Labour Supply Chain Namibia (Pty) Ltd v Awaseb (APPEAL 426 of 2009) [2010] NAHC 13 (26 January 2010);
REPORTABLE
SUMMARY
CASE
NO.: A 426/2009
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
LABOUR
SUPPLY CHAIN NAMIBIA (PTY) LTD Applicant
and
AUGUST
AWASEB Respondent
PARKER
J
2010
January 26
____________________________________________________________________________
Practice - Interim
interdict – Such moved by urgent application – Court
finding that applicant has complied with Rule 6(12)(b) –
Consequently Court hearing application on urgent basis.
Practice - Interim
interdict – Requirements applicant must satisfy in the field of
unlawful competition and protection of one’s right to
confidential information regarding one’s business and goodwill
– Court finding that applicant’s averments justify an
order for interim protection against respondent’s continuing
infringements resulting in applicant’s loss of business and
income.
Held,
that averments by the applicant are sufficient to justify an order
for interim protection.
CASE NO.: A
426/2009
IN THE HIGH
COURT OF NAMIBIA
In the matter
between:
LABOUR SUPPLY
CHAIN NAMIBIA (PTY) LTD Applicant
and
AUGUST AWASEB
Respondent
CORAM: PARKER
J
Heard on: 2009
December 15
Delivered on: 2010
January 26
_________________________________________________________________________
JUDGMENT
_________________________________________________________________________
PARKER
J: [1] In this matter the applicant,
represented by Ms Van der Merwe, has brought an application by notice
of motion, moving the Court on urgent basis to grant interim
interdict and other ancillary relief in terms of prayers 2.1, 2.2,
2.3, 3, 4, 5, 6 and 7 of the notice of motion.
[2] The
respondent, represented by Ms Van der Westhuizen, has moved to reject
the application. The respondent’s preliminary contention is
that the application ‘lacks any or sufficient grounds to render
the application urgent’. It is to the question of urgency,
therefore, that I now direct my attention. In deciding the question I
cannot do any better than to repeat what I said in a recent judgment
I delivered in JA Beukes v R Martins and
others, A 431/2009 (judgment delivered on 20
January 2010). There, I stated at p. 5:
In my opinion, the essence of
rule 6(12) of the Rules is, therefore, that in the exercise of his or
her discretion, it is only in a deserving case that a Judge may
dispense with the forms and service provided in the Rules. In terms
of rule 6(12), as I see it, a deserving case is one where the
applicant has succeeded – (1) in explicitly setting out the
circumstances which the applicant asserts render the matter urgent
and (2) in giving reasons why he or she claims he or she could not be
afforded substantial redress at the hearing in due course. (Mweb
Namibia (Pty) Ltd v Telecom Namibia Ltd
Case No.: (P) A 91/2007 (Unreported), where the Court relies on a
long line of cases, including the Namibian cases of Bergmann
v Commercial Bank of Namibia Ltd
2001 NR 48; Salt and
another v Smith 1990
NR 87) Thus, in deciding whether the requirements in (1) and (2) of
rule 6(12) have been met, that is, whether it is a deserving case, it
is extremely important for the Judge to bear in mind that it is
indulgence that the applicant is asking the Court to grant.
[3] Under
requirement (1), what circumstances has the applicant set out in its
papers which, according to the applicant, render the matter urgent?
According to the applicant those circumstances are set out ‘under
the heading “Background and Facts”.’ Besides, the
applicant says that the same ‘Background and Facts’ also
contain the reasons why the applicant claims that it could not be
afforded substantial redress at a hearing in due course. From the
papers, I find that the applicant has set out – that is,
‘distinctly expressing all that is meant; leaving nothing
merely implied or suggested (Shorter Oxford
Dictionary, 6 edn. (2007)) – the
circumstances on which the applicant relies to render the application
urgent and the reasons why the applicant claims that it could not be
afforded substantial redress at a hearing in due course within the
meaning of rule 6(12)(b) of the Rules of Court.
[4] In
my opinion, the circumstances averred as rendering the matter urgent
are that the applicant requires to be protected immediately from the
continuing unlawful conduct of the applicant which has the effect of
the respondent breaching his obligations (that would be a loss
respecting the commercial interests of the applicant) under a
contract of employment entered into between the applicant and the
respondent ‘whereby applicant appointed respondent as Labour
“Legal” Advisor with effect from 1 June 2009’. I
point out in parentheses that I have put the word ‘Legal’
in double quotation marks advisedly: the respondent does not describe
himself as a lawyer or a legal practitioner of any shape or hue.
