Tourism, Hospitality & Sport Education & Training Authority v TMS- Shezi Industrial Services (Pty) Limited (JR 1037/05) [2008] ZALC 21 (21 February 2008)

Tourism, Hospitality & Sport Education & Training Authority v TMS- Shezi Industrial Services (Pty) Limited (JR 1037/05) [2008] ZALC 21 (21 February 2008)

The court found that the defendant was entitled to raise an exception after the plaintiff amended its particulars of claim, as the amendment reopened the pleadings. The timing of the exception, though late, was not unreasonable in light of the amendment, and the plaintiff was afforded an opportunity to respond. The court held that any prejudice suffered by the plaintiff due to the timing could be remedied by a costs order. Law and fairness dictated that the defendant should be awarded costs relating to the exception, excluding costs for trial preparation, which should be determined at the conclusion of the trial or counterclaim.

Citation
[2008] ZALC 21
Parties
Plaintiff: Tourism, Hospitality & Sport Education & Training Authority; Defendant: TMS- Shezi Industrial Services (Pty) Limited
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
21 February 2008
Case Number
JR 1037/05
Procedural Posture
Civil Procedure / Costs Determination Following Upheld Exception
Outcome
Costs awarded to the defendant for the period from filing the exception to the day it was heard, excluding trial preparation costs.
Judges
Molahlehi
Legal Topics
Exception to Pleadings, Costs Award, Amendment of Particulars of Claim
Civil Procedure Exception to Pleadings Costs Award Amendment of Particulars of Claim

Case Brief

Summary, issues, holding and outcome

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Parties

Tourism, Hospitality & Sport Education & Training Authority

Plaintiff

TMS- Shezi Industrial Services (Pty) Limited

Defendant

Procedural Posture

Civil Procedure / Costs Determination Following Upheld Exception

Legal Issues

  1. 1 Should the court award costs after upholding the defendant's exception to the plaintiff's particulars of claim.
  2. 2 Was the timing of the defendant's exception unreasonable and did it prejudice the plaintiff.
  3. 3 Does the amendment of particulars of claim entitle the defendant to raise an exception at a late stage.

Ratio Decidendi

The court found that the defendant was entitled to raise an exception after the plaintiff amended its particulars of claim, as the amendment reopened the pleadings. The timing of the exception, though late, was not unreasonable in light of the amendment, and the plaintiff was afforded an opportunity to respond. The court held that any prejudice suffered by the plaintiff due to the timing could be remedied by a costs order. Law and fairness dictated that the defendant should be awarded costs relating to the exception, excluding costs for trial preparation, which should be determined at the conclusion of the trial or counterclaim.

Court Disposition

Costs awarded to the defendant for the period from filing the exception to the day it was heard, excluding trial preparation costs.

Orders

  • The plaintiff must pay the defendant's costs from the date the exception was filed up to and including the day the exception was heard.