Red Sun Hortitech (Pty) Ltd v de Villiers and Others (J 577/2021) [2021] ZALCJHB 138 (2 July 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: J 577/2021

In the matter between:

RED SUN HORTITECH (PTY) LTD

Applicant

and

JACQUES STEPHAN DE VILLIERS

First Respondent

BRADLEY CLIFFORD SACKS

Second Respondent

TREES TO GO (PTY) LTD

Third Respondent

Heard: 17 June 2021

Delivered: 2 July 2021

In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 2 July 2021.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant approached this Court on an urgent basis to enforce restraint of trade and confidentiality undertakings, as contained in the contracts of employment entered into between the Applicant and the First and Second Respondents.

[2] The application was enrolled for hearing on 17 June 2021, when the parties indicated that there was no need to file any further affidavits in this matter. The parties were afforded an opportunity until 30 June 2021 to resolve this dispute and to find an amicable solution or to conclude an agreement inter partes. Unfortunately the parties were unable to find each other.

[3] Before I deal with the merits of the case, I deem it necessary to set out who the dramatis personae are.

[4] The Applicant was established in 2014 and it operates as a nursery, registered with the Department of Agriculture, Forestry and Fisheries. It is a 5-star South African Seed Growers Association (SGASA) accredited tree nursery, with its main business the cultivation and growing of macadamia nut and avocado seedlings and clonal trees, for supply to commercial farmers, both locally and internationally. Macadamia nut and avocado trees take from 10 to 20 months to grow out sufficiently to be delivered to customers.

[5] The Third Respondent is a wholesale macadamia and citrus nursery that specializes in the propagation of clonal seedlings and trees and according to the Applicant, a direct competitor.

[6] The First Respondent (De Villiers) was employed by the Applicant from 11 March 2019 as ‘operations and technical manager: avocado business unit.’ His role was adjusted in November 2019 to that of ‘operations manager’ and a further adjustment to his role was made during June 2020. De Villiers was dismissed during October 2020 and he had subsequently referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), which dispute is currently still pending.

[7] The Second Respondent (Sacks) was employed by the Applicant with effect from 23 March 2020 in the position of ‘avocado and mother blocks avocado production manager’. The Applicant dismissed Sacks during October 2020 and he too had subsequently referred an unfair dismissal dispute to the CCMA, which dispute is currently still pending.

[8] Sacks’ and De Villiers’ confidentiality undertakings and restraint of trade agreement are contained in their contracts of employment. The restraint of trade or ‘non-compete’ clause in the contract, is applicable for a period of 24 months from the date of termination of their employment with the Applicant. De Villiers is currently a director of and employed by the Third Respondent. Sacks is currently a director of and employed by the

Third Respondent as operations manager.

The relief sought

[9] The Applicant approached this Court for relief to enforce the restraint of trade provisions and to interdict and restrain De Villiers, Sacks and the Third Respondent for a period of two years, for the geographical area of the Republic of South Africa, from being concerned or interested, either directly or indirectly, in the cultivation, production, marketing and sale of macadamia and avocado plants or trees on a commercial scale without prior written consent of the Applicant.

[10] The Applicant further seeks an order for De Villiers and Sacks to terminate their employment with the Third Respondent and to be interdicted and restrained from commencing employment with any other competitor of the Applicant within South Africa for a period of two years.

[11] De Villiers and Sacks and to the extent necessary, the Third Respondent, are to be interdicted and restrained from contacting, soliciting, corresponding with any of the Applicant’s clients or potential clients.

[12] The last part of the relief sought pertains to the disclosing, divulging or use of the Applicant’s confidential information and the return of all the confidential proprietary information belonging to the Applicant.

[13] The Respondents opposed the application and they took issue with urgency. They dispute that the matter is urgent, and any urgency that may be found to exist, has been self-created.

[14] As this matter has been brought on an urgent basis, urgency is the obvious hurdle that the Applicant has to overcome before this Court could consider the merits of the application, more so where urgency is disputed.

[15] The issue of urgency has to be decided first.

