Consulting Occupational Hygienist CC v Mariska de Beer and Others (J200/23) [2023] ZALCJHB 77 (28 March 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: J 200/23

In the matter between:

CONSULTING OCCUPATIONAL HYGIENIST CC Applicant and MARISKA DE BEER (NEE SWANEPOEL) First Respondent GERT HENDRIK DE BEER Second Respondent KOERT NICOLAAS VAN DER WALT Third Respondent M.D.K. CORPORATION (PTY) LTD Fourth Respondent

Heard: 2 March 2023

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 28 March 2023

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] In this opposed application, the applicant seeks urgent final relief to enforce certain restraint of trade undertakings made in its favour by the first – third respondents (respondents). It seeks to interdict and restrain the respondents from engaging directly or indirectly in any capacity in the area of occupational hygiene for a period of 18 months; from soliciting, canvassing and enticing any of the applicant’s clients; from disclosing any confidential information of the applicant to an unauthorised party; and to return/destroy all forms of confidential information and trade secrets belonging to the applicant.

Background:

[2] The applicant is a closed corporation that was registered in 2004. It has its presence in all the provinces in the Republic and was approved by the Department of Employment and Labour as an Inspection Authority (AIA). It is accredited as an inspectorate body by the South African National Accredited Systems (SANAS) in the field of chemical stress factors, asbestos, noise, and the measurement of maintenance of control measures for occupational hygiene stressors. Its other core functions include the performance of risk assessments in accordance with the Occupational Health and Safety Act[1] and related regulations. These functions entail the use of calibrated equipment to measure inter alia air contaminants in the workplace, noise exposure, and illumination, after which a legal binding report is generated.

[3] The applicant avers that it operates in a highly competitive industry and had since its registration, formulated an operational database containing confidential commercial information including inter alia, the lists of service and product providers, client’s information and database, historical research, trade secrets, business know-how, supplies, guidelines, manuals, pricing models and costs.

[4] The applicant contends that the first – third respondents have over time during their employment with it, gained access to all that confidential information, acquired all the knowledge relevant to the occupational hygiene field and the knowledge of the industry, which they can pass on to the fourth respondent, its competitor in the same scope of business. It was for all the above protectable interests, that the applicant contends that it had required that all its employees including the first – third respondents, should sign restraint of trade and confidentiality agreements and/or undertakings.

The background and alleged breach of the restraint provisions:

[5] The first respondent commenced her employment with the applicant on 2 May 2018, and is also married to the second respondent. She was employed in the position of Laboratory Assistance but was also required to perform the functions of a Quality Officer. Her services were terminated by the applicant on 15 June 2022.

[6] The applicant’s case is that the first respondent entered into a contract with it in 2018 as required by SANAS, and that she had since deleted a signed copy of that contract from its system The applicant’s case was that out of all its employees’ contracts on its system, it was only the first respondent’s copy that was missing. In these proceedings, the applicant had placed reliance on an unsigned copy of the contract which purported to be that of the first respondent. The applicant held the view that only the first respondent could have deleted the copy of the contract, and this was done prior to the termination of her services. Furthermore, the applicant contends that the first respondent having been allocated administrative functions was exposed

to and was privy to confidential information such as customer relations and information, quality system, and pricing structures.

[7] The first respondent had denied the existence of the contract of employment containing the restraint provisions, and that contended that there was no merit in the suggestion that she was responsible for deleting her copy of the original signed contract from the applicant’s system. She contended that all that was in place was an oral agreement for her to perform administrative duties, and thereafter tasked to be a laboratory assistant.

[8] The second respondent commenced his employment with the applicant in January 2016 in the position of Occupational Hygiene Assistant. He resigned from the applicant’s employ on 13 June 2022. It was conceded that the second respondent is a director of the fourth respondent. He had however denied that he had gained access to the applicant’s confidential information either through his spouse or through his duties whilst employed by the applicant. He contended that his activities were limited to his scope of work and that did not include the exposure to the confidential information. He further contended that upon having resigned in June 2022, the applicant had consented that he could continue to conduct the business of the fourth respondent, which he had been doing prior to his resignation.

