National Union of Metalworkers of South Africa and Others v Triple M Mining (Pty) Ltd (J1592/21) [2023] ZALCJHB 239 (11 August 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J1592/21

In the matter between

NATIONAL UNION OF METALWORKERS OF SOUTH AFRICA First Applicant MEMBERS LISTED IN ANNEXURE “A” Second to Further Applicants and TRIPLE M MINING (PTY) LTD Respondent

Heard: 3 August 2023

Delivered: 11 August 2023

Summary: Leave to amend a statement of response – court has wide a discretion – the object is to do justice between the parties – no penalty can be claimed out of a mistake made in drafting as if is a match.

JUDGMENT

NKUTHA-NKONTWANA J

Introduction

[1] This is an interlocutory application wherein the respondent seeks leave to amend its statement of response in the main action. The bone of contention between the parties pertains to the respondent’s plea to the applicants’ statement of claim wherein it records that certain averments are noted, specifically in paragraphs 105, 107, 108, 110, 112, 118 and 131. The applicants contend that the noting of the averments in its statement of claim constitutes admission of same. However, the respondent refutes the applicants’ contention based on the context and the wording of its responses.

Background

[2] On 14 December 2021, the applicants instituted an action, challenging the procedural and substantive fairness of the second to further applicants’ (applicant employees) dismissal. The applicant employees were dismissed on 2 September 2021, ensuing from a conviction for, inter alia, participating in an unprotected strike and failure to carry out instructions. The applicants delivered their statement of claim

on 14 December 2021 and the respondent delivered its statement of response on 29 December 2021.

[3] The controversy that led to this application only emerged during the pre-trial deliberations. The applicants refused to accept the respondent’s contention that the noting of the averments in the relevant paragraphs on the statement of claim amounted to the denial of same. They insisted the respondent should seek leave to amend its statement of response.

Legal principles and application

[4] It is well accepted that a Court hearing an application to permit an amendment has a wide discretion which should be exercised judicially.[1] The locus classicus is Moolman v Estate Moolman and another.[2] There the Court stated:

‘[T]he 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.’

[5] The principal objective when exercising a discretion in whether to allow an amendment is a proper ventilation of the real dispute between the parties.[3] This was well expounded in Whittaker v Roos and Another; Morant v Roos and Another (Whittaker),[4] where the following observations were made:

‘This Court has the greatest latitude in granting amendments, and it is very necessary that it should have. The object of the Court is to do justice between the parties. It is not a game we are playing, in which, if some mistake is made, the forfeit is claimed. We are here for the purpose of seeing that we have a true account of what actually took place, and we are not going to give a decision upon what we know to be wrong facts. It is presumed that when a defendant pleads to a declaration he knows what he is doing, and that, when there is a certain allegation in the declaration, he knows that he ought to deny it, and that, if he does not do so, he is taken to admit it. But we all know, at the same time, that mistakes are made in pleadings, and it would be a very grave injustice, if for a slip of the pen, or error of judgment, or the misreading of a paragraph in pleadings by counsel, litigants were to be mulcted in heavy costs. That would be a gross scandal. Therefore, the court will not look to technicalities, but will see what the real position is between the parties.’ [Own emphasis]

[6] In Sondorp and Another v Ekurhuleni Metropolitan Municipality,[5] the Labour Appeal Court (LAC), confronted with the amendment of a pleading, emphasised that:

‘…what the court should be concerned about is ensuring that as many relevant facts and material as possible are placed before it, to facilitate and expedite the determination of the real issue between the parties. In Myers v Abramson[6] the Court stated:

“The attitude of the Courts is that pleadings are made for the Court and not the Court for the pleadings (Robinson v Randfontein Estates Gold Mining Co. Ltd., 1925 AD 173 at p. 198), and in my opinion no Court would so interpret the rules, unless thereto compelled by the plain meaning thereof, as to create a situation wherein the Court loses its power to allow such amendments to the pleadings as are designed to ensure that the real issue between the parties is determined. It may well be that to allow the interposition of an application for an amendment during the hearing of an application for absolution may deprive the party applying for absolution of a tactical advantage he might otherwise enjoy over his opponent, but I do not think that this can outweigh the major concern of the Court to secure the expeditious and most direct determination of the real dispute between the parties.”’ [Own emphasis]

