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[2016] ZALCJHB 12
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Orthocraft (Pty) t/a Advanced Hair Studios v Musindo and Another (J1636/15) [2016] ZALCJHB 12; (2016) 37 ILJ 1192 (LC) (14 January 2016)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: J 1636/15
In
the matter between:
ORTHOCRAFT (PTY)
LTD
t/a Advanced
Hair Studios
Applicant
and
ANNE MUSINDO
First Respondent
BREMAG TRADING
INTERNATIONAL
T/A HAIR
UNIVERSAL STUDIOS
Second
Respondent
Heard
:
12 January 2016
Delivered
:
14 January 2016
Summary:
Orders for contempt of court. Respondents
breaching restraint.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The respondents have breached a restraint
of trade order made by this Court (Brassey AJ) on 17 September 2015.
The question before
me is whether it was wilful; whether either or
both of the respondents should be held in contempt of court; and if
so, what the
appropriate sanction should be.
Background
facts
[2]
The applicant (Orthocraft, trading as
Advanced Hair Studios) and the second respondent (Bremag Trading
International, trading as
Hair Universal Studios) both operate in the
hair extension business. The first respondent, Ms Anne Musindo,
worked for the applicant
as a hair stylist in its Sandton studio. She
resigned in July 2015, ostensibly to look after her husband full time
after he had
been in a car accident. She was bound by an agreement in
restraint of trade. So were two other employees, Richard Duffin and
Tallulah
Davies.
[3]
The applicant brought an application in
August 2015 to enforce the restraint against Duffin, Davies and Hair
Universal Studios.
Those respondents, represented by McLarens
attorneys, initially opposed the application. On 27 August 2015 Hair
Universal Studios
withdrew its opposition and gave notice of its
intention to abide the decision of the Court. On 26 August 2015 the
applicant brought
a further application to join Musindo to the
proceedings. It was granted by Brassey AJ on 3 September 2015,
together with an order
enforcing the restraint against Davies and
Duffin.
[4]
On 4 September 2015 the applicant’s
attorneys, Fasken Martineau, sent a letter to Musindo and to Hair
Universal Studios informing
them about the first court order. They
explained to Musindo that she had until 10 September to give an
undertaking that she would
cease her employment with the second
respondent and be bound by the same terms of the restraint imposed by
the first court order.
Failing that, they would re-enrol the matter
on 17 September 2015.
[5]
On 7 September 2015 Mr Warren Sundstrom of
McLarens attorneys sent an email to the applicant’s attorneys
in these terms:
“
We
have been contacted by Anne Musindo and advised that you attempted
serving documents at her house earlier today.
Please
send me a copy of the papers so that we can take instructions on the
matter.”
[6]
The applicant’s attorney, Ludwig
Frahm-Arp, did so. Musindo did not provide any undertaking, nor did
McLarens attorneys. The
applicant’s attorneys re-enrolled the
matter for hearing on 17 September. On 10 September Frahm-Arp wrote
to Sundstrom by
email:
“
Have
you been able to take instructions from Ms Musindo? Is she willing to
give us the undertaking or is she opposing the application?
I assume
she is not opposing the application as we had asked her to deliver
her opposing papers by 12h00 today and we have received
nothing.”
[7]
Sundstrom did not respond. Musindo attended
the hearing on 17 September. She told the Court (Brassey AJ) that she
was willing to
be restrained for three months while looking after her
husband. She says that it was also at the hearing that a more
restrictive
radius of 50 km was proposed, although she cannot recall
who proposed it. Brassey AJ stood the matter down for the parties to
try
and reach an agreement. Before they could do so, she left. The
court reconvened. Brassey AJ handed down an order interdicting
Musindo
from remaining in the employ of the second respondent (or
another competitor in a 50km radius) until 30 April 2016. The order
was
stamped by the Registrar on 23 September 2015.
[8]
On 28 September the applicant’s
attorneys instructed a courier service to deliver a copy of the court
order of 23 September
(the second order) to Musindo at her place of
residence and at her place of employment, i.e. the second
respondent’s premises.
When an employee of the courier company,
Musa Mutebi, tried to serve it at the second respondent’s
premises, he was told
– he does not say by whom – that
she no longer worked there. And when he went to her home, he was met
by her sister,
Chenai Cheremba, who told him that Musindo had gone to
Zimbabwe. Cheremba nevertheless accepted service on Musindo’s
behalf.
It is common cause that Musindo received a copy of the order
from her sister.
[9]
During November some of the applicant’s
customers informed it that Musindo was still working for the second
respondent. Andrew
Rimmer, the applicant’s financial
controller, instructed one of its employees, Clayton Duval, to make
an appointment with
Musindo at Hair Universal Studios. When he phoned
to make an appointment, the receptionist told him that Musindo did
not work there.
