AMCU obo Wayise and Others v Sibanye Gold (Pty) Ltd (JS 658/17) [2024] ZALCJHB 355 (9 September 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JS 658/17

In the matter between:

AMCU obo WAYISE & 98 OTHERS

Applicant

and

SIBANYE GOLD (PTY) LTD

Respondent

Heard: 30 August 2024 (Virtual hearing)

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to

be on 09 September 2024

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] The applicants (AMCU representing the individual applicants), seek leave to amend the pre-trial Minute concluded between the parties, which amendments are outlined in Annexure ‘A’ to the founding affidavit. The amendments are opposed by the respondent.

Background:

[2] This matter has a protracted history flowing from the dismissal of the individual applicants on 9 June 2017, on account of allegedly participating in an unprotected strike.

[3] AMCU and the respondent concluded a recognition agreement in February 2017 after it had attained a 25% membership threshold at the workplace. The respondent contends that at around that period, illegal mining activities were adversely affecting the mining industry and its operations at its subsidiary, Rand Uranium (Pty) Ltd, which had been under care and maintenance for several years. A view was formed that these illegal activities were aided and abetted by its employees, who constantly provided and sold food supplies to illegal miners who had somehow managed to gain access and had stayed underground whilst they conducted their activities.

[4] To mitigate the problem of illegal mining activities which had caused it financial losses in the tune of about R400m, the respondent entered into a collective agreement known as Memorandum of Agreement (MOU) with the National Union of Mineworkers (NUM) in May 2017. In terms of that agreement, the parties agreed to have a total ‘food ban’, in terms of which all employees and contract workers were prohibited from taking food with them to their workstations underground. The ban was to be in place for a

period of 90 days from the date of the employees being briefed. Alternative arrangements were to be made including employees being

granted a R70.00 meal allowance per month and being provided with nutritional drink at the start and end of each shift. The failure to comply with the prohibition was to be met with disciplinary action.

[5] AMCU upon being approached to be party to the MOU refused to sign it. On 31 May 2017, the respondent communicated with the employees via SMS announcing the ‘Banning of Food’ with effect from 1 June 2017. The employees were further advised that those who had medical conditions and needed their food supplies underground were to approach the respondent’s Primary Health Care Centre for special arrangements to be made for them.

[6] AMCU responded by referring a dispute to the Commission for Conciliation Mediation and Arbitration (CCMA) alleging unilateral changes to terms and conditions of employment due to the implementation of the food ban. The respondent contends that on 5 June 2017, a pamphlet was distributed titled ‘ALL MEMBERS OF AMCU’, notifying employees of a mass meeting to be held in Bekkersdal Park on 6 June 2017. The issues on agenda related to ‘strike’ and ‘banning of food underground’.

[7] An unprotected strike commenced on 6 June 2017. Despite various communication to employees via SMS, coupled with various ultimatums, the unprotected strike continued. A Court interdict obtained on 8 June 2017 and meetings held with the General Secretary of AMCU yielded no results in ending the strike. The respondent then issued a final ultimatum, requiring the employees to report for duty from the morning shift on 9 June 2017 commencing at 07h00; the afternoon shift from 12h00; and the night shift commencing from 20h00. In the ultimatum, the employees were advised that they would be dismissed should they not heed the final ultimatum.

[8] The unprotected strike continued into 9 June 2017 and the respondent via SMS, notified the employees (including the individual applicants) of their summary dismissal. Similar SMSes were also sent to employees on 10 June 2017 who had failed to report for their night shift on 9 June 2017. The respondent also issued a brief indicating that a hearing would be convened notwithstanding the summary dismissal, to afford the employees an opportunity to make representations as to why the dismissals should not stand. AMCU and NUM were also advised in writing on 12 June 2017, inviting them to make written representations by 15 June 2017 regarding the dismissals.

[9] The respondent contends that in a meeting with AMCU on 12 June 2017, the latter suggested that final written warnings should be issued instead of the dismissals. Following the food ban and the unprotected strike, the respondent contends that on 13 June 2017, reports were received that about 303 illegal miners surfaced at Cooke 3 shaft and were promptly arrested.

[10] Subsequent to AMCU lodging an appeal, proceedings commenced on 21 June 2017 resulting in the recommendation of the dismissal of the individual applicants for participating in the unprotected strike. The respondent further contends that the individual applicants were previously issued with a final written warning in 2016 hence confirmation of their dismissals. Other employees who did not have final written warnings on record were reinstated.

[11] Following a referral of a dispute to the CCMA by AMCU and unsuccessful attempts at conciliation, a statement of claim challenging the fairness of the dismissals was delivered in August 2017. Upon the respondent having filed a statement of response, the parties’ legal representatives had engaged in an exchange of correspondence from April/May 2019 with a view of finalising a pre-trial minute. That process ended with the signing and filing of the minute in November 2019. The Registrar of the Court enrolled the matter for a hearing on 15 March 2021.

[12] Before the trial date, Ms. Musiker (Musiker) of Larry Dave Incorporated Attorneys (LDA) representing the applicants, and deponent to the founding affidavit in this application, had on 25 February 2021, sent correspondence to the respondent’s attorneys of record Webber Wentzel (WW), requesting certain documentation and information. WW’s refused to discover further documents or information, contending that the issues in dispute and those that were common cause were identified in the pre-trial Minute, and that the additional documents sought did not relate to those issues, and were thus not necessary for the determination of the matter.

