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IN THE LABOUR APPEAL COURT OF SOUTH AFRICA

HELD IN JOHANNESBURG

Case no: JA27/06

In the matter between

South African Nursing Council Appellant

and

HOSPERSA o.b.o Tersia Venter Respondent

JUDGMENT

ZONDO JP

Introduction

[1] This is an appeal against a decision of the Labour Court in terms of which that Court found that the appellant had unfairly discriminated against the respondent’s member, Ms Tersia Venter on the ground of her age in dismissing her and had ordered that she be paid compensation in an amount equal to 24 months remuneration based on her rate of pay at the time that she was dismissed. The respondent opposes the appeal. Before I can consider the appeal, it is necessary to set out the facts of this case.

The facts

[2] The facts of this case are by and large common cause or at least by the end of the leading of oral evidence at the trial, they had become common cause or were undisputed.

[3] The appellant is a statutory body created to regulate the nursing profession in the country. HOSPERSA is an acronym for a trade union which operates mainly in the public sector. It is the respondent in this appeal but it acts as a representative of Ms Tersia Venter.

[4] In 1984 Ms Tersia Venter (“Venter”) was employed by the South African Nursing Council which in 1995 was abolished and replaced by the South African Interim Nursing Council. Venter’s position was employed as secretary to the Registrar of the Council. In 1998 the South African Interim Nursing Council was also abolished. It was replaced by the current appellant, the South African Nursing Council.

[5] When Venter entered the employ of the South African Nursing Council in 1984, her conditions of service included a provision which dealt with the retirement age. That provision read as follows:

“An officer shall retire at the end of the month in which he attains the age of 70 years; provided that he may elect to retire at the end of the month in which he attains the age 65 years, or at any time thereafter.

The Council may at any time retire an officer or permit him to retire, if he is unable to carry out his duties satisfactorily.”

When the South African Interim Nursing Council replaced the South African Nursing Council established under the South African Nursing Act, 1978, employees of the former Council were asked to re-apply for employment. Venter testified that the then Registrar or interim Registrar informed her that there would be no job losses and the employees’ terms and conditions of employment would not change as a result of the restructuring that was taking place. Her evidence in this regard was not challenged.

[6] The letter from the then Acting Registrar and Chief Executive Officer of the South African Interim Nursing Council (which was on the letterheads of the then defunct South African Nursing Council) to Venter advising the latter of her appointment was dated 20 June 1996. In terms of that letter Venter was appointed as “Senior Administrative Officer: Personal Assistant to the Registrar and Chief Executive Officer.” That letter did not say anything about Venter’s terms and conditions of service. In par 11.1 of its heads of argument in this Court the appellant made the concession that “(t)he present [appellant] can be taken to be as liable to Venter as the Nursing Council by whom she was originally employed.” In paragraph 11.2 of its heads of argument the appellant also conceded that “the retirement clause in the terms and conditions of employment under which [Venter] was originally employed became a term of her original contract of employment with the [appellant].”

[7] On the 16^th April 1996 the South African Interim Nursing Council adopted new conditions of service. These conditions of service continued after the appellant had taken over from the SA Interim Nursing Council. They included the following provisions on retirement:

“(g) Retirement

“An officer shall retire at the end of the month in which he/she attains the age of 65 years, or 1 April of the year following the attainment of the age 60; provided that he/she may, with the permission of the Council, elect to retire after reaching the age of 60 years, but not later than 1 April following on the year in which he/she turns 65.

The Council may, after an investigation at any time retire an officer or permit him/her to retire, if he/she is unable to carry out his/her duties satisfactorily.

8. An officer may, with the permission of the Council, retire before attaining the age of 60 years, according to the provisions of the relevant provident or pension fund.”

Venter testified that she was not consulted about the introduction of this new retirement age nor did she consent to it becoming part of her terms and conditions of employment. The appellant’s only witness had no personal knowledge of this but, based on minutes of a certain meeting of the Council she, sought to testify that there was consultation with Venter. Her evidence was hearsay as she was not in the appellant’s employ at the relevant time and, therefore, could not have had personal knowledge of what had happened. Accordingly, the matter must be decided on the basis that Venter’s evidence in this regard is uncontradicted and must be accepted.