[10]
The applicant then asked a security company
to ascertain whether Musindo was working at Universal Hair. An
employee of the company,
Doric Holmes, scheduled a haircut and laser
hair therapy appointment with the second respondent on 18 December.
He filmed Musindo
working at the premises.
[11]
The applicant brought this application on
22 December 2015. Molahlehi J granted a rule
nisi
on 24 December calling upon Musindo and a representative of the
second respondent to appear on 5 January 2016 to show cause why
they
should not be held in contempt. On that day, Van Niekerk J postponed
the return day to 12 January 2016 to enable the applicant
to deliver
a supplementary affidavit, as the respondents alleged that the
applicant had not proved service of the court orders
of 23 September
and 24 November 2015.
[12]
The applicant’s attorneys delivered a
supplementary affidavit showing that their candidate attorney,
Magdalena Birkholtz,
personally served the order of 24 December and
the contempt application on Musindo at her place of residence on 28
December 2015.
Her colleague, Farica de Bruyn, took a video recording
of the events. Musinda signed receipt of the documents. She denied
that
she was working for second respondent.
[13]
On 30 December 2015 the second respondent’s
manager, Macleod Burrill – who signed his email with the suffix
“LL
B – Bachelor of Laws, University of the
Witwatersrand, Manager and Consultant at Universal Hair Studios –
wrote to
applicant’s attorneys. He acknowledged that the
contempt application had been served on it on 29 December. He stated:
“
Please
note that Anne Musindo is not with us and as far as we are aware she
is out of Johannesburg until the new year. Please also
note that I as
the Manager of Hair Universal Studios am currently recovering from
medical issues which I experienced in December
2015 and have been
advised by my doctor not to leave home and to just rest. We have also
sought legal advice and counsel
which is only available during the
course of next week, 4
th
of January 2016, and as such we are unable to seek legal counsel and
advice and properly respond to your application by the 5
th
January 2016.
Under
the circumstances please would you agree to the matter being
postponed for two weeks to the 19
th
of January 2016 to
allow us to properly respond to your application and to seek legal
counsel.”
[14]
The applicant did not agree to a
postponement. Nor did the respondents apply for one. Remarkably,
though, the issue of service was
raised by the respondents at the
hearing of 5 January, and it remained for the applicant to disclose
the acknowledgement by both
respondents that the rule nisi had been
served upon them on 28 and 29 December respectively.
[15]
Musindo only delivered an explanatory
affidavit on 8 January 2016. In that affidavit she admitted for the
first time that she had
breached the court order. She also admitted
that she had received a copy of the 23 September court order from her
sister after
the applicant’s attorneys had served it on her
sister on 28 September.
[16]
At the hearing of this application on 12
January 2016 both respondents were represented by a new attorney, Mr
Dave Morgan.
Evaluation
/ Analysis
[17]
The
requirements for an order to be granted in civil contempt proceedings
were eloquently summarised by Cameron JA in
Fakie
NO v CCII Systems (Pty) Ltd:
[1]
“
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 had 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 of a balance of
probabilities.”
The
order and service
[18]
It is common cause that Brassey AJ granted
an order on 17 September 2015 (stamped on 23 September) and that the
respondents have
breached it. Despite their initial denial, it is
clear that both that order and the rule nisi granted by Molahlehi J
on 24 December
were served on both respondents.
Wilfulness
and mala fides
[19]
In order to establish whether the applicant
– on which the onus rests – has established wilfulness
and
mala fides
beyond a reasonable doubt, it is convenient to deal first with the
first respondent, Ms Musindo.
[20]
The high water mark of her explanation is
that, when she received a copy of the court order, from her sister,
she “noted that
the document was related to the restraint of
trade but did not read the documents fully”.
[21]
She admits that she breached the order. She
somewhat obliquely states that English is not her first language;
what she does not
say, is that she is not fluent in English. Indeed,
one only needs to read her letter of resignation to see that Ms
Musindo –
a Zimbabwean citizen – writes English fluently.
[22]
Ms Musindo offers no reasonable explanation
why she “did not read” the order fully. She was at court
when the matter
was argued on 17 September. She knew exactly what it
was about, and when she received a copy of the order, she realised
that it
was “related to the restraint of trade”. She had
contacted her then attorney, Mr Sundstrom, on that day. She does not
explain why she did not seek legal advice again, if necessary, when
she received a copy of the order.
[23]
It is clear beyond a reasonable doubt that
Ms Musindo breached the order wilfully and with
mala
fides
in the full knowledge that she
was in breach, not only of the order, but also of the restraint to
which the applicant’s attorneys
had alerted her before
launching the application.
[24]
The same applies to the second respondent.
It did not deliver any opposing papers, although it was represented
at the hearing by
Mr
Morgan
.
