Nyokana v Metal Industries Benefit Funds Administrators (JS824/22) [2024] ZALCJHB 261 (28 June 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS824-22

In the matter of:

SINDISWA NYOKANA

Applicant

and

METAL INDUSTRIES BENEFIT FUND

ADMINISTRATORS

Respondent

Heard: 14 March 2024

Delivered: 28 June 2024

JUDGMENT

WHITTINGTON, AJ

[1] Rule 23 (1) of the Uniform Rules of Court provides as follows:

“Where any pleading is vague and embarrassing or lacks averments which are necessary to sustain an action or defence, as the case may be, the opposing party may, within the period allowed for filing any subsequent pleading, deliver an exception thereto and may set it down for hearing…”

[2] In order to succeed in an exception an excipient has the duty to persuade the court that upon every interpretation and reading of the pleading, the documents on which it is based, no cause of action or defence is enclosed.

[3] Failing this the exception ought not to be upheld.[1]

[4] An exception must be considered on the basis that the pleaded facts are true (unless they are so preposterous that they can be rejected on their own showing) and there is no entitlement to refer to extraneous evidence or documents[2].

[5] Accordingly, a Court must decide the exception on the basis that all allegations in the particulars of claim are true (unless they are so preposterous that they can be rejected on their own showing) and there is no entitlement to refer to extraneous evidence or documents[3].

[6] the object of an exception is to dispose of the case or portion thereof in an expeditious manner, or to protect a party against an embarrassment which is so serious as to merit the costs even of an exception[4].

[7] An exception founded upon the contention that a summons discloses no cause of action, or that a plea lacks averments necessary to sustain a defence, is designed to obtain a decision on a point of law which will dispose of the case in whole or in part and avoid the leading of unnecessary evidence at the trial[5].

[8] The application of the rule is thus designed to prevent the court’s already stretched resources from being utilised to prosecute still-born proceedings.

[9] Put differently, an exception that a pleading discloses no cause of action must have as it’s basis the following: even if the party succeeds in proving all of the allegations in the pleading, it will still not be able to sustain its action or defence as the case may be.

[10] Save in the instance where an exception is taken for the purpose of raising a substantive question of law which may have the effect of settling the dispute between the parties, an excipient should make out a very clear, strong case before he or she should be allowed to succeed[6].

[11] As regards exceptions where it is alleged that the pleading is vague and embarrassing, The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced or unable to properly address the supposedly vague and embarrassing allegation.

[12] It has also been held that minor blemishes and insignificant instances of vagueness arising in pleadings can and should be cured by further particulars.[7]

[13] In determining whether a pleading is excipiable or not a court ought to look benevolently instead of over critically at the pleading in question.

[14] One is reminded of the decision in Shill v Milner[8] that pleadings are made for the court and not the court for pleadings.

[15] Where a party has the ability to place all the facts before the Court and the investigation into all the circumstances has been thorough, (i.e. fully canvassed in the evidence) then there is no justification to interfere simply because the pleadings had not been as explicit as they might have been.

[16] It is clear that the Courts allow parties significant leeway in the manner in which cases are pleaded, because there are many opportunities later to expand on aspects, either through requests for trial particulars, requests for admissions, pre-trial enquiries, discovery and exchange of documents and ultimately, evidence.

[17] As to whether a pleading is vague and embarrassing the enquiry to be determined is two-fold:

firstly, whether the pleading lacks averments to such an extent that it can objectively be regarded as vague in the truest sense of the word; and

secondly whether the vagueness causes prejudice to the excipient to the extent that he cannot plead or properly prepare for trial, given the further opportunities for further information and elucidation later on in the proceedings.

[18] The sentiments expressed in Barclays Bank International Ltd v African Diamond Exporters (Pty) Ltd[9] bear repeating in this context:

“It cannot be repeated too often that the object of an exception is not to embarrass one’s opponent or take advantage of a technical flaw, but to dispose of the case or portion thereof in an expeditious manner or to protect yourself against an embarrassment which is so serious as to merit even the costs of an exception.”

[19] In so far as there can be an onus on either party on a pure question of law it rests upon the excipient who alleges that a summons discloses no cause of action or that a plea discloses no defence.

[20] The excipient has the duty to persuade the court that the pleading is excipiable on every interpretation that can reasonably be attached to it.[10]:

[21] So much for an exposition of the considerations applicable to Rule 23. The further question which the applicant does not address in the heads of argument filed is the application of Rule 23 of the Uniform Rules of Court to proceedings in this court.

[22] To this end I note the comments by the court in the matter of Liquid Telecommunication (Pty) Ltd v Carmichael Brown(2018) 39 ILJ 1779 (LC):[11]

“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.”

[23] I find myself in complete agreement with these sentiments particularly in the light of the sentiments expressed in the same judgment at paragraph 11 that one of the primary purposes of the LRA is to establish a system of dispute resolution that is less formal, efficient, expeditious and inexpensive. The Rules are an integral element in achieving this purpose.

[24] It would further appear from the grounds relied upon by the respondent that it would seek to import certain of the provisions of Rule 6 of the Uniform Rules of Court relating to the pleading of contracts in the High Court. I note that Rule 6 of the Labour Court Rules is markedly different from the Uniform Rules for reasons already set out above.