Urgency

The applicable legal principles

[16] The relevant portion of Rule 8 of the Rules for the Conduct of Proceedings in the Labour Court provides that:

“(1) A party that applies for urgent relief must file an application that complies with the requirements of rules 7(1), 7(2), 7(3) and, if applicable, 7(7).

(2) The affidavit in support of the application must also contain-

a) the reasons for urgency and why urgent relief is necessary;

b) the reasons why the requirements of the rules were not complied with, if that is the

case;”

[17] An applicant that approaches the court on an urgent basis essentially seeks an indulgence and to be afforded preference, in order to prevent the prejudice and harm that may materialise or persist, if the conduct complained of continues. Central to a determination of whether a matter is urgent is whether the applicant has in the founding affidavit, set forth explicitly, the circumstances which

render the matter urgent, and the reason why substantial relief cannot be attained at a hearing in due course. Thus, it is required of the applicant to adequately set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary[1].

[18] What would an applicant who seeks to make out a case of urgency then have to show? In Mojaki v Ngaka Modiri Molema District Municipality and others[2] the Court referred with approval to the following dictum from East Rock Trading 7 (Pty) Ltd and another v Eagle Valley Granite (Pty) Ltd and others[3]:

“An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant

must state the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course. The question of

whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules it will not obtain substantial redress.”

[19] In Vermaak v Taung Local Municipality[4] this Court has held that:

“The consideration of the first requirement being why is the relief necessary today and not tomorrow, requires a court to be placed in a position where the court must appreciate that if it does not issue a relief as a matter of urgency, something is likely to happen. By way of an example if the court were not to issue an injunction, some unlawful act is likely to happen at a particular stage and at a particular date.”

[20] The principles around urgency had been developed and considered by the courts and on numerous occasions have the courts made it clear that self-created urgency is not to be entertained by an urgent Court.

[21] In considering Rule 8, the Court in Jiba v Minister: Department of Justice and Constitutional Development and others[5] held that:

“Rule 8 of the rules of this court requires a party seeking urgent relief to set out the reasons for urgency, and why urgent relief is necessary. It is trite law that there are degrees of urgency, and the degree to which the ordinarily applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self-created when seeking a deviation from the rules.”

[22] In National Union of Metalworkers of SA v Bumatech Calcium Aluminates[6] the Court held that:

“Urgency must not be self-created by an applicant, as a consequence of the applicant not having brought the application at the first

available opportunity. 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 Collins t/a Waterkloof Farm v Bernickow NO & another the court held that:

'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'.”

[23] In National Police Services Union and others v National Negotiating Forum and others[7] this Court held the view that the latitude extended to parties to dispense with the rules of the Court in circumstances of urgency is not available to parties who are dilatory to the point where their very inactivity is the cause of the harm on which they rely to seek relief.

[24] The requirements for urgency in restraint of trade applications are no different, as has been confirmed in a number of authorities.

[25] In Vumatel (Pty) ltd v Majra and others[8] the Court confirmed that:

“I accept that restraints of trade have an inherent quality of urgency. This position comes from the following dictum in Mozart Ice Cream Classic Franchises (Pty) Ltd v Davidoff & another where the court held: ‘I accept that breaches of restraints of trade have an inherent quality of urgency.’ (Emphasis added.)

The concern I have is that this inherent quality of urgency is often abused as a basis for jumping the queue, so to speak, without

satisfying the ordinary requirements of urgency. To adopt this kind of approach is ill conceived. An urgent restraint of trade

application is still nothing else but an urgent application, just like any other urgent application where final relief is sought. The ordinary requirements applicable to such urgent applications must still find application. The fact that one is dealing with a restraint of trade is not some kind of licence that in itself establishes urgency, to the exclusion of all other considerations. This was recognised by the court in Ecolab (Pty) Ltd v Thoabala & another where the court said the following, with which I agree:

‘To summarise then, parties alleging breaches of restraint of trade agreements are not indemnified from satisfying the requirements in rule 8. Thus, a mere contention that the enforcement of a restraint of trade is inherently urgent and therefore must be treated as such by this court without any further consideration cannot by all accounts be sustainable. The fact that these disputes may have an inherent quality of urgency cannot be equated to a free pass to urgent relief on the already over-burdened urgent roll in this court. Like all other urgent matters, more than a mere allegation that a matter is urgent is required. This therefore implies inter alia that the court must be placed in a position where it must appreciate that indeed a matter is urgent, and also that an applicant in the face of a threat to it or its interests had acted with the necessary haste to mitigate the effects of that threat.’”

