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[2017] ZALCJHB 477
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Van Zyl and Others v Tergro Group of Companies (Pty) t/a Harcourts Tegro Group (JS1042/14) [2017] ZALCJHB 477 (19 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS1042/14
In
the matter between:
HENDRIK
GIDEON VAN ZYL
First Applicant
PETRUS
JACOBUS VILJOEN
Second Applicant
KAREN
FRAUENDORF
Third Applicant
and
TERGRO GROUP OF
COMPANIES (PTY) LTD t/a
HARCOURTS
TERGO GROUP
Respondent
Heard:
13
to 15 and 17 June 2016
(Final Written
arguments submitted on 8 July 2016)
Delivered:
19
December 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction
and background:
[1]
The
respondent is a group name of franchises in the business of real
estate. The individual applicants were employed by the respondent
as
Sales Agents in its Kempton Park offices. They had had resigned and
joined a competitor, Re-Max Kempton Park, which based about
is 1
kilometre away from the respondent’s premises. The individual
applicants seek payment of commission in respect of certain
properties which they contend they had facilitated the sale thereof
as agents (whether as listing, selling and/or referring agents)
whilst still in the respondent’s employ.
[2]
The
respondent on the other hand has lodged counter claims against the
individual applicants, seeking damages for breach of contract.
The
claims and counter claims arise from the various clauses of the
‘
Agreement
of agent employment’
which was entered into between the parties. For ease of reference,
the parties will be referred to as cited in the Statement of
Claim.
[3]
At the
commencement of the proceedings, the parties had agreed that all of
the claims of the first applicant are in dispute, with
limited
concessions being made in respect of some. The respondent had
nonetheless conceded that the amounts claimed by second and
third
applicants were to a large extent correct, the only issue being
whether they were payable in view of the counter-claim. The
parties
had further agreed that the amounts under the counter-claim against
the individual applicants were also correct, with the
sole issue
being whether they should be payable, in view of the applicants’
contention that there was a waiver.
[4]
The primary
role of the estate agents was to find houses to sell or buy, get
mandates from potential sellers or buyers, advertise
and show
potential buyers the property, and assist with the necessary and any
administration and registration of properties when
deals are
concluded. Estate Agents employed by the respondent fell into both
‘Listing’ and ‘Selling’ Agents.
They secured
mandates from potential sellers, advertised the properties, and
concluded sales. Mandates could either be sole or
Networking Data
based. Once all administrative matters pertaining to the transfer and
registration of properties were finalised,
commission would be due to
the estate agents in terms of whatever agreements or arrangements
made with the employer.
[5]
For the
sake of convenience, the structure of this judgment will be such that
I will first deal with the individual applicants’
respective
claims, the evidence and my conclusions in that regard, and
thereafter will deal with the respondent’s counter-claim.
Van
Zyl’s claim:
[6]
Van Zyl was
employed with effect from April 2009. He had entered into a
contract of employment with the respondent on 2 September 2013
and had resigned with immediate effect on 4 April 2014. He
had joined Re-Max on 7 April 2014. Van Zyl seeks
payment of
outstanding commission in the amount of R123 651.95 and interest
on that amount at a rate of 15,1%
tempore
morae
.
[7]
The basis
of Van Zyl’s claim is that during his employ with the
respondent, and prior to his resignation, he had introduced
purchasers to sellers, and was the effective cause, directly or
indirectly, of a contract of sale, and the registration of sales
in
respect of certain properties. The break-down of the commission
claimed in respect of these properties as per the statement
of claim
is as follows;
Claim A:
28 Tinderwood, Serengeti Golf Estate:
R6 140.35.
