Ashton International College Ballito (Pty) Ltd v Erasmus and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Ploos van Amstel J |
| Judgment Date | 23 January 2023 |
| Docket Number | D12967/2022 |
| Hearing Date | 30 December 2022 |
| Court | KwaZulu-Natal Local Division, Durban |
| Citation | 2023 JDR 0128 (KZD) |
Ploos van Amstel J:
The applicant in this matter is Ashton International College Ballito (Pty) Ltd. It functions as an independent private school in Ballito, not far from Durban, on the north coast. The first respondent is Mr PCJ Erasmus, who was previously employed by the applicant, first as headmaster of its school in Ballito, and later as its managing director. The second respondent is Curro Salt Rock Primary School (Pty) Ltd. It too functions as an independent private school, and has its school in Salt Rock, a small town some eight kilometres to the north of Ballito.
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Ploos van Amstel J
In this application the applicant sought an order interdicting the first respondent from breaching a so-called restraint of trade agreement and taking up employment with the second respondent, for a period of eight months, with effect from 15 December 2022. The matter was argued before me in motion court on 30 December 2022, after which I made an order dismissing the application with costs, and said my reasons would follow before the end of January 2023. I thought it would be in the interests of the parties to know the outcome as soon as possible, as the schools start again early in the new year.
I refer herein, where it is convenient to do so, to the applicant as Ashton College or Ashton, to the first respondent as Mr Erasmus and to the second respondent as Curro College or Curro.
The deponent to the founding affidavit, Mr Buys, says Ashton College provides independent education and schooling and is an independent English-medium co-educational school with a Christian ethos, catering for students from Grade 0000 to Grade 12. He says it is one of the biggest private schools on the north coast.
He says Curro College is a trade rival and offers the same services as Ashton College. They compete in the same community for student attendance and against each other in sporting events. It seems clear from the papers that both schools offer quality educational, cultural and sporting activities and have state-of-the-art facilities.
Mr Erasmus commenced employment with Ashton College in Ballito as its headmaster in January 2010. In May 2010 he purchased 6% of the shares in the applicant, and in January 2017 he was promoted to managing director. He resigned in August 2021, and Ashton announced that he was taking early retirement.
For the next 16 months or so Mr Erasmus was effectively retired. Towards the
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Ploos van Amstel J
end of 2022 Curro College announced that he had been appointed as the head of its primary school, and he says in his answering affidavit that he hopes to take up that position at the beginning of January 2023.
On 2 December 2022 the applicant's attorney sent an e-mail to Mr Erasmus, in which she contended that he was in breach of 'Confidentiality and Restraint Undertakings' contained in a Mutual Separation Agreement which he and the applicant had concluded in August 2021, and demanded that he sign an undertaking that he would honour those terms. He declined to sign it, on the basis of advice from his attorney that he was under no obligation to do so. The application for an interdict was launched on 6 December 2022. The matter was opposed by Mr Erasmus, but Curro played no part in it, save for the delivery of a notice that it would abide the outcome.
The agreement on which the applicant relies was concluded on 17 August 2021. It recorded that Mr Erasmus wanted to go on early retirement with immediate effect; it provided for a separation package, part of which was the purchase by the applicant of his shares, with the purchase price payable over a period of 24 months; and it provided that Mr Erasmus would not for a period of two years be employed by any company which carries on business within a radius of 50 km and renders 'competing services'.
The agreement is poorly drafted. It appears to be the product of a so-called 'cut and paste exercise'. It refers, by way of example, to definitions of 'prescribed customers', 'prescribed services', 'competing services' and 'prescribed area'. There are no such definitions in the agreement.
Some of the clauses are so badly worded that it is not possible to work out what they were intended to say. Clause 14.3 is an example. So is clause 16, which provides as follows:
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Ploos van Amstel J
'Notwithstanding that the clauses themselves do not expressly provide for this, the expiration or termination of this Mutual Separation Agreement shall not affect such provisions of this Mutual Separation Agreement and they will operate after any such expiration or termination where there is a necessity that they must continue to have effect after such expiration or termination'.
It is not clear what the expression 'such provisions' refers to, which leaves the clause meaningless.
Clause 11 provides as follows: 'A failure to comply with conditions by either party herein will with immediate effect force this Mutual Separation Agreement to be null and void'. This is a most unusual clause. I thought perhaps it was borrowed from an agreement which was subject to suspensive or resolutive conditions. But in the Separation Agreement there are no conditions which had to be fulfilled. And in clause 9 it is recorded: 'Both parties completely and...
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