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IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: 1610/13

DATE: 06 DECEMBER 2014

In the matter between:-

ARAMEX (PTY) LTD….............................................Applicant

And

DEBBIE EYBERS........................................First Respondent

PC WORX EXPRESS (PTY) LTD...........Second Respondent

REASONS FOR JUDGMENT

CHWARO AJ:

Introduction:-

[1] On the 5th December 2013 and after listening to the arguments as presented by the parties’ legal representatives, I made a ruling in the following terms:

1. THAT the First Respondent’s point in limine in respect of the Applicant’s locus standi is upheld with costs; and

2. THAT the application is dismissed as the Applicant is non-suited.

[2] I indicated that the reasons for my judgment would follow thereafter. These are my reasons.

Background:-

[3] The Applicant instituted an urgent application out of this Court on the 17 September 2013 for hearing on the 23 September 2013. It is common cause that the application on the merits did not proceed and was postponed on different dates thereafter. Subsequently the application served before me for argument. The application is opposed by the First Respondent whereas the Second Respondent elected to file a notice to abide.

[4] A cursory perusal of the papers filed of record reveals that the Applicant, which is cited as a company with limited liability and duly incorporated in accordance with the laws of the Republic of South Africa, seeks to enforce what is alleged to be a restraint of trade and confidentiality undertaking given by the First Respondent, Ms Debbie Eybers, in favour of the Applicant. In substantiation of its cause of action, the Applicant attached a letter of appointment dated 26 April 2006 and an addendum to the said letter of appointment dated 01 November 2006. Attached to the letter of the 01 November 2006 is a document entitled “Confidentiality and Restraint agreement” signed by the parties thereto on the 19 December 2006.

[5] On the face of the first document, dated 26 April 2006, the letterhead and/or logo thereof reflects an entity known as Berco Logistics whereas on the last two documents dated 01 November 2006 and 19 December 2006 respectively, an entity known as Berco Group is reflected on top of the page and two entities known as Berco Investments (Pty) Ltd with registration number 1998/005122/07 and Berco Property Management Services (Pty) Ltd with registration number 1997/019690/07 are reflected below the page.

[6] At paragraph 16 of its founding affidavit, the Applicant makes an allegation to the effect that it previously traded as Berco Investments (Pty) Ltd and underwent a name change sometime in 2012, hence is now referred to in its present name.

[7] In response to the Applicant’s allegation referred to above, the First Respondent opted not to commit herself in respect of the Applicant’s name changing allegations and basically placed the onus on the Applicant to establish its standing before this Court.

Submission in limine:-

[8] At the hearing of the matter, Mr Van Heerden, acting on behalf of the First Respondent, raised a preliminary point relating to the locus standi of the Applicant to seek enforcement of an agreement which was, on the face of it, entered into between the First Respondent and a different entity, with separate legal persona from that of the Applicant itself. In support of his contention, I was referred to the decision of Angus and Another v Kosviner and Another 1996 (3) SA 215 (W) for the proposition that the Applicant was expected, in order to succeed, to have made out a case in its founding papers and would therefore not have awaited the First Respondent to raise the question of locus standi in the answering affidavit and only then respond thereto in a replying affidavit.

[9] Mr Dunn, Counsel for the Applicant, submitted that the First Respondent could not raise a point in limine relating to locus standi of the Applicant only in the heads of argument as this was prejudicial to the Applicant who did not know the case it was supposed to meet. In this regard, reliance was placed on the dictum found at paragraph 28 of the decision of MEC For Health, Gauteng v 3P Consulting (Pty) Ltd 2012 (2) SA 542 (SCA). The gist of this contention, so it was argued, was to prevent potential prejudice to the other party.

Evaluation:-

[10] As I have indicated above, the Applicant instituted this application to enforce the terms of an agreement allegedly entered into between it and the First Respondent. The Applicant does this through an interdict. The learned authors in Hebstein & Van Winsen: The Civil Practice of the High Courts of South Africa, 5th Ed, Vol 1 at page 196 state the following:

“..Where a claim for an interdict arises from a breach of contract, generally only a party to the contract will have locus standi to interdict the breach…”

[11] It follows that in an application for an order seeking to enforce the restraint of trade covenant and interdict the breach of such an agreement, the applicant, being the party with sufficient and protectable interest, would be the party in whose favour the agreement was signed by the other party and would therefore possess the necessary legal standing to institute any legal proceedings in protection of its interest emanating from the undertaking.

