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[2009] ZAGPJHC 11
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Stewart and Another v Point 2 Point Same Day Express CC and Another (23380/07) [2009] ZAGPJHC 11 (4 May 2009)
IN THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC OF SOUTH AFRICA)
Appeal Case No. A5026/2008
WLD Case No. 23380/07
In the matter between
STEWART, DAPHNE ELIZABETH 1
st
APPELLANT
NETWORK COURIER LOGISTICS CC
2
nd
APPELLANT
and
POINT
2 POINT
SAME DAY EXPRESS CC 1
st
RESPONDENT
JACOBSEN, COLETTE 2
nd
RESPONDENT
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
C.J. CLAASSEN J:
[1] This is an appeal against the judgment by Van
Rooyen AJ handed down on 7 December 2007.
1
An application for leave to appeal the judgment was dismissed
whereafter the appellants petitioned the Supreme Court of Appeal.
The appeal comes before this court with leave granted by the Supreme
Court of Appeal.
[2] The 1
st
and 2
nd
respondents were the applicants in motion proceedings wherein an
interdict was sought against the appellants (respondents in the
court
a quo
) to prevent them from competing
with the business of the respondents for a period of 12 months as
from 9 January 2007. The application
was successful and the court
a quo
issued the following order:
“
(1) That
the 1
st
and 2
nd
respondents be interdicted from competing with the 1
st
applicant in the same day courier business within the Republic of
South Africa for a period of 12 months, such period having commenced
on the 10
th
January 2007. For purposes of this order the wording of the
contract between P2P and Ms Stewart under the heading of “Daphne
Stewart not to compete” applies as from the second sentence.
(2) The 1
st
and 2
nd
respondents must pay the costs of this application on the basis that
if one respondent pays the costs or part thereof the other
is
absolved or
pro
rata
absolved.”
BACKGROUND
[3] The respondents contended that the 1
st
appellant was acting in breach of a restraint of trade clause imposed
upon the 1
st
appellant as per the provisions of a “Sales Agent/Independent
Contractor Agreement” concluded between the 1
st
appellant and the 1
st
respondent wherein the 1
st
appellant was appointed as an independent sales representative,
acting on behalf of the 1
st
respondent.
2
The restraint of trade clause is in the following terms:
“
DAPHNé
STEWART NOT TO COMPETE
Daphn
é
Stewart, having agreed to devote her time to Point 2 Point Same Day
Express CC’s business, shall not deal in another
business in
direct
competition
to the services offered by Point 2 Point Same Day Express CC, on her
own account in any way during the continuance of this agreement.
Daphné Stewart will not engage, directly or indirectly,
either for herself or as employee of any other party,
in
same day
courier
service
,
within R.S.A., for a period of 12 (twelve) months after the
termination of the agency created by this agreement, without the
written consent of Point 2 Point Same Day Express CC.”
3
[4] The contract contains a clause confirming the
fact that during the execution of the contract, the 1
st
appellant will acquire knowledge of the 1
st
respondent’s trade secrets, sources of supply, business
methods, suppliers and clientele. The parties, in the light of
the
aforesaid, expressly recorded a second restraint of trade provision
in the following terms:
“The
Sales Representative/Independent Contractor therefore undertakes not
to knowingly solicit in competition with Point
2 Point Same Day
Express CC, a client or any person who, as at the date of
termination of this contract, is or was a client of
Point 2 Point
Same Day Express CC”.
4
[5] The need for a restraint
to
be placed upon the 1
st
appellant by contract, is obvious when one considers the allegations
made by her in her answering affidavit. Since the inception
of her
employment history starting in 1990, she was exclusively involved in
the courier, freight and logistics industry in South
Africa.
5
Also, she alleges that she was employed in a permanent position
with Messrs. O.C.S. Worldwide for 13 years.
6
In effect, she became associated with the 1
st
and 2
nd
respondents at a time when she already had 17 years extensive
experience in the courier industry.
7
It is not seriously in dispute that O.C.S. Worldwide was the
respondents’ biggest client.
