Oberholzer v Glocell (Pty) Ltd and Another (20338/2015) [2017] ZAGPPHC 415 (26 July 2017)

Oberholzer v Glocell (Pty) Ltd and Another (20338/2015) [2017] ZAGPPHC 415 (26 July 2017)

The court held that the plaintiff's particulars of claim do disclose a cause of action against the second defendant, as the absence of a signed employment agreement may be cured by evidence at trial. The law permits secondary evidence of a contract where it cannot be produced, and procedural rules do not extinguish substantive rights. However, the plaintiff failed to establish a legal nexus with the first defendant, as companies in a group are separate legal entities and no employment agreement existed between the plaintiff and the first defendant. The exception was dismissed on the first ground but upheld on the second, granting the plaintiff leave to amend her particulars of claim...

Citation
[2017] ZAGPPHC 415
Parties
Plaintiff: Carla Oberholzer; Defendant: Glocell (Pty) Ltd; Defendant: Seventy Two Telecommunications
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 July 2017
Case Number
20338/2015
Procedural Posture
Exception Application / Exception to Amended Particulars of Claim
Outcome
The first ground of exception is dismissed; the second ground is upheld. The plaintiff is granted leave to amend her particulars of claim regarding the first defendant within ten days. No order as to costs.
Judges
E.M Kubushi
Legal Topics
Exception to Particulars of Claim, Employment Contract, Group Company Liability, Suspensive Condition, Secondary Evidence, Vinculum Iuris
Civil Procedure Commercial and Corporate Exception to Particulars of Claim Employment Contract Group Company Liability Suspensive Condition Secondary Evidence Vinculum Iuris

Case Brief

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Parties

Carla Oberholzer

Plaintiff

Glocell (Pty) Ltd

Defendant

Seventy Two Telecommunications

Defendant

Procedural Posture

Exception Application / Exception to Amended Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's amended particulars of claim disclose a cause of action against the defendants.
  2. 2 Whether the absence of a signed employment agreement by the plaintiff renders the claim excipiable.
  3. 3 Whether the plaintiff has established a legal nexus (vinculum iuris) between herself and the first defendant sufficient to sustain a claim.

Ratio Decidendi

The court held that the plaintiff's particulars of claim do disclose a cause of action against the second defendant, as the absence of a signed employment agreement may be cured by evidence at trial. The law permits secondary evidence of a contract where it cannot be produced, and procedural rules do not extinguish substantive rights. However, the plaintiff failed to establish a legal nexus with the first defendant, as companies in a group are separate legal entities and no employment agreement existed between the plaintiff and the first defendant. The exception was dismissed on the first ground but upheld on the second, granting the plaintiff leave to amend her particulars of claim...

Court Disposition

The first ground of exception is dismissed; the second ground is upheld. The plaintiff is granted leave to amend her particulars of claim regarding the first defendant within ten days. No order as to costs.

Orders

  • The first ground of exception is dismissed.
  • The second ground of exception is upheld.