Background facts

[26] In deciding the issue of urgency, it is prudent to set out the chronological sequence of events relevant to this application, as they will shed light on the question of urgency.

[27] De Villiers was employed in March 2019 and dismissed in October 2020. Sacks was employed in March 2020 and he too was dismissed in October 2020. It is evident from the non-compete clause in their contracts of employment that the clause will be applicable for a period of two years from date of termination of employment. Thus, two years from October 2020.

[28] The Applicant explained that Groep 91 Uitvoer (Pty) Ltd (Groep 91) is a supplier of critical biological inputs (bud-wood) to the Applicant as well as a long-standing customer of the Applicant. The Applicant’s case is that it was through De Villiers’ and Sacks’ frequent interaction with Groep 91 that they had gained knowledge and access to this information.

[29] During October 2020 the Applicant’s Chief Executive Officer (CEO), Mr Hassenkamp, learned that De Villiers and Sacks engaged with Groep 91. On or about 9 October 2020 Mr Hassenkamp engaged with Mr van Rooyen, the Director: Production at Groep 91 to verify whether there had been any discussions, as the Applicant had discovered email correspondence with Groep 91 that was sent from De Villiers’ work assigned computer, on the Applicant’s company server, which shared business plan details, costs, CAPEX plans and assessing the viability for the establishment of a tree nursery. On Mr Hassenkamp’s own version, this would constitute a breach of De Villiers’ and Sacks’ confidentiality and restraint undertakings.

[30] Mr van Rooyen responded in an email on 12 October 2020, confirming that “our discussion with Jacques and Cliff is mainly at a concept phase” and that the information received from them was at a very high level CAPEX and business expenditures “proving the financial model for a grower nursery.” Mr van Rooyen assured Mr Hassenkamp that no information was sent that would compromise the Applicant’s business or their relationship with each other.

[31] Mr Hassenkamp stated that Mr van Rooyen’s email raised at least two red flags for the Applicant. Firstly, it was confirmation that De Villiers and Sacks had engaged with the Applicant’s strategic supplier of biological materials and a long-standing client. Secondly, they had discussions at a ‘mainly concept phase’. This was of concern to the Applicant as it had implied that a concept had been pitched to Groep 91 and that there was an intention to consider the concept proposed by De Villiers and Sacks.

[32] During October 2020 Mr Hassenkamp noted that De Villiers and Sacks were directors of a newly registered company, Trees to Go (the Third Respondent). He became aware of this fact through a CIPC update and by way of feedback from customers.

[33] During the course of April 2021 Mr Hassenkamp became aware of the existence of the Third Respondent’s social media pages. The official Facebook page of the Third Respondent indicates under the heading ‘About’ that “Trees to Go is a wholesale macadamia and citrus nursery that specializes in the propagation of clonal seedlings and trees.” He gleaned from the Facebook page that the first official post was made on 6 February 2021.

[34] In April 2021 Mr Hassenkamp wrote letters to De Villiers and Sacks wherein he effectively stated that at the time of the termination of their services, the Applicant was aware that they were directors in a new entity known as Trees To Go, but were not aware of the exact business of the entity. Mr Hassenkamp stated that the Applicant had obtained knowledge that seemed to indicate that they were conducting a business similar to the Applicant’s as a grower and distributor of seedings. The Applicant’s concern was that they were directly competing with the Applicant in direct breach of the restraint of trade agreement and the confidentiality agreement they had agreed to.

