THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No: 2025-177980
In the matter between:
VALUE LOGISTICS PERSONNEL SERVICES (PTY) LTD First Applicant
VALUE LOGISTICS (PTY) LTD Second Applicant
and
WILLIAM JOHANNES KILLIAN First Respondent
EPX COURIERS (PTY) LTD Second Respondent
Heard: 7 November 2025
Supplementary Heads: 12 November 2025
Delivered: 21 November 2025
Labour Court – Jurisdiction – Restraint of trade – Third-party or non- employer entity –
enforcement of restraint undert aking by third-party or non-employer company – Labour
Court lacks jurisdiction.
2
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email and/or by uploading it on CaseLines. The date of hand-
down is deemed to be 21 November 2025.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
MAKHURA, J
Introduction
[1] The applicants approached this Court in terms of rule 39 1 for the relief in the
following terms:
‘2. that the First Respondent be interdicted and restrained for a period of
twenty-four months from the date on which the First Respondent's
employment with the Applicant terminated on 31 August 2025, and in the
territory of the Republic of South Africa from:
2.1. being employed by, having an interest in or being engaged by the
Second Respondent;
2.2. soliciting or endeavouring to entice away from the Applicants or
any Group Company, the business of a Restricted Customer with
a view to provi ding services to that Restricted Customer in
competition with any Restricted Business, as referred to and
defined in the Employment Agreement dated 2 August 2017 ( “the
Employment Agreement”);
2.3. providing services, becoming employed by or otherwise having
any business dealings with any Restricted Customer (as defined
in the Employment Agreement);
1 Rules Regulating the Conduct of Proceedings of the Labour Court, GN4775a in GG 50608, 3 May 2024.
3
2.4 having an interest in or being engaged in any business concern
which is in competition with any Restricted Business;
3. interdicting and restraining the First Respondent from disclosing to any
third party any confidential information and/or trade secrets acquired by
him by virtue of his employment with the Applicants which would be of
assistance to such third party to enable it to compete against the
Applicant and which would not otherwise be known by such third party.’
The parties and employment relationship
[2] The first and second a pplicants are described as private companies duly
incorporated in accordance with the laws of the Republic of South Africa, with the
same registered address . They are further described as subsidiaries of the
holding company named Value Group (Pty) Ltd (Value Group). Strydom alleged
that:
‘Although Mr Killian concluded his Employment Agreement with Value Personnel,
in effect throughout his employment he worked for Value Logistics. Value
Logistics has accepted the benefits in terms of the restraint claus e of the
Employment Agreement, alternatively, hereby accepts the benefits in terms of
the restraint clause of the Employment Agreement. To the extent, therefore, that I
refer below to the first respondent being “ in the employ ” of or “employed by ”
Value Logistics, that is in effect short hand to reflect that the entity for whom the
First Respondent performed his daily duties was Value Logistics, albeit that his
contract was signed with Value Personnel.
The business whose proprietary interests are sought to be protected in this
application is Value Logistics...’
[3] The deponent to the affidavits on behalf of the applicants is Jessica Lynne
Strydom (Strydom), who describes herself as the Group Legal Advisor. The
resolution authorising her to launch these proceedings was signed by the
directors of Value Logistics (Pty) Ltd (Value Logistics), the second applicant. The
4
first applicant, Value Logistics Personnel Services (Pty) Ltd , the first applicant,
will be referred to as Value Personnel in this judgment.
[4] Value Personnel and Value Logistics are subsidiaries of Value Group. Value
Group has a 100% shareholding in each of these two applicants. Strydom states
that:
‘Value Personnel employs the personnel, and all business activities (except Key
Distributors) are undertaken by Value Logistics, commonly known in the industry
as Value Logistics.’
[5] Per Strydom’s allegation above, the first respondent (Killian) was employed by
Value Personnel until 31 August 2025. He has now taken up employment with
EPX Couriers (Pty) Ltd (EPX).
