Neti v Eberspacher SA (Pty) Ltd (PS 27/13) [2015] ZALCPE 18 (24 March 2015) per Euijen AJ.

The Labour Court was confined to the issues in the pleadings as narrowed and limited in the pre-trial minute.  It was not substantively unfair to refuse to appoint a longer serving employee to a more senior position for which he was unqualified.  The employee abandoned or otherwise frustrated the consultation process and was precluded from complaining about procedural unfairness.

“[27] In NUMSA v Driveline Technologies (Pty) Ltd & another [2007] ZALC 66; [2000] 1 BLLR 20 (LAC), Conradie JA said the following about the binding effect of admissions made in the pre-trial minute: (at p 26, para [16])

“It is true, of course, that a pre-trial agreement is a consensual document which binds the parties thereto and obliges the court (in the same way as the parties’ pleadings do) to decide only the issues set out therein. In particular, a party who agrees to claim only limited relief would be bound by his agreement (Shoredits Construction (Pty) Ltd v Pienaar NO & others [1995] 4 BLLR 32 (LAC) at 34C–F).

The agreement in Reunert Industries (Pty) Ltd t/a Reutech Defence Industries v Naicker & others [1997] 12 BLLR 1632 (LC) was not a pre-trial agreement which served to further define issues in a set of pleadings; it was an agreement that the fairness of the sanction imposed on an employee would not be challenged before a CCMA commissioner.

It was, quite correctly, held that the commissioner exceeded her powers in then redetermining the sanction. It was an agreement limiting the issues which is usually binding (Filta-Matix (Pty) Ltd v Freudenberg and others [1997] ZASCA 110; 1998 (1) SA 606 (SCA) at 614B–D).”

[28] In the present case too, the applicant expressly abandoned, in the pre-trial minute, any reliance on challenging the need for his redundancy and instead limited his challenge under the heading of substantive fairness to the issue of whether he should have bumped the incumbent from the human resources manager’s position, Mr Marriott. Admissions can be withdrawn and pleadings amended, but this would require an application in each case and no such application was made here. (Driveline at p 42, paras [93-94]).

[29] This renders it unnecessary to consider Mr Neti’s complaint in his evidence about the necessity for his retrenchment.”