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[2008] ZAWCHC 191
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Roets v Pyramid Freight (Pty) Ltd (A21/2008) [2008] ZAWCHC 191 (9 May 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A21/2008
DATE:
9
MAY 2008
In
the matter between:
ELMARIE
ROETS
Appellant
And
PYRAMID
FREIGHT (PTY) LTD
Respondent
JUDGMENT
FOURIE,
J
:
[1]
In
this matter the appellant appeals against the judgment of the
magistrate in Goodwood ordering her to pay to the respondent
the sum
of R76 666.66 plus interest and costs.
[2]
The magistrate's reasons were given on 2 March 2007. Appellant filed
her notice of appeal on 4 September 2007, substantially
outside the
time period referred to in Rule 51(3) of the Magistrates' Court
Rules requiring such notice of appeal to be filed
within 20 days of
the court's reasons. There is no application for condonation for
the late fifing of the notice of appeal and,
in addition, no heads
of argument were filed on behalf of the appellant.
[3]
Today at the hearing of the appeal Mr
Wagner
appears on behalf of the respondent, but there is no appearance for
the appellant. I should mention that yesterday a notice was
filed by
appellant's attorneys requesting the removal of the appeal from the
roll by agreement as the matter has been settled.
Mr
Wagner
,
however, informs us that the matter has not been settled, as appears
from his letter dated 8 May 2008 addressed to the appellant's
attorneys and to which he has had no response. The appeal is
accordingly still on the roll and Mr
Wagner
,
as he is entitled to do, has asked us to finally determine the
merits thereof.
[4]
In regard to the merits, the appellant was employed by the
respondent as a sales representative until her resignation on 8
April 2004. Prior to her resignation, on 22 April 2002, the parties
entered into a written contract pursuant to which the appellant
undertook to repay the sum of R80 000 to the respondent in the event
of her resignation within two years of certain specialised
training
being provided to her. In terms of this contract the sum repayable
reduced on a sliding scale extending over the two
year period
ensuing after the provision of the training.
[5]
Appellant completed her training on 25 February 2004 and she
resigned on 8 April 2004, As a result of her resignation and
pursuant to the formula contained in the contract, appellant was
obliged to repay to respondent the sum of R76 666.66.
[6]
In her notice of appeal, the appellant raises only two grounds.
Firstly, that the magistrate erred in not finding that the
sum
claimed was a penalty in terms of the Convention Penalties Act and
secondly, that the magistrate erred in not reducing the
penalty. It
was common cause during the trial that the sum claimed by the
respondent is a penalty and it is apparent from the
magistrate's
reasons that she considered it as such.
[7]
The respondent presented the evidence of Ms C Myroff who testified
regarding the costs to the respondent of the training provided
to
the appellant. She prepared a schedule (Exhibit R) in which she
calculated the cost of the training program to be R73 193.85.
Her
evidence in this regard was not challenged.
[7]
It is trite that the
onus
rests
upon the party alleging that the penalty is out of proportion to the
prejudice suffered, to prove both the existence and
the extent of
such prejudice. It is clear on the evidence of Ms Myroff that the
penalty of R76 666.66 is not at all out of proportion
to the
financial prejudice of R73 193.85 suffered by respondent. There is,
accordingly, no basis upon which this Court should
interfere with
the order made by the magistrate.
[8]
In the result I would dismiss the appeal, with costs.
WAGLAY.
J
:
I agree.
WAGLAY,
J
FOURIE,
J:
It is so ordered.
FOURIE,
J