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[2019] ZALCJHB 57
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Medtronic Africa (Pty) Ltd v Van Rooijen and Another (J3913/18) [2019] ZALCJHB 57 (25 March 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no. J 3913 / 18
In
the matter between:
MEDTRONIC
AFRICA (PTY) LTD
Applicant
And
YOLANDE
VAN ROOIJEN
First Respondent
BOSTON
SCIENTIFIC SA (PTY) LTD
Second Respondent
Heard:
Considered in Chambers
Delivered
: 25 March 2019
Summary:
Application for leave to appeal – application for leave to
appeal brought out of time –
also non-compliance with Practice
Manual – no proper case of good cause made out and condonation
not applied for –
application dismissed
Leave
to appeal – no proper grounds made out – application for
leave to appeal dismissed
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
In this instance, the applicant had brought
an urgent application to enforce a restraint of trade covenant
against the first respondent.
The first respondent opposed the
application. After hearing argument by both parties on 7 December
2018, when the matter came before
me, I granted the following order.
1.
The application is heard as one urgency.
2.
The first respondent is interdicted and
restrained until 30 November 2019 and in the Republic of South Africa
from directly or indirectly
being interested in or rendering services
to:
2.1
The second respondent;
2.2
Any person or entity which competes
directly or indirectly with the business of the applicant.
3.
The first respondent is interdicted and
restrained from disclosing, disseminating, divulging, relaying or in
any way conveying the
confidential information of the applicant to
any third party including the second respondent.
4.
There is no order as to costs.
5.
Written reasons for this order will be
provided on 14 December 2018.
[2]
Written reasons for my order were then
indeed handed down on 14 December 2018, by way of a comprehensive
written judgment. It does
however appear to be common cause that even
though the judgment was handed down on 14 December 2018, it was only
sent to the parties
by the office of the registrar on 18 December
2018. I shall accordingly accept for the purposes of the application
for leave to
appeal that judgment was handed down on 18 December
2018.
[3]
On 11 January 2019, the first respondent
filed an application for leave to appeal. In terms of Rule 30(3), i
f
the reasons for the Court's order are given on a date later than the
date of the order, the application for leave to appeal must
be made
within 10 (ten) days after the date on which the reasons are given.
In this case therefore, the due date for the first
respondent’s
application for leave to appeal was 4 January 2019, making the
application for leave to appeal out of time.
[4]
I was also not
favoured with
written submissions as
contemplated by Rule 30(3A) of the Labour Court Rules and clause 15.2
of the Practice Manual, by the first
respondent. The applicant
however did file its submissions as contemplated by these provisions,
opposing the application for leave
to appeal. In the applicant’s
submissions, it is also recorded that it did not receive submissions
from the first respondent.
[5]
Clause 15.2 of the Practice Manual provides
that an application for leave to appeal will be determined by a Judge
in chambers, unless
the Judge directs otherwise. I see no reason to
direct otherwise and will therefore determine the first respondent’s
leave
to appeal application in chambers.
Defective
application
[6]
As touched on above, and in In terms of
Rule 30(3) of the Labour Court Rules, the first respondent’s
application
for leave to appeal was due on 4 January 2019, but
was only filed on 11 January 2019, and is thus 5(five) Court days out
of time.
This Court can however can condone the late filing of such
application for leave to appeal on good cause shown, in terms of that
same Rule.
[7]
Good
cause requires a proper application for condonation. The first
respondent, because its application for leave to appeal was
out of
time, always needed to apply for condonation and explain the
delay.
[1]
In
MCC
Contractors (Pty) Ltd v Johnston NO and Others
[2]
the Court held:
‘…
The Rules
of the Labour Court (and those of the High Court) provide for time
periods within which an application for leave
to appeal must be
brought. There are important policy considerations for requiring a
party to file an application for leave to
appeal within a certain
time period. Where a party does not observe the rules, such a party
must apply for condonation and it is
for the applicant to satisfy the
court that there is sufficient cause to excuse him or her from
not complying with the rules.
….
…
.
In
the context of labour litigation, there is however a further
important consideration that should be taken into account which
is
that labour disputes should be resolved speedily. Any delay in
bringing the application for leave to appeal should therefore
be
properly explained.’
[8]
The
first respondent did not apply for condonation. In the absence of any
application for condonation, this Court should on this
basis alone
decline to entertain the first respondent’s application for
leave to appeal. The reason for this is that the
absence of a
condonation application means that good cause has not been shown and
that the delay is unexplained. As a result, prospects
of success also
becomes an irrelevant consideration.
[3]
It is clear to me that the approach of the first respondent was
simply that condonation was there for the asking, which is
unfortunately
for it a wrong approach. In
Seatlolo
and others v Entertainment Logistics Service
(
a
division of Gallo Africa Ltd
)
[4]
the Court held:
‘
It
is trite law that condonation should only be granted where the legal
requirements have been met and is not a default option.
