NCAWU obo Assegai and Others v Tau Mining Consultants (C 401/2009) [2010] ZALC 337 (19 March 2010)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

REPORTABLE

Case Number: C401/2009

In the matter between:

NCAWU obo ASSEGAI AND 24 OTHERS .........................................................................Applicant

and

TAU MINING CONSULTANTS .......................................................................................Respondent

JUDGMENT

MOSHOANA AJ INTRODUCTION

[1] This is an exception brought in terms of Rule 11 of the Rules of this court. The applicant made a referral on 23 June 2009 to this court. On 24 July 2009, the respondent filed and served onto the applicant a notice of exception, in which it called upon the applicant to remove an embarrassment in the statement of case. On 29 July 2009, the respondent launched these proceedings. On 3 August 2009, the applicant filed and served a notice to oppose. On 1 February 2010, the registrar issued a notice of set down to both parties for argument of the exception on 18 March 2010.

BACKGROUND FACTS

[2] This being an exception, the facts relevant to this matter are truly still at an allegation stage. The applicant alleges that 24 employees were employed as truck operators and were dismissed on 1 April 2009 as a result of operational requirements. In an affidavit, intended to support the exception, deposed to by one Christopher Jonathan Wood, the Managing director of the respondent, he testified that during or about January/February 2009, the respondent gave notice to the applicant in terms of the provisions of Section 189 of the LRA and invited the applicant to a joint consensus seeking consultation process relating to the contemplated dismissal of some of the respondent’s employees based on its operational requirements.

[3] Further, he testified that subsequent to consultations with the appropriate parties and after exhausting the joint consensus seeking process the respondent terminated the services of certain employees based on operational requirements. It was as a result of that termination that the applicant referred a dispute of alleged unfair dismissal to the CCMA. The CCMA failed to resolve the dispute, hence the referral to this court. The referral followed Form 2 of the Rules of this court. The objection is largely based on the allegations contained in certain paragraphs which I shall revert to later.

[4] It is worth mentioning at this juncture that on 5 February 2010, the Registrar of Labour Relations, acting in terms of Section 109 (2) of the LRA, cancelled the applicant, Northern Cape Workers Union (NCAWU), as a registered union. Therefore as required by Section 200 of the LRA, the applicant was no longer in a position to represent the 24 employees. Mr Swartz, a union official of National Security Commercial and General Workers Union (NASECGWU), attempted to appear on behalf of the applicant. The respondent objected hereto. Without belabouring this point, I ordered that Swartz is not properly before me. He attempted to bring a Rule 22 substitution from the bar. This attempt did not go far as there was no application to substitute as contemplated in the Rules. Such is not a kind of application that can be brought from the bar.

ISSUES REQUIRING DECISION BY THE COURT.

[5] The issue is whether in the court’s view, the statement of case is excipiable or not. In dealing with that, I will take this opportunity to examine whether in truth an exception is an appropriate route or not.

ARGUMENT

[6] Advocate Benade for the respondent argued that certain paragraphs are vague and embarrassing to a point that the respondent is prejudiced thereby and unable to respond thereto. I shall deal with the said paragraphs later.

ANALYSIS.

[7] In my view this matter also raises the question whether an exception is an appropriate route or not? If it is, whether the statement of case is excipiable or not? For convenience purposes, I shall deal with the appropriateness first. Thereafter examine whether the statement of case is excipiable or not. That I do hereunder.

Is exception procedures appropriate?

[8] The first place to seek guidance is the rules of this court. The rules do not make provision for exceptions. So it can be safely

accepted that the drafters of the rules though aware, I suppose, of the rule 23 procedure of the Uniform Rules sought to deliberately not make provision for such. Landman and Van Niekerk in Practice in the Labour Court had the following to say:

“The purpose of rules is to expedite the business of the courts...the rules of the Labour Court are a form of subordinate legislation...”

I am inclined to agree with the above statement. It seems the rule that caused or allowed previous decisions of this court to accept the procedure is rule 11

[9] Therefore, it is appropriate to quote the full text of the rule. The rule states:

Interlocutory applications and procedures not specifically provided for in other rules

(1) The following applications must be brought on notice, supported by affidavit:

(a) Interlocutory applications;

(b) Other applications incidental to, or pending, proceedings referred to in these rules that are not specifically provided for in the rules; and

(c) Any other applications for directions which may be sought from the court.