[7] Venter testified that the new service conditions applied to new employees and that her conditions of service which had applied as from 1984 when she was employed by the then South African Nursing Council continued to apply. In this regard it is necessary to refer to a provision of the Nursing Amendment Act that sought to preserve the conditions of service of the employees of the South African Nursing Council who got employed by the South African Interim Nursing Council. The relevant provision read as follows:

“Any person who immediately before the date on which the Interim Council is abolished, is in the employment of the Interim Council, shall with effect from that date be deemed to have been appointed by the Council in its employment on the same conditions of service (including conditions as to remuneration) as those which immediately before that date applied in respect of that person.”

[8] Venter was to turn 60 on the 8^th September 2003. She testified that the then human resources manager of the appellant, a certain Mr Paul Morake, spoke to her and said that, if she wanted to work beyond such age, she should request an extension of her retirement date. In effect this meant that she should request a postponement of her retirement. By a letter dated 17 January 2003 Venter made such a request. The letter was addressed to: “The Registrar and Chief Executive Officer” of the appellant. The heading and body of the letter read thus:

“AN EXTENSION OF RETIREMENT

I wish to inform you that as on 8 September 2003 I shall turn 60 and thus it will be my pensionable month as well.

I hereby ask if I can continue working up to 2008 when I shall turn 65.

I love working for the South African Nursing Council and feel that I am still full of vitality and meaningful to the Registrar and Council.

Thanking you in anticipation.”

[9] The Registrar and Chief Executive Officer of the appellant replied on behalf of the appellant Council by a letter of 9 March 2003 and advised Venter that the appellant had granted her an extension of the retirement date up to 30 September 2004.

[10] On the 16^th February 2004 Venter wrote to the Registrar responding to the latter’s letter of the 9^th March 2003. She referred to the Registrar’s letter of the 9^th March 2003 and, once again, requested that she be given an “extension until September 2008 when I shall be 65 years of age, or by the earliest April 2006.” In support of her request on this occasion Venter inter alia said:

“I also wish to inform you that at the time of my appointment my Conditions of Service allow me to work to 65 and even up to 70, should I so wish.”

Venter also annexed to her letter a number of documents including her letter of appointment dated 20 March 1984 and the rule on retirement given to her in 1984. By letter dated 29 June 2004 the Registrar informed Venter that the appellant Council had considered her request but had not extended her retirement date further and had reiterated that her last date in the appellant’s service was going to be the 30^th September 2004.

[11] With regard to her letter of 17 January 2004 that is the first letter requesting an extension of her retirement date – Venter was asked during her evidence why she had written that letter and requested an extension of her retirement date when she would turn 60 when she knew that in terms of her service conditions the mandatory retirement age applicable to her was 70 but she could elect to retire at 65. Venter responded that she did so because at the beginning of the year (i.e. 2003) the human resources manager, Mr Paul Morake advised her to apply for an extension despite the fact that she had informed him that in terms of her conditions of service she could work up to age 70. Venter said that she even showed Mr Marake her conditions of service which were to the effect that her mandatory age of retirement was 70 but he still suggested that she should write and request an extension as she did.

[12] After the appellant’s council had refused to extend Venter’s retirement date pursuant to her second letter, she seems to have handed the matter over to her trade union, HOSPERSA. HOSPERSA and the Registrar exchanged correspondence for some time but the matter was not resolved. One of the letters written by HOSPERSA to the appellant’s Registrar on Venter’s complaint was dated 16 July 2004. The body of the letter reads as follows:

“The above matter refers.

We acknowledge receipt of your response and attachments to our previous letter. We do, however, [have] a further serious concerns (sic) referring to Mrs Venter’s application for extension that was rejected by yourselves. The letter of rejection makes no reference to the reasons for refusal.

We have also been advised that several other applications for extensions have been granted, and our member believes that there is inconsistent application of the criteria for the granting of extensions. It is our contention that this inconsistent application amounts to discrimination of Mrs Venter (who is a disabled person).

We have therefore been instructed to insist that Mrs Venter’s application for extension be reviewed. It is our understanding that the Council is convening on Monday 19 July and we believe that this would be an opportune time to review the decision.

