Dicks v South East Node (Pty) Ltd (J 2131/08, J 2132/08, J 2133/08) [2011] ZALCJHB 198 (2 February 2011)

Dicks v South East Node (Pty) Ltd (J 2131/08, J 2132/08, J 2133/08) [2011] ZALCJHB 198 (2 February 2011)

The court held that the applicant's supplementary affidavit was filed without leave and amounted to a change in the cause of action, which is not permissible without a formal application. The Labour Court Rules do not provide for the filing of supplementary affidavits in motion proceedings except with leave. The applicant failed to justify the admission of the affidavit, and no explanation was provided for the change in approach. The court further found that the applicant's attorneys were aware of the cost order sought and did not need to be formally joined as parties. The respondent's opposing affidavit was not found to be irregularly filed, and condonation was not required. The direct...

Citation
[2011] ZALCJHB 198
Parties
Applicant: Dicks Christopher Johannes; Respondent: South East Node (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
2 February 2011
Case Number
J 2131/08, J 2132/08, J 2133/08
Procedural Posture
Interlocutory Application / Application to Strike Out Supplementary Affidavit and for Costs
Outcome
The applicant's supplementary affidavit is struck out. The applicant's attorneys are ordered to pay the costs of the application on an attorney own client scale.
Judges
Lagrange
Legal Topics
Supplementary Affidavit, Attorney Own Client Costs, Irregular Proceedings, Contract of Employment, Basic Conditions of Employment Act
Labour Law Civil Procedure Supplementary Affidavit Attorney Own Client Costs Irregular Proceedings Contract of Employment Basic Conditions of Employment Act

Case Brief

Summary, issues, holding and outcome

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Parties

Dicks Christopher Johannes

Applicant

South East Node (Pty) Ltd

Respondent

Procedural Posture

Interlocutory Application / Application to Strike Out Supplementary Affidavit and for Costs

Legal Issues

  1. 1 Whether the applicant's supplementary affidavit filed without leave should be admitted as part of the record.
  2. 2 Whether the applicant's attorneys should be ordered to pay costs on an attorney own client scale.
  3. 3 Whether the direct service of a tender document on the respondent constituted an irregular proceeding.

Ratio Decidendi

The court held that the applicant's supplementary affidavit was filed without leave and amounted to a change in the cause of action, which is not permissible without a formal application. The Labour Court Rules do not provide for the filing of supplementary affidavits in motion proceedings except with leave. The applicant failed to justify the admission of the affidavit, and no explanation was provided for the change in approach. The court further found that the applicant's attorneys were aware of the cost order sought and did not need to be formally joined as parties. The respondent's opposing affidavit was not found to be irregularly filed, and condonation was not required. The direct...

Court Disposition

The applicant's supplementary affidavit is struck out. The applicant's attorneys are ordered to pay the costs of the application on an attorney own client scale.

Orders

  • The applicant's supplementary affidavit filed on 21 June 2010 is struck out.
  • The applicant's attorneys, Jansen Incorporated, must pay the costs of this application on an attorney own client scale.