Landman v Deutsche Bank AG Johannesburg Branch (JS395/19) [2021] ZALCJHB 358 (14 October 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS395/19

In the matter between:

BRETT

ERIC LANDMAN Applicant

And

DEUTSCHE BANK AG JOHANNESBURG BRANCH Respondent

Heard: 29 JULY 2021

Date Delivered: 14 OCTOBER 2021

JUDGMENT

NINDI, AJ

Introduction.

[1] The applicant, Mr Brett Eric Landman, is applying for an order in accordance with Rule 11 of this court’s Rules (“the Rules”) to amend his statement of claim dated 20 May 2019. Further to this, the applicant delivered a Notice of Intention to Amend his statement of claim dated 16 September 2020 (“Notice of Amendment”).

[2] The application is opposed by the respondent, the Deutsche Bank AG Johannesburg Branch, on two grounds which I deal with later below. Accordingly, this court, is called upon to decide on whether or not to permit the amendment of the applicant’s statement of claim. In addressing the aforesaid, the core issues are:

2.1 Is the amendment necessary for the proper ventilation of the dispute between the parties?

2.2 In the event that leave to amend is granted, will the respondent be prejudiced?

2.3 In the event that the respondent is prejudiced, can the respondent’s prejudice be cured and/or corrected?

[3] It is not my intention to deal exhaustively or in any detail with the merits of applicant’s claim against the respondent, save to mention that it is the respondent’s objection to the contemplated amendment that is a bone of contention in these proceedings.

[4] I now turn to deal with the background facts giving rise to the current application.

Background Facts

[5] The applicant was employed by the respondent and was dismissed on 24 January 2019. The applicant referred his dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) on 21 February 2019. Having conciliated the matter, the Commissioner issued a Certificate of Outcome recording, inter alia, that the dispute between the parties “incorporates whistleblowing and discrimination regarding the disclosure of information.” Consequently, the CCMA referred the matter to this court for adjudication and on 20 May 2019 the applicant filed his statement of claim. In terms of the statement of claim, the applicant sought the following order:

“46.1 reinstatement with full back pay; alternatively

46.2 maximum compensation of 24 months’ remuneration in the event that this Court finds Landman’s dismissal to be automatically unfair, alternatively 12 months’ remuneration as compensation in the event that this Court finds Landman’s dismissal to be substantively and/or procedurally unfair;

46.3 costs of suit, including the cost of counsel; and

46.4 further and/or alternative relief.”

[6] In response to the applicant’s statement of claim, the respondent filed its response on 5 June 2019 dealing extensively with the allegations set out in the applicant’s claim. The respondent prayed for the dismissal of the applicant’s claim.

[7] On 16 September 2020, the applicant filed his Notice of Amendment in terms of which the applicant sought to delete his statement of claim in its entirety and replace it with the proposed amended statement of claim. In terms of the amended statement of claim, the applicant seeks the following order:

“616.1 reinstatement with full back pay;

616.2 alternatively to 616.1 above: -

616.2.1 in terms of the provisions of Section 4(1B)(b) of the PDA, payment of the amount of R61 668 473.00 alternatively R109 148 767.00; and

616.2.2 maximum compensation of 24 months’ remuneration in the event that this Court finds Landman’s dismissal to be automatically unfair;

616.2.3 alternatively to 616.2.1 and 616.2.2 above, 12 months’ remuneration as compensation in the event that this Court finds Landman’s dismissal to be substantively and/or procedurally unfair.

616.3 costs of suit on the attorney and client scale, including the costs of counsel; and

6.1.6 further and/or alternative relief.”

[8] The respondent objected to the applicant’s Notice of Amendment. The respondent advanced five grounds of objection:

8.1 That the proposed amendment is not an amendment but amounts to a complete substitution of the applicant’s statement of claim.

8.2 Secondly, the proposed amendment would be in contravention of Rule 6 of this court’s Rules as it is not concise and also does not clearly set out the material facts upon which the applicant relies.