We are of the opinion that Mrs Venter is being discriminated against and we have a mandate to take all necessary steps to protect our member’s rights.

We trust that this matter will receive your most urgent attention and look forward to your response.”

This letter from HOSPERSA was written by Mr Julian Botha who was Labour Relations Organizer - Private Sector.

[13] There is another letter in the record from HOSPERSA to the Registrar bearing the same date, namely, 16 July 2004. The heading is: “Mrs T.M. Venter.” The body of the letter reads:

“The above matter refers.

Ms Venter is a member of our trade union and has approached us with regard to a notification that was sent to her on 29 June 2004 pertaining to her retirement date.

We have reviewed that documentation provided to us by Mrs Venter as well as the relevant legislation.

It is our contention that Mrs Venter’s retirement age is 65 years as governed by the Nursing Amendment Act No 19 of 1997 [at s 11(5)], and related legislation. It is understood that the Council has taken a decision to have a retirement age of 60 years, but this cannot supersede the protection afforded to Mrs Venter in terms of the legislation.

We therefore insist that the letter dated 29 June 2004 be withdrawn and written confirmation be provided to Mrs Venter of her retirement occurring at age 65.

We trust that this matter will receive your most urgent attention and look forward to your response.”

[14] In July 2004 HOSPERSA referred the dispute to the Commission for Conciliation Mediation and Arbitration (“CCMA”). Paragraph 3 of the referral form inter alia required the party referring the dispute to tick one out of a number of boxes to indicate what the dispute was about. HOSPERSA ticked a box that described the dispute to be about “unfair discrimination (s 10 of the Employment Equity Act”) as well as another box marked “other (please describe”). In regard to the latter box HOSPERSA wrote “alternative: changes to retirement age.” In the same paragraph Hospersa was required to “summarise the facts of the dispute you are referring”. In response to this HOSPERSA wrote:

“Referring party’s application to extend retirement date was rejected without reason whereas other employees’ applications were granted. No reason for refusal were (sic) given. Referring party is disabled but is still able to perform duties.”

In par 6 of the referral form HOSPERSA was asked to state the outcome it desired out of the conciliation process. Hospersa responded thus to this: “To have contract of employment extended until the referring party turns 65.” The referral form was dated 29 July 2004.

[15] The conciliation process failed to produce a resolution of the dispute and the dispute was referred to the Labour Court for adjudication. In the meantime Venter left the appellant’s employ. It would seem that she left the appellant’s employ in November 2004. It is therefore important to bear in mind that, when the dispute was referred to the CCMA for conciliation in July 2004, Venter had not yet been dismissed and the dismissal took effect months later in that year.

[15] HOSPERSA’s statement of claim was filed in the Labour Court on the 19^th November 2004. In paragraph 4 of HOSPERSA’s statement of claim HOSPERSA gave a “statement of the facts that” it said would “be relied on to establish the applicant’s claim.” In par 4.1 of the statement of claim reference was made to the year in which Venter was appointed and the capacity in which she was appointed. In par 4.2 reference was made to the fact that in terms of her original conditions of service her mandatory retirement age was 70 years but she could retire at 65. Par 4.3 dealt with the dissolution of the Nursing Council that was in existence when Venter was appointed and the creation of the South African Interim Nursing Council which was later replaced by the current appellant.

[16] In par 4.4 of the statement of claim it was stated that in April 1996 the South African Interim Nursing Council “unilaterally adopted amended (sic) terms and conditions of employment which inter alia amended the retirement age contained in the original terms and conditions of employment applicable to the Applicant. In terms of the amended terms and conditions of employment, the retirement age became sixty (60) years however an employee could with the permission of the Council elect to retire at anytime thereafter but no later than the 1^st April following the attainment of the age of 65. The aforementioned terms and conditions of employment were adopted by the Respondent.” In par 45 Hospersa referred to the fact that Venter applied for an extension of the retirement date to when she would reach the age of 65 years and that she was only granted an extension of one year.

