Food and Allied Workers' Union v Umbhaba Estates (Pty) Ltd (58679/2018) [2020] ZAGPPHC 709 (27 November 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED

27/11/2020

Case number: 58679/2018

Date:

In the matter between:

FOOD AND ALLIED WORKERS' UNION

EXCIPIENT/2ND DEFENDANT

and

UMBHABA ESTATES (PTY) LTD

RESPONDENT/PLAINTIFF

In re:

UMBHABA ESTATES (PTY) LTD

PLAINTIFF

vs

MINISTER OF POLICE & ANOTHER

1ST DEFENDANTFOOD AND ALLIED WORKERS' UNION

2ND DEFENDANT

JUDGMENT

TOLMAY, J:

[1] This matter was heard virtually on the Zoom Platform. The plaintiff (Umbhaba Estates) instituted action against the first defendant (the Minister of Police) and the second defendant (FAWU). This is the third application regarding the dispute between the parties, relating to the particulars of claim. Umbhaba brought an application to amend its particulars of claim. The amendment related to a correction of an erroneous reference to strike action. This application was opposed and the application was granted.[1] After that Umbhaba amended its particulars of claim. FAWU excepted to the particulars of claim that exception was upheld.[2] Umbhaba amended the particulars of claim, but FAWU again raised an exception to the amended particulars of claim.

[2] Umbhaba conducts business as a large scale agricultural enterprise its core business consists of banana farming. Umbhaba alleged that from November 2015 until January 2016 FAWU and its protestors prevented Umbhaba from gaining access or leaving its premises. FAWU and its protestors also allegedly participated in the destruction and/or damage of property, set fire to property and intimidated and/or interfered with its business operations.

[3] Umbhaba alleged in its particulars of claim that as a result of the negligent conduct of FAWU and its protestors it suffered damaged to its premises, loss of production, loss of income and incurred additional costs in an attempt to mitigate its losses.

[4] In the original version of its particulars of claim, the plaintiff relied on conduct in furtherance of strike action, in breach of the provisions of chapter IV of the Labour Relations Act, no 6 of 1995, to formulate an alleged "legal duty", in delict. After the exception was noted to those particulars of claim, the plaintiff accepted that such conduct was either not actionable at all (section 67(6) of the LRA), or if it was, section 68(1)(b) of the LRA confers exclusive jurisdiction on the Labour Court to adjudicate all such claims for "any loss" attributable to such conduct.

[5] The first amended particulars of claim contained allegations, which was said to rest both on the provisions of section 11(1) of the Gatherings Act, no 205 of 1993 (the Gathering Act) and a legal duty founded in delict. The court upheld the exception. which led to a further notice of amendment and the exception that is the subject of this application.

[6] It is trite, as Mr Labuschagne (Sc) proposed that the correct approach to an exception is to look at the pleadings at face value and to accept the correctness of the allegations in the pleadings. He extensively dealt in his heads of argument with the law as it has developed relating to exceptions.

[7] The principles that should be applied when considering exceptions are trite, but needs repetition. The excipient, in order to succeed has to persuade the court that upon every interpretation, the pleadings can reasonable bear, no cause of action is disclosed.[3] When considering the exception, the pleading must be looked at as a whole.[4] The excipient is confined to the grounds of his exception.[5] As far as there is an onus on a pure question of law it rests on the excipient. An excipient can only avail herself thereof if it is shown that upon any construction

of the claim, the pleading is excipiable[6]. Furthermore an exception based thereon that a claim is vague and embarrassing will only be allowed when the excipients will be

seriously prejudiced if the offending allegations are not expunged.[7] The exception based on the fact that a pleading is vague and embarrassing, is not directed at a particular paragraph, it relates

to the whole cause of action, which must be demonstrated to be vague and embarrassing.[8]

[8] The plaintiff's cause of action is based on section 11(1) and (3) of the Regulation of Gatherings Act, 205 of 1993 as well as delict.

