Moshou v Truworths Limited t/a Truworths (5188/2010) [2013] ZAFSHC 236 (21 November 2013)

IN

THE HIGH COURT OF SOUTH AFRICA FREE STATE DIVISION,

BLOEMFONTEIN

Case No: 5188/2010

In the matter between

ISHMAEL

MOLEHE MOSHOU........................................................................................Plaintiff

and

TRUWORTHS LIMITED t/a TRUWORTHS.................................................................Defendant

JUDGMENT BY: POHL, AJ

HEARD ON: 1 NOVEMBER 2013

DELIVERED ON: 21 NOVEBER 2013

INTRODUCTION

[1] Plaintiff in this matter issued summons against the defendant in which he claims an amount of R1 552 000,00 from the defendant. There were previous exceptions filed by the defendant against the plaintiff’s particulars of claim, after which the plaintiff amended his particulars of claim. After amending the particulars of claim the defendant once again excepted against two of the three claims contained in the plaintiff’s particulars of claim. The exceptions, which will be dealt with in more detail hereunder, were aimed at claim 1 and claim 2 of plaintiff’s particulars of claim.

THE

PLEADINGS

[2] The relevant portion of plaintiff’s claim 1 as it appears from the particulars of claim, reads as follows:

“3.

On or about 15 December 2006, defendant appointed plaintiff as employee in defendant’s clothing shop at Thaba ‘Nchu, Free State Province as appears from annexure “A” hereto, namely the appointment as accepted by plaintiff.

4.

In terms of annexure “A” above:

4.1 plaintiff was appointed as service desk consultant;

4.2 plaintiff was appointed on probation. The period of probation lapsed and plaintiff’s appointment became permanent. At all relevant times hereto, plaintiff was in the permanent employ of defendant.

5.

Plaintiff was appointed in terms of the rules of defendant until the age of 65. Plaintiff’s appointment was therefore a full time appointment until plaintiff would reach the age of 65.

6.

It was an express, alternatively and(sic) implied term of plaintiff’s agreement of employment (contract):

6.1 that his services would only be terminated (including any suspension) if done lawfully.

CLAIM 1:

7.1 During February or March 2008, defendant accused plaintiff orally of theft of approximately R118 000,00 in cash from defendant’s shop where plaintiff was working.

7.2 On 10 March 2009 defendant suspended plaintiff with immediate effect on full pay and on full benefits as appears more fully from annexure “B” hereto.

7.3 On 3 April 2008, defendant gave notice of a disciplinary hearing, charging plaintiff with:

7.3.1 misconduct: gross dishonesty (charge 1) or

7.3.2 misconduct: gross negligence (charge 2).

7.4 The full particulars of the allegations levelled against plaintiff appear from annexure “C” hereto being the notification to appear at the disciplinary hearing on 4th April 2008.

7.5 At conclusion of the disciplinary hearing, defendant terminated plaintiff’s contract as appears more fully from annexure “D” hereto being a letter of dismissal.

8.

Defendant and its officials, representing defendant at all relevant times, and more particular:

8.1 in suspending plaintiff and;

8.2 conducting the disciplinary hearing against plaintiff;

were at all relevant times aware that plaintiff was not guilty of any of the charges against him, did not believe in the truth thereof and knew that there were no grounds for charging plaintiff with misconduct and terminating his contract.

9.

In terminating plaintiff’s contract on 4th April 2008 with the said knowledge that he is not guilty of and did not commit any misconduct, defendant:

9.1 acted intentionally, wrongfully and unlawfully and;

9.2 intentionally, wrongfully and unlawfully repudiated the contract (agreement of employment) between plaintiff and defendant.

10.

In conclusion, defendant’s conduct constituted an unlawful breach of agreement and a repudiation of the agreement of employment between the parties. Plaintiff accepts defendant’s repudiation of the agreement of employment and claim damages.

11.

