The Applicant and the Second Respondent both conduct business within the cosmetics industry. The First Respondent was under the employ of the Applicant until her husband was involved in a car accident, which lead to her resignation in July 2015.
The First Respondent’s employment contract contained a restraint of trade clause. Two other employees (the “Employees”) of the Applicant were also bound by the same restraint clause. The Applicant brought an application to enforce the restraint against the Employees and the Second Respondent, who initially opposed same, subsequently however, the Second Respondent elected to abide by the court’s ruling. The Applicant then joined the First Respondent to the proceedings – judgment was later granted, on 3 September 2015, by Brassey AJ enforcing the restraint of trade.
The Applicant’s attorneys instructed a courier service to serve the Court Order on the First Respondent at her place of employment (the Second Respondent) and her residential address. Upon arrival at the Second Respondent, the courier was informed that the First Respondent no longer worked at the premises, furthermore, and at the First Respondent’s residential address, the First Respondent’s sister advised that she was no longer in the country and had returned to Zimbabwe.
In November 2015, customers of the Applicant advised that they had seen the First Respondent conducting business at the Second Respondent. The Applicant’s financial controller attempted to book an appointment with the First Respondent but was informed that she no longer worked there. The Applicant requested the services of a security company to ascertain whether the First Respondent still worked at the Second Respondent. The First Respondent was later filmed conducting business at the Second Respondent.
The Applicant brought an application calling upon the First Respondent and a representative of the Second Respondent to show cause as to why they should not be held in contempt. The First Respondent provided an explanatory affidavit in which she admitted that she had breached the Court Order subsequent to having received the same from her sister. The issue of service was raised at the return date, however, sufficient proof was provided on the part of the Applicant.
The requirements to establish civil contempt were summarised in Fakie NO v CCII Systems (Pty) Ltd as follows:
(a) The applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and wilfulness and mala fides) beyond reasonable doubt.
(b) But, once the applicant had proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides: Should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt.
In dealing with wilfulness and mala fides, the Court addressed the First Respondent’s explanation and found that she did not read the contents of the documentation/Court Order despite acknowledging that same related to her restraint of trade. Moreover, the First Respondent noted that English was not her first language but did not state that she was not fluent in English.
The same can be applied to the Second Respondent, in that, it never delivered opposing papers despite being aware of the Court Order. Both the First and Second Respondent’s non-compliance was wilful and mala fide and were therefore in contempt.
The primary aim of contempt proceedings is to ensure compliance and not to punish. However, despite undertakings by the Respondents to not breach the order again, the prior misconduct could not be overlooked. Due to the aforementioned principal of ensuring compliance, the Court handed down an order of incarceration and a fine of R30 000.00 to the First and Second Respondent, respectively, which were to be suspended for a period of four months barring any further infringement of the initial order handed down by Brassey AJ.