrimination and the alleged unfair dismissal disputes as poor. There are no other facts before me that persuade me that the applicants should still be permitted to prosecute claims that were initially pursued with so little urgency. To the contrary, it would be highly unfair to expect of the respondent to have to contest claims that resurfaced in March 1999, four and a half months after the respondent was entitled to assume that finality had been reached and a year and three months after the issues that were allegedly the subject-matter of the dispute had arisen. In all the premises the application for condonation is dismissed. No reasons have been advanced to me why costs should not follow the event. Accordingly the applicants are ordered to pay the respondcnt's costs, jointly and severally, the one paying the others to be absolved. 1 have been urged by Ms da Costa to make an order, if I were to dismiss the application tor condonation, dismissing the applicants' case for the relief that has been sought in this court. That is not necessary. Because the application for late referral of the dispute has been dismissed, the matter has been finalized and is no longer pending in this court.

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PEAKE v GLOBAL TECHNOLOGY LTD
G LABOUR COURT (JS236/02) 22 May; 30 May 2003 Before FRANCIS J Respondent objecting to application to amend H Costs ---Labour Court proceedings----statement of claim -Objection fiund to be unreasonable and causing applicant Court ordering respondent to pay party and party to incur unnecessary costs ----costs.

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Practice and procedure-Statement of claim-Labour Court proceedingsApplication to amend-No procedural bar to court granting applicationAmendment to be allowed unless application General principles applicable ---to amend mala fide or amendment would cause injustice to other part), that cannot be compensated by costs. Practice and procedure-Statement (f claim- Labour Court proceedingsStatement excipiable on basis that itfails to disclose Application to anend ---HeinOnline -- 24 Indus. L.J. (Juta) 1580 2003

Peake v Global Technology Ltd
Francis j

1581
(2003) 24 JLJ 1580 (LC)

Statentent in unamended or amended frin disclosing single cause of action----cause of action Allegations respondent contendinq were necessary were at most facta probantia in respect 0! cause of action that applicant had pursued throughout-----Application to anend granted. Practice and procedure----Statement of claim--- Labour Court proceedings------ A Application to amend-Statenrt excipiable on basis that it fails to disclose cause of action Such not impediment to granting of amendment. ----Statement of claim. Labour Court proceedings Practice and procedure----Application to amend-Where statement of claim lodged timeously and application to anendgranted, applicantnot required to applyfor condonation. 13 The applicant filed a statement of clain in. respect of her alleged unfair dismissal by the respondent. The respondent filed a notice of exception requesting the dismissal of the applicant's statement of case on two grounds: first, that the applicant had not pertinently alleged that she had been an 'employee' as defined in the LRA 1995 and second, that her statement of case did not pertinently allege that the dispute had been referred for conciliation and that the CCMA had certified that the dispute remained unresolved, and accordingly that the statement of case did not disclose a cause of action. The applicant gave notice of her intention to amend her statement of claim so as to remove the respondent's causes of complaint. The respondent objected to the applicant's notice of aiendment. It contended that the applicant had not tcndcrcd the wasted costs occasioned by the amcndmcnt and that the purported amendment would result in the applicant's introducing a cause of action into the statement of claim outside the 90-day period in respect of the cause of action and without applying for condonation. The applicant responded by making a tender to pay the wasted costs. The applicant took the view, however, that there was no merit in the respondent's objection. The respondent persisted in objecting to the proposed amendment and in asserting that condonation was required. The applicant brought an application in terms of rule 11 of the Labour Court Rules to amcnd her statement of claim and/or for condonation for delivery of her statement of clain. The applicant also sought a special costs order as between attorney and client against the respondent. The court found that, although the rules of the court contained no express provisions pertaining to the amendment of pleadings, there was no g procedural bar to the court's granting the applicant leave to ariend her statement of claim. The general legal principle that amendments should always be allowed unless the application to aiend was mala tide or unless the amendient would cause an injustice to the other side that could not be compensatcd by costs was applicable. The court found no nerit in the respondent's contention that the proposed amendment would result in the applicant's introducing a cause of action into the statement of claim outside the 90-day period. In both its unamended and amended forms, a single cause of action was pursued, namely unfair dismissal. Evei ifit was necessary to allege that the respondent was the employer or that conciliation took place before the CCMA, these were not new 'causes of action'; they were at most facta probautia in respect of the single cause of action which the applicant had pursued throughout. The court found further that the niere fact that a statement of claim is excipiable on the basis that it does not disclose a cause of action is no impediment to the granting of an amendment. Since the applicant's original statemcent of claim was not so defective that it could be said that it did not constitute a statement
HeinOnline -- 24 Indus. L.J. (Juta) 1581 2003

