Union for Police, Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others (804/2018) [2019] ZALMPTHC 4 (29 March 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO LOCAL DIVISION, THOHOYANDOU

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

Case No.804/2018

In the matter between:

UNION FOR POLICE, SECURITY AND

Applicant

CORRECTIONS ORGANISATION

and

SOUTH AFRICAN CUSTODIAL MANAGEMENT (PTY) LTD 1st Respondent

KENSANI CORRECTIONS MANAGEMENT

2nd Respondent

JOHAN WAGENAAR

3rd Respondent

JUDGMENT

NF KGOMO J

INTRODUCTION

[1] This is an application in terms of Rule 28(4) of the Uniform Rules of Court in which the Plaintiff Union seeks leave to amend its particulars of claim so as to avert them being excipiable.

[2] The application is opposed by the Respondent.

THE PARTIES

[3] The Applicant is a trade union duly registered in accordance with section 96 of the Labour Relations Act, 1995[1] under reference number LR2/2/2347, which acts in its own interests as well as in the interests of its members in terms of section 38e of the Constitution of the Republic of South Africa[2] ("the Constitution"). The Applicant (the Plaintiff in the main action) ("the Plaintiff or Applicant")had until 31 March 2017 as the date of termination of the Organizational Rights Agreement to operate at the Correctional Centre and had its principal place of business situate at Sparrow Road, Louis Trichardt and currently operating or carrying on its business at its Secretary's residential house at 58 Vorster Street, Louis Trichardt.

[4] The 1st Respondent ("1st Defendant and 1st Respondent interchangeably") is a private company duly registered and incorporated in accordance with the Company laws of the Republic of South Africa ("the RSA"), having as its principal place of business situate at Woodmead, Gauteng (Johannesburg). The 1st Respondent is responsible for the day to day operation of Kutama-Sinthumule Correctional Centre, Makhado (''the workplace"). For purposes of service of process herein service is being effected to the Defendants at the workplace, c/o Prison Director.

[5] The 2nd Respondent (2nd Defendant in the main action) is a private company duly registered and incorporated in accordance with the company laws of the RSA. The 2nd Respondent is responsible for maintenance services at Kutama-Sinthumule Correctional Centre. According to the 2nd Respondent's letterhead dated 05 June 2018, the 2nd Respondent's registered address is at Kutama-Sinthumule Correctional Centre, Louis Trichardt.

[6] The 3rd Respondent (3rd Defendant in the main action) is an adult male person who at all material times was or is appointed as the Acting Director at Kutama-Sinthumule Correctional Centre. At all material times the 3rd Respondent is or was acting within the course and scope of his employment with the 1st and 2nd Respondents.

HISTORY AND BACKGROUND TO THIS APPLICATION

[7] On the 05 July 2018 the Applicant instituted an action against the Respondents wherein the following orders were sought to be effective jointly and severally:-

7.1 That the Plaintiff's right to claim for constitutional rights in its own interest and in the interests of its members succeed.

7.2 That it be declared that the decisions by the Defendants in refusing the Plaintiff's executive members access to the workplace to conduct unique business with the management at the 1st and 2nd Defendants business ("the workplace") and to consult with the Plaintiff's members (or employees) is unconstitutional and invalid.

7.3 That the Defendants are jointly and severally liable to compensate the Plaintiff's constitutional damages in the sum of R2 000 000.00 (two million rand) arising out of wrongful deprivation of the Plaintiff's Executive Committee Members' rights to enter the workplace in order to communicate with the Plaintiff's members and serve their members' interests.

7.4 That it be declared or found that the Plaintiff's claim for damages suffered in its reputation, dignity and integrity is valid and capable of succeeding. Further that the Defendants are jointly and severally ordered to compensate or pay the Plaintiff in the sum of R1 000 000.00 (one million-rand).

7.5 That the Plaintiff's 540 members claim in the sum of R200 000.00 (two hundred thousand) for each member for emotional shock be upheld or succeed. Correspondingly, that the Defendants be held liable for the sum total of R108 000 000.00 (one hundred and eighty million rand) being the combined sum of all 540 members of Plaintiff. That the Defendants be ordered to pay the above amount jointly and severally.

7.6 That the Plaintiff's 540 members' claim in the sum of R200 000.00 (two hundred thousand rand) each for psychological treatment succeed, and that the Defendants be ordered to pay the above amount in respect of each of the Plaintiff's 540 members jointly and severally.

