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[2020] ZALCJHB 50
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Cosmo Gas & Welding Equipment (Pty) Ltd v Uys and Another (J286/19) [2020] ZALCJHB 50 (20 February 2020)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
J
286/19
In
the matter between:
COSMO GAS &
WELDING EQUIPMENT (PTY) LTD Applicant
and
JAcQUES
UYS 1
st
Respondent
LEGASY
PRODUCTS (PTY) LTD
T/A
LEGACY INDUSTRIAL
SUPPLIES 2
nd
Respondent
Heard
:
14
February 2020
Delivered
:
20 February 2020
Summary:
Return day – Contempt – requirements not met. Held: (1)
the order of 19 June 2019 is
discharged and the contempt application
is dismissed with no order as to costs.
JUDGMENT
MOSHOANA, J
Introduction
[1]
Today is the return day for the order made by Whitcher J on 19 June
2019
in terms of which, the first respondent was to show cause why he
should not be held in contempt of the order made on 1 March 2019
by
Van Niekerk J. The application is duly opposed by the first
respondent.
Background
facts
[2]
On 1 March 2019, an order was issued
interdicting and restraining the first respondent from divulging
information to and/or giving
advice to any of the applicant’s
customers or clients, or any person who, at the date of termination
of the first respondent’s
employment; is or was a
customer/client of the applicant with the sole purpose of enticing
such customers/clients to terminate
their association with the
applicant.
[3]
Further, he was interdicted from knowingly
soliciting customers or be in unlawful competition with the applicant
in relation to
any of its customers or clients. In addition, he was
interdicted from competing with the business of the applicant for a
period
of 12 months. Further to that, he was interdicted from
disclosing any of the applicant’s confidential information.
Also,
the first respondent was not to interfere or attempt to solicit
sole services from any industrial suppliers in any manner where
the
applicant’s business is concerned in an attempt to structure a
possible unlawful competition.
[4]
The order set out above was made following
a settlement of a contractual dispute between the parties. The
applicant alleged that
on 14 June 2019, the first respondent
contacted the applicant’s clients and attempted to solicit the
said clients through
quotes for services and products which the
applicant also provides. Five quotes were produced which were made to
BCS Holding Company
(Pty) Ltd. On all the quotes, the first
respondent is named as the sales representative of the second
respondent. One Audrey Pretorius
informed the applicant’s
accounts manager of this attempt to solicit business from the
applicant’s client. As a result,
the applicant approached this
Court and obtained an order on 1 March 2019. After the order was
obtained, it was discovered that
the first respondent issued further
quotes to Cullinan Diamond Mine (Pty) Ltd; Bosal SA and Pegasus
Products.
[5]
In response to the allegations, the first
respondent, firstly attempts to distance himself from the order on
the basis that he had
not instructed his erstwhile attorney to
negotiate a settlement. Secondly, he does not dispute having made the
quotes in question
but seeks to justify his actions one way or
another. Further to that he raised technical defenses to the
applicant’s case.
Evaluation
[6]
Ordinarily, where a party ignores the terms
of a court order, such a party is guilty of contempt. Therefore, the
question that then
follows is: Is the first respondent guilty of
contempt? This is the question I am turning to now. The requisites of
a contempt
order are (a) the existence of the order; (b) the order
must be duly served on, or brought to the notice of the contemnor;
(c)
there must be non-compliance with the order; and (d) the
non-compliance must be willful and
mala
fide
.
[7]
It
was held in
Pheko
v Ekurhuleni Municipality (No 2)
[1]
that while the courts do not countenance disobedience of judicial
authority, it needs to be stressed that contempt of Court does
not
consist of mere disobedience of a court order, but of the
contumacious disrespect of judicial authority. All what is required
is evidence that the contemnor is obstinately disobedient or
rebellious. It ought to be shown that on the balance of probabilities
the non-compliance was born out of willfulness and
mala
fide
.
[8]
As
to the standard of proof, the applicant before me is seeking an
imposition of a fine or incarceration and as such, it must prove
beyond reasonable doubt that the first respondent is guilty of
contempt.
[2]
[9]
With regard to the service or bringing of
the order to the attention of the first respondent, the applicant
alleges that because
the first respondent was legally represented it
ought to follow that he enjoyed knowledge of the Court order and its
contents.
The first respondent’s version is that the attorney
was not mandated and did not act on his instruction. There is no
replying
affidavit. Thus, these allegations by the first respondent
must be admitted on the application of the
Plascon-Evans
rule. Besides, the applicant did not allege or prove that the Court
order was personally served on the first respondent. This poses
a
serious difficulty on the applicant’s case. It is not
sufficient, to simply allege that because the first respondent was
legally represented on the day of the agreed order he thus gained
knowledge of the order. Nowhere in the papers does the applicant
allege that the first respondent was present during the settlement
negotiations which culminated into an agreed order. Let alone
being
present when the order was made and read out by this Court.
[10]
On
the WhatsApp communications revealed between the first respondent and
the legal representative, it is apparent that the first
respondent
was not in court and did not understand what was proposed by the
legal representative. Other than reference to emailing
the unsigned
agreement, which could not be understood
[3]
,
there is no evidence that the Court order was made available to the
first respondent and most importantly explained to him. In
the
absence of evidence of personal service of the order, it becomes
difficult to assess whether the non-compliance was
mala
fide
and willful.
[11]
For all the reasons set out above, I am
unable to confirm the order of Whitcher J.
[12]
In the results, the following order is made:
Order
1 The
contempt application is dismissed with no order as to costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
.
Appearances:
For the
Applicant: Advocate C.
Goosen.
Instructed
by: Serfontein
Viljoen and Swart Attorneys,
Pretoria.
For
the First Respondent: Mr H Bouwer of Cavanagh and Richards
Incorporated, Johannesburg.
[1]
2015 (5) SA 600 (CC).
[2]
See
Matjhabeng
Local Municipality v Eskom Holdings Ltd and others
2017 (11) BCLR 1408
(CC) at para 67.
[3]
2019/03/01,
2:57 pm – Barend Uys: Ja maar ek
verstaan nie regtig wat beriek is nie.
[from the WhatsApp discussions]