About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2017
>>
[2017] ZALCCT 30
|
|
SA Kalk and GIPS (Edms) Bpk v Krog and Another (C350/2017) [2017] ZALCCT 30 (29 June 2017)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 350/2017
In
the matter between:
SA
KALK & GIPS (EDMS) BPK
Applicant
and
BEN
KROG
First respondent
GRASLAND
ONDERNEMINGS (EDMS) BPK
Second respondent
Heard:
26 June 2017
Delivered:
29 June 2017
Summary:
Restraint of trade – urgent
application to enforce restraint pending application in terms of BCEA
s 77(3) – parties
did not sign written restraint of trade
agreement. Applicant failed to make out case for interim relief.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This is an urgent application
to enforce an alleged restraint of trade agreement. I use the word
‘alleged’ because it
comes before this Court in the most
unusual circumstances. The parties have not signed any restraint of
trade agreement. The applicant
seeks an order enforcing a restraint
of trade that it says came into being in terms of an oral agreement
between it and it former
employee, Ben Krog, pending a referral to
this Court in terms of s 77(3) of the Basic Conditions of Employment
Act
[1]
.
In that referral, the applicant intends to show that a restraint of
trade agreement did come into existence and that it is “a
matter concerning a contract of employment” as contemplated in
that subsection.
[2]
[2]
All the protagonists are Afrikaans-speaking. The applicant’s
pleadings and heads of argument were drafted in Afrikaans.
But
although those pleadings, the negotiations and correspondence between
the parties, as well as the oral argument before the
Court were
conducted in Afrikaans, they agreed that this judgment could be
drafted in English – albeit in haste, given its
urgency –
as the heads of courts recently indicated that it would be useful for
judges in the higher courts who are not proficient
in South Africa’s
indigenous official languages if judgments could be handed down in
English.
Background
facts
[3]
The first respondent, Ben Krog,
was (until this week) the national marketing manager of the
applicant, SA Kalk & Gips (Edms)
Bpk.
[3]
He resigned with effect from this Friday, 30 June 2017. To put it in
colloquial Afrikaans, “hy wil groener weivelde gaan
soek by
Grasland” (die tweede respondent, Grasland Ondernemings (Edms)
Bpk).
[4]
He is due to start working for Grasland next Monday, 3 July 2017.
(Grasland does not oppose the application and abides by the Court’s
decision).
[4]
The applicant supplies lime and gypsum products to the agricultural
industry. Grasland is its competitor nationwide.
[5]
The narrative starts just over three years ago, in April 2014. The
applicant’s then national marketing manager, Mr Renso
Nel,
resigned. The deponent to the founding affidavit, Mr Carl Taljaard
(the CEO), says that his resignation occurred under unhappy
circumstances and that he left in order to compete with the
applicant. (That allegation is gainsaid by an email message to staff
members and customers dated 5 May 2014 in which Taljaard refers to
Nel in glowing terms. Amongst other things, he says: “Dit
was
‘n voorreg om Renso te leer ken as ‘n baie besondere
talentvolle mens, wat ons weet nog steeds baie goeie waarde
gaan
toevoeg in die bedryf. Renso het uitstekende diens by ons verrig en
ons gaan hom baie mis. Ons het egter goeie begrip vir
sy besluit en
wens hom alle voorspoed toe vir die nuwe uitdagings wat voorlê
– die lewe bly maar vol keuses. Gelukkkig
bly hy steeds in die
bedryf en sien ons uit na goeie samewerking tot voordeel van Lime
Corp en SA Kalk en Gips.”)
[6]
Taljaard knew Krog. He and the operational director, Hendrik Heyl,
headhunted Krog to take over as national marketing manager.
They had
a number of discussions culminating in a meeting on 17 April 2014 at
a coffee shop, De Oude Bakkerij in Stellenbosch.
[7]
It is common cause that Taljaard and Heyl offered Krog a job. What is
in dispute, is whether it was subject to a restraint of
trade
agreement. Taljaard and Heyl say they made it clear that a restraint
of trade agreement would be a term of the contract;
Krog denies it.