Claim B:
16 Bergsering, Glen Marais:
R33 771.93
Claim C:
148 Monument Road, Aston Manor:
R67
543.86
Claim D:
26 PFM House, Longstreet:
R8 400.00
Claim E:
313 Victoria Street, Boksburg:
R1 950.00
Claim F:
42 De Villiers Street Boksburg:
R5 845.61
[8]
The
respondent disputed all the claims. It had nonetheless contended that
to the extent that claim B was successful, Van Zyl was
only entitled
commission in the amount of R31 745.61. In respect of claim D, it was
contended that if successful, it should be
limited to R7 896.00. As
the trial progressed, Van Zyl had to abandon his claims for
commission in respect of properties under
E and F. This was as a
result of cross-examination having revealed that the deals in respect
of those properties were never concluded
as they were not registered.
[9]
It was
common cause that as per the ‘Annexure’ to the Contract
of Employment, Van Zyl was entitled to 70% commission
on the
properties he sold or the deals he had successfully concluded. He
however contended that the respondent never paid his commission
on
time, and this was despite several discussions he had had with the
respondent’s General Manager, Fourie over time. Van
Zyl
lamented the late payment of commission due as being contrary to the
provisions of clause 2.3 of the contract of employment,
in terms of
which such payments were to be made upon registration of a
transaction. Thus, where the agent was the selling agent,
he or she
was to be paid on every Friday after the commission was received by
the respondent. As a result of not getting paid timeously,
he had
consistently sent e-mails to Fourie, but nothing was done.
[10]
In respect
of his claim A, his contention was that the property belonged to his
relative. He got a mandate to sell and had indeed
sold it. He was
paid his commission in that regard, but there was an outstanding
amount of R10 000.00, which he was informed was
in respect of legal
and other costs. After protracted negotiations with Grobler, the
respondent, Managing Director and Fourie,
the matter was resolved
when it was agreed that Van Zyl would be paid an amount of R5 800.00,
which had however still not been
paid.
[11]
Under
cross-examination, Van Zyl conceded that the commission claimed under
A was subject to a variety of difficulties, including
that the
potential purchaser of that property ended up as deceased estate. He
conceded that there were difficulties in closing
the deal on the
property, which had ended with Grobler and three sets of attorneys
being involved. He further conceded that another
agent also got
involved in the sale of the property, as he had to liaise with the
attorneys handling the deceased estate, and further
that there was a
delay in the release of the money.
[12]
Even though
he conceded that any deductions could be made in terms of clause
5.6.1 of the contract of employment, and further that
there were
attorneys involved in the deal, his main complaint was the respondent
did not produce anything in writing to indicate
how administration
and legal fees were deducted from his commission.
[13]
Mario
Grobler, the respondent’s Managing and sole Director denied
that Van Zyl was entitled to any commission under his Claim
A, in
that legal and administration fees had to be deducted from that
commission. He further testified that the sealing of the
deal in
respect of the property in question was at risk hence he got involved
together with attorneys in order to assist Van Zyl.
[14]
The
respondent’s contention in regard to Van Zyl’s claim A
was that there was a legitimate deduction of the R10 000.00
for legal
and administrative costs in respect of the property, which was
permissible in terms of clause 5.6.1
[1]
of the Agreement of employment. In the alternative, it was submitted
that the claim fell foul of forfeiture restraint provisions
under
clause 7.4.6 of the agreement
[2]
.
[15]
For the
present purposes, it would not be necessary to deal with the
respondent’s alternative contention as to the reason
the
commission in respect of the R10 000.00 was not paid. However, even
though Grobler’s contention was that the full amount
of the
commission was not due to Van Zyl as part of it went to
administration and legal fees (total amount of R10 000.00), he had
not provided a full breakdown of these fees as they had not been
requested. To the extent that he had conceded that the fees in
question were not substantiated, he conceded that Van Zyl was
entitled to 70% of the commission in that regard. In my view, and
further to the extent that Van Zyl had conceded that the deal in
respect of the property had to have attorneys involved because
of its
complexities, I can see no reason based on Grobler’s
concessions as to the reason Val Zyl should not be entitled to
the
70% of the Commission in that regard, which translates into R6
580.00.
