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[2015] ZAECELLC 3
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MMPA Quantity Surveyors and Project Managers (Pty) Ltd v Buret (592/14, ECD 1192/14) [2015] ZAECELLC 3 (6 January 2015)
IN THE HIGH
COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE NO:
592/14
ECD 1192/14
In the
matter between:
MMPA
QUANTITY SURVEYORS AND
PROJECT
MANAGERS (Pty)
LTD
..............................................................................
APPLICANT
and
JASON
BURET
............................................................................................................
RESPONDENT
JUDGMENT
PAKADE
ADJP:
[1] This is a contempt of court application. The
applicant seeks an order declaring the respondent to be in contempt
of the Order
of this Court which was issued on 28 May 2013. The
effect of the Order was to made a settlement agreement (The
agreement) between
the parties, marked “HSL3” an Order of
the Court. The Agreement was signed by HS Lemmer for the applicant
and by J
Buret, the respondent, on 23 May 2013.
[2] The applicant
had instituted application proceedings against the respondent for the
enforcement of the restraint of trade provisions
of the agreement
against the respondent. It is that application that
resulted in the settlement which was made an Order
of the Court on 25
May 2013. Those restraint of trade provisions are embodied in the
applicant's shareholders agreement. The
respondent was the
employee and the shareholder of the applicant. It is imperative
that I reproduce the Settlement Agreement.
It reads:
“
NOW
THEREFORE IT IS AGREED:
1. That , subject to the proviso
contained in paragraph 3 below , Respondent is interdicted and
restrained , for a period of two
years from the date of last
signature of this agreement, whether as proprietor, partner,
director, shareholder, member, executive,
consultant, contractor,
financier, agent,representative, assistant , trustee or beneficiary
of a trust or otherwise and whether
for reward or not , directly or
indirectly , from carrying on or being interested or engaged in or
concerned with or employed by
any company Close corporation, firm,
undertaking or concern that carries on in the Eastern Cape Province
which provides quantity
surveying and project management services
.
2. That Respondent is interdicted and restrained, for a period
of two years from the date of last signature of this agreement, from
soliciting or canvassing business from any client of Applicant or
using any other means or taking any other action which is directly
or
indirectly designed , or in the ordinary course of events , to result
in any such client terminating his association with the
Applicant and
or transferring his business to any person other than Applicant, or
attempting to do so.
3. That notwithstanding the terms of
paragraph 1 and 2 above , Respondent shall be entitled to provide the
services of a quantity
surveyor , project manager and construction
consultant to the client Terry Cook and or Misty Mountain Trading
101(Pty) Ltd and
any of Cook's subsidiary or trading entities and in
respect of which Respondent undertakes pay to Applicant 30%
(Thirty percent
) of the gross proceeds of all services provided to
Terry Cook and/or Misty Mountain Trading 101 (Pty) Ltd and any of
cook's subsidiary
or trading entities earned by Respondent or any
entity in which he is involved or any entity with which he is
associated and which
attends to the work of Terry Cook or Misty
Mountain Trading 101 (Pty) Ltd, during the two year period of
restraint provided for
in paragraph 1 above.
4. That Applicant
and/or the purchasing shareholder /s shall purchase the Respondent '
s twenty (20) shares in the Applicant for
a purchase price of R 800
000.00( Eight Hundred Thousand Rand ) which amount shall be set off
against the Respondent's debit loan
account in the Applicant in the
sum of R 536 300.00 and a contribution toward Applicant 's costs of
this application in the sum
of R 50 000.00, and the balance shall be
paid to the Respondent within 14 ( Fourteen days ) of last signature
of this agreement.
5. Should the Applicant or purchasing
shareholder/s not make payment of the sum of
R 213 700.00
within the time period referred to in
6
above
the outstanding sum shall attract interest at the prime overdraft
rate expressed by the Applicant's bankers from time to time
from the
due date of such amount to date of final payment .
6.
That this settlement agreement shall be in full and final settlement
of all the issues between the parties and subsequent
to the signature
thereof neither parties shall have any claim, arising from whatsoever
cause of action, against the other.
7. That this agreement be made
an order of Court ".
[3] In his
founding affidavit filed in the contempt of court application,
Hermanus Siegfriedt Lemmer describes himself as the Quantity
Surveyor, the shareholder and the Managing Director of the applicant.
The applicant seeks to enforce paragraph 1 and 2 of the Settlement
Agreement set out in paragraph [2] above which it alleges the
respondent breached intentionally and willfully.
[4] For me to
find that the respondent has contravened the provisions of paragraph
1 of the Agreement I must have found that from
the date of the last
signature of the Agreement he has carried on or was interested or
engaged in or concerned with or employed
by a company, close
corporation, firm, undertaking or concern that carries on business in
the Eastern Cape Province, which provides
quantity surveying and
project managemant services. Hermanus Lemmer averred that after
the last signature of the Agreement
some rumour circulated that the
respondent was conducting business of Quantity Surveyor
surreptitiously. During the latter part
of 2013 the applicant became
aware from a source that the respondent had accepted a brief on
behalf of Investec Bank, an existing
client of the applicant, to
attend a meeting on its behalf on 3 September 2013 for a
construction project described as Mdantsane
Spar. Investec Bank was
funding that project. The minutes of that meeting confirm the
respondent’s attendance of that meeting
on behalf of Investec
Bank. The minutes describe the respondent as the Quantity Surveyor.