[8]
On the same day, 17 April 2014, Taljaard and Heyl sent Krog an offer
of employment on behalf of the applicant. It contains the
essential
terms of the employment contract, including the position as national
marketing and sales manager; his remuneration and
details of a share
incentive scheme; leave; and notice. It makes no mention of a
restraint of trade agreement.
[9]
Krog responded by email within 10 minutes. He explained that he was
on his way to Caledon and would peruse the offer more closely
once he
got home.
[10]
Krog replied in more detail on 19 April 2014. He had some questions
about the share incentive scheme, to which Heyl responded.
There was
no further mention of a restraint of trade agreement. And on 24 April
2014 Krog formally accepted the offer in writing.
He had some further
questions about his remuneration, medical aid scheme, car scheme and
a 13
th
cheque. Again, there was no mention of a restraint
of trade agreement.
[11]
At some stage – Taljaard does not say when – Heyl asked
the human resources manager, Ms Jenene Olivier, to draft
a written
contract of employment (over and above the appointment letter
containing the terms that Krog had accepted). That draft
was only
sent to Krog in 2015, months after he had started working for the
applicant. He did not sign it. And the applicant never
raised it with
him again until he resigned in May 2017.
[12]
The unsigned draft agreement contained the following clause under the
heading “
NON-SOLICITATION CLAUSE
”:
“
The employer [
sic
]
agrees and undertakes not to, during any period of employment, or for
a period of 12 months after termination of employment for
any reason
whatsoever:
1. canvass, solicit,
interfere with or entice away any person (whether individual or
corporate) who is a customer,
client, supplier or distributor of the
employer, or attempt to do so; supply or make available or provide to
any person (whether
individual or corporate) who is a customer,
client, supplier or distributor of the employer, any goods or service
which is similar
to the goods or services provided by the employee;
2.
canvass, solicit, entice, interfere with, employ, appoint or procure
the employment or appointment of any person
who is an employee,
officer, or agent of the employer.”
[13]
Two years later, on 2 May 2017, Krog met with Taljaard and Heyl. He
told them that he intended to resign on one month’s
notice. (It
is common cause that he actually had to give two months’ notice
and that is currently serving out that notice
period). He also handed
in a written notice of resignation. Taljaard and Heyl say that they
reminded him of his restraint of trade
agreement; Krog admits that
they raised an alleged restraint, but says that he “directly
asked Heyl what he was talking about,
as this was the first time the
issue had been raised with me”.
[14]
Krog met with Hendrik Heyl’s brother, Johan – also a
director of the applicant -- the next day, 3 May 2017. He
told Johan
that he had not discussed or agreed to a restraint of trade
undertaking at the meeting of 17 April 2014. On the same
day, he told
Hendrik Heyl and Taljaard that he would be taking up employment with
Grasland.
[15]
Correspondence between the parties’ attorneys followed. The
applicant sought an undertaking that Krog would abide by
the alleged
restraint of trade agreement. His attorneys denied the existence of
such an agreement. The applicant then launched
these urgent
proceedings.
The
relief sought
[16]
In its notice of motion, the applicant seeks the following relief:
“
Dat, hangende die afhandeling
van ‘n verwysing van die geskil hierin ingevolge artikel 77(3)
van die Wet op Basiese Diensvoorwaardes
(“die verwysing”),
‘n tussentydse hofbevel aan die applikant toegestaan word met
die volgende terme:
(a) Dat die eerste respondent
[Krog] verbied word om vir ‘n tydperk van twaalf (12) maande
vanaf sy diensbeëindiging
by die applikant of afhandeling van
die verwysing (welke van die twee die vroegste is) vir die tweede
respondent of vir enige onderneming
(met inbegrip van sy eie) wat in
direkte mededinging met die applikant in die Republiek is, te werk,
hetsy as werknemer, konsultant,
agent of aandeelhouer, of in enige
ander hoedanigheid;
(b)
Dat die tweede respondent [Grasland]
verbied
word om op enige wyse vir ‘n tydperk van twaalf (12) maande
vanaf die eerste respondent se diensbeëindiging by
die applikant
of afhandeling van die verwysing (welke van die twee die vroegste is)
van die applikant [
sic
]
se dienste gebruik te maak, hetsy as werknemer, konsultant, agent of
aandeelhouer, of in enige ander hoedanigheid.”