[9] In order to put the cause of action pleaded and the exception in proper perspective one must consider the reasoning in the matter of SATAWU & Another v Garvas & Others[9] where the Constitutional Court dealt extensively with the liability created by the aforementioned section and stated as follows:

“ .... Gatherings, by their very nature, do not always lend themselves to easy management. They call for extraordinary measures to curb potential harm. The approach adopted by Parliament appears to be that, except in the limited circumstances defined, organisations must live with the consequences of their actions, with the result that harm triggered by their decision to organise a gathering would be placed at their doorsteps. ...

Parliament sought to ameliorate the impact of imposing liability on an organiser by providing for a viable, yet onerous, defence under Section 11(2). The purpose was:

(i) to provide for the statutory liability of organisations, so as to avoid the common law difficulties associated with proving the existence of a legal duty on the organisation to avoid harm;

(ii) to afford the organiser a tighter defence, allowing it to rely on the absence of reasonable foreseeability and the taking of reasonable steps as a defence to the imposition of liability; and

(iii) to place the onus on the Defendant to prove this defence, instead of requiring the Plaintiff to demonstrate the Defendant's wrongdoing and fault….”[10]

Furthermore it was stated that:

"An organisation will escape liability only if the act or omission that caused the damage was not reasonably foreseeable, and if it took reasonable steps within its power to prevent that act or omission.

It must be emphasised that organisations are required to be alive to the possibility of damage and to cater for it from the beginning of the planning of the protest action until the end of the protest action. At every stage in the process of planning, and during the gathering, organisers must always be satisfied of two things: that an act or omission causing damage is not reasonably foreseeable and that reasonable steps are continuously taken to ensure that the act or omission that becomes reasonably foreseeable is prevented. This is the only way in which organisers can create a situation where acts or omissions causing damage remain unforeseeable. In such a case, the requirement of taking reasonable steps is not met simply by guarding against the occurrence of the damage-causing act or omission. The inquiry whether the steps taken were sufficient to render the act or omission in question no longer reasonably foreseeable might be very exacting."[11]

It was also stated that:

"Section 11(1) holds organisers of a gathering liable for riot damage subject to section 11(2), which provides a limited defence to a claim of this kind. The effect of these specific provisions, in the context of the Act as a whole, is to render holders of a gathering organised with peaceful intent liable for riot damage on a wider basis than is provided for under the law of delict. This is all the more so given the extremely wide definition of riot damage in the Act. This means that proof of liability will, as indicated earlier, be easier in a large number of cases."[12]

Furthermore,

"The effect of section 11 is thus to place the organisers in the first line of fire when riot damage occurs. The innocent victim need not look any further than the organisers for compensation. She does not need to prove negligence on their part. In this sense, the liability may be considered to be "strict". "[13]

Finally,

"It is thus not unreasonable to allow the victim of riot damage to claim all compensation from the organisers of a gathering and then to leave it to the organisers to seek recourse or contribution from others who may have caused or contributed to the damage. It is, in reality, also the norm in our law of delict, as shaped by the Apportionment of Damages Act (Apportionment Act)."[14]

[10] It is with the aforesaid in mind that the exception raised by FAWU must be considered. It is clear that liability in terms of section 11 of the Gatherings Act allows for an extremely wide possibility for proving liability.

[11] FAWU, in the first ground of exception, complains that the plaintiff in paragraph 27.8 and 47 of the amended particulars of claim still relied on alleged loss of market share arising out of "strike action staring'' (sic) November 2015. However, on a perusal of the pleadings, neither paragraph 27.8 nor paragraph 47 of the plaintiff's particulars of claim (as amended) refers to any strike action. As a result, this complaint does not have any basis and should be disregarded.

[12] The details regarding the protest action of FAWU is comprehensively and in great detail pleaded in the amended particulars of claim from para 20.1 to para 20.64. In these paragraphs details are set out on which dates each action was allegedly executed by the protesters. The categorisation of such action for purposes of liability and damages will be a matter for the trial court after considering evidence presented at the trial. There is no merit in the first ground of the exception.