[6] Killian was employed by Value Personnel with effect from 1 August 2017. The
terms and conditions regulating the employment contract between Killian and
Value Personnel are set out in the letter of appointment signed by Killian on 2
August 2017. The letter of appointment also constitutes and contains the terms
and conditions of the contract of employment. Killian was employed by Value
Personnel as an “IT Support Technician or in such other capacity of a like status
as the Company may require from time to time” . In terms of the contract of
employment, the “company” refers to Value Personnel. At the date of
appointment, Killian was required to report to a specific supervisor or to any other
manager appointed to supervise him from time to time. The letter also regulated
hours of work, duties and responsibilities, including a requirement to “comply with
all lawful and reasonable instructions” given to him by the Value Personnel ,
remuneration, bonus, membership to provident fund and medical aid, retirement
and leave.
[7] Strydom explains Killian’s employment as follows:
‘Mr Killian was employed by Value Personnel during or about 1 August 2017, in
effect to work for Value Logistics as explained above…
5
As mentioned above, whilst Mr Killian was employed by Value Personnel , his
services… were rendered on behalf of Value Logistics and the Value Group.’
(Emphasis added)
[8] Killian was subsequently transferred to the role of Applications Consultant and
was promoted to the position of Intermediate Structured Query Language (SQL)
Developer with effect from 1 October 2024. He signed a job profile that set out
his duties under the Value Group letterhead titled “Value Group Job Profile” on
28 October 2024. He held this role until his resignation with effect from 31 August
2025.
The restraint undertakings
[9] The contract of employment incorporates a restraint of trade clause. In terms of
clause 16.1, Killian agree d that in his employment, he would have access to
confidential information of Value Personnel and that he may develop relations
with its customers. Clause 16. 2 defines “Group Company” to mean “any
subsidiary of the Value Group Limited and/or any subsidiary of Value Logistics
Limited”. Clause 16.3 provides that:
‘16.3 During your employment and for a period of 24 (twenty -four) months after
the termination of your employment for any reason, you will not:
16.3.1 solicit or endeavour to entice away from the Company or any
Group Company the business of a Restricted Customer with a
view to providing services to that Restricted Customer in
competition with any Restricted Business;
16.3.2 provide services to, become employed by or otherwise have any
business dealings with any Restricted Customer;
16.3. have an interest in or be engaged in any business concern which
is in competition with any Restricted Business.’
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[10] In addition to the contract of employment with the restraint clause, Killian signed
annexure M, titled Confidentiality Policy. It is the above undertakings that the
applicants now seek to enforce.
The Court’s directives
[11] Having considered the papers in preparation for the hearing, at approximately
15h43 on 6 November 2025, I directed the parties mero motu to prepare and
address the Court at the hearing on 7 November 2025 on “[w]hether this Court
has jurisdiction to entertain the application insofar as it is brought by the second
applicant against the first respondent, in the absence of an employment contract
between the two parties?” . Indeed, per the Court’s directive, the parties were
prepared to address the Court on the issue.
[12] At the commencement of the proceedings, I brought to the parties ’ attention a
judgment of this Court in Canize Trading (Pty) Ltd and Another v Theron and
Others
2 (Canize), which I penned over six months ago and published on 22 April
2025. The parties were able to consider the judgment and address the Court.
However, at the end of hearing, I requested the parties, considering the directive
having been issued on such an extremely short notice and the Canize judgment
which was only brought to the parties’ attention at the hearing, to file written
supplementary heads of argument. The parties have complied with the directive,
and I am grateful for their concise and incisive arguments on the issue.
[13] The parties have agreed to separate this jurisdictional issue from the merits
because the applicants intended to file a further affidavit. Accordingly, t his
judgment addresses only the jurisdictional issue.
The Court’s jurisdiction insofar as it relates Value Logistics’ application
[14] The applicants rely on f ive arguments. First, the y rely on section 77(3) of the
Basic Conditions of Employment Act 3 (BCEA). They argue that the matter
2 [2025] ZALCJHB 183.
