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[2011] ZALCJHB 197
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Keet v Jansen Incorporated (J783/10) [2011] ZALCJHB 197 (1 February 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO J783/10
Not reportable
Not of interest to other judges
In
the matter between:
JACQUELINE
KEET
....................................................................................
Applicant
and
JANSENS
INCORPORATED
..................................................................
Respondent
______________________________________________________________
JUDGMENT
______________________________________________________________
TIP AJ:
The applicant was employed as a
candidate attorney by the respondent from 23 June 2008 until her
resignation on 1 February 2010.
She then joined Hennie Badenhorst,
her attorney of record in this matter, who also appeared on her
behalf in this matter. She
claims that she is owed leave pay for
4.65 days, notice pay for four weeks and the return of R500.00
deducted from her salary
payment for January 2010. Her total claim
is for R5,623.55. The respondent resists this and has certain
counterclaims. Various
preliminary and interlocutory points have
been raised as well as disputes about deadlines. All in all, these
differences have
generated an unjustifiable 407 pages of affidavits
and annexures, with a supplementary bundle of 39 pages. I have
little hesitation
in describing the whole of this litigation as an
abuse of the process of this court. My adjudication of the issues
follows.
The first point to be addressed
concerns the jurisdiction of this court to entertain monetary claims
which involve non-compliance
with provisions of the Basic Conditions
of Employment Act 75 of 1997 (“the BCEA”). I delivered a
judgment on 12 November
2010 in the matter of
Makume v Hakinen
Transport CC
and related matters (Case No. J33/10; Labour
Court), in which I held that monetary claims could be brought before
this court,
subject to an appropriate order as to costs being made.
In the present case, it is clear that the applicant’s claim
could
have been referred to the Department of Labour or brought in
the Small Claims Court, where no costs order would have ensued.
The second issue concerns the first
point
in limine
raised by the respondent, being that the
matter should have been referred to arbitration in terms of its
employment contract with
the applicant, clause 21.1 of which states
that any dispute “
which arises out of the conclusion,
interpretation, application, administration, breach or termination
of this agreement ... shall,
unless settled by conciliation or
otherwise, be determined exclusively arbitration under the auspices
of Ubuntu Dispute Settlement
(Pty) Ltd ...
” In turn, the
applicant seeks to avoid this clause by pointing out the
co-directors of Jansens are the shareholders of
Ubuntu and avers
that it is therefore not independent. There may be some merit in
that contention, although it must at the same
time be noted that it
does not follow from her apprehensions concerning Ubuntu that the
arbitrator would not be impartial. Be
that as it may, I do not
consider myself bound to deal with the issue on that basis, since it
seems to me that an arbitration
clause of this kind must give way
when the heart of the complaint is that the statutory requirements
of the BCEA were not complied
with. In the absence of a collective
agreement to that effect, an employer could not prevent an employee
from exercising his
or her statutory right to lodge a complaint with
a labour inspector by invoking compulsory arbitration. By the same
token, I
do not accept that it should in the same way be able to
stifle an election to proceed under section 77(3) of the Act. In any
event, the respondent has mounted a set of counterclaims in this
court (whether precautionary or not) and, having regard to the
circumstances of this matter, it would certainly serve no party’s
interests for it to be referred to arbitration at this
stage. The
first point
in limine
is accordingly dismissed.
The second point
in limine
consists of a non-specific complaint that the founding affidavit
lacks the necessary averments to sustain a cause of action under
section 77(3). I am not satisfied that this adequately establishes a
need for preliminary determination. Whether or not the applicant
is
entitled to relief will flow from an examination of the merits, set
out below.
The third point
in limine
is
that there is a factual dispute. I am likewise not of the view that
this is a sufficient complaint in the context of this case.
I will
deal with factual issues below.
The counterclaims are as follows. The
first is that the applicant has taken an excess of 29.02 days leave
and that she has accordingly
been unjustifiably enriched in an
amount of R6,031.81. The second is that she carried out certain
instructions in a negligent
way and that the respondent has as a
result suffered damages in the sum of R10,409.72. The third
counterclaim concerned personal
telephone calls made by the
applicant from the respondent’s office; it has been abandoned.