8.3 Thirdly, the amended statement of claim is vague and embarrassing. As a result, the respondent would be unable to respond to many of the allegations contained therein.

8.4 Fourthly, the respondent argues that there was excessive and inexplicable delay in seeking the amendment sought by the applicant.

8.5 Lastly, the respondent argued that the proposed amendment is clear abuse of the court process as it is not an amendment but a complete

substitution of the applicant’s statement of claim.

[9] Pursuant to the respondent’s objection, the applicant instituted the current application before this court in accordance with Rule 11, seeking an order that the application for leave to amend its statement of claim be granted. I now turn to set out the arguments advanced by the parties in support of their respective cases.

Applicant’s Submissions

[10] According to the applicant, the proposed amendment to his statement of claim will not prejudice the applicant by the manner or substance of the notice of amendment. In the event that the respondent is prejudiced, the prejudice is not such that the proposed amendment should be refused. The applicant further argues that the proposed amendment is sought bona fide by the applicant. Moreover, the amendment was anticipated by the respondent. To bolster this submission, the applicant argues that the time taken by the applicant to proceed with the notice of amendment is extensively explained, therefore, there is a clear lack of mala fide on its part.

[11] The applicant concedes that the notice of amendment seeks to substitute the statement of claim and that the amendment is substantial. However, the applicant argues that the mere fact that he seeks to substitute the statement of claim does not mean that he does not seek to amend it. To substantiate this submission, the applicant submits that the manner in which the applicant has sought to amend his statement of claim cannot per se occasion any prejudice to the respondent.

[12] The applicant contends that the respondent has failed to indicate the prejudice it will suffer if the amendment is permitted. The mere fact that the respondent would, by virtue of the amendment, have to defend a new substantial claim for damages in terms of the Protected Disclosure Act 26 of 2000, is not prejudicial to the respondent to such an extent as to preclude the granting of the amendment.

[13] Dealing with non-compliance with Rule 6 of this court’s Rules, the applicant concedes that the intended statement of claim is considerably lengthy compared to the initial statement of claim. However, he submits that the content of the intended statement of claim is, in the particular circumstances, clear and concise statements of the material facts so as to enable the respondent to respond thereto. Accordingly, the applicant submits that the objection is meritless.

[14] With regards to what the respondent characterizes as the new objection (i.e. that the applicant’s claim for damages is excipiable) the applicant argues that this ground was not raised in the respondent’s objection and therefore ought not to be entertained by this court. In addition, in the event that the new objection is considered by this court, the applicant submits that the objection is misplaced as his claim is not premised on a contractual claim for damages. His claim is a distinct statutory claim for damages in terms of the provisions of section 4(1B) (b) of the Protected Disclosures Act 26 of 2000.

Respondent’s Submissions

[15] Initially, the respondent raised five grounds of objection to the intended amendment of the applicant’s statement of claim. However, in its heads of argument the respondent relies on two main arguments, being:

15.1 The claim for damages is excipiable; and

15.2 The amended statement of claim fails to comply with the provisions of Rule 6(1)(b)(ii) of this court’s Rules.

[16] In relation to the first ground of objection, the respondent submits that if a claim to be introduced is excipiable, the amendment ought to be refused. The respondent argues that the claim of the applicant is not sustainable in law.

[17] The respondent also submits that the amounts claimed by the applicant being R62 million and R109 million are simply not sustainable in law as the maximum damages that can be claimed for breach of an indefinite contract of employment is the wages for the period required lawfully to terminate the contract.

[18] According to the respondent, the applicant is limited in any damages claim to the wages or salary for the notice period which had to be granted. Therefore, there is no basis for the applicant to claim that he would have been employed continuously from 24 January 2019 to December 2030. Consequently, the respondent argues, there is no basis to claim damages for 11 years.

[19] The respondent also takes issue with the length of the intended statement of claim. According to the respondent, it is 199 pages long and therefore cannot be “clear” or “concise”, nor can it be said that it states only the material facts. As a result, the intended statement of claim does not comply with Rule 6 of this court’s Rules. Consequently, the respondent is prejudiced by the proposed amendment. The respondent points out that:

19.1 The excessive prolixity of the statement of claim unnecessarily increases the legal costs in relation to the matter.