7.7 That the Defendants be ordered to also pay interest on the above­ mentioned individual claim amounts at the rate of 10% per annum calculated from the date of demand.

7.8 That the Defendants be found to be liable for the Plaintiff's costs jointly and severally; which costs shall include or be consequent upon the employment of two (2) attorneys acting as counsel.

7.9 That further and/or alternative relief also be granted.

[8] The defendant filed notice of Intention to defend the action.

[9] Before they could file a plea to the particulars of claim, and on 29 August 2018, the Defendants served the Plaintiffs attorneys of record with a notice of intention to except to the particulars of claim in terms of Rule 23 (1) of the Uniform Rules of Court, which notice reads as follows:-

"Exception 1: Locus standi under constitution

1. The Plaintiff purports to act in the interests of its members in terms of section 38€ of the Constitution (POC paragraphs 1 and 33).

2. 1. Section 38€ provides that an association acting in the interest of its members may approach a competent court alleging that a right in the Bill of Rights has been infringed or threatened.

3. The Plaintiff is not an association for purposes of section 38€ with the result that a trade union acting in the interests of its members does not enjoy locus standi under section 38€ of the Constitution.

4. The Plaintiff has, furthermore, not identified its alleged members on whose behalf it purports to act.

Exception 2: The claims based on alleged breaches of Constitutional rights

5. The Plaintiff brings claims for "constitutional damages" based on alleged breaches by the Defendants of constitutional duties owned to the Plaintiff and its members, which breaches it contents were wrongful. The Plaintiff's claim is accordingly brought in delict (POC paragraphs 17-26 and 33-38).

6. Wrongfulness and unlawfulness of the Defendants' conduct are essential elements of the Plaintiff's delictual claim.

7. However, the alleged breaches of constitutional duties set cut by the Plaintiff in the particulars of claim do not result in wrongfulness or unlawfulness in delict.

8. Furthermore and in any event, the alleged wrongful acts which ground the Plaintiff's claims for constitutional damages attract private law remedies under the common Jaw and/or remedies founded on national legislation and not public Jaw remedies under the Constitution. The Plaintiff has rights in contract and under the Labour Relations Act 28 of 1995 in respect of the Defendants' allegedly wrongful conduct, and the constitutional principle of subsidiarity precludes the Plaintiff from relying directly on the Constitution in asserting a claim.

9. In addition, an order for constitutional damages is not a form of relief available to the Plaintiff to vindicate the rights which it alleges have been infringed by the Defendants.

10. A right to constitutional damages is an exceptional remedy.

Constitutional damages would not constitute appropriate relief in relation to the claim brought by the Plaintiff, which are based on an alleged refusal by the Defendants of entry by the Plaintiff into the workplace and to hold meetings with it as a trade union.

11. Accordingly, the Plaintiff's particulars of claim do not make out a cause of action.

Exception 3: Claim for Defamation

12. The Plaintiff brings a claim for damages based on defamation (POC paragraphs 27-32).

13. An essential element of a claim for defamation is that there be publication of a defamatory statement by the Defendants.

14. The Plaintiff does not allege that there is any defamatory statement which has been published by the Defendants.

15. Accordingly, the claim lacks an essential element and does not disclose a cause of action.

WHEREFORE the Defendants pray for an order:

(a) Upholding their exceptions with costs.

(b) Affording the Plaintiff a period of 15 (fifteen) days within which to procure an amendment to its particulars of claim, failing which the Defendants shall be entitled to apply for a dismissal of the Plaintiff's action.

(c) Granting further and/or alternative relief"

[10] Within the requisite 15 days the Plaintiff was afforded to procure an amendment of its particulars of claim and specifically on the 13 September 2018, the Plaintiff delivered and served a notice of intention to amend its particulars of claim in terms of Rule 28 of the Uniform Rules of Court in the following terms: -

"KINDLY TAKE NOTICE THAT the Plaintiff intends to amend its particulars of claim herein dated 04 July 2018 as follows:

1. By deleting paragraph 1 of the Plaintiff's particulars of claim and replacing it with the following:-

1.1 the Plaintiff is the UNION FOR POLICE, SECURITY AND CORRECTIONS ORGANIZATION, a trade union duly registered in accordance with section 96 of the Labour Relations Act 66 of 1995 under reference number LR2/6/2/2347 acting in the interest of its own interest and in the interest of its members in terms of section 38€ of the Constitution of the Republic of South Africa and the Plaintiff had until 31st March 2017 (date of Termination of Organizational Rights Agreement) had its principal place of business at Sparrow Road, Louis Trichardt and currently carrying its business at SPARROW ROAD, LOUIS TRICHARDT and currently carrying its business at its Secretary's residential home at 58 VOSTER STREET, LOUIS TRICHARDT. As proof, the Plaintiff attaches copy of the registration certificate of the Plaintiff's trade union marked annexure "UPSCO 1".