[13] A further exchange of correspondence ended with a joint practice note being filed on 8 March 2021, in which it was recorded that the parties are in dispute as to the ambit of the issues that ought to be ventilated at the trial. Central to the dispute between the parties was whether with the demand for further documents and information by LDA, the applicants sought to greatly expand the issues for determination at trial from what was agreed to in the pre-trial Minute, inclusive of agreements under the Judge President’s Directive under paragraph 10.4.2.2 of the then Practice Manual.

[14] At the trial on 15 March 2021, the applicants indicated their intention to bring an application to amend the pleadings. This was in relation to new instructions that contrary to the initial recording in the pre-trial minute that all the employees participated in the strike, it was now contended that only 12 out of the 99 employees participated in the strike. The matter was then postponed to afford the applicants an opportunity to bring a formal application to amend their statement of claim.

[15] The Notice to Amend was filed on 10 September 2021, and the respondent’s response was that the applicants had pleaded a totally different case to that initially pleaded, and that the amendments contradicted the limited issues for trial and key factual versions as recorded in the pre-trial Minute. The respondent viewed the amendments as an attempt by the applicants to re-open and re-plead their case from scratch, and effectively resile from the material aspects which were agreed upon in the pre-trial Minute.

[16] The application for leave to amend the statement of claim, which was filed on or about 6 October 2021 and was fully opposed, then came before Sass AJ on 6 July 2022. At the hearing of that application, the applicants further sought to introduce an application for leave to amend the pre-trial minute. Judgment was delivered on 8 December 2022 in terms of which the applicants’ application to amend was granted in accordance with their Notice of Motion [1]. The Court however refused to grant leave to amend or resile from the pre-trial Minute in the absence of a specific application in that regard.

[17] Aggrieved with the judgment, the respondent sought leave to appeal the entire judgment and order of Sass AJ. Leave to appeal was granted, and when it came before the Labour Appeal Court on 29 February 2024, an order by agreement was issued staying the judgment of Sass AJ, pending the outcome of an application by the applicants to resile from the pre-trial Minute. This is the application that this Court must now determine.

The legal framework:

[18] The pre-trial Minute which the applicants seek to resile from, and given the nature of the dispute, was concluded under the now repealed Rule 6(4)[2] of the Rules of the Court read with Paragraph 10.4.2.2 of the Practice Manual (The Judge President’s Directive). These provisions have since been codified in Rules 22 and 23(3) of the new Rules.

[19] The purpose and legal effect of pre-trial conferences and Minutes flowing therefrom is well established arising from various authorities[3]. The purpose is to narrow down issues in dispute, to limit the scope of litigation, to shorten the length of trials, to facilitate

settlements between parties, and to curb costs. This process is important and of benefit to the litigants, as it enables them to know beforehand what issues are in dispute and those that are common cause, and to make the necessary preparations for trial.

[20] A signed pre-trial agreement is a consensual document which binds the parties and the court in the same way as pleadings. It obliges the court to decide only the issues set out therein. This is particularly so in that the positions deliberately taken by the parties in their respective pleadings are taken to have been reconciled or compromised in the Minute. It is against the purpose

and legal consequences of pre-trial minutes that Courts ordinarily take a dim view of parties attempting to resile from them. This

approach was aptly summarised by Sutherland JA in South African Breweries (Pty) Ltd v Louw[4] (Louw) as follows;

‘The chief objective of the pre-trial conference is to agree on limiting the issues that go to trial. Properly applied, a typical minute – cum – agreement will shrink the scope of the issues to be advanced by the litigants. This means, axiomatically, that a litigant cannot fall back on the broader terms of the pleadings to evade the narrowing effect of the terms of a minute. A minute, quite properly, may contradict the pleadings, by, for example, the giving an admission which replaces an earlier denial. When, such as in the typical retrenchment case, there are a potential plethora of facts, issues and sub-issues, by the time the pre-trial conference is convened, counsel for the respective litigants have to make choices about the ground upon which they want to contest the case. There is no room for any sleight of hand, or clever nuanced or contorted interpretations of the terms of the minute or of the pleadings to sneak back in what has been excluded by the terms of a minute. The trimmed down issues alone may be legitimately advanced. Necessarily, therefore, the strategic choices made in a pre-trial conference need to be carefully thought through, seriously made, and scrupulously adhered to. It is not open to a court to undo the laces of the strait-jacket into which the litigants have confined themselves.’[5]

[21] To the extent that a party seeks to resile from an agreement deliberately reached at a pre-trial conference, special circumstances

would have to be placed before the Court[6]. The Labour Appeal Court in Telkom[7] endorsed the approach that this principle was equally applicable to the Rules of this Court. As to what constitutes special circumstances

cannot be pigeonholed because this is dependent on the facts and circumstances of each case. In De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being and Another[8], it was held that it is neither possible nor desirable for courts to define precisely what circumstances constitute a persuasive case (special circumstances), but that the onus to demonstrate good cause is not easily met.

[22] The applicants relied on the approach in Rademeyer v Minister of Correctional Services (‘Rademeyer’)[9], for the proposition that in establishing special circumstances, the court in the exercise of its discretion must determine whether three requirements are met, viz, the applicant must furnish an explanation sufficiently full of the circumstances under which the concession was made and why it is sought to be withdrawn; secondly, he should satisfy the court as to his bona fides; and thirdly, show that in all the circumstances justice and fairness would justify the amendment. In this regard, it was submitted that a full explanation was proffered by Musiker in her founding affidavit.

