Kelly Group Limited and Another v Solly Tshiki & Associates (SA) (Pty) Ltd and Others (2010/5594) [2010] ZAGPJHC 77; 2010 (5) SA 224 (GSJ) (11 March 2010)

Kelly Group Limited and Another v Solly Tshiki & Associates (SA) (Pty) Ltd and Others (2010/5594) [2010] ZAGPJHC 77; 2010 (5) SA 224 (GSJ) (11 March 2010)

The court found that the shareholders' agreement, specifically clause 5.2, clearly allows shareholders to conduct any business, including business that competes with Workforce. The applicants' interpretation would require rewriting the contract, which is impermissible. No tacit term prohibiting competition in relation to the Post Office contract can be read into the agreement. The applicants failed to establish a prima facie right to the relief sought, either in the form of an interdict or specific performance. Even if a breach were established, specific performance would not be appropriate due to the quasi-partnership nature of the relationship and the vague obligations of good faith and...

Citation
[2010] ZAGPJHC 77
Parties
Applicant: Kelly Group Limited; Applicant: Workforce Management (Pty) Ltd; Respondent: Solly Tshiki & Associates (SA) (Pty) Ltd; Respondent: Tshiki, Solly; Respondent: Sickle, Brian; Respondent: The South Africa Post Office Limited; Respondent: The Employees of the Second Applicant
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 March 2010
Case Number
2010/5594
Procedural Posture
Urgent Application / Application for Interim Interdict Pending Appeal
Outcome
Application dismissed with costs, including costs of two counsel.
Judges
André Gautschi
Legal Topics
Shareholders Agreement, Specific Performance, Interim Interdict, Breach of Contract, Joint Venture, Good Faith Obligation
Commercial and Corporate Civil Procedure Shareholders Agreement Specific Performance Interim Interdict Breach of Contract Joint Venture Good Faith Obligation

Case Brief

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Parties

Kelly Group Limited

Applicant

Workforce Management (Pty) Ltd

Applicant

Solly Tshiki & Associates (SA) (Pty) Ltd

Respondent

Tshiki, Solly

Respondent

Sickle, Brian

Respondent

The South Africa Post Office Limited

Respondent

The Employees of the Second Applicant

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict Pending Appeal

Legal Issues

  1. 1 Whether the applicants are entitled to an interim interdict pending the outcome of an appeal against the discharge of previous interim orders.
  2. 2 Whether the shareholders' agreement prohibits the respondents from competing with Workforce in relation to the Post Office contract.
  3. 3 Whether the applicants have established a prima facie right to specific performance or an interdict.

Ratio Decidendi

The court found that the shareholders' agreement, specifically clause 5.2, clearly allows shareholders to conduct any business, including business that competes with Workforce. The applicants' interpretation would require rewriting the contract, which is impermissible. No tacit term prohibiting competition in relation to the Post Office contract can be read into the agreement. The applicants failed to establish a prima facie right to the relief sought, either in the form of an interdict or specific performance. Even if a breach were established, specific performance would not be appropriate due to the quasi-partnership nature of the relationship and the vague obligations of good faith and...

Court Disposition

Application dismissed with costs, including costs of two counsel.

Orders

  • The application is dismissed with costs, such costs to include the costs of two counsel.