Dirk Cornelius Aspeling v Nedbank Ltd (31767/2012) [2014] ZAGPJHC 316 (2 July 2014)

Dirk Cornelius Aspeling v Nedbank Ltd (31767/2012) [2014] ZAGPJHC 316 (2 July 2014)

The court held that the plaintiff's amended particulars of claim regarding the obligation to accommodate him in Nedbank Africa or another suitable position are not excipiable, as the relevant facts would be within the knowledge of the defendant and need not be pleaded by the plaintiff at this stage. The interpretation of the word 'or' in the secondment agreement is disjunctive, and the plaintiff's pleading is legally sustainable. However, the court upheld the exception to the claim for a common law right to a pre-dismissal hearing or consultation, finding that such a right does not exist outside the Labour Relations Act and is not implied in the contract. Damages for unfair dismissal or...

Citation
[2014] ZAGPJHC 316
Parties
Applicant: Dirk Cornelius Aspeling; Respondent: Nedbank Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
2 July 2014
Case Number
31767/2012
Procedural Posture
Civil Procedure / Exception to Amended Particulars of Claim
Outcome
The exception to paragraphs 1 and 2 of the plaintiff's notice of intention to amend is dismissed; the exception to paragraph 4 is upheld; no order as to costs.
Judges
Victor
Legal Topics
Contractual Damages, Retrenchment, Implied Terms, Pre Dismissal Hearing, Exception Procedure
Civil Procedure Labour Law Contractual Damages Retrenchment Implied Terms Pre Dismissal Hearing Exception Procedure

Case Brief

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Parties

Dirk Cornelius Aspeling

Applicant

Nedbank Ltd

Respondent

Procedural Posture

Civil Procedure / Exception to Amended Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's amended particulars of claim are excipiable for vagueness and embarrassment.
  2. 2 Whether the secondment agreement imposed an obligation on the defendant to accommodate the plaintiff in Nedbank Africa or another suitable position.
  3. 3 Whether the plaintiff had a common law contractual right to a pre-dismissal hearing or consultation.

Ratio Decidendi

The court held that the plaintiff's amended particulars of claim regarding the obligation to accommodate him in Nedbank Africa or another suitable position are not excipiable, as the relevant facts would be within the knowledge of the defendant and need not be pleaded by the plaintiff at this stage. The interpretation of the word 'or' in the secondment agreement is disjunctive, and the plaintiff's pleading is legally sustainable. However, the court upheld the exception to the claim for a common law right to a pre-dismissal hearing or consultation, finding that such a right does not exist outside the Labour Relations Act and is not implied in the contract. Damages for unfair dismissal or...

Court Disposition

The exception to paragraphs 1 and 2 of the plaintiff's notice of intention to amend is dismissed; the exception to paragraph 4 is upheld; no order as to costs.

Orders

  • The defendant's exception to paragraphs 1 and 2 of the plaintiff's notice of intention to amend dated 23 November 2013 is dismissed.
  • The defendant's exception to paragraph 4 of the plaintiff's notice of intention to amend dated 23 November 2013 is upheld.