[23] The respondent on the other hand favoured the approach in Chemical, Energy, Paper, Printing, Wood and Allied Workers Union v CTP Ltd and Another (‘CTP’)[10], for the proposition in reference to Filta-Matrix and Rademeyer, that where a party in a pre-trial minute abandons a point, or agrees (expressly or by necessary implication) not to pursue / rely on the point, or otherwise informs the opposing party that the point will not be relied upon, then he/she will not be allowed to do so at a later stage, unless he is able to resile from the agreement on a basis upon which he would in law be able to resile from a contract[11]. The Court in CTP pointed out that setting the test for special circumstances as being substantially equivalent to the test for the granting of condonation

as done in Rademeyer was too lenient, and this did not take account of the fact that a pre-trial agreement was equivalent to a contract between the parties.

[24] The approach in CTP that to resile from the agreement (or part thereof), the applicant must establish a basis for doing so in the law of contract, was found to accord with Driveline Technologies, and as being consistent with Kruizenga[12]. The Labour Appeal Court in Telkom[13] has since endorsed the approach in CTP given the status of a pre-trial agreement as a contract entered between the parties. In the end, the enquiry is whether the applicants have established special circumstances under the law of contract to resile from or amend the pre-trial minute.

[25] The respondent’s submissions in opposition to the amendments were that arising from the applicants’ case, the issues sought to be raised were among those either during the internal appeals or during litigation, which put the matter in the second category postulated in Driveline[14]. In this regard, it was submitted that after a process leading to the pre-trial minute, the applicants elected to pursue or plead a particular factual version to the necessary exclusion of all other versions pleaded in the statement of claim, and thus the parties

agreed to limit the factual versions and issues for determination as recorded in the pre-trial minute.

The grounds relied upon and evaluation:

[26] Whether the applicants have demonstrated exceptional circumstances also need to be evaluated against the remarks made in Louw by Sutherland JA as follows;

“To state the obvious, litigation is complex. Among the duties of legal practitioners is to conduct cases in a manner that is coherent, free from ambiguity and free from prolixity. True enough, the holy grail of translating what is complex into simplicity is not always attainable, but the ground rules are irrefrangible: say what you mean, mean what say and never hide a part of the case by a resort to linguistic obscurities. The norm of a fair trial means each side being given unambiguous warning of the case they are to meet. Moreover, these requirements are not mere civilities as between adversaries; the court too, is dependent upon the fruits of clarity and certainty to know what question is to be decided and to be presented only with admissible evidence that is relevant to that question. Making up one’s case as you go along is an anathema to orderly litigation and cannot be tolerated by a court. Counsel’s duty of diligence demands an approach to litigation which best assists a court to decide questions and no compromise is appropriate (My emphasis)”[15].

[27] Against the above remarks, it needs to be pointed out that central to the grounds raised by the applicants in seeking an amendment, are in my view, considerable lapses by AMCU, its officials and its legal representatives in the process of settling the statement of claim and the pre-trial minute. This observation is made against the trite principle that because it is incumbent upon the legal representatives of both parties to promote the cause of their respective clients, a legal practitioner acting in his/her professional capacity owes a duty of care and loyalty to his/her client, which duty requires the legal practitioner to be diligent and be careful in performing work for clients[16]

[28] According to Musiker in the founding affidavit, the initial statement of claim was drafted and filed by a former employee of AMCU, a Mr Vusi Masinga (Masinga) in August 2017. Masinga is said to have resigned in May 2018 and is untraceable. Musiker essentially blames Masinga for not properly consulting with the individual applicants on aspects of the 12 individual applicants who now concede to having participated in the strike, and further on the issue of alleged provocation.

[29] Musiker averred that after Masinga had filed the statement of claim, the matter was then referred by AMCU to LDA at an unspecified time at the end of 2018. LDA was mandated to draft the pre-trial minute and finalise the dispute. The Court will accept in accordance with the principles set out in Kruizenga, that the usual and customary powers associated with appointing LDA by AMCU would have included instructions at that stage, to not only attend to all pre-trial proceedings, but implied authority to also ensure that the pre-trial procedures involving making admissions and concessions and agreeing on compromises and settlements, accorded with AMCU and the individual applicants’ instructions. This invariably implied that proper consultations would have been held between AMCU’s officials, the individual applicants and LDA.

[30] Upon LDA being mandated, the matter was then assigned to an erstwhile Associate, Mr Mokoena (Mokoena), who had commenced drafting the initial version of the Minute. The pre-trial conference was held by way of correspondence, and prior to its finalisation, Mokoena resigned from LDA according to Musiker, on the basis inter alia that he could not cope with the pressures of a ‘highly litigious firm such as LDA’.

[31] Against this version, it is not stated as correctly pointed out on behalf of the respondent, whether Mokoena in the initial stages of drafting the pre-trial minute in the late 2018, had consulted with anyone within AMCU or the individual applicants in the absence of Masinga, who at that stage had resigned. There was no confirmatory affidavit by Mokoena, and nothing is said in the founding affidavit as to why this was the case. Mokoena’s confirmatory affidavit was only filed with the replying affidavit.

