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[2011] ZAFSHC 175
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Sapcor Harrismith (Pty) Ltd v Horn and Others (4763/11) [2011] ZAFSHC 175 (17 November 2011)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No. : 4763/11
In
the matter between:
SAPCOR
HARRISMITH (PTY) LIMITED
…...............................
Applicant
and
THERESA GERTRUIDA
MARIA HORN
…...................
First
Respondent
PSG KONSULT
FINANCIAL
PLANNING (PTY) LTD
….......................................
Second
Respondent
BRONZE ARROW
TRADING (PTY) LTD
…................
Third
Respondent
JUDGMENT BY:
KUBUSHI, AJ
_____________________________________________________
HEARD ON:
10 NOVEMBER 2011
_____________________________________________________
DELIVERED ON:
17
NOVEMBER 2011
KUBUSHI, AJ
[1] The applicant
approached this court by way of an urgent application in which he
sought to enforce a restrain of trade agreement.
The first respondent
was formerly employed by the applicant in terms of a service
agreement and was subsequently dismissed. The
first respondent is now
employed by the second respondent a competitor of the applicant. Such
employment, according to the applicant,
is in contravention of the
service agreement in particular a restrain of trade clause in the
service agreement.
[2] The first
respondent’s counsel, Adv Knoetze, SC, raised a point
in
limine
on the question of urgency or lack thereof. The point was
raised only after the applicant’s counsel, Adv Van Niekerk, SC,
had already addressed me on the merits. I however, ordered Mr Knoetze
to address me only on urgency. He based his argument on three
points,
namely, that
2.1 The applicant’s
urgency was self created;
The applicant’s
founding affidavit does not comply with the provisions of rule 6
(12) (b); and
there was no request by
the applicant for the court to condone his non- compliance with the
rules.
URGENCY SELF CREATED
[3] According to Mr
Knoetze, the applicant’s urgency was self created. The
applicant knew as far back as 18 August 2011 that
the first
respondent was employed by the second respondent but took no steps
against her. He contended that the applicant’s
notice of motion
and the founding affidavit thereto were signed on the 31 October
2011, two months after the applicant knew of
the first respondent’s
new employment. The application itself was issued on the 2 November
2011, enrolled for set down on
the 10 November 2011 and was served on
the first respondent on the 7 November 2011. It took the applicant
about three months before
he could launch the application, so he
argued. He contended also that the
TRANSNET LTD v RUBENSTEIN
2005 (3) All SA 425
(SCA) at 434 - 435 case was not applicable in
this instance. The case, according to him, would only be apposite
where the parties
have been engaged in ongoing negotiations and they
finally did not reach settlement. In this instance however, there was
only two
letters dated 13 October 2011 from the applicant’s
attorneys informing the first and second respondents that the
applicant
has given them instructions. He argued that the delay was
undue and unexplained.
[4] The applicant’s
counsel, Mr Van Niekerk, argued that the urgency was not self
created. According to him, the whole process
started on the 18 August
2011 when the applicant became aware that the first respondent has
been employed by the second respondent
and escalated until in October
2011. However, at that time when he became aware he did not know what
effect such employment will
have on his business. Once the first
respondent started working there, there was a flurry of brokers notes
sent by the second respondent
to applicant’s company. The
applicant received seventeen such brokers notes, which according to
the attrition rate in this
industry was unusual. It was as a result
on these brokers notes that he decided to take action. The first
action the applicant
took was to write a letter to the first and
second respondents to inform them that the first respondent was in
breach of the restrain
of trade agreement. No response was received.
It was only then that he thought it fit to launch the present
application. Settlement
negotiations, according to Mr Van Niekerk,
did not diminish the urgency, the matter remained urgent at all
times. He contended
that the
TRANSNET
-case
supra
was
thus apposite in this instance.
[5] It has been held that
where an applicant first seeks compliance from the respondent before
lodging an application it cannot
be said that the applicant had been
dilatory in bringing the application or that the urgency thereof was
self-created. See
NELSON MANDELA METROPOLITAN MUNICIPALITY AND
OTHERS v GREYVENOUW CC AND OTHERS
2004 (2) SA 81
(SE) at 94C
– D and
2007 (2) SA 9
(C) 12I -13A and
TRANSNET LTD v
RUBENSTEIN
supra
at 434 – 435.