[13] FAWU's second ground for exception reads as follows:

"the plaintiff alleges grounds of negligence which involve a failure on the part of the second defendant to take action"

"It is unclear how the alleged failures of the Second Defendant to take action, pleaded by the Plaintiff can ever be unlawful in delict and the Plaintiff does not plead any basis therefor."

[14] However in para 18 of the plaintiffs amended particulars of claim it is alleged that:

"18. The plaintiff contends that FAWU acted unlawfully:

18.1 by orchestrating, aiding and abetting the unlawful conduct of protest action at the plaintiff's premises, as set out in more detail below;

18.2 participating in the unlawful conduct set out below;

18.3 by intentionally and/or negligently causing the damage to the plaintiff's property."

[15] In para 21.1 of the plaintiff's amended particulars of claim plaintiff states as follows:

"The incidents described of barricading the Tenbosch road and blocking the plaintiff's access and use of its premises, destruction and/or damage of the plaintiff's property, intimidation and interference with the plaintiff's business operations were caused by the intentional conduct,t alternatively the negligence of the FAWU protesters as well as its officials."

[16] It was argued that the positive negligent conduct on the part of FAWU and its officials can be described in both a positive as well as in a negative way.

[17] In Law of Delict, the authors state the following: However, "it is often difficult to draw a distinguishing line between conduct of a positive nature and conduct by way of an omission. Van Der Walt & Midgley explain the position as follows:

In general the legal nature of conduct is determined by the particular context in which it occurs. An "omission" or failure to take certain measures in the course of some activity is therefore not necessarily a form of conduct, but may well indicate that the action was negligently performed. Inaction as a part or a stage of some positive activity can therefore constitute or indicate negligence on the part of the actor; negligence is by definition a failure to take reasonable precautions . Many "omissions" are therefore merely indications of legally deficient positive conduct. (our emphasis) To drive a car through a stop street into another car constitutes a cause of positive conduct namely the driving of a car. The failure to stop (“omission”) indicates negligent or deficient positive conduct- culpa in faciendo. The mere fact that linguistic alternatives enable us to describe the positive occurrence in a negative way (for example "the driver failed or omitted to stop at the stop street'? is legally irrelevant in the determination of the conduct."[15]

[18] It was argued that the conduct complained of by FAWU amounts to legally deficient positive conduct. As such, so it was argued, there is no obligation on the part of the plaintiff to plead an express legal duty on the part of FAWU.

[19] FAWU has the duty to persuade the court that upon every interpretation which the pleading in question can reasonably bear, no cause of action is disclosed, failing this, the exception ought not to be upheld.[16] A perusal of the pleadings makes it clear that FAWU did not establish this requirement and accordingly FAWU cannot be successful in terms of this ground of its exception.

[20] In the third ground of exception FAWU alleges that the plaintiff's claim includes consequential non-patrimonial loss which falls outside of the definition of riot damage "since the alleged loss did not occur immediately before, during or after the holding of a gathering in each instance". FAWU also contends that such loss is not claimable as "riot damage".

[21] In para 16.1 of the plaintiff's particulars of claim (as amended) it is alleged that:

"In terms of section 11(1) of the Gatherings Act, FAWU, being the organisation on behalf of or under the auspices of which gatherings at the plaintiff's Hectorspruit Farm took place in the course of the protest action, is liable in damages to the plaintiff for riot damage that occurred, immediately before, during and after the holding of the gatherings as more fully set out below."

[22] It is accordingly not open to FAWU to allege, at this stage, that the damage did not occur immediately before, during or after the holding of the gatherings. This will ultimately be determined by the trial court in the light of the evidence, but for purposes of pleadings the allegations are sufficient to constitute a cause of action and is neither vague nor embarrassing.

