Court name
Labour Court
Case name
Alexander Forbes Group Namibia (Pty) Ltd v Ahren
Media neutral citation
[2011] NALC 1
















SUMMARY REPORTABLE



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


Practice- Interim
interdict - Such moved by urgent application -Respondent raising a
preliminary objection in which he argues that the matter should not
be heard on urgent basis - Court finding that applicant has complied
with all requirements in terms of Rule 6 (12) (b) of the Rules of
Court - Consequently, Court dismissing respondent's preliminary
objection and hearing application on urgent basis.








Practice
-
Interim
interdict - Court confirming requirements set out in
Labour
Supply Chain Namibia (Pty) Ltd v August Awaseb
Case
No. A 426/2009 (Unreported) which applicant must satisfy in the
field of unlawful competition and protection of one's right to
confidential information regarding one's business and goodwill
contained in restraint of trade agreement - Court finding that in
instant case applicant's averments justify granting order for
interim protection against respondent's continuing infringements in
breach of respondent's obligation under the restraint of trade
agreement, resulting in applicant's loss of business and income.



Practice
-
Locus
standi
-
Respondent raising preliminary objection that applicant does not
have
locus
standi
to
bring the application -Respondent contending that the
locus
standi
of
applicant ought to have been explained in the founding affidavit and
that the explanation therefor in the replying affidavit constitute
new matter which must be struck out - Court observing that in
deciding whether new matter has been introduced in a replying
affidavit Court must consider the facts and circumstances of the
particular case - In instant case Court finding that on the facts
and in the circumstances the matter sought to be struck out does not
constitute new matter properly so called and accordingly Court
dismissing respondent's preliminary objection.






Interpretation


of
statutes -
Labour
Act 11 of 2007, s. 117 (1) (e) - Respondent contending at the
threshold that on the interpretation of s 117 (1) (e) the Labour
Court does not have jurisdiction to hear present application - Court
considered the lexical meaning of each word used in the sentence of
s. 117 (1) (e) and, above all, the syntax of that sentence, and also
took into account, as was necessary so to do, the long title of the
Labour Act in order to arrive at the correct meaning of s. 117 (1)
(e) - Having pursued this logical and rudimentary approach to
interpretation of statutes, Court holding that the Labour Court has
jurisdiction to hear the present application.






Held,
that
in interpreting a statutory provision, one must always consider the
lexical (or, where applicable, the descriptive) 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.






Held,
further
that, the rule of practice that 'new matter' in a replying affidavit
may not to be permitted should not be applied blindly and
mechanically, without due regard to the facts and circumstances of
the particular case.















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








CORAM: PARKER
J





Heard
on: 2010 October 25





Delivered
on: 2011 January 6









JUDGMENT:
PARKER J
:



[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.









[2]
In
Labour
Supply Chain Namibia (Pty) Ltd v August Awaseb
Case
No. A 426/2009 (Unreported) at p. 3, a case, which, like the
present, also concerned the matter of urgent enforcement of a
restraint of trade clause in a contract of employment, I relied on
what I had stated in the earlier case of
JA
Beukes v R Martins and others
Case
No. A 431/2009 (Unreported) at p. 5. In
JA
Beukes v R Martins and others,
I
stated:










'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) (b) 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]
In the instant application what circumstances has the applicant set
out in its papers which, according to the applicant, render the
matter urgent (i.e. requirement (1))? From the applicant's 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 applicant urgent. In this regard it must be remembered
that the circumstances that would render a matter urgent in one case
may not reach that mark in another case: it all depends upon the
facts and circumstances that are peculiar to the particular matter.



[4]
In
casu
the
applicant has mentioned them briefly in the notice of motion and
expanded on them in the founding affidavit a series of conduct on
the part of the respondent that, according to the applicant, are in
breach of the respondent's obligations under the service agreement
entered into between the applicant and the respondent in September
2000. The following is, therefore, worth noting at this stage of the
enquiry, concerning the issue of 'urgency' (requirement (1)); that
is to say, whether the applicant can prove the averments in due
course is of no moment; whether the applicant has 'set out' those
circumstances with sufficient particularity and clarity so as to be
capable of eliciting a response from the respondent is of
consequence. In this regard, I am satisfied that the circumstances
that the applicant has set out in its papers are not based on some
vague and unsubstantial implications and suggestions: they are
capable of eliciting response from the respondent, and they have.