(2) The requirements in sub rule (1) that affidavits be filed does not apply to applications that deal with procedural aspects.

(3) If a situation for which this rules do not provide arises in proceedings or contemplated proceedings, the court may adopt any procedure that it deems appropriate in the circumstances.

(4) In the exercise of its powers and in the performance of its functions, or in any incidental matter, the court may act in a manner that it considers expedient in the circumstances to achieve the objects of the Act

[10] The objects of the LRA are well known. Effective resolution of labour disputes comes to mind. Before I consider previous cases of this court, I find it appropriate to attempt an interpretation of this rule. To my mind, it is only the Labour Court that may adopt any procedure and not the parties. Accordingly, it is not open to a party to the proceedings to adopt any procedure. This in my view is a proper interpretation of rule 11 (3) above. Again rule 11 (4) still leaves the adoption of a procedure in the hands of the court and not the parties. Therefore, what should happen if a party holds a view that a statement of case or response is vague and embarrassing and does not disclose a cause of action or defence? If the Labour Court was governed by the rules of the High Court, which it is not, such a party would invoke the provisions of rule 23 of the Uniform Rules. It seems to me that such a party should bring an application in terms of rule 11(3) to ask the court to adopt a procedure to deal with that situation. If I am correct in that regard, it may mean delays in resolution of labour disputes. That would be at odds with rule 11 (4).

[11] In Van Rooy v Nedcor Bank Ltd (1998) 5 BLLR 540 (LC), Mlambo J, as he then was, imported rule 23 of the Uniform Rules and held that rule 11(3) permits that importation. With respect, I differ with the approach. Firstly, it cannot be said that when his Lordship imported rule 23, from the date of his judgment, rule 23 became part of the rules of the Labour Court. The role of the courts is not to make the law but to interpret it. Secondly rule 11 (3), in my mind permits an adoption at the time, by the court, of a procedure appropriate in the prevailing circumstances. Thirdly, contrary to rule 11(3), rule 23, leaves the issue in the hands of the parties. It makes reference to the opposing party may. Therefore in terms of rule 23, the procedure already designed is there for the taking. However in rule 11(3), the adoption of a procedure is left in the hands of the court. His Lordship raised the question but did not in my view answer it directly. He said:

“[10] If one considers a statement of claim as a pleading, what recourse is there to an opposing party if the statement of claim contains vague and ambiguous particulars or is lacking in sufficient particularity to inform him of a case to meet. The rules of the Labour Court are not very helpful, save for rule 11...I cannot find

nothing in the Act, or in the rules militating, against such a procedure (rule 23 procedure) in the Labour Court. In fact rule 11 (3) permits it.” My addition in bold.

[12] His Lordship does not say an opposing party should invoke rule 23 procedure. It could be said that he says so indirectly. Therefore,

Van Rooy is not an authority to the proposition that rule 23 can be invoked at will by litigants in the Labour Court. To my mind it should not be invoked. It could be seen that his Lordship adopted that view on the understanding that the statement of claim is a pleading. The understanding was gained from comparing rule 6 (1) (b) (ii) with rule 18 (4) of the Uniform Rules. Though pound for pound, in my view, there is a significant difference. Rule 18(4) refers to a pleader and rule 6 refers to a party. Rule 6 (1) labels a statement of case as a document. I suppose, it is proper to refer to a statement of claim as a document initiating proceedings. To call it by any other name would be disregarding what the drafters chose to call it. In my view, a statement of case is not a pleading contemplated in rule 23 and so is the statement of response.

[13] The rules of the Labour Court have no provision similar to Section 184 of the LRA. To my mind importing rules not contemplated seem to be inconsistent with the LRA and its objects. Again having effective resolution of disputes in mind, if parties in the Labour Court were to be allowed to invoke foreign rules, disputes would not be resolved expeditiously. (See the concerns raised by the Constitutional Court in Billiton Aluminium SA Ltd v Khanyile and others CCT 72/09 decided on 18 February 2010, yet to be reported)

[14] In Harmse v City of Cape Town (2003) 24 ILJ 1130 (LC), Waglay J, as he then was said the following:

“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 pretrial conference. The rules therefore anticipate that the parties at the pretrial 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 are not substitute for it. It is for this reason that the rule on pretrial conferences provides for reaching consensus on the issues that the court is required to decide.”