Also, as a result of defendant’s unlawful repudiation of plaintiff’s employment contract, plaintiff suffered damages in the amount of R1 152 000.00, made up as follows:

Remainder of employment agreement until age 65

(32 years x R3 000,00 per month) R115 200.00”

[3] After properly giving the plaintiff notice in terms of the provisions of rule 23(1) that plaintiff’s particulars of claim is alleged to be vague and embarrassing and lack averments necessary to sustain a cause of action, the plaintiff excepted to claims 1 and 2 of plaintiff’s particulars of claim, as amended. The first exception against claim 1 of plaintiff’s particulars of claim reads as follows:

“1. The Plaintiff contends, in paragraph 6 of the Amended Particulars, that it was an express, alternatively an implied term of the

Plaintiff’s employment contract with the Defendant that his services would only be terminated (including any suspension) if done “lawfully”.

2. The Plaintiff contends further, in paragraphs 7 - 8 of the Amended Particulars, that he was dismissed following a disciplinary hearing where he was found guilty on a charge of dishonesty, despite the fact that there was no merit in the charges against him and that the Defendant was aware of this.

3. The Plaintiff contends further, in paragraph 9 of the Amended Particulars, that in terminating his employment contract with the knowledge that he is not guilty of and did not commit any misconduct, the Defendant “acted intentionally, wrongfully and unlawfully” and “intentionally, wrongfully and unlawfully repudiated the [employment] contract”.

4. When regard is had to the Plaintiff’s employment contract (attached as annexure (“A”) to the Amended Particulars), it is evident that the contract does not contain an express term to the effect that the Plaintiff’s employment would only be terminated if done “lawfully”, as alleged.

5. In the premises, the Plaintiff can only rely on an alleged implied contractual term to that effect.

6. The Plaintiff’s purported reliance on an implied contractual term that his employment would only be terminated if done “lawfully”, is however bad in law in that such a term is not implied as a matter of law into contracts of employment of the kind relied upon by the Plaintiff.

7. When regard is had particularly to paragraph 8 of the Amended Particulars, it appears that, in this instance, the alleged “unlawfulness” of the Defendant’s termination of the Plaintiff’s employment contract lies therein that the Defendant allegedly terminated the Plaintiffs employment for an unfair reason (i.e. finding the Plaintiff guilty of dishonesty when in fact he was not).

8. Apart from referring to the reasons for his dismissal as aforesaid, no other factual basis for the alleged “unlawfulness" of the Defendant’s termination of the Plaintiff’s employment contract, appears from the Amended Particulars.

9. In the light of the aforegoing, it is patent that the Plaintiff’s allegation that he has been “unlawfully” dismissed, is in fact no other than an allegation that he has been dismissed for an unfair reason and possibly, in accordance with an unfair procedure.

10. Such claim should, in terms of the Labour Relations Act, No. 66 of 1995 (“the LRA”), have been referred to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) as an unfair dismissal dispute instead.

11. The attempt by the Plaintiff to pursue a contractual damages claim for unfair dismissal in the High Court (based on an alleged implied contractual right not to be “unlawfully” dismissed), is a blatant attempt to circumvent the LRA and should not succeed.

12. In the premises, the Amended Particulars, insofar as Claim 1 is concerned, fail to make out a coherent or ascertainable cause of action, or to plead facts capable of sustaining a cause of action; ...”

[4] Mr Zazeraj, who appeared for the defendant, referred the court to the case of South African Maritime Safety Authority v McKenzie 2010 (3) SA 601 (SCA) wherein the court stated at 610 paras [12] - [13]:

“[12] In our law as it stands at present the usual test for the existence of a tacit term is that of the interfering bystander who asks what is to happen in the particular situation and receives the answer: ‘Of course X will be the position. It is too obvious for us to say so.’ The application of that test in relation to the term pleaded on behalf of Mr McKenzie is destructive of the contention that his employment contract is subject to that term. I have little doubt that the bystander’s query as to what would happen if Mr McKenzie was unfairly dismissed would have attracted the response: That is dealt with in the LRA. We don’t need to provide for it’, rather than the unequivocal and mutual agreement that is the necessary cornerstone of a case founded on a tacit term. If the question had been posed in terms that suggested there might be a contractual entitlement to the damages claimed in this case that might have been welcomed by Mr McKenzie, but I doubt that SAMSA would have agreed.

[13] That leaves, as the foundation for the pleaded allegation, only the possibility of an implied term properly so called. Such a term could either be said to flow from the provisions of s185 of the LRA dealing with unfair dismissal or could lie in a development of the common law in accordance with section 39(2) of the Constitution. In argument the appellant based his case on the first of these and it is that argument that I now address. In doing so I first address some issues of principle.”