[35] De Villiers and Sacks were to confirm by close of business on 22 April 2021 whether they have started a seedling nursery known as Trees to Go and whether they were operating the nursery as a grower and distributor of seedlings, in the Limpopo province. They were further asked to indicate whether they considered themselves bound to the restraint of trade provisions set out in the contract of employment. Mr Hassenkamp made it clear that he was attempting to determine the real actions and intentions of De Villiers and Sacks, before making any further decisions in this regard. They were however warned that should they fail to respond, the Applicant would have no choice but to protect its business.

[36] De Villiers and Sacks did not respond to the letter by 22 April 2021. The only response the Applicant received was a letter from their attorneys stating that any further communication should be directed to his law firm.

[37] Mr Hassenkamp stated that the reticence to respond to his letter, led to the inescapable conclusion that De Villiers and Sacks were in fact operating a business in direct competition with the Applicant and that such conduct is unfair, unlawful and in breach of their restraint and confidentiality undertakings.

[38] However, it could still not be established with an adequate degree of accuracy what the nature of the conduct of the Respondents was at this stage.

[39] On or about 7 May 2021 a public post was made on the Third Respondent’s Facebook page with the caption “First macadamia seed planted” accompanied by a picture of De Villiers and Sacks. In the Applicant’s view this was the first “empirical evidence the Applicant could find confirming its suspicions regarding the business activities of the Respondents.” This induced Mr Hassenkamp to investigate the matter further and Sack’s LinkedIn page strengthened his conclusion that the Respondents were blatantly acting in breach of their restraint of trade and confidentiality agreements.

[40] On 11 May 2021 the Applicant’s attorney of record addressed formal correspondence to De Villiers and Sacks, placing them on terms with regard to their breach of the confidentiality and restraint undertakings in their contracts of employment. The ‘cease-and-desist’ letter sought a written undertaking that they would refrain from any breach or further breach of their contractual obligations, by or before close of business on 14 May 2021.

[41] No response was received from the Respondents by the close of business on 14 May 2021. When no undertaking was forthcoming, steps were taken to launch this application.

[42] The unfair dismissal dispute pending before the CCMA was set down for arbitration on 20 and 21 May 2021. The Applicant, its attorneys and counsel were busy with the necessary preparation for the arbitration and they were unable to give this matter the required attention.

[43] The counsel appearing for the Applicant in the CCMA proceedings, was advised on 17 May 2021 that she had been in contact with a person who tested positive for Covid-19 and as a result, the arbitration was postponed to 28 and 29 June 2021. It was at this juncture that another counsel was briefed to draft the urgent application.

[44] The urgent application was filed with this Court on 31 May 2021 and the matter was enrolled for hearing on 17 June 2021.

[45] The Applicant submitted that it has no other option but to bring this urgent application in order to protect its interests and to prevent further harm.

Analysis

[46] Emanating from the provisions of Rule 8 and the principles set out in the authorities referred to, it is evident that urgency is not there for taking, and an applicant seeking urgent relief must adequately and in detail, set out in the founding affidavit, the reasons why the matter before the court should be treated with urgency.

[47] In order for any argument on urgency to be sustained, the applicant must have acted with due haste, when knowledge of the respondent's

prejudicial behaviour or actions is gained. It is trite that an applicant is not entitled to rely on urgency that is self-created when seeking a deviation from the rules[9].

[48] The explanation for urgency tendered by the Applicant has to be considered with due consideration of the Respondents’ challenge to urgency.

The Applicant’s grounds for urgency

[49] The Applicant explained that it appears from the chronology of events that it has acted as promptly and expeditiously as the circumstances permitted, upon discovering the Respondents’ breach of their contractual undertakings. The Applicant first sought to confirm or clarify the Respondents’ position, thereafter sought to obtain undertakings from them and only when that had failed, this application was launched. Tangible proof of the breach was only obtained on 7 May 2021, where after the Applicant took all reasonable steps to ensure that the matter is prosecuted.

[50] The Applicant submitted that the Respondents continued with their breach of the restraint and confidentiality undertakings, even after they were cautioned that they are acting in breach of their contracts. They have not demonstrated any intention to desist from a further breach and the Applicant is suffering harm or harm is reasonably apprehended and for each day that passes without relief being granted, the Applicant will continue to suffer prejudice. Therefore this application is urgent, more so as the Applicant will not find sufficient redress in the normal course.