[9] The third respondent commenced his employment with the applicant as an Occupational Assistant in January 2014. He resigned from the applicant’s employ on 12 August 2021, and his contract effectively came to an end on 15 September 2021.

He denied that he is employed by the fourth respondent, and further that any restraint provisions against him would have no effect as of 15 March 2023, and accordingly that there is no basis for the relief sought against him.

[10] The applicant confirmed that the fourth respondent is an entity that was registered by Marnus Kruger (Kruger) in July 2021. Kruger was at the time an employee of the applicant. The business of the fourth respondent is in the field of asbestos identification, inventory, risk assessment, management plan, labelling, awareness training, registration of asbestos contractors and hazardous material assessments. Kruger resigned from the applicant’s employ on 13 June 2022, and at the same time as the second respondent. Kruger was re-employed by the applicant in October 2022. The applicant contends that the fourth respondent being its direct competitor will because of the first – third respondents’ employment with it, have an insight into its asbestos business, and would thus be able to gain valuable confidential information passed to it by the respondents.

[11] In her answering affidavit, the first respondent had denied that the fourth respondent was in direct competition with the applicant. This was so in that none of the respondents were SANAS accredited inspection authorities, nor were they appointed by the Department of Employment and Labour to specialise in occupational hygiene. She further contended that the fourth respondent focussed solely on non-SANAS accredited scope of asbestos work and asbestos inventories, which did not require making use of any confidential information relating to any client, and further that the applicant had granted the fourth respondent when it was registered by Kruger, permission to conduct such work. The first respondent further added that the fourth respondent did not have the means or capabilities to compete with non-SANAS accredited work, and that the work it was involved in such as vibration could be done outside the field of scope of occupational hygiene.

[12] In support of its contentions that the respondents had breached the restraint provisions, the applicant’s case is that in June 2022, it had attended to a project of a client, Industrial Transport Division (IDT). After IDT had submitted an asbestos inventory in respect of the project, it was discovered that the first and second respondents together with Kruger, were the inspectors, authors, and quality signatories to that inventory, and this was at the time that they were still employed by the applicant. After this discovery in June 2022, and upon being confronted, the second respondent and Kruger resigned from the applicant’s employ, whilst the first respondent had refused to resign and was suspended. She was then dismissed on 15 June 2022.

[13] The first and second respondents are further alleged to have breached their restraint of trade undertakings in various specific instances, viz; by attending a meeting on 20 January 2023 related to the inventory and qualities perspective at Sibanye Rustenburg Site, a client of the applicant, and making demands which only the applicant as the assigned Inspection Authority was required to make. The ITD had also questioned the role of the respondents at the Sibanye Rustenburg Site, since they were said to be interfering with the work of the Inspection Authority at the client’s site. Furthermore, on 30 January 2023, the applicant was informed by its client, Tradeworx, that it had been contacted by the respondents regarding quotes for services which related to asbestos inventory, training, and monitoring, and the respondents had forwarded an asbestos inventory to another client of its clients, Applied Mineral Technology.

[14] On 7 February 2023, the applicant through its attorneys sent correspondence to the respondents to obtain an undertaking that they will refrain from approaching its clients and divulging its confidential information. The applicant contends that on 13 February 2023, it was contacted by IDT which advised it that the project at Sibanye Mine in Rustenburg was stopped as a result of alleged interference by the second and third respondents. It was on 14 February 2023 that this urgent application was launched.