3 Act 75 of 1997.
7
between Value Logistics and Killian arises from an employment contract and
refer the Court to various provisions of the contract of employment between
Value Personnel and Killian. Second, the applicants rely on the transfer provision
in the contract of employment between Value Personnel and Killian to argue that
Killian acknowledged his employment with Value Logistics. Third, the applicants
argue that the agreement between Value Personnel and Killian was concluded
for the benefit of Value Logistics and that Value Logistics is entitled to enforce
the contract in terms of the stipulatio alteri principle. The fourth argument is
based on the contractual terms between Value Personnel and Killian. The
applicants submit that because Killian undertook not to act contrary to the Group
Company, which includes Value Logistics, there is nothing jurisdictionally
objectionable in Value Personnel holding Killian to the promise. The final
argument sought to distinguish this matter from Canize.
The section 77(3) of the BCEA
[15] The applicants submit that in terms of his contract of employment, Killian
accepted the responsibility to perform duties associated with his position or any
other rel ated duties, that Group Company is defined in the contract as any
subsidiary of the Value Group Ltd and/or any subsidiary of Value Logistics, that
“restricted business ” contained in the restraint clause is the business of Value
Personnel or any Group Company at the time of the termination of his
employment, that Killian undertook not t o have interest in or be engaged in any
business concern which is in competition with any restricted business and
accepted that the restraint undertaking was reasonable to protect Value
Personnel and any Group Com pany’s proprietary interests. The applicants
further relied on the transfer clause in terms of which Killian agreed that he could
be transferred to any company within the Value Group as required by the
be transferred to any company within the Value Group as required by the
business and based on the operational requirements of Value Logistics or Value
Group.
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[16] In addition, the applicants relied on the fact that Value Personnel’s signature on
the contract of employment stated that it was signed for and on behalf of Valu e
Personnel and Value Group. The applicants t hen relied on the provisions of a
confidentiality policy which was signed and annexed to the contract of
employment, which refers to Value Personnel, Value Logistics and Value Group
and/or its subsidiaries. The confidentiality policy provides that:
‘The prosperity and reputation of Value Group Limited, its subsidiaries ( “the
Company”) and of its employees depends to an extent on their ability to achieve
and maintain high standards of confidentiality.
The Company respects the confidentiality of information that is confidential to
competitors and wishes its employees to do likewise.
It is expected that all employees of the Company will maintain the highest
standards of confi dentiality. However, the Company recognises that it is
necessary to set out a policy regarding confidenti ality and to identify what
conduct is expected of all of its employees so that no employee may plead
ignorance in this regard. Additionally, there may be grey areas where employees
are unsure of what actions would or would not be a breach of confidentiality and
this policy is intended to remedy that problem.’
[17] Finally, the applicants rely on Killian ’s confirmation on the signature page. The
confidentiality policy stated that:
‘I confirm that I am employed by ______ (company name) and agree to be bound
by the confidentiality policy of Value Group Ltd and/or any of its subsidiaries.’
[18] On the space provided, Killian wrote that he was employed by Value Logistics.
For this reason, the applicants conclude that “when one considers the
employment agreement and the provisions contained therein, it is submitted that
this Court does have jurisdiction in terms of Section 77(3) of the BCEA both in
terms of the First Applicant, as well as the Second Applicant”.
9
[19] In his answering affidavit, Killian confirmed his employment relationshi p with
Value Personnel and that:
‘At no stage prior to the termination of my employment did I enter into any ‘other’
employment agreement, with any ‘other’ entity within the Holding Company,
being the Value Group (Pty) Ltd.
… the applicants were required to plead the factual and legal basis upon which
they seek to ‘ protect’ the alleged propriety interests of the second applicant,
through a written restraint of trade clause, not concluded between the second
applicant and I, but rather, concluded between the first applicant and me.’