[5] I
find that the applicant has set out clearly, leaving nothing merely
implied or suggested, a series of conduct on the part of respondent
that constitutes a breach of the respondent’s contractual
obligations under the contract of employment and the manner in which
the breach has caused and continues to cause for the applicant loss
of business and resultantly income.
[6] Thus,
from the papers, I am satisfied that the applicant has made out a
case for the grant of prayer 1 in the notice of motion; that is, that
the matter be heard on urgent basis.
[7] I
now proceed to deal with the question of interim interdict which the
applicant has prayed for. As I have mentioned previously, the
circumstances averred as rendering the matter urgent are that the
applicant requires to be protected in the interim from the loss of
business and income which would result from continuing infringements
on the part of the respondent. The question that arises for decision
is this: are the averments by the applicant sufficient to justify an
order for interim protection? In L F Boshoff
Investments (Pty) Ltd v Cape Town Municipality, Cape Town
Municipality v L F Boshoff Investments (Pty) Ltd
1969 (2) SA 256 (C) at 267 B-D Corbett J set out the requirements for
temporary interdict, which (according to Van Heerden-Neethling,
Unlawful Competition,
2nd edn.: p 86) is
often applied in the field of unlawful competition. I see no good
reason why the requirements should not apply also to protection of
right to confidential information regarding one’s business and
goodwill against loss of business and income. The requisites are
briefly these:
that the right which is the
subject-matter of the main action and which he seeks to protect by
means of interim relief is clear or, if not clear, is prima facie
established, though open to some doubt;
that, if the right is only
prima facie established, there is a well-grounded apprehension of
irreparable harm to the applicant if the interim relief is not
granted and he ultimately succeeds in establishing his right;
that the balance of convenience
favours the granting of interim relief; and
that the applicant has no other
satisfactory remedy.
[8] Additionally,
in order to succeed in the present application for interim order, the
applicant must establish the above-mentioned requisites and also
prove that the respondent has committed a wrongful act. (See Schultz
v Butt 1986 (3) SA 667 (A) at 678.)
[9] From
the papers, I discern genuine averments that go to prove on a
preponderance of probabilities that the catalogue of conduct by the
respondent constitute unlawful act. I also find that the right which
the applicant seeks to protect by means of interim interdict is prima
facie established, even if open to some doubt. The right is the
applicant’s protectable legal right; that is, the applicant’s
protection against unlawful competition and the applicant’s
protectable right in confidential information. I find on the papers
real instances of conduct of the respondent that amount to unlawful
competition by the respondent vis-à-vis the applicant, and the
respondent’s unlawful use of confidential information which he
gained while in the employ of the applicant, to the applicant’s
loss.
[10] In this
regard, I accept the applicant’s evidence that in virtue of the
respondent’s employment with the applicant, the respondent
became aware of all the names of the applicant’s clients, and
it is many of those clients that moved to the service of the
respondent’s business, namely, Organization for Small and
Medium Employers of Namibia (OSMEN), which, significantly, the
respondent registered with the Labour Commissioner when the
respondent was in the employ of the applicant. It would have been a
different matter after setting up his business in direct competition
to the applicant’s business, if the respondent had built his
own client base. It matters not, contrary to what the respondent
contends, if those clients had sought and obtained the applicant’s
service in the first place because the respondent was the applicant’s
employee, and so those clients decided, according to the respondent,
to move out of the applicant’s service in order to obtain the
respondent’s service when he registered his own business.
[11] I
also find that on the papers the applicant has established that there
is a well-grounded apprehension of irreparable harm if the interim
relief is not granted and it ultimately succeeds in establishing its
right. The applicant contends that if the respondent was allowed to
continue to take away the applicant’s clients, it will result
in the applicant having to close down its Walvis Bay branch which
currently employs two employees, who in turn will have to be
retrenched. The respondent’s response is that the public will
not be prejudiced if the applicant closed its Walvis Bay branch
because the public, in the first place, do not wish to use the
applicant’s services. The respondent’s response, with
respect, adds no weight. He does not offer a scintilla of evidence
that the public does not wish to use the applicant’s services;
and what is more, it is not the applicant’s position, pace
the respondent, that the public should not ‘be allowed to
choose which service provider best suit(s) their respective needs’.
[12] As I have
adverted to previously, it would be a different matter if the
respondent built his own client base without, by his own admission –
though not in so many words – tapping into the client base of
the applicant which he came to know when he was in the employ of the
applicant. It matters the least whether, as the respondent says he
knew the clients before he was employed by the applicant; that is,
when he was employed by the National Organization for Small and
Medium Employer of Namibia (NOSMENA). (I have discussed this aspect
of the respondent’s evidence below). However that may be, the
irrefragable fact that remains uncontradicted is that the respondent
only registered his own organization when he was in the employ of the
applicant; and it is that organization that is now offering service
to those of the applicant’s clients in Walvis Bay.
