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CIV/APN/308/93
IN THE HIGH COURT OF LESOTHO
In the Application of:
SECURITY LESOTHO (Pty) LTD Applicant
and
M.M. OPERATIONS SERVICE (Pty) LTD 1st Respondent
PAUL MOKHETHI 2nd Respondent
SELLO MATETE 3rd Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 1st day of September. 1993.
On 23rd July, 1993, the Applicant herein moved, ex-parte an urgent application for a rule nisi framed in the following terms:
"1. ordering 1st, 2nd, and 3rd Respondents or anyone or both of them to show cause, if any, on a date to be determined by this Honourable court why -
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Respondents or anyone or both of them shall not be interdicted from carrying on the business of providing security services in opposition to or competition with Applicant for as long as 2nd and 3rd Respondents are in the employ of Applicant;
Respondents or anyone of them shall not be interdicted from interfering with or influencing customers or clients of Applicant as well as its employees to abandon Applicant and work with Respondents;
Applicant shall not be granted further and/or alternative relief;
Respondents shall not be ordered to pay the costs of this application.
Ordering that prayers l(a) and (b) shall operate with immedidate effect as interim relief pending finalisation of this application."
The rule nisi was granted as prayed in the notice of motion and the return day fixed as the 9th August, 1993. However, on 28th July, 1993, the Respondents intimated intention to oppose confirmation of the rule and anticipated the return day to 30th July, 1993. Affidavits were duly filed by the parties.
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In his answering affidavit the 2nd Respondent raised the following points which were argued in limine at the commencement of the hearing of this matter:
"(a) The application seeks an order which amounts to a perpetual interdict, and the order has been obtained without the Respondents
having been heard;
The applicant has automatically dispensed with the periods of time of service, even before obtaining an interim order to that effect. In fact the applicant has not even made a prayer to that effect although he has sought his orders ex-parte;
The applicant has sought to sue a company i.e. M.M. Operations Service (Pty) Ltd. and yet this company was never employed by the Security Lesotho. This is a clear case of mis joinder."
In fairness to him, the 2nd Respondent abandoned, at the commencement of the arguments, point (c) above, and rightly so in my opinion, because as it will become apparent later in the course of this judgment M.M, Operations Service (Pty) Ltd is a company of which the 2nd and the 3rd Respondents are the only shareholders and, therefore, an interested party.
As regards point (a) above a proper reading of prayer 2 clearly shows that prayers Ma) and (b) of the notice of
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motion are sought to operate as interim orders with immediate effect pending the finalisation of the present application. It is not correct, therefore, to say the applicant has sought and obtained perpetual orders before the Respondents have been afforded the opportunity to be heard.
As to point (b). above, it is to be observed that the applicant brought this application before the High Court under the provisions of rule 8(22) (c) of the High Court Rules 1980. There is nothing in that rule compelling the applicant to make a prayer that the court should dispense with the normal periods of service before he can obtain an interim order. That is a matter for the judicial discretion of the court or a judge, in terms of the provisions of rule 8 (22) (a) of the High Court Rules, 1980.
In my view, the points raised by the 2nd Respondent in limine are misconceived and ought to be dismissed with costs. It is accordingly
ordered.
I now turn to the merits of the application. In as far as it is relevant, it is not really disputed that applicant is a limited liability company carrying on, inter
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alia, the business of providing security guards services in Lesotho. At all material times prior to 14th July, 1993, the 2nd and the 3rd Respondents were employees of the Applicant. On 8th June, 1993 and whilst they were still in the employ of the Applicant, the 2nd and the 3rd Respondents caused to be incorporated a company styled M.M. Operations Service (Pty) Ltd (1st Respondent) of which they were the only shareholders. The business of M.M. Operations Service (Pty) Ltd. was, inter alia, to provide security guards services.
Following its incorporation on 8th June, 1993, the 2nd and the 3rd Respondents started not only recruiting some of the employees of the Applicant at the National University of Lesotho - Roma - to abandon the Applicant and join M.M. Operations Service (Pty) Ltd but also influencing the Applicant's clients/customers at Maputsoe, Lesotho Highlands Development Authority and Pioneer Motors (Pty) Ltd to terminate business with the Applicant and deal with M.M. Operations Service (Pty) Ltd on the grounds that the latter would offer them better service than the former which was on the verge of collapse. Indeed, Pioneer Motors (Pty) Ltd did, as a result, decide to terminate business dealings with the Applicant and actually hire security services from M.M. Operations Service (Pty) Ltd.
