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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

CASE NO: 2019/26213

In the matter between

GOLDEN FALLS TRADING (PTY) LTD                                  First applicant

SOUTHERN PALACE INVESTMENTS 108 (PTY) LTD          Second applicant

And

DIETER BOSHOFF                                                                 First respondent

RETAIL NETWORK SERVICES CC                                        Second respondent

CARNIVAL JUNCTION PROP DEVELOPMENT (PTY) LTD   Third respondent

Judgment

Van der Linde, J:

Introduction and background

[1]  In this urgent application the second applicant previously employed the first respondent who is now employed by the second respondent, who is a competitor of the second applicant. The applicants say that the first respondent appropriated assets of the first applicant, in the form of confidential information acquired while employed by the second applicant, and is now transferring that confidential information to his new employer, the second respondent, to advance the business interests of the second and third respondents to the prejudice of the applicants.

[2]  The cause of action is therefore delictual, and it takes the form of unlawful competition. The applicants, appreciating that (lawful) competition is for the public weal, stressed from the outset that they do not seek to stifle competition, and so the relief which they seek is limited to a specific number of tenants (that were identified in a document headed “X” handed up during the hearing), only in respect of the third respondent’s shopping mall referred to below, and for a limited duration, that is until 30 November 2020.

[3]  Before turning to deal in more detail with the facts, it is perhaps helpful to identify right at the outset in more conceptual detail the milieu within which the applicants’ cause of action fits. The usual requirements for delictual liability are required to be established, these being the unlawful act; wrongfulness; causation; culpa; and injury. If these requirements are shown, the applicants will have established a right, and the next question then becomes whether the remedy they seek – that of a permanent interdict – should in the discretion of the court be granted. Such interdicts are granted if a clear right has been shown; an injury actually committed or reasonably apprehended; and no satisfactory alternative remedy.

[4]  The parties on both sides accepted that these were the canons according to which this application was to be decided. Although not expressly stated, as regards wrongfulness, I think that it was implicitly accepted too that the norm is honesty and fairness in trade and competition. During the course of argument, in fact, it became clear that there were really only three issues at stake.

The issues

[5]  The first is whether the information which the first respondent did as a fact obtain while employed by the second applicant could be considered to be confidential information within the context of the legal meaning of that term. The second is whether the applicants have a reasonable apprehension of injury/harm. And the third is whether the remedy claimed is too wide in terms. I deal with these three matters in turn. But first the facts.

The facts

[6]  The first applicant conducts the business of developing retail shopping centres, and leasing the space within these shopping centres to various tenants. It owns the shopping centre known as “Mall@Carnival” in Brakpan. The second applicant manages the day to day leasing functions of the first applicant, including the sourcing and managing of tenants, collections, facility management, and related activities.

[7]  The first respondent is a (virtually) 48 year old adult male leasing agent, currently employed by the second respondent. The second respondent is also a manager of shopping centre owners, and so conducts its business in competition with the second applicant. The third respondent is in the process of developing a retail shopping centre, just over 1 km away from that of the first applicant’s retail shopping centre, and the two shopping centres will therefore compete commercially with each other.

[8]  The first respondent was employed by the second applicant as its head of leasing on 7 November 2018. According to the applicants, this is a senior managerial position in which the first respondent was placed in charge of the second applicant’s entire leasing portfolio. By virtue of this position, say the applicants, the first respondent had high-level and unfettered access to the second applicant’s confidential information, comprising know-how, proprietary information, and trade secrets.

[9]  This confidential information included complete details concerning the identity and contact details of customers, tenant lists, and client lists. It included also all particulars of rental agreements concluded between the first applicant and its tenants, and therefore information concerning the lease terms, payment terms, an expiry date. The confidential information included also details of negotiations between the first applicant and existing and prospective tenants, the performance profiles of these tenants, individual tenant requirements, individual tenant installation costs, individual tenants’ need for entering into new lease agreements, the second applicant’s leasing strategies, the long-term leasing strategy for Mall@Carnival for the next three years, and – importantly – the leasing strategy “to counter the threat of the new upcoming mall being developed by the third respondent.” In this judgement, when I refer in shorthand fashion to “the confidential information”, it is a reference to the information just described.

