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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR1944/12
DAVID CHAUKE Applicant
SAFETY AND SECURITY SECTORAL BARGAINING COUNCIL
THE MINISTER OF POLICE Second Respondent
COMMISSIONER F J VAN DER MERWE, N.O. Third Respondent
THE MINISTER OF LABOUR Fourth Respondent
Heard: 13 August 2015
Delivered: 10 September 2015
Summary: Application for review in terms of s. 158(1)(g) of the LRA; Applicant seeking to set aside a Condonation Ruling; Second Respondent raising an Exception to the application for review in terms of Rule 23 of the Uniform Rules of Court; Exception in motion proceedings incompetent and bad in law; On the merits of the review, no case made out for the setting aside of the Condonation Ruling; Application dismissed with no order as to costs.
 This is an application to review and set aside a Condonation Ruling issued by
the Third Respondent (hereinafter the Commissioner) on 26 July 2012 under
case number PSSS 446-07/08. In so issuing the Ruling under review, the
Commissioner was acting under the auspices of the First Respondent, Safety
and Security Sectoral Bargaining Council (hereinafter the SSSBC).
 The application for review is brought in terms of s 158(1)(g) of the Labour
Relations Act,1 read together with s 145 of the same Act. It was filed with this
Court on 21 August 2012. The application is opposed only by the Second
 After the review application was delivered and on 28 August 2012, the First
and Fourth Respondents delivered a notice of their intention to oppose.2 In
further resisting the review, the Second Respondent took exception to the
manner in which the application was framed and to what was contained in the
affidavit in support thereof. In this regard to the latter and on 08 October 2012,
the Second Respondent delivered what it labelled as its Notice to the
Applicant in terms of Rule 11 of the Labour Court Rules read with Rule 23 of
the High Court Rules.
 The aforementioned Notice raised a few complaints against the Applicants
application for review. In essence, the Second Respondent complained that
the Applicants application for review (i) constituted an irregular proceeding
and (ii) was excipiable on the basis that it lacked averments necessary to
sustain a cause of action and that it contained averments that are vague and
1 Act 66 of 1995 as amended (the LRA).
2 In the end however, it was only the Second Respondent that persisted with opposing the matter.
 It was mentioned in the aforesaid Notice that if the Applicant does not
remedy the defects within 15 days of receipt of [the] notice the Second
Respondent will apply to this Honourable Court to set aside the Application on
the grounds that it constitutes an irregular proceeding and / or is vague and
embarrassing and fails to disclose a cause of action.3
 The Applicant did not remedy the alleged defects. Instead, he delivered what
he termed a Replication to Second Respondents Notice to the Applicant in
terms of Rule 11 of the Labour Court Rules read with Rule 23 of the High
 In his purported Replication, the Applicant rejected the Second Respondents
assertions that his application for review constituted an irregular proceeding
and/or that same was excipiable. The Applicant tabulated his reasons for
disagreeing with the Second Respondent. These somehow went into the
merits of his overall case against the Second Respondent.
 With the Applicant having failed to remedy the identified defects, the Second
Respondent delivered what it labelled as an Exception. The Exception was
grounded on the Applicants application for review (i) lacking averments
necessary to sustain a cause of action and (ii) containing averments that are
vague and embarrassing.
 I need to say something about the Second Respondents approach in
resisting the application for review. I do so before delving into the merits of the
The Exception to the application for review:
 The approach adopted by the Second Respondent in resisting the review
application involves the importation of the provisions of Rule 23 of the Uniform
Rules of Court into proceedings before this Court. Such an approach is
permissible under Rule 11(3) of the Rules of the Labour Court, the provisions
of which read as follows:
3 In the Second Respondents Notice under discussion, no distinction seems to be drawn between the provisions of Rule 23 and Rule 30 of the Uniform Rules of Court. Rule 23 deals with exceptions and applications to strike
out whereas Rule 30 deals with irregular proceedings.
If a situation for which these rules do not provide arises in proceedings
or contemplated proceedings, the court may adopt any approach that it
deems appropriate in the circumstances.
 There is no provision in the Rules of the Labour Court that deals with
Exceptions and/or Irregular Proceedings. It is, by now, accepted that an
Exception can be raised in proceedings before this Court through reliance on
Rule 11, read together with Rule 23 of the Uniform Rules of Court.4
 There is, accordingly, no controversy in raising an Exception to a claim
brought under Rule 6 of the Rules of the Labour Court.5 What I, however,
need to deal with in this matter is the permissibility of an Exception in motion
proceedings before this Court. This necessitates an analytical look at the
provisions of Rule 23 of the Uniform Rules of Court. Rule 23(1) reads as
Where any pleading is vague and embarrassing or lacks averments
which are necessary to sustain an action or defence, as the case may
be, the opposing party may, within the period allowed for filling any
subsequent pleading, deliver an exception thereto and may set it down
for hearing in terms of paragraph (f) of subrule (5) of rule (6): Provided
that where a party intends to take an exception that a pleading is vague
and embarrassing he shall within the period allowed as aforesaid by
notice afford his opponent an opportunity of removing the cause of
complaint within 15 days: Provided further that the party excepting shall
within ten days from the date on which a reply to such notice is
received or from the date on which such reply is due, deliver his
exception. [own emphasis]
 It is evident from the above that the Exception contemplated by Rule 23 is
directed at a pleading. In this matter, we are dealing with a notice of motion
accompanied by an affidavit.
4 Van Rooy v Nedcor Bank Ltd (1998) 19 ILJ 1258 (LC); Eagleton & Others v You Asked Services (Pty) Ltd (2009) 30 ILJ 320 (LC) at para 15; Charlton v Parliament of the Republic of SA (2011) 32 ILJ 2419 (SCA) at para 16; De Klerk v Cape Union Mart International (Pty) Ltd (2012) 33 ILJ 2887 (LC) at para 18. 5 Ibid.
 In my considered view, there is a material distinction between a pleading and
an affidavit. In Herbstein & Van Winsen: The Civil Practice of the High Courts
of South Africa,6 the following is stated:
In South Africa the term pleading is used in a more restricted
sense and does not include documents such as petitions, notices
of motion, affidavits, simple summons, provisional sentence
summons or writs of arrest.
 In AB Civils (Pty) Ltd t/a Planthire v Barnard,7 the LAC held thus:
An affidavit is not a pleading. It is a means of putting evidence
before the court. It takes the place of viva voce testimony.8
 In this matter, the Second Respondents Exception is, therefore, not directed
at a pleading but at the affidavit in support of the review application. In my
opinion, that is incompetent. The provisions of Rule 23(1) specifically make
reference to instances where any pleading is vague and embarrassing or
lacks averments which are necessary to sustain an action or defence.
 The Uniform Rules of Court do not permit Rule 23 to be applicable in motion
proceedings. In affirming this, I refer to the decision of Schippers J in WP
Fresh Distributors (Pty) Ltd v Klaaste,9 where the following was held:
Rule 23(1) provides inter alia that where any pleading is vague
and embarrassing or lacks averments necessary to sustain an
action, the opposing party may deliver an exception thereto and
may set it down for hearing; provided that where a party intends to
take an exception that a pleading is vague and embarrassing, the
opponent must be given an opportunity of removing the cause of
complaint. However, in applications there is no recognized
procedure for raising an exception before the case comes to trial.
Instead, rule 6(5)(d) requires any person opposing an order
6 5th Ed., Vol. 1, Juta & Co. Ltd, at p. 558. 7 (2000) 21 ILJ 319 (LAC). 8 At para 7.
9 (16473/12)  Z