[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.









[7]
I now direct my attention to the determination of the question of
jurisdiction raised also as a preliminary objection by the
respondent. The respondent contends that the applicant has no
standing to bring the present application. Mr. Barnard took up the
refrain and submitted, The application is brought in the honourable
court as the Labour Court of Namibia. The Labour Court is a creature
of statute and only has jurisdiction as afforded in terms of the
Act.' I respectfully dismiss Mr. Barnard's submission that 'the
Labour Court is a creature of statute' because it is pleonastic and
absolutely meaningless in the constitutionalism of Namibia: it is a
'lawyerese' cliche touted in some jurisdictions elsewhere. In
Namibia, I need say more, there is no competent court which is not a
'creature' of statute. In English, 'creature' means 'a person or
organization under the complete control of another
(Concise
Oxford Dictionary,
11th
edn).' There is no competent court in Namibia which is not under the
control of the Namibian Constitution and,
a
priori,
an
applicable legislation.









[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) ...



(e) grant
urgent relief
including
an
urgent interdict pending resolution of a dispute in terms of Chapter
8;...'



[Emphasis
added]








[9]
In line with his interpretation of s. 117 (1) (e) of the Labour Act,
Mr. Barnard boldly submits thus,
verbatim
et literatim:










'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.









[11]
In this regard, it is worth noting that the use of the indefinite
article 'an' to qualify 'urgent interdict' and the absence of any
such indefinite article qualifying 'urgent relief' in the same
sentence, that is s. 117 (1) (e) of the Labour Act, are without a
doubt significant. Their irrefragable significance is that as far as
the Labour Act is concerned, there is
an
unaccountable number of unnamed and unspecified classes of
urgent
relief that the Labour Court may grant, and
one
named and specified class of
such
urgent relief is 'an urgent interdict pending resolution of a
dispute in terms of Chapter 8'. (Italicized for emphasis) It is with
firm confidence that I say that for any one to argue otherwise - as
Mr. Barnard does - is for one to misread, as I have said previously,
the clear and unambiguous words and formulation of s. 117 (1) (e) of
the Labour Act.









[12]
Having considered the lexical meaning of each word used in s.117 (1)
(e) and the syntax of the sentence in that provision and having also
taken into account the long title of the Labour Act, as I must, I
come to the following inexorable and reasonable conclusion
respecting the interpretation and application of s. 117 (1) (e) of
the Labour Act; that is to say, the Labour Court has exclusive
jurisdiction to grant any class of urgent relief, for example, 'an
urgent interdict pending resolution of a dispute in terms of Chapter
8' of the Labour Act, so long as the relief sought concerns a matter
specifically mentioned in the long title of the Labour Act, as well
as any matter that is incidental to the matters specifically first
mentioned therein. And as respects the purpose of a long title of a
statute; I observed thus in
HN
v Government of the Republic of Namibia
2009
(2)






NR
752 at 755C-D:













'And
it has been said of the long title of a statute by GC Thornton in
his authoritative work
Legislative
Drafting
(Butterworths
1987) at 150 that:







"Every
Act begins with a long title the function of which is to indicate
the general purpose of the Act. The long title is part of the
Act, being considered because it is legitimate to use it for the
purpose of interpreting the Act as a whole and ascertaining its
scope.
(Vacher
& Sons Ltd v London Society of Compositors
[1913]
AC 107 at 128)"'






[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.









[14]
In view of all that I have said above concerning the interpretation
and application of s. 117 (1) (e) of the Labour Act, I must say,
with respect, that I have no use for the case referred to me by Mr.
Barnard: it is labour lost. The case is
Transnamib
Limited v Poolman and Others
1999
NR 399 (SC). The case is not of any real assistance on the point
under consideration. Furthermore, in view of the aforegoing, I shall
not, with the greatest deference to Mr Barnard, waste my time giving
any respectable look at other certain submissions put forward by Mr.
Barnard respecting the question of jurisdiction. One such glaringly
baseless argument by Mr. Barnard is that the Labour Act no longer
applied to the present matter because the respondent is no longer an
employee. Mr. Corbett described the argument 'non-sensical' and
'self-serving'. I shall say that the argument is patently fallacious
and, above all, sad and unfortunate. Mr. Barnard's argument flies in
the teeth of common sense, logic and the law of the Labour Act; an
Act which empowers the Labour Court to determine ex post facto
whether, for example, the dismissal of an employee by his or her
employer that has already taken place and so such employer was no
longer employed by such employer is fair, or whether, for instance,
an employer is entitled to refuse to pay severance pay to an
employee who was no longer employed by the employer.









