Van Zyl and Others v Tergro Group of Companies (Pty) t/a Harcourts Tegro Group (JS1042/14) [2017] ZALCJHB 477 (19 December 2017)

Van Zyl and Others v Tergro Group of Companies (Pty) t/a Harcourts Tegro Group (JS1042/14) [2017] ZALCJHB 477 (19 December 2017)

The court found that the applicants were entitled to commission for property sales concluded during their employment, as the respondent failed to substantiate any legitimate deductions or forfeiture. The respondent's conduct, including its failure to enforce restraint and notice provisions at the time of resignation, communications wishing the applicants well, and lack of immediate assertion of contractual rights, amounted to a waiver of its rights to enforce those provisions. The respondent only raised the counter-claim after receiving the applicants' demand for commission, which was inconsistent with an intention to enforce the restraint and notice clauses. The applicants' claims of...

Citation
[2017] ZALCJHB 477
Parties
Applicant: Hendrik Gideon Van Zyl; Applicant: Petrus Jacobus Viljoen; Applicant: Karen Frauendorf; Respondent: Tergro Group of Companies (Pty) Ltd t/a Harcourts Tegro Group
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
19 December 2017
Case Number
JS1042/14
Procedural Posture
Labour Claim / Trial Judgment
Outcome
Applicants' claims for commission succeed; respondent's counter-claim dismissed; no order as to costs.
Judges
E Tlhotlhalemaje
Legal Topics
Restraint of Trade, Waiver of Contractual Rights, Commission Entitlement, Breach of Employment Contract, Constructive Dismissal, Liquidated Damages
Labour Law Commercial and Corporate Restraint of Trade Waiver of Contractual Rights Commission Entitlement Breach of Employment Contract Constructive Dismissal Liquidated Damages

Case Brief

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Parties

Hendrik Gideon Van Zyl

Applicant

Petrus Jacobus Viljoen

Applicant

Karen Frauendorf

Applicant

Tergro Group of Companies (Pty) Ltd t/a Harcourts Tegro Group

Respondent

Procedural Posture

Labour Claim / Trial Judgment

Legal Issues

  1. 1 Whether the applicants are entitled to payment of commission after resignation and joining a competitor.
  2. 2 Whether the respondent validly waived its rights to enforce restraint of trade and notice period provisions.
  3. 3 Whether the respondent's counter-claim for breach of contract and liquidated damages is sustainable.

Ratio Decidendi

The court found that the applicants were entitled to commission for property sales concluded during their employment, as the respondent failed to substantiate any legitimate deductions or forfeiture. The respondent's conduct, including its failure to enforce restraint and notice provisions at the time of resignation, communications wishing the applicants well, and lack of immediate assertion of contractual rights, amounted to a waiver of its rights to enforce those provisions. The respondent only raised the counter-claim after receiving the applicants' demand for commission, which was inconsistent with an intention to enforce the restraint and notice clauses. The applicants' claims of...

Court Disposition

Applicants' claims for commission succeed; respondent's counter-claim dismissed; no order as to costs.

Orders

  • First applicant's claims succeed: Claim A (R6,140.35), Claim B (R31,745.61), Claim C (R67,543.86), Claim D (R7,986.00); total R113,415.82 plus interest as at 25 May 2015.
  • Second applicant's claims succeed: Claim G (R7,278.95), Claim I (R7,402.00); total R14,680.00 plus interest as at 25 May 2015.