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[2010] ZAECPEHC 59
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Hawkwind CC v Goddard (2589/2010) [2010] ZAECPEHC 59 (16 September 2010)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
In the matter between: Case No:
2589/2010
HAWKWIND CC
…............................................................................
Applicant
And
SALOMIE GODDARD
…....................................................................
Respondent
Coram:
Chetty, J
Date Heard:
16 September 2010
Summary:
Practice
– Order of court – Application to set aside previous
court order – Circumstances under which permissible
to do so –
Applicant’s instructions to attorney not incorporated in
founding affidavit – Whether attorneys omission
amounting to
just error – Omission constituting a reasonable mistake
vitiating agreement of compromise – Order set
aside
________________________________________________________________
JUDGMENT
________________________________________________________________
Chetty, J
[1] The applicant conducts business
repairing accident damaged vehicles and trades under the name
Auto
Bodyworks
in Port Elizabeth. Although the respondent, somewhat
disingenuously, denied being employed by the applicant it is apparent
from
the plethora of documentation annexed to the affidavits that she
was. It is furthermore not in issue that during the currency of
her
employment she forged symbiotic relationships with the principals and
staff of various brokerages accustomed to referring work
to the
applicant.
[2] The respondent ceased her
employment with the applicant in May 2010. During August 2010 the
applicant sought an order as one
of urgency, restraining and
interdicting the respondent from soliciting business from any of the
brokers with whom it conducted
business contending that the
respondent was contractually precluded from doing so by virtue of a
covenant in restraint by trade.
It is common cause that although the
respondent, as adumbrated hereinbefore, denied being in the employ of
the applicant and furthermore
specifically denied the existence of a
written contract of employment, agreed to an order being granted in
the following terms:-
“
1. That the
Respondent is restrained and interdicted from directly or indirectly
conducting any business dealings related to the
panel beating
industry with the brokerages referred to by the Applicant in
paragraph 20 of the affidavit of David Bernard Mandel
until the 4
th
of May 2011 insofar as such business dealings are conducted within
the magisterial district of Port Elizabeth.
That each party pay
their own costs.
That the Applicant
undertakes not to intercept or monitor “data” directed
to the respondent in contravention of section
86 (1) of Act 25 of
2002 and not to cause same to be intercepted or monitored.
This order by consent
settles all outstanding issues to date between the parties.”
[3] On 3 September 2010 the applicant
once more sought relief on an urgent basis for:-
“
1. . . .
. . .
An order setting aside
the Order granted by consent by this Honourable Court on the 17
th
of August 2010, in Case No 2270/2010;
An order restraining
and interdicting the Respondent, for a period of (24) twenty four
months, calculated from the 4
th
of June 2010, and within
the Magisterial District of Port Elizabeth, either for her own
benefit or for the benefit of any other
person, from soliciting
panel beating work for any person from:-
ABEX Brokers
AIG
Alexander Forbes
Asset Insurance
Brokers
AON
Ballast Insurance
Brokers
Bonnie Slabbert
Brokers
Bouwer Collins
Breakaway Brokers
Brian Kemsley Brokers
Broadrisk Services
Brolink
David Rensburg
DHL Supply Chain
Fanie Du Preez
Brokers
FCG
FNB Insurance
Division
Glynis Baudin Brokers
Groch &
Associates
Hannes Scheepers
Brokers
Indwe
Leonie Hunt Brokers
Linette Jacobs
Brokers
Maxifin
Meudene Steyn
Mutitt Insurance
Brokers
Noel Harvey
PSG Consult
Robin van Rensburg
Scotrho Insurance
Brokers
Skybound
Spectrum
Spectrum Brokers
St Francis Brokers
STB
Susan Brophy
Telesure / Auto &
General
Walmer Insurance
Brokers
Wener Vosloo Brokers
Zurich”
[4] In the founding affidavit, the
deponent,
David Bernard Mandel
(
Mandel
) proffered an
explanation as to the circumstances under which paragraph 1 of the
previous order was limited to the twenty three
entities referred to
herein and attributed such limitation to an error on the part of his
instructing attorney. In his supporting
affidavit attorney
Schoeman
contended that the brokerages ought not to have been limited to the
twenty three entities reflected therein but should have included
a
further seventeen entities as per the instructions which he had
received from
Mandel
. As corroborative evidence, he annexed a
copy of an e-mail received from
Mandel’s
professional
assistant, Mrs.
Elize Beattie
(
Beattie
), which
contained a list of some thirty one entities under the rubric
Par
52.1.1/52.1.2
. This e-mail, as I shall elaborate upon, was sent
on Mandel’s instructions in response to matters highlighted by
Schoeman
in
Mandel’s
affidavit in draft form.
