24 indus lj juta

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Citation: 24 Indus. L.J. Juta 1580 2003

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1580 Peake v Global Tcchnoloqy LtdFrancisJ (2003) 24 II. 1380 (LC)

have been regarded as suitable for the alternative positions they sug-gest, why the respondent's assessment that they were not was wrong,or why the respondent's actions lacked a commercial rationale.

[29] On the papers before me I assessed the applicants' prospects of successA on both the alleged unfair discrimination and the alleged unfair dis-missal disputes as poor. There are no other facts before me thatpersuade me that the applicants should still be permitted to prosecuteclaims that were initially pursued with so little urgency. To thecontrary, it would be highly unfair to expect of the respondent to13 have to contest claims that resurfaced in March 1999, four and a halfmonths after the respondent was entitled to assume that finality hadbeen reached and a year and three months after the issues that wereallegedly the subject-matter of the dispute had arisen.

[30] In all the premises the application for condonation is dismissed.C [31] No reasons have been advanced to me why costs should not followthe event. Accordingly the applicants are ordered to pay the respon-dcnt's costs, jointly and severally, the one paying the others to beabsolved.

1321 1 have been urged by Ms da Costa to make an order, if I were toD dismiss the application tor condonation, dismissing the applicants'case for the relief that has been sought in this court. That is notnecessary. Because the application for late referral of the disputehas been dismissed, the matter has been finalized and is no longerpending in this court.E

F

PEAKE v GLOBAL TECHNOLOGY LTDG LABOUR COURT (JS236/02)

22 May; 30 May 2003Before FRANCIS J

H Costs ----Labour Court proceedings-----espondent objecting to application to amendstatement of claim -Objection fiund to be unreasonable and causing applicantto incur unnecessary costs-----ourt ordering respondent to pay party and partycosts.

Practice and procedure-Statement of claim-Labour Court proceedings-Application to amend-No procedural bar to court granting application-Generalprinciples applicable ----Amendment to be allowed unless applicationto amend mala fide or amendment would cause injustice to other part), thatcannot be compensated by costs.Practice and procedure-Statement (f claim- Labour Court proceedings-J Application to anend ----Statement excipiable on basis that itfails to discloseHeinOnline -- 24 Indus. L.J. (Juta) 1580 2003


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Peake v Global Technology Ltd 1581Francis j (2003) 24 JLJ 1580 (LC)

cause of action ----Statentent in unamended or amended frin disclosing singlecause of action Allegations respondent contendinq were necessary were atmost facta probantia in respect 0! cause of action that applicant had pursuedthroughout -----pplication to anendgranted.

Practice and procedure ---Statement of claim---Labour Court proceedings------ AApplication to amend-Statenrt excipiable on basis that it fails to disclosecause of action Such not impediment to granting of amendment.

Practice and procedure ----tatement of claim. Labour Court proceedings-----Application to amend-Where statement of claim lodged timeously andapplication to anendgranted, applicantnot required o applyfor condonation. 13

The applicant filed a statement of clain in. respect of her alleged unfair dismissal bythe respondent. The respondent filed a notice of exception requesting thedismissal of the applicant's statement of case on two grounds: first, that theapplicant ha d not pertinently alleged that she had been an 'employee' as Cdefined in the LRA 1995 an d second, that her statement of case did notpertinently allege that the dispute had been referred for conciliation and thatthe CCMA had certified that the dispute remained unresolved, andaccordingly that the statement of case did not disclose a cause of action.The applicant gave notice ofher intention to amend her statement of claim so Das to remove the respondent's causes of complaint. The respondent objectedto the applicant's notice of aiendment. It contended that the applicant hadnot tcndcrcd the wasted costs occasioned by the amcndmcnt an d that thepurported amendment would result in the applicant's introducing a cause ofaction into the statement of claim outside the 90-day period in respect of thecause of action and without applying for condonation. The applicant Eresponded by making a tender to pay the wasted costs. The applicant took theview, however, that there was no merit in the respondent's objection. Therespondent persisted in objecting to the proposed amendment and in assertingthat condonation was required. The applicant brought an application in termsof rule 11 of the Labour Court Rules to amcnd her statement of claim and/or Ffor condonation for delivery of her statement of clain. The applicant alsosought a special costs order as between attorney and client against therespondent.The court found that, although the rules of the court contained no expressprovisions pertaining to the amendment of pleadings, there was no Gprocedural bar to the court's granting the applicant leave to ariend herstatement of claim. The general legal principle that amendments shouldalways be allowed unless the application to aiend was mala tide or unless theamendient would cause an injustice to the other side that could not becompensatcd by costs was applicable.The court found no nerit in the respondent's contention that the proposed Hamendment would result in the applicant's introducing a cause of action intothe statement of claim outside the 90-day period. In both its unamended andamended forms, a single cause ofaction was pursued, namely unfair dismissal.Evei ifit was necessary to allege that the respondent was the employer or thatconciliation took place before the CCMA, these were not new 'causes of Iaction'; they were at most facta probautia in respect of the single cause ofaction which the applicant had pursued throughout.The court found further that the niere fact that a statement of claim isexcipiable onthe basis that it does not disclose a cause of action is no impediment to thegranting of an amendment. Since the applicant's original statemcent of claimwas not so defective that it could be said that it did not constitute a statement J

