Aetiology Today CC t/a Somerset Schools v Van Aswegen and Another

• Jurisdiction: South Africa
• Judge: Cloete AJ
• Judgment Date: 14 May 1991
• Citation: 1992 (1) SA 807 (W)
• Hearing Date: 10 May 1991
• Court: Witwatersrand Local Division

Cloete AJ:

This is an extended return day of a rule nisi. The matter J originally came before Lazarus J as one of urgency on 2 May of this year.

Cloete AJ

A On that date the notice of motion was amended to include a prayer for costs on the scale as between attorney and own client; the respondents gave undertakings to act, or to refrain from acting, as required in terms of the notice of motion, pending the return day; and the parties were put on terms to deliver further affidavits.

B After the hearing concluded before me last Friday afternoon the respondents' counsel agreed to the undertakings remaining in force until I gave judgment this morning.

There are a number of disputes of fact on the papers between the version of the applicant and the versions of the first, second and fourth respondents. The third respondent has not filed an affidavit.

C Neither counsel requested me to refer any issues for the hearing of oral evidence. I must accordingly approach the disputes of fact in the manner laid down by the Appellate Division in the matter of Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C, where Corbett JA, as he then was, said the following:

D 'Secondly, the affidavits reveal certain disputes of fact. The appellant nevertheless sought a final interdict, together with ancillary relief, on the papers and without resort to oral evidence. In such a case the general rule was stated by Van Wyk J (with whom De Villiers JP and Rosenow J concurred) in Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235E-G, to be:

E ". . . (W)here there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant's affidavits justify such an order. . . . Where it is clear that facts, though not formally admitted, cannot be denied, they must be regarded as admitted."

F This rule has been referred to several times by this Court. . . . It seems to me, however, that this formulation of the general rule, and particularly the second sentence thereof, requires some clarification and, perhaps, qualification. It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have G been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact. . . . If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to H be called for cross-examination under Rule 6(5)(g) of the Uniform Rules of Court . . . and the Court is satisfied as to the inherent credibility of the applicant's factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks. . . . Moreover, there may be exceptions to this general rule, as, for example, where the allegations or denials of the respondent are I so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers.'

These principles apply irrespective of the fact that the onus may be on the respondent - Ngqumba en 'n Ander v Staatspresident en Andere; Damons NO en Andere v Staatspresident en Andere; Jooste v J Staatspresident en Andere 1988 (4) SA 224 (A) at 260H-261B.

Cloete AJ

A It is common cause in this matter that the applicant is a close corporation which conducts a private school and trades as 'Somerset Schools'. It opened business at the beginning of the year. It is also common cause that the first, second and fourth respondents are teachers who were employed by the applicant. It is necessary to deal with this latter aspect in a little detail.

B So far as the first respondent is concerned, it is common cause on the papers that he signed a document, annexure A to the founding affidavit. That document is on the letterhead of the applicant. It reads in part as follows:

'SOMERSET HIGH SCHOOL

AGREEMENT BETWEEN SOMERSET HIGH SCHOOL

C (hereinafter referred to as "SOMERSET") and DARRYL VAN ASWEGEN (hereinafter referred to as "THE EMPLOYEE").

Somerset hereby agreed (sic) to employ the services of the employee on the terms and conditions as set out hereunder:

1.

The employee will provide experience, expertise, knowledge and ability as appropriate in the position of MATHS TEACHER. . . .

2.

D . . .

3.

. . .

4.

. . .

5.

The employee agrees not to solicit any Somerset clients or employees for a period of six months from termination of this agreement.'

E The first respondent says the following in connection with this document - and I quote from his answering affidavit:

'On 10 December 1990 I signed a document which I thought was a letter of appointment. This document forms annexure A of the applicant's founding affidavit and is most certainly not a standard letter of F appointment, but an employment contract incorporating provisions relating to my duties, position, benefits of employment, provisions regarding termination, and also incorporating provisions relating to restraints on me of which I was not made aware of (sic).'

On the doctrine of quasi mutual assent, often referred to in this context as the caveat subscriptor rule, the first respondent is bound to the terms of the contract contained in the document signed by him, G unless possibly the first respondent could argue that the contract included terms which were so unexpected that they should have been brought specifically to his attention. The paragraph of the answering affidavit to which I have referred falls short of making out this case.

I accordingly find that the first respondent is bound by clause 5 of H annexure A, being the agreement signed by him on 10 December 1990 and in terms of which he was employed as a teacher by the applicant.

On 28 February 1991 the first respondent tendered his resignation from the applicant's employ, effective as at end April 1991. The first respondent was only obliged to give one month's notice of termination of I his services to the applicant and the fact that he gave two months is either coincidental or suspicious, as will emerge from what is set out below.

So far as the second respondent is concerned, it is common cause that she signed annexure B to the founding affidavit. In terms of that document she was appointed an assistant teacher (history) with effect from 23 January 1991 for a period of three calendar months on probation. J Annexure B contained the following clause:

Cloete AJ

A 'The employee acknowledges that the confidential trade secrets with regard to the business of Somerset will not be disclosed by the employee during or after the termination of this agreement.'

Annexure B contained no restraint similar to clause 5 of annexure A, being the first respondent's letter of appointment. The following was, however, alleged in the founding affidavit: B

'I state further that apart from the terms of the said contract, second respondent owed a duty in law to applicant that, whilst employed by it, she would act in applicant's best interests and would not act against applicant's best interests such as to solicit pupils of applicant to leave applicant and enrol at another educational institution or to falsely inform pupils that applicant was closing its schools.'

The existence of the duty is not denied by the second respondent in C the answering affidavit but the breach was. The duty exists, in my view, by implication of law and I find it established.

So far as the fourth respondent is concerned, the applicant said the following in the founding affidavit:

'Fourth respondent was employed by applicant as an acting principal D during December 1990 (later converted to administrative executive). She signed the same form of contract as first respondent. (Applicant is in possession of a copy of her contract, but in the short time available has been unable to locate same. Same will be made available to the above honourable Court at the hearing of the above matter.)'

To this allegation the first respondent replied as follows:

E 'The fourth respondent is not a teacher and did not sign the same contract as I did and accordingly denies the allegations made against her in this regard.'

The fourth respondent associated herself with these averments in her answering affidavit annexed to the first respondent's answering F affidavit. These averments are patently incorrect. A contract was concluded, which was in the identical printed terms as that signed by the first respondent, including the restraint (clause 5). It was handed in at the hearing and it was common cause that that was the contract signed by the fourth respondent.

I therefore find that the fourth respondent signed a contract of employment with the applicant containing a restraint clause in the same G terms as the restraint imposed on the first respondent.

I return to the chronology of the matter. On 23 April 1991 a meeting was held between teachers employed by the applicant to discuss problems at the applicant's school. It is common cause that there were problems. H The extent of the problems is in dispute. What transpired at the meeting is dealt with in an affidavit of one Gopane filed on behalf of the applicant. Gopane is a teacher employed by the applicant. His version, however, differs from the...