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1582
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Peake v Global Iechnologyt

Ltd
(203) 24 II. 1380 (LC)

of claim at all, there was no reason not the grant her leave to amend her statement of claim. The court was satisfied that, because the statement of claim had been timeously made and it was not a nullity, condonation was not required. A Regarding costs, the court found that the respondent ought not to have objected to the proposed amendment thereby compelling the applicant to bring an application to court. In these circtumstances fairness prompted the court to exercise its discretion in favour of the applicant and to order the respondent to pay all the costs of the application brought to secure the amendment. The respondent had been unreasonable and had caused the applicant to incur 13 unnecessary costs. The court believed, however, that punitive costs would not be appropriate. The court accordingly granted the applicant leave to amend her statemnent of claim and ordered the respondent to pay the costs on a party and party scale. Application to amend statement of claim. The facts appear from the reasons for judgment. C Annotations Cases Cganga v AA Mutual Insurance Association Ltd 1979 (3) SA 329 (E) (applied) D Fish Hock Village Management Board v Romain 1932 CPD 304 (applied) National Union of Metalworkers of SA & others v Driveline Technologies (Pty) Ltd & another (2002) 21 ILI 142 (LAC) (referred to) Rooskrans v Minister van Polisie 1973 (1) SA 273 (T) (followed) Sentrachen Ltd v Prinsloo 1997 (2) SA I (A) (followed) Yu Kwam v President Insurance Co Ltd 1963 (1) SA 66 (T) (referred to) E Adu A J Freund for the applicant. Aftorneyj 11alan for the respondent. Judgmnent reserved.

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FRANCIS J: Introduction f1] This is an application in terms of rule 11 of the Rules of the Labour Court to amend her statement of claim and/or for condonation for delivery of her statement of claim. The application was initially opposed by the respondent. On 19 May 2003, the respondent in its heads of argument, gave notice that it was no longer opposing the application but was purely opposing the attempts to secure an order of costs against the respondent.

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Background facts

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On or about 12 March 2002 the applicant delivered a statement of claim in respect of her alleged unfair dismissal by the respondent. On or about 10 April 2002 the respondent filed a notice of exception in which it requested the dismissal of the applicant's statement of case on two grotmds. The first ground was, essentially, that because the applicant's statement of claim did not pertinently allege that the applicant was an 'employee', as defined in the Labour Relations Act 6 of 1995 (the Act), or the applicant was at any material time
HeinOnline -- 24 Indus. L.J. (Juta) 1582 2003

Peake v Global 'e1 tiology Lid
Francis J

1583
(2003) 24 JLJ 1580 (,C)

[5]

[6]

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employed by the respondent, the statement of claim did not disclose a cause of action against the respondent. The second ground of exception was, essentially, that because the statement of claim did not pertinently allege that the relevant dispute had been referred for conciliation to the CCMA and that the CCMA had certified that the dispute remained resolved, or that a period of 30 days from the date of the referral had expired, and that this court consequently had jurisdiction to hear this matter, the applicant's statement of claim did not disclose a cause of action. The applicant gave notice of her intention to amend her statement of claim, so as to remove the respondent's causes of complaint, by introducing the allegations which the respondent contended were required. On 30 April 2003, the respondent filed an objection to the applicant's notice of amendment. In the objection the respondent pointed out that the applicant had not tendered the wasted costs occasioned by the amendment and averred that the purported amendment would result in the applicant introducing a cause of action into the statement of claim, outside of the 90-day period in respect of the said cause of action, and without applying for condonation. The amendment should consequently be refused. The applicant in response to the respondent's objection to her notice of amendment made a tender to pay the wasted costs. The applicant took the view that there was no merit in the respondent's objection based on the contention that the applicant's amendment would result in the introduction of a cause of action outside the relevant 90-day period. In the applicant's notice to the respondent's objection, the applicant placed on record that it was not necessary to apply for condonation. Should the respondent proceed with its objection the applicant would seek a special costs order against the respondent as between attorney and own client. The respondent persisted in objecting to the proposed amendment and in asserting that condonation was required. The respondent did not persist with the exception. The applicant then brought the present application.

