About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2020
>>
[2020] ZALAC 12
|
|
E-MD Technologies (Pty) Ltd v Soni and Others (DA18/18) [2020] ZALAC 12 (18 May 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Not
reportable
Case
no: DA18/18
In
the matter between:
E-MD
TECHNOLOGIES (PTY)
LTD Appellant
and
MINAL
VASATHRAI
SONI First
Respondent
DUSENTHA
GOVENDER Second
Respondent
USIZO
ADVISORY SOLUTIONS (PTY) LTD Third
Respondent
MOTION
CAPITAL (PTY)
LTD Fourth
Respondent
Heard:
11 March 2020
Delivered:
18 May 2020
Coram:
Waglay JP, Davis JA and Murphy AJA
______________________________________________________________________
JUDGMENT
______________________________________________________________________
DAVIS
JA
Introduction
[1]
Appellant sought a final interdict on motion proceedings, which
application was based on an alleged restraint clause contained in a
Memorandum of Understanding (MoU). In its application, appellant
sought to enforce, as a matter of urgency, certain restraint and
confidentiality undertakings provided by the first respondent
in
favour of the appellant which the latter alleged was contained in the
MoU.
[2]
It was common cause on the papers that first respondent had not
actually signed the MoU. The MoU, dated 15 March 2018, is attached to
the founding affidavit. It reveals that the first respondent
initialled all the pages of the document and filled in his name in
capital letters. However, he did not sign the document. This
is made
clear in that there is a space for a signature under which there
appears first respondent’s name, “Minal Soni”.
By
contrast, Dr Demetrio Tzitzivacos signed the MoU on behalf of the
appellant and, in addition, filled in his name in capital
letters.
[3]
Sitting in the court
a quo,
Coetzee AJ found that the onus
rested upon the appellant to prove that the MoU was signed by the
first respondent. As the question
of the signature had been placed in
dispute by first respondent, the learned judge found that appellant
had not discharged the
onus to show that an agreement had been
entered into which would justify the relief sought. It is against
this order that the appellant,
with leave of this Court, has
appealed.
The
significance of an application brought on motion proceedings
[4]
The law dealing with the problem of disputed facts in motion
proceedings
is clear. As stated in the well-known decision of
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(a) at 634H – 635 C Corbett JA (as he then was) set out the
position in his typically luminous style as follows:
‘
It
is correct that, where in proceedings on notice of motion disputes or
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 confirmed to
such a situation. In certain
instances the denial by respondent
of a fact alleged by the applicant may not be such as to raise a
real, genuine or
bona fide
dispute of fact in this regard
Room
Hire Co
. 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 far-fetched
or
clearly untenable that the Court is justified on rejecting them
merely on the papers.’
[5]
Regrettably far too little attention was paid to this critical
dictum
in the argument presented by appellant’s counsel. First
respondent had deposed to a comprehensive answering affidavit to
which I shall refer presently. The crisp question for determination
was whether the denial set out in this affidavit of critical
facts
alleged by appellant was not one which raised a real genuine or
bona
fide
dispute of fact or was so farfetched or clearly untenable
that a court was justified in rejecting it solely on the papers.
The
answering affidavit of first respondent
[6]
First respondent referred in his affidavit to a meeting which took
place at approximately 16h00 on 15 March 2018 at Oliver Tambo
airport. He recorded that he was startled ‘that I was not
advised that the applicant’s attorney would be present at the
meeting. I was very uncomfortable with the situation’.
He then
continues, ‘I then called my attorney Arsheyah Kadwa (Kadwa) on
15 March 2018 and advised her that I was present
at a meeting at the
Johannesburg airport with Dr Demetiro Tzitzivacos and the applicant’s
attorney and that I had been presented
with the MoU to sign. I
requested her assistance as I was not aware that the applicant would
have its attorney present at the meeting.’
[7]
When the MoU was emailed to Ms Kadwa, she telephoned first respondent
and advised him not to sign the document, providing a series of
reasons in relation to her difficulties with certain clauses
contained
therein. A discussion then took place between Kadwa and
appellant’s attorney, Ms Moni. According to first respondent,
after
this discussion, ‘Kadwa telephoned me once again and
advised the problems with the agreement were too extensive to comment
and agree on, given the short period of time. She advised that I
should not sign the Agreement but that I should request sufficient
time, at the least until the following day, to obtain legal advice
and for her to comment on the contents of the Agreement before
it is
concluded.’
[8]
Nether Dr Tzitzivacos nor appellant’s attorney was willing
to
grant such an extension. According to first respondent, before Ms
Kadwa left her office on the evening of 15 March 2008 she
sent a
detailed email with comments about the MoU to appellant’s
attorney. This email generated at 18:58, contained a page
of
objections and comments concerning various clauses in the MoU.
[9]
A number of amendments were then made in handwriting at the meeting
at the airport. According to first respondent, he was then asked by
appellant’s attorney to initial each page as well as
the hand
written amendments. At approximately 20:00, Dr Tzitzivacos left the
meeting following which first respondent said that
he telephoned Ms
Kadwa, who advised him to let her have the amended MoU before he
appended his final signature thereto. A confirmatory
affidavit was
provided by Ms Kadwa confirming her involvement in the
negotiations.
[10]
Appellant’s counsel contended that by initialling the pages and
inserting his
name in capitals, first respondent had assented to the
entire MoU notwithstanding that he had not signed his name in the
designated
place on the MoU. To suggest that the MoU was concluded
and that the act of inserting his name in capitals, while leaving
open
the space provided for the signature, sufficed to confirm first
respondent’s agreement is to ignore the detailed version which
he has set out in his answering affidavit.
[11]
To return to the Plascon Evan rule: The appellant elected to seek
relief on motion
proceedings. It was, therefore, subject to the
Plascon Evans
rule. That meant that the court
a quo
was
obliged to work with a particular factual matrix which included the
agreed facts between the parties and, where there was no
agreement,
the further facts alleged by the first respondent. It followed that
the first respondent’s proffered reason for
not signing the MoU
could only stand to be rejected if his denial did not raise a real
and genuine or
bona fide
dispute of fact or was so farfetched
or clearly untenable that a Court was justified in rejecting this
version.
[12]
Neither of these exceptions to the Plascon Evans rule apply in this
case. The account
provided by the first respondent in his answering
affidavit raises a most important dispute of fact, namely that he did
not assent
to the MoU and thus did not conclude an agreement with
appellant at the meeting on 15 March 2018. The explanation that he
sought
legal advice which counselled him not to sign the document
until his attorney could examine the amended MoU is neither
farfetched
nor untenable. This version was supported by the email
generated by his attorney at 18:58pm on 15 March 2018, together with
her
confirmatory affidavit. First respondent’s version is thus
one which a court is obliged to take into account in the formulation
of the factual matrix upon which the dispute between the parties must
be resolved.
[13]
It follows that, as first respondent’s version has to be
accepted for the purposes
of the resolution of this dispute brought
on motion, there is no basis by which to conclude that the MoU was
signed by both parties,
which, in turn, would have justified the
relief sought by appellant.
[14]
In the result, the appeal is dismissed with costs.
____________
Davis
JA
Waglay
JP and Murphy AJA concur.
APPEARANCES:
FOR
THE APPELLANT:
FOR
THE FIRST RESPONDENT: