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[2016] ZAGPPHC 1100
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Vorster and Another v Vorster and Another (77475/15) [2016] ZAGPPHC 1100 (14 December 2016)
IN
THE WGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
14/12/2016
Case
No. 77475/15
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED.
In the
matter between:
ANNA
MARIA
VORSTER
First
Applicant
SIEMTECH
CC
Second
Applicant
And
JOHANNES
MARTHINUS
VORSTER
First
Respondent
HIGHVELD
TELECOMS (PTY)
LTD
Second
Respondent
ANNA
MARIA ELIZABETHA
WILLERS
Third
Respondent
GERT
ANDRIES
WESSELS
Fourth
Respondent
JUDGMENT
A.
MAIER-FRAWLEY AJ
The
application
1.
This is an application for (i) the committal of
the first and third respondents for contempt of court, alternatively,
a declarator
in respect of the first and third respondents, (ii)
declaratory relief against the second respondent and ( iii) further
ancillary
relief against the first, second and third respondents.
2.
The applicants seek an order in the following
terms:
"1. That the First and Third Respondents be
imprisoned for a period to be determined by the Honourable Court due
to the
First and Third Respondent's disobedience and contempt of the
court order under case number 73245/2014;
2. That the Applicants be authorised to approach the
Honourable Court for the issuing and authorization of a warrant of
arrest against
First and Third Respondents on the same papers in the
event of prayer 1 be granted;
3.1
In
the alternative to prayers 1 and 2 above,
that
the First and Third Respondents be imprisoned for a period to be
determined by the Honourable Court, which imprisonment be
suspended
on conditions set out by the Honourable Court due to the First and
Third Respondents' disobedience and contempt of the
court order under
case number 73245/2014;
3.2
In
the farther alternative,
that it be declared
that the First and Third Respondents are in contempt of the court
order under case number 73245/2014;
4. That it be declared that the Second Respondent is in
contempt of the court order under case number 73245/2014;
5. That the First, Second and Third Respondents pay the
costs of the application on a scale between attorney and own client,
jointly
and severally, the one paying the other to be absolved.
6. That the Fourth Respondent pays the costs of the
application on a scale as between attorney and own client, jointly
and severally,
the one paying the other to be absolved with the
First, Second and Third Respondents only in the event of the Fourth
Respondent
opposing the application."
3.
At the hearing of the matter the applicants
sought an amendment of the notice of motion to include the relief
sought in prayer 3.2
as quoted above. The application was not opposed
and prayer 3.2 was incorporated into the Notice of Motion. The
applicants also
sought condonation for the late filing of the
replying affidavit and heads of argument. The application for
condonation was not
opposed and was granted in that a proper case had
been made out for the relief sought.
4.
The first applicant deposed to the founding
affidavit both in her personal capacity and on behalf of the second
applicant.
5.
The present application is opposed by the first,
second and third respondents. The fourth respondent is cited as an
interested party
and no relief is sought against him. The fourth
respondent deposed to the founding affidavit on behalf of the first,
second and
third respondents. The fourth respondent did not oppose
the application in his personal capacity.
Introduction
6.
The second applicant and the second respondent
are close corporations that conduct business in competition with each
other within
the telecommunication industry. The first applicant is
the sole member and sole manager of the second applicant. The first
respondent
is employed as the operational manager of the second
respondent whilst the third respondent is employed as the telephone
marketing
and research assistant of the second respondent. The fourth
respondent is the sole director and shareholder of the second
respondent.
7.
The applicants allege that the first second and
third respondents contravened an order granted by this court on 30
October 2014
under case number 73245/14 (court order) and that they
are guilty of contempt of court. The respondents dispute that they
contravened
the terms of the court order, alternatively, in the event
that it be found that they did transgress the court order, they deny
that they acted wilfully or
mala fide
in
doing so.
8.
The dispute concerning whether or not the
respondents transgressed the court order was
inter
alia
premised on a denial by the respondents
that the applicants furnished proof that any persons or entities that
were contacted by
representatives of the second respondent, were
existing
clients of
the second applicant, as contemplated in the court order. The
answering affidavit was prepared on the assumption that
the entities
mentioned in the application were clients of the second applicant,
without the respondents abandoning their contention
that the
application was fatally defective for lack proof in this regard. But
more about this later.
9.
The respondents also deny that the first
applicant has the requisite
locus standi
to
bring the application.
10.
I was urged to adopt a robust approach in
determining the various disputes that have emerged on the papers. In
this regard, I propose
following the principles propounded in
Wightman t/a JW Construction v Headfour (Pty)
Ltd and Another
2008 (3) SA 371 (SCA).
[1]
Background
11.
