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[2024] ZALCJHB 53
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Runis Capher Brokers v Danielle Uren (J763-23) [2024] ZALCJHB 53 (20 February 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J 763/23
In the matter between:
RUNIS CAMPHER
BROKERS
Applicant
And
DANIELLE
UREN
Respondent
Heard:
25 January 2024
Delivered:
20 February 2024
This
judgment was handed down electronically by consent of the parties’
representatives by circulation to them via email.
The date for
hand-down is deemed to be on 20 February 2024.
JUDGMENT
PRINSLOO, J
Introduction
[1] The
Applicant approached this Court for an order to find the First
Respondent (Respondent) guilty
of contempt of Court. The Respondent
opposed the application.
Brief history
[2] The
Applicant employed the Respondent in August 2021 as a call centre
manager and the parties signed
a contract of employment, which
incorporated a clause dealing with confidential information.
[3] On
25 May 2023, the Respondent resigned and took up employment with the
Second Respondent, a financial
services provider that provides
services similar to the Applicant.
[4] In
July 2023 the Applicant approached this Court on an urgent basis for
an order
inter alia
interdicting and restraining the
Respondent from disclosing confidential information of the Applicant
and using or disclosing such
information in order to solicit, canvass
and entice any of the Applicant’s clients.
[5] On
27 July 2023, the following Court order was issued:
‘
1. The
first respondent undertakes not to use the confidential information
of the applicant to contact
any clients that were clients of the
applicant, at date of resignation of the first respondent and for a
period of 12 months from
date of order;
2. All
disputes and claims between the parties, which either may have
against the other is hereby settled
in full and final settlement;
3. Each
party to pay his own costs.’
[6] In
September 2023, the Applicant filed a contempt of court application
because the Respondent refused
to comply with the terms of the Court
order to the extent that she contacted Mr Beukes, a client of the
Applicant, within the 12-month
period.
Contempt of Court
[7]
In
Bruckner
v Department of Health and others
[1]
,
the
Court dealt with the requirements for contempt and it was held that:
‘
It is trite that
an applicant in a contempt of court application must prove beyond a
reasonable doubt that the respondent is in
contempt. An applicant
must show:
(a) that
the order was granted against the respondent;
(b) that
the respondent was either served with the order or informed of the
grant of the order against
him and could have no reasonable ground
for disbelieving the information; and
(c) that
the respondent is in wilful default and mala fide disobedience of the
order.’
[8]
In
Anglo
American Platinum Ltd and another v Association of Mineworkers and
Construction Union and others
[2]
,
the
Court has held that:
‘
The
principles applicable in an application such as the present are
well-established. In
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA)
,
the Supreme Court of Appeal observed that the civil process for a
contempt committal is a 'peculiar amalgam' since it is a civil
proceeding that invokes a criminal sanction or its threat. A litigant
seeking to enforce a court order has an obvious and manifest
interest
in securing compliance with the terms of that order but contempt
proceedings have at their heart the public interest in
the
enforcement of court orders (see para 8 of the judgment). The court
summarized the position as follows at para 42:
“
To
sum up:
(a)
The
civil contempt procedure is a valuable and important mechanism for
securing compliance with court orders, and survives constitutional
scrutiny in the form of a motion court application adapted to
constitutional requirements.
(b)
The
respondent in such proceedings is not an "accused person",
but is entitled to analogous protections as are appropriate
to motion
proceedings.
(c)
In
particular, the applicant must prove the requisites of contempt (the
order; service or notice; non-compliance; and wilfulness
and
mala
fides
)
beyond reasonable doubt.
(d)
But
once the applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden in
relation
to wilfulness and
mala
fides
:
Should the respondent fail to advance evidence that establishes a
reasonable doubt as to whether non-compliance was wilful and
mala
fide
,
contempt will have been established beyond reasonable doubt.
(e)
A
declarator
and other appropriate remedies remain available to a civil applicant
on proof on a balance of probabilities.”’
[9]
In
Matjhabeng
Local Municipality v Eskom Holdings Limited and Others; Mkhonto and
Others v Compensation Solutions (Pty) Limited
[3]
(Matjhabeng),
the
Constitutional Court confirmed the requisites for contempt of court
as follows:
‘
I
now determine whether the following requisites of contempt of court
were established in
Matjhabeng
: (a) the existence of the
order; (b) the order must be duly served on, or brought to the notice
of, the alleged contemnor; (c)
there must be non-compliance with the
order; and (d) the non-compliance must be wilful and
mala
fide
. It needs to be stressed at the outset that, because the
relief sought was committal, the criminal standard of proof −
beyond
reasonable doubt − was applicable.’