[15] In opposing the application, the respondents raised two central preliminary points, viz;

Authority:

[16] The respondents challenged the locus standi of the applicant and that of the deponent to the founding affidavit, Jacobus Roets, to depose to bring this application. In the founding affidavit, Roets averred that he is the owner of the applicant and was thus duly authorised to depose to the founding affidavit. It is not even necessary for this Court to be detained with this

preliminary point in view of the now established principles set out in Ganes[2]. From this and other authorities, it is apparent that it is not a requirement for a deponent to state that he is duly authorised to institute the proceedings and that the procedure to challenge

authority is the one set out in Rule 7 of the Uniform Rules of Court. The respondents did not utilise these procedures to challenge the authority of Roets or of the applicant, and clearly that preliminary point lacks merit.

Urgency:

[17] Inasmuch as it is appreciated that disputes related to the enforcement of restraint of trade provisions are inherently urgent because of their time-bound nature[3], at the same time, there is nothing that shields applicants in such disputes from compliance with the requirements of Rule 8 of the Rules of this Court, and all applicable principles in any urgent applications[4].

[18] Central to the above principles is that an applicant is not entitled to rely on urgency that is self-created when seeking a deviation from the Rules. Thus, an applicant is expected to act with the necessary haste in order to prevent the prejudice or harm complained of as soon as it comes to its attention, and thus bring the application before the Court at the first available opportunity[5]. Even more pertinent in this case is that an applicant who comes to court on an urgent basis for final relief bears an even greater burden to establish his right to urgent relief than an applicant who comes to court for interim relief[6].

[19] For the sake of convenience, and to the extent that the applicant seeks the same relief against the first - third respondent even though the circumstances of their employment and the termination thereof are distinguishable, I propose to deal separately with each of them in determining urgency or the merits of the dispute where required.

[20] As a starting point, the applicant conceded that Kruger registered the fourth respondent in 2021. It cannot therefore be correct as averred by the applicant in its replying affidavit, that it only became aware of the fourth respondent and its activities in June 2022. If indeed the fourth respondent was a competitor, this fact ought to have been clear to the applicant upon its registration in 2021, and not in June 2022.

The first respondent:

[21] The first respondent’s case was essentially to dispute the existence of the contract of employment with the applicant and the restraint provisions. It cannot seriously be disputed that the first respondent was dismissed on 15 June 2022 via a WhatsApp message. The termination took place in circumstances where the second respondent and Kruger had resigned following the incident related to the IDT’s inventory. The applicant’s contention was that after that incident, the first respondent was placed on suspension after she refused to resign as she was also involved in the IDT inventory, and was subsequently dismissed whilst she was at the time performing administrative duties. It was alleged that it was at that stage that she had managed to delete copies of her signed contract of employment together with other information on her work issued laptop.

[22] The applicant in seeking that inferences ought to be drawn that indeed the first respondent’s contract existed, correctly made references to AJ Charnaud & Company (Pty) Ltd v van der Merwe and Others[7] and the authorities referred therein[8]. The facts of this case pertaining to the denials of the first respondent are not dissimilar to these authorities. This is so in that to the extent that it was the applicant’s contention that there was a contract in place, clearly the onus remained on it to produce such a document. The first difficulty encountered by the applicant is that it sought to rely on an unsigned copy of a contract bearing the name of the first respondent[9]. Unlike the contracts of the second and third respondents, the first respondent’s purported contract is as correctly pointed out on her behalf, a standard printout lacking in specifics related to remuneration. To the extent that it was contended that the first respondent’s contract was forwarded by the applicant’s employers’ organisation (SEESA), and further in reliance on Annexure ‘B1’ to the founding affidavit, this latter document is meaningless without a confirmatory affidavit from SEESA. To the extent that the applicant insisted that the first applicant had indeed signed any undertakings with reliance on Annexure ‘A’[10], this document, even if not signed by her, is dated and signed on 14 February 2023, when it is common cause that she was dismissed on 15 June 2022.

[23] A second difficulty is that as in the authorities referred to, the applicant averred that the first respondent’s signed copy was deleted by her from both her laptop and its system. Nothing more however came by way of evidence to back up these contentions. All that is placed before the Court is pure speculation. The mere fact that such a contract existed on account of it being SANAS requirement or that of the applicant that all its employees must sign such contracts is not on its own sufficient.