[20] This Court is a creature of statute, and its jurisdiction is specifically
circumscribed. It therefore does not enjoy general jurisdiction. Section 157 of the
Labour Relations Act4 (LRA) provides that:
‘(1) Subject to the Constitution and section 173, and except where this Act
provides otherwise, the Labour Court has exclusive jurisdiction in respect
of all matters that elsewhere in terms of this Act or in terms of any other
law are to be determined by the Labour Court.
(2) The Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened violation of any fundamental right
entrenched in Chapter 2 of the Constitution of the Republic of South
Africa, 1996, and arising from –
(a) employment and from labour relations…’
[21] For contractual claims such as the present, this Court’s jurisdiction is derived
from section 77 of the Basic Conditions of Employment Act 5 (BCEA). Section
77(3) provides that:
4 Act 66 of 1995, as amended.
5 Act 75 of 1997.
10
‘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.’
[22] In Passenger Rail Agency of South Africa & others v Ngoye & others 6, the
Labour Appeal Court (LAC) explained the jurisdiction of this Court as follows:
‘The Labour Court acquires its jurisdiction from s 157(1), which authorises it to
deal with matters emanating from the LRA, except where the LRA provides
otherwise. One such instance is where jurisdiction is assigned to the CCMA.
Furthermore, the Labour Court is afforded jurisdiction in terms of s 77(1) read
with s 77(3) of the Basic Conditions of Employment Act (BCEA). The last-
mentioned sections authorise the Labour Court to hear and determine any matter
concerning a contract of employment, irrespective of whether a basic condition of
employment constitutes a term of the contract.’
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[23] The contract of employment was concluded between Value Personnel and
Killian. The Court cannot simply extend its jurisdictional scope and deal with
matters where there is no employment contract between the parties simply
because there is reference to the matter concerning the contract of employment
and that the contract refers to a third- party company or entity . The phrase
concerning a contract of employment must be read to mean that it is a matter
that concerns a contract of employment entered between the parties. To read it
otherwise would lead to an absurdity and a contradiction of this Court’s mandate.
[24] For the above reasons, Value Logistics has no standing in this Court against
Killian and in the absence of the employment relationship, this Court lacks
jurisdiction to entertain its claim.
Clause 19 of the employment contract and the “transfer”
[25] Clause 19 of the contract of employment states that:
6 [2024] ZALAC 18; (2024) 45 ILJ 1228 (LAC).
7 Ibid at para 5.
11
‘19.1 By your signature to this letter of appointment you:
19.1.1 accept and agree to transfer between contracts or positions as
required by the business from time to time. The aforesaid includes
that employees may be required to be transferred to work on
different premises and at different locations;
19.1.2 understand and accept that you could be transferred to any
division, department or section within the Company should the
operational requirements of the Company necessitate it;
19.1.3 understand and accept that you could be transferred to any
company within the Value Group, should the operational
requirements of the Group or a Group Company necessitate it.’
[26] The applicants submit that in terms of the above provision, there was no need for
Killian to agree, and possibly to be consulted, for the transfer of his contract to be
effective. In essence, the argument is that Value Personnel and Value Logistics
could unilaterally decide to transfer Killian’s contract and not even communicate
this decision to him . Killian need not be consulted nor agree because he had
already agreed to the transfer in advance. For this submission, the applicants
relied on the judgment of the Full Court in Value Logistics (Pty) Limited and
Another v Oosthuizen and Another
8 (Oosthuizen). Mr Whitcutt, for the applicants,
quoted in detail from the judgment 9 and summarised the Court’s decision as
follows:
’17.1. The Court accepted that Value Logistics had accepted the benefits of the
restraint of trade provision as contained in the employment agreement;
17.2. The Court accepted that the restraint provision applied to the Value
Group as a whole including its subsidiaries;
8 [2022] ZAGPJHC 626.