[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.









[16]
I pass to consider the other preliminary objection concerning the
issue of
locus
standi
of
the applicant. In this regard, on behalf of the respondent, Mr.
Barnard made the following pithy submission; and I repeat it here
verbatim:










'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.'






[17]
I do not agree with Mr. Barnard that the applicant has not explained
'what the situation is'. The applicant did explain the situation at
the next available opportunity in the replying affidavit after its
locus
standi
had
been challenged in the respondent's opposing papers, instead of
waiting for it to be submitted from the Bar, for instance. Thus, as
respects this point, I do not accept Mr. Barnard's argument that
that is 'new matter'. In any case, in my opinion, the rule of
practice that 'new matter' in a replying affidavit may not be
permitted should not be applied blindly and mechanically, without
due regard to the facts and circumstances of the particular case. It
is for this reason that I do not find
Coin
Security Namibia (Pty) Ltd v Jacobs and Another
1996
NR 279 and
Mbanderu
Traditional Authority and Another v Kahuure and Others
Case
No. SA 20/2007 (Unreported), referred to me by Mr. Barnard, to be of
any real assistance on the point under consideration, taking into
account the facts and circumstances of the instant matter.









[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'






[19]
Furthermore - and this is also significant for our present purposes
- in order to find a peg on which to hang his opposition to the
application, the respondent unwittingly relies on the proposition of
law enunciated by Goldblatt J in
Info
DB Computers v Newby & Another
(1996)
17
ILJ
32
(W) at 35 'that unless there are terms to the contrary, a party who
has wrongfully caused the termination of a contract of employment
cannot rely upon the continued existence of a restraint of trade
clause forming an integral of such contract.' In the face of all the
above, I fail to see the merit in the respondent's contention that
the applicant should have established its
locus
standi
in
the founding affidavit and also Mr Barnard's argument that any
explanation respecting the applicant's standing to bring the present
application in the replying affidavit constitutes 'new matter'.
Accordingly, I find that the incorrect reference to the applicant
cannot on any pan of scale occasion any prejudice to the respondent.
The contextual framework of the surrounding circumstances indicates
that that is a typographical error; an error of such a kind as to
entitle the Court to condone it.









[20]
It follows from all the above reasoning and conclusions respecting
the point presently under consideration that I should condone the
error, as prayed for by the applicant, and read the reference in the
aforementioned service agreement to refer to the applicant as the
other party. In any case, I hold that the explanation given in the
replying affidavit does not constitute new matter properly so
called. In my judgment, therefore, the respondent's point
in
limine
concerning
locus
standi
of
the applicant has no merit; this objection, too, fails.



[21]
In my opinion, the preliminary objections in respect of jurisdiction
and
locus
standi
amount
to nothing more than a disingenuous stratagem perpetrated for the
sole purpose of assisting the respondent to willy-nilly wriggle out
of his obligation towards the applicant under what the respondent
himself knows, or ought reasonably to know, is a valid and
enforceable agreement, binding him. I shall return to this
conclusion in due course when considering the merits of the
application in view of what Mr. Barnard boldly and honestly admitted
on behalf of the respondent (in the quotation from his submission
set out previously) concerning what Mr Barnard called 'restraint
undertaking'. That admission buries any attempt by the respondent to
challenge the validity and enforceability of the restraint agreement
against him; and it is to the merits that I now direct the enquiry.









[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.









[23]
In
Labour
Supply Chain Namibia (Pty) Ltd v August Awaseb
supra,
which, like the present matter, concerned the enforcement of
restraint of trade provisions in a contract of employment, as
aforesaid, I stated at pp. 5-6 thus:










'[7]
... 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:




  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.








[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.)'






[22]
From the papers I am satisfied that the applicant has established on
a balance of probabilities that in violation of his 'restraint
undertaking' the respondent has used for his own benefit certain
information, including the actual names and specific details of the
applicant's clients and the leads provided by the applicant to
therespondent respecting potential clients of the applicant's. The
respondent's conduct is an unlawful act. And I have no difficulty in
finding that these pieces of information are confidential and the
applicant has proprietary interest in them which merit protection by
the Court. (See
Sibex
Engineering





Services
(Pty) Ltd v Van Wyk and Another
1991
(2) SA 482 (T).)









