V f r
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION) CASE NO: 524/97
In the matter between:
SUSARA ELIZABETH MAGDALENA JOOSTE Plaintiff
and
SCORE SUPERMARKET TRADING {PTY) LIMITED Defendant
PLAINTIFF'S REPLICATION
Filed of Record on this ^ & , day ofd 1997)
The Plaintiff replicates to Defendant's Special Plea and Plea Over as follows:
1. Ad Paragraph 1 thereof:
The allegations herein contained are admitted.
2. Ad Paragraph/
2. Ad Paragraph 2 thereof:
2.1 Plaintiff pleads that the provisions of Section 35 of the Compensation for Occupational Injuries and Diseases Act No. 130 of 1993 are inconsistent with the provisions of the Constitution of the Republic of South Africa, Act No. 108 of 1996, (hereinafter referred to as 'the Constitution'), and more particularly as follows:
i The said provisions offend the provisions of Section 9 of the Constitution as the said provisions violate the Plaintiffs right to equality before the law and equal protection of the law as contemplated in Section 9(1) of the Constitution, and the said provisions unfairly discriminate against the Plaintiff as contemplated in the provisions of Section 9(3) of the Constitution.
the said provisions offend the provisions of Section 34 of the Constitution as the said provisions violate the Plaintiffs right to have his justifiable dispute with the Defendant settled by a Court of law; and
iii The said provisions offend the provisions of Section 23(1) of the Constitution, as the said provisions offend the Plaintiffs right to fair labour practices.
2.2 In the premises, the Plaintiff pleads that the said provisions of Seaion 35 of the Compensation for Occupational Injuries and Diseases Act are invalid, and accordingly denies that the* Plaintiff's claim as against the Defendant is unenforceable.
2.3 Plaintiff pleads that Defendant's Special Plea be dismissed with costs and that this court declare the said provision to be unconstitutional and refer the matter to the Constitutional Court in terms of section 172 of the Constitution.
2. Ad Paragraph 2 thereof:
2.1 Plaintiff pleads that the provisions of Section 35 of the Compensation for Occupational Injuries and Diseases Act No. 130 of 1993 are inconsistent with the provisions of the Constitution of the Republic of South Africa, Act No.
200 of 1993, (hereinafter referred to as "the Constitution"), and more particularly as follows:
(i) The said provisions offend the provisions of Section 8 of the Constitution as the said provisions violate the Plaintiff's right to equality before the law and equal protection of the law as contemplated in Section 8(1) of the c\ Constitution, and the said provisions unfairly discriminate against the Plaintiff as contemplated
in the provisions of Section 8(2) of the '/ ) Constitution;
(ii) The said provisions offend the provisions of Section 22 of the Constitution, as the said n/^' provisions violate the Plaintiff's right to have his justifiable dispute with the Defendant settled by a Court of law; and
The said provisions offend the provisions of
Section 27{1) of the Constitution, as the said :>>'J
provisions offend/
A .
. 4
provisions offend the Plaintiff's right to fair labour practices.
2.2 In the premises, the Plaintiff pleads that the said provisions of Section 35 of the Compensation for Occupational Injuries and Diseases Act are invalid, and accordingly denies that the Plaintiff's claim as against the Defendant is unenforceable.
2.3 Wherefore Plaintiff pleads that Defendant's Special Plea be dismissed with costs alternatively that the above Honourable Court refer the constitutionality of Section 35 of Act 130 of 1993 to the Constitutional Court for decision staying the proceedings pending such decision.
3. Plaintiff joins issue with Defendant in respect of the other allegations contained in the Plea.
WHEREFORE Plaintiff persists in her claim.
of
Plaintiff's Attorneys 118A High Street GRAHAMSTOWN
(Ref :/
(Ref : MR DE LA HARPE) TO: The Registrar of the above
Honourable Court.
AND TO: MESSRS. NEVILLE BORMAN & BOTHA Defendant's Attorneys
Millbarn Centre Off High Street GRAHAMSTOWN (Ref : MR PHILIPSON)
