Orr and Another v UNISA (JS 1278/01) [2004] ZALC 41; [2004] 9 BLLR 954 (LC); (2004) 25 ILJ 1484 (LC) (13 May 2004)

Orr and Another v UNISA (JS 1278/01) [2004] ZALC 41; [2004] 9 BLLR 954 (LC); (2004) 25 ILJ 1484 (LC) (13 May 2004)

The court found that the claims before it were statutory in nature, arising under the Employment Equity Act and Labour Relations Act, and not delictual. The relief sought by the applicants was not available at common law and did not involve contributory negligence. The Apportionment of Damages Act 34 of 1956 applies only to delictual claims and was therefore not applicable to the present proceedings. Furthermore, the proposed amendment was excipiable because it failed to allege that notice was given to the respondent in the High Court action, as required by the Act. The application to amend the statement of response was refused, and costs were awarded to the applicants, including the...

Citation
[2004] ZALC 41
Parties
Applicant: Professor Margaret Orr; Applicant: APSA; Respondent: UNISA
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
13 May 2004
Case Number
JS1278/01
Procedural Posture
Civil Application / Application to Amend Respondent's Statement of Response
Outcome
Application to amend the respondent's statement of response refused with costs, including costs of two counsel.
Judges
Francis
Legal Topics
Employment Equity Act, Unfair Discrimination, Constructive Dismissal, Pleadings Amendment, Apportionment of Damages Act
Labour Law Civil Procedure Employment Equity Act Unfair Discrimination Constructive Dismissal Pleadings Amendment Apportionment of Damages Act

Case Brief

Summary, issues, holding and outcome

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Parties

Professor Margaret Orr

Applicant

APSA

Applicant

UNISA

Respondent

Procedural Posture

Civil Application / Application to Amend Respondent's Statement of Response

Legal Issues

  1. 1 Whether the Apportionment of Damages Act 34 of 1956 applies to the statutory claims before the Labour Court.
  2. 2 Whether the proposed amendment to the respondent's statement of response is excipiable for failure to allege notice under the Act.
  3. 3 Whether the claims before the Labour Court are delictual or statutory in nature.

Ratio Decidendi

The court found that the claims before it were statutory in nature, arising under the Employment Equity Act and Labour Relations Act, and not delictual. The relief sought by the applicants was not available at common law and did not involve contributory negligence. The Apportionment of Damages Act 34 of 1956 applies only to delictual claims and was therefore not applicable to the present proceedings. Furthermore, the proposed amendment was excipiable because it failed to allege that notice was given to the respondent in the High Court action, as required by the Act. The application to amend the statement of response was refused, and costs were awarded to the applicants, including the...

Court Disposition

Application to amend the respondent's statement of response refused with costs, including costs of two counsel.

Orders

  • The application to amend the statement of response by the insertion of paragraph B3 is refused.
  • Costs are awarded against the respondent, including the costs of two counsel.