HeinOnline -- 24 Indus. L.J. (Juta) 1581 2003


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1582 Peake v Global Iechnologyt LtdFrancjsJ (203) 24 II. 1380 (LC)

of claim at all, there was no reason not the grant her leave to amend herstatement of claim.The court was satisfied that, because the statement of claim had been timeouslymade and it was not a nullity, condonation was not required.

A Regarding costs, the court found that the respondent ought not to have objected tothe proposed amendment thereby compelling the applicant to bring anapplication to court. In these circtumstances fairness prompted the court toexercise its discretion in favour of the applicant and to order the respondent topay all the costs of the application brought to secure the amendment. Therespondent had been unreasonable and had caused the applicant to incur13 unnecessary costs. The court believed, however, that punitive costs would notbe appropriate.The court accordingly granted the applicant leave to amend her statemnent of claimand 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

C judgment.AnnotationsCasesCganga 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)EAdu A J Freund for the applicant.Aftorneyj 11alan for the respondent.

Judgmnent reserved.F FRANCIS J:

Introductionf1] 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 fordelivery of her statement of claim.

121 The application was initially opposed by the respondent. On 19 May2003, the respondent in its heads of argument, gave notice that it wasno longer opposing the application but was purely opposing the

H attempts to secure an order of costs against the respondent.Background facts13] On or about 12 March 2002 the applicant delivered a statement of

claim in respect of her alleged unfair dismissal by the respondent.I [41 On or about 10 April 2002 the respondent filed a notice of exceptionin which it requested the dismissal of the applicant's statement of caseon two grotmds. The first ground was, essentially, that because theapplicant's statement of claim did not pertinently allege that theapplicant was an 'employee', as defined in the Labour RelationsJ Act 6 of 1995 (the Act), or the applicant was at any material time



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Peake v Global 'e1 tiology Lid 1583Francis J (2003) 24 JLJ 1580 (,C)

employed by the respondent, the statement of claim did not disclosea cause of action against the respondent. The second ground of ex-ception was, essentially, that because the statement of claim did notpertinently allege that the relevant dispute had been referred forconciliation to the CCMA and that the CCMA had certified that Athe dispute remained resolved, or that a period of 30 days from thedate of the referral had expired, and that this court consequently hadjurisdiction to hear this matter, the applicant's statement of claim didnot disclose a cause of action.

[5] The applicant gave notice of her intention to amend her statement of 13claim, so as to remove the respondent's causes of complaint, by in-troducing the allegations which the respondent contended were re-quired. On 30 April 2003, the respondent filed an objection to theapplicant's notice of amendment. In the objection the respondent Cpointed out that the applicant had not tendered the wasted costsoccasioned by the amendment and averred that the purportedamendment would result in the applicant introducing a cause ofaction into the statement of claim, outside of the 90-day period inrespect of the said cause of action, and without applying for condo-nation. The amendment should consequently be refused.

