Kelly Group Limited v Workforce Management (Pty) Ltd & Others (44740/09, 45110/2009, 51337/09) [2010] ZAGPJHC 141 (10 February 2010)

Kelly Group Limited v Workforce Management (Pty) Ltd & Others (44740/09, 45110/2009, 51337/09) [2010] ZAGPJHC 141 (10 February 2010)

The applicant failed to establish a clear right to the relief sought, as the shareholders' agreement permitted competition between the shareholders, including for the Post Office business. Even assuming a breach of contract, the applicant has an adequate alternative remedy in damages, as the quantum is easily ascertainable and there is no evidence that damages would be futile. The court retains a discretion in granting interdicts and, in this case, the interests of the employees and the adequacy of damages weigh against granting the interdict. Accordingly, the rules nisi and interim orders are discharged, and the applications are dismissed with costs, including the costs of two counsel.

Citation
[2010] ZAGPJHC 141
Parties
Applicant: Kelly Group Limited; Respondent: Workforce Management (Pty) Ltd & Others; Respondent: Solly Tshiki; Respondent: South African Post Office Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 February 2010
Case Number
44740/09, 45110/2009, 51337/09
Procedural Posture
Urgent Application / Return Day of Rules Nisi and Interim Orders; Application for Final Interdict
Outcome
Applications dismissed; rules nisi and interim orders discharged; costs awarded against the applicant including costs of two counsel.
Judges
N.P. Willis
Legal Topics
Shareholders Agreement, Breach of Contract, Final Interdict, Black Economic Empowerment, Arbitration Clause
Commercial and Corporate Civil Procedure Shareholders Agreement Breach of Contract Final Interdict Black Economic Empowerment Arbitration Clause

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2
Sign in to unlock

Parties

Kelly Group Limited

Applicant

Workforce Management (Pty) Ltd & Others

Respondent

Solly Tshiki

Respondent

South African Post Office Limited

Respondent

Procedural Posture

Urgent Application / Return Day of Rules Nisi and Interim Orders; Application for Final Interdict

Legal Issues

  1. 1 Whether the applicant is entitled to a final interdict prohibiting the respondent and Solly Tshiki from recruiting employees to work for the Post Office.
  2. 2 Whether the applicant has a clear right to the relief sought under the shareholders' agreement.
  3. 3 Whether there is an absence of similar protection by any other ordinary remedy, such as damages.

Ratio Decidendi

The applicant failed to establish a clear right to the relief sought, as the shareholders' agreement permitted competition between the shareholders, including for the Post Office business. Even assuming a breach of contract, the applicant has an adequate alternative remedy in damages, as the quantum is easily ascertainable and there is no evidence that damages would be futile. The court retains a discretion in granting interdicts and, in this case, the interests of the employees and the adequacy of damages weigh against granting the interdict. Accordingly, the rules nisi and interim orders are discharged, and the applications are dismissed with costs, including the costs of two counsel.

Court Disposition

Applications dismissed; rules nisi and interim orders discharged; costs awarded against the applicant including costs of two counsel.

Orders

  • The rules nisi are discharged.
  • The interim and provisional orders are discharged.