Pursuant to an urgent application that was
launched by the applicants against the first, second and third
respondents on 2 October
2014, a court order was granted in this
Court by Louw J on 30 October 2014 under case number 73245/14, (court
order) in the following
terms:
11.1
That the
first, second and third respondents are prohibited to contact any of
the second applicant' s existing clients in order
to persuade those
clients to transfer their existing service agreements with the second
applicant and to replace it with service
agreements with the second
respondent;
11.2
That the
first and second respondents are prohibited to approach existing
employees of the second applicant in order to persuade
these
employees to resign from the second applicant's employ
in order to take up new employment with the second
respondent;
11.3
That the
first and second respondents are prohibited to utilize
any information regarding the
second applicant's
clients;
11.4
That the
first second and third respondents pay the second applicant's costs
of the application on the attorney and client scale.
12.
The applicants and the first to the third
respondents were cited in the urgent application as they are in the
present application.
13.
The backdrop to the grant of the court order was
the following. The first applicant and the first respondent were
previously married
to each other. They were still married when the
court order was granted although they have since divorced. The
divorce proceedings
were contentious and acrimonious. During their
marriage, the second applicant, of which the first applicant was the
sole member,
conducted business alongside that of another close
corporation known as 'Mpumalanga Rentals CC', of which the first
respondent
was the sole member. The businesses were conducted in a
universal partnership between the first applicant and the first
respondent
within the telecommunication industry.
14.
Mpumalanga Rentals CC was liquidated by the first
respondent without explanation. Many of the service contracts of
Mpumalanga Rentals
CC were taken over by the second applicant
although the first respondent sought to transfer the contracts to a
new company. In
several instances courts were called upon to
intervene in the afterflow of events between the first applicant and
the second respondent,
which led to orders relating to violence and
spoliatory relief being granted against the first respondent. Further
occurrences
ultimately culminated in an urgent application before
Louw J,
inter alia
because
the first respondent had threatened to destroy the first applicant
financially as well as the second applicant's business.
15.
The first respondent had begun soliciting the
second applicant's clients and employees. One such employee was the
third respondent
who was induced by the first respondent to take up
employment with the second respondent at better remuneration. This
was accomplished
after the first respondent formed the second
respondent in September 2014, with the first respondent as its
director together with
one, Mr. Nel (Nel). After merely a few days,
the first respondent and Nel resigned as directors and the fourth
respondent was appointed
as sole member and director of the second
respondent.
16.
In the urgent application, the applicants
inter
alia
contended that the first respondent was
unlawfully competing with the business of the second applicant by
conducting business through
the vehicle of the second respondent in
the same field and within the same geographical area of the second
applicant's business
with the malicious intent to destroy the
business of the second applicant.
17.
The third respondent had intimate knowledge of
and information about the second applicant's clients. By virtue
thereof, when the
third respondent resigned from the second
applicant's employ, she signed a written
u
ndertaking
not to contact any of the second applicant's clients or to make
contact with any future clients of the second applicant.
18.
Louw J granted interdictory relief as set out in
the court order, having found,
inter alia,
that (i) it was the first respondent's
intention to destroy the first applicant financially; (ii)
notwithstanding the change of
directorship of the second respondent,
the second respondent remained the driving force behind the second
respondent (which was
directly competing with the second applicant)
and was able to use and was using the second respondent as the
vehicle with which
to financially destroy the applicants; (iii) the
third applicant had detailed knowledge regarding the particulars and
identity
of the second applicant's clients due to the position she
held at the second applicant; (iv) the purpose of the registration of
the second respondent by the first respondent was for the second
respondent to compete with the second applicant with the object
of
destroying the second applicant's business; (iv) the third respondent
had contacted clients of the second applicant in breach
of her
written undertakings to the second applicant; (v) the first
respondent had contacted clients of the second applicant with
a view
to secure their business for the second respondent; (vi) the dominant
purpose of the first respondent's conduct in advancing
the interests
of the second respondent was to inflict harm to the first and second
applicants with a malicious motive.
19.
Pursuant to the grant of the court order, it came
to the attention of the first applicant that certain representatives
of the second
respondent, including the first and third respondents,
were contacting clients of the second applicant in order to persuade
them
to transfer their existing service agreements, or to put it
colloquially, to move their service contracts with the second
applicant
over to the second respondent. To this end, it is alleged
that several of the second applicant's clients terminated their
service
agreements with the applicant and contracted instead with the
second respondent.
20.
The applicants considered such conduct to be
directly in conflict with prayer 1 of the court order (referred to
above) and apropos
launched this application for contempt proceedings
against the relevant respondents for failing to comply with the said
court order.
21.
The founding papers make reference to various
clients of the second applicant who were
allegedly
approached telephonically or in
person or through correspondence by some or other functionary of the
second respondent
with a view to influencing them to move their
business from the second applicant to the second respondent. I do not
propose to
deal with each and every alleged approach made, as has
been done in the affidavits filed in the application.
22.
