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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not Reportable

Case No: J206/24

 

In the matter between:

 

HELP 24 SECURE (PTY) LTD                                          Applicant

 

and

 

JOHANNES ROELF HARMSE                                          First Respondent

 

DOWRY SECURITY SOLUTIONS                                     Second Respondent

 

HARM BOTHA                                                                   Third Respondent

 

Heard:          10 May 2023

Delivered:    10 May 2023

This judgment was handed down electronically by circulation to the parties and legal representatives by email. The date of hand-down is deemed to be 13 May 2024.

 

JUDGMENT

 

MAKHURA, J

 

Introduction

 

[1]  On 17 April 2024, this Court (per Mamabolo AJ), granted an order in favour of the applicant enforcing the restraint of trade covenant against the first respondent, Johannes Roelof Harmse (Harmse). Despite being served with the application in that matter, Harmse elected not to oppose it and the order was granted unopposed.

 

[2]  On 29 April 2024, Harmse filed an application for leave to appeal the whole judgment[1] and order of the above order. This prompted the applicant to launch these urgent proceedings, in terms of section 18 of the Superior Courts Act[2] (SC Act), for an order that the implementation and operation of the order of 17 April 2024 shall not be suspended pending the outcome of the application for leave to appeal or any appeal that may be noted. Harmse opposes this application.

 

[3]  Section 18 of the SC Act provides that:

‘18   Suspension of decision pending appeal

(1)  Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.

(2)  …

(3)  A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.’

 

[4]  In Knoop NO and another v Gupta (Execution)[3] (Knoop), the Supreme Court of Appeal (SCA) summarised the legal position applicable to section 18 applications as follows:

‘At common law, unless the court in the exercise of a discretion ordered otherwise, an application for leave to appeal and an appeal pursuant to leave being granted suspended the operation of the order. It was not open to the successful party to execute on, or otherwise act pursuant to, that order. This common-law rule and the power to grant an execution order are now expressly embodied in s 18(1), read with s 18(3), of the Superior Courts Act 10 of 2013 (the SC Act). The grant of leave to execute is constrained by the requirements that it may only be granted if there are exceptional circumstances; if the applicant will suffer irreparable harm if it is not granted; and if the grant will not cause the respondent to suffer irreparable harm. A further safeguard against the risk of harm being caused by an execution order is the automatic right to an urgent appeal given by s 18(4). Pending such an appeal, the statute expressly provides in s 18(4)(iv) that the operation of the suspension order is itself suspended…’ [Own emphasis]

 

[5]  To succeed, a section 18 applicant must satisfy the following three requirements: that there are exceptional circumstances warranting the departure from the default position (i.e. the suspension of the operation of a judgment by an application for leave to appeal); that the applicant would suffer irreparable harm if the judgment and/or order is not executed; and the absence of irreparable harm on the part of the respondent.[4] The Labour Appeal Court in National Education Health and Allied Workers Union v Minister for the Public Service and Administration and others[5] referred to the SCA decision in University of the Free State v Afriforum and another[6], where it was held that section 18(3) “has introduced a higher threshold, namely proof on a balance of probabilities that the applicant will suffer irreparable harm if the order is not granted, and conversely that the respondent will not if the order is granted”.

 

[6]  The three statutory requirements must all be satisfied. A failure on the part of the applicant to satisfy one of the requirements is fatal to the application.  

 

Exceptional circumstances

 

[7]  In Knoop, the SCA held that the enquiry into whether the applicant established exceptional circumstances is fact-based. The SCA continued that this must be something that is sufficiently out of the ordinary and of an unusual nature to warrant the Court to depart from the rule that an application for leave to appeal suspends the operation of the judgment or order appealed against. Further:

‘… The exceptional circumstances must arise from the facts and circumstances of the particular case. When dealing with someone’s removal from office, be it a BRP or a liquidator in relation to a company, or a trustee or an executor, or some other office bearer, the mere fact that the court has held that they should no longer fill that office does not, in and of itself, constitute exceptional circumstances. There must be something more in the circumstances of the particular case that makes the immediate implementation of the removal order necessary.’[7] [Footnotes omitted]

 

[8]  The applicant contends that the order is due to lapse on 25 August 2025, about 16 months from the date of hearing of this application and that if the application is brought in the ordinary course, the order would become a vacuous gesture and be rendered nugatory. The applicant also implored this Court to consider Harmse’s continued defiance of the court order.

