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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR2803/19

In the matter between:

WILLIAM ROBINSON DANGA                                                                    Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION                                                   First Respondent

BYTE PEOPLE SOLUTIONS (PTY) LTD                                   Second Respondent

SAMSUNG ELECTRONICS SA (PTY) LTD                                   Third Respondent

 

Heard:  06 July 2021

Delivered:  (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 05 October 2021

JUDGMENT

MAKAMU, AJ

Introduction

[1]   This is an interlocutory application in terms of which the respondent, seeks to have the applicant’s claim dismissed for reasons related inter alia to the contention that the applicants’ statement of claim does not disclose a cause of action and it is vague and embarrassing. The Applicant, although unrepresented and having drafted his opposing papers in a rather unusual manner, has opposed the exception.

Background

[2]   The Applicant approached this Court by way of a statement of claim to which he had annexed an affidavit titled “affidavit to review and set aside a jurisdictional ruling by the CCMA, partially review the granted condonation ruling by the CCMA and for the labour court to establish social justice on the below matter”. The statement of claim is dated 3 December 2019.

[3]   The Third Respondent raised an exception dated 19 December 2019 in terms of which the Applicant was required to remove numerous causes of complaint. The causes of complaint raised by the Third Respondent can be briefly summarized as follows:

3.1   The Applicant brought a purported review by way of a statement of claim and not by way of a notice of motion in terms of rule 7A of the Labour Court rules.

3.2    The Applicant has failed to sustain a cause of action.

3.3    The Applicant failed to cite the Commissioners against whose rulings the review is brought.

3.4    The Applicant’s claim for medical compensation, salary gap compensation, apology and good reference, have not disclosed the basis upon which this court would have jurisdiction for such reliefs.

3.5    The Applicant’s statement of claim is vague and embarrassing.

[4]   The Applicant was afforded 15 days within which to remove the causes of complaint.

[5]   The Third Respondent argued that despite being served with the notice to remove the causes of complaint and an opportunity to remove same, the Applicant failed to do so and on this basis the Applicant’s statement of claim falls to be dismissed.

[6]   I brought to the Third Respondent’s attention that whilst perusing the file, I had observed that there was a notice of application for review dated 3 November 2019 using the prescribed form. Also, it would appear that the founding affidavit that was annexed to the statement of claim, is dated 3 November 2019 as well, which leads to the assumption that it must have accompanied this notice of application. Further this seems to may have been filed prior to the filing of the statement of claim.

[7]   It was submitted that although that may well be the case, same has never been served on the Third Respondent and that if that is indeed the case, such shall be dealt with in terms of the provisions of the review proceedings.

[8]   The Third Respondent’s attorney brought to the court’s attention the Second Respondent’s attorneys request that the Court be informed that they would not be appearing due to issues related to Covid-19 and had requested to submit on their behalf that they stand by their papers. As evident from the court file, the Second Respondent had brought an application on 21 January 2020 in terms of which it sought to have the Applicant’s statement of claim set aside on the grounds that same was an irregular step and non-compliant with the Rules for the Conduct of the Proceedings of the Labour Court (the rules), specifically rule 7A dealing with review applications.

[9]   The Applicant had filed an opposing affidavit in terms of which he dealt with both applications by the Second and Third Respondents.

[10]   The Applicant submitted that he had in fact served the notice of motion to the Respondents and showed the Court and the Third Respondent a copy of his notice of motion with the court stamp and that same was served on the Respondents on more than 4 occasions. He submitted that he had indeed filed both the review application and the statement of case in terms of which he sought the review and setting aside of the jurisdictional ruling and partially review the condonation ruling of two commissioners of the Commission for Conciliation, Mediation and Arbitration (CCMA). He stated the basis for the two manner approach was a measure to ensure that he covered all aspects and so as not be left wanting following the experience he encountered with the CCMA where processes were implemented without being him being notified.

Legal principles

[11]   An exception is a legal objection intended to address the defect inherent in the other party’s pleadings. A litigant faced with pleadings that are vague and embarrassing or which lacks averments necessary to sustain an action or a defence is entitled to take an exception to have the action or defence dismissed even before the merits of the matter are considered in evidence.[1]

[12]   The approach to be adopted and applicable considerations were described as follows in Trope v South African Reserve Bank[2] :

“An exception to a pleading on the ground that it is vague and embarrassing involves a two-fold consideration. The first is whether the pleading lacks particularity to the extent that it is vague. The second is whether the vagueness causes embarrassment of such a nature that the excipient is prejudiced (Quinlan v MacGregor 1960 (4) SA 383 (D) at 393E-H). As to whether there is prejudice, the ability of the excipient to produce an exception-proof plea is not the only, nor indeed the most important, test - see the remarks of Conradie J in Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297 (C) at 298G-H. If that were the only test, the object of pleadings to enable parties to come to trial prepared to meet each other's case and not be taken by surprise may well be defeated.