[32] It was averred that after Mokoena’s resignation from LDA, the matter was then assigned to Ms. Lee Wrench (Wrench) who was appointed during April 2019. At that stage, Mokena before his resignation had already started the pre-trial minute and compiled a first draft. Wrench had consulted telephonically with AMCU’s Regional Organiser known as ‘Maphinda’ at an unspecified time, who was allegedly in the presence of some of the unnamed individual applicants. Maphinda is also said to have been dismissed by AMCU and is uncontactable. Wrench finalised and signed the pre-trial minute in November 2019. She also resigned from LDA during March 2020, and had handed the matter over to Musiker.

[33] Again, nothing is said about how Wrench finalised and signed the pre-trail minute other than consulting with Maphinda and some of the unnamed individual applicants. The nature of those consultations is not disclosed to determine whether why it was not realised at that stage that there was a disconnect between those instructions and the statement of claim for the purposes of finalising the pre-trial minute. It is said that the General Secretary of AMCU, Mr Mphahlele, who had represented the individual applicants at the internal appeal was not consulted either in respect of the pre-trial minute. It is however not stated as to why Mphahlele

was not consulted given the importance of his role in the matter. In the end, if Wrench was not aware that the 12 individual applicants

had participated in the strike and that they alleged provocation, or any other facts which form the grounds for seeking to resile from the pre-trial minute, then these are facts that she ought to have ascertained prior to finalising and signing that Minute.

[34] Given the timeline of events, it is safe to assume that the matter was handed to Musiker in or about May 2020. She averred that in preparation for trial set down for 15 March 2021 and after consulting with some unnamed individual applicants that were available, certain facts came to her attention and it became apparent to her that the case articulated in the statement of claim and the pre-trial minutes did not accord with the individual applicants’ instructions. Again, these new facts to LDA are issues that ought to have been ascertained prior to the finalisation of the pre-trial Minute, and there is no reasonable explanation as to why they were not.

[35] Against the unsatisfactory explanation of the lapses in the process leading to the conclusion of the pre-trial minute, the Court will in any event proceed to determine the specific amendments sought, and whether any special circumstances exist to allow them.

The twelve individual applicants and the issue of provocation and intimidation:

[36] In the original Statement of Claim, it was denied that the individual applicants had participated in the strike, and therefore did not allege provocation on the part of the respondent. Their version was further that they had not engaged in strike action but were on a ‘defiance campaign’ in response to the respondent’s unilateral changes to the terms of their employment by the introduction of the food ban. In the same vein, they had alleged that they did not participate in the strike, but were prevented from clocking in at Cooke 3 access gate 527

[37] In the pre-trial minute, amongst the legal issues to be decided whether the dismissals were substantively fair in that the chairperson and/or the respondent failed to properly consider whether ‘The individual Applicants are not guilty of the offence as they did not participate in the strike and that they were prevented from clocking in on site”[17]

[38] Under Part B: Supplementary Pre-trial Minute[18], it is recorded that the applicants do not admit that they participated in the strike action, and that they attempted to clock

in but were prevented from doing so. The same averment and denial are recorded at paragraph 2 and 3.1 where the applicants admit that there was an unprotected strike but they however did not participate in it.

[39] In the amendment sought as per Annexure “A” to the founding affidavit, the applicants allege that only 12 of the individual applicants have since conceded to having participated in the strike, and the others persist with their denial that they did. The twist however with the amendments and the concession in respect of the 12 individual applicants, is that it is now alleged that the individual applicants had wished to tender their services at the time of the strike but were unable to do so because they were intimidated and feared for their lives and their families’ safety. It is further added that in respect of the 12 individual applicants that did participate in the strike, they alleged provocation in that the conduct of the respondent was unjustified (related to the food ban). The oddity with this submission is that it is assumed that the rest of the individual applicants did not participate in the strike, whilst only 12 of them were provoked into participating in the strike based on implementation of the food ban which had affected all other employees.

[40] The applicants’ further contention was that since it was their case that they did not participate in the strike, the amendment was not meant to introduce a new case of action but merely meant to introduce the issue of provocation was rendered necessary by the amendment to the pleadings that 12 of the individual applicants had since admitted that they participated in the strike

[41] Of course, the contradictory positions from a mere reading of these amendments as opposed to what was pleaded in the Statement of Case and recorded in the pre-trial Minute are glaring. There is a vast difference between alleging that employees did not participate in a strike but rather were engaged in a ‘defiance campaign’; or were prevented from reporting for duty because the gates at Cooke 3 were locked; or that they were intimidated and feared for their lives and safety of their families; or that some of them were provoked into taking part in the strike.

[42] These amendments are not merely to clarify or ‘introduce fresh and alternative facts supporting their original cause of action’ or meant to embellish on reasons why the strikers did not participate in the strike. There is a vast change of course from denying taking part in a strike and not alleging provocation, to allegations of provocation, intimidation or fear of one’s life or family safety, which were initially expressly not pursued or relied upon, clearly indicates a re-pleading of the claim. As correctly pointed out on behalf of the respondent, the amendments are an attempt at resiling from material aspects of the pre-trial, to advance a new case for the benefit of the applicants and to its prejudice.

