Fidelity Cash Solutions (Pty) Ltd and Others v Herbt and Another (D1223/17) [2017] ZALCD 23 (28 November 2017)

Fidelity Cash Solutions (Pty) Ltd and Others v Herbt and Another (D1223/17) [2017] ZALCD 23 (28 November 2017)

The court found that the restraint of trade agreement was incorporated into Herbst's employment contract with FSS, a subsidiary of FSG, and that the Labour Court had jurisdiction to adjudicate the dispute. However, the applicants failed to establish the factual basis for rectification of the employment contract to substitute FCS as the employer, as there was no clear evidence of a mutual error or common intention. The application for rectification was dismissed. Regarding enforcement of the restraint, the applicants pleaded their case on the assumption that rectification would be granted and failed to make out a case for enforcement against Herbst in relation to FSS. The court held that...

Citation
[2017] ZALCD 23
Parties
Applicant: Fidelity Cash Solutions (Pty) Ltd; Applicant: Fidelity Security Group (Pty) Ltd; Applicant: Fidelity Security Services (Pty) Ltd; Respondent: Danie Peter Herbst; Respondent: SBV Services (Pty) Ltd
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
28 November 2017
Case Number
D1223/17
Procedural Posture
Urgent Application / Final Judgment After Opposed Motion Proceedings
Outcome
Application dismissed; no order as to costs.
Judges
E Tlhotlhalemaje
Legal Topics
Restraint of Trade, Rectification of Contract, Jurisdiction of Labour Court, Enforceability of Employment Terms
Labour Law Commercial and Corporate Restraint of Trade Rectification of Contract Jurisdiction of Labour Court Enforceability of Employment Terms

Case Brief

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Parties

Fidelity Cash Solutions (Pty) Ltd

Applicant

Fidelity Security Group (Pty) Ltd

Applicant

Fidelity Security Services (Pty) Ltd

Applicant

Danie Peter Herbst

Respondent

SBV Services (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Final Judgment After Opposed Motion Proceedings

Legal Issues

  1. 1 Whether the Labour Court has jurisdiction to enforce a restraint of trade agreement linked to an employment contract.
  2. 2 Whether the applicants are entitled to rectification of the employment contract to substitute the employer's name.
  3. 3 Whether the restraint of trade agreement is enforceable against the respondent in the circumstances.

Ratio Decidendi

The court found that the restraint of trade agreement was incorporated into Herbst's employment contract with FSS, a subsidiary of FSG, and that the Labour Court had jurisdiction to adjudicate the dispute. However, the applicants failed to establish the factual basis for rectification of the employment contract to substitute FCS as the employer, as there was no clear evidence of a mutual error or common intention. The application for rectification was dismissed. Regarding enforcement of the restraint, the applicants pleaded their case on the assumption that rectification would be granted and failed to make out a case for enforcement against Herbst in relation to FSS. The court held that...

Court Disposition

Application dismissed; no order as to costs.

Orders

  • The applicants’ application is dismissed.
  • There is no order as to costs.