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[2014] ZALCJHB 225
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Waltons (Pty) Ltd v Botha and Another (J1216/2014) [2014] ZALCJHB 225 (27 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE NO: J 1216/2014
WALTONS
(PTY)
LTD Applicant
and
BOTHA
GEOFFREY First
Respondent
BCF
MICRO FINANCE (PTY)
LTD Second
Respondent
Heard:
5 June 2014
Delivered:
27 June 2014
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The Applicant approached the Court to seek an order in the following
terms:
1.1
Interdicting and restraining the First Respondent from being employed
at his current place
of employment at the Second Respondent.
1.2
Interdicting and restraining the Second Respondent from employing the
First Respondent.
1.3
Alternatively issuing a
Rule Nisi
to act as an interim
interdict against the First and Second Respondent for them to show
cause on a date and time to be determined
by this Honourable Court,
why a final order should not be granted in terms of prayers 1.1 and
1.2 above.
[2]
The Second Respondent had confirmed that it did not oppose the relief
sought and wished to abide by any court order. The First
Respondent,
(herein referred to as Botha) has opposed the application on the
following grounds;
(a)
In the application, there is no clear
indication who the real Applicant is as it is not properly identified
in the Notice of Motion,
the Founding Affidavit and the alleged
Restraint of Trade (agreement).
(b)
The existence of a restraint of trade
agreement was disputed.
(c)
There were a number of factual disputes
that had an impact on the final relief sought by the Applicant.
[3]
The application initially came before the court on 29 May 2014. The
hearing was postponed before my brother the Honourable LaGrange
J in
order to enable Botha to file any answering affidavit and for the
Applicant to file any replying affidavit.
Factual
background:
[4]
The Applicant’s founding affidavit was deposed to by Darren
Ledden, a member of the Applicant’s Employer’s
Organisation CTL Management Forum. The Applicant is engaged in the
business as wholesalers and retails of stationary, furniture,
office
supplies, computer media, software and other related products and
equipment. Its main business involves complete solutions
for
stationary, furniture and the goods already mentioned.
[5]
According to the Applicant, Botha was employed as the Applicant’s
Sales Manager with effect from September 2005. He had
tendered his
resignation from the Applicant’s employ on 10 March 2014.
Whilst serving his notice period, Botha had informed
the Applicant
that he would be joining the Second Respondent, which is a direct
competitor of the Applicant operating from Bloemfontein
in the Free
State. On 30 April 2014, Botha was reminded of his obligations by
e-mail of the terms of the restraint of trade that
he had signed on
20 September 2005, and was given until 2 May 2014 to confirm that he
will comply with the terms of his restraint
and that he will not
commence employment with the opposition company. Botha responded on 2
May 2014 and indicated that he had already
accepted the proposal from
the Second Respondent, and confirmed that he had read the contract
and understood the restraint of trade
agreement.
[6]
On 8 May 2014, the Applicant had also sent correspondence to the
Second Respondent stating that Botha was in breach of his restraint
of trade agreement and that his employment should be terminated with
immediate effect. On the same day correspondence was also
sent to
Botha, informing him that the Applicant will approach the Court for
relief should he not provide them with an undertaking
as requested.
Some
preliminary issues:
[7]
Botha had raised a number of preliminary points which need to be
disposed of prior to determining the main issue. The first
related to
the correct citation of the Applicant. In this regard, Botha
submitted that at paragraph 3.1 of the founding affidavit,
the
Applicant was cited as ‘
Waltons Inland Region (Pty) Ltd
,’
whilst in the main citation it was cited as ‘
Waltons (Pty)
Ltd’
. Furthermore, he had submitted that his letter of
appointment was signed with an entity called ‘
Vans Office
Supplies’
, whilst at the same time, the Applicant contended
that the restraint of trade agreement was signed with ‘
Waltons
Stationary Company (Pty) Ltd’
. In this regard, Botha
contended that the identity of the Applicant was not clear, thus
creating ‘a factual defect’
in the application. In
response, the Applicant’s contention was that ‘Waltons
Inland Region (Pty) Ltd’ and ‘Waltons
(Pty) Ltd’
were the same companies, and that there could be no ambiguity with
regards to the parties’ citation or its
identity.
[8]
Botha had conceded that ‘Van Office Supplies’ has since
been incorporated into ‘Waltons Stationary Company
(Pty) Ltd’,
and in the light of the Applicant’s contentions that these
entities were one and the same, there is no
basis for a conclusion to
be reached that there is indeed confusion as to the identity of the
Applicant. I did not understand Botha’s
contention to be that
notwithstanding the different names attributed to the Applicant, he
also challenged any employment relationship
with any of these
entities.
[9]
In the light of the conclusions to be reached below, it would not be
necessary to deal with the preliminary points raised regarding
the
service of this application and complaints surrounding whether
supporting annexures were attached to the founding papers or
not.
The
contested contract of employment:
[10]
It is trite that a party that relies on an agreement bears the onus
of not only proving its existence, but also the parties’
common
intention to enter into that agreement, and its specific terms
[1]
.
It follows from these principles that in determining whether there is
any breach of restraint of trade clause, it must first be
established
that there is indeed a valid agreement in that regard.
[11]
The Applicant had contended that Botha signed a 'Confidential and
Restraint of Trade Agreement’
[2]
on 20 September 2005. Botha in his answering affidavit averred that
he had indeed signed a restraint of trade agreement, but with
an
entity called Vans Office Supplies on 1 April 2005
[3]
,
and that the agreement relied upon by the Applicant was unknown to
him as he had not attached his signature to it.