The SMSes:

[43] The respondent’s contention was that communicating to employees via SMS was efficient, and that this communication system was consistently updated to ensure that all employees received their salary, payroll and other work-related information. In the statement of claim and the pre-trial minute, it was recorded as common cause that the respondent notified the employees by SMS of the food ban underground on 31 May 2017. The only issue raised in the statement of claim was that this mode of communication ‘was not effective’ without any elaboration as to how that was the case.

[44] When the strike commenced, the respondent had on various occasions between 7 and 10 June 2017, communicated to the employees about the unprotected nature of the strike and consequences thereof; advising them to refrain from acts of violence; instructing essential services employees to return for nightshift; the contempt of court order and their dismissal because of the unprotected strike. Under the issues in dispute in the pre-trial minute, and relevant to the topic, was whether on 13 June 2017 after the dismissals, an SMS was sent to certain additional employees confirming their dismissals and requesting them to make representations by 15 June 2017, and whether on 18 June 2017 an SMS was sent advising employees in essential service to report for night shift and requiring all day shift employees to report for duty.

[45] The amendment now sought by the applicants is on the basis that the pre-trial minute does not record that the SMSes were received or understood. This is even though the onus was on the applicants to raise this issue at the time. In essence the individual applicants deny that they received or understood the SMSes for a variety of reasons, including that their phones were stolen or that the SMS was sent in English.

[46] Arising from the pleadings and the pre-trial minute, it needs to be stated again that the applicants’ case has shifted course based purely on sweeping and unsubstantiated grounds and a clear afterthought, as to why the individual applicants could not have received or understood the SMSes. The respondent’s case has always been that when communicating via SMS to all employees, three official languages were always used, and this could not be gainsaid.

[47] The implications of the new allegations and amendments sought are that in the absence of any indication as to how any or all the individual applicants had not received or understood the SMS, it is not clear as to how the respondent is to meet their case, let alone the clearly onerous burden and impracticalities of such an approach which the applicants now seek to adopt. Having admitted that the SMSes were sent, and further without raising questions about whether they were received or understood, clearly the applicants cannot be allowed to suddenly seek to raise those questions.

The final written warnings:

[48] In the original statement of claim, the applicants had stated that prior to the incident of 6 June 2027, they were issued with final written warnings for participating in a strike in July/August 2016[19]. It was further pleaded that the applicants were not aware at all material times that they were issued with final written warnings for the 2016 incident[20]. This was followed by a version that; ‘It is common cause that during this incident of 2016, 1172 employees were issued with final written warnings of which 99 belonged to AMCU…’. This concession is recorded as common cause in the pre-trial minute[21].

[49] One of the issues under the facts in dispute in the pre-trial minute is whether the individual applicants were aware that they were issued with final written warnings for the 2016 strike, and whether they found about their existence for the first time when reading the appeal hearing recommendation, and whether they were notified of them in 2016[22]. Amongst the legal issues to be decided was whether the dismissal was substantively fair in that the chairperson/respondent failed to properly consider whether the sanction was too harsh in that the applicants were not aware of the existence of the final written warnings[23].

[50] In the amendment sought, the applicants not only deny that they were issued with the final warnings but goes further and disputes their validity on the basis that they were unaware of them, to challenge the fairness thereof at the time they were issued. Other than the fact that the applicants now seek to deny that the final written warnings were even issued, what is apparent from the statement of claim and the pre-trial minutes is that again, the applicants pleaded this issue with sufficient particularity to engage a determination of the trial Court. It was recorded under facts in dispute whether the individual applicants were aware of the final written warnings for the 2016 strike and whether they found out about their existence for the first time at the appeal hearing, or whether they were notified of them when issued in 2016. Furthermore, it is not for this Court at the stage of the proceedings to determine the validity of those final written warning. Clearly the issues for the trial Court to determine in this regard are those as crystalised in the pre-trial minute as issues in dispute and those under the legal issues for determination, and any amendment would other than sanction a retraction of an admission, also be superfluous under the circumstances.

The pamphlet:

[51] In the pretrial minute, it was recorded that on 5 June 2017, a pamphlet was distributed by AMCU to its members notifying them of a mass meeting with the issue on the agenda being a strike and food ban. It is alleged in seeking an amendment that the pamphlet was not issued by AMCU, and that the admission in the pre-trial minute was made by Wrench without proper instructions from all the employees.

[52] I have already addressed the lapses of the legal representatives which cannot be visited on the respondent to its prejudice. Equally so, a lack of proper consultation between attorney and client cannot by any stretch of imagination sustain a defence of common error or mistake under contract law in circumstances where a duty of diligence remains paramount in that relationship.

[53] In any event, and as correctly pointed out on behalf of the respondent, it is not clear as to the relevance of that pamphlet to the issues for determination as set out in the pre-trial minute. The issue for determination is whether the dismissal of the individual applicants for participating in the unprotected strike was fair, and whether they had responded to the pamphlet issued by AMCU or by someone else is neither here nor there to the extent that they had denied participating in the strike other than the 12 individual applicants.

Issue of inconsistency of application of discipline:

[54] In the pre-trial minute under the issues raised in dispute and legal issues to be decided, was whether a single individual (Mr Zunguse) was initially dismissed with the individual applicants but later reinstated under unexplained circumstances. One can accept from the minutes that the applicants confined their case of inconsistency to this one individual.