According to the applicants, the first and third
respondents and another employee of the second respondent, one
Loraine Lawrence
(Loraine) made one or other such approach to the
following clients who held service agreements with the second
applicant: 'AJ Safety',
'RI&D', 'R+R Pool Care', 'Benicon',
'CMR', 'WWS', 'Afrilink', 'Talisman', 'F&K Hire', 'Stone&Style',
'Universal', 'Redland',
'Konica Minolta Witbank'. By way of example,
clients who were approached by the first respondent were Benicon (to
whom he made
calls and furnished a quote), WWS (to whom he made calls
and furnished a quote), Federale Stene and Konica Minolta Witbank.
Clients
who were
inter a/ia
called
or emailed by the third respondent were WWS (to whom she sent a
contract to be signed), Universal, and Afrilink. Several
calls were
made by Loraine to AJ Safety, RI&D, CMR, WWS, Afrilink, Talisman,
F&K Hire, Stone & Style, and Redland for
purposes of
marketing the business of the second respondent, as enumerated below.
23.
The respondents admit that the first respondent
made several calls to Konica Minolta Witbank, Benicon, S & J
Radio DSTV Decoder
Testing Centre, being a member of the WWS group (S
& J Radio) and Federale Stene. According to the first respondent,
calls
to Konica Minolta Witbank were test calls after the first
respondent assisted such entity in repairing their telephone system.
Calls to Benicon occurred after Benicon requested the first
respondent, of its own volition, to provide it with a quote for
telephone
services. The call to S & J Radio was personal in
nature and unrelated to the second applicant or the second
respondent's business.
The first respondent denies that he contacted
Federale Stene.
24.
The respondents admit that the third respondent
made calls to a member of the WWS Group, namely, Johan Venter of
'Johan Venter Makelaars'
as well as to Universal.
25.
The respondents deny that the conduct of the
first and third respondents constitutes a transgression of the terms
of the court order,
firstly because none of the calls were made for
purposes of persuading the second applicant's clients to transfer
their contracts
to the second respondent and secondly, because the
applicants failed to provide evidence that the clients so contacted
were
existing
clients
of the second applicant, that is, clients both at the time of the
court order
and
at the
time of the transgression of the court order.
26.
The respondents admit that several calls were
made by Loraine to the second applicant's clients as averred. The
deponent to the
answering affidavit contends that that these calls
were either made for 'market research' purposes or in circumstances
where Loraine
called the clients by mistake. In all instances it is
averred that she did not attempt to persuade the clients to transfer
their
service agreements to the second respondent. Quite
surprisingly, no confirmatory affidavit by Lorraine was attached to
the answering
affidavit. Other than the deponent's statement that
Lorraine resigned from the second respondent's employment, no
explanation was
furnished to explain why a confirmatory affidavit
could not be obtained from Loraine. The difficulty which the
respondents face
in this matter is that the fourth respondent deposed
to the answering affidavit and made averments relating to Loraine,
which were
not confirmed by her. The allegations therefore remain
unsubstantiated, and are for that reason to be ignored as
inadmissible hearsay.
This point was pertinently raised on behalf of
the applicants in their written heads of argument.
27.
In all instances of contact, the respondents
disavowed either breaching the terms of the court order or if they
did transgress the
court order, that they had the requisite intention
or
mala fides
to
commit the crime of contempt.
28.
The respondents admit that 15 of the second
applicant's clients concluded contracts with the second respondent
for the provision
of telephone services. They contend that some of
these contracts were cancelled with the second applicant by the
clients of the
second applicant before the court order was granted.
Those that were cancelled after the grant of the court order, were
done so
by the second applicant's clients out of their own volition
and not as a result of being persuaded to do so by employees of the
second respondent. Clients such as Kohler Auto, Konica Minolta
Witbank and WJ Bezuidenhout attorneys contacted the respondents
and
requested the respondents to provide telecommunication services to
them as they were allegedly not satisfied with the services
that were
being provided by the second applicant.
29.
In the answering affidavit deposed to by the
fourth respondent, he states that he sought senior counsel's opinion
on the nature
and extent of the court order, the measures to be
implemented by the second respondent to avoid any transgression of
the order,
and what the second respondent should do if approached by
a person or entity that was a client of the second applicant.
Pursuant
to such advice, he compiled a blacklist of every person
and/or entity suspected of being a client of the second applicant and
implemented
internal measures to safeguard against transgressing the
order. Internal measures included.
inter a/ia,
notifying and instructing all employees of
the second respondent not to contact those clients. If an appointment
was made with a
potential client of the second applicant or such
client's email address was obtained, the first respondent, who was
responsible
for preparing quotes and attending appointments with
clients, would first verify that such client did not appear on the
blacklist.
If it did, the appointment would not be honoured and the
email address would not be added to the second respondent's email
list
of clients for bulk marketing by way of email.
Legal submissions, the law and evaluation
Locus
standi of the first applicant
30.
