Taylor v Himoinsa Southern Africa (Pty) Ltd and Another; In re Himoinsa Southern Africa (Pty) Ltd v Taylor and Another (J 873/21) [2022] ZALCJHB 84 (5 April 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 873/21

In the matter between:

WARRICK JOHN TAYLOR

Applicant

and

HIMOINSA SOUTHERN AFRICA (PTY) LTD

First respondent

AGGREKO ENERGY RENTAL SOUTH AFRICA (PTY) LTD Second Respondent

In re:

HIMOINSA SOUTHERN AFRICA (PTY) LTD

Applicant

WARRICK JOHN TAYLOR

First Respondent

Decided: In Chambers

Delivered: 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 05 April 2022

JUDGMENT-APPLICATION FOR LEAVE TO APPEAL

MAHOSI, J

Introduction

[1] The applicant launched an application for leave to appeal against the whole judgment of this Court, which was handed down on 01 October 2021. In its judgment, the Court made following order:

‘1. This application is treated as one of urgency as provided for in terms of Labour Court Rule 8 and the applicant’s failure to comply with the normal time periods, forms and services are hereby condoned.

2. The first respondent is interdicted and prevented for a period of 6 months from 01 August 2021 from:

2.1 approaching, advising or contacting any person in order to, either directly or indirectly, solicit the custom of person or entity who was the customer with whom or to whom, on behalf of the applicant, negotiations, discussions, order, representations were entered into or made during the period of the first respondent employment with the applicant; and

2.2 being employed either directly or indirectly by or have an interest in either as an employee, principal agent, member, shareholder, director, partner, consultant, financier or advisor or in any other like capacity, in any consent or entity which carries on the same business or at a business substantially similar or like the business of the applicant in South Africa, Lesotho, Swaziland, Namibia, Botswana, Zambia, Zimbabwe, DRC, Mozambique and Malawi and any other country in which the applicant is conducting or has conducted business or any part thereof, in one year preceding 30 June 2021 where Himoinsa conducts its business.

3. There is no order as to costs.’

[2] The first respondent opposed the application and both parties filed submissions.

Submissions

[3] The applicant’s submission was that the Court erred by holding that the dispute ought to be heard on the urgent roll despite the lack of urgency and without considering the prejudice to him. According to the applicant, the Court ought to have struck the matter of the roll.

[4] The applicant further submitted that the Court erred in granting interdictory relief and erroneously imposed restraints of trade that he had not agreed to upon him.

[5] It is the applicant’s further submission that the Court erred in proceeding to make factual findings in favour of the first respondent without rejecting the applicant’s version. According to the applicant, in the event of disputes of fact, a Court is enjoyed to apply the Plascon-Evans rule irrespective of the incidence of the onus and must determine the matter with reference to the respondent’s version unless the Court dismisses that version as being farfetched or untenable.

[6] Furthermore, the applicant submitted that the Court erred in finding that the first respondent established a breach of the restraint undertakings it relied upon. In this regards, the applicant submitted that had the Court applied its mind it would have exercised its discretion against the enforcement of the restraint of trade.

[7] The first respondent submitted, inter alia, that there was no merit to the application for leave to appeal as it lacks prospects of success and that it should be dismissed with costs. The first respondent further submitted that the Court’s decision to hear the matter urgently was not a decision in respect of the merits of the dispute, but concern an interlocutory matter independent from the merits. It was for this reason that the first respondent argued that the decision on urgency was not capable of serving as the basis for an appeal.

[8] It is the first respondent further submission that the applicant’s contention that the Court granted interdictory relief that had the effect of imposing obligations that he had not agreed to rests on the assertion that the Court made an agreement for the parties, which is a “misconceptualisation” of the Court order. According to

the first respondent, the Court was entitled to make an order it did as it had to take into account the applicant’s contractual

obligations.