[23] In paragraph 16.2 of the plaintiff's particulars of claim (as amended) the following is alleged:

"16.2 In terms of section 11(1) and (3) of the Gatherings Act, FAWU is deemed to be liable in delict for riot damage, which damages comprise all damages claimed below.

16.3 Insofar as the Honourable Court may find that the riot damage claimable in terms of the regulations of Gatherings Act does not include all damages claimed herein, the plaintiff claims all such damages from FAWU in delict, as envisaged by section 11(4) of the regulation of Gatherings Act, as set out hereafter."

[24] Riot damage is defined in the Gatherings Act as:

"Any loss suffered as a result of any injury to or the death of any person, or any damage to or destruction of any property, caused directly or indirectly by, and immediately before, during or after, the holding of a gathering."

[25] FAWU makes the assertion that the Plaintiffs damages claim "falls outside the definition of riot damage". The definition of riot damage however, is couched in wide terms and includes "any loss suffered ... or any damage to or destruction of any property, caused directly or indirectly by ...". This is also confirmed by the reasoning in SATAWU supra. The plaintiffs damages claim is formulated either based on the provisions of the Gatherings Act or on delict. In this ground of exception FAWU alleges that none of the officials or protests participants are alleged to be employees of the second defendant and no basis exists on which to hold the second defendant vicariously liable in delict.

[26] In para 15.6 of the plaintiffs particulars of claim (as amended) it is alleged that:

"The officials as well as its protest participants of the FAWU all acted within the course and scope of their employment with FAWU, alternatively within the furtherance of the interests of FAWU. The occupations of the officials and protest participants of FAWU as well as their respective duties of such officials and protest participants are not known to the plaintiff. "

[27] In para 22 of the plaintiffs particulars of claim (as amended) it is inter alia alleged that:

"As a direct consequence of the incidents, the unlawful and intentional and/or negligent conduct of FAWU, its officials as well as its protest participants who all acted within the course and scope of their employment with FAWU, alternatively within the furtherance of the interests of FAWU ... "

[28] It is thus apparent that the allegations made by FAWU in the exception are not factually correct and as such FAWU cannot succeed on this ground of the exception.

[29] It was argued by Mr Labuschagne (Sc) that some of the losses claimed by the plaintiff falls outside the definition of riot damage as envisaged in the Gatherings Act, the plaintiff in this regard in para 16.3 expressly pleads that:

"16.3 Insofar as the honourable court may find that the riot damage claimable in terms of the regulation of Gatherings Act does not include all damages claimed herein, the plaintiff claims all such damages from FAWU in delict ..."

[30] As a result this ground for exception cannot be upheld.

[31] FAWU alleges that the plaintiff failed to plead or specify any facts from which the plaintiff's special damages would be foreseeable. In para 25 under the heading "Reasonable Foreseeability of Special Damages" the plaintiff sets out all the facts in support of the conclusion that the damages were reasonably foreseeable. Accordingly, FAWU cannot successfully argue that this ground of exception has merit.

[32] It is trite that a plaintiff is required to set out the particulars of claim in such a manner as to enable the defendant to estimate the quantum. The rule "enjoins any party claiming damages to provide sufficient information to enable the opposing party to know why the particular amount being claimed as damages is in fact being claimed." It does not matter whether the damages claimed are special or general in this context does not refer to sentimental damages, but to damages that have to be estimated.[17]

[33] For the purposes of making a tender, a defendant is entitled to know the true nature of the plaintiff's claim, but is not entitled to expect to be supplied with all the information required for an adequate tender. The Defendant is not entitled to an advance edition of the plaintiffs evidence.[18]

[34] Despite the argument that the failure to act does not ordinarily attract legal liability, this argument should appropriately be raised at the trial and the excipient seems to conflate the requirements for an exception to be upheld, with the plaintiff's onus to proof its case on a balance of probabilities at the trial. A perusal of the particulars of claim makes it apparent that the plaintiff sets out a proper cause of action, which is not vague and embarrassing, the defendants know exactly what the basis of the claims are and will be able to file a plea in answer to it. It will however be for the trial court to determine whether plaintiff ultimately will succeed in proving its claim.

