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[2017] ZALCJHB 478
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Kare Sheet Metal Products (Pty) Ltd v Breytenbach (J1420/17) [2017] ZALCJHB 478; (2018) 39 ILJ 603 (LC) (1 November 2017)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no:
J1420/17
In
the matter between:
KARE
SHEET METAL PRODUCTS (PTY)
LTD
Applicant
and
ERIK
BREYTENBACH
Respondent
Heard
:
25 October 2017
Delivered
:
1 November 2017
Summary:
A return day to make a
contempt order final. The requirements of contempt considered.
Section 18 of Superior Courts Act
[1]
did not alter the common law rule and its purpose. Absent
requirements to grant a contempt order, the application must fail.
Held
(1): The interim order of contempt is discharged. Held (2): Each
party to pay its own costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
Before me is an application to finally find that the respondent is in
contempt of an order of this Court issued on 30 June 2017.
The court
ordered that the respondent is interdicted and restrained from being
engaged directly or indirectly and in any capacity
in any business
venture competitive or in conflict with the applicant for a period of
one year from 7 June 2017. The interdict
and restraint endures for a
period of one year from 7 June 2017 to and including 7 June 2018 and
applies to the provinces of Gauteng,
Mpumalanga, Free State, Limpopo
and the North West. The order was obtained in default. In fact, a
draft order was adopted by this
Court to be its order.
[2]
On 3 August 2017, the applicant
launched an urgent
ex parte
application for contempt of court. On this day, the Court issued an
interim order in line with what the Practice Manual decrees
[2]
.
On the same day, the Deputy Sheriff served a copy of the court order
on the respondent.
Background
facts
[3]
Punctilious recount of the facts may not be
necessary for the purpose of this judgment. The respondent was
employed by the applicant
on 17 August 2015 as a sales consultant. On
29 May 2017, the respondent resigned from his position. On 2 June
2017, the respondent
was suspended and subjected to a disciplinary
charge arising from the breach of the restraint. Subsequently he was
dismissed. On
19 June 2017, he commenced employment with the
competitor. The respondent had accepted employment with the
competitor of the applicant
already. Despite attempts to dissuade the
respondent, the respondent refused to withdraw the acceptance of the
competitor’s
offer. The applicant held a view that by accepting
an offer with the competitor, the respondent was in breach of the
Restraint
of Trade. On 30 June 2017, it approached this Court, which
approach culminated in a draft order being adopted by this Court.
[4]
Despite the order, the respondent continued
employment with the competitor. On 1 August 2017, the respondent in a
letter through
his attorneys expressed to the applicant that as a low
level employee at the time of being employed by the applicant, he has
no
intention to breach any other confidentiality obligations. He
poses no threat to the business operations or existing customer base.
He undertook not to approach any of the existing customers of the
applicant, divulge any confidential information and not to cause
the
applicant financial loss. The respondent reserved his rights to
challenge the order obtained by the applicant.
[5]
This letter was not respondent to but was met with
an application under consideration. As pointed out earlier, the
applicant obtained
an interim order. Subsequent thereto, the
respondent launched an application for rescission of the order
obtained in default. The
application is pending in this Court. On 24
October 2017, the respondent filed an opposing affidavit. The
applicant chose not to
file any reply. On 25 October 2017, the
application was argued before me.
Evaluation
[6]
It is common
cause that the order allegedly being breached by the respondent was
obtained in the absence of the respondent. The
order seeks to take
away his constitutionally guaranteed right.
[3]
A judgment or order erroneously sought or erroneously granted in the
absence of any party affected by that judgment or order may
be
rescinded.
[4]
One of the issues arising out of this matter is whether the launching
of a rescission application suspends the operation of the
order
granted on 30 June 2017. I shall deal with this issue later.
[7]
In showing cause as directed by this Court on 3
August 2017, the respondent presented uncontested evidence to the
following effect:
‘
[4.6]
I have never unlawfully competed with the respondent, approached any
of the respondent’s existing
customers, divulged any of its
confidential information or caused any financial loss to the
respondent. I also do not intend to
do so in future.
[4.13]
As a result of the aforementioned, I proceeded to apply for the
rescission of the Court order
that was obtained erroneously in my
absence.