[55] In the amendments sought, the allegation of inconsistent application of discipline is now extended to all employees particularly members of UASA, Solidarity and other non-unionised employees, without making any effort to identify any comparators and circumstances that sustained that argument. Even if the Court accepts from paragraph 4.3 of the statement of claim that reference to inconsistency was made in relation to other employees and members of other unions, the specific reference to Zunguse in the same breath was clear. The Court need not say more in the light of specific the case pleaded and distilled in the pre-trial minute. In the light of the lack of further particularities regarding alleged inconsistency in relation to unnamed other employees as comparators, there can be no basis to grant any blanket amendment in this regard

Summary:

[56] Against the chain of events starting with Masinga, I have already pointed out the clearly signified lapses between AMCU, its officials and its legal representatives. In my view, if there was any form of bona fides on the part of the applicants, and there was a need for any form of amendment or expansion of the pre-trial minute with the aim of clarifying the applicants’ position, the first opportunity to do so was immediately upon Mokoena being seized with the matter. At the latest, that opportunity presented itself when the matter was handed over to Wrench prior to finalising and signing the pre-trial minute. There is no explanation as to the reason why those opportunities were not taken. It is not sufficient to simply blame Masinga for not properly consulting with the individual applicants when that omission could have been attended to between Mokoena and Wrench before the finalisation of the pre-trial minute.

[57] The explanation that not all the individual applicants nor the AMCU official who represented them in the internal hearing were consulted when the initial statement of claim was prepared, and without explaining the reasons in that regard, is equally not satisfactory even on the liberal approach favoured in Rademeyer as relied on by the applicants.

[58] It was argued that amongst other considerations, the Court must permit the amendments considering the requirements of justice, public policy and the applicants’ right to a fair trial. I do not understand these principles to be open sesame to condone lapses on the part of legal representatives who were fully mandated to serve the interests of their clients. These principles equally apply to the respondent not to be unduly prejudiced by lapses on the part of AMCU and LDA, in having to revisit issues in the pre-trial Minute. Those issues were agreed to in terms of a process that took place between April/May 2019 to November 2019, wherein positions deliberately taken by the parties in their respective pleadings were reconciled or compromised in the Minute to enable smooth litigation, and to assist the Court.

[59] The respondent is correct in its submissions that the applicants essentially seek to effect large scale amendments to the pre-trial minute as evident from the list spanning some 18 pages, which step is unprecedented given the legal principles applicable where a party seeks to resile from pre-trial minutes. It correctly contends that the applicants seek a free reign to plead their case from scratch, introduce new claims and discard claims as refined and agreed to in the existing pre-trial minute.

[60] The statement of case and the response thereto set out the respective parties’ facts and arguments in detail. It must be stated that the pre-trial minute is equally detailed, spanning some 18 pages combined with the Provisions of the Judge President’s Directive, and sets out in more details the issues that are common cause and those that are in dispute; the legal issues to be decided by the Court, as well as the relief claimed. It cannot therefore be correct as contended for by the applicants, that the amendments should be granted on the basis that the pre-trial was entered into because of a common error, which defence I have already

addressed and rejected as unsustainable under the circumstances. It is not clear given the grounds relied upon as discussed above, as to how any error could have been attributed to the respondent, which had nothing to do with how the applicants pleaded their case and how they chose to agree on issues that were common cause, those in dispute and those to be determined by the Court.

[61] A refusal to grant the amendment cannot be said to be against public policy or encroach or curtail the rights of the applicants to a fair trial of the issues, in circumstances where they have not demonstrated exceptional circumstances that entitle them to resile from the detailed and prima facie well-thought through pre-trial minutes. With the amendments sought, the applicants as warned in Louw and Telkom seeks to fall back on the generalities of averments, or the broader terms of the pleadings to evade the narrowing effect of the terms of a minute. The applicants’ contentions that the amendments are merely to clarify or amplify their case are in essence a nuanced attempt at interpreting the terms of the minute or of the pleadings to sneak back in what has been excluded by the terms of a minute, and to the prejudice of the respondent. This approach is impermissible as it defeats the general purpose of narrowing down the issues and the permissible grounds upon which their cause of action was to be presented. As stated in Louw, and more apposite to the facts of this case given the substantial nature of the amendments sought, the applicants essentially are making up their case as the matter progresses towards final determination, which approach cannot be countenanced as it is not

only prejudicial to the respondent but also to the Court and orderly litigation.

[62] The argument by the applicants that the opposition mounted by the respondent to the amendments frustrated the litigation process and was not conducive to the expeditious resolution of the disputes or a fair trial, is indeed self-serving and indeed a cheap shot. Any delays in the finalisation of the matter are of the applicants’ own making in the light of the manner with which they had sought to change and adapt their case as and when considerable lapses on the part of the legal representatives and AMCU became apparent. It was the applicants, after a protracted process of finalising the pre-trial minute, that chose to change the rules of engagement and litigation whenever it suited them.

[63] The respondent was within its rights to oppose these amendments to hold the applicants to the rules of engagement as distilled in the pre-trial minute. The mere fact that Sass AJ had earlier on granted the amendments to the statement of claim is neither here nor there, as it was specifically pointed out in the judgment that the amendments did not extent to the pre-trial minute. Since the applicants failed to discharge the burden of demonstrating exceptional circumstances to amend the minute, the amendments granted in respect of the statement of claim do not assist them.