[16]
In respect
of claims B and D, Van Zyl’s contention was that he was
entitled to commission on the property as he had signed
a mandate as
a listing agent in that regard and further since the properties were
registered.
[17]
The
respondent as already indicated had conceded that in respect of claim
B, the amount of R31 745.61 was due, except to the extent
that the
counter-claim was to be successful. The same applies to Claim D, in
respect of an amount of R7 986.00 if it were successful.
[18]
In respect
of claim C, Van Zyls’ evidence was that Grobler had asked him
to find a property as he sought to relocate offices.
He was then
contacted by another entity, Koopliede who had bought the property
through the office of the Sheriff, and arrangements
were made with
Grobler to look at that property. Having looked at the property,
Grobler had expressed an intention to buy it by
paying a deposit
towards it. Grobler had also signed the Offer to Purchase (OTP),
which was then forwarded to Koopliede.
[19]
Van Zyl’s
contention was that he was entitled to commission on the property on
the grounds that he was the listing agent;
had introduced the
property to Grobler, and further since the property was ultimately
registered.
[20]
Under
cross-examination, even though Van Zyl had insisted that he was the
mandated agent, he could not provide documentary proof
in that
regard. His contention was that he had a verbal mandate from Van
Heerden of Koopliede to sell the property on Koopliede’s
behalf, and was thus entitled to a share of R110 000.00 commission on
the property.
[21]
Van Zyl
further conceded that Grobler had completed the documents in that
regard, and further that it was common for the Sheriff
to hold
auctions in the Kempton Park area every third week, and that Grobler
got a list of the properties on auction and noted
that the property
in question was for sale. He conceded that the documents presented
had recorded him and Grobler as the agents,
yet insisted he was the
only agent. He further conceded that there was no listing of the
property in question
[22]
Grobler’s
response to Van Zyl’s claim in respect of the property in
question was that he discovered the property after
he saw a list of
properties on auction. Having obtained the list, he had then
mentioned the property to Van Zyl. He denied having
known of the
property through Van Zyl, and had only asked him to make arrangements
for the viewing of the property as Kempton Park
fell under him.
[23]
According
to Grobler, it was his wife that wanted the property from Koopliede.
His wife was the sole member of a close corporation
that bought the
property from Koopliede. He had nonetheless completed the OTP, and
the transfer of the property took place in June
2013 after finance
was secured. He contended that Van Zyl was not entitled to any
commission on the property as he was not the
listing agent, and had
no mandate handed to him to deal with the property.
[24]
Under
cross-examination, Grobler conceded that he could not dispute it if
Van Heerden had confirmed that he had given Van Zyl the
mandate to
sell the property, even though he and his wife had signed the OTP. He
contended that he had signed as the principal
and completed the
agreement. He conceded that Van Zyl had not lied when he testified
that he was an agent in respect of the property
in question, and thus
entitled to commission. He could not dispute it when it was put to
him that the notion of oral mandates was
not foreign to him or the
respondent. He further conceded that Van Zyl would have been entitled
to 50% of the commission since
they both acted as agents.
[25]
Van
Heerden, a trustee of Koopliede had also testified on behalf of the
applicants. Koopliede is a group name for several entities
that are
in the business of property investment. They mainly buy, sell or rent
out properties. He had project managed the property
under Van Zyl’s
claim C, and testified that most of Koopliede’s properties were
sold through Van Zyl as an agent.
[26]
Van Heerden
testified that it was Van Zyl that had approached him about the
property. He denied even having spoken to Grobler about
that property
at least after the deal was concluded, and he had only heard through
Van Zyl that Grobler was interested in buying
the property. He
further testified that it was Van Zyl that had negotiated the deal.
[27]
Cross-examination
of Van Heerden revealed that he was contacted by Van Zyl a day or so
prior to his testimony, who had informed
him to put it in writing
that he was indeed the agent/listing agent that had negotiated the
price on the property. He done so in
letter dated 10 June 2016
[3]
,
and purely for the purposes of the trial.
