Buffalo City Municipality v Grey

• Jurisdiction: South Africa
• Judge: NG Beshe J
• Judgment Date: 29 January 2015
• Docket Number: EL 137/08
• Court: East London Local Division
• Hearing Date: 21 October 2014
• Citation: 2015 JDR 0139 (ECGEL)

JUDGMENT – APPLICATION FOR LEAVE TO APPEAL

Beshe, J:

[1]

This is an application for leave to appeal my judgment of the 29 May 2014 the result of which was the dismissal of plaintiff's claim. For convenience I will refer to the parties as they were in the trial. The applicant was the plaintiff in the matter.

[2]

As it appears from my judgment, plaintiff instituted action against the defendant for payment of a sum of R124 145.00. Plaintiff alleged that it suffered loss in the amount claimed as a result of defendant's theft, alternatively misappropriation, alternatively breach of conditions of employment contract entered into between the plaintiff and the defendant.

[3]

It became apparent during the trial that plaintiff placed reliance on the last alternative – for its claim against the defendant, namely that in breach of the

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Beshe, J

conditions of his employment contract defendant failed to safeguard plaintiff's monies resulting in the loss of the amount claimed. It was alleged that defendant was holding the position of Resort Superintendent. This allegation was contained in paragraph 3 of the plaintiff's particulars of claim (POC). In his plea defendant noted the contents of paragraph 3 of POC. Paragraph 4 of POC listed defendants' duties in his capacity as Resort Superintendent. Defendant denied that he was responsible for the duties listed in paragraph 4 of POC. During the course of the trial, defendant applied for leave to withdraw the admission that he was appointed as a Resort Superintendent. Because by "noting" the allegation he is deemed to have admitted it. (Rule 22 (3)) This admission seems to have been repeated during a pre-trial conference.

[4]

Defendant was granted leave to withdraw the admission in question based on the principles governing applications for amendment of pleadings.

[5]

The application for leave to appeal is premised on the ground inter alia that I erred by permitting the respondent to withdraw the admission that he was appointed as a Resort Superintendent. That there was evidence to show that he was appointed to this position. That he failed to comply with his obligation in terms of the contract of employment.

[6]

It became apparent during the trial that there was uncertainty as to whether defendant was appointed as Resort Superintendent. As I pointed out in my judgment, evidence favours the proposition that defendant's appointment was provisional and depended on another process that was to be embarked upon. It is clear that defendant took issue with the post level he was placed in which was level 13. It became clear that there was uncertainty regarding defendant's post

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Beshe, J

level, to the extent that in one report it is suggested that defendant signed the "wrong old" job description for placement purposes. At the foot of the said report André Van Eck remarks as follows:

"I do not accept that Mr Grey (the...