The leave issue
The applicant has set out a
month-by-month analysis of the days (or part thereof) worked by her,
spanning the full period of her
employment. She has also put up the
attendance registers over that period. On this basis she has
calculated that 4.65 days are
still due to her, for which she should
now be remunerated in terms of section 40(b) of the BCEA. Those
documents show that there
were days when she was not at work because
her son was ill or because she was attending courses or examinations
pursuant to her
articles. Such days were not treated by her as leave
taken since, she alleges in reply, her employer granted time off on
such
occasions. An example of this is to be found in the schedule
for September 2008, which records five days off because her son was
ill and then hospitalised. Those days were not taken into account
for the purpose of the applicant’s computation of her
leave
entitlement.
In its answering affidavit, the
respondent has detailed every instance when the applicant was not at
work, including every time
that her son was ill, every time that she
was doing a study course, every time that she took study leave and
every time that
she wrote an attorney’s admission exam. On
that basis, it arrives at the total of 29.02 days which it now seeks
to claim
for as constituting unjustified enrichment. In reply, the
applicant has stated that all days in respect of her son being ill
were given as a courtesy and that such days were not even dealt with
under the family responsibility leave provisions. Similarly,
she has
stated that leave taken for study purposes was in keeping with the
general practice of the respondent
vis-à-vis
all its
learner employees and, further, were in accordance with the industry
standard. The applicant says also that she was at
no time requested
to apply for leave in relation to such obligations, that there was
no deduction from her normal annual leave
cycle and that no
suggestion of a dispute about any of such days was ever made to her
before the institution of this counterclaim
by the respondent.
It may well be that the applicant
should be criticised for not more fully detailing these matters in
her founding affidavit although,
it may be noted, all the pertinent
information was readily apparent from the annexures to it. At the
same time, it is also so
that the respondent was at liberty to seek
leave to rebut her replying contentions through an additional
affidavit. That was
not done. Moreover, its catalogue of all the
time taken off by the respondent embodies no indication whatsoever
that she was
at any time informed that such time would be subtracted
from her ordinary leave entitlement or, indeed, that she had already
taken more leave than her gross leave quotient – and that she
would be required to recompense her employer for the days now
claimed by it.
The applicant pertinently poses the
question why such complaints have been ventilated by the respondent
only at the stage of its
answering affidavit and counterclaim and
not at the stage of the leave itself. On a balance of
considerations, that appears to
be a fair question, to which no
satisfactory answer is to be found in the papers. In my view, the
corollary is that I should
find for the applicant in respect of her
claim and, correspondingly, that I should dismiss the first
counterclaim.
The notice pay claim
On 1 February 2010 the applicant
submitted a letter of resignation which stated that the notice
period would run to 3 March 2010.
On the same day the respondent
replied that the contract of articles concluded on 23 June 2008 had
recently lapsed, seemingly
in consequence of the applicant’s
pending admission as an attorney, and that negotiations had been
under way with her regarding
future service conditions as a
professional assistant. On that basis it was said that notice of
only one week was required, that
the respondent did not require her
to work that period and that she was to vacate her office
immediately. The applicant did so.
The respondent hence contends that
there was an offer by it that the applicant should waive the
four-week notice period on the
basis that she would be paid for only
one week. That offer, it is further contended, was accepted by the
applicant as demonstrated
by the fact that she did not object to the
terms of the respondent’s letter and instead vacated her
office pursuant to
it. As outlined above, the respondent also
contends that there was no contract of employment in place, given
that the articles
had lapsed and that no new contract had been
concluded.
These contentions face various
difficulties. In the first place, clause 22.1 of the employment
contract, described as the Agreement
for Service of Articles by
Candidate Attorney provides that: “
No agreement varying,
adding to, deleting from or cancelling this agreement shall be
effective unless reduced to writing and signed
by or on behalf of
the Candidate Attorney and Principal-Employer.
” It is
clear that no such written and signed agreement varying the notice
pay provisions was entered into. The letter from
the respondent of 1
February 2010 does not meet the requirements of this non-variation
clause nor, plainly, can those requirements
be held to have been
satisfied where one party relies on the conduct of the other. These
considerations must be weighed against
the fact that clause 6.1 of
the agreement expressly records that four weeks’ notice will
apply once the first twelve month
period has been completed, such
being the factual position.