[7] The object of all pleadings is that a succinct statement of the grounds upon which a claim is made or resisted shall be set forth shortly and concisely.[7] In essence, the issues should be succinctly delineated so as to enable the other party to know what case has to be met.[8] Even so, the Labour Court Rules[9] do not constrain the respondent on how to respond to the averments in the statement of claim. It follows that, it is impermissible for the parties in this Court to conduct their litigation as if the Rules of this Court do not exist. This point is made eloquently in Liquid Telecommunication (Pty) Ltd v Carmichael-Brown[10] (Liquid Telecommunication) relied upon by the respondent. Van Niekerk J stated that:

‘[12] As a starting point, the Uniform Rules are not applicable to proceedings in this court. Rule 11 of the Rules of this Court provides, amongst other things, that if a situation arises for which the Rules do not provide the court may adopt any procedure that it deems appropriate (own emphasis) in the circumstances (see Rule 11 (3)).

[13] Rule 11 (3) has often been cited as a basis for applying the Uniform Rules into this court’s practice and procedure. This court has recognised that in the absence of any Rule concerned specifically with exceptions, parties may, under Rule 11, have recourse to Rule 23 of the Uniform Rules (see, for example, Volscenck v Pragma Africa (Pty) Ltd (2015) 36 ILJ 494 (LC)). But this court has never gone so far as to suggest that parties are obliged or entitled to conduct litigation in this court on the basis of the Uniform Rules. It is clear from the formulation of Labour Court Rule 11 (3) that the Uniform Rules are not a form of default procedure in this court, nor is it open to litigants and their representatives to rely selectively on the Uniform Rules in the conduct of litigation in this court. Rule 11 (3) is permissive, and provides that the court (not the parties and their representatives) may sanction the use of a procedure not contemplated by the Rules when this is appropriate. In other words, Rule 11 (3) establishes a procedural mechanism for the convenience of the court. It is not an invitation to practitioners to invoke the Uniform Rules and conduct litigation in this court on the basis that the Uniform Rules apply.’ [Own emphasis]

[8] The applicants invoke Rules 22(2) and (3) of the Uniform Rules of Court (Uniform Rules) which provide that:

‘(2) The defendant shall in his plea either admit or deny or confess and avoid all the material facts alleged in the combined summons or declaration or state which of the said facts are not admitted and to what extent, and shall clearly and concisely state all material facts upon which he relies.

(3) Every allegation of fact in the combined summons or declaration which is not stated in the plea to be denied or to be admitted, shall be deemed to be admitted…’ [Own emphasis]

[9] As a result, they contend that all the averments in its statement of case that are not unambiguously denied are deemed to have been admitted in terms of Rule 22(3) of the Uniform Rules. Hence they insisted that the respondent had to seek leave to amend its statement of response since it seeks to resile from admitted facts. The applicants’ contention is flawed as it seeks to indiscriminately import and impose Rule 22(3) based on a misconstruction of Rule 11(3) of the Labour Court Rules. Rule 6 of the Labour Court Rules is the only yardstick against which pleadings are to be measured in an action.[11] Pertinently, in Harmse v City of Cape Town[12], referred to with approval in Liquid Telecommunication[13], Waglay J (as he then was) said the following:

‘[5] Rule 6 of the Rules of this Court deals with referrals of disputes by way of a statement of claim. Rule 6(1) (b) provides that

“(1) A document initiating proceedings, known as a ‘statement of claim’ must…

(b) have a substantive part containing the following information:

(i) The names, description and addresses of the parties;

(ii) A clear and concise statement of the material facts, in chronological order, on which the party relies, which statement must be sufficiently particular to enable any opposing party to reply to the document;

(iii) A clear and concise statement of the legal issues that arise from the material facts, which statement must be sufficiently particular to enable any opposing party to reply to the document; and

(iv) The relief sought.”