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The application for leave to amend [81 Although the rules of this court contain no express provision pertaining to the amendment of pleadings, there is no procedural bar to this court granting the applicant leave to amend her statement of claim. H In this regard see National Union t"Mletalworkers of SA & others v Driveline Technologies (Pty) Ltd & another (2002) 21 ILl 142 (LAC). The general legal principle in respect of whether amiendients should be allowed is the following: 'Amendments should always be allowed unless the application to amend is malafide or unless such amendment would cause an injustice to the other side which cannot be compensated by cost, or in other words unless thc parties caniot be put back for the purposes of justice in the same position as they were when the pleading it is sought to amend was filed.'

[9]

HeinOnline -- 24 Indus. L.J. (Juta) 1583 2003

1584
FrandsJ

Peake v Global Tcihmology Ltd
(2003) 24 IId 1380 (LC)

In this regard see Fish Hoek Village Alanagement Board v Romain 1932
[10] A CPD 304 at 307. Where a claim has prescribed, an amendment seeking to introduce a prescribed cause of action may be refused but: 'The position is diffeient if there is no introduction of a new party or a new cause of action, but the amendment merely amounts to a clarification of a step in the proceedings which has insufficiently or imperfectly set out the one cause of action that throughout has been relied upon by one and the same party.' iv President Insurance Co Ltd 1963 (1) SA In this regard, see Yu Kuam 66 (T) at 68G. 1111 Even if a statement of claim is excipiable on the basis that it does not disclose a cause of action I am of the view that it can nonetheless interrupt prescription; an amendment to make clear the cause of action relied upon is therefore permissible. In Sentrachem Ltd v Prinsloo 1997 (2) SA 1 (A) at 15H--16B the following was said: 'Al is 'n dagvaarding vir eksepsic vatbaar onidat dit geen skuldoorsaak openbaar nie, kan dit nogtans omn verjaring van die skuld war geiis word te stuit. Die enigste voorbehoud is dat die dagwarding nie so gebrekkig moet wees dat dit 'n nulliteit is in die sin dat dit nie vatbaar is vir wysiging om die gebreke aan te suiwer nie. Die cintlike toets is om te betaal of die eiser nog steeds diesclfde, of wesenlike diesel'de skuld probeer afdwing. Die skuld of vorderingsreg noet instens nit die oorspronklike dagvaardmg kenbaar wees, sodat daaropvolgende wysiging eintlik son neerkoin op die opkarmng van 'n gebrekkig of onvolkome pleitstuk waarin die vorderingsreg, waarop daar deurgaans gesteun is, uiteengesit word.' [12] F In the respondent's objection it contends that the proposed amendment 'will result in applicant introducing a cause of action into the statement of claim, outside of the 90-day period'. There is no merit in this contention. In both its unainended or amended forms, a single cause of action. is pursued, namely unfair dismissal. Even if it was necessary to allege that the respondent was the employer or that conciliation took place before the CCMA, these are in my view not new 'causes of action'; they are at most facta probantia in respect of the single cause of action which the applicant has pursued throughout. An cxcipiable pleading may be amended, even after the period of prescription has expired, provided that the applicant is still attempting to pursue the same claim and not a different claim, based on a different cause of action. In Sentrachei, the Appellate Division as it then was, made clear, in the passage cited above, that although a summons that is so defective as to constitute a nullity cannot be amended, the mere fact that it is excipiable on the basis that it does not disclose a cause of action is no impediment to granting an amendinent. Similarly in Rooskrans v M1tinister van Polisie 1973 (1) SA 273 (T) at 274H, Hiemstra J held:

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nietigheid word nie. Hy kan gewysig word

I)it staan bo twyfel dat 'n eksipiabele pleitstuk nic vanwe5 sy gebrek n om horn van gebreke te suiwer.