9 The supplementary heads of argument quoted paras 12 – 17, 26 – 30, 42 and 47 of the judgment.
12
17.3. The Court accepted that the employee therein had been transferred
between subsidiaries and that there was no requirement for the employer
to have pleaded this in their application to enforce the restraint provision.’
[27] Oosthuizen does not advance the applicants’ case insofar as the issue of
jurisdiction is concerned. The High Court, with its general jurisdiction, did not
have to concern itself about the issue. Further, the employee in Oosthuizen did
not dispute an employment contract with Value Logistics, in contrast with the
facts of this case . The employee in Oosthuizen had accepted that he was
employed by Value Logistics, albeit on a series of verbal contract s, and that his
original employment with Value Personnel fell away when he moved up the
ranks. Even if the employee had disputed the employment contract, that would
not have ousted the jurisdiction of the High Court.
[28] In the proceedings instituted in this Court where there is no general jurisdiction,
the applicants were enjoined to plead their case with specific reference to the
provision upon which Value Logistics has legal standing in this Court to enforce
the right created between Value Personnel and Killian. All that is before the Court
in terms of evidence is an unequivocal acknowledgement that Killian was
employed by Value Personnel, though rendered services at Value Logistics, and
the allegation that Value Logisti cs accepted or accepts the benefits of the
restraint clause contained in the contract between Killian and Value Personnel.
[29] The applicants seek to hold Killian to certain allegations in his answering affidavit
where he acknowledged that his eight -year tenur e was “with” Value Logistics ,
that he resigned from the “applicants” , and his continued reference to the
applicants to conclude that his contract was transferred to Value Logistics . They
submit that Killian never disputed that he was employed by Value Logistics. The
submit that Killian never disputed that he was employed by Value Logistics. The
applicants, whilst stating that the contract of employment is between Killian and
Value Personnel, did not plead when the transfer took place. I asked Mr Whitcutt
this question during the hearing, and his answer was unconvincing. He said that
the transfer took place on the date of signature of the contract.
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[30] There was no allegation that Killian was employed by Value Logistics for Killian
to admit or dispute. The material common cause fact is that Killian was employed
by Value Personnel and placed at Value Logistics. For eight years, Killian
rendered his services at Value Logistics. Killian’s contract of employment was
never transferred. That is not the case borne out in the founding affidavit and to
hold otherwise would be to contradict the applicants’ own case, which is that
Value Personnel employed Killian and placed him at Value Logistics , that Value
Logistics “accepted the benefits in terms of the restraint clause” or “hereby
accepts the benefits” and that the reference in the papers to Killian being
employed by or in the employ of Value Logistics “is in effect short hand to reflect
that the entity for whom [Killian] performed his duties was Value Logistics, albeit
that his contract was signed with Value Personnel”.
[31] In their supplementary heads of arguments, the applicants put forward a further
version regarding the employment contract. They submit that:
‘When one considers the First Respondent's acknowledgement of having been
employed by the Second Applicant as already addressed above, as well as the
First Respondent's list of duties and responsibilities at JLS8 which clearly show
that same were to be rendered to the Value Group and not only to the First
Applicant, it cannot be gainsaid that the First Respondent was employed by the
First and Second Applicant. There is nothing, in law, that precludes the
recognition of this reality.’ (Emphasis added)
[32] Killian had expressly pleaded in his answering affidavit that Value Personnel was
his employer and that he did not enter into any other employment contract with
another entity within the Value Group. Therefore, the argument that he was
transferred on the date of signature of the contract or any date thereafter was
rejected upfront.
[33] The applicants’ argument is unsustainable. The argument developed from Killian
[33] The applicants’ argument is unsustainable. The argument developed from Killian
being employed by Value Personnel with Value Logistics benefiting from the
restraint clause in the founding affidavit, to the contract of employment being
14
transferred from Value Personnel to Value Logistics on an uncertain date but
probably on the date of signature of the contract of employment and Killian being
employed by Value Logistics, and to Value Personnel and Value Logistics both
being employers of Killian in the supplementary heads of argument . Only one
version could be true . The true version, borne out of the applicants’ founding
affidavit, is that until 31 August 2025, Killian was an employee of Value
Personnel, and not an employee of Value Logistics.