 

[9]  Harmse opposed the application on the following basis – that the first order issued is vague and is now the subject of an application for leave to appeal, the applicant seeks to enforce a defective order that was irregularly obtained which will lead to him suffering severe prejudice; and that the first two orders contained errors and the order should have been varied by way of an application in terms of High Court Rule 42(1).

 

[10]  In my view, these grounds of opposition are manifestly weak. However, that is not the end of the enquiry. The Court is still required to consider whether, on the record before it, the applicant established exceptional circumstances.

 

[11]  The exceptional circumstances raised by the applicant are mere allegations without substance. That the Court order is time-limited is the nature of the restraint matters. The mere fact that this Court issued an order interdicting and restraining Harmse does not constitute an exceptional circumstance. If this is to be accepted as constituting exceptional circumstances, then all applications to implement and enforce restraint orders pending applications for leave to appeal would pass this part of the test. That would be untenable and undermine the fact that the enquiry is fact-based. As the SCA in Knoop puts it, exceptional circumstances must arise from the facts and circumstances of the particular case. These facts must be pleaded and evidence must be provided thereto. Applicants cannot simply claim that the exceptional circumstances are found in the main judgment or order and expect the Court to admit that as evidence.

 

[12]  The applicant has failed to establish the exceptional circumstances. This application has therefore failed to take off and stands to be dismissed on this basis alone. However, even if I am wrong on this part of the enquiry, the applicant has not established irreparable harm. I deal with this part of the enquiry below.

 

Irreparable harm

 

[13]  In Incubeta Holdings (Pty) Ltd v Ellis and Another[8], the Court had the second part of the enquiry dealing with irreparable harm: 

‘The second leg of the s 18 test, in my view, does introduce a novel dimension. On the South Cape test … an even-handed balance is aimed for, best expressed as a balance of convenience or of hardship. In blunt terms, it is asked: who will be worse off if the order is put into operation or is stayed. But s 18(3) seems to require a different approach. The proper meaning of that subsection is that if the loser, who seeks leave to appeal, will suffer irreparable harm, the order must remain stayed, even if the stay will cause the victor irreparable harm too. In addition, if the loser will not suffer irreparable harm, the victor must nevertheless show irreparable harm to itself. A hierarchy of entitlement has been created, absent from the South Cape test. Two distinct findings of fact must now be made, rather than a weighing-up to discern a 'preponderance of equities'. The discretion is indeed absent, in the sense articulated in South Cape. What remains intriguing, however, is the extent to which even a finding of fact as to irreparable harm is a qualitative decision admitting of some scope for reasonable people to disagree about the presence of the so-called 'fact' of 'irreparability'.’ [Own emphasis]

 

[14]  From the above, it shows that is not sufficient for the applicant to show that there is a real and substantial risk of immediate and irreparable harm being suffered while it awaits the determination of the application for leave to appeal and/or the appeal if the order is not put into operation. The applicant must also prove that the implementation and operation of the order pending the determination of the application for leave to appeal and/or appeal will not result in irreparable harm on the part of the respondent.

 

Irreparable harm to the applicant

 

[15]  The applicant contends that Harmse continues to use its protectable interest to its prejudice and the benefit of the second respondent, Dowry Security Solutions (Dowry). It contends further that the number of clients cancelling contracts has increased by at least 75%, that it has experienced a significant decrease in sales and has lost 5 guarding sites since Harmse left to join Dowry. The applicant argues further that for each day that Harmse is in breach of the restraint covenant, it continues to suffer harm. Finally, the applicant alleged that Harmse was seen advertising aggressively.

 

[16]  In response, Harmse contends that these are bold and unsubstantiated allegations which are not substantiated by facts and evidence. He contends further that the applicant failed to set out the evidence relating to the harm it has suffered and the allegations are mere speculations and conjecture.

 

[17]  During the hearing, Ms Naidoo, who appeared as counsel for the applicant, was constrained to concede that these are general allegations and that the applicant did not particularise its claim. The order was served on Harmse on 22 April 2024. There are no details as to when Harmse was seen advertising aggressively and what this meant. There are no dates when the alleged cancellation of contracts happened and how this is attributed to Harmse. Significantly, the Court is not informed who these clients are, where they are based, the reasons for cancelling the contracts and whether they were clients serviced by Harmse.