[64] I have had regard to the requirements of law and fairness regarding the issue of costs. Against the facts and circumstances of the application before the Court, it is deemed appropriate that any order of costs should be in the cause.

[65] Accordingly, the following order is made;

Order:

1. The applicants’ application to amend or resile from the parties’ signed pre-trial minute is dismissed.

2. The costs of this application are to be determined by the trial Court.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicants: F. Boda SC, instructed by Larry Dave Incorporated Attorneys For the Respondent: G.A. Fourie SC, instructed by Webber Wentzel.

[1]AMCU obo Wayise and Others v Rand Uranium (Pty) Ltd (JS658/17) [2022] ZALCJHB 346 (8 December 2022)

[2] The significance of Rule 6(4) was in Harmse v City of Cape Town[2003] 6 BLLR 557 Waglay J (as he then was) held that; “8. The Rules of this Court do not require an elaborate exposition of all facts in their full and complex detail – that ordinarily is the role of evidence, whether oral or documentary. There is a clear distinction between the role played by evidence and that played by pleadings – the pleadings simply give the architecture, the detail and the texture of the factual dispute are provided at the trial. The pre-trial conference provides an occasion for the detail or texture of the factual dispute to begin to take shape. In terms of rule 6(4)(b) the parties in the pre-trial conference must attempt to reach consensus on facts that are common cause, facts that are in dispute, the issues that the Court is required to decide and the precise relief claimed”.

[2] The significance of Rule 6(4) was in Harmse v City of Cape Town[2003] 6 BLLR 557 Waglay J (as he then was) held that;

“8. The Rules of this Court do not require an elaborate exposition of all facts in their full and complex detail – that ordinarily is the role of evidence, whether oral or documentary. There is a clear distinction between the role played by evidence and that played by pleadings – the pleadings simply give the architecture, the detail and the texture of the factual dispute are provided at the trial. The pre-trial conference provides an occasion for the detail or texture of the factual dispute to begin to take shape. In terms of rule 6(4)(b) the parties in the pre-trial conference must attempt to reach consensus on facts that are common cause, facts that are in dispute, the issues that the Court is required to decide and the precise relief claimed”.

[3]See Filta- Matix (Pty) Ltd v Freudenberg and Other [1997] ZASCA 110; 1998 (1) SA 606 (SCA); (258/96) [1997] ZASCA 110 (Filta-Matrix)[1997] ZASCA 110; ; [1998] 1 All SA 239 (A); F & I Advisors (Edms) Bpk en 'n Ander v Eerste Nasionale Bank van Suidelike Afrika Bpk (266/97) [1998] ZASCA 65; 1999 (1) SA 515 (SCA); [1998] 4 All SA 480 (A); Price NO v Allied-JBS Building Society 1980 (3) SA 874 (A) at 882D - H; MEC for Economic Affairs, Environment and Tourism, Eastern Cape v Kruizenga 2010 (4) SA 122 (SCA); 2010 (4) ALL SA 23 (SCA) (Kruizenga) at para 6; NUMSA v Driveline Technologies (Pty) Ltd & Another (Drive [2007] ZALC 66; [2000] 1 BLLR 20 (LAC) (Driveline); Telkom SA Soc Ltd v Van Staden and Others (2021) 32 SALLR 8 (LC); (2021) 42 ILJ 869 (LAC) (Telkom) at para 16 where it was held that; “A pre-trial agreement is a consensual document which narrows down the issues in dispute between the parties so as to limit the scope of litigation. Such an agreement binds the parties and the court in the same way as pleadings. Where parties have concluded such a minute, the issues as set out in pleadings have not been abandoned but - ‘…the premises upon which the issues were to be advanced had been refined and limited by the terms of the minute, which is the very purpose of the minute... It was therefore inappropriate to fall back on the generalities of averments about procedural and substantive

unfairness. Were that approach to be permissible, there would be no point at all to efforts to narrow issues and trim down the scope of contestations. It was suggested in argument on behalf of Louw that the contention on behalf of SAB was that Louw had narrowed his cause of action; that understanding is incorrect. The argument, properly understood, was that the terms of the minute narrowed the permissible grounds upon which the cause of action was to be presented.”

[3]See Filta- Matix (Pty) Ltd v Freudenberg and Other [1997] ZASCA 110; 1998 (1) SA 606 (SCA); (258/96) [1997] ZASCA 110 (Filta-Matrix)[1997] ZASCA 110; ; [1998] 1 All SA 239 (A); F & I Advisors (Edms) Bpk en 'n Ander v Eerste Nasionale Bank van Suidelike Afrika Bpk (266/97) [1998] ZASCA 65; 1999 (1) SA 515 (SCA); [1998] 4 All SA 480 (A); Price NO v Allied-JBS Building Society 1980 (3) SA 874 (A) at 882D - H; MEC for Economic Affairs, Environment and Tourism, Eastern Cape v Kruizenga 2010 (4) SA 122 (SCA); 2010 (4) ALL SA 23 (SCA) (Kruizenga) at para 6; NUMSA v Driveline Technologies (Pty) Ltd & Another (Drive [2007] ZALC 66; [2000] 1 BLLR 20 (LAC) (Driveline); Telkom SA Soc Ltd v Van Staden and Others (2021) 32 SALLR 8 (LC); (2021) 42 ILJ 869 (LAC) (Telkom) at para 16 where it was held that;

“A pre-trial agreement is a consensual document which narrows down the issues in dispute between the parties so as to limit the scope of litigation. Such an agreement binds the parties and the court in the same way as pleadings. Where parties have concluded such a minute, the issues as set out in pleadings have not been abandoned but -

‘…the premises upon which the issues were to be advanced had been refined and limited by the terms of the minute, which is the very purpose of the minute... It was therefore inappropriate to fall back on the generalities of averments about procedural and substantive

unfairness. Were that approach to be permissible, there would be no point at all to efforts to narrow issues and trim down the scope of contestations. It was suggested in argument on behalf of Louw that the contention on behalf of SAB was that Louw had narrowed his cause of action; that understanding is incorrect. The argument, properly understood, was that the terms of the minute narrowed the permissible grounds upon which the cause of action was to be presented.”