[17]
It will be apparent from the
notice of motion that the applicant does not purport to rely on the
“non-solicitation clause”
contained in the draft contract
of employment that its human resources manager drafted and that Krog
never signed. Instead, it
relies on a tacit or implied term, agreed
on 17 April 2014 at the coffee shop meeting, of a restraint of trade
agreement for an
unspecified term in the whole of South Africa.
[5]
But it seeks final relief only for a restraint period of twelve
months, and interim relief pending that period or the determination
of the s 77(3) referral, whichever comes first.
Jurisdiction
[18]
The first respondent, Krog, has raised two jurisdictional questions.
Firstly, he argues that the dispute concerning the existence
of a
restraint of trade agreement is not one over which this Court has
jurisdiction, as the applicant relies on a self-standing
agreement
predating his contract of employment. And secondly, he argues that
the Court does not have jurisdiction over the second
respondent,
Grasland.
Jurisdiction
: Krog and the alleged restraint
[19]
Mr
Stelzner
argued that this court does not have jurisdiction
to decide the main referral in terms of s 77(3) of the BCEA, as there
is –
even on the applicant’s version – no restraint
of trade agreement that is part of his contract of employment.
Instead,
he argued, the applicant relies on a stand-alone agreement
that was allegedly entered into orally on 17 April 2014.
[20]
I think that takes too narrow a view of the section. Section 77 (3)
of the BCEA confers concurrent jurisdiction on this Court
to hear and
determine “any matter concerning a contract of employment”.
The applicant alleges that the restraint of
trade agreement was a
term of Krog’s employment. Whether that is a good or a bad
claim, is neither here nor there. It seems
to me, though, that that
is a “matter concerning” his contract of employment (“
‘n aangeleentheid betreffende
‘n dienskontrak”).
Jurisdiction
: Grasland
[21]
Krog argues that the applicant seeks relief against Grasland on the
basis of unlawful competition, a delictual claim over which
this
Court does not have jurisdiction.
[22]
Mr
Stelzner
relies in this regard
on
Windybrow Theatre
[6]
where Murphy AJA held:
“
The matters within jurisdiction
of the Labour Court are thus ‘all matters that elsewhere in
terms of this Act or in terms
of any other law’ must be
determined by the Labour Court. These matters are all employment
related disputes, including the
review of CCMA arbitration awards,
alleged unfair operation requirements dismissals, unfair
discrimination, collective bargaining
disputes and contractual claims
under the Basic Conditions of Employment Act. For the most
part, if not entirely, disputes
falling within the jurisdiction of
the Labour Court are those arising between employees and employers or
their bargaining agents.
Nothing in the LRA or other legislation
confers jurisdiction upon the Labour Court to adjudicate a delictual
or enrichment claim
arising out of illegal conduct by the Sheriff in
the execution process. Thus, such causes of action not being within
its jurisdiction,
the Labour Court cannot have any inherent powers in
relation to such claims, because section 151(2) restricts the Labour
Courts
inherent powers to powers “in relation to matters under
its jurisdiction”.
[23]
But that case is distinguishable from this one. It dealt with the
question whether the Labour Court has the power to order
the Sheriff
to repay money attached and distributed in terms of an irregular and
invalid attachment. This case deals with the enforcement
of an
alleged restraint of trade – a matter concerning a contract of
employment – against the employee, Krog, and his
new employer,
Grasland.
[24]
In
Rand
Water v Stoop
[7]
the LAC held that there does not have to be a direct or indirect link
between the contract of employment and the claim. And it
went so far
as to hold that a delictual claim of fraud could be entertained in
terms of section 77 (3) where the fraud was connected
to the contract
of employment in that the respondents, by committing fraud, had
abused their positions as employees. Finally, the
court rejected the
argument that section 77 contemplates only claims for employees
against employers, ruling that the BCEA upholds
fair labour practices
for both employees and employers and that an employer can therefore
claim damages in terms of the BCEA for
breach of contract. Waglay JP
held:
[8]
“
Generally the Labour Court and
this Court have held that if an issue in dispute relates to; is
linked to; or connected with an employment
contract then the Labour
Court does have jurisdiction in terms of s77(3) of the BCEA to
entertain such a dispute.