[24] A third difficulty is that the applicant in the light of the seriousness of the impact of the relief it sought against the first respondent, simply relied on conjecture without making an effort to explain how else the copy could have gone missing from its system. A simple referral of the laptop to IT specialists would have established how the copy of the contract was deleted and when, if ever such a copy existed.

[25] In the end, and in line with the authorities referred to by the applicant and the conclusions reached therein, none of the factors relied on by the applicant rendered the denials by the first respondent that she never signed such a contract, to be said to be ‘palpably absurd or demonstrably false’. Worst still however, and as reiterated in AJ Charnaud & Company, it is not appropriate for this Court in such cases, to resolve material disputes of fact in motion proceedings based on probabilities. Since the first respondent raised a genuine dispute of fact that cannot be resolved on papers, and which disputes the applicant ought to have foreseen, there can be no basis for any conclusion to be reached that the onus placed on it was discharged to demonstrate that the contract with the first respondent existed. This therefore and without more, ought to be dispositive of the claim against the first respondent.

The second respondent:

[26] The contracts between the applicant and the second respondent was terminated in June 2022 when the latter resigned. As already indicated, the resignation came about after the applicant had discovered that the first - second respondents, together with Kruger, were involved as inspectors, authors and quality signatures on the inventory related to IDT, on behalf of the fourth respondent.

[27] The applicant averred that the second respondent merely resigned upon being confronted, whilst the latter’s contention

was that Roets had given all of them an ultimatum, i.e., that they should resign or close the fourth respondent. Kruger and the second respondent elected to resign, having indicated that they preferred to continue working with the fourth respondent, whilst the first respondent elected to stay. The second respondent’s

contention throughout was that when they made an election, the applicant effectively granted him consent to continue the business of the fourth respondent in June 2022, more particularly in the asbestos industry. He had further contended that the applicant was aware of the work he was involved in at the fourth respondent after his resignation, and that if ever there were doubts, the applicant could have easily established from Kruger, when the latter was re-appointed by the applicant in October 2022.

[28] As already indicated elsewhere in this judgment, there is no merit in the applicant’s contention that it only became aware of the fourth respondent in June 2022. It had been in existence since 2021, and the applicant was aware of the nature of its business. Since the second respondent had elected not to cease his association with the business of the fourth respondent as far back as June 2022, there is nothing in the founding affidavit that indicated that measures were taken to ensure that the second respondent adhered to the restraint of trade provisions and undertakings. I am not convinced that the applicant only got to know of any alleged breach in January 2023 as alleged. Having elected to resign and thus continue with the business of the fourth respondent, surely any steps to enforce the restraint provisions ought to have been taken in June 2022.

[29] Thus given the timeline and knowledge of the business of the fourth respondent as at June 2022, and to the extent that relief is sought against the second respondent more than a period of six months, clearly the applicant failed to establish that it had acted with the necessary haste, thus making any urgency in respect of the relief claimed against him being self-created. It follows that on this ground, the application against the second respondent ought to be struck of the roll.

The third respondent:

[30] Insofar as relief against the third respondent is sought, it was not in dispute that the contract and restraint of trade provisions were entered into. It was further not in dispute that he had resigned from the applicant’s employ on 15 September 2021, having given notice on 12 August 2021. The relief against the third respondent is sought in circumstances where he has denied ever being employed by the fourth respondent and had explained the circumstances leading to him assisting the second respondent on 20 January 2022 with the Sibanye Mine’s inventory. Other than this incident, there was nothing to gainsay his contention that he was never employed by the fourth respondent.