And at 612, para [16]:

“[16] Where a statute creates both a right and a means for enforcing that right the position is that:

‘We must look at the provisions of the Act in question, its scope and its object, and see whether it was intended when laying down a special remedy that that special remedy should exclude ordinary remedies. In other words, we have no right to assume, merely from the fact that a special remedy is laid down in a statute as a remedy for a breach of a right given under statute, that other remedies are necessarily excluded.’

If on a proper interpretation of the statute in question the legislature has confined a person harmed by a breach of the right conferred

therein to the statutory remedy then resort to other means of enforcement is excluded. Accordingly both the scope of the right

itself and the means of enforcing that right are determined by the intention of the legislature as ascertained on a proper interpretation of the legislation. It follows from the authorities mentioned in paragraph 7 of this judgment that it is now clearly established that in order to enforce the statutory right not to be unfairly dismissed as embodied in section 185 of the LRA an injured party must have resort to the tribunals established under the LRA, being either the CCMA or in some instances the Labour Court.”

[5] It must be born in mind that this exception does not raise the question as to the jurisdiction of this court. This court always has jurisdiction over contractual matters. The question is really whether or not the plaintiff’s remedy lies within the parameters of the Labour Relations Act. If so, the persuance of his remedy lies within the forums created by the Labour Relations Act and not in this court.

[6] From the contract of employment annexed to the plaintiff’s particulars of claim, it is clear that there is absolutely no express term to the effect that his services could only be terminated if done “lawfully”. The plaintiff does not rely in his particulars of claim on a tacit term, but even if he did so, I find that applying the interfering bystander test as enunciated by the Supreme Court of Appeal in the McKenzie decision, supra, the answer of the said interfering bystander would be that the remedy would lie within the structures created by the Labour Relations Act.

“188 Other unfair dismissals

(1) A dismissal that is not automatically unfair, is unfair if the employer

fails to prove-

(a) that the reason for dismissal is a fair reason-

(i) related to the employee's conduct or capacity; ...”

It would thus appear that even on that basis, the plaintiff’s claim and/or remedy lies within the structures of the Labour Relations Act.>

[8] Based on the McKenzie decision, supra, I also find that there is no basis for inferring the alleged implied term that the dismissal would only be done if done “lawfully”. On the contrary, if one reads the totality of the plaintiff’s particulars of claim it is clear that what the plaintiff in effect alleges by the allegation that the dismissal could only be done if done lawfully, is nothing other than the allegation to the effect that he should not be dismissed unfairly. Once that is the case and I find that it is so, then the plaintiff’s remedy lies within the four corners of the Labour Relations Act.

SECOND EXCEPTION: CLAIM 2

[10] This brings me to the defendant’s second exception to plaintiff’s claim 2. In this regard it is once again necessary to have regard to the pleadings.

[11] Plaintiff’s claim 2 may be described as one of malicious prosecution. Claim 2 reads as follows:

“12.

12.1 Defendant also on 10 March 2008 laid criminal charges against plaintiff with the South African Police Services at Selosesha, district Thaba ‘Nchu.

12.2 The complaint was that plaintiff stole cash in the amount of R118 000.00 at the shop in Thaba ‘Nchu where plaintiff was employed.

12.3 While initiating the criminal investigation against plaintiff, defendant knew that there were no grounds on which plaintiff could ever be found guilty.

12.4 When laying this charge and giving this false information, defendant had no reasonable or probable cause for so doing, nor did they have any reasonable belief in the truth of the information given.

12.5 Defendant therefore wrongfully and maliciously set the law in motion by laying a false charge of theft against plaintiff with the South African Police Services at Selosesha by giving them false information, namely that plaintiff stole an amount of approximately R118 000.00 from defendant.

13.

As a result of defendant’s conduct, plaintiff was arrested and held in custody for seven days before he was released.

14.

No criminal trial took place and the charge against plaintiff was withdrawn by defendant at the Magistrates Court at Thaba ‘Nchu

and with the police at Thaba ‘Nchu on or approximately May 2008.

Plaintiff was therefore maliciously prosecuted by defendant.

15.