[28]
The
concessions made by Van Heerden under cross-examination clearly
reveal that the letter in question was generated for the purposes
of
this trial, and very little significance and weight will be attached
to it. Ordinarily, it would have been apparent that Van
Heerden’s
version was tailored to suit Van Zyl’s claim, and should thus
be treated with caution.
[29]
The matter
however does not end there in view of Grobler’s own concessions
as illustrated above in the summary of his evidence.
Based on those
concessions, it is not necessary to deal with other disputes
pertaining to the commission in respect of the claim
under C, as I am
satisfied that Van Zyl was indeed also an agent in respect of the
property, and further that he was involved to
a large extent in the
conclusion of the deal. To the extent that this is the case, he is
accordingly entitled to 50% of the commission
as conceded by Grobler.
The
second and third applicants’ claims:
[30]
The second
and third applicants worked as a team, and their claim is in respect
of two properties they were involved as agents in
their sale. In
terms of the annexure to the contract of employment, the second
applicant is entitled to 70% commission share, whilst
the third
applicant was entitled to a 60% commission share.
[31]
The
respondent’s basis for refuting their claim is that they had
breached their contract of employment. Thus, whether the
claims are
successful is dependent on whether the counter-claim succeeds.
The
Counter-Claim:
[32]
The
respondent’s counter claims against the individual applicants
is as follows;
a)
R507 771.60
against Van Zyl, together with interest thereon at 9% per annum
a
tempore mora
e
and costs
b)
R175 339.54
against the second applicant, Petrus Viljoen, together with interest
thereon at 9% per annum
a
tempore morae
,
together with costs
c)
R151 311.82
against the third respondent, Karen Frauendorf, together with
interest thereon at 9% per annum
a
tempore morae
and costs
[33]
The
counter-claim is grounded on the respondent’s contention that
the individual applicants breached the terms of their contract
of
employment, more specifically the restraint of trade and
confidentiality provisions, by taking up employment with Re-Max, and
using its confidential information for their benefit and that of
Re-Max.
[34]
As already
indicated, Van Zyl resigned from the respondent on 4 April 2014
and joined Re-Max on 7 April 2014.
Viljoen and Frauendorf
had resigned from the respondent on 14 April 2014 and also
joined Re-Max. They had all resigned
with immediate effect without
giving the required 60 days’ written notice.
[35]
It was
further common cause that the individual applicants had signed the
‘
Agreement
of Agent Commission’
as an annexure to the contracts of employment at varying times, which
for all intents and purposes are binding upon them. The following
clauses in the ‘
Agreement
of agent employment’
are
relied upon by the respondent;
‘
Clause 6.3
Bona Fide Notice termination:
‘
6.3.1
Notwithstanding notices and
terminations set out in 6.1 and 6.2 above, either Agent or HARCOURTS
may without cause, terminate this
agreement upon giving of 60 (Sixty)
days written notice to the other party. In such event neither party
shall have any claim against
the other in relation to such
terminations. The Agent shall continue to be entitled to any
commissions, which were negotiated prior
to this termination date,
less a reasonable management and administration fee. This management
and administration fee may not exceed
50% of the commission due and
payable to the Agent and will be calculated in accordance with the
time frame of registration’
6.3.2 Such
commission (after deductions) shall be paid to the Agent only upon
registration of transfer of the
relevant transaction and complete
compliance by the Agent with all obligations under this agreement
upon termination. Payment of
commission to the Agent shall be subject
to applicable provisions of this agreement.
6.3.3 This notice
will only be applicable and acceptable if the Agent acts bona fide
and in good faith and will
only be accepted by HARCOURTS if the agent
is in good standing with HARCOURTS. Notice given that will negatively
impact HARCOURTS
such as actions mentioned in clause 7 below will not
be treated as bona fide and 6.3.1 will not apply.