[10] The applicants say that the second applicant has in place bespoke software and other systems that combine the above confidential information into a powerful tool that can be used to retain and manage this in the form of various types of reports. They say also that the first respondent was specifically tasked to conduct a risk analysis of the third respondent’s development, so as to determine what risk this would pose to the first applicant, and what the potential was of losing tenants to the third respondent.

[11]  The applicants say that the first respondent was well aware of the value of the confidential information, and was well aware of the harm which the applicant would suffer if the confidential information were to be used unlawfully by a competitor. This knowledge on the part of the first respondent is evidenced, so say the applicants, by certain provisions of the employment agreement.

[12] Contractually, the first respondent was obliged after the termination of his employment not to use the confidential information for his own benefit, nor to divulge or even communicate it to any other person. In fact, he was contractually beholden to use “the greatest possible degree of skill and care” in protecting the confidential information. His contract of employment also contains an acknowledgement on his part that during his employment he will have acquired confidential information of the applicants.

[13]  I interpose here to record that during argument counsel for the applicants accepted that for purposes of the wrongfulness requirement of the applicants’ case, the applicants could not rely on the terms of the employment contract, but that they would have to found wrongfulness outside of the contract. Put differently, the mere fact that the first respondent contractually acknowledged that he would obtain confidential information in the course of his employment, and that he undertook – contractually – not to disclose this information after termination of his employment, did not alleviate the applicants’ onus to show that the first respondent in fact acquired confidential information, which he in fact understood to be confidential in the sense that disclosure would harm the applicants.

[14] After barely seven months with the second applicant, the first respondent notified the second applicant of his intention to terminate his employment. He was asked the name of his future employer but he refused to disclose this. The first respondent left the employment of the second applicant on 14 June 2019.

[15] The shopping mall which the third respondent is developing is known as “Country Mall”. The applicants say that the first respondent was only prepared to say that he would be employed with a “property development company”. In truth however it turned out that he took up employment with the second respondent which was not a property development company but a “specialist retail strategist and leasing company.” This, say the applicants, is in competition with the second applicant.

[16]  It is the applicants’ case that the first respondent rapidly began with efforts to poach the applicants’ tenants. He did this by approaching tenants with rental offers substantially lower than rentals paid to the applicants. A large majority of those tenants that were targeted were tenants whose leases were up for renewal, or who had been identified as being at risk of relocation. Only someone with inside knowledge would have been able to do this.

[17]  Details of the first respondent’s conduct is his direct communication to Ms Sandy Turner on 11 July 2019, when he told her that he was meeting with someone at Mugg & Bean. He also told her that this concern was considering moving to the third respondent’s shopping centre as the rentals there were substantially less than that of the first applicant. He also told her that he was doing lettings for that shopping centre, and that he had “a lot of new leasing projects on the go.”

[18]   Next, the applicant says that Mr Turtle of the Wimpy had told Ms Turner that the second respondent had approached him to move to the third respondent’s premises. Mr Turtle also owns the Mugg & Bean franchise, and he also confirmed that he had been approached to move to the third respondent’s shopping centre.

[19]  Mr Steyn, who owns the Spur franchise, told Ms Turner that the first respondent had approached him to move to the third respondent’s premises. Mr Steyn also disclosed that she had “reliably heard” that both PNA and Creative Talents had been approached by the second respondent to move to the third respondent’s premises. Finally, Medicross also advised Ms Turner that the second respondent had approached them to move to the third respondent’s premises.

[20]  The applicants say that the second respondent has been making cold call approaches to the first applicants’ tenants for the past 3 to 6 months but without success. They say that it is difficult to secure a tenant on favourable terms by means of a cold call approach. It is wholly different if the person who makes the approach is a predator who is armed with inside knowledge concerning that tenant. This is so, because the predator is securely positioned to target the tenant at its soft underbelly, so as to persuade that tenant to go for a better financial deal.

