TIBMS (Pty) Ltd t/a Halo Underground Lighting Solutions v Knight and Another (J2638/16) [2016] ZALCJHB 545 (23 December 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: J2638/16

In the matter between:

TIBMS (PTY) LTD t/a

HALO

UNDERGROUND

LIGHTING SOLUTIONS Applicant and

DENISE RENEE KNIGHT First Respondent

BARBARA

BREEDT Second Respondent

Heard: 7 December 2016

Delivered: 23 December 2016

RABKIN-NAICKER J

[1] The Applicant seeks to enforce a restraint of trade. I am accepting that the matter is urgent and considering the application on its merits. It is unusual in an application such as this to deal with a disputed agreement in restraint of trade. A notice to produce the original restraint of trade and confidentiality undertakings which the applicant alleged were signed by all staff, as well as the original electronic versions of these inter alia, was filed on the 2 December 2016. These were not produced before or at the hearing. Mr Snyman for the applicant, submitted that such a notice in the style of a Rule 35(12) notice was not the practice in this court. Reference was made to Rule 11 by Counsel for the Respondents, with respect, correctly.

[2] The disputed restraint of trade agreement is contained in annexure “KB3” to the founding affidavit. This annexure, together with all others in the founding and replying papers were not attested to by the Applicant’s deponent. In addition, the founding papers contain the averment that all 40 members of staff signed the ‘exact form’ of the restraint of trade. The reason for not annexing or producing any copies of these is given as being that their employment contracts are confidential “as between the Applicant and these employees”.

[3] The First Respondent avers as follows in her answering papers:

“25.1 I have never seen nor signed a restraint of trade covenant nor confidentiality undertaking; nor code of ethics.

25.2 The Applicant or KB’s reliance on KB 2 and KB 3 is why the documents specified in paragraphs 2,3,5,6,7,and 8 of my Notice to Produce Documents(DK4) were required.

25.3 I refer to my 17 October 2012 employment contract which was annexed to my attorney’s letter of 29 November 2016 (DK 6). It has a distinctive logo “HALO SERIES” at the top and correctly records the Applicant’s office address as 159 Market Street, Boksburg.

25.4 The logo at the top of all the pages of KB 2 and KB 3 appears to be an enlarged version of the top of the H, A and L from the word “HALO”. This is why I require the original electronic versions of KB 2 and KB 3…..

25.5 The final page of KB 2 records “Signed at Johannesburg on this day of 2013” Neither in 2013 or before or after has the Applicant or C & I Electrical (Pty) Ltd had offices in Johannesburg.

25.6 The first page of KB 3 records an “implementation date 28 November 2012” but also records the Applicant’s address at “29 Willow Road, Boksburg”. The Applicant however only moved in April 2013 to that address from “159 Market Street, Boksburg” as recorded on my 2012 contract.”

[4] The second respondent also points out these discrepancies and avers that she did not sign the said agreement and undertaking.

[4] Applicant explains how the apparent discrepancies came about in paragraph 33.3 of the replying papers:

“33.3 I will explain how this came about. Considering the expansion in applicant’s business, I deemed it prudent, in 2013, to put proper structures in place where it came to employment policies and contracts and the like. To that end, I engaged the services of an industrial relations consultant, Venter (referred to above). Venter then drafted new contracts for the applicant to use, which included an employment contract and restraint of trade and confidentiality agreement as annexure thereto. Venter also drafted the proposed code of ethics. By this time, the applicant had already moved to Willow Street in Boksburg. The reference to signed at “Johannesburg” is simply the signature template used by Venter, and I thought

nothing of it.

33.6 The heading oat the top of annexure “KB2” and “KB3” is simply how the applicant’s attorneys’ printer printed out the logo……..”

[5] There is no confirmatory affidavit deposed to by one Venter.

[6] In argument before court, Mr Snyman for the applicant correctly conceded that there are clear disputes of fact on the affidavits.

Critically such a dispute exists in respect of facts on which Applicant relies to discharge its onus to show the existence of the

restraint of trade or confidentiality undertaking[1]. In these circumstances, and in the absence of a failure to apply for the matter to be referred to oral evidence on an urgent basis where such disputes should have been anticipated, the application stands to be dismissed.

[7] It is not necessary for the court to delve into the substance of the papers in a situation where the applicant has not even got off the starting line in this type of application. Applying the Plascon Evans rule, I find that no restraint of trade covenant has been evoked. In the circumstances, I make the following order:

Order:

1. The application is dismissed;

2. Applicant is to pay the costs of the First and Second Respondents.

_____

H. Rabkin-Naicker

Judge of the Labour Court of South Africa

Appearances:

Applicant:

S Snyman of Snyman Attorneys

First Respondent: JR Whitehead SC

Instructed by:

Commins Attorneys

Second Respondent: HM Viljoen

Instructed by:

Mickael Metcaffe Attorney

[1] Experian South Africa (Pty) Ltd v Haynes and Another 2013 (1) SA 135 (GSJ) at paragraph 14