19.2 To put up so much factual detail in pleadings, which are supposed to be a road map of the issues, can only lead to bloated and unfocused

litigation which will be to the prejudice not only of the parties, but also an abuse of the legal processes of this court.

19.3 The applicant’s proposed amendment is a species of abuse of process as it does not assist the court or the parties in ascertaining the true nature of the dispute.

19.4 According to the respondent, the amendment should be disallowed, with costs.

Application of the Law to the Facts

[20] Amendment of pleadings in our law has always been a contested terrain. It is a constant strife between two competing rights, namely; a right for one party to amend its pleadings on the one side, where such amendment is not mala fide, and a right by the other party to object to the amendment on the other side, where such amendment has a potential to prejudice that other party.[1]

[21] As held in the matter of Cross v Ferreira,[2] the primary object of allowing amendments is “to obtain a proper ventilation of the dispute between the parties, to determine

the real issues between them, so that justice may be done”. This should be contrasted with the court’s inclination to disallow the amendment if such is not made in good faith or done with the sole purpose of prejudicing the other party or in cases where obvious injustice to the other party would result if the amendment is allowed.[3]

[22] In Moolman v Estate Moolman,[4] the court held that:

“....... The practical rule adopted seems to be that amendments will always be allowed unless the application to amend is mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs or in other words unless the parties cannot be put back for the purposes of justice in the same position as they were when the pleading which it is sought to amend was filed.”

[23] The application before this court does not suggest that the applicant’s intended amendment is occasioned by mala fides on his part and I also do not understand the respondent to be making that case. There is no evidence before this court for it to conclude that the applicant’s intended amendment is occasioned by mala fides. To the contrary, the purpose of the amendment is extensively explained in the applicant’s papers. It is further important to bear in mind that an amendment may be granted at any stage of the proceedings prior to a judgment being handed down.

[24] It is common cause that the applicant’s proposed amendment is indeed considerably lengthy. However, that in itself is not a ground to refuse the amendment, nor does it automatically prejudice the respondent. The need to amend or correct pleadings is part and parcel of the litigation process, hence the provision for this in the court’s Rules.

[25] In amendment applications, the applicant must persuade the court that the proposed amendment is worthy of consideration and introduces a triable issue. The court must then weigh the reasons or explanation given by the quester for the amendment against the objections raised by the opponent and where the proposed amendment will prejudice the opponent or would be excipiable, the amendment should be refused.[5] I am of the view that the issues introduced by the applicant are triable and relevant for the proper ventilation of the dispute

between the parties.

Exception

[26] In Trans-Drakensburg Bank v Combined Engineering (Pty) Ltd[6] the court said:

“Having already made his case in his pleadings, if he wishes to change or add to this, he must explain the reason and show prima facie that he has something deserving of consideration, a triable issue, he cannot be allowed to harass his opponent by an amendment which has no foundation. He cannot place on record an issue of which he has no supporting evidence where evidence requires or save perhaps in exceptional circumstances, introduce an amendment which would make the pleading excipiable.”

[27] In Telemetric v Advertising Standards Authority South Africa[7] it was held:

“Exceptions should be dealt with sensibly. They provide a useful mechanism, to weed out cases without legal merit. An over-technical approach destroys their utility.”

[28] It is trite that the excipient bears the onus of persuading the court that upon every interpretation which the pleading can reasonably bear, no cause of action is disclosed. The question to be asked in the present case is whether the applicant has not pleaded such material facts that upon every interpretation its statement of claim can reasonably bear, no cause of action is disclosed.