Hermanus Lemmer further averred
that it is the practice in the
surveying industry that the funder of a project briefs an independent
quantity surveyor to represent
its interest in the construction work
and Investec Bank has been briefing the applicant. Lemmer then
concludes that in accepting
brief from Investec Bank the respondent
breached paragraph 1 of the Agreement.
[5] Again on or about March
2014 the applicant received another information that the respondent
had been engaged by the Clarendon
Preparatory School in East London
to provide quantity surveying services in the construction of a new
swimming pool complex. Meanwhile
the project had been given to the
applicant which had already prepared initial estimates on cost on
behalf of Clarendon Preparatory
School. That brief was given to the
applicant at the time the respondent was in its employment and was
attended to during that
time.
[6] The respondent has opposed the
application .In his answering affidavit Jason Buret acknowledges
himself to be a Quantity Surveyor.
He denied that he is in contempt
of the Court Order issued on 28 May 2013. However, in paragraph 14 of
his answering affidavit
the respondent admitted that he continued to
conduct business of a Quantity Surveyor completing the projects he
had obtained prior
to the Settlement Agreement and had not been
interdicted in completing that work. He admits that he prepared
estimates for cost
when he was in the employment of the applicant and
upon tendering his resignation, Clarendon Preparatory School engaged
him to
do the work. In January 2014 he discussed with the applicant
whether it objects to him taking the work and the applicant indicated
his objection.
He then declined the work and the applicant was
reinstated.
[7] But the
applicant’s version is that the respondent was, in March 2014
still engaged in the work of quantity surveyor for
Claredon
Preparatory School. The respondent admitted that in January
2014 he was still so engaged with the project of Claredon
Preparatory
School. He was conscious of the order issued on 28 May 2013
which embodied the Settlement Agreement interdicting
and restraining
him for 2 years from engaging himself in quantity surveying and
project management services in the Eastern Cape
Province.
[8] The
respondent’s defence that he was completing existing
outstanding work is spurious. The respondent was employed
by
the applicant. He did the estimates on costing for Claredon
Preparatory School while he was still in the employment of
the
applicant. The respondent was bound by restraint of trade
agreement to the applicant which operated upon the termination
of his
employment with the applicant. He was aware of the restraint of trade
agreement embodied in the shareholders agreement because
he was a
shareholder. Notwithstanding the restraint of trade agreement
the respondent after the termination of employment
with the applicant
successfully tendered for quantity surveying work from Investec Bank
and Claredon Preparatory School, the clients
he knew to be serviced
by the applicant.
[9] The
applicant was obliged to enforce the restraint of trade agreement by
a court order and those proceedings culuminated in
the Settlement
Agreement which was made an order of court on 28 May 2013. The
fact that the respondent agreed to be interdicted
and restrained from
carrying on or engaging himself for two years in the work of quantity
surveyor indicates an admission that
he had breached the restraint of
trade agreement. However, the respondent again went around the
Settlement Agreement and
sought to introduce terms that were never
intended by the parties when they concluded the Settlement
Agreement. It was not
an express or implied term of the
agreement that the respondent would contrary to clause 1 and 2 of the
agreement, be allowed to
complete on his own account, the existing
outstanding work of the applicant to its clients.
[10] The
respondent does not say it is part of the agreement that he could
complete the existing work in which event the
onus
would be on
the applicant to prove that it was not. In my view this issue
must be decided on the version of the applicant.
[11] The
respondent was aware of the order which made the Settlement Agreement
an order of court. He had signed the agreement
in person.
In fact he does not plead unawareness of the order issued on 28 May
2013. All he did was to admit that he
continued to conduct the
business as a Quantity Surveyor but was completing work he had
obtained prior to the Settlement Agreement.
If that was work
contracted by the respondent prior to the Settlement Agreement it
should have been mentioned and excluded expressly
from paragraph 1
and 2 of the Agreement.
[12] The version
of the respondent evinces a blameworthy state of mind which in my
view, proves beyond a reasonable doubt that in
carrying out and
engaging in the work of a quantity surveyor in the Province of the
Eastern Cape he was in contempt of Court.
[11] The
following order is therefore made:
ORDER
1. That the
respondent is declared to be in contempt of Court of Order issued on
28 May 2013.
2. That the
respondent is directed to show cause on Thursday, 29 January 2015 at
9h30 why an order should not be made that:
2.1
The respondent is convicted of contempt of court.
2.2
in the event of the respondent failing to appear personally before
court and/or failing to provide an adequate explanation which
the
court accepts as satisfactory, a Writ of Arrest be issued directing
the Officer Commanding Beacon Bay Police Station, or such
other
person as the officer commanding may direct to arrest the respondent
and to commit him to jail for a period of (30) thirty
days.
3. That the
respondent pays the costs of this application on a party and party
scale.
_______________
LP Pakade
ACTING
DEPUTY JUDGE PRESIDENT OF THE HIGH COURT
For the
Applicant : Adv Watt
Instructed
by: Drake Flemmer & Orsmond Inc
22
St James Road
Southernwood
For the
Respondent : Adv Bester
Instructed by
: Andre Schoombee Attorneys
10
Berea Terrace
Berea
Heard on : 21
August 2014
Delivered on
: 06 January 2015