Apart from these formal features of
what should have taken place in order to properly found the
respondent’s position, it
is far from apparent to me that I
should find that the facts adequately establish that there was a
binding waiver by the applicant
in the sense that it should be found
that when she obeyed her employer’s instruction to vacate her
office she at the same
time clearly intended to waive her
entitlement to claim notice of four weeks. Patently, her employer
was keen to have her out
of its office without delay. It does not
follow from this that it could insist that this should be done on
the basis that there
should be an accompanying discount of its
notice period liability from four weeks to one. Its position is not
fortified by the
terms of sections 37 and 38 of the BCEA. In this
regard, it is significant that the respondent did not state in its
letter of
1 February 2010 that a portion of the four weeks’
notice that was due should be waived or that the employee should
agree
that her employer was not required to pay out that full period
(as contemplated in section 38(2). Rather, it declared that the
four
weeks’ notice period was not applicable and that it had been
overtaken by a period of only one week, as envisaged
in section
37(1)(a).
This latter aspect also presents a
hurdle in the path of the respondent’s contentions. Its
statement that the contract of
articles had lapsed is vague. No
specific termination date has been given by it and none that
corresponds with the respondent’s
letter of 1 February 2010 is
to be found in the agreement itself. To the contrary, clause 4.1.1
thereof sets out a period of
five continuous years, running from 23
June 2008 (as defined in clause 2.1). In any event, if the agreement
had indeed come to
an end shortly before 1 February 2010, then that
would have required a definite act of termination, with the
contractual (and
statutory) notice pay provisions then coming into
operation. Moreover, in terms of clause 22.2 a written and mutually
signed
agreement of cancellation would have been necessary.
However, even if the contract of
articles had come to an end as alleged by the respondent, it is
apparent from its letter of 1
February 2010 that no agreement had
been concluded in terms of which the applicant was to take up a
position as professional
assistant. On the face of it, therefore, it
is implicit in the case for the respondent that there was no
employment contract
in place at all as at 1 February 2010. In those
circumstances, it is difficult to comprehend the basis for its
statement that
only one weeks’ notice was due pursuant to
section 37(1)(a) of the BCEA which is, of course, a provision which
rests on
the premise that a valid contract of employment had been in
existence, but only for a period of six months or less.
Accordingly, it is my conclusion that
the respondent has not shown that there was a lawful basis for it to
reduce the applicable
notice period from four weeks to one week. The
applicant’s claim in this regard must therefore be upheld.
The deduction of R500
An amount of R500 was deducted from
the applicant’s salary payment for January 2010. The reason
for this step is contained
in a letter signed by Mr Jansen which is
to the effect that the applicant had failed properly to carry out an
instruction to
attend to the preparation of certain documentation
required for the taxation of a client’s account. It is
apparent from
the terms of the letter that no disciplinary or other
audi alteram
process was carried out and that the letter at
one and the same time set out the particulars of the complained of
conduct, a conclusion
that the applicant was guilty of negligence,
followed by the imposition of a fine of R500 and a warning that any
future misconduct
would not be treated as leniently. The case for
the respondent is further that the applicant had not as at 1
February 2010 raised
any complaint about this measure against her
and that she must therefore be treated as having accepted her
employer’s allegation
of misconduct and the resultant fine.
The validity of a fine and deduction
of this nature must be determined with reference to section 34 of
the BCEA, which reads in
part:
“
(1)
An employer may not make any deduction from an employee’s
remuneration unless—
(a) subject to subsection (2), the
employee in writing agrees to the deduction in respect of a debt
specified in the agreement;
or
(b) the deduction is required or
permitted in terms of a law, collective agreement, court order or
arbitration award.
(2) A deduction in
terms of subsection (1) (a) may be made to reimburse an employer
for loss or damage only if—
(a) the loss or damage occurred in
the course of employment and was due to the fault of the employee;
(b) the employer has followed a
fair procedure and has given the employee a reasonable opportunity to
show why the deductions should
not be made;
(c) the total amount of the debt
does not exceed the actual amount of the loss or damage; and
(d) the total deductions from the
employee’s remuneration in terms of this subsection do not
exceed one-quarter of the employee’s
remuneration in money.