[29] The respondent argues that the applicant’s claim for damages is excipiable as it is not sustainable in law. Suffice it to say that if the excipiability of the pleading is merely arguable or can be cured by furnishing of particulars, then it is proper to grant the amendment where the other considerations are favourable.[8] That is not the end of the road for the objector as he or she can simply file an exception to the pleading at an opportune stage.[9] It is not the respondent’s case that the objection it has raised with regards to the damages claimed in the statement of claim is not curable. In view of the foregoing, this ground also cannot stand.

[30] A simple approach that will allow the parties to ventilate themselves at trial is sufficient. Even if a particular pleading would ordinarily be excipiable, this does not signal the end of the road for the excipient. The excipient has an obligation to comply with the provisions of Rule 23 (1) by, for example, requiring the applicant to remove the cause of compliant before excepting to such a pleading.[10]

Prejudice

[31] The respondent linked the issue of the length of the intended statement of claim and the non-compliance with Rule 6 of the Rules of this court with the prejudice it will suffer if the amendment is permitted. I find the arguments of the respondent on this score to relate more to inconvenience rather than prejudice. In this regard, I agree with the submission of the Counsel for the applicant that the manner in which the applicant has sought to amend his statement of claim cannot per se occasion prejudice on the respondent. To my mind, any prejudice to the respondent, if any, in the circumstances of this case can be cured by an appropriate cost order. In addition, I am of the view that the interest of justice will be better served if the amendment is permitted to allow the parties to ventilate the disputes between them properly and to reach finality in the matter.

[32] Furthermore, our law permits the introduction of a new cause of action through an amendment,[11] although in this case I am satisfied that the applicant’s case has at all material times centered around a protected disclosure.

That being the case, section 4 of the Protected Disclosures Act 26 of 2000 becomes crucial. In relevant parts this section states:

“(1B) If the court or tribunal, including the Labour Court is satisfied that an employee or worker has been subjected to or will be subjected to an occupational detriment on account of a protected disclosure, it may make an appropriate order that is just and equitable in the circumstances, including-

(a) payment of compensation by the employer or client, as the case may be, to that employee or worker;

(b) payment by the employer or client, as the case may be, of actual damages suffered by the employee or worker; or

(c) an order directing the employer or client, as the case may be, to take steps to remedy the occupational detriment.

…”

[33] On a proper consideration of the section above, actual damages suffered as referred to in section 4(1B) (c) is not capped at any amount and/or fixed period. The respondent’s submission that the applicant’s claim is excipiable because the maximum damages that an employee is entitled to receive for wrongful dismissal is the salary for the notice period does not accord with the provisions of section 4 of the Protected Disclosure Act. Section 4 implores this court to make a just and equitable order for payment of actual damages suffered by the employee. Accordingly, I do not agree with the respondent that the applicant’s claim is capped for the notice period and therefore excipiable as it exceeds the notice period. However, this is fairly arguable and the best forum to argue it is rather the trial court itself. The final arbiter of the applicant’s actual damages is this court.

[34] In the circumstances of this particular case, I am of the view that the amendment should be allowed to enable the parties to ventilate

themselves at trial.

[35] Having said the above, I now turn to consider the issue of costs.

Costs

[36] The applicant seeks costs against the respondent on the punitive scale of attorney and client. The basis for this costs order, the applicant argues, is that the respondent’s opposition of the amendment is frivolous. According to the applicant this is so because:

36.1 The respondent initially raised five purported grounds of objection, which grounds the respondent persisted with in its answering

affidavit opposing the amendment.

36.2 The applicant’s heads of argument which were served and filed on 28 January 2021 dealt extensively with all five of the grounds of objection raised by the respondent.

36.3 Only on 18 June 2021 did the respondent abandon four of the purported grounds of objection and impermissibly raised a new ground not stated in the respondent’s notice of objection.

[37] Premised on the above, the applicant argued that a punitive costs order against the Respondent is warranted.

[38] These submissions by the applicant requires careful consideration. The primary principles governing the award of costs are: (a) it is in the discretion of the court, whether or not to award costs, and (b) costs follow the results, meaning that costs are awarded to a successful party. However, in Zungu v Premier o the Province of KwaZulu-Natal and Others,[12] the Constitutional Court endorsed the approach that the general principle that costs follow the result does not apply in employment

matters. Since then, this court and the Labour Appeal Court have accepted the well-established principle that in employment matters,

costs do not necessarily follow the result.