[21]  The first and second respondents’ answering affidavit confirms that the first respondent took up employment with the second respondent on 24 June 2019. The first respondent gives his own background: after matriculating in 1989, he obtained a diploma in town planning and in 1999 he enrolled for a postgraduate qualification in property development and management at the University of the Witwatersrand. He does not say whether this was a diploma or a degree but at all events he says he completed it and enrolled for what he calls his “masters.”

[22] He says that he has been involved in the property industry since 1999 and has gained vast experience in the industry and on a daily basis has worked with leasing agents, landlords, franchisors, franchisees, and tenants from all walks of life. He says that he has worked in various facets of the property industry and has represented both landlords and leasing agencies. He has been a member of the South African Council of Shopping Centres, a body which hosts annual conventions where all the role players in the industry meet and views are exchanged.

[23]  He says that it is not uncommon in the industry for a retail leasing consultant like him to engage in and network with potential tenants, irrespective of one’s employment or portfolio allocation. This body also hosts regular breakfast sessions and networking functions which he attends.

[24]  He explains that he was head-hunted by Mr Thomas of the second applicant who “more than once urged me to take up employment with” the second applicant. He says: “I have no doubt that Southern Palace so approached me by virtue of my knowledge and experience in the industry. My networking contacts which I had built up over the years obviously also played a role. As mentioned, Mr Thomas approached me on more than one occasion to join Southern Palace. I eventually agreed to accept an appointment on a contract basis and entered into a six-month contract with Southern Palace.”

[25] He says that when he arrived at Southern Palace he was concerned to see that a vast quantity of leases with tenants had never been renewed, and he developed “some discomfort” by reason of certain practices which could ultimately “at firstly reflect upon my good name and reputation in the industry.” He explains that in time he decided to leave and prior to resigning, reacted to an advertisement published by the second respondent. He applied for a position with the second respondent and his application was accepted.

[26]  He denied, at the hearing through his counsel, ever having received confidential information during his employment with the second applicant. He says in his affidavit: “Whatever information I had available to me, whilst being employed by RNS, is information I had available prior to me taking up employment with Southern Palace. Upon the termination of my services at Southern Palace, I left without taking any documents, information or electronic data with me. I am presently not in possession of any confidential information, data, documents or the like which belong to Southern Palace.”

[27]  He argues that the centre which the third respondent proposes to construct is a convenience centre which is to be distinguished from a regional shopping centre, the property owned by the first applicant. He says that a Mr Potgieter was since inception (around December 2017) appointed as the retail leasing consultant in respect of the shopping centre which the third respondent proposes to construct. This gentleman is the one who has been tasked with and actively involved in securing potential tenants for the shopping centre. He has been actively involved in doing this from “long before” the first respondent joined the employment of the second applicant.

[28]  It is Mr Potgieter who as part of his process of securing tenants consulted with the franchisor of Mugg & Bean, Famous Brands, and Mr Turtle. He also approached the franchisors of PNA and Spur. He says that generally one would approach the franchisor and not the franchisee because the former will have the final say in approval of the location. These approaches by Mr Potgieter took place back in October 2018, before the first respondent even took up employment with the second applicant. In the case of Mr Steyn, the franchisee of Spur, the approach was made in March 2019. The first respondent stressed in his affidavit that Mr Potgieter was appointed to identify potential tenants and secure deals with such tenants for Country Mall; the first respondent admitted that he was appointed for a number of other centres and projects, but not for Country Mall.

[29] Despite the aforegoing, the first respondent admitted that he “engaged” with Mr Steyn after he started with the second respondent. He says that Mr Steyn was seeking suitable premises for his other business interests, not Spur. For this reason the first respondent requested a meeting with Mr Steyn and in the course of that meeting enquired from him whether he would be interested in opening up a coffee shop in Country Mall. However, the meeting never took place, says the first respondent.

