South African Municipal Workers’ Union National Provident Fund v City of Johannesburg and Others (08/3523) [2008] ZAGPHC 471 (3 December 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION

Case No: 08/3523

Date:03/12/2008

In the matter between:

SOUTH AFRICAN MUNICIPAL WORKERS’ UNION

NATIONAL PROVIDENT FUND..........................................................................Plaintiff

and

CITY OF JOHANNESBURG......................................................................First Defendant

JOHANNESBURG WATER (PTY) LTD...............................................Second Defendant

CITY POWER (PTY) LTD........................................................................Third Defendant

PIKITUP JOHANNESBURG (PTY) LTD...............................................Fourth Defendant

JOHANNESBURG ROADS AGENCY (PTY) LTD..................................Fifth Defendant

JOHANNESBURG CITY PARKS (PTY) LTD..........................................Sixth Defendant

MEYER, J

[1] The plaintiff issued summons against the City of Johannesburg (the first defendant) and five of its municipal agencies (the second to sixth defendants). The second and fourth to sixth defendants filed a notice in terms of Rule 23(1) of the Uniform Rules of Court whereby the plaintiff was notified of their intention to file an exception to the particulars of claim. In response the plaintiff filed a notice of intention to amend its particulars of claim on 15 May 2008. The second and fourth to sixth defendants (‘the objecting defendants’) filed an objection to the plaintiff’s notice of amendment on 26 May 2008.

[2] The plaintiff now seeks leave to amend its particulars of claim in accordance with its notice of intention to amend.

[3] The objecting defendants objected to the plaintiff’s notice of amendment on the single ground that it fails to comply with the provisions of Rule 18(6) of the Uniform Rules. The objection is that the plaintiff relies on its rules in their entirety in order to found a cause of action against the objecting defendants, but fails to attach the ‘employer application’ or the ‘schedule’ referred to in rule 2.1.17 and rule 2.1.40 of such rules.

[4] Rule 18(6) of the Uniform Rules reads:

‘A party who in his pleading relies upon a contract shall state whether the contract is written or oral and when, where and by whom it was concluded, and if the contract is written a true copy thereof or of the part relied on in the pleading shall be annexed to the pleading.’

[5] The schedule of benefits referred to in rule 2.1.40 is annexed to the plaintiff’s particulars of claim and the latter part of the objection accordingly requires no further consideration.

[6] The claim against each defendant is listed in the particulars of claim as claims A to F, and those pertaining to the objecting

defendants are claims B, D, E and F. The plaintiff’s claim in each instance is for the payment of contributions allegedly owed to it under its rules on the basis that each defendant is a ‘participating employer’ in terms of the rules of the plaintiff.

[7] I agree with the submission of Adv PM Mtshaulane SC, who together with Adv K Pillay appeared for the plaintiff, that it is evident from the intended amendment that the plaintiff, rightly or wrongly, avers that the defendants became participating employers by operation of law, and not by signing the employer application form referred to in rule 2.1.17, and the plaintiff also relies on certain oral or tacit agreements. It is the plaintiff’s case that a consequence of being a participating employer is that such employer is bound by the rules of the plaintiff.

[8] In short, the plaintiff does not rely on any written agreement and the objecting defendants’ reliance on Rule 18(6) of the Uniform Rules is therefore misplaced.

[9] I consider it appropriate for the costs of the application for leave to amend the particulars of claim to follow the event. Adv Mtshaulana SC requested that such costs include the fees consequent upon the employment of two counsel. Both sides have engaged the services of two counsel. Adv Redding SC, together with Adv D Wood, acted for the objecting defendants. The employment of two counsel could not, in my view, be said to have been extravagant or over-cautious.

[10] In the result the following order is made:

The plaintiff is authorised to amend its particulars of claim in accordance with the plaintiff’s notice of intention to amend dated 15 May 2008.

The second, fourth, fifth and sixth defendants are ordered to pay the plaintiff’s costs of the application for leave to amend its particulars of claim, including the costs consequent upon the employment of two counsel.

P.A. MEYER

JUDGE OF THE HIGH COURT

3 December 2008