Thus it may be possible to plead to particulars of claim which can be read in any one of a number of ways by simply denying the allegations made; likewise to a pleading which leaves one guessing as to its actual meaning. Yet there can be no doubt that such a pleading is excipiable as being vague and embarrassing - see Parow Lands (Pty) Ltd v Schneider 1952 (1) SA 150 (SWA) at 152F-G and the authorities there cited.

It follows that averments in the pleading which are contradictory and which are not pleaded in the alternative are patently vague and embarrassing; one can but be left guessing as to the actual meaning (if any) conveyed by the pleading.”

[13]   In Harmse v City of Cape Town[3] the Court held that a statement of claim serves a dual purpose; one being to bring a respondent before the Court to respond to the claims made of and against it and the second to inform the respondent of the material facts and the legal issues arising from those facts upon which applicant will rely to succeed in its claims.

[14]   Erasmus in Superior Court Practice[4] stated as follows:

“(d) The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced. (e) The onus is on the excipient to show both vagueness amounting to embarrassment and embarrassment amounting to prejudice. (f) The excipient must make out his or her case for embarrassment by reference to the pleadings alone.”

[15]   Pleadings must be lucid, logical and intelligible. A litigant must plead his cause of action or defence with at least such clarity and precision as is reasonably necessary to alert his opponent to the case he has to meet. A litigant who fails to do so may not thereafter advance a contention of law or fact if its determination may depend on evidence which his opponent has failed to place before the court because he was not sufficiently alerted to its relevance.[5]

[16]   Ordinarily in exception cases, the Court in taking into account whether to uphold the exception ought to give consideration to the possibility of the parties being able to address the defects in the statement of case at the pre-trial conference.

[17]   Moreover, this Court must consider, having regard to what I have said above, whether the matter presents a question to be decided which, at this stage, will dispose of the case in whole or in part.

Evaluation

[18]   I agree with the Third Respondent that bringing a review application by a way of a statement of claim was improper. It becomes rather immaterial as to whether the statement of claim discloses a cause of action or grounds of review in an instance where the cause for complaint cannot be cured by any other means e.g. the holding of a pre-trial conference. Review applications are governed by rule 7A of the rules of this Court and it is required that an application for review be brought by a way of a notice of motion.

[19]   Rule 7A of the rules of this Court provides as follows:

“7A Reviews:

(1)    A party desiring to review a decision or proceedings of a body or person performing a reviewable function justiciable by the court must deliver a notice of motion to the person or body and to all other affected parties. (own emphasis)

(2)     The notice of motion must-

(a)     call upon the person or body to show cause why the decision or proceedings should not be reviewed and corrected or set aside;

(b)    call upon the person or body to dispatch, within 10 days after receipt of the notice of motion, to the registrar, the record of the proceedings sought to be corrected or set aside, together with such reasons as are required by law or desirable to provide, and to notify the applicant that this has been done; and

(c)     be supported by an affidavit setting out the factual and legal grounds upon which the applicant relies to have the decision or proceedings corrected or set aside.’

[20]   The filing of the statement of claim, as in the case herein, is in contradiction with the provisions of rule 7A of the rules of this Court demonstrated above.

[21]   Although the Third Respondent contended to not having received the notice of motion for the review application, it is evident from the papers before me that that such a notice of motion was filed in this Court. As to whether same was indeed served on the Third Respondent, the determination of such proof is not before me and frankly that is not what I am called to decide upon. Any other defects that may be in so far as the review application is concerned, same will be dealt with by the reviewing court.

[22]   As I alluded to earlier that the Third Respondent brought to my attention the Second Respondent’s submission that it stands by its papers. Notwithstanding that the said application sought a similar prayer as that in the current exception (i.e. to dismiss the Applicant’s statement of claim), same was not before me and I am therefore not inclined to decide thereupon.

[23]   In this regard and on the basis of the irregular step in bringing the statement of claim for review purposes, same ought to be struck out in its entirety. There is no doubt in my mind that the Respondents would be prejudiced if they were made to plead to the Applicant’s statement of claim for review.

[24]   It was the Third Respondent’s submission that it does not intend to seek costs against the Applicant.

[25]   In the premise, the following order is made:

Order

1.   The Applicant’s statement of case is dismissed.

2.   There is no order as to costs.

Makamu AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:                          In person

For the Second Respondent:        No appearance

For the Third Respondent:            Mr. S Jamieson

Instructed by:                                Cliffe Dekker Hofmeyer

 

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