[12] It is also trite that a party who institutes legal proceedings bears the onus to allege and prove its locus standi. In my view, the responsibility is even more wanting in motion proceedings in that the applicant is expected to fully and clearly state its case and stand or fall by its averments as contained in the founding affidavit.

See: Jacobs v Waks [1991] ZASCA 152; 1992 (1) SA 521 (A) at page 534D; and

Kommissaris van Binnelandse Inkomste v Van den Heever 1999 (3) SA 1051 (A) at page 1058I-J

[13] Our law is clear to the effect that a party in motion proceedings may advance legal arguments in support of a particular relief or defence, as the case may be, even where such arguments are not specifically raised in the papers, provided that the facts upon which such reliance is placed are before court.

See: Cabinet of the Territory of South West Africa v Chikane and Another 1989 (1) SA 349 (A) at page 360G-H; and

City of Johannesburg v Even Grand 6 CC 2009 (2) SA 211 (SCA) at para 11

[14] With the brief exposition of legal position as it applies to the issue at hand, it is now opportune to consider the facts as pleaded by the Applicant and the First Respondent herein to determine whether the Applicant has sufficiently established its locus standi.

[15] The Applicant describes itself as a company with limited liability which has since 2012, been trading as such having undergone a name change from Berco Investments (Pty) Ltd. I have also illustrated the different names as they appear ex facie the documents upon which reliance is sought to be placed by the Applicant to establish its interest in the matter at hand. It is apparent from these documents, especially the letter of the 1 November 2006 and its annexure, that despite the “employer” having been referred to as Berco Logistics, there were other two separate entities whose registration details appear on the face of these documents. The immediate questions that come to one’s mind are the following:

- Was Berco Logistics a trading name of Berco Investment (Pty) Ltd only? If so,

- Why did the letterhead of Berco Logistics also contain the registration details of Berco Property Management Services (Pty) Ltd with registration number 1997/019690/07?

- Did the name change only affect Berco Investment (Pty) Ltd or did it affect other entities like Berco Logistics and Berco Property Management (Pty) Ltd?

- Were contracts of employment of the former Berco Logistics or Berco Investments (Pty) Ltd employees, including the First Respondent, transferred to the new entity, the Applicant, in terms of the provisions of section 197 of the Labour Relations Act, 66 of 1995?

[16] It is my considered view that all these questions ought to have been fully dealt with by the Applicant in its founding affidavit upon launching the application in the first place. As it can be discerned from the authorities referred to in paragraph 12 supra, the onus of establishing the necessary standing rests with the Applicant throughout and as such its argument that the point taken should have been raised in the answering affidavit cannot be sustained. I am fortified in this regard by the dicta referred to in the authorities cited under paragraph 13 supra.

[17] It is evidently clear that the Applicant seeks to enforce an agreement through an interdict. As such the Applicant had the onus to establish its entitlement and standing to launch this application. In the absence of such necessary averments, the Applicant cannot succeed.

Conclusion:-

[18] The Applicant’s failure to establish its locus standi sufficient to enable it to enforce an undertaking entered into between the First Respondent and a separate entity renders it non-suited herein and in the result, the First Respondent’s point in limine stands to be upheld.

[19] It is for the foregoing reasons that I granted an order referred to in paragraph 1 supra.

O K CHWARO

ACTING JUDGE OF THE HIGH COURT

APPERANCES

COUNSEL FOR THE APPLCANT :ADV BUNN

COUNSEL FOR THE 1ST RESPONDENT : MR VAN HEERDEN

ATTORNEYS FOR THE APPLICANT :KGOMO MOKHETLE &

TLOU ATTORNEYS

ATTORNEYS FOR THE 1ST RESPONDENT :VAN ROOYEN TLHAPI

WESSELS

DATE OF HEARING : 05 DECEMBER 2013

DATE OF REASONS FOR JUDGMENT : 06 DECEMBER 2013

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