[30] He deals in his affidavit with the issue of confidential information being imparted to him in these terms: “Upon my arrival at Southern Palace there was no confidential information on their records. Everything I saw was pretty standard and there was nothing new or not known to me. In the industry there are certain well-known benchmarks which, if you have been involved in the industry long enough as I have been, you are fully au fait with.”

[31]  Later on he says, despite his contention that there was no confidential information at the second applicant when he joined them, “I reiterate my denial that I have used any confidential information which I had obtained during the course of my employment with Southern Palace after taking up employment with RNS.” Later on he explains the information available at the second applicant along these lines: the identity and contact details of franchisors and other national tenants were all known to him. Negotiations for tenancies and leases “should generally be with nationals and the franchisors.” He said also that in any event the identity of the franchisee or the owner can be established by visiting the outlet.

[32] He does accept that there are smaller tenants of which one may gain knowledge; and he says that “at best I could have obtained knowledge of the franchisee of a particular store in a particular centre by virtue of my employment with Southern Palace.” In responding to the applicants’ contention that since his employment in November 2018 the first respondent has had access to confidential information, and in particular the detail of the information which the applicants listed in paragraphs 8.4.1 to 8.4.11, the first respondent says: “As for the items listed herein, I admit that I may have obtained knowledge of such information insofar as I did not previously have such knowledge. I however never used, shared or wrongfully applied any confidential information whilst employed by RNS.”

[33] Then later the first respondent says: “I reiterate that whilst I did perhaps gain information during my employment with Southern Palace, I never used such information, nor did I disclose any such information to my present employer, Mr Potgieter or anybody else. I hereby undertake not to disclose any confidential information to my employer or anybody else. I furthermore undertake not to enter into negotiations or discussions with any tenant in Mall@Carnival for purposes of persuading such tenant to take up space in Country Mall. Mr Potgieter, who has been tasked with the project, will continue to do so. He will do so without my involvement and input.”

[34] Concerning the detail in paragraph 12 of the founding affidavit involving the conduct by the first respondent described as “unlawful”, the first respondent admits meeting Ms Turner, after having met the new business manager of a new franchise of Mugg and Bean. He says that this new franchisor has no presence in Mall@Carnival. He denies telling Ms Turner that he was doing lettings for Country Mall, as this was the portfolio of Mr Potgieter; all he said was that he has a lot of new leasing projects on the go. He does not say that he told her that these new projects which he has on the go did not include Country Mall. He admits that Mr Potgieter had approached Creative Talents.

[35] As regards Medicross, he says that Mr Tagg of the second respondent personally dealt with Dr Goosen who heads up a consortium of doctors at Medicross at the Mall@Carnival. He says that this name was given to Mr Tagg by the third respondent, a corporation and not a natural person, who explained that Dr Goosen might be a potential tenant. As it happened, Dr Goosen and four of his colleagues have taken up space in Country Mall, but not trading as Medicross. The offer of the lease was made on 29 April 2019, when the first respondent was still employed by the second applicant. However, he does point out that while still employed by the second applicant he was approached by Medicross in May 2019 for an early renewal of the lease. Since he knew he would be leaving the second applicant shortly, he passed the lead on to his leasing director, Mr Thomas. He told the representative of Medicross that Mr Thomas would be contacting him. At that stage he did not know that Mr Tagg had already concluded a lease with Dr Goosen.

[36]   He did meet with the representative of Medicross again after he took up employment with the second respondent, but this was to establish whether Medicross would be interested in taking up space in any of the other centres falling within his portfolio. In other words, what he was saying, was that he was quite prepared to approach tenants of his former employer to persuade them to take up space elsewhere, but not in Country Mall.

[37]  He admitted that Mr Potgieter has been making cold call approaches to various tenants within Mall@Carnival. This was before the first respondent had joined the second respondent. He says that the second respondent “has established a significant tenant interest which will enable it to present the portfolio to a lending entity for purposes of financing this development. This position was almost complete when I joined RNS as Mr Potgieter’s attempt to secure tenants go back many months.”

[38] In responding to the assertion that tenants in Mall@Carnival were approached “armed with specific confidential information concerning such tenant”, he says: “In any event and even if such information was available, the differences between a convenient centre and a regional shopping centre render such information of no value.”