[10]
The
Applicant has to prove the aforesaid requisites beyond reasonable
doubt and I will deal with them in turn.
[11]
Once
the applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden to adduce
evidence to rebut the inference that the non-compliance was not
wilful and
mala
fide
.
If the respondent fails to advance evidence that establishes a
reasonable doubt as to whether non-compliance was wilful and
mala
fide
,
contempt will have been established beyond reasonable doubt.
[4]
[12]
To
establish non-compliance requires more than a failure to comply with
the order. In
Matjhabeng,
[5]
the
Constitutional
Court
affirmed
that contempt of court does not consist of mere disobedience of a
court order, but of “
contumacious
disrespect for judicial authority
”
[6]
.
The requirement of wilfulness and
mala
fides
means that contempt is committed not by a mere disregard of the court
order, but by the demonstration of a deliberate and intentional
violation of the court’s dignity, repute or authority.
[7]
Analysis
Existence of the order
and service
[13] In
casu,
the existence of the Court order and the Respondent’s
knowledge thereof is not in dispute.
Non-compliance with
the Court order
[14] The
Applicant’s case is that the Respondent acted in direct
contravention of the Court order
by using its confidential
information to contact a client of the Applicant, Bluebird Electrical
(Pty) Ltd, represented by its sole
director, Mr Beukes, and took the
said client’s business away from the Applicant.
[15] The
Applicant received a ‘broker letter of appointment and mandate’
on 1 September
2023, in terms of which Mr Beukes appointed the Second
Respondent as his new. Insurance broker. Ms Jansen van Rensburg, from
the
Applicant’s offices, subsequently contacted Mr Beukes to
enquire about the reasons as to why he terminated his broker
appointment
with the Applicant. The Applicant’s version is that
Mr Beukes said
inter alia “that the Respondent did not
contact him, then said that the Respondent did not really contact him
and then asked
if she can send someone to assist him with his will…”
The Applicant submitted that “
based on the
aforementioned it is evident that the Respondent contacted Beukes in
direct contravention of the Court order”.
[16] The
Applicant’s case is that the Respondent is therefore soliciting
clients from the Applicant.
Mr Higgs for the Applicant confirmed
during argument that the Applicant’s complaint is only in
respect of Mr Beukes and that
no other clients were solicited. Mr
Beukes forms part of the list of the Applicant’s clients and
his records, such as his
contact details, constitute the Applicant’s
property and confidential information, which the Respondent is
specifically prohibited
from using. Her contempt is wilful.
[17] The
Respondent denied that she acted in direct contravention of the Court
order by using the Applicant’s
confidential information to
contact a client and to take his business away from the Applicant.
[18] The
Respondent’s version is that Mr Beukes is a close house friend
and has been friends
with her husband for over a decade. Mr Beukes
has always deemed himself a client of the Respondent and not the
Applicant and the
only reason why he supported the Applicant was
because the Respondent was employed by the Applicant. Mr Beukes’
information
did not form part of the Applicant’s confidential
information and she did not contact Mr Beukes regarding his
short-term
insurance.
[19] The
Respondent explained that Mr Beukes noticed that his premiums with
the Applicant were fluctuating
and he phoned her and asked her to get
him a better quotation. She advised him that “
I do not work
for the applicant and that he must contact the applicant’s
office directly. Mr Beukes insisted that as we are
friends and I was
always the person looking after his insurance, he did not want to
work with the applicant but wanted to work
with me”.
[20] Mr
Beukes deposed to an affidavit wherein he confirmed that he knew the
Respondent and her husband
for many years. He stated that the
Respondent did not contact him regarding his short-term insurance but
that he contacted her
in respect thereof because his insurance
premiums kept fluctuating monthly. He confirmed that he is not
interested in being a client
of the Applicant and the only reason why
he appointed the Applicant as his broker, was because the Respondent
was employed there.
[21] The
Applicant attached a transcript of the conversation between Ms Jansen
van Rensburg and Mr
Beukes. It is evident from the transcript that
the following transpired during the conversation between Ms Jansen
van Rensburg
and Mr Beukes, regarding the reason for Mr Beukes
terminating the Applicant’s broker appointment:
‘
Ms van Rensburg:
As ek mag vra, hoekom?
Mr Beukes:
Wel, ek’s
nog altyd by haar.
Ms van Rensburg:
Was u nog altyd by haar? U weet sy het ‘n restraint of trade
geteken, sy mag nie eintlik ons
kliënte vat nie, menerr.
Mr Beukes:
Wel, ek is nog
van die begin af net by haar.
Ms van Rensburg:
Ekskuus tog?
