CASE LAW UPDATE

Facts: The parties are the biological parents of the minor child. The communications between the parties are acrimonious. The parties are entangled in bitter disputes over a relatively short period of time in the life of a minor child who is barely three years of age. The litigation history shows several applications being launched in various fora including an earlier application which was also sought by applicant for the determination of a Family Advocate’s report to enable applicant to be granted more rights for contact and care. This case is still pending. The parties are at loggerheads as to which is the preferred school for the minor child, the intention being that she would start creche in 2025.

Application: The submissions made by the applicant are that applications for decent and reputable schools for the 2025 academic have already closed and the applicant has been afforded a limited amount of time to either convince the respondent or lose the placement, since Herschel Girls School has been accommodating the applicant by continuously extending the registration date. The result will prejudice the minor child in that she will be deprived of an opportunity to attend one of the best institutions in the country. Because the respondent refuses to cooperate, his proverbial hand is forced at launching this application on an urgent basis. The Family Advocate indicated that the issue at hand was not within its mandate, however, submitted that an educational psychologist will be best placed to make a recommendation in the respect of whether it will be in the child’s best interest for the relief to be granted.

Discussion: The applicant has at no stage put forward any names as the preferred educational psychologist. If the court was inclined to the appointment of an unidentified educational psychologist, there would be complications if such an order were granted. The parties will need to reach consensus as to whom to appoint. They will likely continue with their factious conduct and in the absence of the communication being managed properly, the court foresees a replay. This is a classic case for mediation. It is evident that there was no meaningful mediation prior to the application. Both parties own the process, and if correctly managed by a mediator with experience, decisions could be made quicker. It will cost far less than a High Court urgent application and appropriate experts could be engaged as and when needed. Where issues arise requiring joint decision making, a mediator is better suited in instances where there is high volatility between parties and where communication is fractious.

Findings: The urgency was self-created and does not meet the requirements set out in rule Uniform Rule 6(12), where a litigant is required to set forth its reasons why they cannot be afforded substantial redress at a hearing in due course. A few more months would not prejudice the minor who is barely three years of age and still in nappies. An additional few months or two, to allow for the processes to follow to enable both parties to consider what will be in the best interests of the child, should follow. The court appreciates that schools have deadlines but does not agree that it is appropriate to rush into court and bypass other pressing matters which are placed on the semi-urgent or urgent roll. This matter is not urgent. It is an abuse of the court processes to skip the queue to get this court to grant an order in circumstances where only genuinely urgent matters ought to be heard.

Order: The application is struck from the roll. The applicant is liable to the respondent for the attorney and client costs, including costs of counsel on scale B.

PARKER AJ

Facts: The applicant, Mr Mamasedi, was a member of the Regular Force of the South African National Defence Force (SANDF) in 2011. He held the rank of a sergeant. Section 59(3) of the Defence Act 42 of 2002 was applicable to him. The applicant was not obliged to work on Saturdays, Sundays and public holidays. His working week was from Monday to Friday. The applicant was absent from official duty for the period 29 November 2011 to 2 January 2012 without the permission of his or her commanding officer and he returned to work on 3 January 2012. That was a period of more than 30 calendar days. If the 30 days referred to in section 59(3) included Saturdays, Sundays and public holidays, then the applicant’s absence from official duty was more than 30 days in which case section 59(3) was triggered. However, if weekends and public holidays are not to be included in the 30 days, then the period of the applicant’s absence was less than 30 days. If the applicant’s absence from official duty was for a period of 30 days or less, then section 59(3) would not be triggered because it is only triggered if the period of absence exceeds 30 days. The Board of Inquiry regarded the applicant as dismissed or discharged and gave effect to that position.