[39]  In the replying affidavit the applicants challenge the notion that there is a difference between a major retail centre and a convenience centre. But the applicants submit that on the first respondent’s own version, the tenant mix of Mall@Carnival and Country Mall is virtually the same, and so they are direct competitors in this respect.

[40]  Concerning confidential information, the applicants point out that the first respondent could not have had any knowledge, when he joined the second applicant, of the terms of the lease agreements, particulars regarding negotiations, particulars regarding performance of the tenants, particulars regarding tenant profiles, particulars of the rentals payable, and the second applicant’s leasing strategies.

[41]   Concerning whether the first respondent actually used the confidential information after leaving the second applicant, the applicants say that the first respondent appears to be confusing what is commonly referred to as a restraint of trade, on the one hand, with the use of confidential information on the other hand. In the result of the applicants’ concerns relate to the specific tenants who are leasing premises in Mall@Carnival whose lease agreements are set to be renewed prior to or shortly after the envisaged trading date of the Country Mall in November 2020. For that reason the applicants applied to amend their notice of motion to limit it specifically to those tenants, and for an order interdicting the first respondent and the second respondent from soliciting or approaching these tenants until 30 November 2020.

Discussion

[42]  At the outset of this judgement I pointed out that there were only three issues at stake: whether the first respondent obtained confidential information; whether the applicants have a reasonable apprehension of injury/harm; and whether the remedy claimed is too wide. These issues are to be decided in the context of the warnings given by our courts that motion proceedings are generally to be preferred to trial proceedings, because they are cheaper and weaker and more efficient.

[43]   But they carry with them the difficulty inherent in deciding probabilities on affidavit, in which regard it has authoritatively been said that motion proceedings are not designed to decide probabilities. In National Director of Public Prosecutions v Zuma (573/08) [2009] ZASCA 1 (12 Jan 2009) the following was said at [26]:

“Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities. It is well established under the Plascon-Evans rule that where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant's (Mr Zuma’s) affidavits, which have been admitted by the respondent (the NDPP), together with the facts alleged by the latter, justify such order. It may be different if the respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers. The court below did not have regard to these propositions and instead decided the case on probabilities without rejecting the NDPP’s version.”

[44]   However it has also authoritatively been said that simple devices in crafting answering affidavits may yet be effective in tripping up motion proceedings, resulting in a failure of justice. For this reason versions on affidavit must be scrutinised to examine closely whether what appears at first blush to be a genuine factual dispute, is in fact thus.

[45]  In Fakie NO v CCII Systems (Pty) Ltd (653/04)[2006] ZASCA 52[2006] ZASCA 52; ; 2006 (4) SA 326 (SCA) (31 March 2006) the following was said in this context (emphasis supplied, footnotes omitted):

“[55] That conflicting affidavits are not a suitable means for determining disputes of fact has been doctrine in this court for more than 80 years. Yet motion proceedings are quicker and cheaper than trial proceedings, and in the interests of justice courts have been at pains not to permit unvirtuous respondents to shelter behind patently implausible affidavit versions or bald denials. More than sixty years ago, this court determined that a judge should not allow a respondent to raise ‘fictitious’ disputes of fact to delay the hearing of the matter or to deny the applicant its order. There had to be ‘a bona fide dispute of fact on a material matter’. This means that an uncreditworthy denial, or a palpably implausible version, can be rejected out of hand, without recourse to oral evidence. In Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd, this court extended the ambit of uncreditworthy denials. They now encompassed not merely those that fail to raise a real, genuine or bona fide dispute of fact, but also allegations or denials that are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers.

[56] Practice in this regard has become considerably more robust, and rightly so. If it were otherwise, most of the busy motion courts in the country might cease functioning. But the limits remain, and however robust a court may be inclined to be, a respondent’s version can be rejected in motion proceedings only if it is ‘fictitious’ or so far-fetched and clearly untenable that it can confidently be said, on the papers alone, that it is demonstrably and clearly unworthy of credence.”