[16] In par 4.6 of the HOSPERSA’s statement of claim reference was made to the fact that Venter made another application or request for an extension of her retirement date. It was stated that this was rejected and no reasons were furnished to Venter except to say that she had reached her retirement age. Later in that paragraph the following was stated:

“[Venter] has been discriminated against on the basis of her age and on her disabilities as other employees were allowed to continue working beyond their respective retirement dates for eg…

1. John Khalo

2. Mrs Ivy Macho

3. Dr Grace Ramadi

4. Mr Bielfeld

5. Mr Bermishuizen

6. Mr Subedar has been allowed to work beyond her contract without having to reapply.”

[17] Under par 5 of the statement of claim HOSPERSA dealt with the legal issues that it alleged arose from the allegations of fact made in the preceding paragraphs in the statement of claim. In par 5.1 Hospersa gave the only issue of discrimination it alleged to arise from the allegations of fact. Par 5.1 read thus:

“That by not considering alternatively [by] declining the Applicant’s application for extended employment when other applications had been granted amount to unfair discrimination on the grounds of age/disability as contemplated in Section 6 of the Employment Equity Act 55 of 1998.”

In par 6 HOSPERSA dealt with the relief sought. In par 6.1 it said it sought:

“An order declaring that the [Appellant’s] actions in failing to consider [Venter’s] application for extension of employment to amount to unfair discrimination based on age alternatively disability.”

In par 6.2 it was stated that HOSPERSA sought an order:

“Ordering the [appellant] to cease with the unfair discrimination and to re-instate the [Venter] with full retrospective effect.” In par 6.3 an alternative prayer for compensation was sought.

[18] In the pre-trial minute that the parties subsequently agreed upon, the parties agreed that some of the allegations of fact in dispute were the following:

“3.1 Whether or not there was a unilateral change to terms and conditions of employment including the retirement age in respect of those employees of the existing nursing councils which became employees of the transitional nursing council.

2. Whether there was a normal alternatively agreed retirement age in place for the respondent and, if so, whether this is sixty (60) years.

3. Whether the applicant alternatively any other employees were consulted regarding the new proposed conditions of service.

4. Whether the Respondent discriminated against the applicant on the basis of her age or disability.

5. Whether the Applicant’s application for a further extension made on the 16^th February 2004 was considered by the Respondent.”

Under paragraph 4 of the pre-trial minute the parties set out the issues which they agreed that the Court was required to decide. The first one under par 4.1, was “whether there was an agreed or normal retirement age which obliged employees of South African Nursing Council such as the applicant to retire at sixty (60)”. The second issue, under par 4.2, was “whether the Respondent [‘s] insisting that the applicant retire at sixty one (61) discriminated against her on the basis of age alternatively disability.” The third, under par 4.3 was “whether there was a unilateral amendment to the applicant’s terms and conditions of employment including retirement age.”

[19] In the opening statement that Hospersa’s attorney made at the commencement of the trial, it is clear that Venter’s and Hospersa’s case was based on the Appellant’s decision refusing to extend Venter’s retirement date and that this was the conduct that was alleged to constitute unfair discrimination. It is also clear from that opening statement that the other employees that were alleged to have been treated more favourably than Venter were those who had the same conditions of service as Venter (i.e the 1984 conditions of service) and not others and in this regard Mr Frank Germishuizen’s name was given in the opening address.

Judgment of the Labour Court

[20] In its judgment the Labour Court noted that it was not HOSPERSA’s case that this was a dismissal that contended to be automatically unfair by reason of being based on age in terms of sec 187(2)(f) of the Labour Relations Act, 1995 (“the LRA”). It was a claim based on sec 6 of the Employment Equity Act 55 of 1998 (“the EEA”). In paragraphs 23, 24 and 25 of its judgement the Labour Court said:

“[23] Mr Beaton, for the Respondent, argued that there was no discrimination. Another employee, Ms Macha applied for and was granted an extension of her employment after she had turned 60. The reasons for this extension were her personal circumstances. Mr Beaton argues that both Ms Venter and Ms Macha were over 60 and that there is no evidence that Ms Macha’s employment was extended because she was younger, or older, than the Applicant. Accordingly, he says, this ground falls away.