It remains an
indulgence granted by a court exercising its discretion whilst being
cognizant of the criticism emanating from the
Constitutional Court
and the SCA and bearing in mind the primary objective of the
expeditious resolution of disputes articulated
in the Act.’
[9]
The
situation is compounded by the first respondent’s failure to
comply with the Practice Manual, in that it never filed written
submissions in support of its application for leave to appeal.
The
first respondent is obliged to comply with the provisions of the
Practice Manual, which is not just some or other guideline
which
parties can adhere to at their leisure. As said in
National
Education Health and Allied Workers Union on behalf of Leduka v
National Research Foundation
[5]
:
‘
The
Practice Manual is binding on litigating parties and must be complied
with. It is not just a guideline, but an actual prescript.
…
’
[10]
In
Ralo
v Transnet Port Terminals and Others
[6]
the Court similarly held as follows:
‘
The Practice
Manual contains a series of directives, which the Judge President is
entitled to issue. In essence, the manual sets
out what is expected
of practitioners so as to meet the imperatives of respect for the
court as an institution, and the expeditious
resolution of labour
disputes (see clause 1.3). While the manual acknowledges the need for
flexibility in its application (see
clause 1.2), its provisions are
not cast in the form of a guideline, to be adhered to or ignored by
parties at their convenience.'
[11]
The first respondent’s application
for leave to appeal thus falls to be dismissed on the above grounds
alone, irrespective
of any consideration of prospects of success.
However, and for the sake of being complete, I will nonetheless
consider the merits
of the application for leave to appeal, on the
basis of the grounds advanced by the first respondent in the
application for leave
to appeal.
The
merits of the application
[12]
When
deciding whether to grant leave to appeal to the Labour Appeal Court,
the Labour Court must determine whether there is a reasonable
prospect that another Court would come to a different conclusion to
that of the Court
a
quo
, or
in other words, the appeal would have a reasonable prospect of
success.
[7]
As said in
South
African Clothing and Textile Workers Union and Others v Stephead
Military Headwear CC
[8]
:
‘
It
is trite that for an application for leave to appeal to be
successful, it is required of the party seeking such leave to
demonstrate
that there are reasonable prospects that another court,
in this instance, the Labour Appeal Court, would come to a different
conclusion
to that reached in the judgment that is sought to be taken
on appeal. …
’
[13]
In
Member of the
Executive
Council for Health, Eastern Cape v Mkhitha and Another
[9]
the Court applied the concept of ‘reasonable prospects of
success’ as follows:
‘
Once
again it is necessary to say that leave to appeal, especially to this
Court, must not be granted unless there truly is a reasonable
prospect of success. Section
17(1)(a) of the Superior Cou
rts
Act 10 of 2013 makes it clear that leave to appeal may only be given
where the judge concerned is of the opinion that the appeal
would
have a reasonable prospect of
success; or there is some other compelling reason why it should be
heard.
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be
a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.
’
[14]
Overall considered, in the context of the
above principles, the first respondent’s application for leave
to appeal is completely
lacking in substance. It is virtually
an identical case to that which was argued before me when the matter
was originally
heard. I dealt with all these arguments in detail in
my judgment, and it seems the first respondent simply disagrees with
my conclusions
and repeats the same arguments again. It is simply not
appropriate to simply argue the same case when seeking leave to
appeal,
and then hoping some of the argument may stick on the second
occasion, and thus substantiate the granting of leave to appeal.
[15]
Because I have in my judgment of 14
December 2018 comprehensively dealt with the arguments now again
raised by the first respondent
in her application for leave to
appeal, there is simply no point to deal with the same all over again
in this leave to appeal judgment.
For the reasons already given in my
original judgment, I remain entirely unconvinced that the first
respondent’s arguments
have any merit, and I am satisfied that
there is no reasonable prospect that another Court would come to a
different decision on
appeal. This is an instance where the first
respondent does no more than disagree with my conclusions and
findings, but such disagreement
cannot serve to establish reasonable
prospects of success as required by the test for leave to appeal.
[16]
The
above being said, I will briefly deal with some of the issues raised
by the first respondent. The first respondent took issue
with the
fact that I simply did not follow the judgment in
Baroque
Medical (Pty) Ltd v Medtronic Africa (Pty) Ltd and Another
[10]
(which involved the applicant as well). But the first respondent
remains unable to appreciate that
Baroque
is entirely distinguishable on the facts, and has failed to make out
any case in the application for leave to appeal that another
Court
could reasonably come to a different conclusion in this regard. The
first respondent also in effect ignores that the judgments
Medtronic
(Africa)
(Pty) Ltd v Kleynhans and Another
[11]
and
Medtronic
(Africa)
(Pty) Ltd v Van Wyk and Another
[12]
,
which also involved the applicant, are far more aligned to the case
in
casu
,
both in fact and on legal principle, and that the application of
these judgments supported the applicant’s case for enforcement
of the restraint. I remain unconvinced that the judgment in
Baroque
bestowed any prospects of success on appeal on the first respondent.