[36]
In respect
of the counter-claim against the individual applicants, it was
further common cause that they were bound by the restraint
and
confidentiality provisions contained in clause 7
[4]
of the ‘
Agreement
of Agent Employment’
,
and further that should there be a breach of the terms of the
restraint directly or indirectly, they would be liable to the
respondent
for liquidated damages in the amount equal to the amount
they earned in commission during a 6-months’ period.
[37]
The
respondent contended that the individual applicants had breached
their agreements by commencing employment during the restraint
period
at Re-Max, a competitor in the same area as the respondent, and
further by making use of its confidential information for
their
benefit and that of Re-Max.
[38]
The
individual applicants having resigned in April 2014 and only having
claimed or demanded payment of their commissions on 23 June
2014, the
respondent’s contention was that they were aware of its
attitude since at least 26 June 2014
[5]
that it had raised concerns surrounding the breach of agreements,
more specifically pertaining to their failure to work out their
notice periods, and the fact that they had taken up employment with
Re-Max in breach of the restraint provisions. The respondent’s
view was that the commissions were effectively forfeited, as the
individual applicants should have claimed earlier.
[39]
The
applicants refuted the respondent’s counter claim on several
grounds, principal of which was that the respondent, acting
through
its personnel had by implication, waived its rights to and in respect
of their contractual obligations and restraint of
trade provisions.
In this regard, they argued that first, they were not required or
expected to work any notice period; second,
they had resigned because
the respondent had made continued employment intolerable; third, the
respondent was aware that they were
going to work for Re-Max; and
fourth, the respondent had not suffered any harm or any damages as a
result of their resignation.
[40]
The
respondent’s response to the applicants’ assertions was
that the agreement was the sole memorial of the terms governing
their
relationship with it, and there could be no variation except in
writing signed by both parties. In this case, there was no
such
variation in writing for a conclusion to be made that the applicants
were not required to work out their notice period.
[41]
In respect
of Van Zyl, it was contended that he had in any event, no intention
of working out his period in view of his testimony
that that he was
interviewed for the position at Re-Max on 3 April 2014, resigned with
effect from 4 April 2014, and had started
working for that entity on
7 April 2014. It was contended that his resignation or termination
was not
bona
fide
.
[42]
In regard
to the allegations that Van Zyl’s working environment was made
intolerable, the respondent’s contention was
that if that was
the case, he should have referred a constructive dismissal at the
CCMA after his resignation and had not done
so. In this regard also,
it was argued that there was no merit to Van Zyl’s contention
that the intolerable conditions were
caused by late payments of
commissions, as any delays in that regard were small and could not
credibly establish a significant
complaint of intolerable working
conditions such as to excuse him from complying with his obligations.
[43]
The
respondent further submitted that Van Zyl had failed to establish any
question of waiver, more specifically since he only had
his exit
interview on 10 April 2014, after he had started his employment with
Re-Max on 7 April 2014. It was further submitted
that the fact that
Grobler had asked Van Zyl about how things were going at Re-Max after
he had started his employment and wished
him luck in his new
employment was insufficient to establish any waiver.
[44]
In respect
of Viljoen and Frauendorf, the respondent also denied that it had
made continued employment intolerable for them as they
had also
failed to refer a case of constructive dismissal to the CCMA. To the
extent that the two had resigned on 14 April 2014,
it was also argued
that the respondent was only made aware on that date that they were
going to Re-Max, and that they too had not
established a waiver.
Waiver:
[45]
Waiver
takes place where a right or remedy or privilege or power or an
interest or benefit is not asserted
[6]
.
In
National
Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and
Others
[7]
,
it was held that
“…
.
Waiver is the legal act of abandoning a right on which one is
otherwise entitled to rely. It is not easily inferred or
established. The onus to prove it lies with the party asserting
waiver. That party is required to establish that the right-holder,
with full knowledge of the right, decided to abandon it.
And,
So, waiver depends on the intention of
the right-holder. That can be proved either through express actions
or by conduct plainly
inconsistent with an intention to enforce the
right. It may be inferred from the outward manifestations of the
right-holder’s
intention:
“
The
outward manifestations can consist of words; of some other form of
conduct from which the intention to waive is inferred; or
even of
inaction or silence where a duty to speak exists.’’”