Mr Beukes:
Ek sê ek is eintlik by julle as gevolg van
wat ek saam met haar
werk.
Ms van Rensburg:
Ja maar….
Mr Beukes:
Dis eintlik al hoekom ek by julle was, want ek,
hoe kan ek sê,
ek gebruik haar as my person wat ek mee deel.
Ms van Rensburg:
Oraait, maar het sy u gekontak?
Mr Beukes:
Sy’t my nie gekontak nie. Ja, nee sy’t
my nie rerig
gekontak nie, maar sy’t wel gesê kan ek iemand gebruik
wat vir my….. sy’t gevra vir my een
of ander, wat noem
mens dit, as mens doodgaan, een of ander sort polis. Sy’t gevra
kan sy iemand stuur vir so polis.
Ms van Rensburg:
O, lewensdekking?
Mr Beukes:
Nee, nie
lewensdekking nie……
Ms van Rensburg:
O, soos ‘n begrafnispolis?
Mr Beukes:
As jy doodgaan
dat jy, waarnatoe jou goed heengaan.
Ms van Rensburg:
Testament?
Mr Beukes:
Testament ja, so sy’t gevra kan sy iemand
stuur vir ‘n
testament na my toe.
Ms van Rensburg:
Want jy weet daar was ‘n hofsaak wat ons gewen het teen haar.
So sy mag nie…
Mr Beukes:
Ok, maar ja sy’t gepraat dat sy iemand stuur
vir die testament
na my toe, toe sê ek nee ek sal hom self doen, maar terwyl ek
nou met haar praat wil ek net weet hoekom
my goeters… toe sê
sy nee, sy is nie meer daar nie.
Ms van Rensburg:
Ja
Mr Beukes:
Ja, so sy’t nie vir my gebel om my weg te
van julle af nie,
nee.
Ms van Rensburg:
Ja maar oraait, weet jy wat, dit gaan ‘n problem veroorsaak,
want jy het nou ‘n makelaarsaanstelling….
Mr Beukes:
Ok, maar dit maak nie saak nie. Ek wil nie by
julle wees anyway nie .
Dit maak nie saak nie. Ek wil alleenlik met haar werk, ek wil nie met
julle werk nie, sorry.
Ms van Rensburg:
Doodreg, als in die haak. Baie dankie.’
[22] It
is evident from the transcript that it does not support the
Applicant’s version. Mr Beukes
clearly confirmed that the
Respondent did not contact him, that she did not speak to him about
insurance and that he became a client
of the Applicant because he
followed the Respondent there. He did not want to work with the
Applicant and he chose to remain the
Respondent’s client.
[23] For
the Applicant
in casu
to succeed with its contempt of Court
application, it has to show, beyond reasonable doubt, that the
Respondent is in wilful and
mala fide
disobedience of the
Court order of 27 July 2023, in that she used the Applicant’s
confidential information to contact Mr Beukes.
[24] Based
on the facts placed before this Court, the Applicant failed to prove
beyond reasonable doubt
that the Respondent is in wilful default and
mala fide
disobedience of a Court order. I say so for two
reasons. Firstly, it is undisputed that Mr Beukes was a client of the
Respondent
long before she was employed by the Applicant, he followed
the Respondent after she was employed by the Respondent and as such,
his contact details were known to the Respondent. The contact details
of Mr Beukes were not known to the Respondent because she
used the
Applicant’s confidential information to obtain it.
[25] Secondly,
there is no evidence placed before this Court to find, beyond
reasonable doubt, that
the Respondent contacted Mr Beukes. The
Respondent’s version, that she did not contact Mr Beukes, is
supported by the transcript
of the conversation between Ms Jansen van
Rensburg and Mr Beukes, as well as the affidavit he deposed to in
this application. There
is no Court order which prohibits Mr Beukes
from contacting the Respondent and there is no provision in the Court
order for a scenario
where a client contacted the Respondent. In the
absence of a Court order which sets out anything in that regard,
there is no contempt
in Mr Beukes contacting the Respondent.
[26] It
is evident from Mr Beukes’ version, that he regarded himself as
a client of the Respondent
when he told Ms Jansen van Rensburg that
“
ek’s nog altyd by haar”
and he had no
desire to remain a client of the Applicant after the Respondent left
its employ. It was certainly not the fact that
the Respondent
‘contacted him and solicited his business’, as alleged by
the Applicant, which caused the Applicant
to lose Mr Beukes as a
client.
[27] The
Respondent did not use the Applicant’s confidential information
and she did not contact
Mr Beukes in breach of a Court order. The
threshold is high – beyond reasonable doubt and the Applicant
is unable to make
out a case to satisfy the threshold and the test
for contempt.
