Boss Scaffolding and Access Solutions v Erasmus and Others (J158/24) [2024] ZALCJHB 518 (3 July 2024)
The court found that the respondents failed to comply with the previous court order enforcing restraint of trade and confidentiality undertakings, necessitating the urgent contempt application. The first respondent only resigned after the contempt proceedings were initiated, and the third respondent actively avoided...
Source-derived case information.
- Citation
- [2024] ZALCJHB 518
- Parties
- Applicant: Boss Scaffolding and Access Solutions; Respondent: Natasha Erasmus; Respondent: Mpetho Scuffolding Projects (Pty) Ltd; Respondent: Mpendulo Eric Mngomezulu
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- J158/24
- Procedural Posture
- Urgent Application / Return Date on Rule Nisi; Contempt Application
- Outcome
- Rule nisi discharged; punitive costs order granted against first and second respondents.
- Judges
- M T M Phehane
- Legal Topics
- Restraint of Trade, Contempt of Court, Punitive Costs, Practice Manual Compliance
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boss Scaffolding and Access Solutions
Applicant
Natasha Erasmus
Respondent
Mpetho Scuffolding Projects (Pty) Ltd
Respondent
Mpendulo Eric Mngomezulu
Respondent
Procedural Posture
Urgent Application / Return Date on Rule Nisi; Contempt Application
Legal Issues
- 1 Whether the respondents are in contempt of the court order enforcing restraint of trade and confidentiality undertakings.
- 2 Whether the applicant is entitled to a punitive costs order against the first and second respondents.
- 3 Whether the respondents complied with the court order prior to the contempt application.
Ratio Decidendi
The court found that the respondents failed to comply with the previous court order enforcing restraint of trade and confidentiality undertakings, necessitating the urgent contempt application. The first respondent only resigned after the contempt proceedings were initiated, and the third respondent actively avoided personal service. The application was unopposed, and the respondents' conduct constituted a serious affront to the authority of the court. The applicant was entitled to a punitive costs order, excluding the costs of 26 June 2024, as the application would not have been necessary had the respondents complied with the original order.
Court Disposition
Rule nisi discharged; punitive costs order granted against first and second respondents.
Orders
- The rule nisi issued on 26 June 2024 is discharged.
- The first and second respondents are to pay the applicant’s costs jointly and severally, the one paying and the other to be absolved, on a scale as between attorney and own client, which costs exclude the costs of 26 June 2024.
Full Case Text
Judgment text and source record
27 paragraphs
THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J158/24
In the matter between:
BOSS SCAFFOLDING AND ACCESS SOLUTIONS Applicant and NATASHA ERASMUS First Respondent MPETHO SCUFFOLDING PROJECTS (PTY) LTD Second Respondent MPENDULO ERIC MNGOMEZULU Third Respondent
Heard: 03 July 2024
Delivered: 03 July 2024
EX TEMPORE JUDGMENT
PHEHANE J
1. This is the return date in an unopposed urgent application to hold the respondents in contempt of the order of this Court per Mahalelo AJ dated 24 April 2024 enforcing restraint of trade and confidentiality undertakings by the first respondent in favour of the applicant (the Court order).
2. A rule nisi was issued on 26 June 2024, calling upon the respondents to show cause on the return date, why they should not be held in contempt of the Court order. The costs were reserved.
3. The rule nisi was served on the first respondent and personally on the second respondent. Personal service could not effected on the third respondent as the third respondent avoided personal service of the rule nisi.[1]
4. The first respondent subsequently resigned from the employ of the second respondent and in the circumstances, the applicant seeks a punitive costs order against the first and second respondents only.
5. Before launching this application, the applicant approached the respondents to obtain confirmation that they have complied with the Court order. When none was forthcoming, this application was launched on an urgent basis as the period of restraint ends in December 2024 and the harm to the applicant is ongoing. The respondents at the time, intimated bringing an application for leave to appeal the Court order. No such application was launched.
6. The application was not opposed when it was heard on 26 June 2024. It remains unopposed. However, as the application was not in compliance with the provisions of item 13 of the Practice Manual[2] relating to the launch of contempt of Court applications, a rule nisi was issued on 26 June 2024, affording the respondents the opportunity to make representations as to why they should not be found guilty of contempt of Court. Pursuant to the service of the rule nisi, on the eve of the return date, the first respondent resigned from the employ of the second respondent.
7. The first respondent deposed to an affidavit on 28 June 2024, in essence, explaining that she has since complied with the Court order. She does not, however, provide any detail about when she resigned. On her own version, this was after the contempt application was launched.
8. This application would not have been necessary had the respondents complied with the Court order. The applicant has therefore, incurred costs in seeking the respondents’ compliance with the Court order.
9. Contempt of Court is a serious affront to the authority of the Court. The conduct of the third respondent, the sole director of the second respondent in avoiding personal service of the rule nisi is a continuation of this affront. The conduct of the respondents warrants a punitive costs order.
10. In light of the afore-going, the applicant is entitled to its costs, excluding the costs of 26 June 2024.
11. In the premises the order is as follows:
Order:
1. The rule nisi issued on 26 June 2024 is discharged.
2. The first and second respondents are to pay the applicant’s costs jointly and severally, the one paying and the other to be absolved, on a scale as between attorney and own client, which costs exclude the costs of 26 June 2024.
M. T. M. Phehane
Judge of the Labour Court of South Africa
[1] See: Service affidavit by the applicant’s attorney of record dated 27 June 2024 and the annexures thereto.
[2] Practice Manual of the Labour Court of South Africa, effective 2 April 2013.