South African Policing Council v Public Service Co-ordinating Bargaining Council (29336/13) [2013] ZAGPPHC 302 (17 October 2013)

South African Policing Council v Public Service Co-ordinating Bargaining Council (29336/13) [2013] ZAGPPHC 302 (17 October 2013)

The court held that the particulars of claim allege that the Bargaining Council bears a duty to act in terms of the agency shop agreement, as the agreement was concluded by its constituent members and read with its constitution. The absence of the constitution in the pleadings is not fatal at the exception stage, as the plaintiff may lead evidence at trial to prove the alleged duty. The excipient is bound by the four corners of the pleading, and the issue of whether the Bargaining Council is a party to the agreement or under a duty to implement it is a matter for trial, not for determination on exception. Accordingly, the exception was dismissed.

Citation
[2013] ZAGPPHC 302
Parties
Applicant: South African Policing Council; Respondent: Public Service Co-ordinating Bargaining Council
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 October 2013
Case Number
29336/13
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Exception dismissed; costs awarded against the defendant.
Judges
Hassim A
Legal Topics
Collective Agreements, Agency Shop Agreement, Exception Procedure, Cause of Action
Labour Law Civil Procedure Collective Agreements Agency Shop Agreement Exception Procedure Cause of Action

Case Brief

Summary, issues, holding and outcome

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Parties

South African Policing Council

Applicant

Public Service Co-ordinating Bargaining Council

Respondent

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the particulars of claim disclose a cause of action against the Bargaining Council.
  2. 2 Whether the Bargaining Council is under a duty to give effect to the agency shop agreement.
  3. 3 Whether the absence of the Bargaining Council's constitution in the pleadings is fatal to the plaintiff's claim.

Ratio Decidendi

The court held that the particulars of claim allege that the Bargaining Council bears a duty to act in terms of the agency shop agreement, as the agreement was concluded by its constituent members and read with its constitution. The absence of the constitution in the pleadings is not fatal at the exception stage, as the plaintiff may lead evidence at trial to prove the alleged duty. The excipient is bound by the four corners of the pleading, and the issue of whether the Bargaining Council is a party to the agreement or under a duty to implement it is a matter for trial, not for determination on exception. Accordingly, the exception was dismissed.

Court Disposition

Exception dismissed; costs awarded against the defendant.

Orders

  • The defendant’s exception is dismissed.
  • The defendant is to pay the costs of this exception.