[46]   See also Wightman t/a J W Construction v Headfour (Pty) Ltd and Another (66/2007) [2008] ZASCA 6; [2008] 2 All SA 512 (SCA); 2008 (3) SA 371 (SCA) (10 March 2008):

“[12] Recognising that the truth almost always lies beyond mere linguistic determination the courts have said that an applicant who seeks final relief on motion must in the event of conflict, accept the version set up by his opponent unless the latter’s allegations are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers: Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-635C. See also the analysis by Davis J in Ripoll-Dausa v Middleton NO [2005] ZAWCHC 6; 2005 (3) SA 141 (C) at 151A-153C with which I respectfully agree. (I do not overlook that a reference to evidence in circumstances discussed in the authorities may be appropriate.)

[13] A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say ‘generally’ because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may not necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them. There is thus a serious duty imposed upon a legal adviser who settles an answering affidavit to ascertain and engage with facts which his client disputes and to reflect such disputes fully and accurately in the answering affidavit. If that does not happen it should come as no surprise that the court takes a robust view of the matter.”

[47]    With these introductory comments in mind I now turn to deal with these three issues. As to the first: as I see it, it is relatively easy to find on these papers that the first respondent has not raised a real factual dispute as to whether he came into possession of confidential information. I have pointed out that he vacillates in this regard. At one place he says that there was no confidential information in the records of the second applicant when he joined them (paragraph 29.2); at another place he admits that he may have obtained confidential information (paragraph 33.3). At yet another place he says that he did “perhaps” gain confidential information during his employment (paragraph 36.3).

[48]   Indeed, his express undertaking not to disclose any confidential information to anyone; and his express undertaking not to enter into negotiations or discussions with any tenant in Mall@Carnival for the purposes of persuading such tenant to take up space in Country Mall; and his express undertaking not to provide involvement and input to Mr Potgieter who will be doing this, is really all meaningless, unless in fact he did obtain confidential information and is in fact still reposed of that confidential information. It follows that in my view the applicants have shown that the first respondent received confidential information and still has confidential information belonging to the applicants.

[49]  It was argued that the type of information which the applicants described as confidential, does not constitute confidential information in law. It was submitted that anyone could have approached any tenant at Mall@Carnival to ask for the information. But I do not believe that that is sound. Of course anyone could approach the tenants to impart the information. But the changes of them being successful would have to be close to zero. It is clear to me that the detail of the confidential information provided by the second applicant must have been a function of time, effort and money, invested by the second applicant in collecting, collating, and correlating that information.

[50]   The second issue is whether the second applicant has a reasonable apprehension of harm. It must be clear that for the applicants to have shown on affidavit the existence of a smoking gun, would be a virtually impossible row to hoe. But the requirements for a final interdict are not that high; what is required is to show an injury actually committed or simply reasonably apprehended, a lesser standard. It may be appropriate here to remark that an applicant for a temporary interdict will also succeed if it were able to satisfy the requirements of a clear right, a reasonably apprehended injury, and the absence of alternative remedies. If the right has not been clearly shown, then a temporary interdict will issue if the right is prima facie established and additionally the balance of convenience favours the granting of an interim interdict.

[51]   But it seems to me that the applicants have in fact shown that the second applicant has a reasonable apprehension of injury. The first respondent, on his own case, continues to be employed with another person, Mr Potgieter, who will be doing the same work as the first respondent – securing tenants - except that Mr Potgieter will be searching for tenants for the Country Mall, whereas the first respondent promises that he will not. He says his energies will be spent on securing tenants for other developments of the third respondent.

[52]  The difficulty is that there is no guarantee of this. The first respondent has himself explained his high level of expertise in the field. He has himself explained his continued networking in the field. He has explained how sought-after he is, to the extent that the second applicant virtually nagged him to join them. The first respondent is thus a valuable commodity in this filed, and armed with the confidential information of a competitor, he is potentially a marked danger or a rich asset, depending on the vantage point.