[23]
The respondent contends that he did not entice the applicant's
clients to move their businesses from the applicant's enterprise to
the respondent's. In that regard, it was argued by Mr. Barnard on
behalf of the respondent that 'a man's skills and abilities are part
of himself and he cannot ordinarily be precluded for making use of
them by contract of restraint of trade.' That may be so; and if the
respondent has skills and abilities to boast about, as the
respondent's counsel trumpets them, what then is preventing the
respondent from building his own client base and business goodwill
(of which he can be proud) within the by far larger remainder of 90%
of the total financial industry sector that is not under the wings
of the applicant, instead of targeting the selfsame clients of the
applicant who - most significantly - had been serviced by the
respondent before the respondent's separation from the applicant's
employment? The fact that the respondent is not prevented by the
'restraint undertaking' in terms of the aforementioned restraint
agreement from plying his trade within the said 90% of the total
financial industry sector means that the respondent is not at all
being prevented from using his knowledge and skills; but, as I say,
the restrictions placed on the respondent - which I find to be
reasonable on that score - only prevents the respondent from
applying those skills on the applicant's clients for the limited
period of 12 months from the date he separated from the applicant's
employment. In view of all that I have said previously respecting
this point, I respectfully accept Mr. Corbett's submission that
customer goodwill and trade connections have long been regarded as a
proprietary interest that can be thankful of judicial protection.
(See
Recycling
Industries (Pty) Ltd v Mohammed and Another
1981
(3) SA 250 (SE).);
Rawlins
and Another v Caravantruck (Pty) Ltd
1993
(1) SA 537 (A).) Keeping this significant conclusion in my mental
spectacle and considering it together with the aforementioned honest
admission made by Mr. Barnard on behalf of the respondent as
respects the respondent's 'restraint undertaking' and the
conclusions I have reached thereanent and further considering all
these aspects against the backdrop of my decision on
locus
standi
of
the applicant, I come to the inevitable and reasonable conclusion
that the balance of convenience favours the granting of interim
relief that the applicant, as I say, has prayed for.









[24]
But the matter does not rest there. Mr. Barnard has canvassed
certain important matters on the merits which require treatment. As
respects the first of those matters which I have already looked at,
Mr. Barnard submitted that on the authority of
Info
DB Computers v Newby & Another
(1996)
supra
loc.
cit. 'unless there are terms to the contrary,
a
party which has
wrongly
caused
the
termination of a contract of employment cannot rely upon the
continued existence of a restraint of trade clause forming an
integral part of such contract.' (Italicized for emphasis) I
respectfully accept Goldblatt J's proposition of law on the issue at
hand; it is good law, but Mr. Barnard's reliance on the proposition
is, with respect, misplaced. That proposition of law cannot assist
the respondent. In the instant matter 'there are terms to the
contrary' in the restraint of trade clause (7). Those terms, in
relevant parts, read: 'The Consultant shall not, either before or
after the termination of this Agreement ... howsoever caused,
solicit or interfere The words 'Howsoever caused' mean exactly what
they say; that is, whether the termination was caused by the conduct
of the employer or the employee or caused by any other person or by
any occurrence under the sun. In any case, nothing has been placed
before this Court, tending to show that the applicant,
qua
employer,
'wrongfully' caused the termination of the contract of employment
between the applicant and the respondent. In our law only a
competent tribunal or court has the power to decide conclusively
whether the dismissal of an employee is unfair, that is, wrongful;
and this is
a
fortiori.
Mr.
Barnard did not point to this Court any such decision by a competent
tribunal or court in that behalf. It follows that counsel's present
argument falls to be rejected; it is devoid of any merit.









