About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 218
|
|
Megafreight Services (Pty) Ltd Bezuidenhout and Another (J1591/19) [2019] ZALCJHB 218 (28 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: J1591/19
In the matter between:
MEGAFREIGHT
SERVICES (PTY) LTD
Applicant
and
LYNNETTE
BEZUIDENHOUT
First
Respondent
HENEWAYS FREIGHT
SERVICES Second
Respondent
Heard: 16 August 2019
Judgment
delivered: 28 August 2019
JUDGMENT
VAN NIEKERK J
[1]
This is an application, brought as a matter of urgency, to enforce
restraint and confidentiality
undertakings given by the first
respondent (the employee) in favour of the applicant in August 2018,
as part of her contract of
employment. The employee resigned on 3
July 2019. It is not disputed that the employee has been employed by
the second respondent,
nor is it disputed that the second respondent
is a competitor of the applicant.
[2]
The factual background is not in dispute. The restraint undertakings
given by the
employee extend to a restraint of trade, the
solicitation of employees and clients and confidentiality.
[3]
The employee raises two defences to the applicant’s claim. The
first defence
is one based on the
exceptio non adempleti
contractus
. The employee contends that the applicant is in
material breach of the contract of employment in a number of respects
and on the
basis of reciprocity of obligation, she is not obliged to
abide by the restraint. The second defence is that the applicant has
no proprietary interest that warrants protection by way of the
enforcement of the restraint undertakings.
[4]
In
Universal Storage Systems (Pty) Ltd v Crafford and others
2001
(4) SA 249
(W), a decision of the full bench, the court said the
following:
[8]
The
first respondent raised the
exceptio
non adimpleti contractus
as
a defence to the relief sought on the second restraint and referred
to
International
Executive Communications Ltd t/a Institute for International Research
v Turnley
and
Another
1996
(3) SA 1043 (W)
at
1047F - I where the following was said:
'So
far as final relief is concerned, the applicant's performance of its
obligation (payment of a percentage of its net profit)
is obviously
reciprocal to the first respondent's obligation to abide by the
restraint after leaving the employ of the applicant,
and would
have had to have been performed first. The
onus
of
proving that there was performance of that obligation or that such
performance was excused, is on the applicant:
BK
Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk
1979
(1) SA 391
(A)
at
491H; and
''Solank
as iets nog oorbly wat gepresteer moet word, kan die eksepsie dat
vervulling nie gevolg het nie, teen beide die eiser self
en sy
erfgenaam geopper word - selfs as die kleinste deel van die kontrak
nie vervul is nie of die nie-vervulling slegs
op
accidentalia
betrekking
het.''
The court held that where
in a covenant in restraint of trade certain consideration has been
promised to the party restrained (the
respondent), the obligation to
abide by the restraint is reciprocal to the obligation of the party
in whose favour the restraint
operates (the applicant) to render the
promised consideration, and the latter obligation has to be performed
first. As long as
something remains which has to be performed by the
applicant, the respondent may raise the
exceptio non adempleti
contractus
as a defence to any attempt by the applicant to
enforce the restraint.
[5]
Annexure B to the contract of employment sets out the applicant’s
policy regarding
sales targets and commission. Clause 8.1 of the
contract of employment makes provision for the employee’s
remuneration, and
the prospect of earning sales commission in
relation to sales targets. The obligation on the applicant to pay
commission earned
in terms of the policy is clearly reciprocal to
obligations that the employee assumed in terms of the contract,
including the restraint
undertakings. In essence, annexure B provides
that commission quarters are January to March, April to June, July to
September and
October to December. Payments for any quarter are made
in the following month’s pay run. The policy provides ‘Should
the employee resign from the company, any commission shall cease from
that date although, any payment due before this date shall
be paid.’
[6]
As I have indicated, it is not disputed that the employee was
employed by the applicant
until 3 July 2019. In other words, the
employee was employed by the applicant and rendered services to the
applicant for the quarter
April-June 2019. The applicant does not
dispute that the employee met her sales targets. In her answering
affidavit, the employee
contends that the applicant owes her R62
483.70 in commission for the quarter ending June 2019. The replying
affidavit contains
no more than a bare denial, with no explanation of
the basis on which commission is being withheld. The plain meaning of
the words
‘any commission shall cease from that date…’
is that the clause does not affect commissions that have been earned
or that have vested as at the date of resignation. Specifically, the
policy does not state that an employee will forfeit commission
earned
for any quarter if the employee resigns after the end of the quarter.
[7]
The applicant has failed to proffer any evidence or otherwise make
out a case why
it is entitled to withhold commission (and thus why it
is not in breach of the employment contract). In my view, the
exceptio
defence stands to be upheld. Since the applicant
seeks a final order, it is obliged to establish a clear right to the
relief it
seeks. For the above reasons, it has failed to do so, and
the application stands to be dismissed. In these circumstances, it is
not necessary for me to make any decision in relation to the further
breaches of contract alleged by the employee, or to consider
the
employee’s defence of an insufficient proprietary interest to
render the restraint undertakings enforceable.
[8]
Finally, in relation to costs, the court has a discretion in terms of
s 162 to make
an order for costs according to the requirements of the
law and fairness. The non-payment of the employee’s commission
was
raised in the first exchange of correspondence between the
parties’ attorneys. The applicant’s attorney ought to
have
been alerted then to the consequences of the breach of contract
that the employee alleged had been committed by the applicant. The
employee has succeeded in her opposition to the application, and I
see no reason to deny her the costs of the proceedings.
I make the following
order:
1.
The application is dismissed, with costs.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. L Pillay instructed by Wehncke Attorneys
For the respondent: Adv.
L Van der Merwe instructed by Minnie & Du Preez Inc.