[6] The statement of claim serves a dual purpose. The one purpose is to bring a Respondent before the Court to respond to the claims made of and against it and the second purpose of a statement of claim is to inform the Respondent of the material facts and the legal issues arising from those facts upon which applicant will rely to succeed in its claims.

[7] The material facts and the legal issues must be sufficiently detailed to enable the Respondent to respond, that is, that the Respondent must be informed of the nature or essence of the dispute with sufficient factual and legal particularity so that it knows what it is that the Applicant is relying upon to succeed in its claim.

[8] The Rules of this Court do not require an elaborate exposition of all facts in their full and complex detail – that ordinarily is the role of evidence, whether oral or documentary. There is a clear distinction between the role played by evidence and that played by pleadings – the pleadings simply give the architecture, the detail and the texture of the factual dispute are provided at the trial. The pre-trial conference provides an occasion for the detail or texture of the factual dispute to begin to take shape. In terms of rule 6(4)(b) the parties in the [pre-trial] conference must attempt to reach consensus on facts that are common cause, facts that are in dispute, the issues that the Court is required to decide and the precise relief claimed.

[9] Accordingly the rules of this Court anticipate that the relief claimed might not have been precisely pleaded in the Statement of Claim filed. The Rules of this Court further anticipate that the factual matters at issue will be dealt with more fully and precisely in the pre-trial conference. The rules therefore anticipate that the parties at the pre-trial conference will have dealt in much more detail not only with the factual matters but also the legal issues. The statement of claim and response thereto foreshadows this activity but is not a substitute for it. It is for this reason that the rule on pre-trial conferences provides for reaching consensus on the issues that the Court is required to decide.

[10] When an exception is raised against a statement of claim, this Court must consider, having regard to what I have said above, whether the matter presents a question to be decided which, at this stage, will dispose of the case in whole or in part. If not, then this Court must consider whether there is any embarrassment that is real and that cannot be met by making amendments or providing of particulars at the pre-trial conference stage.’ [Own emphasis]

[10] The present instance constitutes a typical case where the issues raised herein could have been dealt with during the pre-trial conference by seeking and providing further particulars. To the extent that the respondent took a prudent step in seeking leave to amend its statement of response to reflect its true intention, I fail to comprehend the applicant’s stance in staging such a vigorous opposition.

[11] Even if Rule 22(3) of the Uniform Rules were to be espoused as a guideline, it does not mean that it should be applied piecemeal to a party's averments; nor can it be applied so as to deprive a party of a defence which is plainly, though maybe sketchily, raised on the pleadings.[14] Besides, the applicants accept that this Court enjoys a wide discretion in granting amendments.

[12] Turning to the amendment sought, the crux of the applicants’ opposition is that the respondent seeks to withdraw certain admissions without accepting that it indeed made admissions, and without tendering any explanation for the withdrawal of the said admissions. I deem it superfluous to specifically deal with the proposed amendments individually in the light of the findings I have arrived at above; save to deal with one as a way of example to underscore the fact that the applicants’ impugn could have been dealt with during the pre-trial conference; alternatively, that the amendment should be allowed.

[13] The respondent seeks to amend paragraph 105 of its statement of response wherein, in response to paragraph 43 of the statement of claim wherein it is averred that a meeting on the day of the alleged strike was attended by approximately 200-250 employees, the respondent simply noted the allegations. It failed to responding to the allegations that in the attendance were few other miners, including Mr Thembe, and the duties of Mr Thembe. The applicants contend that these allegations are therefore admitted. The respondent contends that by noting these allegations it in fact denied them. To the extent that it is necessary, the respondent seeks to amend paragraph 105 by replacing it with the following:

‘None of Respondent's managers attended the meeting. Accordingly, the Respondent is unable to admit or deny the contents of this paragraph. Accordingly, the Respondent denies this, and the Applicant is put to the proof thereof.’[15]

[14] The explanation proffered by the respondent for seeking the amendment is to plead a non-admission as none of its managers attended the said meeting. In fact, most if not all impugned averments pertain to the same meeting and the resolution that allegedly emanated from this meeting. The applicants’ opposition, as stated above, is premised on the contention that the respondent seeks to withdraw the deemed admissions in terms of Rule 22(3) of Uniform Rules which find no automatic application in this Court. It follows that the authorities relied on by the applicants are distinguishable.