[31] In my view however, and apart from that incident, there is no reason why this court would intervene on an urgent basis to enforce the restraint provisions. This is so in that in terms of clause 27.1 of the third respondent’s contract of employment[11], the restraint provisions were to endure for a period of 18 months after termination. This application was brought before the Court on 16 February 2023. As of 15 March 2023, the contract and the restraint provisions would have ceased to be binding or enforceable against the third respondent. It is therefore immaterial whether the applicant became aware of the alleged breaches in January 2023. Clearly any relief against him is rendered moot in the light of the passage of time. To this end, it follows that any claim against the third respondent ought to be dismissed.

[32] The first – third respondents sought a costs order. Having however had regard to the approach set out in Ball v Bambalela Bolts (Pty) Ltd and Another[12] related to costs in application such as in casu, it is deemed appropriate that each party should be burdened with its own costs

[33] In the premises, the following order is made:

Order:

1. The applicant’s application in respect of the First and Third Respondents is dismissed.

2. The Applicant’s application in respect of the Second Respondent is struck-off the roll on account of lack of urgency.

3. Each party is to pay its own costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: C. Higgs, of Higgs Attorneys Incorporated. For the third Respondent: Adv. A.P. Bruwer, Instructed by: Enslin Attorneys

[1] Act 85 of 1993.

[2] Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) at para 19 where it was held; “There is no merit in the contention that Oosthuizen AJ erred in finding that the proceedings were duly authorised. In the founding affidavit filed on behalf of the respondent Hanke said that he was duly authorised to depose to the affidavit. In his answering affidavit the first appellant stated that he had no knowledge as to whether Hanke was duly authorised to depose to the founding affidavit on behalf of the respondent, that he did not admit that Hanke was so authorised and that he put the respondent to the proof thereof. In my view it is irrelevant whether Hanke had been authorised to depose to the founding affidavit. The deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorised. In the present case the proceedings were instituted and prosecuted by a firm of attorneys purporting to act on behalf of the respondent. In an affidavit filed together with the notice of motion a Mr Kurz stated that he was a director in the firm of attorneys acting on behalf of the respondent and that such firm of attorneys was duly appointed to represent the respondent. That statement has not been challenged by the appellants. It must, therefore, be accepted that the institution of the proceedings was duly authorised. In any event, [r]ule 7 provides a procedure to be followed by a respondent who wishes to challenge the authority of an attorney who instituted motion proceedings on behalf of an applicant. The appellants did not avail themselves of the procedure so provided. (See Eskom v Soweto City Council 1992 (2) SA 703(W) at 705C-J.)”

[2] Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) at para 19 where it was held;

“There is no merit in the contention that Oosthuizen AJ erred in finding that the proceedings were duly authorised. In the founding affidavit filed on behalf of the respondent Hanke said that he was duly authorised to depose to the affidavit.

In his answering affidavit the first appellant stated that he had no knowledge as to whether Hanke was duly authorised to depose to the founding affidavit on behalf of the respondent, that he did not admit that Hanke was so authorised and that he put the respondent to the proof thereof. In my view it is irrelevant whether Hanke had been authorised to depose to the founding affidavit. The deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorised. In the present case the proceedings were instituted and prosecuted by a firm of attorneys purporting to act on behalf of the respondent. In an affidavit filed together with the notice of motion a Mr Kurz stated that he was a director in the firm of attorneys acting on behalf of the respondent and that such firm of attorneys was duly appointed to represent the respondent. That statement has not been challenged by the appellants. It must, therefore, be accepted that the institution of the proceedings was duly authorised. In any event, [r]ule 7 provides a procedure to be followed by a respondent who wishes to challenge the authority of an attorney who instituted motion proceedings on behalf of an applicant.

The appellants did not avail themselves of the procedure so provided. (See Eskom v Soweto City Council 1992 (2) SA 703(W) at 705C-J.)”

[3] Mozart Ice Cream Classic Franchises (Pty) Ltd v Davidoff and Another (2009) 30 ILJ 1750 (C) at 1761.