8
In the light of these allegations made by the 1
st
appellant, it follows that she would be in a strong position to
seriously compete with the respondents after termination of their
contract.
[
6] It is common cause
that the 1
st
appellant, at the time of concluding the contract with the
respondents, was involved in a domestic life-partner relationship for
some 8 years with Claude Jean-Marie Calisse (“Calisse”)
who was at the time, together with the 2
nd
respondent, a co-member in the 1
st
respondent.
9
Both the 1
st
appellant and Calisse have respectively been involved in the freight,
courier and logistic industry in the Republic of South Africa
since
as far back as 1990. In fact, Calisse is also the sole member of
another close corporation (“DMX”) which is
a transport
and courier business
10
.
[
7] After having been
associated with the 1
st
respondent as agent/independent contractor for some 7 months, the 1
st
appellant gave written notice terminating the contract with the 1
st
respondent with effect from 31 January 2007
11
.
The 1
st
appellant addressed this letter of resignation to both Calisse and
the 2
nd
respondent.
12
The importance hereof will become apparent later in this judgment.
Calisse resigned as member of the 1
st
respondent with effect from 2
nd
February 2007.
13
In response to the resignation of Calisse, the 2
nd
respondent wrote a letter to him dated 5 February 2007 wherein she
reminded him of certain restrictions imposed on his activities
arising from their partnership agreement. In particular she
referred him to paragraph 2.2 of such agreement which provides as
follows:
“
Restriction
on activities
2.2 As from
immediate effect I would like to respectfully request that you will
have no further contact with any of the existing
clientele of Point
2 Point Same Day Express CC i.r.o.
Same
Day Service Deliveries, i.e. Consign-It, O.C.S. …..
I also
strongly urge you not to try and solicit any business from existing
clientele as per clause 22.1.1. and further like
to draw your
attention to the content of clauses 22.1.2, 22.1.3, 22.1.4, and
25.”
14
It is not in dispute that Annexure “E”
was sent and delivered to
Calisse on the
5
th
of
February 2007 nor that he resigned from the 1
st
respondent on 2 February 2007.
15
[
8] Prior to the writing
of Annexure “E” and allegedly on Monday 15 January 2007,
the 1
st
appellant was purportedly released from all the terms and conditions
of the “Sales Agent/Independent Contractor agreement”
in
terms of a letter signed by Calisse.
16
As to how this letter came into being, the appellants give no
details other than the following:
“12.5 Calisse
confirms that Annexure “DS6” and its contents were
discussed with Jacobsen (2
nd
respondent) and thereafter drafted, signed and furnished to me by
the 1
st
applicant (1
st
respondent) with the knowledge and approval of Jacobsen.”
17
In paragraph 12.6 of the answering affidavit
,
the appellants allege that the letter of release was sent to Jacobsen
in the “daily mail bag” to her residential address
in
Olivedale, Randburg where she attended to the administration of the
1
st
respondent’s affairs. It is further alleged that the 2
nd
respondent had at all times been in possession of a copy of Annexure
“DS6”.
18
[
9] During March 2007
the respondents noticed a sharp drop in their turnover. The 2
nd
respondent began an investigation and ultimately established that the
appellants were competing with her in the same type of business.
It
is not denied that the 1
st
appellant was so competing, as reliance was placed on the written
release referred to above entitling her to do so. Furthermore
it is
not disputed that the respondents’ business suffered
substantially. The appellants allege, however, that the reason
for
such drop in turnover is due to the respondents’ having altered
the nature of their business from that of a “same
day service
provider” to a “same day service broker”.
19
[
10] Prior to the
launching of this application, the respondents’ attorney of
record sent a letter of demand, dated 14 September
2007, to the 1
st
appellant advising her of the fact that she is in breach of the
restraint agreement and requested her to immediately refrain
therefrom.
20
In response hereto an attorney, D.W. Morgan, acting on behalf of
the 1
st
appellant, replied alleging that “at or about the same time as
the agreement between her and your client was terminated,
she
obtained a written release from her restraint.