1.2 The Plaintiff attached the list of its members as at July 2017, on whose behalf the Plaintiff is acting, marked annexure "UPSCO 4" prepared by the Defendants and forwarded to the Plaintiff as proof of payment of trade union subscription fees.

1.3 The Defendants have refused to provide the Plaintiff with a list of subscription database for March 2018 in relation to subscription fees and/or contribution.

1.4 By deleting Paragraph 27 of the Plaintiffs particulars of claim and replacing it with the following:-

27.1 During the period between December 2017 and February 2018, most specifically on 22nd December 2017, the employees of the First and Second Defendants acting within their cause and scope of employment with the First and Second Defendants .. ..) published or wrote a comment in response to Mr. MK Rasebotsa's e-mails dated 20th and 21st December 2017, wherein the Plaintiff requested access in the work place, the latter (Mr. MK Rasebotsa) acting on behalf of the

Plaintiff in the capacity as its Executive Committee member; the relevant portion concerning the Plaintiff reads as follows:

27.1.1 The application is disapproved;

27.1.2 "ORA (Organisational Rights Agreement) is cancelled."

27.2 The copies of the aforesaid letters are attached herein marked annexure ('UPSCO …

27.3 When publishing the aforesaid comment and/or statement, the Defendants knew and/or could reasonably have expected that the members of the Plaintiff and other employees of the Defendants would take congnisance of the aforesaid defamatory statement and/or comment. The aforesaid statement reached more than 540 members of the Plaintiff.

27.4 The aforesaid comment or statement by the Defendants was wrongful and defamatory and was calculated to cause the Plaintiff's financial prejudice and was ... or implied that and/or a reasonable person reading the said comment and/or ... would reasonably understood a meaning defamatory of the Plaintiff in the following respects:

(a) The Plaintiff is not a registered Trade Union as at 21st and 22nd December 2017;

(b) The Organisational Rights agreement between the Plaintiff and the First and Second Defendants was no longer effective despite the fact that the effective date for organization was 3dh March 2018;

(c) The Plaintiff is totally banned in the First and Second Defendants workplace contrary to section 23 of the Constitution;

(d) The Plaintiff as a trade Union is not disciplined and does not function in an efficient manner;

(e) The Plaintiff is acting unreasonably;

(f) The Plaintiff is not conducting its affairs in a lawful and honest manner;

(g) The Plaintiff is not complying with the provisions of the Correctional Services Act and Regulations.

27.5 The refusal by the Defendants to grant the Plaintiff access to the workplace as agreed, to conduct the business with the management and to consult with the Plaintiffs members was made with the intention to defame the Plaintiff and its members and to injure the Plaintiff's reputation as well as a well­ established trade union at the workplace."

[11] On 27 September 2018 the Defendants filed and served a notice of objection to Plaintiffs Intended Amendments couched in the following terms:

DEFENDANTS' NOTICE OF OBJECTION

TO PLAINTIFF'S INTENDED AMENDMENTS

TAKE NOTICE that the First, Second and Third Defendants object to the Plaintiff's proposed amendments to paragraph 27 of the Plaintiff's particulars of claim, as contained in its notice of intention to amend dated 12 September 2018 and served on 13 September 2018.

TAKE NOTICE further that the grounds upon which the objection are founded are as follows:

1. If paragraph 27 of the particulars of claim is amended as intended, the amended particulars of claim would be excipiable on the basis that they would not disclose a cause of action.

2. More particularly:

2.1 It is not pleaded that the alleged statement was published by the Defendant to anyone other than the Plaintiff itself (via its representative, Mr MK Rasebotsa); and

2.2 The alleged statement is not of a defamatory nature and is not reasonably capable of conveying, to a reasonable reader, a meeting which defames the Plaintiff. The alleged statement is neither defamatory per se, nor has the Plaintiff alleged that it was so understood by those to whom it was allegedly published.

Dated at Sandton on this 27th day of September 2018.

[12] The application to amend and the objection thereto were set down for argument in this Court on 06 November 2018.

ISSUE TO BE DECIDED ON THIS· APPLICATION

[13] The issue to be decided in this application thus is the following:-

13.1 Whether the intended amendment, if effected, would result in the particulars of claim continuing to be excipiable and thus whether leave to amend should be refused. Put differently, whether the amendment is competent and thus whether the amendment should be granted.