It was submitted on behalf of the applicant that
the present application concerns the profitability and continued
existence of the
second applicant, of which the first respondent is
the sole member, and for that reason, the first applicant enjoys the
necessary
locus
standi.
31.
The aforegoing submission holds merit. In
Jacobs
en 'n Ander v Wab en Andere
[1991] ZASCA 152
;
1992 (1) SA 521
(A) the court held that it is not necessary that a litigant have a
financial or a legal interest in a business for a finding that
he has
locus standi:
anyone
who is a director and in full control of a company which is trading
and anyone who is the manager of a business has a real
interest that
the business should survive and that its profitability should
not be harmed, would thus be vested with the
necessary
locus
standi.
32.
The attack by the respondents on the first
applicant's
locus standi
was
correctly not pursued in argument on behalf of the respondents
Elements
of contempt
33.
The requirements of a contempt order are:
[2]
(a)
The
existence of a court order;
(b)
That the
respondent had service or notice of the court order;
(c)
Non-compliance
by the respondent with the court order; and
(d)
That the
respondent acted wilfully (intentionally) and
mala
fide
in transgressing the court order.
34.
In
Pheko v
Ekurhuleni City,
[3]
the court held as follows: "Contempt of court
is understood as the commission of any act or statement
that displays
disrespect for the authority of the court or
its officers acting in an
official
capacity. This includes acts of contumacy in both senses:
wilful disobedience and resistance to lawful
court orders... Wilful
disobedience of an order made in civil proceedings is both
contemptuous and a criminal offence. The object
of contempt
proceedings is to impose a penalty that will vindicate the court's
honour, consequent upon the disregard of its previous
order, as well
as to compel performance in accordance with the previous
order."(footnotes omitted)
35.
The requirements of a contempt order must be
proved beyond a reasonable doubt. Once the applicant has proved the
order, service
thereof and non compliance therewith, the
respondent bears an evidential burden in relation to
mala
fides
and wilfulness.
[4]
A Respondent can defend himself by satisfying the court that there is
a
reasonable possibility
that
he did not act wilfully or
mala fide.
Should
the contemnor prove unsuccessful in discharging this evidential
burden, contempt will be established. See:
Pheko
supra
at 621B-C.
36.
In
Heg Consulting
Enterprises (Pty) Ltd
v
Siegwart'
s
2000 (I) SA 507 (C) at 518H-I, the court
held that intention in the form of
dolus
eventualis
is sufficient for criminal
contempt of court. It is thus sufficient if the contemnor
subjectively foresaw the possibility that his
actions may possibly
have contravened the court order and was reckless as to the result.
37.
In
Heg' s
case
the following is stated: "Counsel's opinion, it appears, was
being sought in a search for ways of escaping the effect
of the Court
orders". The court held that it was not open to a party, in
interpreting a Court order, to do so. At 522B, the
following is
stated: "Katzeff ...relies on a defence of 'legal advice' to
disprove 'wilfulness' on his part. The defence requires
a proper
setting out of the circumstances under which the advice was given. It
is incumbent upon a party relying upon such defence
to...testify in
regard to all the circumstances relevant to the giving of such advice
(See
S
v
Abrahams
1983 (I) SA 137 (A) at 146H). In motion
proceedings, it means that all the relevant circumstances have to be
set out on affidavit."
38.
Proof beyond reasonable doubt has been described
by Lord Denning in
Miller
v
Minister of Pensions
[5]
as follows:
"It need not reach certainty, but must carry a high
degree of probability. Proof beyond reasonable doubt does not mean
proof
beyond a shadow of doubt. The law would fail to protect the
community if it admitted fanciful possibilities to deflect the course
of justice. If the evidence is so strong against a man as to leave
only a remote possibility in his favour which can be dismissed
with
the sentence 'of course it is possible but not in the least probable'
the case is proved beyond reasonable doubt."
Declaratory
relief
39.
Our courts have held that civil contempt remedies
other than committal may still be employed. These include any remedy
that would
ensure compliance, such as declaratory relief.
[6]
In
Faki supra
at 345B,
it was held that 'a
declarator
and
other appropriate remedies remain available to a civil applicant on
proof on a balance of probabilities' .
40.
The question which then arises is whether or not
contempt of court has been proved beyond reasonable doubt in this
matter (for committal)
or on a balance of probabilities (for a
declarator).
The
meaning, ambit and import of the court order
41.
Counsel for the applicant submitted that the
wording of the court order is clear and unambiguous. And further that
the essence or
import of the court order is such as to prohibit
contact with existing clients of the second applicant for purposes of
marketing
the business of the second respondent. This means that
existing clients are clients of the second applicant
as
at the time of the transgression
.
42.