[39] The principles governing punitive costs are eloquently set out in Maribatsi v Minister of Police and Another (Maribatsi),[13] and are well-established. The court in Maribatsi held that:

“[13] It has generally been said in several of the cases that the Court will issue a cost award on attorney and client scale as a matter of showing its displeasure against a litigant’s objectionable conduct…

[14] In determining whether the behaviour of a litigant is objectionable, the Court will have regard to the nature of the litigant’s

conduct. As stated in Telkom SA SOC Limited and Another v Blue Label Telecoms Limited and Others, costs are ordinarily on the party and party scale. The Court will in the exercise of its discretion and in exceptional circumstances, award costs on a punitive scale”

[40] In casu, the applicant is seeking a cost order against the respondent on a punitive scale of attorney and client. The legal position in relation to punitive costs is that it is primarily aimed at punishing a litigant who is in the wrong due to the manner in which he or she approached litigation and to deter such future conduct by prospective litigants. Elaborating on this approach Erasmus Superior Court Practice,[14] states:

“In some of the cases it has been said that the court makes an order of attorney and client costs in order to mark its disapproval of the conduct of the losing party. This terminology suggests that an award of attorney and client simply as punishment does not, however, supply a complete explanation of the grounds on which the practice rests; something more underlies it than the mere punishment of the losing party. On the other hand, the order cannot be justified merely as a form of compensation for damages suffered. The true explanation of awards of attorney and client costs not expressly authorized by statute is that, by reason of special consideration arising either from the circumstances which give rise to the action or from the conduct of the losing party, the court in a particular case considered it just, by means of such an order, to ensure more effectually than it can do by means of a judgment for party and party costs that the successful party will not be out of pocket in respect of the expenses caused to him by the litigation.”

[41] Having regard to the above principles, I form the view that this case is not one which warrants a punitive costs order. There is no evidence placed before this court evidencing intentional, reckless and/or outrageous disregard of the applicant’s rights by the conduct of the respondent. Moreover, I could not find anything objectionable in the manner in which the respondent conducted itself in this matter. Lastly, there are no exceptional circumstances in this case warranting an award of costs on a punitive scale.

[42] For the reasons set out above, in my view, the circumstances of the present matter do not warrant the award of cost as prayed for by the applicant.

In the premises, I make the following order:

1. The applicant is granted leave to amend his statement of claim in accordance with the notice of intention to amend dated 16 September 2020.

2. The applicant is directed to effect the aforesaid amendment within ten (10) days from the date of the order.

3. Each party is to pay its own costs.

NINDI AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Adv L Hollander

Instructed by: Barter

Mckellar

For the Respondent: Adv Redding SC

Instructed by: Edward

Nathan Sonnenbergs Inc

[1] DH Horwarth v Fargoworx Investment (Pty) Ltd & Another [2018] ZAECGHC 144 at par 4.

[2] 1950 (3) SA 443 (CPD) at 447.

[3] Supra Horwarth at par 4.

[4] 1927 CPD 27 at 29; See also Four Tower Investments (Pty) Ltd v Andres Motors 2005(3) SA 39 (NPD) at par 15.

[5] Supra Horwarth at par 13.

[6] 1967(3) SA 632(D) at 641.

[7] 6 2006 (1) SA 461 (SCA).

[8] Supra Horwarth at par 28.

[9] Ibid.

[10] Supra Horwarth at par 30.

[11] Trans-Drakensburg Bank Ltd (Under Judicial Management) v Combined Engineering (Pty Ltd and Another 1967 (3) SA 632 (D) at 643C.

[12] 2018 (6) BCLR 686 (CC)

[13] [2020] ZAGPJHC 150.

[14] Van Loggerenberg: Erasmus Superior Court Practice volume 2 (second edition) page G5 – 21.