[51] The Respondents dispute that this application is urgent and they submitted that the Applicant had observed the events unfold in this matter without taking any steps to approach this Court earlier. The Respondents submitted that the Applicant could have launched this application, on substantially the same facts, as far back as December 2020. If there is any urgency, it is self-created.

[52] The Respondents submitted that the Applicant has been aware of the business of the Third Respondent since December 2020. Further, that the Third Respondent has LinkedIn and Facebook profiles, which were established in February and March 2021 respectively and which were visited by Mr Hassenkamp on numerous occasions, as far back as February 2021. These averments were not disputed in the Applicant’s replying affidavit.

[53] The Respondents argued that the social media profiles of the Third Respondent, which were visited by Mr Hassenkamp, made it very clear that the Third Respondent is in the business of propagation of macadamia trees. The Applicant was thus aware of the existence of the Third Respondent and the business it conducts as far back as December 2020 or February 2021, when this application should have been launched.

[54] In its founding affidavit the Applicant explained that the matter is urgent because the Respondents have no intention to desist from a further breach and the Applicant is suffering harm or harm is reasonably apprehended and for each day that passes without relief being granted, it will continue to suffer prejudice.

Difficulties in the Applicant’s case

[55] There are a number of difficulties with the Applicant’s explanation, which are evident from the chronological sequence of events. Firstly, on Mr Hassenkamp’s own version, De Villiers and Sacks engaged with Groep 91 in about or around October 2020 and the Applicant became aware of this when email correspondence with Groep 91, sent from De Villiers’ work assigned computer, was found on the Applicant’s company server. This correspondence shared business plan details, costs, CAPEX plans and assessing the viability for the establishment of a tree nursery. Mr Hassenkamp was so concerned about this correspondence that it caused him to contact Mr van Rooyen at Groep 91 to verify whether there had been any discussions. At this point, Mr Hassenkamp was concerned and he was aware of the fact that had the communication with Grope 91 indeed taken place, it would constitute a breach of De Villiers’ and Sacks’ confidentiality and restraint undertakings.

[56] Mr van Rooyen responded on 12 October 2020, confirming that “our discussion with Jacques and Cliff is mainly at a concept phase” and that the information received from them was at a very high level CAPEX and business expenditures “proving the financial model for a grower nursery.” Mr Hassenkamp’s concerns were in fact confirmed. Mr van Rooyen firstly confirmed the discussion with De Villiers and Sacks and he revealed that a grower nursery was part of the discussion.

[57] Mr Hassenkamp stated that Mr van Rooyen’s email raised at least two red flags. On his own version it was confirmation that De Villiers and Sacks had engaged with the Applicant’s strategic supplier of biological materials and a long-standing client and that they had negotiations at ‘concept phase’, which could result in something more.

[58] Mr Hassenkamp further noted that De Villiers and Sacks were directors of a newly registered company. A fact he became aware of through a CIPC update and by way of feedback from customers. It is common cause that the Third Respondent was registered in December 2020.

[59] It is evident from the facts that as far back as October 2020 Mr Hassenkamp had serious concerns regarding the conduct of De Villiers and Sacks, which might be in breach of their confidentiality and restraint undertakings. He knew that they were directors of a newly registered company, with the name Trees To Go. The name was not misleading in any way – it was not as if the Respondents registered a company with a name to mislead or deceive or disguise the nature of their business. The name implies what the business is – trees to go.

[60] The Applicant did nothing since red flags were raised in October 2020. There is not a single shred of evidence as to what had happened between October 2020 and March 2021.

[61] The next event was only during the course of April 2021 when Mr Hassenkamp became aware of the existence of the Third Respondent’s social media pages. He explained that the official Facebook page of the Third Respondent indicated that “Trees to Go is a wholesale macadamia and citrus nursery that specializes in the propagation of clonal seedlings and trees.”

[62] At this point, Mr Hassenkamp should have been able to connect the dots. The nature of the business was in the public domain, it was no secret, in fact it was published on public social media platforms, where Mr Hassenkamp was able to see it.