[6] The applicant in response to the respondent's objection to her noticeof amendment made a tender to pay the wasted costs. The applicanttook the view that there was no merit in the respondent's objectionbased on the contention that the applicant's amendment would result Ein the introduction of a cause of action outside the relevant 90-dayperiod. In the applicant's notice to the respondent's objection, theapplicant placed on record that it was not necessary to apply forcondonation. Should the respondent proceed with its objection theapplicant would seek a special costs order against the respondent as Fbetween attorney and own client.

[71 The respondent persisted in objecting to the proposed amendmentand in asserting that condonation was required. The respondent didnot persist with the exception. The applicant then brought the pre-sent application. G

The application for leave to amend[81 Although the rules of this court contain no express provision pertain-

ing to the amendment of pleadings, there is no procedural bar to thiscourt granting the applicant leave to amend her statement of claim. HIn this regard see National Union t"Mletalworkers of SA & others vDriveline Technologies (Pty) Ltd & another (2002) 21 ILl 142 (LAC).

[9] The general legal principle in respect of whether amiendients shouldbe allowed is the following:'Amendments should always be allowed unless the application to amend ismalafide or unless such amendment would cause an injustice to the other sidewhich cannot be compensated by cost, or in other words unless thc partiescaniot be put back for the purposes of justice in the same position as theywere when the pleading it is sought to amend was filed.'



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1584 Peake v Global Tcihmology LtdFrandsJ (2003) 24 IId 1380 (LC)

In this regard see FishHoek Village Alanagement Board v Romain 1932CPD 304 at 307.[10] Where a claim has prescribed, an amendment seeking to introduce aprescribed cause of action may be refused but:A 'The position is diffeient if there isno introduction of a new party or a newcause of action, but the amendment merely amounts to a clarification of astep in the proceedings which has insufficiently or imperfectly set out theone cause of action that throughout has been relied upon by one and thesame party.'In this regard, see Yu Kuamv PresidentInsuranceCo Ltd 1963 (1) SA66 (T) at 68G.

1111 Even if a statement of claim is excipiable on the basis that it does notdisclose a cause of action I am of the view that it can nonetheless

C interrupt prescription; an amendment to make clear the cause ofaction relied upon is therefore permissible. In Sentrachem Ltd v Prin-sloo 1997 (2) SA 1 (A) at 15H--16B the following was said:'Al is 'n dagvaarding vir eksepsic vatbaar onidat dit geen skuldoorsaakopenbaar nie, kan dit nogtans omn verjaring van die skuld war geiis word teD stuit. Die enigste voorbehoud is dat die dagwarding nie so gebrekkig moetwees dat dit 'n nulliteit is in die sin dat dit nie vatbaar is vir wysiging om diegebreke aan te suiwer nie. Die cintlike toets is om te betaal of die eiser no gsteeds diesclfde, of wesenlike diesel'de skuld probeer afdwing. Die skuld ofvorderingsreg noet instens nit die oorspronklike dagvaardmg kenbaar

E wees, sodat daaropvolgende wysiging eintlik son neerkoin op die opkarmngvan 'n gebrekkig of onvolkome pleitstuk waarin die vorderingsreg, waaropdaar deurgaans gesteun is, uiteengesit word.'[12] In the respondent's objection it contends that the proposed amend-

ment 'will result in applicant introducing a cause of action into theF statement of claim, outside of the 90-day period'. There is no merit in

this contention. In both its unainended or amended forms, a singlecause of action. is pursued, namely unfair dismissal. Even if it wasnecessary to allege that the respondent was the employer or thatconciliation took place before the CCMA, these are in my viewG not new 'causes of action'; they are at most facta probantia in respectof the single cause of action which the applicant has pursuedthroughout.[13] An cxcipiable pleading may be amended, even after the period ofprescription has expired, provided that the applicant is still attempt-

H ing to pursue the same claim and not a different claim, based on adifferent cause of action. In Sentrachei, the Appellate Division as itthen was, made clear, in the passage cited above, that although asummons that is so defective as to constitute a nullity cannot beamended, the mere fact that it is excipiable on the basis that it doesnot disclose a cause of action is no impediment to granting an amend-inent. Similarly in Rooskrans v M1tinister van Polisie 1973 (1) SA 273(T) at 274H, Hiemstra J held:I)it staan bo twyfel dat 'n eksipiabele pleitstuk nic vanwe5 sy gebrek nnietigheid word nie. Hy kan gewysig word om horn van gebreke te suiwer.Daar is natuurlik pcrkc aan die gebrcke war oor die hoof gesicn sal word by



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Pcake v Global 'ech1iology Lid 1585Francis J (2003) 24 JLJ 1580 (11,C)

die bcoordeling va n die vraag of 'n dagvaarding voldoende was om dieverjaring te stuit. Ek sou die perke nie wil omskryf me, maar diedagvaarding in hierdie saak is beslis nie so gebrekkig dat ges& kan word dit isgeen dagvaarding nie.'