[24] Mr Beaton’s argument, with respect, misses the point. In deciding whether there was discrimination, it is so that the court must first establish whether there was differentiation between people or categories of people.

[25] In deciding whether the employer had discriminated against an employee on the basis of age, however, the question is not how the employer treated other employees of the same age. The ‘comparator”, insofar as one may be necessary at all, is any other employee of any age – in other words, was the sole reason for treating the employee differently to any other employee her age? If so, discrimination is established on a listed ground. The onus is then on the employer to show that it is fair, in terms of section 11 of the Employment Equity Act.”

[21] In par 27 of its judgment the Labour Court referred to and discussed the decision of the Supreme Court of Canada in McKinney v University of Guelph [1990] 3 S.C.R 229 and that of Andrews v Law Society of British Columbia 1989 CanLII 2 (SC); [1989] 1 S.C.R 143. The Labour Court found that Venter had never agreed to have her mandatory retirement age of 70 changed to 60 nor had the appellant proved that 60 was the normal retirement age. The Court found that discrimination was based on age and was unfair. It ordered the appellant to pay Venter compensation in the amount of R180 000, 00 being an amount equal to Venter’s 24 months remuneration. It made no order as to costs.

The appeal.

[22] Before us the thrust of the appellant’s appeal was that the case that the Labour Court decided was not the case that the parties dealt with in that court and was not the case that the appellant had been called upon to decide and was not the case that was canvassed in the trial by the parties. The appellant contended that this was unfair to it because, while it had successfully met the case that the respondent presented to the Court a quo for the appellant to meet, it had not sought to meet the case that the Court a quo decided because that had not been the case that the respondent called upon it to meet at trial.

[23] The two cases referred to above are these:

23.1 The one is a claim that the appellant dismissed the respondent from its employment on grounds of age as she had reached its retirement age and such dismissal constituted unfair discrimination as contemplated in sec 6 of the Employment Equity Act. For convenience I shall call this the “dismissal case” or “dismissal claim” or “dismissal dispute” That is the case that was decided by the Labour Court which the appellant contends is not the case it was called upon to meet at trial.

23.2 The other is a claim that Venter applied for the extension of her retirement date or of the extension of her retirement age of 60 in her case to when she would turn 65 and that the appellant declined this request– thus bringing Venter’s continued employment to an end – while it granted requests for extensions made by certain other employees and that the appellant’s refusal to grant Venter’s request for such extension constituted unfair discrimination. For convenience I shall call this claim “the retirement extension “claim” or the “retirement extension dispute” or “retirement extension case”. This is the case which the appellant contends the respondent placed before the Labour Court for adjudication and the case that it was called upon to meet and duly met but which the Court a quo did not decide. The appellant contends that the Court a quo was not entitled to decide the “dismissal case” but was obliged to decide the “retirement extension” case.

[24] Counsel for the appellant submitted that the dispute or claim that the respondent referred to the CCMA for conciliation was not the dismissal dispute but the retirement extension dispute relating to the appellant’s refusal to grant Venter’s request for an extension of the retirement age to 65 or effectively for the postponement of her retirement date. Counsel for the appellant also pointed out that the case that was pleaded by the respondent in her statement of claim was not the dismissal case but the retirement extension case. Finally, he also pointed out that at the commencement of the trial the case that the respondent’s attorney outlined in his opening statement as the respondent’s case was not the dismissal case but the retirement extension case. Counsel submitted that the evidence that was led at the trial was directed at the retirement extension case and not at the dismissal case. Counsel for the appellant submitted that in those circumstances the Court a quo erred in deciding the dismissal case and not the retirement extension case. He further submitted that, had the Court a quo decided the matter on the basis of the retirement extension case that had been the subject of the trial, the Court would have found that no discrimination had been shown and would have dismissed the respondent’s claim.

[25] It is true that in the form for the referral of the dispute to the CCMA for conciliation, in the respondent’s statement of claim and in the opening statement of the respondent’s attorney, the respondent’s case was given as the retirement extension case. However, in the pre-trial minute agreed to between the parties the dismissal case seems to have also been included. This is apparent from a reading of the pre-trial minute.