[63] He wrote letters to De Villiers and Sacks wherein he effectively stated that at the time of the termination of their services, the Applicant was aware that they were directors in a new entity known as Trees To Go, but was not aware of the exact business of the entity. Mr Hassenkamp stated that it seemed that the Respondents were conducting a business similar to the Applicant’s as a grower and distributor of seedings and that they were directly competing with the Applicant, in direct breach of the restraint of trade agreement and the confidentiality agreement they had agreed to.

[64] De Villiers and Sacks were to confirm by close of business on 22 April 2021 whether they have started a seedling nursery known as Trees to Go and whether they were operating the nursery as a grower and distributor of seedlings, in the Limpopo province. Mr Hassenkamp made it clear that he was attempting to determine the real actions and intentions of De Villiers and Sacks, before making any further decisions in this regard.

[65] De Villiers and Sacks did not respond to the letter by 22 April 2021. Mr Hassenkamp’s interpretation and understanding of their reticence to respond to his letter, were that it had led him to the inescapable conclusion that De Villiers and Sacks were in fact operating a business in direct competition with the Applicant and that such conduct is unfair, unlawful and in breach of their restraint and confidentiality undertakings.

[66] It is evident that by 22 April 2021 Mr Hassenkamp had come to an ‘inescapable conclusion’ that De Villiers and Sacks were in fact operating a business in direct competition with the Applicant and that such conduct was in breach of their restraint and confidentiality undertakings. This ‘inescapable conclusion’ however did not trigger him to act urgently to protect the Applicant’s rights and to enforce the contractual obligations De Villiers and Sacks had agreed to.

[67] Instead, he wants this Court to believe that it could still not be established with an adequate degree of accuracy what the nature of the conduct of the Respondents was at this stage. It is unclear what more accuracy the Applicant required. The Respondents’ business was published as “Trees to Go is a wholesale macadamia and citrus nursery that specializes in the propagation of clonal seedlings and trees”, of which Mr Hassenkamp was not only aware, but it led him to conclude that De Villiers and Sacks were in fact operating a business in direct competition with the Applicant and that such conduct was in breach of their restraint and confidentiality undertakings.

[68] The Applicant did nothing until 7 May 2021 when a public post was made on the Third Respondent’s Facebook page with the caption “First macadamia seed planted” accompanied by a picture of De Villiers and Sacks. On 11 May 2021 the Applicant’s attorney of record addressed formal correspondence to De Villiers and Sacks, placing them on terms and sought a written undertaking that they would refrain from any breach or further breach of their contractual obligations, by or before close of business on 14 May 2021.

[69] No response was received from the Respondents by the close of business on 14 May 2021 and when no undertaking was forthcoming, steps were taken to launch this application. This matter was enrolled for hearing another month later.

[70] The Applicant’s argument is that it launched this application once it had certainty regarding the business activities of the Respondents and once it became clear that no undertaking would be forthcoming. I cannot accept the argument in support of urgency. In Ecolab (Pty) Ltd v Thoabala and another [10] (Ecolab) the Court was faced with an application to enforce a restraint of trade agreement three months after the employee had commenced employment with a competitor. The Court considered the facts and held that:

“The applicant alleged that ‘further investigations’ were done but again, there is no particularity in this regard as to when and by whom these investigations were conducted, or when it was discovered that Thoabala was indeed employed by the second respondent, and any steps taken in that regard. However, notwithstanding the alleged investigations, and it being apparent to it that Thoabala was employed by the second respondent, the applicant upon approaching its labour consultants then went on to ‘engage’ with Thoabala’s attorneys of record, and again, decided to ‘further investigate’ the apparent breach by him.

It is not uncommon for parties to allege that attempts were made to engage with the other party in order to resolve a dispute, whether

real or perceived, before approaching the court. Whilst it is accepted that parties would or should engage each other prior to

approaching the court, there is a limit in regard to the level and extent of that engagement, particularly where urgency is claimed.