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On 13th July, 1993, the Applicant's Board of Directors held an urgent meeting at which it was resolved, inter alia, that the 2nd and the 3rd Respondents, who were still its employees, be suspended pending the finalisation of the present proceedings which were to be instituted against them, On 14th July, 1993 a notice of suspension was duly served upon the 2nd Respondent who in turn also served the Applicant with notice to terminate the contract of employment. Before he could be served with a notice of his suspension on 14th July, 1993, the 3rd Respondent also served the Applicant with notice to terminate the contract of employment.
In their written notices to terminate the contract of employment with the applicant, the 2nd and 3rd Respondents stated that they had accumulated a number of leave days. Instead of serving the period of one month's notice they were, therefore, tendering the leave days so that their termination of the contract would operate with immediate effect i.e. on 14th July, 1993,
It seems to me the parties are ad idem that if either of them wished to terminate the contract, one month's notice had to be served. What is in dispute is whether or not the 2nd and the 3rd Respondents who wanted to terminate
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the contract, have served one month's notice. Admittedly they did not. What they did was to tender their leave days to be regarded as notice.
In the contention of the applicant, even if it were accepted that the 2nd and the 3rd Respondents could tender their leave days to be regarded as notice, instead of actually serving one month's notice, they were still in its employ until the number of leave days equal to one month's notice had lapsed. Regard being had to the fact that on 14th July, 1993 they tendered their one month's notice to terminate the contract, the 2nd and the 3rd Respondents could not, therefore, be heard to say their period of one month's notice had on the same day, lapsed and were, therefore, no longer in the employ of the applicant.
The applicant's contention is denied by the 2nd and the 3rd Respondents according to whom the effect of giving one month's notice to terminate their contract of employment with the applicant and tendering leave days to serve as such notice, on 14th July, 1993 was to bring an end to the contract immediately. When on 23rd July, 1993 the applicant brought the present application before the court, they had long ceased to be its employees and, were therefore, free to operate the M.M. Operations Service
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(Pty) Ltd in competition with the applicant whose business was in the open market.
The applicant's contention is, in my view more sensible than that of the Respondents. I am, therefore, prepared to accept it and reject that of the Respondents.
As it has already been stated earlier, the parties are ad idem that if either of them wished to terminate the contract, one month's notice had to be given by such party. It is significant that the Respondents' one month's notice was given on 14th July, 1993 and, therefore, expired on 13th August, 1993, The question that immediately arises is whether or not such notice was reasonable and, therefore, valid, in the circumstances of this case. At p. 414 of his work The Principles of South African Law (1956 Ed,) Willie has this to say on the issue:
"Reasonable notice in the case of a monthly contract is a month's notice given so as to expire at the end of a month, and such notice given on the first day of a month is sufficient to terminate the contract at the end of that month."
It 1s clear from the above cited passage that to be reasonable, and, therefore, valid the one month's notice to terminate the contract,
given by the Respondents, ought to
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have been made to run from the beginning to the end of the month. That was not done in the present case. The one month's notice which the Respondents have given to terminate the contract clearly purports to run from 14th July to 14th August, 1993. It 1s unreasonable and, therefore, invalid for the simple reason that it starts and ends in the middle of July and August, 1993, respectively. If the Respondents wished their contract with the applicant to terminate on 14th July, 1993, (the day on which they gave notice to terminate it), they could have simply tendered one month's salary in lieu of notice. They have again not done so.
Having found that the purported one month's notice which the Respondents gave to terminate their contract with the applicant was not valid, it must be accepted that at the time these proceedings were instituted, on 23rd July, 1993, they were and still are in the employ of the applicant until they have served a valid notice to terminate the contract or tendered one month's salary in lieu of notice.
As to the question whether or not whilst still in the employ of the applicant, the Respondents were free to field a rival company in competition with the applicant whose
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business is admittedly in the open market I have been referred to Mercantile law of South Africa by J.P, Coaker and D.T. Zeffert where at page 347 the learned authors have this to say on the issue:
"The employee may not compete with his master, nor may he, while so employed make arrangements for starting a business in opposition to and to the detriment of his employer."
I agree. That being so, it stands to reason that prayers 1 (a) and (b) of the notice of motion were well taken and must, therefore, succeed.
Consequently I have no alternative but to confirm the rule as prayed, with costs.
B. K. MOLAI
JUDGE
1st September, 1993.
For Applicant : Mrs. Kikine
For Respondent: Mr. Phoofolo.