21
The respondents’ attorney of record replied in a letter,
dated 25 September 2007, requesting a copy of the release referred
to
in Morgan’s letter and stating that should he not receive such
letter within 3 days, “we accept that same does not
exist and
we will proceed against your client.” Apparently this letter
was wrongly addressed and the appellants deny ever
having received
such letter. Be that as it may, the respondents then launched the
application for an interdict on 2 October 2007.
THE ISSUE IN DISPUTE
[1
1] During the hearing
of the appeal counsel for the appellants confirmed that the only
issue in dispute is the validity of the letter
releasing the 1
st
appellant from the terms and conditions of the contract with the 1st
respondent. Indeed, that was also the only point argued
before
this court. In regard to this issue the court
a
quo
came to the following finding:
“[12] Ms
Jacobsen denies all knowledge of the release of Ms Stewart. She
only learnt about it 9 months later. Mr. Calisse
contradicts this.
In terms of
Plascon
Evans Paints vs Van Riebeeck Paints
[1984] ZASCA 51
;
1984 3 SA 623
(A) at 634 – 5, I am bound by what the
respondent states in his affidavit, unless it is “so
far-fetched or clearly
untenable that the Court is justified in
rejecting them merely on the papers….
Ms Van
Nieuwenhuizen, for the applicant, urged me to regard the statements
by Mr. Calisse and Ms Stewart as untenable and reject
them. I can
only accede to this argument if I am satisfied on the papers that in
terms of section 54(2)
22
Mr Calisse in fact had no power to act for the corporation in the
particular matter and the person with whom he dealt had, or
ought
reasonably to have had, knowledge of the fact that the member had no
such power. I am satisfied that, on the probabilities,
Mr. Calisse
did not have the authority to release Ms Stewart. I would, indeed,
be particularly strange if one of the members
could unilaterally
abandon rights and just as strange if Ms Jacobsen would have
authorised him to do so. The same-day brokerage
market is, as
appears from the papers, a vibrant and competitive business. The fact
that Ms Jacobsen, in her letter to Mr. Calisse,
when accepting his
resignation, reminds him of his duties not to directly compete with
P2P, is indicative of her attitude in this
regard. Why would she
have had a different attitude in regard to Ms Stewart, whom she
knows, has a relationship with Mr Calisse
and is experienced in this
business? I therefore conclude that Mr. Calisse did not have the
authority to release Ms Stewart.
[13] The
last question is whether Ms Stewart ought reasonably to have had
knowledge of the fact that Mr. Calisse had no power
to release her.
It is clear from the papers that Ms Stewart has wide experience of
the brokerage business in this field.
To reasonably believe that
Mr. Calisse has the authority to release her from her obligation not
to compete as contractor without
having the letter co-signed by Ms
Jacobsen is questionable. The belief is also unacceptable in the
circumstances: why would
a competitor in this field give a
potential competitor free reigns to compete without receiving any
payment for it? It is not
as if Ms Stewart is a novice in this
field and would pose no threat to the business of P2P. My
conclusion is that in the light
of the circumstances, Ms Steward
either knew or should reasonably have known that Mr. Calisse did not
have the authority to release
her.”
[12] In the court
a
quo
and on appeal before this court,
the appellants relied almost exclusively on the provisions of section
54 of the Close Corporation
Act No. 69 of 1984 (“the Act”)
which provides as follows:
“
(1) Subject to the
provisions of this section, any member of a corporation shall in
relation to a person who is not a member and
in dealing with the
corporation, be an agent of the corporation.
(2) Any act
of a member shall bind a corporation, whether or not such act is
performed for the carrying on of business of a corporation
unless a
member so acting has in fact no power to act for the corporation in
the particular matter and the person with whom he
deals has, or
ought reasonably to have, knowledge of the fact that the member has
no such power.”