[25]
With respect, Mr. Barnard misses the point in his submission
contra
the
applicant's contention that the applicant has no adequate
alternative remedy. Mr. Barnard submitted with consummate glee and
verve thus: '. the applicant sets out exactly why it will be
afforded substantial redress in due course, My Lord, 100%, it shoots
itself in the foot with respect.' I do not share Mr. Barnard's glee
at all. I reiterate what I have said previously. I do not think that
on the facts and in the circumstances of this case, the applicant
has adequate alternative remedy. I, therefore, accept Mr. Corbett's
submission that it is a situation where the applicant stands to lose
substantially when an employee who, in breach of a restraint of
trade agreement, continues to take away the clients of his former
employer (the applicant) by interfering with applicant's entitlement
to derive financial benefits from the customer goodwill and trade
connections the applicant has cultivated over the years. And what
the applicant is asking the Court to protect in the interim in terms
of the notice of motion are those interests and entitlement. I
extend the essence of this conclusion to the consideration of the
requisite of 'irreparable harm' and say that what appears to escape
Mr. Barnard is that the quantum of damages mentioned by the
applicant in its papers is not fixed. It is an estimate and it may
dwindle or escalate with time; and, more important, it is not proven
and so the applicant faces the difficulty of having to prove it. On
such point, Van Reenen J stated, 'The difficulty of establishing the
quantum of damages is recognized as a factor relevant to the
determination of the question whether or not damages would be
adequate remedy
(Nampesca
(SA) Products (Pty) Ltd and Another v Zaderer and Others
1999
(1) SA 886 (C) at 901G.)' On the facts and in the circumstances of
the instant case, I accept Mr. Corbett's submission that a similar
constraint stands in the way of the applicant. Accordingly, I hold
that a claim for damages would not be an adequate alternative remedy
in the present case.



[27]
In the face of all the aforegoing reasoning and its conclusions, I
have no doubt in my mind that I should exercise my discretion in
favour of granting the interim relief: there is sufficient evidence
on the papers to justify an order for interim protection to the
extent set out in the order below. I do not think the restrictions
contained in the restraint of trade agreement are so unreasonable as
to render them contrary to public policy. (See
Magna
Alloys and Research (SA) (Pty) Ltd v Ellis
984
(4) SA 874 (A) (Head note).) In this regard, I do not think it lies
within the province of this Court to concern itself with whether, as
Mr. Barnard opined, this applicant works at least in the whole of
Southern Africa and it is conceivable it has interests in the whole
of Southern Africa The Court is not the SADC Tribunal; its
decisions, without more, have effect in Namibia only. Additionally,
it is view that if I took a cue from the time limit in clause 7 of
the restraint of trade agreement and ruled that the same time limit
should apply in clause 6 that would be fair and reasonable, and it
will not occasion any prejudice to the respondent; and, what is
more, in doing so, I will not be 'rewriting' clause 6 to the extent
that it would amount to performing 'major plastic surgery' (to
repeat the words of Mr. Barnard; borrowed from
Sunshine
Records (Pty) Ltd v Frohling and Others
1990
(4) SA 782 (A) at 796C): I would rather be performing cosmetic
surgery. I hasten to add that the preponderance of the evidence I
have accepted and the circumstances I have found to exist in this
case are unaffected by any matters sought to be struck out.



[28]
I pass to consider the matter of costs; and in doing so, I think it
behoves me to take into account the pithy observation I have made
previously, namely, that the preliminary objections concerning
locus
standi
and
jurisdiction were raised as disingenuous attempts aimed solely at
assisting the respondent to wriggle out of his obligation towards
the respondent under a contract which he knew (or ought reasonably
to have known) to be valid and enforceable against him, as
aforesaid. It must be remembered that the legal principle of
'pacta
sunt servanda'
is
part of our law, and it is at the root of decent behaviour in, and a
touchstone of, any civilized legal system, having the notion of rule
of law as one of the blocks in its constitutional edifice; and, need
I say more, Namibia has such legal system. It follows that in my
opinion, by opposing (or 'defending') the application, the
respondent acted not only frivolously but also vexatiously; and so I
evoke the exception in s. 118 of the Labour Act and grant an order
of costs against the respondent.









[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.



2) that
a rule
nisi
is
hereby issued calling on the respondent to show cause, if any, at
10h00 on 3 February 2011 why an order in the following terms should
not be made final -





(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.



(3)
that the order in paragraphs 2 (a) and 2 (b) operates as interim
interdict with immediate effect, pending the return date of the rule
nisi.











(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










































COUNSEL
ON BEHALF OF THE APPLICANT:
Adv.
AW Corbett


Adv.
RL Maasdorp


Instructed
by:
LorentzAngula
Inc











COUNSEL
ON BEHALF OF THE DEFENDANT:
Adv.
P C I Barnard


Instructed
by: Van der Merwe Greef Inc