It was further submitted on behalf of the
applicants that the very purpose of marketing is to persuade the
second applicant's clients
to transfer their service agreements to
the second respondent. Stated differently, the purpose of marketing
on behalf of the second
respondent is to obtain further contracts and
further clients for the second respondent. If the respondents
therefore indulged
in marketing in respect of the second applicant's
clients, they would have been acting in contravention of the court
order. The
court order was made to prohibit marketing in respect of
the second applicant's clients precisely because the first respondent
was found to have a malicious motive to destroy/harm the second
applicant. In the present application, it was demonstrated that
in
several instances, persons contacted by functionaries of the second
respondent were asked for email addresses. The necessary
and only
inference is that they intended to market the second respondent's
products by way of aggressive email marketing.
43.
It bears mentioning that in the urgent
application that was heard before Louw J, the respondents contended
that they were lawfully
competing with the business of the second
applicant in marketing the second respondent's services, which they
did by way of bulk
email advertising to potential clients and which
included the second applicant's clients. The respondents there
alleged that the
only manner in which clients were approached, was by
way of email advertisements. Louw J rejected the defence of lawful
competition
when adopting a robust approach to the determination of
the dispute.
44.
In the present application, the respondents
contend that prayer l of the court order requires interpretation. It
was submitted on
behalf of the respondents that even if clients of
the second applicant were approached by functionaries of the second
respondent,
the application must fail as the second applicant failed
to put up evidence that those clients were the second applicant's
clients
at the relevant times, being clients as at the date of the
court order and as at the date of the approach. This argument is
premised
on an interpretation of the scope of the court order as
constricted by the word 'existing' in relation to the clients that
were
not to be approached and influenced to utilize the second
respondent's services (as opposed to the services of the second
applicant).
45.
The respondents contend that the court order only
prohibits contact with 'existing' clients of the applicant
corporation with the
object of persuading them to replace the service
agreements with service agreements with the respondent corporation,
as interpreted
above. To put it differently, the court order does not
prohibit the outright communication or contact with the second
applicant's
clients who are not clients at the time of the court
order but happen to be clients at the time of the approach. In
addition, the
order does not prohibit outright communication or
contact with clients of the second applicant, being clients at the
relevant times,
where the object of the contact was not to 'persuade'
them to enter into service contracts with the second respondent. To
this
end, various dictionary meanings of the word 'persuade' were
provided, amongst others, the following:
'to
prevail on, talk to, coax convince, induce, influence, sway, sweet
talk etc.'
46.
On the respondent's construction of the court
order, any client whose business the second applicant either secured
after the grant
of the court order or to whom the respondents sought
to market the second respondent's business would not fall foul of the
prohibition
contained in the court order.
47.
Counsel for the applicants submitted that the
respondents' interpretation of the court order is not correct and if
accepted, would
lead to absurd results. For example, if two days
after the court order, a new client was listed by the second
applicant, would
the respondents be free to approach such client even
with a malicious intent? The answer must be a resounding no!
'Existing' clients
could only mean clients at the time of the
transgression.
48.
I will deal with the dispute between the parties
in regard to the meaning of prayer 1 of the court order on the basis
that it requires
interpretation. In this regard, I am constrained to
adopt an interpretation of the court order that does not lead to
absurd results.
In
Natal Joint Municipal
Pension Fund v Endumeni Municipality
2012 (4)
SA 593
(SCA) at 603F the following was stated:
"Whatever the nature of the document, consideration
must be given to the language used in the light of the ordinary rules
of
grammar and syntax; the context in which the provision appears;
the apparent purpose to which it is directed; and the material known
to those responsible for its production. Where more than one meaning
is possible, each possibility must be weighed in the light
of all
these factors. The process is objective, not subjective. A sensible
meaning is to be preferred to one that leads to insensible
or
unbusinesslike results or undermines the apparent purpose of the
document."
49.
In
Trustees, Bus Industry
Restructuring Fund v Break through Investments CC and others
2008
(1) SA 67
(SCA) at paragraph [21] Brand JA stated that "...the
statement relied upon can only hold true if the commercially
nonsensical
meaning appears so clearly from the wording of the
contract that it cannot be avoided; that is, if the provision under
consideration
is not reasonably capable of any alternative
interpretation. If an alternative interpretation is available, the
court will not
accept a meaning which would lead to absurd practical
and commercial consequences (see eg
Cape
Provincial Administration
v
Clifford
Harris (Pty) Ltd
(1996] ZASCA 115
[1996] ZASCA 115
; ;
1997 (1)
SA 439
(A) at 446H-I)".
50.
On the factual matrix before Louw J, it was
alleged by the applicants that the first and third respondents were
targeting all the
second applicant's existing clients and that they
were inducing those clients to cancel their contracts with the second
applicant.
Furthermore, that the applicant corporation's clients were
being specifically targeted by the first and third respondents in
furtherance
of the first respondent's vow to ruin the first applicant
financially. This much appears from the detailed judgment of Louw J,
which was annexed to the papers.
51.