[15] The applicant’s objection to the amendments sought is also based on a piecemeal assail of the averments in the statement of response. The applicant failed to appreciate the context which is obvious when the statement of response is read in in its totality and as a compound single document. It is obvious from the reading of the whole statement of response that the respondent never intended to admit to the averments in question. As stated in Whittaker[16], justice between the parties is the prime objective and, accordingly, no penalty can be claimed out of a mistake made in drafting as if is a match. As such, I am inclined to allow the amendments sought in order allow a proper ventilation of the real dispute between the parties.[17]

[16] Moreover, there will be justice between the parties as the amendment will facilitate the determination of the real issues between the parties.[18] In any event, the applicants failed to point to any discernible prejudice or injustice that could not be compensated by costs and postponement as the parties are yet to conclude a pre-trial minute.[19]

Conclusion

[17] In all the circumstances, I am inclined to grant the leave to amend sought in the notice of motion in order to facilitate for an expeditious and most direct determination of the real dispute between the parties.

Costs

[18] As to the question of costs, it might have been appropriate to allow the applicants’ costs if there was evidence of prejudice occasioned a result of the amendment. However, in view of the circumstances of this matter and the fact that it was the applicants who insisted on this application based on an ill-fated stance, it is fair and equitable that each party pays its own costs.

[19] In the premises, I make the following order:

Order

1. The respondent is granted leave to amend its statement of response within 15 calendar days from the date of this order.

2. There is no order as to costs.

P. Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Jeremy Phillips of Cheadle Thompson & Haysom Inc

For the Respondent:

Adv. Rean Fourie

Instructed by:

Carel Zietsman Law

[1] See: Embling v Two Oceans Aquarium CC 2000 (3) SA 691 (C) 694G–H.

[2] 1927 CPD 27 at 29.

[3] Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd [2003] ZASCA 144; 2004 (3) SA 160 (SCA) at para 12.

[4] 1911 TPD 1092 at 1102 - 1103.

[5] [2013] ZALAC 13; (2013) 34 ILJ 3131 (LAC) at para 66.

[6] 1951 (3) SA 438 (C) at 446D-G.

[7] Rule 6(1)(b)(ii) of the Labour Court Rules provide that a statement of claim must contain a “a clear and concise statement of the material facts, in chronological order, on which the party relies, which statement must be

sufficiently particular to enable any opposing party to reply to the document…” which applies mutatis mutandis to a statement of response per Rule 6(1)(3)(b).

[8] See: Minister of Agriculture and Land Affairs and Another v De Klerk and Others [2013] ZASCA 142; 2014 (1) SA 212 (SCA) at para 39.

[9] GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court.

[10] [2018] ZALCJHB 153; (2018) 39 ILJ 1779 (LC).

[11] Liquid Telecommunication supra at paras 12 - 13.

[12] [2003] ZALC 53; [2003] 6 BLLR 557 (LC) at paras 5 – 10.

[13] Liquid Telecommunication supra fn 10 at para 15.

[14] See: Absa Bank Ltd v IW Blumberg and Wilkinson [1997] ZASCA 15; 1997 (3) SA 669 (SCA) at 674.

[15] Pleadings, p 67.

[16] Whittaker supra fn 4.

[17] East Cape Midlands College v Abdullah [2018] ZALCPE 22; [2018] 8 BLLR 788 (LC) at 791; Blaauwberg Meat Wholesalers supra at para 12; Rosenberg v Bitcom 1935 WLD 115 at 117.

[18] Trans-Drakensberg Bank Ltd (under Judicial Management) v Combined Engineering (Pty) Ltd and Another [1967] 4 All SA 105 (D) at 114.

[19] Id.