[26] Counsel for the respondent contended that the “(r)espondent’s case was always based on two legs, namely, that her being forced to retire in terms of the appellant unilaterally adopting new terms and conditions of employment amount to discrimination and secondly that by not considering alternatively declining her application for extended employment when other applications had been granted amounted to unfair discrimination on the grounds of age/disability as contemplated in section 6 of the Employment Equity Act 55 of 1998”. He submitted that “to the extent that the Respondent’s case was not clearly set out in her statement of case this was cured by the agreement reached on the issues in the pre-trial minute”. He also pointed out that during the trial counsel for the appellant did not raise any objection that the respondent was enlarging her case beyond that which had been pleaded.

[27] In our adversarial trial system it is of the utmost importance that the plaintiff/applicant in a dispute or civil matter should inform the defendant/respondent in clear and unequivocal terms exactly what his complaint/case is against him so that the latter knows exactly what case he is required to meet. This knowledge is critical for the achievement of justice between the litigants because it is this knowledge that the defendant/respondent uses to prepare for the “fight”, that is the trial, in court. The defendant/respondent decides on the basis of that knowledge what defence or defences to raise, what witnesses to call, what documents to produce as evidence in court, what questions to ask the plaintiff/applicant or his witnesses under cross-examination, what evidence to lead in support of his/its defence or rebuttal and what arguments to present to the court at the end of the case and what finding to ask the Court to make. If the plaintiff/applicant states that his case or complaint against the defendant/respondent is A and the defendant meets that case but the court finds against the defendant on the basis of case B, there is serious injustice.

[28] The pleadings in a civil matter are there to ensure that the defendant is informed of what the plaintiff’s case against him is and the plaintiff of what the defendant’s defence is. Where, as in the Labour Court, there is also a requirement for the parties to prepare and agree upon a pre-trial minute, a pre-trial minute agreed upon by the parties would reflect the most recent indication of what each party’s case is before the commencement of the trial. Of course, the pre-trial minute is, binding upon them. However, it does sometimes happen that, despite the terms of the pre-trial minute, a party decides, after the final preparation for trial or during the trial, to abandon some aspects of his case and confine it further to one or two issues. Where a party does that, he exercises an election that binds him because the other party is entitled to then not bother about those aspects of the case that have been abandoned and direct his energies to the narrow case that is being pursued.

[29] Where a party makes an opening statement at the commencement of a trial, he outlines the parameters of the case he is going to present. Such case may be narrower than the one contained in the pleadings and the pre-trial minute. The other side is entitled to “fight” only the case announced in the opening statement. This is particularly so when both parties are represented by an attorney or Counsel in Court.

[30] The respondent contended that Venter’s case had always had two bases, namely, one based on the objectionable conduct on the appellant’s part being the dismissal of Venter which was alleged to constitute unfair discrimination and, the other, based on the objectionable conduct on the appellant’s part being the decision to refuse Venter’s application for an extension of her retirement age to when she would turn 65 years of age. Counsel for the respondent, therefore, disputed the correctness of the appellant’s contention about what case was pursued in the trial. The respondent’s Counsel put it in these terms in par 4.6 of the respondent’s heads of argument:

“The Respondent’s case was therefore always based on two legs namely that her being forced to retire in terms of the appellant unilaterally adopting new terms and conditions of employment amount to discrimination and secondly that by not considering alternatively declining her application for extended employment when other applications had been granted amounted to unfair discrimination on the grounds of age/disability as contemplated in section 6 of the Employment Equity Act 55 of 1998.”

The respondent referred to the pre-trial minute in support of this contention. The respondent’s Counsel did not in his heads of argument deal with the appellant’s contention that, when the respondent’s attorney presented his opening statement at the commencement of the trial, the case he said he would pursue or prove was the retirement extension case.

[31] In regard to what the respondent’s case at trial was, it is important to remember that in his opening statements one of the main points that Counsel for the respondent highlighted to the Court a quo was that the respondent’s case was not based on sec 187(1)(g) of the LRA. Sec 187 (1)(g) reads: “a transfer, or a reason related to a transfer, contemplated in section 197 or 197A”Although he did not explain why it was important to highlight that point, it seems to me that he did so because his case was not based upon an act of dismissal by the appellant but was based on the appellant’s refusal to extend Venter’s retirement date.