Regard being had to the legal authorities quoted
above and the relevant backdrop to the grant of the court order,
particularly the
findings of Louw J concerning the first respondent's
malicious intent in soliciting clients of the second applicant, I am
constrained
to agree with counsel for the applicant that the order
cannot be given the construction contended for by the respondents.
The purpose
of the order was to prevent respondents from carrying out
their drive to destroy the second applicant's business by preventing
them from marketing their services to existing clients (being clients
at the time of the transgression) especially because they
were
advancing the second respondent's business at the expense of the
second applicant with malicious intent.
52.
The construction contended for by the respondents
would allow the respondents 'open sesame' to solicit clients of the
second applicants
who were secured by the second applicant after the
grant of the order, and thereby to further their malicious intent.
And this
is not what the court order sought to achieve.
53.
Pursuant to the order, the first to third
respondents noted an appeal, which was not pursued. A notice of
application for leave
to appeal was filed, however, it was not
prosecuted as it was withdrawn. The order of Louw J therefore stands
and needs to be observed
and complied with.
[7]
54.
In the event that the respondents assert that
there is a difference between the parties about the import of the
court order, they
should have clarified it and not waited until
contempt proceedings to assert their construction. A party cannot
ignore a court
order because of the party's own construction of the
court order.
[8]
A party is
obliged to make serious good-faith endeavours to comply with a court
order, not to see where the consequences of the
court order can be
avoided.
[9]
For as was stated in
Meadow Glen Home Owners Association v Tshwane
City Metropolitan Municipality and Others
[10]
"if there were a dispute between them
[respondent] and the appellants regarding the scope of the order and
what needed to be
done to comply with it, it was not for the
municipality [respondent] to wait until the appellants came to court
complaining of
non-compliance in contempt proceedings. It should have
taken the initiative and sought clarification from the court..."
55.
The respondents contend that the applicant failed
to prove that the 14 or so entities out of nearly 6000 people who
were contacted
by representatives of the second respondent
corporation (including the first and third respondents) were existing
clients of the
second applicant at the relevant times.
56.
The applicants' attorneys addressed
correspondence to the respondents' attorneys prior to the launch of
the application in which
they complained about several transgressions
of the court order. In an extensive reply thereto, the respondents'
attorneys denied
that the respondents disobeyed the court order. In
it, they,
inter alia,
specifically
mentioned which of the clients the applicants complained of were
not
on their client's blacklist. The necessary
inference is that the respondents knew that the other clients
mentioned by the applicants'
attorneys in their letter were clients
of the second applicant. It was never disputed on behalf of the
respondents in any correspondence
preceding the launch of the
application that the clients referred to therein were indeed clients
of the second applicant.
57.
The facts reveal that the first respondent had
previously conducted business in joint partnership with the first
applicant, which
partnership included the business of the second
applicant. He would therefore have had knowledge of the second
applicant's clients
at least until such time as the said parties
parted ways. The first respondent would also have known who the
clients of Mpumalanga
Rental CC had been. The third respondent was
previously employed at the second applicant and had intimate details
of who the first
applicant's clients were. Having regard to the
correspondence that had been exchanged by the parties' attorneys, the
respondents
would also have known, for purposes of preparing their
answering affidavit, which of the clients with whom contact was made,
were
clients of the second applicant at the time of the contact.
58.
The dispute sought to be created by the
respondents concerning who the clients of the second applicant were
when they were contacted
by representatives of the respondent
corporation is, in light of the aforegoing, not genuine.
59.
The respondents admit knowledge and notice of the
court order. The next issue for consideration is whether the
applicants have established
that the court order was transgressed.
Has
the court order been transgressed intentionally and with
mala
fides?
60.
That the relevant representatives of the
respondent corporation knew (or ought to have known) who the clients
of the second applicant
were, has been established as indicated
earlier. Notwithstanding their knowledge, functionaries of the second
respondent made advances
to several of the second applicant's clients
to promote the second respondent's business.
61.
The purpose of the majority, if not all the calls
made by Loraine, was to establish the identity of the contact person
at the client,
to enquire about the client's telephone system and to
make an appointment for a representative of the second respondent to
make
a presentation to the client. This is apparent from the
transcripts of the calls attached to the answering affidavit. In
relation
to the call made to RI&D, Loraine arranged for the first
respondent to make a presentation to the client. The purpose of the
presentation was to market the second respondent's business with a
view to secure a service agreement with the client. This could
only
have been the purpose of all other calls which the fourth respondent
avers were made by Loraine for 'market research' purposes.
In her
call to CMR, Loraine requested the client's email address. This shows
a clear intent to market the respondent's business
via email. As
regards the client 'Advance Home Solutions', the transcript of the
conversation between Loraine and the client reveals
that she
proceeded to ask for the client's email address even after being
informed that it was a client of the second applicant.
This
demonstrates a clear wilful and
mala fide
intent to transgress the court order. The
purpose thereof was to market the second respondent's business so as
to secure the second
applicant's client for the second respondent.