[4] [2017] ZALAC 63; [2018] 1 BLLR 26 (LAC); (2018) 39 ILJ 189 (LAC).

[5] At para 8, which was recently referred to in Thamsanqa Mbeje & 12 Others v Department of Health: Kwazulu-Natal (Not Reportable. Delivered on 22 August 2024); See also Sibiya v South African Police Service (JA15/21) [2022] ZALAC 88; (2022) 43 ILJ 1805 (LAC); [2022] 9 BLLR 822 (LAC) at paras 29 – 31.

[6] See Filta-Matix (Pty) Ltd v Freudenberg and Others at 614B – D where it was held; “To allow a party, without special circumstances, to resile from an agreement deliberately reached at a pre-trial conference would be to negate the object of rule 37, which is to limit issues and to curtail the scope of the litigation…”

[6] See Filta-Matix (Pty) Ltd v Freudenberg and Others at 614B – D where it was held;

“To allow a party, without special circumstances, to resile from an agreement deliberately reached at a pre-trial conference would be to negate the object of rule 37, which is to limit issues and to curtail the scope of the litigation…”

[7] See fn 3 at para 22.

[8] [2015] ZACC 35 (24 November 2015); 2016 (1) BCLR 1 (CC); 2016 (2) SA 1 (CC), at para 36. See also at para 37 where it was held; “[37] The Supreme Court of Appeal correctly ventured the view that the requirement of good cause in order to escape an arbitration agreement entails a consideration of the merits of each case in order to arrive at a just and equitable outcome in a specific set of circumstances. Put in another way: is it in the interests of justice to hold a party to an arbitration agreement that would result in a futile, unfair or unreasonable outcome or perhaps an unconscionable burden? …”

[8] [2015] ZACC 35 (24 November 2015); 2016 (1) BCLR 1 (CC); 2016 (2) SA 1 (CC), at para 36. See also at para 37 where it was held;

“[37] The Supreme Court of Appeal correctly ventured the view that the requirement of good cause in order to escape an arbitration agreement entails a consideration of the merits of each case in order to arrive at a just and equitable outcome in a specific set of circumstances. Put in another way: is it in the interests of justice to hold a party to an arbitration agreement that would result in a futile, unfair or unreasonable outcome or perhaps an unconscionable burden? …”

[9] [2008] ZAGPHC 141; [2008] JOL 21787 (W) at para 6.

[10] [2012] ZALCJHB 163; [2013] 4 BLLR 378 (LC); (2013) 34 ILJ 1966 (LC) (19 December 2012).

[11] At para 108.

[12] At para 110.

[13] At para 24.

[14] At para 91, where Zondo JA (as he then was), held that; ‘To my mind the cases are consistent that whether or not a party will be allowed to raise or rely upon or introduce a cause of action or issue after a pre-trial agreement or pre-trial minute has been concluded in a case depends on whether it can be said that the party seeking to rely upon or to introduce or raise such cause of action or issue has abandoned that cause of action or has agreed either expressly or by implication (I would say necessary implication) not to pursue or rely upon such cause of action or point or has informed the Court or the other party that such point or such cause of action or issue will not be relied upon. If he has, he cannot be allowed. If he has not, he can be allowed. This is quite apart from those circumstances where a party would be able to resile from such an agreement on the same basis as he would be able in law to resile from any other contract.’

[14] At para 91, where Zondo JA (as he then was), held that;

‘To my mind the cases are consistent that whether or not a party will be allowed to raise or rely upon or introduce a cause of action or issue after a pre-trial agreement or pre-trial minute has been concluded in a case depends on whether it can be said that the party seeking to rely upon or to introduce or raise such cause of action or issue has abandoned that cause of action or has agreed either expressly or by implication (I would say necessary implication) not to pursue or rely upon such cause of action or point or has informed the Court or the other party that such point or such cause of action or issue will not be relied upon. If he has, he cannot be allowed. If he has not, he can be allowed. This is quite apart from those circumstances where a party would be able to resile from such an agreement on the same basis as he would be able in law to resile from any other contract.’

[15] At para 4

[16] Honey and Blanckenberg 1966 (2) SA 43 (R) at 46F-G.

[17] At paragraph 6.6 of the Pre-trial minute (page 164 of Index to the Pleadings)

[18] Paragraph 1. Page 167 of the Index to Pleadings

[19] At para 2.3 of the Original Statement of Claim (Page 93 of Index: Pleadings).

[20] At Paragraph 4.1.

[21] At paragraph 4.1.8.

[22] At paragraphs 5.1 – 5.3.

[23] At paragraph 6.1.