[13]
Counsel
for the appellants argued before us that a dispute of fact existed on
the papers regarding whether or not Calisse had authority
to bind the
corporation. The court
a quo
decided
this issue on the probabilities and that, it was submitted,
constituted a misdirection. In addition it was argued that
no
allegations were made by the respondents to the effect that the first
appellant knew or ought to have known that Calisse did
not have the
authority to release her from the restraint of trade. Reliance was
placed on the judgment of Koen AJ in the case
of
J
& K Timbers (Pty) Ltd
t/a
Tegs Timbers v G.L.& S Furniture Enterprises CC
2005
3 SA 223
N. The court
a quo
,
fairly comprehensively, referred to the judgment of Koen AJ as well
as an extract from the commentary of Prof. Henning on the
Close
Corporations Act.
23
In my view the provisions of section 54 of the Close Corporation
Act speak for themselves. The purpose thereof is to protect
third
parties who have contracted with a member of a close corporation
against the negative effects of the
uItra
vires
doctrine and the doctrine of
constructive notice. Thus, section 54(2) expressly binds the
corporation to a third party who had
dealt with a member “unless
the member so acting has in fact no power to act for the corporation
in the particular matter
and
the person with whom he deals has, or ought reasonably to have had,
knowledge of the fact that the member has no such power.”
(Emphasis added). I shall therefore be dealing with the questions
regarding whether or not Calisse had the authority to bind
the first
respondent to the letter of release and thereafter the question
whether or not the first appellant had, or ought reasonably
to have
had, knowledge of such lack of authority.
THE AUTHORITY OF
CALISSE
[14] In dealing with the dispute of fact on the
papers regarding the authority of
Calisse
to bind the corporation, one must be mindful of the approach adopted
in the case of
Plascon-Evans Paints v
Van Riebeeck Paints
1984 3 623 (AD) at
634 H – 635 C where Corbett JA said the following:
“It is
correct that, where in proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order,
whether it be an
interdict or some other form of relief, may be granted if those facts
averred in the applicant’s affidavits
which have been admitted
by the respondent, together with the facts alleged by the respondent,
justify such an order. The power
of the Court to give such final
relief on the papers before it is, however, not confined to such a
situation. In certain instances
the denial by respondent of a fact
alleged by the applicant may not be suc
h
as to raise a real, genuine or
bona
fide
dispute of fact…… If in such a case the respondent has
not availed himself of his right to apply for the deponents
concerned
to be called for cross-examination under Rule 6(5)(g) of the Uniform
Rules of Court….. and the Court is satisfied
as to the
inherent credibility of the applicant’s factual averment, it
may proceed on the basis of the correctness thereof
and include this
fact among those upon which it determines whether the applicant is
entitled to the final relief which he seeks……
Moreover, there may be exceptions to this general rule, as, for
example, where the allegations or denials of the respondent are
so-fetched or clearly untenable that the Court is justified in
rejecting them merely on the papers…..”
[15] It is common cause that the appellants did
not invoke Rule 6(5)(g)
24
during the hearing in the court
a
quo,
as contemplated in the quote aforesaid. Merely stating that a
dispute of fact exists does not automatically render it incapable
of
a definitive judgment thereon. The court must establish whether or
not such dispute is “real, genuine or
bona
fide
”. If not, the appellants
should have availed themselves of the procedure in Rule 6(5)(g).
Alternatively the court may
resolve it on the papers. In my
view this is indeed a case where the court would be justified in
adopting a robust, common-sense
approach to resolve the dispute on
the papers in order to prevent this court from being hamstrung by a
blatant stratagem on the
part of the appellants. It has been said
that the court must not hesitate to decide an issue of fact on
affidavit merely because
it may be difficult to do so. Justice can
be defeated or seriously impeded and delayed by an over-fastidious
approach to a dispute
raised in affidavits.
25
This is particularly so in cases like this where the facts lie
“purely within the knowledge of the averring party”.
26
When the facts averred are such that the disputing party necessarily
possessed intimate knowledge of them but rests his case on
a bare,
incomplete or ambiguous denial, the court will have difficulty in
finding that the test is satisfied.
