CASE LAW UPDATE

Facts: The plaintiff and the first defendant (JC) concluded and signed a divorce settlement agreement which was subsequently made an order of the court. The plaintiff instituted a claim for damages arising from an alleged fraudulent misrepresentation of the defendants during the negotiations and signing of the settlement agreement. The defendants raised an exception on the grounds that particulars of claim of the plaintiff lacks averments which are necessary to sustain the cause of action. They served their notice of exception on the plaintiff to remove the cause of the complaint. As a result of the plaintiff’s failure to remove the cause of the complaint, the defendants set the matter down for hearing. Subsequent thereto, the plaintiff filed a notice of opposition in relation to both exceptions. The exception brought by the second and third defendants for a lack of critical averments were subsequently withdrawn.

Application: On the day the exception was to be heard, the parties agreed to the amendment of the plaintiff’s particulars of claim being made an order of court. Consequently, the complaint that the plaintiff’s particulars of claim failed to disclose a cause of action was removed and the issue of res judicata remained to be determined. This is an exception application in which the defendants except to the plaintiff’s particulars of claim on the basis that it lacks averments to sustain a cause of action and that the matter is res judicata.

Discussion: The plaintiff in her amended particulars of claim pleaded that the misrepresentations made by the defendants were false and intended to mislead the plaintiff into entering into a divorce settlement agreement. The plaintiff further avers that because of the defendants’ false misrepresentations, she was coerced into accepting the terms of the said settlement agreement reflecting the incorrect total gross assets of the joint estate. Furthermore, that at the time these fraudulent misrepresentations were made, she was unaware that JC owned undisclosed immovable property and other assets. The plaintiff asserts that if she had known the real and current status of the joint estate, she would not have agreed to the settlement as it is. The relief sought by the plaintiff is not the same when the settlement order was made an order of court. The parties in the claim for damages are not the same parties as they appeared in the divorce proceedings. Previously, the divorce case was between the plaintiff and JC. Before the court now are different parties. This is diametrically opposed to the requirements of res judicata. The present matter deals with a claim for damages because of a fraudulent misrepresentation, whereas the previous matter on which the court adjudicated were the patrimonial consequences of the parties’ marriage.

Findings: It is apparent that certain entities which were part of the plaintiff’s and JC’s joint estate were not included in the original settlement agreement that was made an order of court. The plaintiff’s amended particulars of claim contain averments alleging all the material facts that give rise to an enforceable claim for damages that is based on misrepresentation or conduct of the defendants that resulted in the plaintiff not being aware of the full gross value of the joint estate at the time she entered into the settlement agreement. The plaintiff clearly sets out that she was made to believe that the assets mentioned in the settlement agreement were the only assets in the joint estate. It cannot therefore be said that the cause of action raised by the plaintiff is res judicata under the circumstances. It is completely predicated on a different cause of action. There is no merit in the defendants’ argument that the matter has already been adjudicated. It is evident from the plaintiff’s amended particulars of claim that if the plaintiff had known the true and exact facts about the status of the joint estate, she would not have entered into the settlement agreement.

Order: The exception is dismissed with costs.

MTHIMUNYE AJ

Facts: Various divisions were all part of Voltex which was the parent company including Waco and Waco-R (Waco Retail). The only difference was that Waco Industrial Division (Waco-D) in Port Elizabeth supplied wholesalers while Waco-R supplied retail customers. The applicants had worked for the Waco-Division where they were store assistants and pulled stock for customers from the warehouses. For operational reasons, Waco-R was brought under the same roof as Waco-D in Gqeberha. The three applicants refused to pull stock that was previously done at Waco-R but continued to do the work that was related to Waco-D. It was explained to the applicants that Waco-D and Waco-R were in fact the same company and were divisions of Voltex, but the applicants still refused to pull the stock for Waco-R. They persisted with their refusals and were later dismissed.

Application: The applicants filed a statement of claim seeking an order that their dismissal for embarking on an unprotected strike be declared to be substantively unfair, and other ancillary relief.

Discussion: The testimony for the company was that that there was no change to the working hours of the applicants and if for some reason there was an incident for such, they would be compensated within the overtime work remuneration pay structure. Their refusals put the company under pressure because other employees had to do the work of the applicants in as far as Waco R products were concerned. It had a bad effect because the orders of customers could not be processed on time, and this risked viability as customers could simply switch to other suppliers. Mr Daniels (one of the three applicants) testified that if this court were to re-instate the applicants, they would start all over again and continue with their actions until their demands were met.

Findings: The applicants did not seek to comply with any of the requirements of a protected strike. It is trite that industrial action that does not comply with the requirements that are set out in the Labour Relations Act may not be entitled to the protection that it affords. The applicants, having possibly reflected on their conduct for a period of no less than five years, did not show any semblance of remorse. Having regard to the fact that the applicants ignored ultimatums, the explanation provided by the Divisional Manager, who was brought from Johannesburg at the instance of the applicants, and the applicant’s stated intention of going back to their actions, if reinstated, the dismissal of the applicants was substantively fair.

Order: The application is dismissed. There is no order as to costs.

MATYOLO AJ

Facts: Mr Ntsokolo commenced his employment with Eskom in 1991. During his employment, he held various positions including the position of Group Executive: Transmission, Group Executive: Human Resources and Group Executive: Generation. At the time of his dismissal in 2018, he held the position of Group Executive: Distribution, the F-Band level position. He was dismissed from Eskom due to operational requirements following a consultation process in terms of section 189 of the Labour Relations Act 66 of 1995. The section 189 process was pursuant to Eskom’s restructuring process which impacted its executive structure and, pertinently, the F-Band level.