Appeal: The second Board believed that the applicant had been absent from work without the requisite permission for more than 30 days as contemplated in section 59(3) and that, therefore, section 59(3) had been triggered. There was no reasoning showing the Board’s basis for believing that the 30 days referred to in section 59(3) included days on which the applicant was not obliged to work, including weekends and public holidays. The High Court concluded that the contention that the reference to 30 days in section 59(3) excluded weekends and public holidays was not sustainable. The High Court then set aside the proceedings and recommendations of the second Board of Inquiry. The applicant applied for leave to appeal against the judgment and order of the High Court in terms of which the High Court refused to order the applicant’s reinstatement.

Discussion: The determination of the issue calls for the interpretation of section 59(3) of the Defence Act. The High Court held that there was nothing in section 59(3) to suggest that the period of 30 days is confined to working days. The High Court erred in this regard. There are three features of section 59(3) which suggest that the reference to 30 days in section 59(3) is a reference to 30 days on which a member was obliged to be on duty or to work and not days on which he or she was not obliged to be on duty or at work. The first one is made up of the words “absent from official duty” in the first line of section 59(3). The first line talks about a member of the Regular Force being “absent from official duty.” The second feature is constituted by the words: “must be regarded as having been dismissed or discharged.” The third feature is constituted by the words: “on account of misconduct.” A critical feature of the conduct prohibited by section 59(3) is the absence of the permission by the commanding officer of the member for his absence from work. A member does not need the permission of his or her commanding officer to be absent from work or official duty on a Saturday or Sunday or public holiday if those are not working days for him or her.

Findings: A member cannot be disciplined for his or her absence from work or duty on a day when he or she is not obliged to be at work or to be on official duty. The only absence from official duty that can constitute misconduct is absence from official duty when there is an obligation to be at work or to be on official duty. An employee cannot be disciplined for being absent from duty when he or she is entitled not to be at work or on official duty. The reference to 30 days in section 59(3) is a reference only to the days on which the member is obliged to be on official duty. Weekends and public holidays cannot be included in calculating the 30 days if such days are not days on which the member is obliged to be on official duty. The applicant’s period of absence from official duty without the permission of his commanding officer was for less than 30 working days. Accordingly, the first and second Boards of Inquiry and the respondents were wrong in adopting the position that the applicant was regarded as having been dismissed or discharged. Both the High Court and the Supreme Court of Appeal were wrong not to have concluded that section 59(3) had not been triggered by the applicant’s absence from official duty without the requisite permission.

Order: Leave to appeal is granted. The appeal against the decision of the High Court is upheld.

ZONDO CJ (unanimous)

Facts: Edgeline is a company operating in the electrical and mechanical engineering field. The company initiated a retrenchment process while employing approximately 98 employees. Despite the retrenchments, Edgeline continues to operate. 15 employees were purportedly dismissed based on operational requirements. The reasons cited for these dismissals were that Edgeline has incurred substantial financial losses over the past two years and that due to a lack of business and growth, a department would be closed, rendering the positions within it redundant.

Application: The applicants allege that their dismissals were both substantively and procedurally unfair. Edgeline, denies these allegations and maintains that the dismissals were both necessary (substantively) and fairly executed (procedurally).

Discussion: The argument that Edgeline was in financial distress is contradicted by its actions post-retrenchment. The acquisition of new contracts and continued operation of the powder coating department, which was purportedly closed, demonstrate that the financial justification for the retrenchments was tenuous. This inconsistency suggests that the retrenchment was not a measure of last resort, but rather a pretext to remove specific employees. The immediate engagement of subcontractors and casual workers to perform the duties of the retrenched employees further casts doubt on the legitimacy of the retrenchment process. This action not only contradicts the stated need for retrenchment due to redundancy but also indicates that the dismissal of the affected employees was not genuinely based on operational requirements.

AMCU’s concerns: AMCU raised concerns about significant expenditures on entertainment, donations, and transport/vehicles, suggesting these costs could be curtailed to avoid retrenchments. The failure to address these non-essential expenditures seriously raises questions about the company's commitment to avoiding retrenchment and prioritising its workforce's stability. AMCU's concerns that the retrenchment targeted its members raise serious issues of potential discrimination and union-busting. The disproportionate impact on AMCU members, coupled with the flawed consultation process and dubious financial rationale, supports the claim that the retrenchment may have been motivated by anti-union sentiment rather than genuine operational needs.