27
[16]
Applying
these principles, I now turn to the dispute regarding Calisse’s
authority. I respectfully agree with the finding
of the court
a
quo
that Calisse in fact had no
authority to draft and send the letter of release to the first
appellant. I say this for the following
reasons:
1.
Ex facie
the letter it is clear that the official letterhead of the
corporation was not used by Calisse. I say this for the following
reasons:
1.1 The
logo appearing at the top left-hand corner is different to the normal
logo used by the first respondent as seen in Annexure
“E”
at page 45 and Annexure “DS9” at page 119.
1.2 The typing font used for the registration and
VAT number
s of the corporation is
different to the typing font used in Annexure “E” and
Annexure “DS9”.
1.3 The
official
letterhead of the first respondent includes the words “SAEPA
Reg. No.: PR 2006/07/GP 199.” These do not
appear on the
letter of release.
1.4 The
letterheads in Annexure “E” and “DS9” include
a Post Box address which does not appear on the letter
of release.
1.5 Annexure
s “E”
and “DS9” contain the following:
“
ACCOUNTS
- Cellular: 083-677-0469, Facsimile: 086-615-2483, E-mail:
p2pexpress@iafrica.com.” This information does not appear
on the letter of release.
1.6. The letter of release does not contain the
names of the members of the corporation as is
required
by section 41 of the Close Corporation Act and thus renders the
corporation guilty of an offence.
28
In these circumstances, it is difficult to accept
that the letter of release was a valid and
bona
fide
written release. The question
comes to mind, why use a document with a letterhead other than the
official letterheads of the
1
st
respondent? Why redesign the letter in such a way that it
constitutes a breach of the statutory provisions in clause 41 of the
Act? The only reasonable inference to be drawn in these
circumstances is that Calisse, in conjunction with the 1
st
appellant, surreptitiously prepared, signed and issued this letter
without consulting the 2
nd
respondent. If this is so, it would follow that the letter could
never have been lawfully issued by Calisse. He could never
have had
any authority to act contrary to a statutory obligation on behalf of
the 1
st
respondent.
2. The letter of release in effect constitutes a
waiver by the
1
st
respondent to hold the 1
st
appellant to the provisions of the restraint. It is trite that
waiver constitutes a special plea which has to be proved by the
person alleging such waiver. Also, there is a presumption against a
waiver. In this case the respondents, in two clauses of the
contract, secured and spelt out in great detail the restrictions
under which the 1
st
appellant will labour upon termination of the contract. In these
circumstances, rebutting the presumption will, necessarily, be
problematic. It has also been said that although waiver has to be
proved on a balance of probability it is difficult to prove
such a
defence. This is so because it has to be proved that the person who
had waived his or her rights was fully aware of exactly
what rights
are being waived.
29
In the present instance the appellants allege that Calisse discussed
the release of the 1
st
appellant with the 2
nd
respondent and thereafter “DS6” was “drafted,
signed and furnished to me by the 1
st
applicant with the knowledge and approval of Jacobsen”. No
details are supplied as to when and where these discussions
took
place. No details are given as to whether such discussion took
place
inter partes
,
or by telephone or by an interchange of emails or faxes.
Furthermore, there is no confirmation that the contents of the letter
was discussed with the 2
nd
respondent after it was drafted, signed and delivered. All of the
above details lie purely within the knowledge of 1
st
appellant and Calisse. Their failure to supply these must redound
to their detriment because it supports the inference that such
letter
was surreptiously drafted as a ploy by 1
st
appellant and Calisse to enable her to compete with the respondents
immediately after 31 January 2007. In my view, the 1
st
appellant’s allegations in this regard constitute a bald
statement that carries little weight and does not pass muster to
discharge the onerous proof to establish waiver
.