[13] In this
regard, I make the following apropos significant point. The fact
that the organization which the respondent says he worked for in 2007
(before he came to be employed by the applicant) was called the
National Organization for Small and Medium Employer of Namibia
(NOSMENA) and the organization which he registered (when, as I have
said, he was still employed by the applicant) is called Organization
for Small and Medium Employers of Namibia (OSMEN) speaks volumes.
The apparent coincidence in my opinion, speaks volumes about the not
too pious desire of the respondent to create the impression in the
minds of certain clients of the applicant that his organization
(OSMEN) is not so different from the organization he had worked for
in 2007, particularly when the clients of (NOSMENA) had been taken
over by the applicant.
[14] It follows
inexorably from all this that the balance of convenience favours the
applicant. From his own statements it would seem the respondent is
saying that he is more knowledgeable than the applicant; that he is
already known in the business; and further that service seekers will
rather choose his organization over that of the applicant. In sum,
the respondent will find no difficulty at all in building his own
client base and business goodwill. But the applicant has built its
client base and business goodwill over the years and that is what it
is asking the Court to protect in the interim. Thus, in all
fairness, all these considerations impell me to the inevitable
conclusion that the balance of convenience, as I have already held,
favour the applicant.
[15] Furthermore,
taking into account the nature of business involved in this case, I
am of the view that the applicant has no other satisfactory remedy.
As Mrs Van der Merwe submitted, if the interim relief is not granted,
and the applicant went out of business as a consequence of the
respondent’s continuing unlawful conduct, there will be no
applicant to seek any other satisfactory remedy and that would render
the whole application nugatory.
[16] From the
aforegoing reasoning and its conclusions, I think, I should exercise
my discretion in favour of granting the interim relief, that is to
say, there is sufficient evidence on the papers to justify an order
for interim protection. It follows that I am unable to grant prayer
2.3 of the notice of motion, which is a permanent relief; and what is
more, I accept the respondent’s contention that the applicant
does not say with any particularity what documents, materials and
implements the applicant wants the respondent to return and deliver
to it.
[17] Of the view I
have taken of this case, it is otiose to determine on its own any
application to strike out certain parts of any affidavit filed of
record. Where I have found any matters to be vague and embarrassing
and therefore having no probative value, I have not taken cognizance
of such matters. In any case, the preponderance of factors I have
taken into consideration are unaffected by such matters.
[18] As to the
matter of costs; in the nature of the present proceedings, I am of
the opinion that it is proper that I do not order costs at this
stage.
[19] In the
result, I grant the following order:
That the
non-compliance with the Rules as to forms and service and time
limits is condoned and the matter be heard on urgent basis.
That
a rule nisi
is hereby issued calling on the respondent to show cause, if any, on
26 February 2010 at 10h00 why an order in the following terms should
not be made –
that the
respondent be interdicted and restrained from using in any way
whatsoever and directly or indirectly divulging or disclosing to any
third party, including an entity known as the Organization for Small
and Medium Employers of Namibia (OSMEN), its members and/or
employees, the confidential information, business information and/or
trade secrets and/or client base and/or clientelé of the
applicant.
that the
respondent be interdicted and restrained from, in any way
whatsoever, communicating in whatsoever form and nature with any of
applicant’s current clients in an attempt to entice them to
cancel their service contracts with applicant and/or to take up
service contracts with an entity known as the Organization for Small
and Medium Employers of Namibia (OSMEN) or with any other entity in
direct competition with applicant’s business.
That
the order in paragraphs 2(a) and (b) shall operate as an interim
interdict with immediate effect, pending finalization of the matter
on the return date of the above rule nisi.
That the
applicant is granted leave to proceed with this application by
making use of facsimile or scanned copies, subject thereto that the
originals be filed with the Registrar of the Court before the
hearing of this matter.
That the
applicant is granted leave to serve all documentation (including but
not limited to any order that the Court may grant) on respondent by
delivery of a faxed or scanned copy thereof by the Deputy Sheriff
for the District of Walvis Bay at the respondent’s place of
residence.
That there is no
order as to costs.
_______________________
PARKER J
COUNSEL ON
BEHALF OF THE APPLICANT:
Adv. B Van der
Merwe
Instructed
by: MB De Klerk &
Associates
COUNSEL ON
BEHALF OF THE RESPONDENT:
Adv. C Van der
Westhuizen
Instructed
by: Etzold-Duvenhage