CASE LAW UPDATE

Facts: Cheemee commenced employment with the City of Cape Town in 1998. At the time of his dismissal, he was a Senior Superintendent at the Solid Waste Disposal Facility at the Kraaifontein landfill site. The City concluded a service agreement with Reliance pursuant to a chipping tender. The tender has been in operation since 2012, with Reliance being the chipping contractor at Kraaifontein. Cheemee was responsible for managing Reliance. The City instituted a forensic investigation pursuant to a complaint received from a member of the public, a certain Mr Coetzee, in September 2016. Various allegations were levelled against the officials at the drop-off and landfill sites, and in particular as it relates to their dealings with Reliance. It was alleged that Reliance trucks were allowed early access to landfill facilities to load green waste chipping which is then taken to the Klapmuts landfill site; loading of the Reliance trucks was done without supervision; Reliance trucks would enter the site with sand already loaded onto the truck and would enter the landfill and load chippings onto the sand to enhance the load mass; Cheemee received a Nissan bakkie from Reliance, in return Cheemee overlooked irregularities and allowed early access.

Application: On account of the information from the forensic investigation, the City preferred disciplinary charges against Cheemee, and he was found guilty of gross negligence and dishonesty. Unhappy with that decision, he referred an unfair dismissal dispute to the bargaining council. At the arbitration, the City persisted with the charges levelled against Cheemee. The commissioner found that the dismissal of Cheemee was both procedurally and substantively fair. Cheemee seeks to review and set aside the award.

Discussion: The commissioner found that Cheemee did not dispute that there was a deviation from the tender provisions under his watch. He knew the operating hours, but still allowed Reliance to enter and exit the site outside the normal operational hours. The commissioner noted further that there were no special measures put in place to ensure control and risk mitigation. She pointed out that Cheemee allowed trucks to enter and exit the site outside the normal operational hours, and failed to ensure that the weight was accurately captured by a city official over the weighbridge. To the extent that Cheemee relied on a defence that he used his discretion in granting Reliance access, owing to exceptional circumstances, the commissioner held that allowing early loads for a period of three months can hardly be regarded as exceptional circumstances. It was effectively changing the way the City worked. The commissioner found that Cheemee created an ongoing risk for the City and acted contrary to the rules for an extended period. Further, that his version that he believed he had authority to act in the manner he did, cannot be reasonably plausible or true.

Findings: The Commissioner concluded that Cheemee acted in a grossly negligent manner, especially by him allowing the early loads to continue for the length of time it did. He acted without permission from his superiors and this, the commissioner found, alarming. There was an element of dishonesty in Cheemee’s conduct in that he shared his password (which he should not have done) and allowed data to be entered into the system after the fact. The commissioner does not have the authority to consider a sanction afresh and was accordingly correct in her assessment of the legal position. Since that is the only basis on which interference with her decision is sought, her decision falls within the band of decisions a reasonable decision-maker could reach, especially since Cheemee was found guilty of various counts of serious misconduct which warranted his dismissal.

Order: The application is dismissed.

FORD AJ

Facts: The applicant’s business was established in 2020. It offers specialist services in the form of mobile wheel alignment and balancing services and trailer repairs to its clients’ vehicle fleets. This service is offered on a 24-hour basis either at the applicant’s workshop or at the premises of its clients. The applicant employs operational managers, secretaries and several alignment technicians. The fleets of the applicant’s clients require periodical wheel balancing and alignment with the result that the applicant provides periodical return services to its clients. Shortly after the establishment of the applicant’s business, the first respondent was employed by the applicant as operations manager. Soon thereafter, the second respondent was employed by the applicant as an assistant wheel alignment technician.

Application: The applicant seeks to enforce restraints of trade contained in the respondents’ contracts of employment and seeks to interdict the respondents for five years. The respondents departed towards the end of 2023 and both were employed by AJ Cranes which company does not compete with the applicant. However, GH Fast Align Repairs was established by the first respondent which was registered before he left the applicant. GH procured a lease at the premises previously occupied by the applicant in Kempton Park and it operates a website which indicates that GH provides the same services as the applicant.

Discussion: The first respondent states that he had concluded an agreement with AJ Cranes in terms of which they will use GH “to expand the business into the mobile wheel alignment industry”. AJ Cranes is financing the expenses of GH until it has established a sound client base. During their employment, the respondents had access to the contact details of the applicant’s clients. The applicant has detailed how its monthly turnover decreased and contends that this is due to the influence and utilisation directly and indirectly of the material know-how and client base of the applicant, underpinned by operating from the former base of the applicant.

Findings: Although the applicant alleges in the founding affidavit that the second respondent is involved in GH, there is no evidence to support this allegation. The application against the second respondent falls to be dismissed. The first respondent’s admission of his involvement with GH, who is a competitor of the applicant, implies that the applicant has proven a breach of the restraint, contained in clause 2.3 of Annexure A to the employment contract. The answering affidavit contains virtually no evidence to support the bald allegation that the restraint is unreasonable and thus unenforceable. In view of the fact that the first respondent is currently employed by a company which does not compete with the applicant, the enforcement of the restraint will in any event not inhibit the first respondent’s ability to earn a living. The enforcement of the restraint will on the other hand protect the applicant from the first respondent’s unlawful conduct for the remainder of the (reduced) restraint period.

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Order: The first respondent is restrained for a period of two years (from resignation date) from competing with the applicant by becoming engaged, associated or interested in any business which carries on business directly or indirectly in competition with the applicant’s business in a radius of 250 km from the applicant’s business premises. The first respondent is ordered to pay the applicant’s costs on scale B. The application against the second respondent is dismissed. The applicant and the second respondent must pay their own costs pertaining to the application against the second respondent.