3. In terms of section 42 of the Act
,
each member of a corporation shall stand in a fiduciary relationship
to the corporation to act honestly and in good faith and
in
particular to manage the affairs of the corporation in the interest
and for the benefit of the corporation. Furthermore, such
members
shall avoid any conflict between his or her own interests and those
of the corporation. It would have been a simple matter
for Calissse
to obtain the signature of the 2
nd
respondent indicating her approval with the letter of release. No
reason whatsoever is given by the appellants for such failure
other
than the bald statement referred to in the previous paragraph. Had
the letter of release been signed by the 1
st
appellant there would have been no doubt as to its validity.
Calisse must have realized the contentious nature of absolving the
1
st
appellant of her onerous obligations contained in 2 separate clauses
in the contract, previously referred to. In order to avoid
any
later attack on his
bona fides
and any accusations of breach of duty, written approval of his
co-member would have brought him within the protection of section
42(4)
30
of the Act. His failure in this regard tends to confirm his lack of
bona fides
and a knowledge that he in fact had no authority to bind the
respondents in this way.
4. The appellants allege that the letter was sent
to the 1
st
respondent by mail bag. No proof of such postage and/or delivery is
provided by the appellants other than a bald allegation which
can
hardly be disproved.
5.
To my mind, the
letter obviously constitutes a devious stratagem by Calisse and the
1
st
appellant to allow her to compete fairly in the industry with which
she has been involved for the last 17 years. This, in my
view, is
the only inference to be drawn from the fact that, 2 weeks prior to
her and Calisse’s resignations were to take
effect, the letter
of release is issued. Both Calisse and the 1
st
appellant must have realised the serious implications the letter
would have for the respondents. Yet there is no allegation of
any
intent to make sure that the 1
st
respondent in fact received the letter and agreed to its contents.
6. The
inference is
inescapable that the respondents would have acted immediately and
with strenuous opposition upon the receipt of the
letter of release,
similar to the 2
nd
respondent’s response in the case of the resignation of
Calisse. The absence of any similar conduct by the 2
nd
respondent in regard to the letter of release leads one to only one
reasonable inference, and that is that she never received it,
consistent with 2
nd
respondent’s allegations on affidavit.
7. The fact that all three parties were aware of
the expertise of the 1
st
appellant made the need for such a clause of restraint absolutely
necessary for the survival of the respondents. The potential
loss
that the respondents may suffer in the event of the restraint clause
being rendered ineffective could not have escaped either
Calisse or
the 1
st
appellant. Furthermore, on the allegations made by 1
st
appellant, it is clear that after leaving, she would have no income
if she was restrained from operating in the field of courier
business. The incentive for the 1
st
appellant and Calisse to conspire the release of the 1
st
appellant in a furtive and dishonest manner, was, therefore, so much
greater.
[1
7] All of the
aforegoing considerations justify the inference that Calisse knew
that the 2
nd
respondent would not agree to such a release. That being the case,
it follows that Calisse executed the letter of release without
authority and contrary to the fiduciary duties owed to his co-member.
I therefore agree with the conclusion of the court
a
quo
that despite the dispute regarding
Calisse’s authority, a robust and common-sense approach
justified the inference that the
allegation of Calisse having acted
within his authority is so far-fetched and untenable that it was
justified in rejecting the
appellants’ version in this regard
on the papers.
THE 1
ST
APPELLANT’S KNOWLEDGE OF THE AFORESAID LACK OF AUTHORITY
[18
] It is trite that
the onus of proof to establish the validity of the letter of release
rested upon the appellants. Counsel for
the appellants argued that
the onus of proof reverted to the respondents to prove that the 1
st
appellant had, or ought reasonably to have had knowledge of the lack
of Calisse’s authority. Without deciding the issue,
I am
prepared to assume the correctness of the aforesaid proposition of
law. The problem I see in this regard is, however, that
the
appellants never made any allegation to the effect that, should the
court find that Calisse lacked the necessary authority
to issue the
letter of release, then the 1
st
appellant was in any event unaware of such lack of authority. The
case made out by the appellants in the answering affidavit
was
exclusively concerned with an attempt to establish that Calisse was
duly authorized to issue the letter of release.
