MMMPA Quantity Surveyors and Project Managers (Pty) Ltd v Buret

• Jurisdiction: South Africa
• Judge: Pakade ADJP
• Judgment Date: 06 January 2015
• Citation: 2015 JDR 0359 (ECGEL)
• Hearing Date: 21 August 2014
• Court: East London Local Division
• Docket Number: 592/14

Pakade ADJP:

[1]

This is a contempt of court application. The applicant seeks an order declaring the respondent to be in contempt of the Order of this Court which was issued on 28 May 2013. The effect of the Order was to made a settlement agreement (The agreement) between the parties, marked "HSL3" an Order of the Court. The

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Pakade ADJP

Agreement was signed by HS Lemmer for the applicant and by J Buret, the respondent, on 23 May 2013.

[2]

The applicant had instituted application proceedings against the respondent for the enforcement of the restraint of trade provisions of the agreement against the respondent. It is that application that resulted in the settlement which was made an Order of the Court on 25 May 2013. Those restraint of trade provisions are embodied in the applicant's shareholders agreement. The respondent was the employee and the shareholder of the applicant. It is imperative that I reproduce the Settlement Agreement. It reads:

"NOW THEREFORE IT IS AGREED:

1. That , subject to the proviso contained in paragraph 3 below , Respondent is interdicted and restrained, for a period of two years from the date of last signature of this agreement, whether as proprietor, partner, director, shareholder, member, executive, consultant, contractor, financier, agent, representative, assistant , trustee or beneficiary of a trust or otherwise and whether for reward or not , directly or indirectly , from carrying on or being interested or engaged in or concerned with or employed by any company Close corporation, firm, undertaking or concern that carries on in the Eastern Cape Province which provides quantity surveying and project management services .

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Pakade ADJP

2. That Respondent is interdicted and restrained, for a period of two years from the date of last signature of this agreement, from soliciting or canvassing business from any client of Applicant or using any other means or taking any other action which is directly or indirectly designed , or in the ordinary course of events , to result in any such client terminating his association with the Applicant and or transferring his business to any person other than Applicant, or attempting to do so.

3. That notwithstanding the terms of paragraph 1 and 2 above , Respondent shall be entitled to provide the services of a quantity surveyor , project manager and construction consultant to the client Terry Cook and or Misty Mountain Trading 101(Pty) Ltd and any of Cook's subsidiary or trading entities and in respect of which Respondent undertakes pay to Applicant 30% (Thirty percent ) of the gross proceeds of all services provided to Terry Cook and/or Misty Mountain Trading 101 (Pty) Ltd and any of cook's subsidiary or trading entities earned by Respondent or any entity in which he is involved or any entity with which he is associated and which attends to the work of Terry Cook or Misty Mountain Trading 101 (Pty) Ltd, during the two year period of restraint provided for in paragraph 1 above.

4. That Applicant and/or the purchasing shareholder /s shall purchase the Respondent ' s twenty (20) shares in the Applicant for a purchase price of R 800 000.00( Eight Hundred Thousand Rand ) which amount shall be set off against the Respondent's debit loan account in the Applicant in the sum of R 536 300.00 and a contribution toward Applicant 's costs of this application

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Pakade ADJP

in the sum of R 50 000.00, and the balance shall be paid to the Respondent within 14 ( Fourteen days ) of last signature of this agreement.

5. Should the Applicant or purchasing shareholder/s not make payment of the sum of R 213 700.00 within the time period referred to in 6 above the outstanding sum shall attract interest at the prime overdraft rate expressed by the Applicant's bankers from time to time from the due date of such amount to date of final payment .

6. That this settlement agreement shall be in full and final settlement of all the issues between the parties and subsequent to the signature thereof neither parties shall have any...