Its then attorney, Mr Sundstrom, was well aware of the terms of the
court order. It was also aware of the first order granted
on 7
September. Yet it continued, wilfully and
mala
fide
, to employ Musindo (and continued
to deny it despite Musindo’s admission).
[25]
The respondents have not discharged the
evidential burden to cast reasonable doubt as to whether their
non-compliance was wilful
and
mala fide
.
Musindo’s explanation is woefully inadequate and unpersuasive.
The second respondent has put up no explanation at all.
Conclusion
[26]
It is clear beyond a reasonable doubt that
both of the respondents have breached the court order of 23 September
2015. They did
so wilfully and are in contempt of court. The question
remains what sanction to impose.
[27]
The
primary aim of contempt proceedings is to ensure compliance and not
to punish.
[2]
Ms Musindo has
given an undertaking not to breach the order again. But the fact that
both respondents have already breached the
order cannot be swept
under the carpet. In my view, in order to make sure that they do not
do so again, a suspended sentence will
be appropriate.
[28]
Ms
Jean-Pierre
,
for the applicant, asked that Ms Musindo be directly imprisoned until
30 April 2016, the date that the restraint of trade enforced
by the
court order of Brassey AJ expires. That is too drastic a step.
Firstly, I consider a period of imprisonment of 30 days a
sufficient
deterrent; and secondly, a suspended sentence operative until that
date, i.e. 30 April 2016, should have the desired
effect to ensure
strict compliance.
[29]
Similar considerations apply to the second
respondent. Mr
Morgan
argued that no order should be made against it as the applicant did
not allege that personal service of the court order was effected
on a
natural person responsible for its implementation. I disagree with
that formalistic approach. It is common cause that the
second
respondent was aware of the order. Its then attorneys – who
have not delivered a notice of withdrawal of representation
–
initially opposed the application to enforce the restraint of trade
against two other employees, Richard Duffin and Talullah
Davies. Ms
Musindo was joined to that application. Mr Warren Sundstrom of
McLarens attorneys contacted the applicant’s attorney,
Ludwig
Frahm-Arp of Fasken Martineau, on 7 September 2015 on Ms Musindo’s
instructions. He knew that she had been joined
to the application on
3 September 2015. And after the hearing on 17 September 2015 Mr
Frahm-Arp informed Mr Sundstrom of the order
granted against both
respondents.
[30]
Ms Musindo earned just over R10 000 per
month according to her contract of employment attached to the
founding affidavit. She appears
to have worked for the second
applicant over the period of November and December 2015, although the
exact time period is not clear.
I consider it appropriate for the
second respondent to pay a fine of R20 000 – roughly equivalent
to two months’ remuneration
for Ms Musindo, whose services it
used in breach of the court order. But, as in her case, suspending it
until 30 April 2016 should
have the desired effect.
[31]
With
regard to costs, I am enjoined by s 162 of the Labour Relations
Act
[3]
to take into account the
requirements of law and fairness.
[32]
As to the first requirement, costs should
follow the result. Both respondents have blatantly disregarded an
order of this Court.
That necessitated the applicant to institute
these contempt proceedings. The respondents must pay those costs.
[33]
With regard to fairness, Mr
Morgan
submitted an argument
ad misericordiam
that Ms Musindo is a sole breadwinner who has to look after her
husband who was involved in a motor vehicle accident. Indeed, that
was the reason she offered when she resigned from the applicant in
July 2015. She said:
“
Unfortunately
due to unforeseen circumstance changing with my husband’s
condition, I have no choice but to commit full time
to my husband’s
rehabilitation as he will be undergoing brain surgery in the next few
weeks which will require me to be at
the hospital on a daily basis.”
[34]
Far from committing full time to her
husband’s rehabilitation, Ms Musindo took up employment with
the second respondent in
breach of the court order. She also
dishonestly denied breaching the court order, only to admit it
subsequently in her explanatory
affidavit. There is no reason in
fairness why she should not be held liable for costs, together with
the second respondent, although
I will stop short of ordering the
punitive costs for which Ms
Jean-Pierre
asked.
Order
[35]
I therefore make the following order:
35.1
The respondents are in contempt of the
order of this Court of 23 September 2015.
35.2
The first respondent, Anne Musindo, is
incarcerated for a period of 30 days.
35.3
The second respondent is ordered to pay a
fine of R30 000, 00.
35.4
The orders in 35.2 and 35.3 are suspended
until 30 April 2016, provided the respondents are not found to be in
contempt of court
again.
35.5
The respondents are ordered to pay the
costs of this application, including the costs of the appearance on 5
January 2016, jointly
and severally, the one paying, the other to be
absolved.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Lameeze
Jeanne-Pierre
of Fasken Martineau
.
RESPONDENTS:
Dave Morgan
(attorney).
[1]
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) para 42.
[2]
Fakie
NO v CCII (supra)
para 7.
[3]
Act 66 of 1995.