His Lordship went further and said;

“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 the court must consider whether there is any embarrassment that is real and that cannot be met by making amendments or providing particulars at the pretrial conference stage.”

[15] It is clear from the above that His Lordship is not by any stretch of imagination suggesting that a party can invoke rule 23. He said when an exception is raised how the court should deal with it. It is important to note that the court attaches great significance to the pretrial conference. To my mind, that suggests that if pretrial is still to be held, a party in the Labour Court cannot raise an exception of vague and embarrassment. A pre trial takes place after a response. It ought to be borne in mind that the object of exceptions is to dispose of the case or portion thereof in an expeditious manner. (See Erasmus Superior Court Practice). In my view the fact that this court would not set the matter down for trial before pretrial conference, in line with the directives, is held goes a long way to actually discard the exception procedure, which is foreign in the rules of this court.

[16] Recently in Eagleton and others v You asked Services (Pty) Ltd (2009) 30 ILJ 320 (LC), her Ladyship Basson J said:

“Although the Rules of the Labour Court are silent on the question of exceptions, this court has jurisdiction and powers to deal with exceptions to a statement of claim and will, in doing so, have regard to the principles in respect of exceptions as developed in the High Court."

Her Ladyship does not say a party can invoke the procedures in rule 23. All the court said there was that the principles developed by the High Court would be used in exception situations. In my view the jurisdiction and power of the Labour Court is circumscribed by Section 157 and 158 of the LRA. An exception is matter of procedure, which should as matter of cause be regulated by the rules as opposed to a statute. I am unfortunately of a firm view that the Labour Court should as a matter of procedure not entertain exception applications. If it does, it must do so sparingly. Otherwise the very important pretrial procedures, which should take place after a response, would be rendered absolete, meaningless and superfluous.

[17] In my view no undue importance should be attached to the phrase-“to enable any opposing party to reply to the document”. Most of the exception applications are borne from this phrase. To do so this will clog the court roll with all technical objections which ordinarily delay conclusion of labour disputes. Any litigant who wishes to delay finalisation of disputes would always cry that he or she is unable to reply. Of course there will be such deserving cases where a statement of claim does not disclose a cause of action at all. If taking an exception would nip such in the bud, then perhaps it is the proper procedure. Certainly the matter before me is far from that. The cause of action is clearly one of unfair dismissal for reasons of operational reasons. The approach I adopt saves the court from, at an early stage, to deal with issues like what is sufficiently particular? If a dismissal for instance is not placed in dispute as it is the case in this matter, it becomes onerous as it were to except a litigant to, in sufficient particularity, set out the dates of the alleged consultation meetings and the details of proposals made for instance. From Form 2, it is clear that the facts should be those to be relied on to establishing a claim. What more, if regard is had to Section 192 of the Act, should a dismissed employee state to establish a claim other than saying I have been dismissed. Taking into account the fact that parties would have attempted conciliation and there, if dismissal is placed in dispute, such will have been determined before approaching this court. Therefore in my mind exception procedures have no place in the Labour Court, except in those limited and deserving cases. On this basis alone I refuse to entertain the application. In the event I am wrong, I turn now to consider this next question.

Is the statement of claim excipiable?

[18] The complaint is directed to paragraphs 5.3, 5.4, 5.5, 5.6, 5.8 and 6.1.1 of the statement of claim. According to the respondent, those paragraphs lack sufficient particularity, are meaningless or capable of more than one meaning/interpretation which renders the statement vague and embarrassing and makes it impossible to respond to them. Clearly this is not a complain that the statement does not disclose a cause of action. Adopting the approach in Harmse, I have to consider whether there is any embarrassment that is real and that cannot be met by providing particulars at pretrial

conference stage.