As a result of defendant’s (unlawful) conduct, plaintiff suffered damages in the amount of R300 000.00 for deprivation of his freedom, discomfort and contemelia."

In essence the defendant’s exception to this claim is that it is excipiable as it fails to disclose of a cause of action alternatively

is vague and embarrassing because, according to defendant, plaintiff pleads his own conclusions as to opposed to material facts he would have to prove in order to sustain the cause of action. According to defendant it thus lacks the requisite particularity to allow the defendant to plead thereto in a meaningful manner as defendant does not know which case it has to meet and defendant would thus be prejudiced if the exception is not upheld.

[12] It is apposite to quote the following dictum of Gamble J in M N v A J 2013 (3) SA 26 (WCC), relying on Suid-Afrikaanse Onderlinqe Brand- en Algemene Versekerinqsmaatskappy Bpk v Van den Berg en 'n Ander 1976 (1) SA 607E:

“[24] While pleadings must be drafted carefully, a court should not read them pedantically nor should it over-emphasise precise formalistic requirements: the substance of the allegations should be properly considered.”

[13] When dealing with an exception I am mindful of the trite legal principle that in order to succeed an excipient has a duty to persuade the court that upon every interpretation of the pleading in question, and in particular the document on which it is based, can reasonably bear, no cause of action or defence is disclosed: failing this, the exception ought not to be upheld. It is thus furthermore apposite to refer to the dictum of CJ Claassen J in the decision SANAN v Eskom Holdings 2010 (6) SA 638 (GSJ) at page 645D:

“[21] It would seem to me that the nature of the defence raised by a special plea or exception is more important than the procedure

adopted. It is the nature of such defence which would determine whether or not evidence is required, and whether or not the defence

should have been raised in initio litis, or whether it can be raised on appeal. How the defence is raised is of lesser importance than the grounds for the defence and point in time that it is raised. It is trite law that an exception which can be cured by evidence at the trial will not succeed. It is also trite that an exception will only succeed if it held good on any interpretation of the pleading. Thus, whether the defence is raised as a special plea or by way of exception will matter little if evidence will cure the defect, or if a proper interpretation of the pleading will cure the defect.”

[14] If one has regard to the totality of the particulars of claim in casu, and all the allegations contained therein, I cannot find that it lacks sufficient particularity and/or allegations to the extent that it is vague and embarrassing and/or that it does not disclose a cause of action. I am thus also not persuaded that on every interpretation of the relevant claim (claim 2), it does not disclose a cause of action. The exception raised against plaintiff’s second claim should therefore be dismissed.

COSTS

[15] The last question that falls to be determined by this court is the question with regards to the appropriate order as to costs. Mr Heymans who appeared for the plaintiff submitted to the court that if I should uphold one of the exceptions and dismiss the other exception, then each party should pay its own costs.

[16] Mr Zazeraj however submitted that even on that scenario, the plaintiff was substantially successful. His argument was that the plaintiff could have amended its pleading, but chose not to do so and chose to argue the exception. Both counsel also submitted that in exercising my discretion, I should have regard to the extent of the monetary values of the relevant claims so decided in this exception.

[17] In this regard it must be noted that claim 1 is by far the largest claim of plaintiff's three claims. Claim 1 is for R1 152 000.00, Claim two is for R300 000.00.

[18] Although the defendant only succeeded with one of the two exceptions, it is by far the larger of the two claims. I agree with Mr Zazeraj that in all the circumstances of the case, the defendant was substantially successful. There is thus no reason why the order as to costs should not be awarded to the defendant.

ORDER:

[19] In the premises I make the following Order:

1. The exception to claim 1 (dated 11 September 2013), succeeds.

2. The exception to claim 2 (dated 11 September 2013), is dismissed.

3. The plaintiff is granted leave, if so advised, to amend claim 1 of his particulars of claim within 21 days of date of this order.

4. Should the plaintiff fail to comply with 4 above, the defendant is granted leave to apply, without further notice to plaintiff, for an order dismissing the said claim.

5. The plaintiff must pay the defendant's costs.

L. le R. POHL, AJ

On behalf of plaintiff: Adv. P. J. Heymans

Instructed by: Mphafi Khang Inc

BLOEMFONTEIN

On behalf of defendant: Adv. L. Zazeraj

Instructed by:

Lovius Block