[6] I agree with Mr Van
Niekerk on this issue. The urgency was not self created. I am
satisfied that, from the time the applicant
became aware of the first
respondent’s employment by the second respondent he took the
necessary steps to have the situation
remedied. According to his
counsel, he initially did not know whether this employment will have
any effect on his business or not.
It was only when he received an
unusual number of brokers notes from the second respondent that he
became concerned. The brokers
notes as attached to the founding
affidavit indicate a continuous pattern. The applicant received some
notes in the month of August,
some in September and also in October.
He then wrote letters to the first and second respondents to make
them aware of the breach.
These letters were written on the 13
October 2011 and when no response was forthcoming, he launched the
application on the 31 October
2011. In these circumstances, my view
is that the applicant cannot be penalised for having attempted to
settle the matter before
he could approach the court for a remedy.
FAILURE TO COMPLY WITH
RULE 6 (12) (b)
[7] Mr Knoetze contended
that the applicant did not comply with
the provisions of rule 6
(12) (b). According to him the applicant’s counsel in his
address to the court did not refer me to
any paragraph in the
applicant’s founding affidavit that showed that the applicant
complied with the sub-rule and explained
why it was necessary to have
inconvenienced the court. According to him the sub-rule enjoins the
applicant to explicitly set forth
the circumstances which he or she
avers render the matter urgent and the reasons why he or she claims
that he or she could not
be afforded substantial redress at the
hearing in due course.
[8] The applicant’s
counsel contended that the urgency in this instance was quiet clear
and self evident from the papers.
According to him there was nothing
more that the applicant needed to say in the papers. A restrain of
trade agreement has a finite
lapse of time which lapses every day
which passes. The sooner one acts on it the sooner the loss will be
curbed. This is the reason
why applications of this nature are
invariably brought as a matter of urgency. This appears from the
papers, he said. There was
nothing more that the applicant needed to
say in the papers. The first respondent has not suffered any
prejudice, she was given
a chance to respond to the papers and she
was able to file a lengthy and extensive response. The counsel she
instructed was also
able to file lengthy heads of argument. The
merits must be heard because the applicant will continue to be
prejudiced by the continued
employment of the first respondent with
the second respondent, so he argued. This is not the type of case to
be struck off the
roll for lack of urgency, he said.
[9] The applicant
approached this court by way of a notice of motion for a rule
nisi
.
A rule
nisi
is not substantially provided for in the Uniform
Rules of Court. The rule nisi procedure has, however, been engrafted
onto the
application procedure by practice and the procedure thereof
is regulated by rule 6, in particular sub-rule (12). In
SAFCOR
FORWARDING (JOHANNESBURG) (PTY) LTD v NATIONAL TRANSPORT COMMISSION
1982 (3) SA 654
(A) at 674H – 675A it is stated that
“
The
procedure for a rule nisi is usually resorted to in matters of
urgency and where the applicant seeks interim relief in order
adequately to protect his immediate interests. . . . in circumstances
where the applicant can show, prima facie, that his rights
have been
infringed and that he will suffer real loss or disadvantage if he is
compelled to rely solely on the normal procedures
for bringing
disputes to Court by way of notice of motion or summons. The rule
nisi
procedure must be considered in conjunction with the provisions of
Rule 6 (12) . . . ”
[10] The relevant
provisions of Rule 6 (12) read:
“
(a) In
urgent applications the court or a judge may dispense with the forms
and service provided for in these rules and may dispose
of such
matter at such time and place and in such manner and in accordance
with such procedure (which shall as far as practicable
be in terms of
these rules) as to it seems meet.
(b) In every affidavit or petition
filed in support of any application under paragraph (a) of this
sub-rule, the applicant shall
set forth explicitly the circumstances
which he avers render the matter urgent and the reasons why he claims
that he could not
be afforded substantial redress at hearing in due
course.”
[11] In this instance,
the applicant did not comply with rule 6 (12) (b). He did not, in his
founding affidavit, set out the circumstances
which he averred render
the matter urgent nor state the reasons why he claimed that he could
not be afforded substantial redress
at a hearing in due course. His
counsel contended that an application about the enforcement of a
restrain of trade agreement, by
its very nature requires to be
attended to on an urgent basis. According to him, the applicant did
not have to state more than
what was contained in his founding
affidavit to justify the urgency.