…
The words ‘any matter’ in
section 77(3) are broad and the literal interpretation does not limit
the claims, in relation
to a contract of employment, to a specific
category. Damages, both liquid and liquid, are included.”
[25]
And in the earlier case of
Kruse v Gijima AST (Pty)
Ltd
[9]
,
to which Mr
Rautenbach
referred, the Labour Court said:
“
In
University of the North v
Franks and Others
[2002] 8 BLLR 701
(LAC) the Labour Appeal Court
had occasion to consider the scope of section 77(3) of the BCEA.
The Labour Appeal Court was
concerned with a dispute as to the
existence or validity of a contract of retrenchment, the effect of
which would be to terminate
the contract of employment (at para
[26]). For the purposes of this judgment I will refer to such
an agreement as a “collateral
agreement.” In that
case the Labour Appeal Court decided (at paras [29] and [30]) that
the Labour Court did indeed
have jurisdiction to determine a dispute
concerning a collateral agreement.
The Labour Appeal Court gave a wide
interpretation to section 77(3) and stated: ‘In short, the
Labour Court is to have jurisdiction
in respect of all employment
contracts and exclusive jurisdiction in respect of some. But
the jurisdiction is even wider.
It is in respect of
any
matter concerning a contract of employment
.’ (at para [29])
(own emphasis)
and
‘
In this appeal it is not
necessary to decide exactly how wide the jurisdictional net is cast.
The termination of an employment
contract and the terms and
conditions upon which this is to occur are clearly matters concerning
such contracts. The Labour
Court correctly held that it had
jurisdiction.’ (at para [30]).
A similar result was reached by Freund
AJ in
Inspektex Mmamaile Construction and Fire Proofing (Pty)
Limited v Coetzee and Others
(J1264/08 ZALC 94 (1 September 2009)
where it was decided that a dispute about the validity of a
settlement agreement concluded
by an employer and an employee fell
within the meaning of ‘any matter concerning’ a contract
of employment and thus
fell within the jurisdiction of the Labour
Court in terms of section 77(3) of the BCEA.”
[26]
Given the wide meaning accorded to s 77(3) by this Court and by the
LAC, I am satisfied that this Court does have jurisdiction
over the
application as pleaded with regard to Grasland.
Urgency
[27]
The application is, almost by is very nature, urgent. Krog’s
two month notice period expires this Friday, four days after
the
matter has been heard. And he intends to take up employment with
Grasland a week hence. The applicant could have acted with
greater
haste since receiving Krog’s notice of resignation on the 2
nd
May, but as often happens in restraint of trade cases, some
correspondence followed between the parties and their attorneys,
including
requests for undertakings that were not forthcoming. I’m
satisfied that the matter is sufficiently urgent to be heard out
of
the ordinary course.
Evaluation
[28]
The applicant argues that, although ‘interim’ in form,
the interdict may very well be final in its effect.
Prayer 2 of
the notice of motion asks that the interdict endure for twelve months
or until the action is disposed of, “whichever
occurs
soonest”. Mr
Stelzner
pointed out that this
already recognises that the 12 month period of the “interim”
interdict could expire before the
action is finally determined
(particularly if one were to include any one of the possible delays
which may occur – such as
the applicant dragging its heels once
it obtains the interdict, a full court roll, a lengthy action, an
appeal, etc.). The interdict
is sought for a period of 12 months. In
the alternative the interdict is sought for a period until the main
proceedings are finalised,
which the applicant says could be sooner
than 12 months from now.
[29]
Whether the main proceedings in terms of s 77(3) of the BCEA will be
finalised within 12 months is hard to say. The court roll
has been
allocated for the remainder of this year (apart from urgent
applications). It may be that the main referral will be heard
in the
first term of next year, i.e. before the 12 months have expired. At
this stage, it is impossible to say whether the relief
sought will be
“final in effect”. I am satisfied that it is cast in
interim terms, pending the final relief sought
or the expiry of
twelve months. I will consider it in that context.
Prima
facie right?
[30]
The elements to be considered
in deciding whether to grant an interim interdict are trite, as set
out in
Setlogelo v
Setlogelo.