[4] Vumatel (Pty) Ltd v Majra and Others (J2400/18) [2018] ZALCJHB 335; (2018) 39 ILJ 2771 at paras 4 – 6; See also See Association of Mine Workers and Construction Union and others v Northam Platinum Ltd and another [2016] 11 BLLR 1151 (LC), where it was held; “[25] Also, urgency must not be self-created …as a consequence of the applicant not having brought the application at the first available opportunity. [26] A final consideration where it comes to urgency is expedition when taking action. In other words, the more immediate the reaction by the litigant to remedy the situation by way of instituting litigation, the better it is for establishing urgency. But the longer it takes from the date of the event giving rise to the proceedings, the more urgency is diminished. In short, the applicant must come to court immediately, or risk failing on urgency. In Valerie Collins t/a Waterkloof Farm v Bernickow NO and another the court held: “. . . if the applicants seeks this Court to come to its assistance it must come to the Court at the very first opportunity, it cannot stand back and do nothing and some days later seek the Court’s assistance as a matter of urgency.””

[4] Vumatel (Pty) Ltd v Majra and Others (J2400/18) [2018] ZALCJHB 335; (2018) 39 ILJ 2771 at paras 4 – 6; See also See Association of Mine Workers and Construction Union and others v Northam Platinum Ltd and another [2016] 11 BLLR 1151 (LC), where it was held;

“[25] Also, urgency must not be self-created …as a consequence of the applicant not having brought the application at the first available opportunity.

[26] A final consideration where it comes to urgency is expedition when taking action. In other words, the more immediate the reaction by the litigant to remedy the situation by way of instituting litigation, the better it is for establishing urgency. But the longer it takes from the date of the event giving rise to the proceedings, the more urgency is diminished. In short, the applicant must come to court immediately, or risk failing on urgency. In Valerie Collins t/a Waterkloof Farm v Bernickow NO and another the court held:

“. . . if the applicants seeks this Court to come to its assistance it must come to the Court at the very first opportunity, it cannot stand back and do nothing and some days later seek the Court’s assistance as a matter of urgency.””

[5]See Jiba v Minister: Department of Justice and Constitutional Development and others (2010) 31 ILJ 112 (LC) at para 18; Valerie Collins t/a Waterkloof Farm v Bernickow NO And Another [ 2001] ZALC 223 (7 December 2001) where it was held; “[8] Furthermore, if the applicant seeks this Court to come to its assistance it must come to the Court at the very first opportunity it cannot stand back and do nothing and some days later seek the Court’s assistance as a matter of urgency.”

[5]See Jiba v Minister: Department of Justice and Constitutional Development and others (2010) 31 ILJ 112 (LC) at para 18; Valerie Collins t/a Waterkloof Farm v Bernickow NO And Another [ 2001] ZALC 223 (7 December 2001) where it was held;

“[8] Furthermore, if the applicant seeks this Court to come to its assistance it must come to the Court at the very first opportunity it cannot stand back and do nothing and some days later seek the Court’s assistance as a matter of urgency.”

[6]See Ntombela and Others v United National Transport Union and Others (2019) 40 ILJ 874 (LC) at para 28; Tshwaedi v Greater Louis Trichardt Transitional Council [2000] 4 BLLR 469 (LC) at para 11.

[7] (J2096/19; J2037/19) [2020] ZALCJHB 1; (2020) 41 ILJ 1661 (LC) (7 January 2020)

[8] TIBMS (Pty) Ltd t/a Halo Underground Lighting Systems v Knight and Another (JA29/2017) [2017] ZALAC 62 (18 October 2017); (2017) 38 ILJ 2721 (LAC)

[9] Annexure ‘B’ to the Founding Affidavit

[10] Page 34 – 46 of the Founding Affidavit

[11] Page 119 of the Indexed Bundle.

[12] [2013] ZALAC 14; [2013] 9 BLLR 843 (LAC); (2013) 34 ILJ 2821 (LAC) at paras 28 – 30.