[14] According to the Defendants, the amendment should be refused because even after it had been effected, the pleadings would still be excipiable.

REASONS ADVANCED BY DEFENDANT WHY PLEADING WILL REMAIN EXCIPIABLE

[15] The Defendant's submission that the pleadings, even after the proposed amendment, will remain excipiable is based mainly on the absence, as they allege, of the requirement of the publication of a defamatory statement. Furthermore, the defendants allege that what the Plaintiffs allege to be defamatory statements are not defamatory in the ordinary sense or have the requisite element of innuendo if it is alleged the expressions may not necessarily prima facie be defamatory but yet could bear such meaning by innuendo.

[16] The paragraph is issue in this application is paragraph [27] of the plaintiff's particulars of claim.

[17] Before a notice to amend was delivered, this paragraph read as follows:-

"27. The refusal by the Defendants to grant the Plaintiff access to the workplace as required, to conduct the business with the management and to consult with its members was made with the intention to defame the plaintiff and to injure the plaintiff's reputation as a well-established trade union at the workplace ..."

[18] It is my finding that the defendant acted improperly by isolating paragraph 27 from the preceding paragraphs or subsequent paragraphs, especially paragraphs 28, 29 and 30 thereof as those paragraphs in my view explain what is alleged in paragraph 27. I will revert to this aspect.

[19] In the notice to amend the Plaintiff seeks to replace paragraph 27 in its entirety with the following:

"27.1 During the period between December 2017 and February 2018, most specifically the 21st December 2017, the employees of the First and Second Defendants acting within their cause and scope of employment with the First and Second Defendants (Mr. Bahula) published or wrote a comment in response to Mr. MK Rasebotsa's emails dated 2dh and 21st December 2017, wherein the Plaintiff requested access to the workplace, the latter (Mr. MK Rasebotsa) acting on behalf of the Plaintiff in his capacity as its Executive Committee Member: The relevant portion concerning the Plaintiff reads as follows:

1. "The application is disapproved;

2. "ORA (Organisational Rights Agreement) is cancelled."

27.2 The copies of the aforesaid letters are attached herein marked annexure ""UPSCO 5'').

27.3 When publishing the aforesaid comment and/or statement, the Defendants knew and/or could reasonably have expected that the members of the Plaintiff and other employees of the Defendants would take cognizance of the aforesaid defamatory statement and/or comment. The aforesaid statement reached more than 540 members of the Plaintiff.

27.4 The aforesaid comment or statement by the Defendants was wrongful and defamatory and was calculated to cause the Plaintiff's financial prejudice and was meant or implied that and/or a reasonable person reading the said comment and/or statement would reasonably have understood a meaning defamatory of the Plaintiff in the following respects:

(b) The Organisational Rights agreement between the Plaintiff and the First and Second Defendants was no longer effective despite the fact that the effective date for termination was 3dh March 2018;

(d) The Plaintiff as a trade Union is not disciplined and does not function in an efficient manner;

27.5 The. refusal by the Defendants to grant the Plaintiff access to the workplace as required, to conduct the business with the management and to consult with the Plaintiff's members was made with the intention to defame the Plaintiff and its members and to injure the Plaintiff's reputation as a well-established trade union at the workplace."

[20] At the hearing of this matter counsel for the respondent sought to have and asked this court to deal with both the amendment issue as well as the exception on the same day. Counsel for the applicant objected to this. At the end of the day, this application only deals with whether the proposed amendments to the plaintiff's particulars of claim should be amended or not.

PLAINTIFF'S FURTHER PROPOSED AMENDMENTS

[21] The plaintiff also gave notice to amend paragraph 1 of its particulars of claim. It also furnished. a list of its members as at July 2017.

[22] As a consequence of the above the defendants abandoned their objections to the proceedings as based on this paragraph.

[23] The thrust of its objections however remained on "defamatory statements" as well as the alleged publication thereof which they insisted made the pleadings still excipiable.

LEGAL PRINCIPLES INVOLVED

[24] As a general rule, an amendment may not be allowed by the court if and/or where its introduction would render a pleading excipiable or where it does not cure the excipiability.