Application: In this litigation, Mr Ntsokolo is challenging the substantive and procedural fairness of his dismissal and seeks an order for compensation of 24 months’ remuneration; that the policy on voluntary severance packages (VSP) applies to him; payment of his full benefits as per the Eskom Provident Fund; and compensation for the inconvenience and trauma he suffered due to his alleged unfair dismissal.

Discussion: In response to being informed that his position no longer existed in the new structure, Mr Ntsokolo applied for certain executive positions. His interview was held but he was later informed that his application for the vacant positions was unsuccessful and he was given 10 days to clear his desk. Mr Ntsokolo accepts that, once his position was abolished, he became displaced. Consequently, he had to compete for placement in the new structure in order to avoid his retrenchment. Eskom took no issue with Mr Ntsokolo’s qualifications, skills and impressive organisational experience. In fact, it was conceded that he had the necessary skills and expertise suitable for the positions he was interviewed for. Yet, Mr Ntsokolo was not recommended for appointment. Conspicuously absent is evidence by Eskom to show in what manner Mr Ntsokolo’s 15 years of experience as a member of EXCO disqualified him for appointment.

Findings: It would seem that the approach that was adopted by the panel and the views they expressed in the end were contrary to the context provided in the recruitment interview questionnaire which enjoined them to be cognisance of the fact that interviews were taking place as part of a section 189 consultation process, the candidates were F-Band employees with reasonable knowledge of the company, and they had participated in high-level discussions about the direction and strategy of Eskom. It is apparent that the interviewing panel veered off the objective process envisaged within the context of restructuring due to operational requirements. They became oblivious to the requirement that, in a section 189 process, the employer is expected to take such steps as may be reasonable to avoid or minimise retrenchments, which may include redeployment within the new structure or elsewhere in the organisation. The common cause and undisputed evidence show that there was no rational basis for the decision not to appoint Mr Ntsokolo in one of the vacant positions he had applied for, in order to avoid his retrenchment.

Order: The dismissal of Mr Ntsokolo was substantively and procedurally unfair. Eskom shall pay the applicant compensation equivalent to 12 months’ remuneration, within one month after delivery of this judgment. Eskom shall pay 80% of the applicant’s costs.

NKUTHA-NKONTWANA J

Facts: A fire broke out the plaintiff’s premises. Eduan was the only witness who was at the scene the whole time from when the fire first ignited to the evening and who observed, from his point of view, the relevant events. Eduan did not know that there was no water on the day. There was a water interruption to the East End area on the day of the fire and there was consequently no water available at the premises of the plaintiff. Eduan became aware of the fire when an employee shouted that there was a fire. Eduan ran to the hose reel inside the building and rolled it off completely. When he opened it, there was no water. Outside the building was a second hose reel which he then took, tested it for water, but there was also no water available. The vehicle wreck where the fire ignited then set alight the vehicle which was packed on top of it. After approximately 10 to 15 minutes after the fire truck started spraying water, the water of the water truck was also emptied out. The water truck left to refill, but while it was away, the fire re-ignited. After the water tanker returned, the fire truck again sprayed water on the fire to extinguish it, but by that time it had spread.

Application: The plaintiff instituted a delictual action against the defendants for damages as the result of a fire which ignited at its premises. The amount claimed by the plaintiff amounts to R785,714.30 consisting of general damages for the value of the total loss of vehicles and spare parts and consequential damages in the form of loss of income from the sale of the aforesaid vehicles and spare parts.

Discussion: The fact that Eduan was not able to contain the fire, was not due to the inadequacy of the plaintiffs’ permanent fire-fighting equipment, but due to the absence of water for the hose reels. The fire would therefore not have spread if it had not been for the absence of water when Eduan attempted to use the hose reels. The “second” spreading of the fire occurred when the water tanker left to fill up with water. Had there been water in the fire hydrants, the water tanker would not even have been necessary, as the fire truck would have extracted water directly from the fire hydrants. It cannot be found that the plaintiff had been contributory negligent in any degree in having caused the damages suffered by the plaintiff. The legal duty or statutory duty of the defendant to ensure within its means and its available resources, water supply to residents and businesses in the East End area on the day of the fire, is not in dispute and has been conceded by the defendants. A water interruption to the East End area in fact occurred on the day of the fire, which resulted in the premises and the fire hydrants to have been without water during the time of the fire. That omission of the defendant was therefore prima facie wrongful.

Findings: The plaintiff proved the wrongfulness of the defendant’s conduct due to its failure to have complied with its (conceded) legal duty or statutory duty. A reasonable person in the position of the defendant would have foreseen the reasonable possibility that the extended interruption of the water could injure another person’s property and cause patrimonial loss, and such a reasonable person would have taken reasonable steps to guard against such occurrence. The defendant failed to take such reasonable steps. The plaintiff discharged its onus in respect of the element of negligence. The quantum of the plaintiff’s general damages is not in dispute. Regarding the consequential damages claimed by the plaintiff, it is pleaded to be damages in the form of loss of income from the sale of the vehicles and spare parts lost in the fire. Steyn attempted to explain how the amount of R185,292.58 was compounded and calculated, but was unable to do so. Damages and the basis for the calculation thereof are to be proven, not guessed. No proper and reliable evidence was placed on the basis of which the court can award any amount of damages in respect of consequential damages. It is on the balance of probabilities evident that the wrongful and negligent omission of the first defendant was the cause of the plaintiff’s general damages, and it should be held responsible for the payment thereof.

Order: The defendants are ordered to pay R648,542.02.

VAN ZYL J