 

[18]  It is trite that in motion proceedings, affidavits constitute both the pleadings and the evidence, where parties set out and define the nature of their dispute and the Court is called upon to adjudicate on those issues.[9] In those proceedings, the applicant must rise and fall by what is contained in the founding papers.[10]

 

[19]  The applicant made bold and unsubstantiated allegations. This Court has not been told of the harm post the court order of 17 April 2024 and the specific conduct of Harmse. The founding affidavit is riddled with complaints against Harmse’s legal representative without detailing how the applicant suffered and continues to suffer irreparable harm and how the operation of the order pending the application for leave to appeal and/or appeal will mitigate this harm.

 

[20]  Further, the applicant has not pleaded nor shown why a claim for damages at a later stage would not be adequate or will not constitute an adequate alternative remedy. It must rise and fall by what is or is not contained in its founding affidavit. The applicant failed to satisfy this requirement. The application falls to be dismissed.

 

Irreparable harm to Harmse

 

[21]  Section 18(3) contemplates that, in addition to establishing the irreparable harm that it would suffer if the order is not granted, the applicant must also establish that Harmse will not suffer irreparable harm if the order is put into operation pending the appeal process. The SCA in Knoop held that if the applicant “cannot show that the respondent will not suffer irreparable harm by the grant of the execution order, that is fatal”.[11] 

 

[22]  During the hearing, I asked Ms Naidoo to refer the Court to the allegations in the applicant’s founding papers where it pleads irreparable harm to Harmse. Ms Naidoo referred the Court to the following paragraph of the founding affidavit:

‘The Respondents will not suffer irreparable harm as most of his grounds of Appeal except the issue of costs have been cured by the correcting of clerical errors by the Court. It is important to note that the Respondent obstinately persisted with the same grounds of Appeal despite having been served with the above mentioned corrected order and thus abuses court proceedings. The Applicant is willing not to enforce the cost order until appeal is finalised.’

 

[23]  Harmse makes a lot of issue about the order of 17 April 2024 being vague, irregular and unenforceable, which form the basis for his appeal. These contentions are, in my view, not relevant to this application and of no assistance to this Court. However, Harmse alleged that he will suffer prejudice or irreparable harm if the application is granted as this would mean that he will be without employment and will not be able to care for and provide for his family.

 

[24]  The contract of employment signed by Harmse with the applicant in August 2021 shows that he earned a basic salary of R5 000.00 per month. In February 2024, Harmse’s employment with the applicant was terminated allegedly because he absconded from or abandoned his employment. In response, Harmse contended that he was dismissed for reasons unknown to him and referred an unfair dismissal dispute to the Bargaining Council for the Private Security Sector. He attached a certificate of non-resolution showing that he referred the dispute on 26 February 2024. He also attached a request for arbitration form and stated that the unfair dismissal dispute is set down for arbitration on 20 May 2024. He alleged that he was dismissed without reasons, without a hearing and without his last month’s salary payment. In reply, the applicant contended that Harmse “was informed in the letter of demand attached to my Founding Affidavit in the main application that his employment was terminated as he abandoned his employment”.  

 

[25]  On the versions provided in these proceedings, the audi alteram partem principle appears to have been undermined in that the applicant does not appear to have followed any disciplinary process before terminating Harmse’s employment contract. There is no allegation relating to Harmse’s qualifications, experience, his access to the job market and the prospects of him finding employment in a different sector than the security sector within the restricted 50km radius or in the security sector or any other sector outside the 50km radius from the applicant’s offices. Considering the above, specifically the applicant’s omission to plead irreparable harm to Harmse, and the basic salary of a mere R5 000.00 per month earned by Harmse prior to his dismissal, the irreparable harm that Harmse will suffer is evident.

 

[26]  The applicant’s omission to deal with the irreparable harm to Harmse is fatal to its case. The application fell woefully short of satisfying any of the requirements set out in section 18. It therefore stands to be dismissed.

 

Costs

 

[27]  The applicant argued that if this Court finds in its favour, costs must be awarded against Harmse but if unsuccessful, each must be ordered their own costs. On the papers, both parties argued for punitive costs. There is no case made out for punitive costs order.

 

[28]  Harmse is before this Court with the support of Dowry. Most of his grounds of opposition were of no assistance to this Court. Despite the applicant’s failure, I do not think that this is a matter that warrants a costs order to be awarded. The appropriate order will be for each party to pay their own costs.

 

[29]  In the premises, the following order is made:

 

Order

 

1.  The application is dismissed.

2.  There is no order as to costs.

 

M. Makhura

Judge of the Labour Court of South Africa

 

Appearances:

For the Applicant:               Adv. N. Naidoo

Instructed by:                 

For the First Respondent:  Adv. E. Coleman

Instructed by:                 

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