(Authorities omitted)
[46]
In
Road
Accident Fund v Mothupi
[8]
it
was held that:
‘
Inferred
waiver:
“
Waiver is
first and foremost a matter of intention. Whether it is the waiver of
a right or a remedy, a privilege or power, an interest
or benefit,
and whether in unilateral or bilateral form, the starting point
invariably is the will of the party said to have waived
it…”
[47]
The
test for determining a waiver is objective
[9]
,
and is adjudged by its outward manifestations by a reasonable person
standing in the applicants’ shoes. The outward manifestations
may consist of words; some other form of unequivocal conduct from
which the intention to waive is inferred; or even inaction or
silence
on a party where a duty to act or speak exists
[10]
.
[48]
In
the light of the above principles, the question that arises is
whether the applicants have discharged the onus of demonstrating
that
the respondent had waived its rights in respect of their contractual
obligations pertaining to the restraint provisions and
the notice
period.
[49]
It
cannot be doubted in this case that the individual applicants clearly
had no intention of serving their notice period. With Van
Zyl, it was
not in dispute that he was interviewed for the position at Re-Max on
3 April 2014, had resigned with immediate
effect on
4 April 2014, and had started his employment with Re-Max on
7 April 2014. Viljoen and Frauendorf
also resigned from the
respondent on 14 April 2014, obtained their fidelity
certificates on 15 April 2014,
and immediately started
their employment with Re-Max.
[50]
Prior
to dealing with whether there was a waiver, some of the ancillary
issues to this main topic needs to be swiftly disposed of.
First, the
respondent’s contention that the Agreements of Agent Employment
were the sole memorials of the terms governing
their relationships
with the respondent and that there was no variation agreed to in
writing is an argument that was raised belatedly,
and was not pleaded
nor canvassed in evidence. Even then, this question still boils down
to whether in fact there was a waiver
of any of the terms and
obligations of the applicants in terms of the agreement.
[51]
Second,
the applicants’ contention that they had left because of the
respondent having made continued employment intolerable
for them is
mere red-herring. I accept that there were concerns, and complaints
raised over time by the applicants about the payment
of commissions.
These however as ultimately conceded by Van Zyl merely related to
amounts due rather than delays in payments. None
of the applicants
filed grievances and as Van Zyl conceded, any issues surrounding
commission were ultimately resolved. Furthermore,
if indeed these
concerns were serious and had led to their resignations, nothing
prevented them from resigning and then lodging
a constructive
dismissal claim. To this end, the applicants’ contention that
they left the respondent because their working
conditions having been
made intolerable is rejected. They had voluntarily left the
respondent’s employ and joined the competition.
[52]
The
central issue is whether there is cause to sustain the argument
surrounding waiver. The respondent’s General manager,
Fourie
was aware that the applicants, or at least Van Zyl, intended to
resign and join Re-Max. Fourie was not called upon to testify
to
refute Van Zyl’s allegations that despite being informed of the
intended resignation and to join Re-Max, had had merely
indicated to
him that the restraint would not be enforced. Whether Fourie had the
necessary authority to agree to the non-enforcement
of the restraint
provisions was not put to the applicants and was raised for the first
time by Grobler in his cross-examination.
[53]
Grobler’s
evidence is even more telling. He became aware of Van Zyl’s
resignation on 4 April 2014. As at 7 April 2014,
it can be accepted that he was aware that Van Zyl had joined Re-Max,
and the subsequent exit interview where Van Zyl had said that
he was
leaving as he had outgrown the respondent is of no consequence, as it
was known at that time that he had already joined
Re-Max. In his
discussions with Van Zyl, at no stage did Grobler speak about the
restraint provisions or the notice period. On
his version, he did not
want to cause a ‘fuss’ and wanted the separation to be
amicable. The fact that the applicants
knew of the agreements is in
my view irrelevant, as Grobler, if he was really concerned about any
breaches should have informed
them at the time that they left.