[5.6]
I thus submit that my non-compliance with the court order was neither
deliberate, nor
mala fide
for the reasons set out herein above
as well as in my
bona fide
application for rescission.’
[My underlining]
[8]
One of the
important elements of contempt applications is that the party to be
held in contempt must be in willful disobedience
and resistance to
lawful court orders
[5]
.
Accordingly, in order to succeed, the applicant must demonstrate
willful disobedience on the part of the person to be held in
contempt. In the light of the undisputed evidence I am unable to find
that the respondent is in willful disobedience. The Constitutional
Court in
Pheko
refers to lawful orders. It is doubted by me that orders granted
erroneously are lawful. Section 165 (a) of the Labour Relations
Act
[6]
(LRA) provides that such orders are to be rescinded.
[9]
It is undisputed before me that the order was
obtained erroneously in the absence of the respondent. As a matter of
law such orders
are susceptible to be rescinded. To my mind the
lawfulness of such orders ought to be doubted particularly in the
context of the
contempt proceedings. The object of contempt
proceedings is to impose a penalty that will vindicate the court’s
honour, consequent
upon the disregard of its previous orders, as well
as to compel performance in accordance with the previous order. A
court ordinarily
does not honour erroneously obtained orders. On the
contrary it tends to set them aside as opposed to compelling
performance.
[10]
Accordingly,
I am not persuaded that the respondent should be held in contempt and
for this reason alone the application should
fail. I may in passing
refer to what the LAC said in
Labournet
(Pty) Ltd v Jankielsohn
and
another
[7]
.
It said:
‘
[61]
As pointed out earlier-even if an employer spent time and effort and
money to train or skill an employee
in a particular area of work, the
employer has no proprietary hold on the employee, his or her,
knowledge, skills and experience,
even if those acquired at that
employer.’
[8]
[11]
Might I add that it is about time that
practitioners should begin to consider applications to enforce
restraints against the lowly
ranked employees with greater care. They
must come to court against such employees when there is cogent
evidence that they are
actually in breach. The purpose of restraints
is to protect and not to punish. Why should a lowly ranked employee
loose job security
simply to uphold a restraint that he or she cannot
be employed by a competitor? This stifles competition in an unfair
manner.
Does
launching of a rescission application suspends the operation of the
order
?
[12]
The
applicant’s representative relied on the judgment of the high
court in
Erstwhile
Tenants of Williston Court and another v Lewray Investments (Pty) Ltd
and Another
[9]
.
In
this judgment, Meyer J sitting alone concluded that applying
contextual interpretation section 18(1) excluded rescission
application
from the suspension of an order or decision.
[13]
Section 39
(2) of the Constitution enjoins every court when interpreting any
legislation and when developing the common law to promote
the spirit,
purport and objects of the bill of rights. Proper reading of the
Constitution suggests that the common law should not
be ignored but
must be developed instead.
[10]
[14]
In
South
Cape Corporation (Pty) v Engineering Management Services (Pty)
Ltd
[11]
,the
late Corbett JA said:
‘
It
is today accepted common law rule of practice in Courts that
generally the execution of a judgment is automatically suspended
upon
the noting of an appeal…The
purpose
of this rule as to suspension of a judgment on the noting of the
appeal is to prevent irreparable damage from being done
to the
intending appellant, either by levy under a writ of execution or by
execution of the judgment in any other matter appropriate
to the
nature of the judgment appealed from.’
[My
Underlining]
[15]
To my mind, even though the learned judge was
dealing with the noting of an appeal, it is my considered view that
the common law
rule should not be confined to noting of an appeal
only. Launching a rescission application serves the purpose of the
rule as well-prevent
irreparable damage being done. Like an
appellant, an applicant for rescission, if successful stops as it
were the operation of
the order. In both instances the order ceases
to exist.
[16]
In
Khoza
and Others v Body Corporate of Ella Court
[12]
Notshe AJ correctly held that at common law application for
rescission supports an automatic suspension of an order. It is indeed
so that Rule 49 (11) of the Uniform Rules carried such a provision
and the Rule has been repealed. The repealing of the Rule does
not
mean repeal of the common law. It is indeed so that the text of
section 18(1) does not refer to a rescission application. To
my mind
application for leave to appeal stands on the same footing as
application for rescission. All are aimed at reversing an
order.