It is my view that where the applicant in this case had reason to believe that Thoabala was in breach of the restraint undertakings,

and further where there was reason to believe that he might not have been forthright as to the identity of his new employer or the tasks he would be performing, little can be achieved with any further ‘engagements’ or ‘investigations’,

once it is apparent that interests are being threatened, and it would be incumbent upon the applicant under the circumstances to take immediate steps to deal with the threats to its interests. Sadly, the applicant was lacking in this regard. To further

illustrate the point, it is not indicated in the papers as to what transpired between 28 June 2017 when the applicant allegedly

approached its labour consultants and 21 July when it discovered, inter alia, that Thoabala was actually employed by the second

respondent in the exact same position that he fulfilled at it.

In consideration of these factors, inclusive of the fact that as at the hearing of this matter Thoabala would have been in the employ of the second respondent for just over three months, I am satisfied that the urgency claimed in this case is clearly self-created, and this is even more so based on the applicant’s assertions that it did not matter how long the breach had taken place, or that it was not obliged to proffer a substantial explanation for its dilatoriness. Of course, it matters how long the breach went on in that the alleged breach is the very essence of this urgent application. Furthermore, an applicant is obliged to place

substantive reasons before the court as to why its matter deserves urgent attention.

In circumstances where the applicant was aware in ‘early June 2017’ that Thoabala was in breach of his restraint and

confidentiality undertaking, and did nothing other than to ‘further investigate’ the matter, or consult with its labour

consultants, or ‘engage’ with Thoabala’s attorneys of record, there is no basis for this court to intervene,

as the institution of the proceedings should take place as soon as reasonably possible after the cause thereof has arisen, and a party must not be dilatory in bringing the application and must show that its interests warrant an urgent hearing.

The delay of the applicant in this case since it became aware of Thoabala’s movements after his resignation and the time it took to approach the court is about seven weeks, which delay is of a serious nature. No satisfactory explanation was proffered in this regard and the only conclusion to be made is that the delay was due to culpable remissness on the part of the applicant. In the light of these factors, I am further not satisfied that the applicant has demonstrated that it cannot obtain substantive relief in the normal course, and fairness therefore dictates that this matter ought to be struck from the roll.”

[71] The same principles set out in Ecolab apply in casu.

[72] The Applicant had cause to be suspicious since October 2021, the suspicions were re-affirmed in April 2021, yet there is no indication that any urgent steps were taken to address the perceived threats to the Applicant’s interests.

[73] The Applicant was aware in October 2020 that De Villers and Sacks acted in in breach of their restraint and confidentiality undertakings and did nothing. In April 2021 the Applicant’s suspicions became ‘an unescapable conclusion’ that they acted in breach of their contractual obligations, yet the Applicant did nothing other than to ‘further investigate’ the matter, or to engage with the Respondents to obtain an undertaking.

[74] Where the Applicant had reason to believe that De Villiers and Sacks were in breach of their restraint and confidentiality undertakings, and where there was a clear indication, since April 2021, that no undertaking was forthcoming, little could have been achieved with any further engagements or investigations. Once it is apparent that interests are being threatened, it is incumbent upon the Applicant to take immediate steps to deal with the threats to its interests.

[75] In view of the inaction of the Applicant, being acutely suspicious, alternatively aware, of the Respondents’ business and conduct, I cannot accept what the Applicant stated when it averred it is suffering harm or harm is reasonably apprehended and for each day that passes without relief being granted, it will continue to suffer prejudice. The Applicant was complacent to live with the alleged harm for many months and many days passed before the Applicant took action.

[76] The Applicant took no action against De Villiers and Sacks when red flags were raised in October 2020, took no action when they registered the Third Respondent and did not take any action when the business of the Respondents was known to Mr Hassenkamp in April 2021.

[77] The Applicant’s explanation as to why it did not take earlier action, is lacking. In fact the only explanation is that tangible proof of the Respondents’ breach was only found on 7 May 2021. In my view the Applicant had sufficient evidence to approach this Court much earlier and there was no need to wait for ‘empirical proof’.