[10]
[31]
In an application for an
interim interdict, the rule in
Plascon-Evans
[11]
does not apply when considering the evidence:
“
The proper manner of approach
is to take the facts set out by the applicant, together with any
facts set out by the respondent which
the applicant cannot dispute,
and to consider whether, having regard to the inherent probabilities,
the applicant should on those
facts obtain final relief at the trial.
The facts set up in contradiction by the respondent should then be
considered. If serious
doubt is thrown on the case of the applicant
he could not succeed in obtaining temporary relief, for his right,
prima facie
established, may only be open to ‘some doubt’. The onus
of proving such
prima facie
right rests upon the applicant.”
[12]
[32]
In
Reddy
v Siemens Telecommunications
Ltd
[13]
it was held that the reasonableness of a restraint could be
determined without getting embroiled in the issue of onus. But the
question here is whether Krog has thrown serious doubt on the
applicant’s case. And the applicant must, in the first place,
prove the existence of a restraint of trade agreement; it is only
then that the factors set out in
Basson
v Chilwan
[14]
arise, i.e.
32.1 whether there is an
interest of the applicant which is deserving of protection;
32.2 whether that interest
is prejudiced by Krog;
32.3 if so, whether it
weighs up qualitatively and quantitatively against Krog’s
interests so that he should be
economically inactive and
unproductive; and
32.4 whether there is
another facet of public policy which requires that the restraint
should be maintained or rejected.
[33]
On the facts of this case, and
without the benefit of oral evidence at this stage, Krog has thrown
serious doubt on the existence
of a restraint of trade agreement,
even on the test set out in
Webster
v Mitchell.
[15]
[34]
I agree with Mr
Stelzner
that the following factors cast
serious doubt upon the existence of the oral agreement that the
applicant relies upon:
34.1 The plausibility of
the applicant’s account is undermined by the contention that
the restraint was supposedly
agreed at an early stage of the
negotiations between the parties, at an informal meeting at a coffee
shop, before Taljaard and
Heyl had made any firm offer to Krog.
34.2 When Taljaard &
Heyl did write to Krog on the same day to set out the terms of the
employment offer, they did
not mention a restraint of trade
agreement.
34.3 In fact, despite the
applicant’s contention that the restraint term was of vital
importance to its directors,
there is not a single reference to it in
any of the extensive correspondence that passed between the parties
at the time.
34.4 The restraint also
does not make an appearance in the draft contract of employment that
the applicant sent to Krog
in 2015 (many months after he commenced
working in June 2014). And the applicant does not rely on the
“non-solicitation
clause” drafted or inserted by its
human resources manager, that Krog did not sign in any event.
34.5 Its contention that
the employment contract was drawn up “intussen” –
after the discussions of
17 April 2014 and before the commencement of
Krog’s employment on 25 April 2014 -- is belied by the fact
that the contract
was produced many months after Krog had already
started working for the applicant.
34.6 The applicant also
seeks support for its case with an explanation why the restraint was
so important to it at the
time of the negotiations with Krog during
April 2014 – for which it relies on the alleged betrayal by its
previous sales
manager, Mr Renso Nel. But contemporaneous
correspondence from the deponent to the founding affidavit does not
bear this
out.
34.7 Krog has consistently
denied the existence of any restraint of trade agreement. He supports
his denial with the
contention that he would never have agreed to
such a term of employment as it would effectively bar him from
employment in his
chosen field (as a soil scientist specialising in
fertilisation) since the field of fertilisation is so
closely interlinked
with the use of lime and gypsum and
he had never before been required to enter into such an agreement
with any of his
previous employers in the same industry.
[35]
In summary, the applicant has not made out a
prima facie
case
that a restraint of trade exists on the evidence before me.
[36]
Given that conclusion, it cannot succeed in the relief it seeks. I
will nevertheless briefly consider the other requirements
for an
interim interdict.
Apprehension
of irreparable harm?
[37]
The applicant has not shown that it will suffer irreparable harm,
should Krog continue working for Grasland. The nature of
the lime and
gypsum industry, as set out in the evidence before me, appears to be
such that the factors on which transactions depend
in the
agricultural industry are either publicly known – such as
pricing – or are the subject of industry norms –
such as
transport costs or commissions payable to agents. Krog may well have
built up good relationships with agents, customers
and suppliers, but
that does not, in this case, translate to irreparable harm for the
applicant.