[53]   Add to this that the first respondent has been coy about whether or not he actually had access to confidential information while he was employed by the second applicant. It seems to me that the applicants are thus entirely justified in saying that they have a reasonable apprehension – despite his express undertakings to the contrary – that the first respondent will use the confidential information which he obtained to the detriment of the applicants, thereby causing them injury.

[54]   Whether the applicants have shown that they have no alternative satisfactory remedy is next up for decision. It was argued that they could always sue for damages. I do not believe that that is a satisfactory alternative. It involves extensive legal proceedings down the line; it involves a difficult burden of proof in the context of causation; and once the horses have bolted, it will be impossible to prove the future damages in the form of loss of profit which the applicants will suffer.

The relief

[55]    In the result the applicants must succeed. There is in the possibility of an interim interdict being granted, in principle lesser relief than that sought, but that would be applicable where a clear right has not been shown, which does not apply in this case. And in any event an interim interdict which serves out the time until 30 November 2020 has the effect of a final interdict anyway in respect of this period.

[56]   For the rest, I agree that the relief sought is too broadly framed, even in the applicants’ amended notice of motion dated 25 July 2019. To begin with, the information that the first and second respondents should be interdicted from disclosing, should be limited to information concerning their tenancies at Mall@Carnival, and nowhere else. Further, the disclosure of the information in the context of Country Mall is what is to be interdicted; that is where the unlawful harm will occur, because that is the shopping centre that competes most directly with Mall@Carnival. Paragraph five of the amended notice of motion makes it clear that the interdict sought is intended to prevent disclosure of the information in a much broader context; “any other property or intended development managed or intended to be managed by the second respondent”. This latter limitation has the implication that paragraph five should be limited to Country Mall, and that paragraphs 6 and 7 cannot be granted either.

[57]    The intellectual property-type delivery-up relief in paragraphs 8 and 9 has not been established, and those paragraphs cannot be granted.

[58]    The relief should inure not for the first applicant but for the second applicant only, since its confidential information was imparted to the first respondent in the course of his employment with the second applicant. An appropriate definition of “confidential information” in the light of this judgment should be effective. The second applicant’s joinder was however not objectionable, and it is entitled to its costs.

[59]   Apart from the first respondent, the second respondent too is correctly made the object of the relief, as it is hardly conceivable that it, in the persons of Mr Tagg and Mr Potgieter, did not and does not know of the first respondent’s bank of knowledge so relevant and material to the third respondent’s venture at Country Mall. I do not believe a case has been made against the third respondent, who has not participated in these proceedings, and no order is appropriately sought against it. A special costs order is not appropriate.

[60]   In the result I will make an order commensurate with the above judgment. I invite the applicants to provide me with a draft order only after first having copied the first and second respondents, and only after first having affording them three court days to react in writing. The applicants’ draft, together with the written reaction of the first and second respondents (if any), must then be sent to me. My registrar will then notify the parties when I will hand down the order. In the meantime an appropriate holding order will issue.

[61]   In the result I make the following order:

(a)  The application succeeds, the first and second respondents to pay the applicants’ costs on the party and party scale.

(b)  The applicants are to propose a draft order in the light of the conclusions reached as set out in the judgement, and to solicit the respondents’ comments on it, both to be forwarded to the court to enable it to furnish a final order.

(c)  Pending the final order aforesaid, an interim order with immediate effect issues in terms of paragraphs 2, 3 and 4 of the amended notice of motion dated 25 July 2019.

Date argued: 7, 8 August 2019

Date judgment: 13 August 2019

WHG van der Linde

Judge, High Court

Johannesburg

For the applicant: Adv. MTA Costa

Instructed by:

DJ Steyn Attorneys Inc

Applicants’ attorneys

012 – 4336381/072 3114751

dominic@disteyn.co.za

For the first and second respondents: Adv. R Stockwell, SC

                                                               Adv. WJ Scholtz

Instructed by:

Gideon Pretorius Inc

First and second respondents’ attorneys

Tel: 021 – 9144138

Ref: MAT2003

gpretorius@gideonpretorius.co.za

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