[54]
Grobler,
despite having all the relevant knowledge and information about the
applicants’ intentions went further, and wished
them all well
in his e-mail to staff on 14 April 2014. Even if this
e-mail was not directed at the applicants and was
meant to calm the
remaining staff in the light of the exodus, not once was it indicated
that the respondent took umbrage to employees
willy-nilly leaving. On
the contrary, the e-mail specifically acknowledges that the
applicants are going to Re-Max, that their
departure is without hard
feelings and grudges, and further assures them that they are always
welcomed to come back.
[55]
On
Grobler’s own version, clause 6.3 of the agreement only
referred to notice period, and that it did not make provision
forfeiture of commission if an employee did not serve notice. He
conceded that he knew that as at 4 April 2014 that the
applicants were going to Re-Max, and never spoke to them about
serving notice. He conceded further that he was aware that Van Zyl
went to the ‘open day’ between 4 and 10 April 2014 on
behalf of Re-Max, and yet said nothing to him. He conceded that
after
they had left, he had not seen any purpose in pursuing the matter
with them, and confirmed that it was only after receipt
of the
applicants’ letter of demand that the issue of restraint was
raised on 26 June 2014. He accordingly would
not have
raised a counter-claim but for the applicants’ demand.
[56]
The
conduct of Grobler in the light of the above objective factors can
only lead to the invariable conclusion that indeed the applicants
were entitled to reasonably believe that the respondent had waived
its rights in respect of the enforcement of notice period and
the
restraint provisions. Grobler, with the full knowledge of the terms
of the applicants’ agreement, and the applicants’
intentions, failed to take any action, let alone indicate the
respondent’s intention to enforce the provisions of the
contract
of employment. There is no reason therefore to believe that
such conduct is inconsistent with an unequivocal waiver of the
respondent’s
rights. But for the fact that the applicants had
demanded payment of their outstanding, the respondent was not in any
manner, shape
or form, interested in pursuing any claim matter
against the applicants in respect of the patent breaches of their
contracts of
employment. Even if the applicants’ resignation
could not be construed as bona fide within the meaning of clause
6.3.3 of
the agreement of employment, the respondent, at least
through Grobler’s conduct was prepared to the let them leave in
circumstances
where they had clearly breached and further intended to
breach the terms of their contract.
[57]
The
non-payment of commission due to the applicants was not as a
consequence of their failure to comply with the termination
provisions
under clause 6 of the contract of employment, or having
acted in breach of the provisions of their contracts of employment.
Had
this been the intention, it would have been made plain to the
applicants at the time that they left. To have simply raised this
as
a defence some two and half months later in retaliation to the
applicants’ demand cannot in my view be justifiable or
lead to
a conclusion that the respondent had asserted its rights.
[58]
In
the light of the above conclusions, it follows that any harm or
damage caused to the respondent because of the applicants having
breached their contracts of employment is directly attributable to it
having acquiesced in that conduct. To this end, it follows
that the
counter claim ought to be dismissed.
Costs:
[59]
I
have had regard to the requirements of law and fairness in relation
to costs. The respondent’s main contention throughout
the
proceedings was that the applicants were not paid their commissions
as a result of their breach of the contracts of employment.
The
applicants’ claim of a waiver having been successful in large,
it is also taken into account that the respondent’s
counter-claim was for all intents and purposes, legitimate in the
light of the applicants’ breaches. In my view, the facts
and
circumstances of this case dictate that each party must be burdened
with its own costs.
Order:
[60]
Accordingly,
the following order is made;
1.
The
first applicant’s claims are successful as follows:
a)
Claim
A: in
the amount of R6 140.35.
b)
Claim
B: in
the amount of R31 745.61
c)
Claim
C: the
amount of R67 543.86
d)
Claim
D: the
amount of R7 986.00
TOTAL:
R113 415.82 (and applicable interest as at 25 May 2015)
2.