[34] For the above reasons, I conclude that there was no transfer of the contract of
employment from Value Personnel to Value Logistics.
The stipulatio alteri
[35] In Crookes, NO and Another v Watson and Another
10, the Appellate Division
(AD) (as it was then called), per Schreiner JA in a dissenting judgment, sai d the
following about the stipulatio alteri:
‘But in the legal sense, which alone is here relevant, what is not very
appropriately styled a contract for the benefit of a third person is not simply a
contract designed to benefit a third person; it is a contract between two persons
that is designed to enable a third person to come in as a party to a contract with
one of the other two... the typical contract for the benefit of a third person is one
where A and B make a contract in order that C may be enabled, by notifying A, to
become a party to a contract between himself and A…’11 (Emphasis added)
[36] In Total South Africa (Pty) Ltd v Bekker NO 12 (Toyota South Africa), the AD held
that:
‘The second argument advanced was that clauses 1 and 2 of the agreement
constituted a stipulation for the benefit of Van Vuuren (a stipulatio alteri), and that
he became a party to the agreement by accepting the benefit offered. As was
pointed out by Schreiner JA in Crookes NO and Another v Watson and Others
10 1956 (1) SA 277 (A).
11 Ibid at 291B-F; see also Loggenberg and Others v Maree [2018] ZASCA 24 at para 22.
12 1992 (1) SA 617 (A).
15
1956 (1) SA 277 (A) at 291B-C, ‘a contract for the benefit of a third person is not
simply a contract designed to benefit a third person; it is a contract between two
persons that is designed to enable a third person to come in as a party to a
contract with one of the other two’ . The mere conferring of a benefit is therefore
not enough; what is required is an intention on the part of the parties to a contract
that a third person can, by adopting the benefit, become a party to the contract.
(Joel Melamed and Hurwitz v Cleveland Estates (Pty) Ltd; Joel Melamed and
Hurwitz v Vorner Investments (Pty) Ltd 1984 (3) SA 155 (A) at 172D -F.) The
agreement itself does not disclose any intention on the part of Total or Fourie that
Van Vuuren could become a party thereto. There is no express wording to such
effect, nor is there any provision in the agreement for the acceptance by Van
Vuuren of any benefit thereunder . Furthermore, the terms of the agreement
(leaving aside the possible effect of clause 8.3) do not support a necessary
implication to that effect . Total and Fourie would have been at liberty to cancel
the agreement at any time without reference to Van Vuuren. Apart from these
considerations, Van Vuuren does not specifically allege in either his founding or
his replying affidavit (as one would have expected him to do) that the parties to
the agreement intended a stipulation in his favour . But even if there was an
intention to benefit Van Vuuren, there is no evidence, direct or circumstantial,
that Van Vuuren ever accepted such benefit at a time when it was open to him to
do so. He himself does not allege that he accepted any such benefit, or that a
contract came into being between himself and Total. It follows that Van Vuuren
has not made out a case for a stipulatio alteri in his favour, the benefit of which
he accepted.’13 (Emphasis added)
[37] The Toyota South Africa judgment above has set out t he requirements for a
[37] The Toyota South Africa judgment above has set out t he requirements for a
stipulatio alteri. The parties’ intention must be clear from the contract that they
are contracting for the benefit of a specific third party ; the third party must accept
the benefit offered by the contracting parties, either expressly or by implication;
and the third party obtains, immediately or in future, the right to enforce the
contract. In casu, there is no issue about the validity and binding nature of the
contract between Value Personnel and Killian. Killian has however disputed that
13 Ibid at 625D-J.
16
the contract meets the requirements for stipulatio. He submitted that there was
no such intention to contract for the benefit of Value Logistics.