Daar is natuurlik pcrkc aan die gebrcke war oor die hoof gesicn sal word by
HeinOnline -- 24 Indus. L.J. (Juta) 1584 2003

Pcake v Global 'ech1iology Lid
Francis J

1585
(2003) 24 JLJ 1580 (11,C)

die bcoordeling van die vraag of 'n dagvaarding voldoende was om die verjaring te stuit. Ek sou die perke nie wil omskryf me, maar die dagvaarding in hierdie saak is beslis nie so gebrekkig dat ges& kan word dit is geen dagvaarding nie.' [14] The applicant's original statement of claim is likewise not so defec- A rive that it can be said not to constitute a statement of claim at all. It follows that there is no reason not to grant the applicant leave to amend her statement of claim. Condonation [15] Since the statement of claim was made tineously to this court and is not a nullity condonation therefore is not required. C

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Costs

[16] This brings me to the question of costs. The applicant gave notice on or about 2 May 2002 that, in the event that the respondent should proceed with its objection to the proposed amendmeinit and persist in requiring the applicant to apply for condonation, the applicant would seek a special costs order against respondent as between attor- D ney and own client. ]171 In the matter of CQanga v AAA Mutual Insurance Association Ltd 1979 (3) SA 329 (E) the following was said at 328H: 'I do not read the judgments in these cases as requiring me to go to that E extent before muleting an unsuccessful opponent to an amendment in costs, and it seems to me, with respect, that Hefer J is correct in Ilart v Broadacres Investmets Ltd 1978 (2) SA 47 (N) where he says at 51 that: "It seems to me, when it comes to deciding in any particular case whether the party to whom an indulgence is granted is to pay the costs of opposition, that the recognition of a single criterion for liability (such as F the reasonableness of the opposition) tends to hamper the exercise of the unfettered discretion which a Court has in its award of costs. The exercise of that discretion, is, after all, essentially a matter of fairness to both sides ... and a criterion which may be useful in one case may, in other cases, not having the desired effect." That the reasonableness of the opposition (as distinct friom the consideration of it not being frivolous or vexatious) will undoubtedly be an important consideration in cases where an indulgence is sought, must be so, but it need not necessarily be the only criterion.' And at 329H-330A-D: H

'In my view the new procedure introduced by Rule 28 does not make a difference to the position as it was before the present Rules came into force. Rule 28 was clearly designed to obviate the uecessity of applying to Court whenever an amendment of the pleadings was sought. Amendments could now be obtained without incurring the costs of an application, merely by I giving notice to the other side. Only in the event of the other side objecting will ain application to Court become necessary. It seems to me to be implicit in this new procedure that any objection to a notice of intention to amend must be reasonably and responsibly taken. If an objection is taken merely to inconvenience the litigant seeking the amendment, or in an attempt to compel him to incur the costs of an application to Court, when the opponent J
HeinOnline -- 24 Indus. L.J. (Juta) 1585 2003

1586
Frauc sJ

Peake v Global Technology Ltd
(2003) 24 IId 1380 (LC)

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has no real grounds for objecting and either does not appear in Court at all to oppose the application, or appears and raises some frivolous or vexatious objection, then the Court would, in my view, be entitled to order such an objecting party to pay all the costs incurred in the bringing of the application. The fact, therefore, that an applicant includes in his notice of motion a prayer that the respondent be ordered to pay the costs of the application cannot justify any form of opposition as it would have done before the introducing of the present Rule. On the other hand I do not want to understand to mean that as a general rule costs in such applications will follow the result, or that in certain circumstances the respondent might not be ordered to pay the cost of opposition, or even that the opposition might be able to have been so reasonable as to warrant an order that the applicant pay all the costs. Each case in my view depends on its own merits and the discretion of the Court to make an order which is fair in all the circumstances niust remain unfettered.' I am of the view that the sentiments expressed in the Cgaga matter apply equally to this application. The objection to the proposed

aiendment ought never to have been raised and in fact anmotinted to a vexatious and frivolous objection. The respondent therefore
D ought not to have objected to the proposed amendment, thereby

compelling the applicant to bring an application to court. In these
circumstances fairness prompts me to exercise my discretion in fa-

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vour of the applicant and to order the respondent to pay all the costs of the application brought on notice of motion to secure an amendnient. The position adopted by the respondent has been unreasonable
and has made it necessary for the applicant to incur costs which are totally unnecessary. This is one instance where the respondent has caused the applicant to incur unnecessary costs to be run up. 1 do not however belief that this is a matter where punitive costs

[191

should be awarded to the applicant. In the circumstances I make the following order: I The applicant is granted leave to amend her statement of claim in accordance with her notice dated 16 April 2002. 2 The respondent is to pay the applicant's costs on a party and party scale. C Applicant's Attorneys: P G Ban. Respondent's Attorneys: l4'ebber [Ventzel Bot'ens. F
[20]

HeinOnline -- 24 Indus. L.J. (Juta) 1586 2003

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