62.
The second applicant's client 'AJ Safety' was
contacted by Loraine, notwithstanding that this client was on the
second respondent's
blacklist. Loraine sought to establish who the
contact person at such client was. There would have been no reason
for her to have
done so unless it was to market the second
respondent's business. The transcript of her conversation with the
representative of
this entity reveals that the person to whom Loraine
spoke, indicated that they were with 'Telkom'. The respondents
contended that
the call did not transgress the court order in that
this client was obviously contracted with Telkom and not with the
second applicant.
As pointed out by counsel for the applicants,
Telkom must have been involved because Telkom supplied the lines. The
tendered explanation
is to my mind, a fatuous one, which is
disingenuous and falls to be rejected.
63.
When Loraine made a call to WWS, she was
specifically informed that this was a client of the second applicant.
She nonetheless proceeded
to ask if the second respondent could
provide a quotation to such client and attend at the client to make a
presentation. This
again demonstrates a wilful and
mala
fide
intent to transgress the court order.
64.
The third respondent contacted Johan venter of
the WWS group. The respondents contend that she did not transgress
the court order
in that she did not attempt to persuade Johan Venter
to transfer his service agreement to the second applicant. The
transcript
of the conversation reveals that the third respondent was
asked by Johan Venter if she had not previously worked at another
business.
Her answer was 'no' - being an untruth, as she had
previously had interactions with this specific client during her
period of employment
with the second applicant. In the urgent
application, heard before Louw J, a quotation that the third
respondent had sent to WWS
was attached to the papers. The
respondents can therefore not be heard to say that they did not know
that 'Johan Venter Makelaars'
(being part of the WWS group of
companies) was a client of the second applicant. In the present
matter, the applicants referred
to an email,
[11]
in which it was indicated that the third respondent had sent a
contract to this client for signature. This was noticeably done
to
secure WWS as a client of the second respondent. The third respondent
baldly denied such allegations in the answering affidavit.
The
allegation in the answering affidavit that the third respondent
placed the call to Johan Venter Makelaars 'without thinking'
and
'realised too late' that she should not have done so, is, to put it
bluntly, inane and absurd in light of all the underlying
circumstances described above, particularly, considering the fact
that she had purposefully lied about her previous employment
during
this call. In these circumstances, the allegation that the call was
not made to persuade the client to transfer its service
agreement to
the second respondent is so untenable and implausible that it falls
to be rejected.
65.
As regards the calls made by the first respondent
to Konica Minolta Witbank, Benicon and S & J Radio of the WWS
group, the first
respondent denies that he disobeyed the court order
in malcing these calls because he did not seek to persuade them to
transfer
their existing service agreements to the second respondent.
According to the first respondent, he responded to a call from Mr
Deyzel
of Konica Minolta Witbank to assist in repairing their
telephone system, which he duly repaired. All conversations with
Benicon
allegedly took place after Mr De Jager of Benicon, of his own
volition, requested the first respondent to provide a quotation for
telephone services without first having been contacted by the
respondents. According to the first respondent, he is still in
ongoing
negotiations to secure Benicon's business. The calls to S &
J radio were allegedly made to obtain a price for a new DSTV Explora
decoder for the first respondent's personal use. All these entities
re clients of the second applicant. The coincidence of it all,
having
regard to the backdrop to the grant of the court order, isjust too
good to be true.
66.
Significantly, no transcripts were provided of
the first respondent's calls to Benicon and S & J Radio of the
WWS group and
no confirmatory affidavits were furnished from the
representatives of these entities in support of the allegations made
by the
first respondent. No explanation was provided for the failure
to do so. Yet the respondents provided a confirmatory affidavit from
the representative of Konica Minolta Witbank in support of the
allegations as to the first respondent's interactions with that
client. The first respondent was well aware that Benicon and S &
J Radio were clients of the second applicant in that they
appeared on
the second respondent's blacklist. The respondents baldly denied that
the first respondent had contacted the second
applicant's client,
'Federale Stene' in the answering affidavit.
67.
It bears reiterating that Louw J found in October
2014 that the first respondent had the malicious intent to destroy
the second
respondent's business. As early as August the following
year, the applicants confronted the respondents about transgressing
the
court order in making contact with the second applicant's clients
with a view to marketing their business. In September 2015, the
present application was launched. As pointed out earlier, the
respondents' defence of lawful competition had been rejected by Louw
J.
68.
It ill behoves the respondents to contend that
everything has changed since the grant of the order or that they are
now lawfully
competing with the business of the second applicant,
that is, that they are not doing anything unlawful by approaching the
second
applicant's clients in order to market the second respondent's
business. In light of the aforegoing, the failure to provide
confirmatory
affidavits from representatives of Benicon, S & J
Radio and 'Federal Stene' leads me to conclude that representatives
of these
entities would not have supported the allegations made in
the answering affidavit. Benicon was allegedly dissatisfied with the
second applicant's services. If that were true, Benicon would have
had no hesitation in providing the necessary confirmation.