OOSTHUIZEN AJ

Facts: The respondents conducted a live broadcast in which a picture of the applicant and his cellphone number was shown. This was then published on their social media platforms requesting their followers to call the applicant. The first respondent was stated to have advised the applicant that he had 67,000 followers on Facebook and 33,000 on Tiktok. The applicant complains that the publication of his cellphone number breaches the Protection of Personal Information Act 4 of 2013 as well as the right to privacy entrenched in section 14 of the Constitution. The respondents in answer attempt to demonstrate that the applicant had undermined their business and that they were therefore justified in taking retaliatory steps against him. 

Application: The applicant (Mr Munetsi) has approached this court as a matter of urgency seeking interdictory relief, an apology and punitive costs in the light of the respondents’ publication on social media platforms of his personal information and material which is alleged to be defamatory of him.

Discussion: The only defamation that has been proved by the applicant was the second respondent’s remark that he was “evil”, and the respondents have already apologised for that and the court is of the view that this should suffice. Publishing someone else’s personal cell phone number on social media platforms with a large viewership and requesting that viewers call the person in question to promote the interests of the person who had published the cell phone number also involves a breach of the common-law right to privacy. Whether or not the applicant’s phone number may already have been available on some other platform does not detract from this.

Findings: The respondents have breached the Protection of Personal Information Act 4 of 2013 (POPIA) by publishing the applicant’s telephone number on their social media platforms (and Facebook, in particular). That breach was moreover aggravated by the first respondent requesting the viewers of that post in their video to “ask [the applicant] what it is that [the applicant] wanted from [the respondents]”, apparently resulting in a deluge of telephone calls. Section 11(1) of POPIA stipulates that personal information (as defined) may only be “processed” in certain specified circumstances, none of which is applicable here. The term “processing” is defined in section 1 of POPIA as including, in relation to personal information, “dissemination by means of transmission, distribution or making available in any other form”. By making the applicant’s cell phone number publicly available on social media, the respondents thus breached section 11 of POPIA.

Order: The respondents are directed to remove the live broadcast from all their social media platforms and also remove any video or message containing the applicant’s picture and cell phone number from such platforms, as well as to refrain from publishing the applicant’s personal information without his consent. The respondents are to pay the costs of the application on a party and party basis, with counsel’s costs being taxed on Scale A.

Facts: Mr Selowa lodged a complaint against the respondent with the applicant LPC. The applicant is the provincial office within whose jurisdiction the respondent conducts his practice and with whom the respondent is registered. Attached to the complaint was a written agreement of sale for immovable property entered into between Mr Selowa and Ms Swartland. In terms of that agreement of sale, Mr Selowa purchased from Ms Swartland a property. The payment was duly made and received and subsequently payment made to the seller by the respondent. The respondent pertinently recorded that he did not take instructions from Mr Selowa to act on his behalf nor had he received instructions from any person to do so. There were several allegations made by Mr Selowa relating to his apparent failed attempts to communicate with the respondent over the period following the signature of the agreement of sale and in this regard, the respondent produced screenshots of various communications on WhatsApp to dispel this.

Application: With only three weeks’ notice, the applicant brought a two-part application against the respondent, a practicing referral advocate. Initially in part A, the applicant seeks an order for the suspension of the respondent from the roll of practitioners on an urgent basis and thereafter, in part B, for an order striking his name from the roll of legal practitioners. In the counter-application, the respondent seeks to review and set aside the resolution authorizing the institution of the present proceedings. He also seeks an order that a new hearing before an investigating committee of the applicant, of which he will be given notice, be convened.

Discussion: It is apparent from the minute that evidence was given by Mr Selowa which differs materially from the version of the respondent, and is also at variance with the written agreement of sale. There are, in addition, facts recorded which never formed part of the complaint, and to which the respondent quite obviously did not have any opportunity to respond to. There are patent disputes of fact and variances which would need to be explained. For this reason, it cannot be said that the misconduct of which the applicant complains the respondent has made himself guilty of, has been established on a preponderance of probabilities. Neither the administrative officials, investigating committee, member of the provincial council, deponent to the founding affidavit or the attorneys of record for the applicant, observed that the notice to attend the discussion, had not been sent to the correct email address. This more so particularly since the email address to which the application was sent is in fact the correct email address of the respondent. A singular oversight may occur and be excusable but there is simply no explanation how such a manifest error was overlooked on multiple occasions by multiple professional persons.

Findings: Immediately on service of the application upon him, the respondent sent an email to the applicant drawing to its attention that he had never received notice of the discussion and requesting that proof that notice had indeed been furnished to him be provided. This request remained unanswered, and he was directed to file his answering affidavit. Considering the concession that the respondent had not been given notice of the date of the discussion, the applicant nonetheless persisted in seeking an order for the suspension of the respondent. With the material before the applicant and its investigating committee, there was no prima facie case for either the suspension or the striking of the respondent from the roll. On the face of it, at its worst, it was an error of judgment in assisting the seller in the way that he did. There is nothing to indicate that the respondent was ever notified of the findings of the investigating committee or of his right to appeal. Since the failure on the part of the applicant to discharge its obligations to the respondent has effectively rendered any right to appeal nugatory, the only avenue open to the respondent to seek redress is a review under the common law.

Order: The application is dismissed. The findings and decision of the investigating committee are both reviewed and set aside. The complaint is referred back to the applicant to be enrolled before a newly constituted investigating committee for consideration of the complaint.

MILLAR J