”
Various of these provisions are
applicable and, when related to the facts before me, the following
are immediately apparent: (i)
the R500 fine was not required or
permitted in terms of a law, collective agreement, court order or
arbitration award; (ii) there
is no suggestion that there is a
disciplinary code which provides for a fine; (iii) although there
was a meeting at which Mr
Jansen discussed the introduction of a
fine with candidate attorneys, it is clear that this did not meet
the requirements of
the Act; (iv) the applicant has not agreed in
writing to the deduction and, equally, the deduction has not been
specified in
any agreement as a debt falling within the category of
permissible deductibles; (v) the fine cannot be held to amount to a
loss
or damage sustained by the employer; and (vi) the requirement
of a fair procedure has not been met.
It follows that the deduction was not
lawfully made and that the applicant is entitled to payment of the
withheld R500.
The counterclaims
I have already disposed of the
counterclaim relating to the issue of leave days taken by the
applicant. The remaining claim concerns
an allegation that she
caused a loss to the respondent of R10 409.72 arising from her
management of an instruction from
a client, Mr Pretorius, relating
to his suspension by his employer. The applicant was to have
appeared for him at a CCMA hearing
on 8 September 2009 but failed to
do so timeously, resulting in the referral being dismissed. It is
further averred that she
was instructed to prepare a rescission
application but failed to do so. In consequence, the respondent
alleges, Mr Pretorius
cannot be held liable for the relevant
professional fees and disbursements which amount to the sum claimed,
plus interest. Rather,
it is claimed, the applicant must be held
accountable to the respondent for those charges.
Ordinarily, this court would not
entertain a claim of this kind, which has as its essence the ground
that the applicant performed
her duties as an employee in a
negligent manner. Whether the claim is formulated as a breach of the
standard of care that is
contractually required or whether it is
formulated as one based in delict, this court lacks the jurisdiction
to deal with it,
just as it would not hear a claim against an
employee for causing damage to his employer’s equipment of for
causing financial
loss through a poor business decision.
Mr Goldberg, for the respondent,
relied on the principle of
compensatio
to overcome this
difficulty. For the purpose of this judgment I will accept in his
favour that the amount claimed is a fully liquidated
one and, apart
from the question of the applicant’s liability for it, that it
is otherwise ripe for set-off. I will further
approach this aspect
of the matter on the basis that it would be both permissible and
convenient for me to assume jurisdiction
in respect of this
counterclaim, pursuant to the
causae continentia
rule, in
order to fully adjudicate the disputes between the parties.
The respondent lodged this
counterclaim as a ‘precautionary’ step so that it should
be dealt with if I held that this
court had jurisdiction over the
applicant’s claims despite the arbitration provision. Having
done so, the usual criteria
must be applied concerning proceedings
that have been brought on affidavit. In particular, the approach set
out in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) is applicable, namely that the admitted facts in
the founding affidavit together with those deposed to in the
answering affidavit
(unless they are plainly not credible) should
form the basis for a determination of whether or not the relief
sought should be
sustained.
Thus examined, the papers show that
the applicant had enquired from a co-employee about the CCMA address
in Rustenburg. She went
there but the address was incorrect
whereupon she phoned her office, obtained the correct address and
requested that the CCMA
office be advised that she would be a little
late. She was then told that this had been done and that the
commissioner would
be informed. However, when she arrived at the
arbitration venue, the referral had already been dismissed. The
respondent is critical
of this explanation and points out that the
correct address was on the notice of set-down which the applicant
had in the file.
That is a fair criticism but it is not enough to
justify a finding that the applicant has advanced a false version.
Indeed, on
any account, it is clear that she went to the CCMA office
in Rustenburg but arrived there late.
There is a difference between the
parties on the events upon the applicant’s return from
Rustenburg. According to the respondent,
the applicant reported the
dismissal of the referral to Mr Schöltz, a director of the
respondent, who instructed her to
prepare a rescission application.
It is further said that this instruction was repeated on 18
September 2009, this time by her
principal Mr Jansen. The applicant,
on the other hand, states that she reported directly to Mr Jansen on
8 September 2009 and
advised him at the same time that Mr Pretorius
had not given proper instructions, since he had in fact been
dismissed and not
merely suspended. Mr Jansen, she says, then told
her to hand the file to Ms Schöltz, another candidate attorney,
in order
to obtain the relevant documentation from the employer so
that the true facts could be established before proceeding with a
rescission
application.