Equally such applications bear the same purpose-to prevent
irreparable damage.
[17]
One of the
fundamental principles of statutory interpretation is that
legislation is to be considered in the light of the common
law. Where
the language of the statute is subject to reasonable doubt, reference
to common law principles may provide a valuable
clue as to whether a
particular situation is controlled by the statute, and all
legislation must be interpreted in the light of
the common law. The
common law, which has been moulded into a logical classification of
subject matter provides one of the most
reliable backgrounds upon
which an analysis of the purpose and objectives of the statute can be
determined.
[13]
[18]
Legislations
are not presumed to make any alterations in the common law, unless
the legislation expressly declares so
[14]
.
Meyer
J
applied what he termed contextual read. It is clear to me that he did
not take into account the common law rule and its purpose.
He finds
that if the legislature intended to include rescission applications,
it should have expressly included it. Notably, the
legislature only
included an application for leave to appeal. Does it mean that noting
of the appeal itself has been excluded?
To my mind not. He raises
concern about unmeritorious applications. What about unmeritorious
applications for leave to appeal?
Is the suggestion that the
legislature catered for meritorious applications only?
[19]
Accordingly,
I am of the view that the purposive interpretation
[15]
of the section in the light of the common law position means that an
application for rescission also suspends the operation of
the order.
The rescission application has the same effect as the application for
leave to appeal –to prevent irreparable
damage. Just applying
logic, why should an application for rescission be excluded. What
could be the policy considerations if any
for that conclusion? To my
mind there is none.
[20]
In my judgment, a rescission application still
suspends the operation of the order. Even if
Meyer
J
is right in his interpretation, I
conclude that his interpretation is confined to section 18 of the
Superior Courts Act, the common
law position has not been altered by
section 18.
[21]
In summary, the application fails to meet the
requirements for contempt. The application for rescission has in any
event suspended
the operation of the order. The applicant’s
representative rightly conceded that the suspension of the order
implies that
the application for contempt cannot be confirmed.
[22]
Regarding costs, I am of a view that an
appropriate order is for each party to bear its own costs.
[23]
In the results
I make the following order:
Order
1.
The interim order issued on 3 August 2017 is
hereby not confirmed and is discharged.
2.
Each Party to pay its own costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances
For the Applicant:
Mr H Barnardt
Instructed by:
Daan Buekes Attorneys, Pretoria
For the Respondents:
Mr B L Roode
Instructed by:
Nicole Ross Attorneys, Woodmead.
[1]
Act 10 of 2013.
[2]
Clause 13.2 of the Practice Manual of the Labour Court of South
Africa 2 April 2013.
[3]
Section 22 of the Constitution of South Africa.
[4]
Section 165
(a) of the
Labour Relations Act 66 of 1995
as amended.
[5]
See
Fakie NO v CCII Systems
(Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) and
Pheko and others
v Ekurhuleni Metropolitan Municipality and another
[2015] JOL 33198(CC).
[6]
Act 66 of
1995 as amended.
[7]
[2017] 38 ILJ 1302 (LAC).
[8]
Basson v Chilwan and others
1993 (3) SA 742 (A)
[9]
2016 (6) SA 466 (GJ)
[10]
Section 8 (3) provides that when applying a provision of the Bill of
Rights. A court may develop rules of the common law to limit
the
right provided that limitation is in accordance with section 36(1).
[11]
1977 (3) SA 534 (A).
[12]
2014 (2) SA 112 (GSJ).
[13]
Sutherland, Statutory Construction 3 (3
rd
Ed, Horrack 1943).
[14]
Gordon N.O v Standard Merchant Bank
1983 (3) SA 68
(A) at 73A-B
[15]
In Bertie Van Zyl (Pty) Ltd and another v Minister for Safety and
Security and others Case CCT 77/08 decided on 7 May 2009 (CC),
Mokgoro J writing for the majority said:
“
[21]
Our Constitution requires a purposive interpretation to statutory
interpretation.