Spur Group (Pty) Limited v Montgimery and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Rabkin-Naicker J |
| Judgment Date | 10 May 2023 |
| Citation | 2023 JDR 2620 (LC) |
| Hearing Date | 05 May 2023 |
| Docket Number | C119/2023 |
| Court | Labour Court |
Rabkin-Naicker J:
This is an opposed application to enforce a restraint of trade agreement on an urgent basis. The second respondent abides the decision of the Court. The applicant prays for the following relief inter alia:
Interdicting and restraining the first respondent, until the 31 May 2024 from:
2023 JDR 2620 p2
Rabkin-Naicker J
directly or indirectly being engaged or concerned or interested in, or employed by, or soliciting business for, or rendering any service to, the second respondent in any capacity listed in clause 16.2.1 of the Employment Agreement entered into between the applicant and the first respondent on or about 1 March 2010 (“the Employment Agreement”)
acting in breach of clauses 14 and 16 of the Employment Agreement. . .”
At the hearing of the matter, certain preliminary issues were argued. The first respondent sought admission of a fourth affidavit which the applicant opposed. I have exercised my discretion to admit the fourth set of affidavits. This is not unusual in restraint applications as is trite.
The first respondent also sought the admission of what were termed “confirmatory affidavits”. The first affidavit was deposed to by a Mr. Farrelly, former COO of the applicant, and now a Director of second respondent. It was only handed up duly signed on the day of the hearing, although the unsigned version was served on the applicant at an earlier stage. The said affidavit did not aver that the deponent had read the contents of the first respondent’s answering affidavit. Its’ purported aim was described as being to provide context to the averments in the answering papers relating to Farrelly, and to provide the Court with information which “may be relevant to the disputes between the applicant and the first respondent.” No reference had been made to this ‘confirmatory affidavit’ in the answering affidavit.
The second affidavit for which the first respondent sought admission was one deposed to by a Mr Braam Swart, a Director of the Second Respondent and was handed up to Court and to the applicant on the day of the hearing. It reads in material part as follows:
Although the Second Respondent, not being a party to the restraint of trade agreement between the Applicant and the First Respondent, filed a notice to abide, the Second Respondent’s election not to formally participate in the above proceedings should not be seen as an admission of any of the averments contained in Applicant’s papers.
2023 JDR 2620 p3
Rabkin-Naicker J
I have read the founding papers deposed to on behalf of the Applicant as well as the answering affidavit deposed to by the First Respondent, and the confirmatory affidavit deposed to by Mark Farrelly (“Farelly”).
The Second Respondent confirms the correctness of the affidavits in the affidavits of the First Respondent and Farrelly insofar as it related to Second Respondent and its operations.”
The admission of both affidavits was opposed by the applicant. The applicant was of the view that the last minute handing up of a signed affidavit by Farrelly without a formal application being made, was fatal to its admission. Its contents reflected that Farrelly appeared to have written the affidavit on his own behalf. He did not claim any authorization to do so, and it could not be considered as confirmatory.
The second respondent was not before Court, despite an averment by Mr Braam Swart that he was duly authorised by it, to depose to the affidavit. It was submitted by Mr Leslie for the applicant, that its admission would cause clear prejudice to the applicant. The applicant had labelled the first respondent’s evidence on the operations of the second respondent as hearsay given that he has not taken up employment with it as yet. In addition, Swart himself does not aver that he has personal knowledge of the dispute. Nor does he state who authorised him to depose to the affidavit in the second respondent. The attempt to admit same was an attempt by the second respondent to get through the back door and avoid a costs order, it was submitted. Mr Aggenbach for the first respondent confirmed he did not appear for the second respondent and submitted that the affidavits could provide context for the Court.
In the Court’s view, the confirmatory affidavits cannot be admitted given there was no application before Court to do so, and taking into account the prejudice that may be occasioned by the last minute admission of these (deposed to by two directors of the second respondent), given that the second respondent is not before Court. I turn now to deal with the merits of the main application.
2023 JDR 2620 p4
Rabkin-Naicker J
The Employment Agreement entered into in between the parties in 2010 contained a restraint of trade provision, the territory of which is the whole of South Africa and with a duration of 24 months. The following undertakings, contained in Clause 16 of the Agreement, are material:
The Employee hereby undertakes to and in favour of the Company that:
he shall not, for the Restraint period [defined in clause 2.1.7 as 24 months] with effect from the Termination Date, directly or indirectly:
16.2.1.1
carry on or otherwise be engaged or concerned or interested in or employed by;
16.2.1.2
solicit business for;
16.2.1.3
be a proprietor of, director, shareholder, member or partner in;
16.2.1.4
act as a consultant, trustee, manager, employee, agent, exclusive financier, principal, consultant, contractor, administrator, representative, partner, advisor, officer or in any other capacity to;
16.2.1.5
render any service (gratuitously or otherwise) to;
16.2.1.6
lend or advance, or bind himself as surety for, any sum of money or assist financially;
Any person, company, close corporation, partnership, trust, business, body corporate, association or other legal entity or business entity (incorporated or unincorporated) which (wholly or partially) owns, conducts, licences, franchises or carries on any restaurant, business or establishment which within the Territory ;
16.2.1.7
sells steak and/or burgers (including hamburgers) (whether for consumption on or off the premises); and/or
2023 JDR 2620 p5
Rabkin-Naicker J
16.2.1.8
sells pizzas or pastas (whether for consumption on or of the premises); and/or
16.2.1.9
sells fish or seafood (whether for consumption on or off the premises); and/or
16.2.1.10
conducts business in competition with or which has a same or similar appearance, image, format, design, layout, décor, colour scheme, recipe or menu to any Spur Steak Ranch Restaurant or Kelsey’s...
To continue reading
Request your trial