In its replying affidavit, the
respondent has enlarged its version of the events. This includes the
statement that Mr Schöltz
had during the week after 8 September
2009 regularly followed up the instruction that the applicant was to
prepare a rescission
application and was on each occasion told that
it was being attended to. It is also said that the fact that Mr
Pretorius had
been dismissed came to the attention of Ms Schöltz
on or about 28 September 2009 when she was perusing papers in a
different
dispute. It was thereafter that Mr Jansen enquired from
the applicant what the status was of the rescission application. Mr
Jansen
thereupon said that enquiries should be made as to whether Mr
Pretorius had been dismissed and that Ms Schöltz could assist
if necessary with an appropriate letter. Mr Jansen repeats that on
18 September 2009 he gave an instruction to bring an application
for
rescission as a matter of urgency. He adds that he was then unaware
that Mr Schöltz had already done so. That might
be thought to
be somewhat curious, since it was Mr Schöltz who had instructed
the applicant to attend to the matter in the
first place. I also
find it strange that there was no further or meaningful follow up
concerning the rescission application.
In terms of the CCMA rules it
should have been brought by 22 September 2009. Plainly, it had not
been, nor was it ever lodged.
In these circumstances, I do not
intend to make specific and detailed findings about what took place
during the period following
upon 8 September 2009. Albeit in
relation to different dates, it is common to the versions of both
parties that Mr Pretorius
had evidently not given full instructions
to the respondent and that the important information that he had
been dismissed was
not communicated. It is also common to both
versions that no rescission application was brought and, on the
probabilities, that
this was related to the lack of dependable
information about the status and true character of Mr Pretorius’s
dispute. On
the applicant’s version this was the position as
from 8 September 2009; on the respondent’s version this became
apparent
only later in that month. Either way, I am not satisfied
that these facts can support a conclusion of negligence on the
applicant’s
part in the context of a claim for damages.
More particularly, I am not satisfied
that the element of wrongfulness should be found by me to have been
established by the respondent.
In general, I know of no policy
perspective that favours monetary actions by employers against
employees whose work performance
is considered to have been below
the requisite standard or, even, negligent. That would ordinarily be
the province of performance
counselling or, if warranted,
disciplinary action. The undesirable nature of claims of this kind
is underlined by the circumstances
of this case. An important
consideration is that the applicant was at the time a candidate
attorney, with the corollary that
her work had to be closely
supervised by her principal. In that context, I find it
extraordinary that after an initial flurry
of instructions about a
rescission application, neither Mr Jansen nor Mr Schöltz did
anything purposeful to ensure that
such application had indeed been
prepared and, moreover, that it had been assembled in a satisfactory
form. Both those directors
were well aware of the pertinent
deadline, reference to which has been made in the respondent’s
affidavits. It lay within
their power to take such steps as were
necessary to see to it that the application was indeed instituted.
Instead, it is clear
that neither of them did anything further about
it, at any time.
In this regard, it is noteworthy that
the statement of fees and disbursements which founds the claim
against the applicant contains
no entry at all between 8 September
2009 and 7 May 2010. On the latter date there was a consultation
with Mr Pretorius –
this being several months after the
departure of the applicant. This is a perspective that bears on the
issue of wrongfulness.
It also, it may be noted, bears on the issue
of causation. As I have noted, it fell within the range of duty and
competence of
the directors to see to it that a rescission
application was indeed filed timeously or, if delayed, that there
was an appropriate
application for condonation. It can hardly be
acceptable that they should have done nothing adequate to bring
about that outcome
but that they should nevertheless be permitted to
institute a damages claim many months later against a candidate
attorney for
whose performance they were both ultimately and
contemporaneously responsible. This aspect of the matter is all the
more striking
in that no action whatsoever was taken against the
applicant at the time. Instead, it is in my view clear that the
counterclaim
has been formulated as an afterthought in an attempt to
secure a set-off. It is an attempt that is both unfortunate and
unsound.
In the result, this counterclaim is
dismissed.