[12]
Botha handed in annexure 1 to his pleadings, which is a letter of
appointment, and which he had signed on 1 April 2005. The
letter
incorporates a restraint of trade clause, and it confirms his
appointment as Order Clerk. It is this agreement that Botha
had
acknowledged was binding on him, and in regard to which he had
conceded acknowledgement of in reference to his response to
the
Applicant on 2 May 2014.
[13]
In regards to the restraint clause incorporated in the letter of
appointment, Botha had contended that Vans Office Supplies
has since
been incorporated into ‘Waltons’, and that the restraint
agreement which the Applicant sought to enforce
was not the same as
the one he had entered into with Van Office Supplies. To the extent
that the Applicant had not relied on that
agreement in seeking to
enforce the restraint of agreement, or in making averments against
him, Botha contended that the Applicant
had not made out a proper
case against him for the purposes of the final relief sought.
[14]
In its replying affidavit, the Applicant had contended that on his
own version, Botha had confirmed that he had indeed signed
a
Restraint of Trade Agreement, and that the ‘Confidentiality and
Restraint of Trade Agreement’ before the Court was
signed by
both parties as evident from the two signatures
[4]
.
The Applicant further submitted that Botha’s submission that he
did not sign the agreement was deceitful. In this regard,
reference
was made to his letter of resignation which bore his signature, and
the agreement relied upon, which it was contended
bore the same
signatures. To the extent that Botha had not attached his Annexure 1
to his answering affidavit, it was submitted
that the only document
to be relied upon was the one before the Court, and that any
submissions made by Botha in regard to his
Annexure 1 should be
disregarded.
[15]
The purpose of the postponement granted by the Honourable LaGrange J
on 29 May 2014 was to enable Botha to file an answering
affidavit,
and for the Applicant to file a reply. This was done and emanating
from these, Botha had furnished the Applicant with
Annexure 1, which
incorporates the restraint of trade agreement clause which he had
acknowledged and considered himself bound to.
In these circumstances,
I fail to appreciate the reason the Court should ignore any
submissions made by Botha in regard to this
agreement.
[16]
The dispute surrounding the existence of the agreement relied upon by
the Applicant further has an impact on what Botha’s
position
was whilst he was employed by the Applicant. Ultimately, it is indeed
the existence of a valid restraint of trade agreement,
and most
importantly, the position he held whilst in the employ of the
Applicant that is determinative of whether the Applicant’s
allegations of a breach of restraint of agreement is sustainable or
not.
[17]
The approach in dealing with disputes of facts within the context of
an application for a final order was properly captured
and restated
in
Jonsson
Workwear (Pty) Ltd v Lawrence John Williamson and Another
[5]
by
Snyman AJ in the following terms;
‘
Rule 7(7)(b) of
the Rules for the Conduct of Proceedings in the Labour Court makes
provision for this where it is provided that:
'The court must deal
with an application in any manner it deems fit, which may include —
…. (b) referring a dispute
for the hearing of oral evidence.'
Rule 6(5)(g) of the High Court Rules provides as follows: ‘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.' In SA Football
Association v Mangope (Citation omitted) the Court said that in
applying Rule 7(7)(b) of the Labour Court Rules, this Rule, being
in
pari material
with Rule 6(5)(g), should be construed similarly
to that effect.’
[18]
Other than the factual disputes surrounding the agreements the
parties seek to rely on, a further issue of contention is that
the
‘Confidentiality and Restraint Agreement’ allegedly
entered into between the parties and relied upon by the Applicant
does not make reference to Botha’s position, whilst Annexure 1
relied upon by Botha indicates that he was employed as an
‘Order
Clerk’. In its founding affidavit, the Applicant indicated that
Botha was employed as a Sales Manager, and the
latter in his
answering affidavit had disputed that he was employed in that
position. His contention was that one Mr. Hein Faber
was appointed in
that position. In its replying affidavit, the Applicant merely
denied Botha’s contentions and put
him to the proof thereof.
[19]
In the light of these disputes of fact, which go to the heart of the
issues to be determined, and further taking into account
Botha’s
rights in terms of the provisions of section 22
[6]
of the Constitution of the Republic of South Africa, it would not be
in the interests of justice to make any determination of the
issues
before the Court in the absence of oral evidence being led. It is in
the light of these circumstances that the provisions
of Rule 7 (7)
(b) of the Rules of this Court should be invoked, and to direct that
the matter be referred for oral evidence. To
this end, the order
below is deemed to be appropriate.
Order:
i.
The determination of the dispute
surrounding the alleged breach of a restraint of trade agreement is
referred for oral evidence.
ii.
The Registrar of the Court is directed to
place this matter on the trial roll and for it to be heard on an
expedited basis.
iii.
The costs of this application are to be in
the cause.
______________________
Tlhotlhalemaje, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant:
Mr. Ross
Atcherson of Lee And McAdam Attorneys
For
the First Respondent: Adv. JP Breytenbach
Instructed
by:
Rothmann Attorneys Inc
[1]
See
Cotler
v Variety Travel Goods (Pty) Ltd and Others
1974 (3) SA 621 (A)
[2]
Annexure
A to the Founding Affidavit
[3]
Annexure
1 to the Replying Affidavit
[4]
Page 38 of Annexure B in the Applicant’s Founding affidavit
[5]
(D
426/2013) [2013] ZALCD 24 (12 August 2013)
at para 12.
[6]
22. Freedom of trade, occupation and profession. —
Every citizen has the right to choose their trade,
occupation or
profession freely. The practice of a trade, occupation or profession
may be regulated by law.”