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[2015] ZAGPPHC 70
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AMIC Trading (Pty) Ltd v Du Plessis and Another (33948/14) [2015] ZAGPPHC 70 (17 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,PRETORIA)
CASE NO: 33948/14
DATE: 17 FEBRUARY
2015
IN THE MATTER
BETWEEN
AMIC TRADING
(PTY)
LTD
.....................................................................................................
Applicant
and
DU PLESSIS WILLEM
HENDRIK
................................................................................
First
Respondent
IRVING JENNIFER
VALERIE
.................................................................................
Second
Respondent
JUDGMENT
LEGODI, J
[1] In this matter I
made an as follows:
“
1.1
The first and second respondents are interdicted and restrained
from:-
1.1.1 Copying or
obtaining copies by any means of any of the applicant's information
and communications stored on or otherwise contained
on its email and
file servers and or any backup drives wherever they may be situated,
save such information and information as
may be available in the
public domain;
1.1.2 sharing,
disseminating, publishing and/or utilizing for any unlawful purpose,
or for any purpose aimed at causing the applicant
embarrassment, harm
or prejudice, any information and communications belonging to the
applicant that is not in the public domain
and/or which is
confidential to the applicant, including all information and
communications unlawfully obtained by the respondents
from the
applicant’s information technology systems during and after
their tenure of employment with the applicant, in whatever
form that
such information may exist. The respondents are further interdicted
and restrained from using, sharing, disseminating,
publishing and or
utilizing for any purpose confidential information of the applicant
currently in their possession (now or in
future), specifically
referring to the sale agreement entered into between the applicant
and Redgwoods (Pty) Ltd and email communication
between the directors
of the applicant and Mr S Accolla dated September 2013 without the
applicant’s express permission,
which permission will not
unreasonably be with-held. ”
[2] The order was
made on the 3 February 2015. I reserved judgment on the issue of
costs. I now proceed to deal in this judgment
with the issue of
costs.
[3] The two
respondents were both the employees of a company called AMIC Trading
(Pty) Ltd, the applicant. The respondents were
initially the
employees of Redgwoods until their employment were transferred to the
applicant. The first respondent had been employed
by Redgwoods during
February 2010 as a national risk manager and the second respondent as
a personal assistant to one of the directors
of Redgwoods since 2005.
When the applicant took over from Redgwoods, it allegedly had to
restructure its operations and as a result
it had to retrench about
nine of its employees.
[4] The two
respondents were amongst the employees who were to be retrenched. The
respondents were bitter about the retrenchment
and or the
restructuring insofar as it affected them. For example, on the 19
September 2013 the first respondent is alleged to
have displayed a
vendetta against the applicant. On the 5 September 2013 a suggestion
was made to the second respondent to be transferred
to the
applicant’s head office in Durban. That meant that she had to
relocate from Gauteng to Durban. When she refused to
be relocated,
she was offered a post as internal auditor at the applicant’s
branch in Stoneridge Johannesburg. She declined
the position and
resigned on the 19 September 2013. The resignation was launched
orally to the applicant’s human resources
manager, one Mr
Sergio Accolla who is also the deponent to the founding affidavit. It
is alleged that the resignation was orally
tendered in the most
aggressive and rude manner, the first respondent allegedly resorting
to personal insults against Mr Accolla.
[5] In an email sent
to Mr Accolla on the 19 September 2013 at about 21 h54, the second
respondent sought to retract her resignation
and apologized for her
conduct. About six days following the retrenchments and or
resignations of the two respondents, it is alleged
that one Mr Mari,
a former employee of the applicant who was retrenched during April
2013, referred a labour dispute against the
applicant to the CCMA for
unfair dismissal. The respondents also instituted labour dispute
proceedings in the Labour Court, Durban.
The actions are been
defended by the applicant and are still pending in the Labour Court.
[6] Two documents
emerged during the exchange of documents in the labour court. The one
document was a sole agreement between the
applicant and Redgwood and
the other, was an email dated 4 September 2013 addressed to two
directors of the applicant. In the email,
is stated as follows:
“
Retrenchment
package for Wimpie as end of September: R228 588,96 (even though he
resigned and then at one stage re-joined the company,
the period that
he left the employment was not longer than a year therefore his
initial date (1 Feb 2010) of engagement would stand).
Here we are not
obliged to pay relocation costs, our excuse is that for operational
reasons we are relocating Head of Security
function to Durban head
office (he will raise the argument that can he not work out of a
store and then will say NO because of
operational reasons and we can
justify this). So we would be liable for the package. His current
basic is R71 205.00 per month
and his current cost to company is R82
880.67.
