Nefale v Office of the Premier Gauteng Province (JS 900-19) [2021] ZALCJHB 84 (2 June 2021)
- Citation
- [2021] ZALCJHB 84
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court Johannesburg
- Panel
- F Coetzee
- Case number
- JS 900-19
More details
- Court
- Labour Court Johannesburg
- Panel
- F Coetzee
- Case number
- JS 900-19
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the applicant's filing of a second statement of case without withdrawing the first or following the proper amendment procedure was irregular and prejudicial to the respondent. The Rules do not permit multiple statements of case, and the applicant failed to indicate any amendments or provide the respondent an opportunity to object. The second statement of case was therefore set aside as an irregular proceeding.
Court disposition
The applicant's second statement of case dated 24 November 2020 is set aside as an irregular proceeding. No order as to costs.
Orders
- The applicant's (second) statement of case dated 24 November 2020 is set aside as an irregular proceeding.
- There is no order as to costs.
02
Material facts
Parties
Khathutshelo Nefale
ApplicantOffice of the Premier Gauteng Province
Respondent03
Procedural history
Posture
Exception Application / Interlocutory
04
Questions and positions
Legal issues
- 01
Whether the applicant was entitled to file a second statement of case without withdrawing the first.
- 02
Whether the procedure adopted by the applicant constituted an irregular proceeding under the Rules.
- 03
Whether the respondent was prejudiced by the applicant's procedural conduct.
Party arguments
- Applicant
- The applicant did not oppose the exception application and did not provide submissions regarding the filing of the second statement of case.
- Respondent
- The respondent argued that the applicant's filing of a second statement of case without withdrawing the first was irregular, as the Rules do not permit multiple statements of case. The respondent contended that this procedure was prejudicial, requiring a second statement of defence and creating uncertainty about the issues in dispute.
05
Court’s reasoning
Legal principles
- 01
Uniform Rules of Court, Rule 11 and Rule 30
The Rules do not provide for the filing of a second statement of case once the first has been served and not withdrawn. Amendments must be notified and, if not objected to, effected; otherwise, the original pleading must be withdrawn.
- 02
Uniform Rules of Court
Irregular proceedings may be set aside where they prejudice the opposing party and are not sanctioned by the Rules.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the applicant's filing of a second statement of case without withdrawing the first or following the proper amendment procedure was irregular and prejudicial to the respondent. The Rules do not permit multiple statements of case, and the applicant failed to indicate any amendments or provide the respondent an opportunity to object. The second statement of case was therefore set aside as an irregular proceeding.
Obiter and limits
- The applicant's lack of representation was considered in declining a costs order.
- The matter was determined on paper without oral argument.
Court disposition
The applicant's second statement of case dated 24 November 2020 is set aside as an irregular proceeding. No order as to costs.
- The applicant's (second) statement of case dated 24 November 2020 is set aside as an irregular proceeding.
- There is no order as to costs.
Source and reliance status
Labour Court Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Labour Court Johannesburg
Judgment
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS 900-19
In the matter between:
KHATHUTSHELO
NEFALE
Applicant
and
OFFICE
OF THE PREMIER GAUTENG PROVINCE
Respondent
Heard: 2 June 2021
Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 10h00 on 2 June 2021.
Summary: Exception
JUDGMENT
COETZEE, AJ
[1] The respondent applied to court for an order striking out the applicant's statement of case dated 24 November 2020. The application is unopposed.
[2] The applicant served his statement of case dated 31 October 2019 and the respondent received it only on 25 August 2020, almost ten months later.
[3] The respondent filed an exception on 21 October 2020. The applicant pursued an application for default judgement set down on 10 November 2020 when the Court dismissed the application for default judgement and ordered that the exception be set down on the opposed roll.
[4] The applicant elected to file a second statement of case dated 24 November 2020. The respondent regarded this as an irregular step and filed a notice in terms of Rule 11 read with Rule 30 of the Uniform Rules of Court affording the applicant an opportunity to remove the complaint directed at the statement of claim of 24 November 2020. The applicant has not withdrawn the second statement of claim.
[5] It may well be that the applicant intended the statement of case of 24 November 2020 as an amendment to the original statement of case. This however is not evident from the procedure that the applicant adopted or the content of the document.
[6] There is no indication in the statement of case of 24 November 2020 that the respondent is granted an opportunity to object to any amendment, if any, introduced thereby and it took the form of a statement of case to which the respondent had to answer.
Analysis
[7] There is no provision in the Rules to add a second statement of case once a statement of case has been served and filed and has not been withdrawn. The correct procedure for an applicant would be to give notice of an intention to amend, followed by an amendment if it is not objected to. Otherwise the first statement of defence must be withdrawn.
[8] The procedure adopted by the applicant is prejudicial to the respondent in that respondent is called upon to file a second statement of defence for which the Rules also do not provide. The respondent is further prejudiced in that it would be impossible to formulate a statement of defence against a second statement of case while the first statement of case remains alive. There are also no specific amendments formulated in the second statement of case to indicate to the respondent what is new in dispute.
[9] The statement of case dated 24 November 2020 should be set aside as an irregular procedure.
Costs
[10] This is an interlocutory matter where the respondent is successful. The applicant is unrepresented. Having regard to the relevant factors there is no reason to make a cost order.
[11] The following order is hereby made:
Order
1. The applicant's (second) statement of case dated 24 November 2020 is set aside as an irregular proceeding.
2. There is no order as to costs.
______
F. Coetzee
Acting Judge of the Labour Court of South Africa
Appearances:
The matter has been determined on paper.
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