[19] In paragraph 5.3, the applicant states:

“The Union received a letter from the respondent around January regarding a meeting, which meeting were (sic) held on the 03/02/2009, the meeting held on 03/02/2009, was that the employer was to raise a concern regarding a reduce(sic) in the production, and confirm that the company was not of the intention to retrench”

Granted, the paragraph above is not a model of clarity language and context wise, but the respondent would, in my view, be in a position to respond thereto. It is correct as conceded by Benade that a denial of the facts is also a response. To my mind clarity can be obtained at pre-trial stage. According to the respondent this paragraph when read with paragraph 5.4, which I shall deal with hereunder, it is not clear whether retrenchment was on the cards or not. Simple answer to that is if there was no retrenchment or there was, the respondent would be able to deny or admit it.

[20] In paragraph 5.4, the applicant states:

“The Union was requested to submit alternatives that could be considered in order for the company not to consider retrenching employee’s

were(sic) a request was made by the union that the company to re-invite the union in terms of Section 189, for the compliance of

their request.”

Yet again this is not a model of clarity on the language and context. However, the respondent can reply thereto. Further elucidation would be at the pre-trial stage.

[21] In paragraph 5.5, the applicant states:

“The Union on receipt of the invitation on the 04/02/2009, agreed to meet with the respondent on the 25/02/2009, which was almost 21 days, after receipt of the invitation for consultation in terms of Section 189, of the LRA, which during the said meeting it was then when the union could propose an alternative as was requested by the company, the union were on this meeting informed that the invitation was a formal process for the consultation meeting in terms of Section 189, of the LRA."

One sees again a battle language wise. Still the respondent would in my view be able to respond.

[22] In paragraph 5.6, the applicant states:

“The Union, applied for a CCMA, facilitator in terms of Section 189.A.(3), which were already late as a result of the time that the parties could have meet(sic), and the fact that the union were(sic) not aware of whether the facilitation were(sic) needed on the part of the other union or NCA WU”

Without the court sounding like a broken record, the respondent would be able to respond to this fact.

[23] In paragraph 5.8, the applicant states:

“On the 27/03/2009, a further meeting were (sic) held were (sic), and certain proposals were put on the table by the union, and was not considered by the company as a result of the In Lime (sic) Ruling made against the union, which the company had agreed to consider and forward the requested information to the union, which was never done by the company”

Here the respondent complains about “the certain proposal” and a lack of request for information. Simply, the respondent can deny this allegation and put its version of what occurred in the meeting in question. Again at pre-trial, as required by the directives, parties would deal with the issue of minutes of meetings and so forth.

[24] In paragraph 6.1.1, the applicant states:

“The employer in this case did not considered (sic), the representations put before them, before embarking on retrenchment, with regard to Selection criteria, etc. And issues pertaining to Section 189, A (19), as a whole was not complied within this case the employer has consulted with the Union after a decision was already made to retrench, just to get rid of certain employee’s (sic)."

[25] From all the above, it is clear that the applicant is setting out what would be its evidence at the trial. The fact that the respondent does not find its evidence convincing as it were or not being truthful in certain respect does not mean it cannot respond thereto. In Harmse, Waglay J said”

“The pretrial conference provides an occasion for the detail or texture of the factual disputes to begin to take shape"

I say no more in this matter. I may add, given that the rules requires facts to be relied on to sustain a claim, ordinarily, it is to be expected that applicants, particularly individual applicants and some trade unions would put a document that resembles an affidavit. If indeed a statement of claim or response is a pleading in a strict sense, then it should not contain evidence. Question is can this court control that? Perhaps if the rules are amended, the court could.

[26] Another issue which supports my earlier view of non interference by way of exception is that the court cannot draw statements of claim or pleadings for parties. If for argument sake and simply on language basis, as it is in this case, the court upholds an exception, should it also suggest what would qualify as sufficient particularity? In my view the court cannot. The fact that the court cannot, suggests that parties would repeatedly commit the “same” mistake and repeatedly return to the court on the same issue. Finality will never be reached. Such will not be consistent with the objects of the Act

[27] For reasons set out above, I am constrained to make the following order:

[27.1.] The exception is not upheld.

[27.2.] I make no order as to costs.

G.N MOSHOANA

Acting Judge of the Labour Court Date of Hearing: 18 March 2010

Date of Judgement: 19 March 2010

APPEARENCES

For the Applicant: No Appearance.

For the Respondent: Adv Benade instructed by Irish Inc, Cape Town.