[38] I am aware that this issue borders on the merits of the restraint application. I
therefore do not intend to pronounce on whether the applicants have made out a
case for stipulatio or not. Nevertherless, for the purpose of this judgment , even if
the stipulatio alteri is established, that does not amount to a transfer of the
contract of employment from Value Personnel to Value Logistics . Value
Personnel, under the Value Group, elected, for the purpose known to it and
possibly the Value Group, to structure the employment arrangement as it did,
and Killian accepted the terms thereof. A finding that Killian was employed by
Value Logistics would amount to an unnecessary and irregular interference in the
rights and freedom of the parties to contract.
[39] On this basis alone, the Court’s jurisdiction remains dis engaged. On the facts
before this Court, Killian, though rendering services at Value Logistics, remained
an employee of Value Logistics.
[40] Even if it is found that a benefit was created in favour of and accepted by Value
Logistics, that benefit on the applicants’ pleaded case is limited to the restraint of
clause, not the whole contract of employment. The working days and hours,
payment of remuneration and bonus, leave, pension, retirement, and medical aid,
were retained by Value Personnel and therefore Killian remained an employee of
Value Personnel.
The terms of the employment agreement as they apply to Value Personnel
[41] The applicants submit that the Court has jurisdiction insofar as the application is
brought by Value Personnel against Killian. For this reason, the applicants submit
that there is nothing objectionable in Value Personnel enforcing the terms of the
restraint undertaking.
[42] The applicants are correct. Whether Value Personnel has made out a case in its
[42] The applicants are correct. Whether Value Personnel has made out a case in its
papers to enforce the restraint undertaking made in its favour (if any) is a
17
question to be determined at a later stage when the merits of the application are
adjudicated, where Value Personnel would have to demonstrate its protectable
proprietary interest. Likewise, if Value Personnel has no protectable proprietary
interest, whether it can enforce the restraint undertaking in favour of Value
Logistics is an issue that relates to the merits of the application. What Value
Logistics cannot do is to assume the role of Value Personnel as an employer and
approach this Court to enforce the contract of employment.
Canize distinguished?
[43] The applicants submit that Canize is distinguishable because , unlike in the
present case, the restraint clause was not incorporated in the contract of
employment, and the employees entered into a separate agreement with the
third-party entity, and the applicants in this case are subsidiaries of a holding
entity.
[44] It is not accurate that the restraint clause in Canize was not incor porated in the
contract of employment. Three of the four employees’ restraint undertakings
were incorporated in their contract of employment, whilst only one employee had
separate restraint undertakings with the third- party entity. Regardless, the
principle enunciated in Canize is that this Court has no business involving itself in
the parties’ transactions or issues , for as long as those parties are not an
employer-employee relationship.
[45] The applicants in this case are two separate legal entities, as it was the case in
Canize. The fact that the applicants are both subsidiaries of a holding entit y does
not change their status as separate legal entities such that one entity can enforce
the rights of the other in this Court . Accordingly, th is case is on all fours with
Canize.
Conclusion
[46] For the reasons set out above, this Court has no jurisdiction over the second
applicant’s application against Killian. The Court has jurisdiction over the first
18
applicant’s application. The first applicant is free to re- enrol the matter to be
adjudicated on the merits.
[47] The parties have agreed that a losing party must pay the costs. I have no reason
to deviate from the parties’ submissions in this regard.
[48] In the premises, the following order is made:
Order
1. This Court lacks jurisdiction to entertain the application insofar as it is
brought by the second applicant.
2. The application, insofar as it relates to the second applicant, is dismissed
for lack of jurisdiction.
3. The second applicant is ordered to pay the costs.
_____________________
M. Makhura
Judge of the Labour Court of South Africa
Appearances:
For the Applicants: Mr C. Whitcutt SC (with Ms R. Adams)
Instructed by: Ridgway Merry & Weldhagen Attorneys
For the 1st Respondent: Mr C. Goosen
Instructed by: Serfontein Viljoen and Swart Attorneys