Findings: There is no evidence that Edgeline adhered to any agreed or objective selection method. The unilateral decision to retrench specific employees, particularly those affiliated with AMCU, without transparent criteria, indicates a lack of fairness in the selection process. Edgeline did not present any evidence that it considered re-deployment or training for the affected employees, which would have been a reasonable alternative to retrenchment. Edgeline's retrenchment process was substantively unfair. The dubious financial justification, immediate re-employment of subcontractors, inadequate consideration of alternatives, and potential discrimination against union members collectively render the retrenchment unjustifiable. The dismissal of the applicants is found to be unfair.

Order: The dismissal of the applicants by way of retrenchment is substantively unfair. The respondent is ordered to reinstate those listed under annexure “X” from the date of dismissal, inclusive of back-pay. There is no order as to costs.

MORGAN AJ

Facts: The applicant trades as a highly specialised electrical and instrumentation manufacturing, installation and projects management team since 2000. Since 2015, the applicant has been one of only four approved licensees in South Africa, licensed by Siemens AG. AMS is also a Siemens-approved licensee and the applicant’s case is that AMS is a direct competitor. The respondent was employed by the applicant for more than 21 years and held the position of a senior estimator. The respondent signed a contract of employment and clause 11 of the said contract deals with restraint against competition and disclosure and clause 13 provides for confidentiality. The respondent left the applicant’s employ and took up employment with AMS. The applicant informed the respondent that it would be enforcing the restraint and confidentiality undertakings, as per the terms of the employment contract. A letter was sent to the respondent demanding that he terminate his employment with AMS with immediate effect. The respondents did not accede to the applicant’s demands.

Application: The applicant launched an urgent application seeking to enforce the restraint of trade agreement against the respondent. The applicant seeks an order to interdict and restrain the respondent from using, disclosing, or divulging the trade secrets and confidential information of the applicant and from being employed by AMS or being engaged in any way or concerned in any entity that carries on operations or business in competition with the applicant until 30 March 2025.

Discussion: The fact that the respondent took up employment with AMS, a direct competitor of the applicant, constitutes a breach of the agreement. A restraint holder’s proprietary interests fall into two categories, namely confidential information (trade secrets) and relationships with customers, potential customers, suppliers, and others (trade connections). The essence of the applicant’s protectable interest is its confidential information. The applicant’s case is that it has a protectable interest in the form of confidential information and trade secrets, wherefore it has a clear right to enforce the restraint and confidentiality undertakings provided by the respondent. The protectable interest is the respondent’s knowledge of the applicant’s costing methodologies and practices, knowledge of the products utilised and the sourcing of such products, clients’ details and requirements, internal and external manufacturing details, processes and design, which knowledge would, in the hands of a direct competitor, cause immeasurable damage to the applicant. The respondent is employed by a competitor, and he is in a position to disclose the applicant’s confidential information to its detriment and to use it in unfair competition with the applicant.

Findings: The respondent did not deny that he had access to the applicant’s confidential information, nor did he dispute that the information was indeed confidential or could be of value to a competitor. Confidential information is a protectable interest and should be protected if it could be used to the benefit of a competitor and to the detriment of the applicant. The respondent can share confidential information of the applicant with AMS, a direct competitor, to the applicant’s detriment and to place AMS in an advantaged position to understand and compare the applicant’s processes with its own and to use that information to its own benefit. The applicant has made out a case that it has a protectable interest in its confidential information. It is information the respondent had access to, it is not in the public domain and could be of value to a competitor. The respondent gained institutional knowledge by virtue of his employment over a period of 21 years with the applicant, which information could be useful to a competitor that would quote or tender for the same projects. The restraint is reasonable and therefore enforceable.

Order: The first respondent is interdicted and restrained for a period of 1 year.

PRINSLOO J