[5] In her opposing affidavit, the
respondent refuted any notion that
Mandel
had instructed
Schoeman
as suggested and stated:-
“
On these
affidavits and documents filed herein, there was clearly never an
instruction to the Applicant’s attorney to insert
the firms
listed as 1-17 in paragraph 6, into paragraph 20 of the affidavit
filed in the Application under case number 2270/2010
and accordingly
this particular aspect could have had no relevance /bearing on the
settlement reached between the parties in the
Application under case
number 2270/2010”
[6]
Schoeman’s
affidavit, annexed to
Mandel’s
replying affidavit, affords conclusive
proof that the omission of the further entities was entirely
attributable to his fault. The
draft affidavit which was forwarded to
Mandel
for
his further instructions dispels any notion that
Mandel
had not instructed
Schoeman
as he alleged. In the draft paragraph
52.1.1 he solicited instructions from
Mandel
concerning
“
the
brokers that we want to protect
”
.
The response from
Beattie
in the e-mails sent to
Schoeman
reflected the names of the thirty one
entities referred to hereinbefore. This refutes any suggestion that
Mandel
had
instructed
Schoeman
to limit the entities to the twenty
three reflected in paragraph 20 of his founding affidavit in the main
application. It is not
in issue that the relief sought in the main
application was not confined to specified brokers but widely stated
to include
“
any
broker who at any time has dealt with the applicant”
.
The clear wording of paragraph 20 suggests quite unequivocally that
it was never intended to constitute a
numerous
clausus
of entities in
respect of which the restraint was sought. Paragraph 20 merely
specified the brokers with whom the applicant had
engendered close
business relationships and nothing more.
[7] The question
which falls for determination therefore is whether
Schoeman’s
mistake, which the
applicant contends amounts to
just
error
,
provides a legal basis for the setting aside of the court order dated
17 August 2010.
[8] In argument
before me counsel were in agreement that
just
error
may
in law constitute a basis for rescission of a judgment entered by
consent and referred to the oft quoted dictum in
Gollach
& Gomperts (1967) (Pty) Ltd v Universal Mills and Produce Co
(Pty) Ltd and Others
1
where Miller JA
stated the following
2
:-
“
It appears to me
that a
transactio
is
most closely equivalent to a consent judgment. (Cf.
Cachlia's
case,
supra
at p.
464.) Such a judgment could be successfully attacked on the very
grounds which would justify rescission of the agreement to
consent to
judgment. I am not aware of any reason why
justus
error
should
not be a good ground for setting aside such a consent judgment, and
therefore
also an agreement of compromise
,
provided that such error vitiated true consent and did not merely
relate to motive or to the merits of a dispute which it was
the very
purpose of the parties to compromise.”
(emphasis
added)
The judgment recognizes that an
agreement of compromise may likewise be set aside on the ground of
justus
error
. That the court order was the product of a
compromise is self evident and in fact admitted by the respondent.
The further question
is whether the omission on the part of
Schoeman
to have included the names of all the entities advocated by
Mandel
was a reasonable mistake on his part. I accept
Schoeman’s
evidence relating to the omission and whilst his conduct amounted to
an infraction of his duty
vis-à-vis Mandel
, such
remissness ought not, in my view, to be visited upon the applicant.
In my judgment therefore the compromise agreement was
vitiated by the
reasonable mistake on the part of
Schoeman
which warranted the
setting aside of the court order.
[8] A decision in favour of the
applicant thereanent does not, as a corollary, justify the grant of
the relief foreshadowed in paragraph
4 of the notice of motion, in
the adjudication of which, the respondent must be afforded due
process. These then constitute the
reasons for the order which issued
on 16 September 2010 which read:-
“
1. That the
order of court dated 17 August 2010 under case number 2270/10 be and
is hereby set aside.
That the matter is
postponed to 14 October 2010.
That pending the
finalization of the matter the Respondent is interdicted and
restrained from directly or indirectly conducting
any business
dealings with the panel beater brokerages referred to in paragraph
20 of the affidavit of David Bernard Mandel.
That the costs are to
stand over.”
_________________________
D. CHETTY
JUDGE OF THE HIGH COURT
Obo the Applicant: Adv
A. Beyleveld SC
Instructed by Boqwana
Loon & Connellan
4 Cape Road
Port Elizabeth
Ref: L. Schoeman
Tel: (041) 506 3700
Obo the Respondent: Adv
A. Frost
Instructed by Richard
Lawrence Attorneys
1
st
Floor,
MGE Building
128 Heugh Road
Walmer
Port Elizabeth
Ref: RJL
Tel: (041) 581 0596
1
1978
(1) SA 914
(A)
2
At
922H