[35] On a proper consideration of the pleadings and the grounds of exception there is no merit in the exception and it must be dismissed with costs.

[36] The following order is made:

1. The exception is dismissed; and

2 The excipients to pay the costs,· which shall include the costs of two counsel.

R G TOLMAY

JUDGE OF THE HIGH COURT

DATE OF HEARING:

10 NOVEMBER 2020

DATE OF JUDGMENT:

ATTORNEYS FOR APPLICANT: ADAMS & ADAMS

COUNSEL FOR APPLICANT: ADV E C LABUSCHAGNE (SC)

ADV S G MARITZ

ATTORNEY FOR 1ST DEFENDANT: STATE ATTORNEY

ATTORNEY FOR 2ND DEFENDANT: CHEADLE THOMPSON & HAYSON

INC

ADVOCATE FOR DEFENDANTS: ADVT M EUIJEN (SC)

[1] Umbhaba Estates (Pty) Ltd v The Minister of Police and Food and Allied Workers' Union, Case No: 58679/2018 (Delivered 27/6/2019)

[2] Food and Allied Workers' Union v Umbhaba Estates (Pty) Ltd, Case No: 58679/2018 (Delivered 11/12/2019) (The first exception

[3] Theunissen v Transvaalse Lewendehawe Koop Bpk 1988(2) SA 493(A) at 500 E-F, Lewis v Oneanate (Pty) Limited and Another 1992(4) SA 811 (A) at 817 F, First National Bank of Southern Africa Limited v Perry N.O. 2001(3) SA at 956 C-D

[4] Nel & Another NNO v McArthur 2003(4) SA 142 at 149 F

[5] Van Loggerenberg, Erasmus, Superior Court Practice, 2nd Ed [Service 7-2018] D1 295 and caselaw referred to in vtnt 6 thereof (Erasmus)

[6] Erasmus, supra, caselaw referred to in vtnt 8 and 9

[7] Levitan v New Haven Holiday Enterprises CC 1991(2) SA 297 (C) at 298 A, Gallagher Group Limited v IO Tech Manufacturing (Pty) Ltd 2014(2) SA 151 (GNP) at 166 G-H

[8] Jowell v Bramwell-Jones & Others, 1998(1) SA 836 (W) at 899 G (Jowell), Venter and Others NNO v Barrit, Venter & Others NNO v Wolfsberg Arch Investments 2 (Pty) Ltd 2008 (4) SA at 639 Cat 644 A

[9] 2013 (1) SA 83 (CC) (SATAWU)

[10] SATAWU para 38 - 39

[11] SATAWU para 41

[12] SATAWU para 56

[13] SATAWU par 71

[14] SATAWU para 73

[15] Neethling, Potgieter and Visser, Law of Delict, 7'" Edition, p 30

[16] Theunissen v nansvaalse lewendehawe Kotlp Bpk 1988 (2) SA 493 (A) at 500E- F; Lewis v Oneanate (Pty) limited [1992] ZASCA 174; 1992 (4) SA 811 (A) at 81?F; First National Bank of Southern Africa limited v Perry N.O. 2001 (3) SA 960 (SCA) at 965C - D.

[17] Thompson v Barclays Bank , DCO 1965 (1) SA 365 CW); Durban Picture Frame Company (Pty) Ltd v Jeena 1976 (1) SA 329 (D); Simmonds v White 1980 (1) SA 755 (C); Bell, Van Niekerk & Van Niekerk v Odebaaskraal Eiendoms Bpk 1985 (1) SA 127 (C); Sasol Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering (Pty) Ltd t/a LH Marthinusen 1992 (4) SA 466 CW)· Nasionale Aartappel Kooperasie Bpk v Price Waterhouse Coopers Inc 2001 (2) SA 790 (T).

[18] Simmonds v White 1980 (1) SA 755 (C).