[17]
In this instance, it is the risk caused by
the first respondent’s employment with the second respondent
that is a critical
consideration. This is the kind of risk that a
restraint of trade covenant is designed to mitigate. The first
respondent remains
unable to answer this case of risk so
created, and for her to do what is in essence a detailed comparison
of job descriptions
cannot assist her to successfully contradict the
case of the to the applicant to mitigating risk to it. I remain
satisfied that
there was sufficient
nexus
between the first respondent’s positions at the applicant, both
historic and current, and her position at the second respondent,
to
satisfy the risk requirement to the extent of rendering the
enforcement of the restraint competent. Also on the risk issue,
it is
in my view now trite that the giving of undertakings not to violate
the restraint is not sufficient to eliminate risk, based
on the
reasons fully set out in my judgment. The first respondent remains
unable, in her application for leave to appeal, to contradict
any of
these considerations to the extent of establishing a reasonable
prospects of success on appeal.
[18]
The final issue I would like to address is
the issue of waiver. The difficulty is that the first respondent, who
had the onus to
do so, has simply failed to satisfy the requirements
of waiver. The reasons for my conclusion in this regard are dealt
with in
detail in my judgment. In her application for leave to
appeal, the first respondent simply makes a bald assertion that I
erred
in finding that the waiver was conditional. No reasoning has
been provided by the first respondent as to why another Court may
reasonably decide differently in this regard.
[19]
I thus conclude that the first respondent has
shown
no reasonable prospect that another Court would come to a different
conclusion, and she has no prospects of success on appeal.
The
application for leave to appeal falls to be dismissed.
[20]
This leaves only the issue of costs.
Exercising the wide discretion I have in terms of section 162 of the
LRA, I shall apply the
same reasoning as set out in my original
judgment, and make no order as to costs.
Order
[21]
In
the premises, I make the following order:
1.
The first respondent’s application
for leave to appeal is dismissed.
2.
There is no order as to costs.
_____________________
S
Snyman
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Fasken Attorneys
For
the First Respondent: Lee & McAdam Attorneys
[1]
Compare
Msunduzi
Municipality v Hoskins
(2017)
38 ILJ 582 (LAC) at paras 3 and 5.
[2]
(2012)
33 ILJ 2096 (LC) at paras 4 – 5.
[3]
See
Mziya
v Putco Ltd
(1999)
3 BLLR 103
(LAC) at para 9;
Moila
v Shai NO and Others
(2007) 28 ILJ 1028 (LAC) at para 34;
Universal
Product Network (Pty) Ltd v Mabaso and Others
(2006) 27 ILJ 991 (LAC) at para 20;
Colett
v Commission for Conciliation, Mediation and Arbitration and Others
(2014)
35
ILJ
1948 (LAC)
at para 38
;
Mgobhozi
v Naidoo NO and Others
(2006)
27
ILJ
786
(LAC)
at
para 34
[4]
(2011)
32 ILJ 2206 (LC)
at
para 27. See also
3G
Mobile (Pty) Limited v Raphela NO and Others
[2014]
JOL 32479
(LC) at para 33.
[5]
(2017)
38 ILJ 430 (LC) at para 13. See also See
Tadyn
Trading CC t/a Tadyn Consulting Services v Steiner and Others
(2014)
35
ILJ
1672 (LC)
at
para
11
;
Butana
v SA Local Government Bargaining Council and Others
[2016]
JOL 36088
(LC) at paras 8-9;
Edcon
(Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration
and Others: In re Thulare and Others v Edcon (Pty) Ltd
(2016)
37
ILJ
434 (LC)
at
para
24
;
3G
Mobile (Pty) Ltd v Raphela NO and Others
[2014]
JOL 32479
(LC) at para 36.
[6]
(2015)
36
ILJ
2653 (LC)
at
para
9
.
[7]
See
Section
17(1)(a)
of the
Superior Courts Act 10 of 2013
;
Molefe
v MMARAWU and Others
[2017] ZALCJHB 337 (13 September 2017);
Mbawuli
v Commission for Conciliation, Meditation and Arbitration and Others
[2017] ZALCJHB 275 (1 August 2017);
Glencore
Operations South Africa (Pty) Ltd v NUM obo Maripane and Others
[2017] ZALCJHB 147 (11 May 2017).
[8]
[2017] JOL 37932
(LC) at para 7. See also
Seathlolo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
(2016)
37 ILJ 1485 (LC)
at
para 3.
[9]
[2016]
JOL 36940
(SCA) at paras 16 – 17.
[10]
[2013] ZAGPJHC 383 (13 December 2013).
[11]
(2016)
37 ILJ 1154 (LC).
[12]
(2016)
37 ILJ 1165 (LC).