Employment law update – Amending a pleading v amending pre-trial minutes

March 1st, 2023
AMCU obo Wayise and Others v Rand Uranium (Pty) Ltd (LC) (unreported case no JS658/17, 8-12-2022) (Sass AJ)

Does it necessarily follow in law, that once an application to amend a statement of claim is granted, the pre-trial minutes concluded between the parties are axiomatically likewise amended? This was one of the questions the court dealt with in this matter.

The applicant trade union, the Association of Mineworkers and Construction Union (AMCU), made an application to make 18 amendments to its statement of claim, which was duly opposed by the respondent employer. In its notice of motion, the union only sought leave to amend its statement of claim. However, in its replying affidavit and in argument, the union further sought to amend the pre-trail minutes in consequence of the amendments to its statement of claim.

Relying on the principle that an applicant must make out its case in the founding affidavit and not, for the first time, in its replying affidavit; the court rejected the union’s attempt to argue that the application before the court, included an application to amend the pre-trial minutes.

The question before the court was whether an application to amend a statement of claim, if granted, would automatically amend the pre-trial minutes accordingly.

On the strength of the decision in Putco Limited v Transport and Allied Workers Union of South Africa and Another (LC) (unreported case no J2578/10, 18-2-2015) (Molahlehi, J), the court noted that if an application to amend a pleading is granted, it would not inevitably translate to the pre-trail minutes being likewise amended. A litigant needs to make out a separate case should it wish to amend the pre-trial minutes. On this point the court held:

‘The applicants were, therefore, required to not only apply to amend the statement of claim but also apply to amend the pre-trial minute. They have not done so in their notice of motion and founding affidavit. The amending of the statement of claim would not automatically result in an amendment to the pre-trial minute – that relief must be sought specifically.’

In further support of this position, the court considered the fact that the test for whether an amendment to a pleading should be granted, materially differs from the test regarding whether an amendment to a pre-trial minute, ought to be granted.

In summary, the test for an amendment to pleadings is:

  • ‘Is the amendment necessary for the proper ventilation of the dispute between the parties?
  • If leave to amend is granted, will the respondent be prejudiced?
  • If the respondent is prejudiced, can the respondent’s prejudice be cured and/or corrected?’

Whereas the test to determine whether a party would be granted leave to amend a pre-trail minute, differs. Referring to the decision in Chemical, Energy, Paper, Printing, Wood and Allied Workers’ Union and Others v CTP Ltd and Another [2013] 4 BLLR 378 (LC), wherein the Labour Court, having regard to the status of a pre-trial minute and the importance thereof within the scheme of litigation, held:

‘A pre-trial minute is a consensual document and, in effect, constitutes a contract between the parties.

It is precisely because of the critical importance played by pre-trial conferences/minutes in the litigation process that the SCA has twice held that, in the absence of special circumstances, a party cannot resile from the agreement.

… [W]here a party in a pre-trial minute abandons a point, or agrees (expressly or by necessary implication) not to pursue/rely on the point, or otherwise informs the opposing party that the point will not be relied upon, then he will not be allowed to do so at a later stage, unless he is able to resile from the agreement on a basis upon which he would in law be able to resile from a contract.

… [S]pecial circumstances in the present context should, in my view, be understood as meaning that, in order to resile from the agreement (or part thereof), the applicant must establish a basis for doing so in the law of contract.’

In conclusion the court in casu stated:

‘The applicant is required to … follow the ordinary procedures that are applicable to an application to amend a pre-trial minute or resile wholly or in part from a pre-trial minute (ie, a contract) and not “piggy-back” on the amendment to the Statement of Claim.

It is trite that a pre-trial minute constitutes a binding agreement between the parties and that a party may only resile from that agreement if –

  • the other party consents;
  • if there are special circumstances which entitle that party to do so; or
  • a basis has been established for doing so in the law of contract.’

Returning to the application before it and applying the appropriate test, the court granted the applicant leave to amend its pleading but made no order as to the pre-trail minutes the parties entered into. The court directed the applicant to make out a substantive application to amend the pre-trail, should it wish to do so.

Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2023 (March) DR 31.