Universal Transport and Allied Workers Union v Tlhomphanang Business Enterprises t/a TNG Security Services (2024-044666) [2025] ZAGPPHC 768 (1 August 2025)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case Number: 2024 –044666

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: YES

DATE: 1 August 2025

SIGNATURE:

In the matter between:

UNIVERSAL TRANSPORT AND ALLIED

WORKERS UNION

Excipient / Defendant

and

TLHOMPHANANG BUSINESS ENTERPRISES Respondent / Plaintiff

T/A TNG SECURITY SERVICES

[ Registration Number: 2018/341225/07 ]

JUDGMENT

J Vorster, AJ.

[1] This is an opposed exception complaining that the plaintiff’s particulars of claim are vague and embarrassing. The delivery of the exception was preceded by a rule 23(1) notice that elicited no response. To simplify this judgment, I refer to the excipient as “the defendant” and to the respondent as “the plaintiff”.

[2] In its particulars of claim, the plaintiff alleges that:

[2.1] On or about 11 April 2022, the plaintiff and the defendant concluded a Close Shop/Agency Agreement (the agreement);

[2.2] The agreement is regulated by sections 25 and 26 of the Labour Relations Act, 66 of 1995 (the LRA);

[2.3] The agreement is “invalid ab initio” (paragraph 5 of the particulars of claim);

[2.4] Pursuant to the agreement, the plaintiff paid an amount of R546,465.00 to the defendant “acting on the basis of the void agreement”, which amount was never lawfully due to the defendant (paragraph 6 of the particulars of claim);

[2.5] As a result, the defendant was enriched to the detriment of the plaintiff.

[3] The defendant alleges that the pleaded case is vague and embarrassing because:

[3.1] Although pleading that the agreement was invalid ab initio, the plaintiff fails to clearly and concisely plead which statutory requirements in sections 25 and 26 were not complied with;

[3.2] The pleading refers to payments made by the plaintiff but does not specify exactly which amounts were not lawfully due and payable;

[3.3] The pleading does not state the date, time and/or period during which payments were made;

[3.4] The plaintiff fails to plead with sufficient particularity the grounds relied upon for the alleged undue enrichment;

[3.5] The plaintiff fails to state the reason why the payments should be reimbursed.

[4] Before dealing with the defendant’s complaint, it is appropriate to make some pointed remarks concerning the correct approach to an exception raised on the basis of pleadings being vague and embarrassing.

[5] A pleading that is vague and embarrassing strikes at the cause of action as a whole. Vagueness amounting to embarrassment and embarrassment amounting to prejudice must therefore be shown.[1]

[6] Vague and embarrassing exceptions serve as a means of taking objection to pleadings which are not sufficiently detailed or otherwise lack lucidity and thus rendering them embarrassing and affecting the ability of the other party to plead thereto. A pleading is not vague and embarrassing simply because the other party cannot prepare for trial.[2] Whether a pleading is vague, is a question of degree. The ability to plead a general denial does not mean that the pleading is not embarrassingly vague.[3]

[7] When comparing the grounds of complaint against the correct approach to exceptions referenced above, I am not convinced that the complaints concerning the date, time and/or period of payments render the particulars of claim vague and embarrassing. Further, a contextual reading of the particulars of claim reveals that the basis upon which repayment is claimed is as a result of an alleged void agreement. It is therefore clear that the pleading seeks to rely on an enrichment claim. Admittedly, the pleading does not specifically refer to either the condictio sine causa or the condictio indebiti.

[8] The complaint concerning the basis for the alleged “invalidity” and/or ‘’voidness” of the agreement is on a different footing.

[9] The essence of the plaintiff’s claim is that because the agreement is invalid or void, it had no duty to make payment in terms thereof. The pleaded basis for invalidity / voidness is alleged to be non-compliance with sections 25 and 26 of the LRA. The plaintiff has, however, failed to plead in what specific manner these sections of the LRA were not complied with. In addition, neither section 25 (which deals with agency shop agreement), nor section 26 (which deals with closed shop agreement), provide that non-compliance will result in invalidity or voidness. Section 25(3) states that an agency shop agreement will only be “binding” if it complies with the prescripts listed in section 25(3)(a) – (d). Similarly, section

26(3) provides that a closed shop agreement will only be “binding” if the requirements listed in section 26(3)(a) – (d) are satisfied. Neither section is couched in peremptory language and the LRA contains no criminal sanction for non-compliance.

[10] The fact that the agreement may be binding only if certain statutory provisions are complied with, does not mean that the agreement is automatically void. It simply means that it may not be enforceable as an independent cause of action. In my judgment, it also does not mean that performance (payments) in terms of the agreement must automatically be returned.

[11] At the hearing of the matter I asked the respondent’s representative, Mr Seabi, to explain the basis of the alleged voidness with reference to the pleadings. He directed my attention to paragraph 4.1 of the agreement, where the following is recorded:

“4.1.1 That at the time of signing this Agreement, the Union has members who are representative of the majority of the Company’s employees within the Bargaining Council as provided for in terms of section 26(2)(a) of the Labour Relations Act.

[1] Bowman Gilfillan Inc; In re: Minister of Transport 2018 3 All SA 484 (GP).

[2] Venter v Barritt; Venter v Wolfsberg Arch Investments 2 (Pty) Ltd 2008 4 SA 639 (C).

[3] Absa Bank Ltd v Boksburg Transitional Local Council 1997 (2) SA 415 (W) 421.