[78] Insofar as this Court has accepted that breaches of restraints of trade have an inherent quality of urgency[11] as they are of a limited duration and concern fundamental rights that require immediate determination as a matter of general principle,

there are limits where after the urgency becomes self-created.

[79] Urgency is dictated upon by the exigency and circumstances of the particular case, and it is trite that a matter cannot be regarded as urgent simply on the say-so of the Applicant.

[80] In equal measure, a kneejerk approach in truncating the time periods will not be tolerated[12], nor will the courts countenance a belated approach for relief. Thus, it is expected that in order for any arguments on urgency to be sustained, the Applicant must have acted with due haste, when knowledge of the Respondent's prejudicial behaviour or actions is gained.

[81] In the light of the above, I am not satisfied that the Applicant has demonstrated that it deserves the application before me to be given preference. The Applicant has not met the requirements set out in Rule 8 of the Rules of this Court. As can be gleaned from the events outlined above it is apparent that the Applicant has been dilatory in asserting its rights. The Applicant’s

actions since becoming aware of the breach of the restraint undertakings showed no sign of urgency or a serious attempt to enforce the restraint.

[82] It is not sufficient for a party when approaching a court on an urgent basis to adopt the approach that it is of right entitled to preferential treatment failing which it would suffer prejudice in the event that its urgent application is not granted. A party needs to demonstrate that it had also in asserting its rights, acted diligently and with the urgency that the matter it seeks to pursue requires. The Applicant has in my view, woefully failed in all material respects in this regard.

[83] A breach of the restraint undertakings clearly has consequences for the Applicant. In order to mitigate those consequences, the duty was upon the Applicant to act swiftly and with diligence. It dismally failed to do so and instead waited until it was satisfied with the ‘tangible proof’ it could find. As already alluded to, sufficient proof to approach the Court, was available much earlier.

[84] The prejudice or harm the Applicant claims to suffer or may suffer as a consequence of the breach of the restraint of trade undertakings, is purely of its own making, and the belated attempt to enforce its rights, does not render the application urgent.

[85] Even if there is urgency, such urgency is self-created, another category of urgency not entertained by this Court.

Costs

[86] The Court has a broad discretion to make orders for costs.

[87] The general accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation. In Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others[13] it was emphasized that:

‘……unless there are sound reasons which dictate a different approach, it is fair that the successful party should be awarded her costs. The successful party has been compelled to engage in litigation and compelled to incur legal costs in doing so. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in this court, whether as applicant, in launching proceedings or as respondent opposing proceedings.’

[88] As this application pertains to the enforcement of contractual rights and obligations, the principle of fairness does not find application. None of the conventional factors which militate against a cost order are present in this case and there is no reason why costs ought not to follow the result.

[89] In the premises I make the following order:

Order

1. The application is struck from the roll for lack of urgency;

2. The Applicant is to pay the costs.

___________________

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate L Steenkamp

Instructed by:

Stegmanns Inc Attorneys

For the Respondents: Advocate A C Diamond

Instructed by:

Johan Steyn Attorneys

[1]Transport and Allied Workers Union of SA vs Algoa Bus Company (Pty) Ltd (2015) 36 ILJ 2148 (LC).

[2] (2015) 36 ILJ 1331 (LC) at para 17.

[3] [2011] ZAGPJHC 196; [2012] JOL 28244 (GSJ) at para 6.

[4] (JR315/13) [2013] ZALCJHB 43 (12 March 2013) at para 12.

[5] (2010) 31 ILJ 112 (LC) at para 18.

[6] (2016) 37 ILJ 2862 (LC).

[7] (1999) 20 ILJ 1081 (LC).

[8] (2018) 39 ILJ 2771 (LC) at para 4 and 5.

[9] Jiba v Minister: Department of Justice and Constitutional Development and others (2010) 31 ILJ 112 (LC).

[10] (2017) 38 ILJ 2741 (LC).

[11] Mozart Ice Cream Classic Franchises (Pty) Ltd D v Davidoff & another

[12] Gallagher v Norman's Transport Lines (Pty) Ltd 1992 (3) SA 500 at 502E-503 D.

[13] 2012 33 ILJ 2117 (LC).