Case No. LC 75/2010
IN THE LABOUR COURT OF NAMIBIA
In the matter between:

ALEXANDER FORBES GROUP NAMIBIA (PTY) LTD and HEINZ WERNER

AHRENS

PARKER J

2011 January 10

Interpretation

								Case No. LC 75/2010

IN THE LABOUR COURT OF NAMIBIA

In the matter between:

ALEXADER FORBES GROUP NAMIBIA (PTY) LTD				Applicant

and

HEINZ WERNER AHRENS							Respondent

Heard on:							2010 October 25

Delivered on:       						2011 January 6

[1] The applicant, represented by Mr. Corbett, has launched an application by notice of motion, moving the Court on urgent basis to grant interim relief and other ancillary relief in terms appearing in Prayers 1, 2 (i.e. 2.1, 2.2 and 2.3), 3 and 4 of the notice of motion. And the respondent, represented by Mr. Barnard, has moved to reject the application. From the outset I must commend both counsel for their industry in preparing their respective heads of argument; they have assisted the Court.

[5] I pass to consider requirement (2); and in doing so, it is significant to note that in its papers, the applicant contends that the alleged breach of the restraint of trade clauses of the aforementioned service agreement has already begun and it is continuing and so the applicant has prayed the Court for protection in the interim from the loss of business and income which has been and will be occasioned by the infringements and continuing infringements on the part of the respondent of certain terms of the aforementioned service agreement. In such a situation, it makes no sense to argue, as Mr. Barnard does, that the applicant can be afforded substantial redress, in the form of damages, at the hearing in due course; and so, according to Mr. Barnard - though not in so many words - the applicant must with religious tolerance and Job-like patience endure the continuing infringement of its legal right under the aforementioned agreement. This argument is, with the greatest deference to Mr Barnard, oversimplified and fallacious and self-serving; and so I cannot accept it. I shall return to this conclusion in due course.

[6] For the aforegoing, I am satisfied that the applicant has met the two requirements (i.e. requirement (1) and requirement (2)) in rule 6 (12) (b) of the Rules of Court. I, therefore, exercise my discretion in favour of hearing the matter on urgent basis.

[8] And now, to the interpretation and application of s. 117 (1) (e) of the Labour Act which Mr. Barnard was so much enamoured with in his submission on 'jurisdiction'. The relevant part of s. 117 reads:

'(1)     The Labour Court has exclusive jurisdiction to -
(a)	...
(b)	...
(c)	...
(d)	...

[Emphasis added]

'It is submitted that this clause (sic) means that the honourable court can grant urgent relief pending resolution of a dispute in terms of chapter 8 and that this relief will include an urgent interdict. The clause cannot mean that the labour court has exclusive jurisdiction to grant urgent relief, that is the only court that could grant urgent relief of any nature whatsoever. This would amount to an absurdity. It would mean that the only honourable court can grant urgent relief of any nature whatsoever.'
[10] From what I can understand from the above-quoted written submission, I have not one iota of doubt in my mind that Mr. Barnard completely misreads s. 117 (1) (e), making his interpretation of that provision of the Labour Act completely and indubitably wrong. For instance, Mr. Barnard has decided to disregard the superlatively significant syntactical position of the word 'including' in paragraph (e) of subsection (1) of s. 117 of the Labour Act and has, with respect, put forth an interpretation that suits his misreading and misunderstanding of the clear and unambiguous words contained in the said s. 117 (1) (e) and their formulation. In so doing, with the greatest deference to Mr. Barnard, Mr. Barnard exhibits a lack of appreciation of a logical and rudimentary approach to interpretation of statutes. In interpreting a statutory provision, one must always consider the lexical (or, where applicable, the stipulative) meaning of each word used in the provision and, above all, the syntax of the phrase, clause or sentence under consideration and also take into account, where it is necessary so to do, the long title of the statute under consideration in order to arrive at the correct meaning of the provision in question. This proposition is, as I say, so elementary and logical that I need not cite any authority in support thereof.

NR 752 at 755C-D:

[13] Doubtless, the restraint of trade clauses in the aforementioned service agreement concern matters incidental to the basic terms and conditions of employment, within the meaning of the long title of the Labour Act, of the respondent.

[15] For the aforegoing reasoning and conclusions concerning the instant point, I hold that this Court has jurisdiction to hear the present application, as I do. The respondent's preliminary objection to the jurisdiction of this Court, therefore, fails. I hasten to add that it is my view that the preliminary objection is frivolous and vexatious.

'My Lord ... there is no doubt that the employment relationship was between the respondent and the applicant. There is no doubt to that, My Lord, but the restraint clause, that agreement, that undertaking was not given to the applicant; it was given to a different company. ... this restraint undertaking ... was given to Alexander Forbes Namibia (Pty) Limited. That is a different company. ... The company is Alexander Forbes Group Namibia (Pty) Ltd, My Lord, and the applicant does not say what the situation is.'

[18]   To start with, I find that in the instant matter, it was reasonable for the
applicant not to have  'explained the situation' in the founding affidavit,
considering certain significant and pertinent communication that had come to
pass prior to the launching of the present application. The most important and
telling one for our present purposes is the e-mail correspondence, marked
Annexure 'HA6', and annexed to the respondent's own opposing affidavit.   The
following telltale details appear therein:
'Heinz Ahrens (i.e. the respondent)
Financial Planning Consultant
ALEXANDER FORBES FINANCIAL SERVICES
A Division of Alexander Forbes Group Namibia (Pty) Ltd'

[22] I have mentioned previously that the present application is the applicant's; and I see from the applicant's papers that what the applicant has prayed for is interim relief. Consequently, the burden of this Court presently is the determination of the interim relief; and that is what I now proceed to do.

1)	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;
2)	that the balance of convenience favours the granting of interim relief; and
3)	that the applicant has no other satisfactory remedy.

(A) at 678.)'

[29]   Whereupon, I grant the relief sought and make the following order:
1)	that the non-compliance with the Rules of Court as to forms and service and time limits is condoned and the matter be heard on urgent basis.

(a) that the respondent is, for a period or 12 months calculated from 17 August 2010, interdicted and restrained from making use and/or availing himself of and/or deriving any profit from any information or knowledge specifically related to the business and affairs of the applicant or any of its clients which the respondent might have acquired by reason of his position in, or associated with, the business of the applicant.
b) that the respondent is, for a period of 12 months calculated from 17 August 2010, interdicted and restrained from soliciting and/or interfering with and/or endeavouring to entice away from the applicant any persons, firms or corporations, who or which at any time during or at the date of the termination of his service agreement with the applicant were clients of, or who were in the habit of dealing with, the applicant or any company within the applicant or who, at the said date of termination, were employees of any company within the applicant or who at such date of termination, were holders of any assurance or investment policy or were members of any retirement annuity fund purchased or entered into through any company within the applicant.

(4) that the respondent must pay the applicant's costs of suit; such costs to include costs occasioned by the employment of one instructing counsel and one instructed counsel.

PARKER J

							Adv. RL Maasdorp

Instructed by:						Van der Merwe Greef Inc