[28] As
a result, this application has to fail.
Costs
[29]
I
nsofar
as costs are concerned, this Court has a broad discretion in terms of
section 162 of the Labour Relations Act
[8]
to make orders for costs according to the requirements of the law and
fairness.
[30] Mr
Higgs for the Applicant argued that there should be no cost order in
respect of the enrolment
of 2 November 2023, as it was not due to the
conduct of any of the parties and they should not be burdened with a
cost order in
that regard. Mr Higgs submitted that if the Respondent
is not in contempt of Court, there should be no order as to costs,
but if
this Court finds in favour of the Applicant, cost should
follow the result.
[31] Mr
Nel for the Respondent argued that although the contempt application
was to be filed
ex parte
with a return date on which date the
Respondent was expected to appeal in Court and present a version, Mr
Higgs had served the
ex parte
application and indicated to the
Respondent’s legal representatives, that a Judge might consider
the matter on 19 October
2023, when it was enrolled on an
ex parte
basis. The Respondent’s legal representatives appeared in
Court on 19 October 2023 because Mr Higgs indicated that a Judge
might decide the matter on the papers before him/her and because the
Respondent could not run such a risk where her imprisonment
was
prayed for. The Respondent cannot be held liable for the costs of 23
October 2023.
[32] Mr
Nel further submitted that the Applicant is a commercial entity with
a large clientele, as
opposed to the Respondent who is a salaried
individual who had to incur costs in defending this application.
[33]
In
Zungu v
Premier of the Province of KwaZulu-Natal and others
[9]
,
the
Constitutional Court confirmed that the rule that costs follow the
result does not apply in labour matters. The Court should
seek to
strike a fair balance between unduly discouraging parties from
approaching the Labour Court to have their disputes dealt
with and,
on the other hand, allowing those parties to bring to this Court (or
oppose) cases that should not have been brought
to Court (or opposed)
in the first place.
[34] The
generally accepted purpose of awarding costs is to indemnify the
successful litigant for the
expense he or she has been put through by
having been unjustly compelled to initiate or defend litigation.
[35]
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
others
[10]
,
it was emphasized that:
‘…
unless
there are sound reasons which dictate a different approach, it is
fair that the successful party be awarded its costs. The
successful
party had been compelled to engage in litigation and incur legal
costs. An appropriate award of costs is one method
of ensuring that
much earnest thought and consideration goes into decisions to
litigate in the Labour Court, whether as applicant
in launching
proceedings or as respondent opposing proceedings.’
[36] This
is a case where the Court has to strike a balance and
in
my view, this is a case where it is appropriate to make a cost order.
The Applicant has filed an application for the Respondent to
be found in contempt of Court and for her to be incarcerated or
fined.
However, the Applicant failed to make out a case in terms of
which the Respondent could be found guilty of contempt.
[37] The
Applicant failed to make out a case for the relief it seeks and the
Respondent was compelled
to brief lawyers to oppose a meritless
application. I can see no reason why the Respondent is not entitled
to a cost order in this
instance. The cost order so granted excludes
the Court proceedings of 2 November 2023 but includes the costs of 19
October 2023.
[38] In
the premises, I make the following order:
Order
1 The
application is dismissed;
2 The
Applicant is to pay the First Respondent’s costs.
Connie Prinsloo
Judge of the Labour
Court of South Africa
Appearances:
For the Applicant:
Mr C Higgs
from Higgs Attorneys
For the Respondents:
Mr C Nel from Barnard & Mans
Attorneys
[1]
[2003]
ZALC 129
; (2003) 24 ILJ 2289 (LC) at para 26.
[2]
(2014)
35 ILJ 2832 (LC) at para 4.
[3]
[2017]
ZACC 35
;
2018 (1) SA 1
(CC) at para 73.
[4]
Fakie
NO v CCII Systems (Pty) Ltd
[2006]
ZASCA 52
;
2006 (4) SA 326
(SCA) at para 42.
[5]
Matjhabeng
supra at para 65.
[6]
See
Matjhabeng
supra
and
Pheko
and others v Ekurhuleni City
[2015]
ZACC 10
;
2015 (5) SA 600
(CC) at para 42.
[7]
Dibakoane
NO v Van den Bos & Others; Van den Bos and Others v Gugulethu
and Others
[2021] ZAGPJHC 652 (17 August 2021) at para 29.5.
[8]
Act
66 of 1995, as amended.
[9]
[2018]
ZACC 1
; (2018) 39 ILJ 523 (CC) at para 24.
[10]
(2012)
33 ILJ 2117 (LC) at 2119I – J.