Alternative
remedy
[38]
In any event, even if the applicant does suffer harm, it has an
alternative remedy. It may be able, in due course, show through
oral
evidence in the s 77(3) hearing that a restraint agreement did come
into existence. If so, and provided the other factors
are satisfied,
it may be able to prove and claim damages from Krog. In the unusual
circumstances of this case, that remedy must
be seen as an adequate
one, as opposed to the typical urgent application to enforce a
restraint of trade clause which is common
cause, where it has been
breached, and where the other factors can be sufficiently argued on
the papers. In those cases, it is
often prudent to prevent an
immininent or further breach rather than to expect of the applicant
to claim damages in due course.
Balance
of convenience
[39]
Even though the applicant belatedly offered to pay Krog’s
salary for a further four months – on the assumption
that its s
77(3) referral will then go to trial – the balance of
convenience favours Krog. Should he be prevented from working
for a
competitor, even on an interim basis and based on flimsy allegations
of an oral and unspecified restraint of trade agreement,
it will
seriously impact on his right to earn a living in his chosen
profession. And the applicant’s allegation that it may
“go
under” as a result of the competition by Grasland being buoyed
by Krog’s employment is not borne out by any
concrete evidence.
Conclusion
[40]
The applicant has not discharged the onus to show that it is entitled
to the urgent relief it seeks.
[41]
Both parties have asked for costs to follow the result. I see no
reason in law or fairness to disagree. And given the timeframes
in
which Krog’s legal team had to draft its opposing papers and
arguments, the use of two counsel was not unwarranted.
Order
The
application is dismissed with costs, including the costs of two
counsel.
__________________________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Frans Rautenbach
Instructed
by
Ward, Ward & Pienaar (Cape Town).
FIRST
RESPONDENT: Robert Stelzner SC and
Joseph Whitaker
Instructed
by
Joubert & Ferreira Inc (Somerset
West).
[1]
Act 75 of
1997 (BCEA).
[2]
That
subsection reads: “The Labour Court has concurrent
jurisdiction with the civil courts to hear and determine any matter
concerning a contract of employment, irrespective of whether any
basic condition of employment constitutes a term of that contract.”
In Afrikaans, it reads: “Die Arbeidshof het konkurrente
jurisdiksie met die siviele howe om enige aangeleentheid betreffende
‘n dienskontrak, ongeag of ‘n basiese diensvoorwaarde ‘n
bepaling van daardie kontrak uitmaak, aan te hoor
en daaroor te
beslis.”
[3]
The name
would translate to South African Lime & Gypsum (Pty) Ltd.
[4]
He wants to
depart for greener pastures at the second respondent, Grassland
Enterprises (Pty) Ltd.
[5]
This cause
of action is spelt out in the s 77(3) referral under case number C
357/2017.
[6]
Windybrow
Theatre v Maphela
(2016)
37
ILJ
2641
(LAC) par 22.
[7]
[2013] 2
BLLR 162
(LAC); (2013) 34
ILJ
579 (LAC). See also the discussion in Du Toit et al
Labour
Law through the Cases
s.v.
BCEA s 77(3).
[8]
Paras 21
and 39.4.
[9]
(2010) 31
ILJ
1898
(LC);
[2010] 7 BLLR 722
(LC) paras 16-18.
[10]
1914 AD 221
at 224. See also
Erikson
Motors Welkom Ltd v Protea Motors Warrenton
1973
(3) SA 658 (A).
[11]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634H-635B.
[12]
C B Prest,
The
Law and Practice of Interdicts
(1996)
at 55-56, citing
Webster
v Mitchell
1948
(1) SA 1186
(W) at 1189 and subsequent authorities. See also
Spur
Steak Ranches Ltd v Saddles Steak Ranch Claremont
1996
(3) SA 706
(C) at 714.
[13]
2007 (2) SA
386 (SCA).
[14]
1993 (3) SA
742 (A) 767 E-I.
[15]
Above fn
12.