Burquip International (Pty) Ltd v Geral and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Swartz AJ |
| Judgment Date | 13 January 2023 |
| Citation | 2023 JDR 2634 (LC) |
| Hearing Date | 04 November 2022 |
| Docket Number | J 913/21 |
| Court | Labour Court |
Swartz AJ:
Introduction
This is a contempt of court application. This matter emanates from a restraint of trade application against the respondents. The applicant contends that the respondents are in breach of the consent order made an order of court on 3 September 2021 (“the consent order”).
In terms of the consent order, the respondents made the following undertakings:
The First Respondent undertakes:
Until 7 July 2022, to not contact and/or in any way engage with, either directly or indirectly, any of the Applicant’s customers or suppliers in Gauteng; and
to honour the confidentiality undertakings contained in the employment contract concluded between the Applicant and the First Respondent dated 18 January 2017.
The Second Respondent
until 9 July 2022, to not contact and/or in any way engage with, either directly or indirectly, any of the Applicant’s customers or suppliers in Gauteng;
and
to honour the confidentiality undertakings contained in the employment contract concluded between the Applicant and the Second Respondent dated 3 July 2017.”
A rule nisi for contempt proceedings was issued by this court on 12 August 2022. The return date was 4 November 2022. This rule nisi was personally served on both respondents on 23 August 2022.
The parties submissions
After the consent order was made an order of court, the applicant alleges that the first respondent breached the consent order in the following respects:
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Swartz AJ
on 28 October 2021, the first respondent contacted Mr Newman, a co-owner of New Moon Trailers being an established customer of the applicant through WhatsApp texts;
on or about the second week of January 2022 a representative of Rassie Trailers verbally disclosed to employees of the applicant that the first respondent addressed an email to the owners of Rassie Trailers in which the first respondent marketed Henred Leicht’s products;
on or about the first week of January 2022, the first respondent sent a WhatsApp text to Mr Zachariya Casey the owner of Zachariya Casey Commodities (Pty) Ltd. This WhatsApp text informed Zachariya Casey that he is now employed by Henred Leicht and invited Zachariya Casey to visit the premises of Henred Leicht; and
the first respondent and the applicant’s customers became friends on Facebook and inevitably any marketing activity of Henred Leicht’s products performed by the first respondent on his Facebook profile would be received by the applicant’s customers.
After the consent order was made an order of court, the applicant alleges that the second respondent breached the consent order in the following respect:
on 22 November 2021 the second respondent acting in her representative capacity as an employee of Henred Leicht, sent an email to Mr Donald Chalmers of T & I Chalmers Engineering (Pty) Ltd, a long-standing supplier of the applicant. In this email the second respondent requested a quotation for large quantities of serval stock items supplied by T & I Chalmers Engineering (Pty) Ltd for Henred Leicht.
The respondents have not filed answering affidavits but instead brought an application on 14 October 2022 to strike out the hearsay evidence that the applicant relies on to prove that the respondents’ are in contempt of the consent order. The respondents are seeking that the evidence tendered in the applicant’s founding
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Swartz AJ
affidavit in paragraphs 22 to 26, the first sentence of paragraph 30, paragraphs 32, 34 to 38 be struck out as such paragraphs constitutes inadmissible hearsay evidence. The respondents further seek an order extending the rule nisi in order for the respondents to furnish answering affidavits once the abovementioned paragraphs have been stuck out.
The respondents in their heads of argument contend that the applicant has not proved non-compliance with the consent order dated 3 September 2021 in that the applicant’s proof of non-compliance by the respondents amounts to inadmissible hearsay evidence.
Evaluation
There is no direct evidence from the applicant to prove non-compliance with the consent order save for the documentary evidence of the WhatsApp screen shots and the email that the second respondent sent T & I Chalmers Engineering (Pty) Ltd.
Nevertheless this court is required to decide if the hearsay evidence that the applicant has disclosed is admissible in order to support the relief it seeks for contempt of consent order.
In PSA v Minister: Department of Home Affairs the Labour Appeal Court relied on rule 11 of the Rules for the Conduct of Proceedings in the Labour Court (the Rules) read with rule 6 (15) of the Uniform Rules of Court in dealing with an application to strike out.
Rule 6 (15) of the Uniform Rules of Court provides:
“The court may on application order to be struck out from any affidavit any matter which is scandalous, vexatious or irrelevant, with an appropriate order as to costs, including costs as between attorney and client. The court may not grant the application unless it is satisfied that the applicant will be prejudiced if the application is not granted.”
2023 JDR 2634 p5
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