69.
If those clients of the second applicant who
signed contracts with the second respondent after the grant of the
court order had
not been lured away from the second applicant by the
respondents, but had transferred their business to the second
respondent voluntarily,
one would have expected them to support what
the respondents alleged in this regard. Yet confirmatory affidavits
were not provided.
The allegations that the first respondent did not
approach either Benicon or S & J Radio in order to secure service
agreements
for the second respondent is simply not believable in the
circumstances of the matter, especially when viewed in conjunction
with
the relevant backdrop to the granting of the court order.
70.
To suggest that the contract occurred for reasons
other than to solicit service contracts in favour of the second
respondent is
all too convenient, bearing in mind the history of the
animosity and the threats to destroy the first applicant and the
findings
made by Louw J. The exonoratory allegations in respect of
the first respondent's contact with Benicon and S & J Radio are
'not
in the least probable' as expounded in Miller
supra.
There is an overwhelming degree of
probability that contact occurred to secure their business. In view
of the finding of malicious
intent by Louw J and the third
respondent's written undertakings not to contact clients or future
clients of the second applicant,
the respondents can never be heard
to say that they did not act without
dolus
eventualis
or
mala
fides
when marketing the second respondent's
business to clients of the second applicant.
71.
On the respondents own version, they sought
advice from a senior counsel on ways how to avoid the court order. On
the facts of the
matter, it cannot be found that the respondents
bona
fide
made serious endeavours to comply with
the court order. I am also not convinced that full details of the
circumstances relevant
to the giving of such advice was provided by
the fourth respondent.
72.
It was submitted on behalf of the applicants that
it would be expected of someone who was acting
bona
fide
to have reacted in a different way to
that in which the first respondent reacted - even if the first
respondent was approached by
a client of the second applicant, the
reaction of a
bona fide
person
would be to say 'sorry, there is a court order against us and under
the circumstances I cannot help you'. Instead, the respondents
grabbed every opportunity to secure the second applicant's clients
for the benefit of the second respondent, as in the case of
Benicon,
based on their unilateral and wrong construction of the court order.
73.
For all the reasons given, I find that the
applicants have succeeded in proving the requirements of contempt.
The respondents have
failed to discharge the evidentiary burden of
showing that they did not act wilfully and without
mala
fides.
74.
The applicants gave notice that they would seek a
punitive costs order against the first to the third respondents. In
light of my
findings of wilfulness and
mala
fides,
such an order is warranted.
75.
In the result, I make the following order:
Order
1.
The first and
third respondents respectively are committed to imprisonment for a
period of three (3) months for contempt of court,
which period of
imprisonment is suspended for a period of three (3) years on
condition that either they do not disobey the terms
of the court
order granted by this court under case number 73254/2014.
2.
It is
declared that the second respondent is in contempt of the court order
granted by this court under case number 73245/2014.
3.
The first,
second and third respondents are ordered to pay the costs of this
application on the scale as between attorney and own
client jointly
and severally, the one paying, the other to be absolved.
________________________
MAIER-FRAWLEY
AJ
ACTING
JUDGE OF THE HIGH COURT
Date of
hearing:
02 December2016
Date of
judgment:
12 December 2016
Judgment
delivered
14 December2016
Counsel
for the applicants:
Adv Bergenthuin SC
Attorneys
for the applicants
Van den Berg Koekemoer Attorneys,
Wonderboom,
Pretoria
Counsel
for the respondents:
Adv. Myburgh
Attorneys
for the respondents:
Kruger & Bekker Attorneys
c/o
Serfontein Viljoen & Swarts, Brooklyn,
Pretoria
[1]
See too: Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at
para 55;
[2]
See: Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(CC) at
344G-345A.
[3]
2015 (5) SA 600
at para 28.
[4]
Ibid Fakie. See too: Heg Consulting Enterprises (Pty) Ltd v Siegwart
2000 (I) SA 507 (C) at 518G.
[5]
[1947] All ER 372
at 373.
[6]
See Pheko supra at 621D.
[7]
See: Gauteng Province Driving School Association & others v
Amaryllis Investments (Pty) Ltd & another (006111) (2011]
ZASCA
237 (I December 2011) at para 19. See too: The Master if the High
Court v Motala NO
2012 (3) SA 325
(SCA) at para 11.
[8]
See: Lin v Mlnister of Home A.ffairs
2015 (4) SA 197
at 217 para 84.
[9]
See: Meadow Glen Home Owners Association and Others v Tshwane City
Metropolitan Municipality and Another
2015 (2) SA 413
(SCA) at para
8.
[10]
Ibid Meadow Glen Home Owners Association at para [8].
[11]
A copy of the email was attached to the founding affidavit.