[14] The applicant's original statement of claim is likewise not so defec- Arive that it can be said not to constitute a statement of claim at all. Itfollows that there is no reason not to grant the applicant leave toamend her statement of claim.

Condonation 13[15] Since the statement of claim was made tineously to this court and is

not a nullity condonation therefore is not required.Costs C[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 shouldproceed with its objection to the proposed amendmeinit and persist inrequiring the applicant to apply for condonation, the applicantwould seek a special costs order against respondent as between attor- Dney and own client.

]171 In the matter of CQangav AAA Mutual InsuranceAssociation 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 Eextent 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 BroadacresInvestmets 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 whetherthe 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 Fthe reasonableness of the opposition) tends to hamper the exercise of theunfettered discretion which a Court has in its award of costs. The exerciseof that discretion, is, after all, essentially a matter of fairness to both sides...nd a criterion which may be useful in one case may, in other cases, nothaving the desired effect."That the reasonableness of the opposition (as distinct friom the considerationof it not being frivolous or vexatious) will undoubtedly be an importantconsideration 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 adifference 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 Courtwhenever an amendment of the pleadings was sought. Amendments couldnow be obtained without incurring the costs of an application, merely by Igiving notice to the other side. Only in the event of the other side objectingwill ain application to Court become necessary. It seems to me to be implicitin this new procedure that any objection to a notice of intention to amendmust be reasonably and responsibly taken. If an objection is taken merely toinconvenience the litigant seeking the amendment, or in an attempt tocompel him to incur the costs of an application to Court, when the opponent J



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1586 Peake v Global Technology LtdFrauc sJ (2003) 24 IId 1380 (LC)

has no real grounds for objecting and either does not appear in Court at all tooppose the application, or appears an d raises some frivolous or vexatiousobjection, then the Court would, in my view, be entitled to order such anobjecting party to pay all the costs incurred in the bringing of the

A application.The fact, therefore, that an applicant includes in his notice of motion aprayer that the respondent be ordered to pay the costs of the applicationcannot justify any form of opposition as it would have done before theintroducing of the present Rule.On the other hand I do not want to understand to mean that as a general

13 rule costs in such applications will follow the result, or that in certaincircumstances the respondent might not be ordered to pay the cost ofopposition, or even that the opposition might be able to have been soreasonable as to warrant an order that the applicant pay all the costs. Eachcase in my view depends on its own merits and the discretion of the Court to

C make an order which is fair in all the circumstances niust remain unfettered.'1181 I am of the view that the sentiments expressed in the Cgaga matter

apply equally to this application. The objection to the proposedaiendment ought never to have been raised and in fact anmotintedto a vexatious and frivolous objection. The respondent thereforeD ought not to have objected to the proposed amendment, therebycompelling the applicant to bring an application to court. In thesecircumstances fairness prompts me to exercise my discretion in fa-vour of the applicant and to order the respondent to pay all the costsof the application brought on notice of motion to secure an amend-E nient. The position adopted by the respondent has been unreasonableand has made it necessary for the applicant to incur costs which aretotally unnecessary. This is one instance where the respondent hascaused the applicant to incur unnecessary costs to be run up.

[191 1 do not however belief that this is a matter where punitive costsF should be awarded to the applicant.[20] In the circumstances I make the following order:

I The applicant is granted leave to amend her statement of claim inaccordance with her notice dated 16 April 2002.2 The respondent is to pay the applicant's costs on a party andC party scale.

Applicant's Attorneys: P G Ban.Respondent's Attorneys: l4'ebber [Ventzel Bot'ens.

HeinOnline 24 Indus L J (Juta) 1586 2003

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