[32] For a case based on a sec 187(1)(g) dismissal is a pre-condition whereas for a case based on sec 6 of the Employment Equity Act, dismissal is not a pre-condition. Furthermore, the respondent’s case at trial could not be based upon a dispute different from the one that had been referred to the CCMA for conciliation. Accordingly, I am of the view that the reason why in the opening statement the respondent’s attorney highlighted the fact that Venter’s case was not based on sec 187(1)(g) was that Venter’s case was based on the refusal of the request for the extension of the retirement date. The Court could not competently have tried a case of a dismissal that was said to constitute unfair discrimination because when the dispute was referred to conciliation, Venter’s dismissal had not taken place as yet. The dismissal took effect a few months later.

[33] In these circumstances I am of the view that the case which the respondent could pursue and actually pursued at trial was the one in terms of which the conduct complained of was the appellant’s refusal to extend Venter’s retirement age. That is consistent with the respondent’s Counsel’s opening statement in terms of which he said that the crux of Venter’s case was that her retirement date was not extended whereas those of others were extended.

[34] Between the time when a dispute arises or a cause of action arises and the commencement of the leading of oral evidence in a trial, many things can and do happen. Sometimes the plaintiff relies on all kinds of grounds and contentions to support his or her case that his or her rights have been infringed. He may even specify a variety of rights that he alleges have been violated. In the pleadings he may rely on some but not all those rights. However, once his Counsel stands up in Court on the first day of the trial and makes an opening statement he may narrow the plaintiff case further. In fact he could seek to broaden it and to this extent may move an application for an amendment. A few days or even weeks before the date determined for the commencement of the trial, Counsel will have been preparing for trial. In the course of that preparation he has to make up his mind what case he is going to pursue at the trial. This will be based upon his assessment of his client’s prospects of success and other factors. An opening statement made by Counsel at the commencement of a trial is the last opportunity Counsel has to inform the Court and his opponent precisely what case he is going to pursue and prove and it is the last opportunity for his opponent to hear exactly what case he must meet and, therefore, what evidence and witnesses he will need to rebut such case. Where the plaintiff’s Counsel makes and opening statement and says he is going to pursue a particular case e.g claim A, the other Counsel or his opponent is entitled to plan his defence or case on the basis that the case outlined by the plaintiff’s Counsel in his or her opening statement is the only case with which he needs to concern himself and no other. The defendant’s Counsel is entitled in such a case to release some of his potential witnesses who would have been needed if the plaintiff was to pursue a particular case which it has become clear from his Counsel’s opening statement he is not going to pursue.

[35] In support of the finding that the respondent’s case as outlined in the opening statement of the respondent’s attorney was the retirement extension dispute or case and not a dismissal case, I consider it warranted to quote in full such opening statement as it forms part of the record. In his opening statement the respondent’s attorney said in the Court a quo.

“Mr Short: As it pleases the court, M, Lord. M’ Lord, in a nutshell the applicant’s case is that she commenced working for the South African Nursing Council in the old Transvaal in 1984. In 1994 with the new dispensation all the nursing councils in the neighbouring sates like the Transkei, Venda, Bophuthatswana, Ciskei were then merged with the South African Nursing Council and an interim council was put it place. Now at all times from her employment, from the start of her employment, she was governed by conditions of employment which stated that her retirement age was 70 but that she could elect to go off at 65. Those conditions of employment became amended. The first amendment in 1994 and then subsequently again in 1996. Now the 1994/1996 amendments are almost identical. 1994 introduced a retirement age of 60 and it said that with the permission of the council the employee could apply to stay till 65 but if it became clear to the council at any time that the employee was unable to perform any duties for any reasons they could then retire her. The amendment that was adopted in 1996 was identical to that of 1994 except to say that an investigation would be convened to determine if the employee was able to work, if they had stayed on after 60. The applicant then was forced to retire [at] 60 and then she made an application…

Court: When was that?

Mr Short I apologise, M’Lord?

Court When was the retirement at 60, when did she turn 60?