Incidental applications and costs
The respondent’s answering
affidavit to the main application was served on 12 May 2010, being
two days late. It had delivered
a notice of intention to oppose on 4
May 2010. On 12 May the applicant faxed a letter to the respondent
pointing out that there
was no condonation application. It also
stated that the application had already been indexed, paginated and
placed on the unopposed
roll for hearing, this having been done on
11 May 2010. Consistently with the regrettable manner in which this
litigation has
been conducted, that step had evidently been taken
without any prior communication with the respondent. The letter went
on to
require that the respondent was either to tender the wasted
costs or to bring a formal condonation application. The latter was
done on 20 May 2010. A notice of intention to oppose the condonation
was served on the same day, although no opposing papers
were filed.
Nevertheless, this condonation issue on its own generated a further
65 pages of affidavits and annexures, which a
bare minimum of
professional collegiality could largely have avoided.
It was then the applicant’s
turn to be out of time. She should have filed her answering
affidavit to the counterclaim by
26 May 2010. She hadn’t. On
the following day the respondent delivered an application in terms
of rule 12 for an order
directing her to do so and in the event of
her failing to comply with such order that she would be barred from
doing so. Communication
between the parties ensued. This resulted in
an agreement that the parties would mutually condone the late filing
of each set
of answering affidavits, that the rule 12 application
would be withdrawn and that the applicant would pay the taxed costs
thereof.
This was duly done. In the meantime, the applicant filed on
4 June 2010. Of course, it needs to be said that the question of
condonation lies with this court and not with the parties. A party
may elect not to oppose a condonation application, but it cannot
‘grant’ condonation. In the result, there appears to be
no application for the condonation of the late filing of
the
applicant’s answering affidavit to the counterclaim. It would,
however, be pedantic in the circumstances of this case
for me to
make anything of it at this stage. In neither instance was there a
delay of real consequence and the relevant circumstances
have been
described. Condonation is hence granted in respect of the late
delivery of both sets of answering affidavits. There
is no reason
for me to disturb the agreement struck between the parties in
respect of costs. Even if there had been no such agreement,
I would
not have made an order of costs in respect of the respondent’s
condonation application.
On 15 June 2010 the respondent filed
a notice of motion seeking the striking out of numerous paragraphs
of the applicant’s
replying and answering affidavit filed on 4
June. The striking out was not pursued in argument and no order is
made in respect
of it.
The applicant’s heads of
argument were due on 24 August 2010. On that day a letter was faxed
to the respondent advising
it that there had been power failure
interruptions but that they would be served by close of business on
the following day. There
was no reaction to this letter. The heads
were faxed to the respondent on 25 August 2010 between 16h44 and
16h46. In another
demonstration of a failure of collegiality, a rule
12 application was faxed by the respondent between 17h00 and 17h01.
On the
following day this application was withdrawn, it having been
agreed that the costs thereof would be costs in the cause.
Overall, the conclusion of this
matter is that the applicant has succeeded with her claims and the
respondent has failed with
its counterclaims. It is also so that
this is not a case where costs are to follow the result. As set out
earlier in this judgment,
each of the applicant’s claims as
well as their aggregate total fall below the jurisdictional ceiling
of the Small Claims
Court. In the course of his argument, Mr
Badenhorst indicated that the applicant did not seek costs, only
disbursements. I am
disinclined to entertain a differential of that
kind. Section 37 of the Small Claims Courts Act places clear
limitations on the
categories of costs that might there be awarded.
In this case, the only one that could be brought to bear would
encompass the
prescribed cost for the issue of the initial
application. I am not prepared in this court to make an order for
that sum, but
prefer to follow the more general approach adopted by
Van Niekerk J in
Fourie v Stanford Driving School and 34 related
cases
(Labour Court case number J2218/08, 23 September 2010). As
to the costs incurred by the respondent, there is no warrant for any
order in its favour. At the same time, there is no reason to
disallow interest on the sum awarded.
Order
I make the following order:
The respondent is directed to pay the
applicant the amount of R5,623.55.
The respondent is directed to pay
interest on the said amount, calculated at the rate of 15,5% per
annum from 1 February 2010
to the date of payment.
There is no order as to costs.
____________________________
K
S TIP
ACTING
JUDGE OF THE LABOUR COURT
DATE
OF HEARING: 1 OCTOBER 2010
DATE
OF JUDGMENT: 1 FEBRUARY 2011
FOR
APPLICANT: MR BADENHORST
Of
Hennie Badenhorst Attorney
FOR
RESPONDENT: MR GOLDBERG
Of
Jansens Incorporated