[12] I do not agree with
Mr Van Niekerk on this point. Rule 6 (12) (b) is very clear, it
enjoins an applicant to explicitly set
forth firstly, the
circumstances which he or she avers render the matter urgent and
secondly, the reasons why he or she claims
that he or she could not
be afforded substantial redress at a hearing in due course. Coetzee J
in
LUNA MEUBEL VERVAARDIGERS v MAKIN AND ANOTHER
1977
(4) SA 135
(W) at 137F stated as follows:
“
Mere lip
service to the requirements of Rule 6 (12) (b) will not do and an
applicant must make out a case in the founding affidavit
to justify
the particular extent of the departure from the norm, . . .”
[13] The provisions of
rule 6 (12) (b) are imperative and failure to comply therewith is
fatal to an application. See
SALT AND ANOTHER v SMITH
1991 (2) SA 186
(Nm) at 187D-G.
FAILURE TO APPLY FOR
CONDONATION
[14] Mr Knoetze contended
further that there was also no request by the applicant on the notice
of motion to the court for an order
that the application be heard on
urgency, and for non-compliance with the rules.
[15] It has been held
that if an applicant requires the operation of any rule to be
dispensed with, such as rules relating to the
service of any order
made, he or she should in his or her application make out a case for
dispensing with such a rule. The applicant
must in his or her
founding affidavit ask the court that his or her non-compliance with
the rules be condoned as well.
LUNA MEUBEL VERVAARDIGERS v
MAKIN AND ANOTHER
supra
at 137F;
I L & B
MARCOW CATERERS (PTY) LTD v GREATERMANS SA LTD & ANOTHER; AROMA
INN (PTY) LTD v HYPERMARKETS (PTY) LTD & ANOTHER
1981(4)
SA 108 (C) at 110G – H and 111A;
[16] Conradie J in
refusing a rule nisi application, held in
KAYAMANDI TOWN
COMMITTEE v MKHWASO AND OTHERS
1991 (2) SA 630
(C) at 633I –
J and 634A
“
In an urgent
application an applicant can, and usually does, in accordance with
the provisions of Rule 6 (12) of the Uniform Rules
of Court, apply
for the Rules regarding the ‘usual forms of service’ to
be dispensed with. The applicant asked only
for its non-compliance
with the Rules regarding service to be condoned. It did not, either
in the earlier application . . . or
in the hearing before me, ask for
the operation of any other Rules to be dispensed with and has not
made out a case for dispensing
with them.”
[17] I agree with the
learned judge’s findings. In terms of Rule 6 (12) (a) only a
court or a judge may in urgent applications
dispense with the forms
and service provided for in these rules. It is not the applicant who
must dispense with the rules but a
court or a judge. The applicant
must therefore approach the court or a judge to dispense with the
rules and to condone his or her
non-compliance.
[18] In this instance the
applicant did not comply with the rules. The notice of motion was
issued on the 2 November 2011, enrolled
for hearing on the 10
November 2011 and served on the first respondent on the 7 November
2011. These time frames are in contravention
of the time frames set
out in rule 6 (5). The applicant was supposed therefore to have
applied to this Court, for me to dispense
with Rule 6 (5) and to the
non-compliance thereof. However, neither in his notice of motion nor
during the hearing of this application,
did the applicant pray for
such condonation. In my view, this failure by the applicant to
request me to dispense with the rules
and to condone his
non-compliance is fatal to his application.
[19] I do agree that a
litigant may approach a court by way of an urgent interdict
application for the enforcement of a restraint
of trade agreement and
that a rule
nisi
procedure would be a proper procedure to
follow in that respect. However, this does not mean that proper
procedures must not be
followed or the rules of court flouted. Based
on these two grounds I am satisfied that the applicant did not make a
case for this
application to be heard on an urgent basis.
[20] In the premises, I
grant the following order:
The application is
struck off the roll for lack of urgency with costs.
________________
E.M.
KUBUSHI, AJ
On behalf of the
applicant: Adv. G.O. van Niekerk SC
Instructed by:
Webbers
BLOEMFONTEIN
On behalf of the first
respondent: Adv. Barnard Knoetze SC
Instructed by:
Horn & Van Rensburg
BLOEMFONTEIN
EKM/sp