The
second applicant’s claims are successful as follows;
a)
Claim
G:
in the amount of R7 278.95
b)
Claim
I: in the amount of R7 402.00
TOTAL:
R14 680.00 (and applicable
interest
rate as at 25 May 2015)
3.
The
third applicant’s claims are successful as follows;
a)
Claim
H:
in the amount of R6 239.10
b)
Claim
J: in the amount of R6 345.00
TOTAL:
R12 584.10 (and applicable interest rate as applicable as at 25
May
2015)
4.
The
respondent’s counter-claim is dismissed
5.
There
is no order as to costs
__________________
E.
Tlhotlhalemaje,
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicants:
Adv C Goosen
Instructed
by:
Horn Attorneys
On
behalf of the Respondent:
Adv A Bishop
Instructed
by:
Gittins, Youngman
and Associates
[1]
Which provides
that;
‘
When
an Agent requests HARCOURTS to intervene in a transaction where one
of the parties in breach within the registration period
the Agent
agrees that HARCOURTS may deduct a reasonable administration and/or
legal fee from the Company share of commission’
[2]
Which provide
that;
‘
Should
an Agent break this restraint directly or indirectly he will be
liable to HARDCOURTS for liquidated damages of an amount
equal to 6
(six) months the Agents monthly commission income, and will forfeit
all commission due and earned’ (Sic)
[3]
Page 175 ‘A’
of the Applicants’ Bundle of Documents
[4]
RESTRICTION ON
SIMILAR AND/OR SUBSEQUENT BUSINESS ACTIVITY
[5]
Respondent’s
correspondence of 26 June 2014
[6]
Sali v National
Commissioner of the South African Police Service and Others
[2014] 9 BLLR 827
(CC) para 53
[7]
2015 (2) BCLR 182
(CC) a
t
paragraphs 60 – 61. See also
Hepner
v Roodepord-Maraisburg Town Council
1962
(4) SA 772(A)
at 778 D-F where Steyn CJ held that:
“
There
is authority for the view that in the case of waiver by conduct, the
conduct must leave no reasonable doubt as to the intention
for
surrendering the right in issue (Smith v Momberg 1895}SC 295 at page
304; Victoria Falls and Transvaal Power Co Ltd v Consolidated
Langlaagte Ltd
1915 AD 1
at
p 62) but in Martin v de Kock
1948 (2) SA 719
(AD)
at p 733 this Court indicated that that view may possibly require
reconsideration. It sets, I think, a higher standard
than that
adopted in Laws v Rutherfund
1924 AD 261
at
p263, where Innes CJ says:
‘
The
onus is strictly on the appellant. He must show that the
respondent, with full knowledge of her right, decided to abandon
it,
whether expressly or by conduct plainly inconsistent with an
intention to enforce it.’
This
accords with the test applied in City of Cape Town v Kenny
1934
AD 543
and was followed
in Collen v Rietfontein Engineering Works
1948 (1) SA 413
(AD)
at p 436 and Linton v Corser
1952 (3) SA 685
(AD)at
p 695. Cf. Ellis and others v Laubcher
1956 (4) SA 692
(AD)
at p 702). In my opinion the test is more correctly stated in
these cases.”
[8]
2000 (4) SA 38
(SCA)
at paras 15 –
19
[9]
Multilateral
Motor Vehicle Accidents Fund v Meyerowitz
1995 (1) SA 23(C)
at
26H-27G
[10]
See
Jethro
N.O v Road Accident Fund (10534/2006)
[2015] ZAWCHC 101
(29 July
2015)
at
para 18. See also
Mothupi
at para 19, where it was held that;
"Because
no one is presumed to waive his rights....one, the onus is
one the
party
alleging it and two, clear proof is required of an intention to do
so.... The conduct from which waiver is inferred,
so it
has been frequently stated, must be unequivocal, that is
to say, consistent with no other hypothesis".