31
In these circumstances it seems hardly likely that the respondents
would have sought to deal in their replying affidavit with
the 1
st
appellant’s knowledge of Calisse’s authority.
[19
] It goes without
saying that proving what knowledge another person had of a certain
set of facts, can only be done by way of inference
drawn from the
surrounding circumstances. In my view the respondents succeeded by
inference to establish that the 1
st
appellant indeed knew of Calisse’s lack of authority to issue
the letter. To counter this inference, the appellants rely
on the
fact that Calisse signed the contract on behalf of the 1
st
respondent. It is argued that such fact must have led the 1
st
appellant to believe that the letter of release, signed by Calisse,
was therefore in order. However, nowhere is it alleged that
the 1
st
appellant in fact assumed or accepted that Calisse had the authority
to sign the letter of release on behalf of the 1
st
respondent. On the contrary, the 1
st
appellant alleges that Calisse was authorized to sign such letter of
release without the necessity of any written resolution of
the
members having been passed confirming such authority.
32
No allegation is made by the 1
st
appellant as to her lack of knowledge or belief regarding Calisse’s
authority in the event that he was in fact unauthorised.
[
20] Strictly speaking,
1
st
appellant was not an “outsider” to the inner workings of
the 1
st
respondent. It would appear that the 1
st
appellant had knowledge of the inner workings of the 1
st
respondent regarding the method of decision making by Calisse and the
2
nd
respondent, when they were still co-members. That is why she
addressed her own letter of resignation to both 2
nd
respondent and Calisse i.e. to both directors.
33
She also displays a knowledge of the respective duties and
responsibilities of the two members by stating that the 2
nd
respondent was concerned with the administrative part of the
business, which normally would include staff appointments and
dismissals.
Calisse was concerned with the operation of 1
st
respondent’s operational activities. As of necessity she must
have realised that Calisse was acting on his own when he
signed the
letter of release, an action which falls squarely within an
administrative field belonging to the 2
nd
respondent. The 1
st
appellant must have realised the inherent danger to the 1
st
respondent’s business if she was allowed to compete with it
free from any restraint. She was a signatory to the contract
which
twice placed restrictions upon her as far as competition with the 1
st
respondent is concerned. She must therefore have realised the
importance of these clauses to the 1
st
respondent. As such, she knew that the 2
nd
respondent would never have agreed to such a release from those
restraints. The only way to side step such objection by the
2
nd
respondent, would have been to issue such letter without the approval
or authority of the 2
nd
respondent.
[21
] The overwhelming
inference to be drawn from the facts in this case is that the 1st
appellant connived with Calisse to extricate
her from the restrictive
provisions of the contract, full well knowing that Calisse did not
have the authority to do so. To the
extent that this conclusion may
be overly strong, I am satisfied that the respondents proved on the
papers that the 1
st
appellant ought reasonably to have known that Calisse lacked
authority to issue the letter.
[
22] I therefore
conclude that for the reasons set out above the respondents proved
that the 1
st
appellant in fact had knowledge that Calisse was unauthorized to
issue the letter of release
[23] For the aforesaid reasons I am of the view
that the court
a quo
came to the right conclusion and that the appeal cannot succeed.
I therefore make the following order:
1. The appeal is dismissed with costs.
DATED AND SIGNED AT JOHANNESBURG ON THIS …….. DAY OF
MAY 2009
___________________________
C.J. CLAASSEN
JUDGE OF THE HIGH COURT
I agree
_____________________________
M. JAJBHAY
JUDGE OF THE HIGH COURT
I agree
______________________________
H. MAYAT
ACTING JUDGE OF THE HIGH COURT
The matter was argued on 4 May 2009-05-05
Counsel for the appellant: A Bedeker
Attorney for the appellants: Kevin Hyde
Attorneys
Counsel for the respondents: M. van der Westhuizen
Attorney for the respondents: Neels Engelbrecht & Partners
1
The judgment of Van Rooyen AJ has been
reported as
Point 2 Point Same Day
Express CC and Another
v
Stewart amd Another
2009 2 SA 414
(WLD).