[25] The court in JB v SB and others 2016(1) SA 47(WCC) put it as follows:

"[11] The Primary consideration in application of this nature seems to be whether the amendment will have caused the other party prejudice which cannot be compensated for by an order for costs or by some or other suitable order such as postponement (Imperial Bank Ltd v Bernard and Others NNO 2013 (5) SA 612 (SCA) para 8). It is of course necessary to bear in mind that a further important object of allowing an amendment is 'to obtain a proper ventilation of the dispute between the parties" (Trans-Drakensberg Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd and Another1967 (3) SA 632 (D) at 638A). Our courts have also increasingly recognized that court rules and pleadings are not there for their own sake but to advance "the

good order, and the administration of justice" (Bankorp Ltd v Anderson-Morehead 1997 (1) SA 251 (W) at 2530- G). It is accepted law that a court will not allow amendments where their effect would render such a pleading excipiable or where it does not cure an excipiable pleading. (Erasmus Superior Court Practice service 42. 2012 B1 - 183). In Crawford-Brunt v Kavnat and Another 1967 (4 ) SA 308 (c) at 310G Tebbut AJF (as he then was) held, however, that, 'if the pleading would appear to be possibly open to exception or even if the court is of opinion that the question of whether or not the pleading is excipiable is arguable, it would seem to be more correct course to allow the amendment." (Own emphasis).

[26] In Cross v Ferreira 1960(3) SA 443(C) the court concluded as follows on this aspect:-

"While the practice is not entirely uniform on this point, the weight of authority seems to favour the view that if the pleading as sought to be amended would be excipiable, this affords a ground upon which the Court may, in the exercise of its discretion, refuse the application for amendment."

[27] In Klitscke v Road Accident Fund 2004(4) SA 358(W) they court held as follows:

"A pleading which is bad in law lacks averments which are necessary to sustain an action. It follows that an amendment should be refused on the ground of excipiablility if it is clear that the amended pleading will (not may) be excipiable. (Van Winsen et al The Civil Practice of the Supreme Court of South Africa 4th ed; B Minister of Defence. Namibia v Mwandinqhi 1992 (2) SA 355 (NmS) at 364H­ !l. Applications for the amendment of pleadings are normally granted if bona fide and if prejudice that cannot be cured by a postponement or an order of costs is absent. The party seeking an amendment bears the onus of showing that it is made bona fide and that there is an absence of prejudice (Macduff and Co (in Liquidation) v Johannesburg Consolidated Investment Co Ltd 1923 TPD 309 ; Rosenberg v Bitcom 1935 WLD 115: Dumasi v Commissioner. Venda Police 1990 (1) SA 1068 (VJ at 1071B: Brandon v Minister of Law and Order and Another 1997 (3) SA 68 (C) at 75)."

[28] The court in Alpha (Pty) Ltd v Carletonville Ready-Mix Conrete CC 2003(6) SA 289(W) the following was stated: -

"I hold that if the amendment were to be granted, the particulars would be excipiable on the ground that there would be lacking therefrom averments necessary to constitute a valid cause of action. Accordingly I propose to dismiss the application for the amendment."

[29] Similarly the court in De Klerk and Another v Du Plessis and Others 1995(2) SA 40(T); van Dijkhorst J stated the principle as follows:-

"The application for . amendment was opposed on the ground that the incorporated part of the plea would then be excipiable for a number of reasons. An amendment which would render a pleading excipiable should not be allowed. Whether a pleading would or would not become excipiable is a matter of law which should be decided by the court hearing the application for amendment. It would be incorrect, in my view, to hold that it is arguable that the amendment would not render the pleading excipiable, allow it, and send the parties away to prepare for another battle on exception on the same point. I agree with the views expressed in this respect in RM van de Ghinste & Co (Pty) Ltd v Van de Ghinste 1980 (1) SA 250 (C) at 256H-259C."

EXCEPTIONS IN GENERAL

[30] While this court is not yet dealing with an exception to the plaintiff's pleadings, it is still important to set out a few but salient features governing exceptions in our law. This exercise will, in my considered view, assist this court to make an informed ruling over whether the plaintiff's notice to except, should be allowed.

[31] An exception is a pleading in which a party states his objection to the contents of a pleading of the opposite party on the ground that the contents are vague and embarrassing or lack averments which are necessary to sustain the specific cause of action or the specific dispose relied upon.

See Colonial Industries Ltd v Provincial Insurance Co Ltd 1920 CPD at 630: Group Five Building Ltd v Government of the RSA Minister

of Public Works and Land Affairs 1991(3) SA 787( ) at 793.

[32] The taking of an exception is a procedure which is interposed before the delivery of a plea on the merits by a defendant or before the delivery of a replication or the joinder of issue by a plaintiff. It is designed to disclose of pleadings.