Mr Short She turned 60 in 2004 M’Lord, and she was then compelled to retire at 60 but she was advised that if she made an application that application would be considered. She then made an application to stay on till 65. An extension was granted for a year and that up until 30 September 2004. In February 2004 the applicant said listen, this is wrong, my retirement is actually 70, but I have all along elected to go off at 65. Can’t I go off at 65? And that is really the crux of this matter, is that that application was turned down. There were no reasons given. In fact a very terse reason was given. The council has resolved already that you are going to retire on 30 September and that’s it, that is the decision. The applicant then had to retire. We are not coming before you on an automatically unfair dismissal. What we are saying is the mischief occurred with that process where the extension was considered and the discrimination occurred then because whilst there are a list of people given in the pleadings, we are going to argue that you must compare apples with apples. So you have got to compare us with the other people that were subject to the same regime we were, and that was a Mr Frank Germishuizen. He was given a three year extension but we are not and that almost, that factually took him up to 65. And we are say well, why us? We are saying that there is absolutely no inherent job requirement. That is clear from the papers. The respondent is not making that allegation. We are also not making the allegation of affirmative action. So those two hurdles, those two qualifying factors in the EEA we submit are not… (intervenes)

Court: You are saying there is no justification?

Mr Short Correct, correct. And that in a nutshell is the case before you. The applicant is claiming compensation as per the discretion this court has, in other words just and equitable compensation. It has been minuted in the pre-trial minute, the two years.

Court Yes.

Mr Short That is unfortunately the second remedy. The first remedy is that we want application of our initial terms and conditions, that is that we have a right to stay till 65.

Court Thank you, Mr Short.

Mr Short M’Lord, I will be leading one witness and that is the applicant herself. I am also advised by my learned colleague that he is also only going to lead the evidence of one witness.

Court Thank you. Mr Beaton, anything from your side in opening.” (underlining supplied)

[36] While it is permissible for a court to deal with an aspect of a case that was not pleaded the party seeking to introduce it, the Court is only able to deal with such an aspect of that party’s case if the other party did not object and the issue was fully canvassed. In this case, it seems to me that the dismissal case or dispute was not fully canvassed at trial. There are areas in the record where Venter’s evidence deals with what her terms and conditions of employment were in regard to retirement and what her attitude was to the changes brought by the appellant but, it seems to me that that is a continuation of what happened when Venter applied for the extension of her retirement date. The same thing also happened when she referred the dispute to the CCMA and when she out her case in her statement of claim, namely, reliance upon her 1984 conditions of employment to support the case that she deserved to have her retirement date extended.

[37] The respondent seems to me to have abandoned the retirement extension case because before us that was not part of its case. Before us the respondent’s entire case was that Venter was dismissed, that her dismissal was based on age and that such dismissal constituted unfair discrimination. The appellant’s witness testified and explained the reasons why the requests for an extension of the retirement date of some of the employees were granted whereas Venter’s one was not granted. Venter was not able to dispute those reasons nor did she know whether those others had similar terms and conditions of employment as hers.

[38] In the light of the above there is no basis for any conclusion that the respondent’s conduct in granting the requests for an extension in respect of those employees and not granting it to Venter constituted unfair discrimination.

[39] It seems to me that the Court a quo should have dealt with the case based on the appellant’s refusal to extend Venter’s retirement date and not another case. Its failure to do so and its decision to decide the dismissal dispute was unfair on the appellant and should not, in my view have occurred. With regard to costs I am of the view that the requirements of the law and fairness dictate that no order should be made as to costs.

[40] In the result I make the following order:-

(a) The appeal is upheld.

(b) There is to be no order as to costs on appeal.

(c) The order of the Court a quo is hereby set aside and for it the following order is substituted:

“(i) The applicant’s claim is dismissed.

2. There is to be no order as to costs.”

Zondo JP

I agree.

Jappie JA

I agree.

Tlaletsi AJA

Appearances:

For the appellant: Mr MSM Brassey SC together with Mr R Beaton

Instructed by: Rooth & Wessels Inc

For the Respondent: Mr E Van Graan

Instructed by: Fairbridges Attorneys

Date of judgment 16 July 2009

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