[9] The applicant submitted that while a party may advance a legal argument in support of its claim or its defence, even if it had not been pleaded, the other party must not be prejudiced by the fact that it has not been apprised of the case that it is expected to meet, which was the case, in the current matter. The first respondent further submitted that even if the Court had permitted the applicant to pursue an argument not pleaded, it would not have changed the outcome because the proper interpretation of clause 5.5 of the contract of employment precludes the applicant from taking up employment with a competitor.

[10] Lastly, the first respondent submitted that the applicant had an obligation to refrain from breaching the restraint and he had no right to be relieved from the restraint on account of being given a lucrative offer by a competitor of the first respondent.

Applicable law and analysis

[11] In determining whether to grant an application for leave to appeal, the traditional test is whether there is a reasonable prospect that another court may come to a different conclusion.[1] In terms of section 166(1) of the Labour Relations Act (LRA),[2] a party to proceedings before the Labour Court, may apply to the Labour Court for leave to appeal to the Labour Appeal Court (LAC)

against any final judgment or final order of the Labour Court. Section 17 of the Superior Court Act,[3] which applies to the Labour Court, regulates instances in which the appeal may be granted. Section 17(1) provides as follows:

‘Leave to appeal may only be given where the judge or judges are of the opinion that–

(a)

(i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b) the decisions sought on appeal do not fall within the ambit of section 16(2)(a); and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issue between the parties.’

[12] Section 16(2)(a) of the Superior Court Act provides as follows:

‘(i) When at the hearing of the appeal the issues are of such a nature that the decision sought will have no practical effect, the appeal may be dismissed on this ground alone.

(ii) save under exceptional circumstances, the question whether the decision would have no practical effect or result is to be determined without reference to any consideration of costs.’

[13] In Martin and East (Pty) Ltd v National Union of Mineworkers and Others,[4] the LAC made it clear that leave to appeal is not simply there for the taking, and that this Court must be cautious in granting leave to appeal and in assessing the requirement of the prospect of success. In this case, the Court stated as follows:

‘…The Labour Relations Act was designed to ensure an expeditious resolution of industrial disputes. This means that courts, particularly courts in the position of the court a quo, need to be cautious when leave to appeal is granted, as should this Court when petitions are granted.

There are two sets of interests to consider. There are the interests of the parties such as appellant, namely who are entitled to have their rights vindicated, if there is a reasonable prospect that another court might come to a different conclusion. There

are also the rights of employees who land up in a legal “no-man’s-land” and have to wait years for an appeal (or two) to be prosecuted.

This was a case which should have ended in the labour court. This matter should not have come to this court. It stood to be resolved on its own facts. There is no novel point of law to be determined nor did the Court a quo misinterpret existing law. There was no incorrect application of the facts; in particular the assessment of the factual justification for the dismissals/alternative sanctions.

I would urge labour courts in future to take great care in ensuring a balance between expeditious resolution of a dispute and the rights of the party which has lost. If there is a reasonable prospect that the factual matrix could receive a different treatment or there is a legitimate dispute on the law that is different. But this kind of case should not reappear continuously in courts on appeal after appeal, subverting a key purpose of the Act, namely the expeditious resolution of labour disputes.’[5]

[14] In casu, having had regard to the parties’ submissions, I am not persuaded that there are reasonable prospects of a successful appeal.

As such, I am of the view that this application is without merit and that it ought to be dismissed.

[15] With regard to costs, I am of the view that the requirements of law and fairness dictate that there should be no order as to costs.

[16] Accordingly, the following order is made:

Order

1. The application for leave to appeal is dismissed.

2. There is no order as to costs.

D. Mahosi

Judge of the Labour Court of South Africa

[1] See Karbochem Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others (1999) 20 ILJ 2889 (LC) at 2890B; Ngcobo v Tente Casters (Pty) Ltd (2002) 23 ILJ 1442 (LC) at 1443 para 2 and Tsotetsi v Stallion Security (Pty) Ltd (2009) 30 ILJ 2802 (LC) at 2804 para 14.

[2] Act 66 of 1995 as amended.

[3] Act 10 of 2013.

[4] (2014) 35 ILJ 2399 (LAC).

[5] At 2405-2406.