[33] Without also falling into that trap, this court has meticulously scrutinized the pleadings as they were before the notice of exception was filed and how they looked like if the purported amendments are allowed in.

[34] The plaintiff set out the reasons or grounds why it alleges it was defamed. In the view of the court, a reader of the pleadings can be able to discern what the issues are that the plaintiff are alleging is defamatory as well as the reasons why they are regarded as such. As such it is the finding of this court that the defendants can plead to what the plaintiff is alleging. The question as to whether the alleged utterances or communications are indeed defamatory should be a matter to be determined at the trial or during a full and proper exceptions proceedings.

[35] The plaintiffs have also set out utteranus or communications which they impute may amount to innuendo. Whether such innuendo was indeed pleaded is also a matter to be dealt with at the exception hearing, if any, or at the eventual trial.

[36] This court has also discerned what the plaintiff alleges to be publication of defamatory statement or communications.

[37] It is only after or at the exception hearing that this court may go deeper into the above issues.

CONCLUSION

[38] THIS COURT FINDS THAT If it decides to prohibit the acceptance of the plaintiff's purported amendment at this stage, it will be interfering with a vital part of litigation: that parties should be allowed to litigate to the end if possible.

[39] If the amendment is allowed and the exception is argued in court on its own merits, the court will exercise its discretion at that stage. It is a better evil to allow aggrieved parties to litigate to their heart's satisfaction than to hamper that ambition in the manner the defendants are asking this court to act or do.

[40] When a conspectus of all the facts, factors and circumstances herein are taken into account, justice will be served if the amendment is allowed. The parties would then decide whether they proceed to argue the exception or the defendant file their plea's and the issues are ventilated in a full trial, if need be.

[41] At page 646 paragraph 2 of Hebstain and Van Winsen's Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, a revealing statement stands which goes like this:-

"If the exception is allowed, the court will usually give the respondent an opportunity to file an emended pleading within a stated time"

[42] The above points to this process of attempting to stop the allowing of the amendment herein having the potential of protracting litigation herein instead of expediting them. that may not also be in the interests of justice, more-so that this court has ruled that the amendment should be allowed.

[43] A conundrum is potentially imminent: For completeness sake the following except from the same page of Hebstain and Van Winsen is vital:-

"The effect when an exception to a summons is upheld on the ground that the summons does not disclose a cause of action has been controversial. In Sanlam Insurance Co Ltd v Manqele 1975(1) SA 607(0) at 608 it was held that if a successful exception results in the particulars of claim annexured to a combined summons being set aside, the summons itself still remains as an empty husk that the plaintiff can fill with amended particulars of claim, if given leave to do so. In Natal fresh Produce Growers Association v Agroserve (Ply) Ltd 1991(3 ) SA 795(N) at 800-801. the court declined to follow this decision on the ground that, in the case of a combined summons neither the summons not the particulars of claim can exist separately. The court that upheld the exception had granted leave to amend the summons but the plaintiff had failed to amend in the time allowed by the order. Hugo J held that in these circumstances it was not necessary for the defendant to serve a notice of bar or apply for absolution from the instance since the summons having been dismissed, there was no instance from which to "be absolved".

[44] Cadit Quaestio!!

ORDER

[45] The following order is made:-

45.1 The application by the applicant (plaintiff in the main action) to amend its particulars of claim as set out in its notice to Amend is upheld.

45.2 The plaintiff (applicant herein) is permitted to effect the amendments in issue here.

45.3 The defendants (respondents) are afforded the opportunity to decide whether or not to set the exception down for argument.

45.4 The defendants (respondents) are ordered to pay the costs of the application.

NF KGOMO

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

APPEARANCES

1. For the Plaintiff

: Mr S.O Ravele

Instructed by

: S.O Ravele Attorneys

Louis Trichardt

c/o Thohoyandou offices

Telephone Number

: 015 962 0998

2. For the 1st ,2nd & 3rd Defendants : Adv AE Franklin SC

Assisted by

: Adv Riaz ltzkin

Instructed by

: Norton Rose Fullbright SA Inc.

c/o Coxwell Steyn Vise & Naude

Thohoyandou

Telephone Number

: 015 962 6157

3. Date of hearing

: 06 November 2018

4. Date of Judgment

: 29 March 2019

[1] Labour Relations Act 1995 (Act 66 of 1995) as amended.

[2] Constitution of RSA Act, 1996 (Act 108 of 1996 as amended