[25] The first ground on which the respondent seeks to rely relates to what the respondent alleges is a failure by the applicant to plead a specific clause of her employment contract or provision of the BCEA. This the respondent alleges renders the statement of claim “vague and embarrassing”. Of course I must read the statement of claim as a whole and I note that the applicant has pleaded reliance on section 40 of the BCEA.

[26] As I understand the nub of the applicant’s case she contends that she was entitled to payment of 70 days accrued leave and was paid out for 65 after the termination of her employment.

[27] Remembering that it is not for the court at this moment to decide on whether the applicant is correct in her contention but rather whether the respondent cannot plead or properly prepare for trial, given the further opportunities for further information and elucidation later on in the proceedings. I certainly do not intend to express any view on the correctness of the reliance on section 40 of the BCEA.

[28] I do not believe that the respondent is precluded from pleading to the averments in the statement of claim as they have been pleaded or from preparing for trial particularly if one has regard to the rather extensive rules in the practice directive of this court dealing with pre-trial matters which are designed to further crystalise the issues between the parties.

[29] I note that it further appears that, as the matter relates only to the alleged discrepancy in leave pay it is not necessary for the applicant to plead the entire contract. The applicant has pleaded that, on her interpretation she was accrued 70 days leave and was entitled to be compensated for the full 70 days after the termination of the agreement. Again if she is mistaken on this interpretation the respondent is well within its rights to point this out.

[30] I therefore do not believe that the first ground of objection can be upheld.

[31] The second ground of objection seems to me to suggest that the respondent is of the view that the pleaded reliance on section 40 of the BCEA is misplaced.

[32] The respondent is of the view that, in order to sustain a cause of action it was in essence required for the applicant to plead how the total of 70 days leave was calculated with regard to, inter alia, the respondent’s annual leave cycle.

[33] In my view the matter of how precisely the applicant arrives at the 70 days accrued leave she claims is either a matter for evidence or for argument.

[34] I am accordingly of the view that the second ground of objection cannot be upheld.

[35] Lastly the respondent claims that the failure to plead how the respondent’s leave policy constitutes a term of the applicant’s employment contract.

[36] What the applicant fails to appreciate is that what is pleaded by applicant is that she was advised by the respondent that she was only entitled to 65 days leave as a result of manner in which the respondent’s leave policy was to be applied.

[37] To clarify: the applicant does not rely on the respondent’s leave policy but rather seems to dispute that the respondent was correct in relying on it. Whether or not the respondent wishes to rely on the leave policy is a matter for the respondent to address in its plea.

[38] Finally, the respondent seems to allege that the applicant has failed to plea the required averments to sustain a claim that the respondent has repudiated the contract or that such repudiation was accepted by the applicant.

[39] It would appear that the applicant has failed to appreciate the difference between a breach of the employment agreement between the parties (in terms of which the applicant contends she was entitled to payment for 70 days accrued leave but was paid only for 65) and a repudiation of the agreement which entails an intention to no longer be bound by the provisions of an agreement. To be clear the repudiation issue arises only in the exception and the respondent’s heads of argument.

[40] It would most certainly not do to uphold an exception based on a cause of action which is not relied upon by the applicant and is raised by the respondent only in exception proceedings.

[41] Accordingly, this third ground of exception must also fail and I make the order set out below.

Order

1. The exception is dismissed.

2. There is no order as to costs.

D Whittington

Acting Judge of the Labour Court of South Africa

Appearances

Applicant : Adv Toto Sadike

Instructed by:

Respondent : Mr I Mahomed

Instructed by: Cliffe Dekker Hofmeyer inc

[1] Vermeulen v Goose Valley investments Pty Ltd (2001) 3 all SA 350 (A)

[2] Erasmus (Superior Court Practice loose leaf RS18 2022 D1-293 Merb (Pty) Ltd v Matthews Unreported, GJ case no 2020/15069 dated 16 November 2021

[2] Erasmus (Superior Court Practice loose leaf RS18 2022 D1-293

Merb (Pty) Ltd v Matthews Unreported, GJ case no 2020/15069 dated 16 November 2021

[3] Erasmus (Superior Court Practice loose leaf RS18 2022 D1-293 Merb (Pty) Ltd v Matthews Unreported, GJ case no 2020/15069 dated 16 November 2021

[3] Erasmus (Superior Court Practice loose leaf RS18 2022 D1-293

[4] Barclays National Bank Limited v Thomson 1989 (one) SA 547 (A) at 553 F – I

[5] Inzalo Communications & Event Management Pty Ltd v Economic Value Accelerators Pty Ltd 2008 (6) SA 87 (W)

[6] Francis v Sharp 2004 (3) SA 230 (C) at 273 D – I

[7] Merb (Pty) Ltd v Matthews Unreported, GJ case 2020/15069 16 November 2021

[8] 1937 AD 101 at 105

[9] 1976 (1) SA 100 (W)

[10] H v Fetal Assessment Centre 2015 (2) SA 193 (CC) at 199B

[11] (2018) 39 ILJ 1779 (LC) at paragraph 13