Retrenchment
package for Jenny as end of September: R149 700.32 (here we get away
with this amount by telling her that we offer
her a position in store
for less than her salary (a salary that is in line with another
person in that position, this would be
defined as reasonable,
naturally her skill set needs to one where she can do the job). So
what we could do is offer her position
as an admin supervisor (but
we
the offer needs to
be once again reasonable) at a store or we create a position to work
out of the store and offer her a reasonable
amount as positions in
stores are paid much lower than her salary. Should she reject the
offer
we
retrench without
paying her the severance package thus she gets nothing. Her current
basic salary is R30 4 74.00 and her cost to
company is R35 858.85”.
[7] The second
respondent obtained the email in the course of her work when she was
working on her boss’s computer, one of
the directors. Because
the email had direct bearing on her, she made a copy thereof. As
regard the sale agreement between the applicant
and Redgwoods (Pty)
Ltd, it is not clear who was responsible for the disclosure thereof.
[8]
This matter was argued on Tuesday 3 February 2015 after it was stood
down on the 02 February 2015. The two respondents represented
themselves. As I said, I made an order as indicated in paragraph 1 of
this judgment. The order was made after having taken time
to explain
to the respondents what the court’s
prima
facie
view
was. This was after counsel for the applicant indicated that he will
only press for an order as in paragraphs 1.1.3 and 1.1.6
of the
notice of motion. The rest of the reliefs sought in the notice of
motion were abandoned at the instance of the applicant’s
counsel.
[9] The parties were
therefore asked to address the court only on the issue of costs.
Counsel for the applicant wanted the respondents
to pay costs, the
suggestion been that it substantially succeeded seen in the light of
the order made.
[10] An order for
costs is an exercise of discretion that has to be exercised
judicially having regard to what is fair to parties.
Judging by the
positions held by both the respondents in Redgwood (PTY) Ltd; and
later in the applicant, there can be no doubt
that they would have
been exposed to a lot of confidential information. The email which
was sent out before their retrenchments
or resignations, in my view,
is extremely relevant to the dispute in the Labour Court. The email
suggests that, the applicant never
intended to act fairly to the
respondents in the process of restructuring or retrenchment.
I should not be
understood to be making a final determination in this regard. What
remains however, is that, the respondents laid
their hands on it,
whether accidentally or intentionally, it does not matter. The
respondents want to use it in the Labour Court.
As lay persons, they
cannot be blamed for keeping and wanting to use the email. However,
it is a confidential document that cannot
be randomly used without
the permission of the applicant or by an order of the court. I
deliberately refrained from making a decision
on this. I want to
believe that the Labour Court will be in a better position to deal
with the issue when it arises in that court.
[11] It is however
of great concern that the applicant could deal with the respondents
as suggested in the email. I think, the respondents
would have been
at pains to let it go when the present proceedings were instituted.
The present proceedings had the potential to
permanently deny them of
the opportunity to use the email in the labour court. To burden them
with an order for costs in the circumstances
of, would in my view, be
unfair. The initial proposed order was thus amended at the instance
of this court to ensure that the respondents
are not permanently and
adversely affected in the labour court.
[12] The sale
agreement referred to earlier in this judgment is also a confidential
document. I am reluctant to express a view on
the relevancy or
otherwise of the document during the proceedings in the Labour Court.
The fact remains, is a confidential document.
In seeking to ensure
that the respondents are not adversely affected in the labour
proceedings, I made a draft order as amended,
an order of the court.
[13] It looks like
the basis for resisting the present proceedings was the email. In
fact, the first respondent said so during argument.
As I said, it
would be unfair to burden the respondents with costs order.
[15] Consequently,
each party is hereby to pay his or her own costs.
M F LEGODI
JUDGE OF THE HIGH
COURT
FOR THE
APPLICANT: W P BEKKER
INSTRUCTED BY:
MAHARAJ ATTORNEYS
c/o PETZER, DU
TOIT & RMAULIFHO ATTORNEYS
Hatfield Bridge
Office Park Cnr,
Church & Richard
Streets Hatfield, PRETORIA
REF
TEL:
012 342 9895
FOR
THE RESPONDENTS: IN PERSON
MATTER HEARD ON: 03
FEBRUARY 2015
JUDGMENT HANDED
DOWN: 16/02/2015