Titan Hospital and Retail Services CC t/a Titan Pos v God`s Power Chahuruvah and Others (J 105/2022) [2022] ZALCJHB 21 (21 February 2022)
The Labour Court found that it lacked jurisdiction to entertain the applicant's common law claim of unlawful competition, as it was not brought under section 77(3) of the BCEA. The only matter properly before the court was the third respondent's confidentiality undertaking, but the application was rendered moot...
Source-derived case information.
- Citation
- [2022] ZALCJHB 21
- Parties
- Applicant: Titan Hospitality and Retail Services CC t/a Titan POS; Respondent: God's Power Chahuruvah; Respondent: Manfield Moyo; Respondent: Patrick Ncube; Respondent: GMP POS (Pty) Ltd
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- J 105/2022
- Procedural Posture
- Urgent Application / Application for Enforcement of Restraint of Trade and Confidentiality; Jurisdictional Ruling
- Outcome
- Application dismissed for want of jurisdiction and mootness; costs awarded against applicant.
- Judges
- Whitcher
- Legal Topics
- Restraint of Trade, Confidentiality Undertaking, Unlawful Competition, Jurisdiction of Labour Court
Source-derived case record
Summary, issues, holding and outcome
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Parties
Titan Hospitality and Retail Services CC t/a Titan POS
Applicant
God's Power Chahuruvah
Respondent
Manfield Moyo
Respondent
Patrick Ncube
Respondent
GMP POS (Pty) Ltd
Respondent
Procedural Posture
Urgent Application / Application for Enforcement of Restraint of Trade and Confidentiality; Jurisdictional Ruling
Legal Issues
- 1 Does the Labour Court have jurisdiction over common law claims of unlawful competition not brought under section 77(3) of the BCEA?
- 2 Is there a valid restraint of trade or confidentiality undertaking enforceable against the respondents?
- 3 Was the application against the Third Respondent necessary after his written undertaking?
Ratio Decidendi
The Labour Court found that it lacked jurisdiction to entertain the applicant's common law claim of unlawful competition, as it was not brought under section 77(3) of the BCEA. The only matter properly before the court was the third respondent's confidentiality undertaking, but the application was rendered moot because the third respondent had already provided a written undertaking to abide by his confidentiality obligations prior to the application being launched, and there was no evidence of breach. Consequently, there was no basis to proceed against any respondent, and the application was dismissed with costs.
Court Disposition
Application dismissed for want of jurisdiction and mootness; costs awarded against applicant.
Orders
- The application is dismissed.
- The applicant is ordered to pay the respondents' costs.
Full Case Text
Judgment text and source record
44 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN JOHANNESBURG)
Not Reportable
Case no: J 105/2022
In the matter between:
TITAN HOSPITALITY AND RETAIL
SERVICES CC T/A TITAN POS
Applicant
and
GOD’S POWER CHAHURUVAH
First Respondent
MANFIELD MOYO Second
Respondent
PATRICK NCUBE
Third Respondent
GMP POS (PTY) LTD
Fourth Respondent
Application heard: 17 February 2022
Delivered: This judgement was handed down electronically by circulation to the parties’ legal representatives by email. The date and time for the hand down is deemed to have been at 10h00 am on 21 February 2022.
JUDGMENT
WHITCHER J
[1] This is an urgent application, characterised by the Applicant as an application to enforce compliance with restraint of trade and confidentiality provisions set out in the First, Second and Third Respondents’ contracts of employment and restraining the Respondents from using the Applicant’s confidential information unfairly and as a spring board to advance the business of the Fourth Respondent in competition with the Applicant.
[2] In opposition, the Respondents contended, inter alia, that the First and Second Respondent have never signed an employment contract with the Applicant, providing for any restraint of trade or confidentiality undertakings in favour of the Applicant, and that the Third Respondent’s contract only provided for a confidentiality undertaking.
[3] This was not disputed by the Applicant in its reply. Instead, it contended, its case against the Respondents was founded on the common law claim of unlawful competition.
[4] In light of the jurisdictional ruling below, there is no need to get into the issue of whether such a case was only made out in the replying affidavit.
[5] The term “unlawful competition” refers to those rules, primarily of a common law origin, that govern the competitive process between traders. It is generally accepted that liability on the basis of unlawful competition is delictual in nature and that protection is based on the lex Aquilia.
[6] Save in terms of section 77(3) of the Basic Conditions of Employment Act, 1997, which was not invoked in the above claim, this Court has no jurisdiction over common law claims (claims of unlawfulness), even if the alleged unlawful conduct alleged commenced while there was still an employment relationship. In other words, this Court can only exercise civil jurisdiction under section 77(3) of the BCEA. In light of this, the Applicant’s claim of unlawful competition must be struck from the roll for want of jurisdiction.
[7] The only matter properly before this court in terms of jurisdiction is the Third Respondent’s confidentiality undertaking in his contract of employment.
[8] This matter, however, falls to be dismissed in light of the demand letter served on the Third Respondent and which preceded this application.
[9] The letter of demand effectively demanded that the Third Respondent provide the Applicant with a written undertaking that he will abide by his confidentiality undertakings as contained in his contract of employment, failing which the present application would be launched.
[10] The Third Respondent complied with this demand and provided a written undertaking to abide by his confidentiality obligations to the Applicant in writing on the 10 February 2022.
[11] There is no averment that the Third Respondent breached this undertaking.
[12] There was thus no need to proceed with the application against the Third Respondent.
[13] On the matter of costs, as the matter was brought as a civil claim the regime for costs is that, absent special considerations, costs ought to follow the result.
[14] In the premises, the following order is made:
1. The application is dismissed.
2. The Applicant is ordered to pay the Respondents’ costs.
________________________________
Benita Whitcher
Judge of the Labour Court of South Africa
Appearance:
For Applicant:
Adv C Britz, instructed by Van Niekerk Attorneys
For Respondents: Adv E Sithole, instructed by D’Amico Incorporated