2
See Annexure “C” attached to the
founding affidavit at pages 20 – 43.
3
See record, page 26.
4
See clause 15 at page 33 of the record.
5
See paragraph 9.2.1. of the answering
affidavit at page 79 of the record.
6
See paragraph 9.3 of the answering affidavit
at page 80 of the record.
7
See paragraph 9.5 of the answering affidavit
at page 80 of the record.
8
See paragraph 9 of the founding affidavit at
page 8 of the record as read with paragraph 14.1 of the answering
affidavit at
page 91 of the record.
9
See paragraph 7.3 of the answering affidavit
at page 76 of the record.
10
See paragraph 7.4 of the answering affidavit
at page 76 of the record.
11
See Exhibit “D” attached to the
founding affidavit at page 44 of the record.
12
The letter is addressed to the “director
s
”
of the 1
st
respondent, who, at that time, were Calisse and the 2
nd
respondent, and they are “both” thanked.
13
See Exhibit “E” attached to the
founding affidavit at page 45 of the record, as read with paragraph
13.1 of
the answering affidavit at page 90 of the record.
14
See page 2 of Annexure “E” attached
to the founding affidavit at page 46 of the record.
15
See paragraph 8 of the founding affidavit at
page 8 as read with paragraph 13 of the answering affidavit at pages
90 and 91
of the record.
16
See Exhibit “DS6” attached to the
answering affidavit at page 114 of the record.
17
See page 86 of the record.
18
See paragraph 12.6 of the answering affidavit
at page 87 of the record.
19
See paragraphs 14.6 and 14.7 of the answering
affidavit at page 92 of the record.
20
See paragraph 13.1 of the founding affidavit as
read with Annexure “L” attached thereto at pages 14 and
56 of the
record.
21
See Annexure “M” attached to the
founding affidavit a page 59 of the record.
22
Section 54(2) of the Close Corporation Act No.
69 of 1984.
23
See paragraphs 5.14 and 5.15 of his commentary.
24
“6(5)(g): Where an application cannot
properly be decided on affidavit the court may dismiss the
application or make
such order as to it seems meet with a view to
ensuring a just and expeditious decision. In particular, but
without affecting
the generality of the aforegoing, it may direct
that oral evidence be heard on specified issues with a view to
resolving any
dispute of fact and to that end may order any deponent
to appear personally or grant leave for him or any other person to
be
subpoenaed to appear and be examined and cross-examined as a
witness or it may refer the matter to trial with appropriate
directions
as to pleadings or definition of issues, or otherwise.”
25
See
Soffiantini v
Mould
1956 4 SA 150
(EDLD) at 154 G –
H;
Truth Verification Testing Centre v
P.S.E. Truth Detection CC
1998 2 SA
689
(W) at 698 H – I.
26
See
Wightman t/a
JW Construction v Headfour (Pty) Ltd.
[2008] ZASCA 6
;
2008
3
SA 371
(SCA) at 375 H.
27
Ibid
at 375 H-I.
28
“41(1) A corporation shall not issue or
send to any person any business letter, whether in electronic or any
other format,
bearing a registered name of the corporation, unless
the forenames (or the initials) and surname of every member thereof
are
stated thereon. (2) Any corporation which contravenes any
provision of sub section (1) shall be guilty of an offence”.
29
See Christie, The Law of Contract in S.A.,
Fifth Edition pages 441 and 442.
30
See in this regard section 42(4) which provides: “Except
as regards his or her duty referred to in sub section (2)(a)(
i ),
any particular conduct of a member shall not constitute a breach of
a duty arising from his or her fiduciary relationship
to the
corporation, if such conduct was preceded or followed by the written
approval of all the members where such members were
or are
cogniscant of all the material facts”.
31
See paragraph 12.5 of the answering affidavit
at page 86 and paragraph 12.9 at page 88.
32
See paragraph 12.9 at page 88 of the answering
affidavit.
33
See Annexure “D” at page 44 of the
record.