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REPUBLIC OF SOUTH AFRICAIN

THE HIGH COURT OF SOUTH AFRICA

 GAUTENG DIVISION PRETORIA)

              Case No: 46985/2021

In the matter between:

 

 

Meyerton Engineering (Pty) Ltd                                                   Applicant

and

 

Neil Coertzen                                                                               First Respondent

Field Services Engineering (Pty) Ltd                                            Second Respondent

 

Summary: Restrain of trade – interdict against first and second respondent respectively. First Respondent with 20 years’ experience - delict of unlawful competition. Breach obligations contained in a Restraint of Trade Agreement assistance by the second Respondent.

JUDGMENT

Maumela J.

1.   This matter came before court in the urgent roll. In it, the Applicant seeks a final interdictory relief to be granted against the First and Second Respondents respectively. To that end, the Applicant seeks an order in the following terms:

1.1.   That the time periods and other requirements laid down by the Uniform Rules of Court and Practice Directives, to the extent necessary, be dispensed with and that the matter be heard as one of urgency in terms of Uniform Rule 6(12);

1.2.   That the First Respondent be restrained and interdicted from taking up employment with the Second Respondent for a period of 24 months commencing on 1 October 2021 and terminating on 30 September 2023.

1.3.   That the Second Respondent be interdicted and restrained from employing the First Respondent for a period of 24 months commencing on 1 October 2021 and terminating on 30 September 2023 and

1.4  That the First and Second Respondent, be ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved.

 

2.   Against the First Respondent, the Applicant’s claim is an interdict premised upon the existence of a written ‘Restraint of Trade Agreement’, allegedly concluded between it and the First Respondent. The Applicant charges that the First Respondent breached the said ‘Restraint of Trade Agreement’.

 

3.   The Applicant contends that its claim against the Second Respondent is motivated by its quest to prevent the commission of a delict of unlawful competition. It alleges that the Second Respondent is assisting the First Respondent to breach obligations brought to bear against the First Respondent which are contained in a Restraint of Trade Agreement that was contracted into between it and the First Respondent. It alleges that this is notwithstanding the fact that the Second Respondent is aware of the fact that there is a Restraint of Trade Agreement in place and a Confidentiality Agreement signed by the First Respondent, thereby rendering himself to be obligated by the terms thereof.

 

 

 

 

BACKGROUND.

4.   Over the past 20 years, the First Respondent has been under the employ of the Second Respondent. At the start of the First Respondent’s tenure under the employ of the Second Respondent, the two, (employer and employee), entered into the said Restraint of Trade Agreement. The First Respondent signed this agreement.

5.   Initially, the First Respondent started off as an ‘apprentice-boilermaker’. He then worked his way up the ladder and later became a ‘Planner’. As of now, from the year 2018, the First Respondent has been promoted to the position of an ‘Estimator’.

6.   On the 1^st of September 2021, the First Respondent informed the Applicant that he accepted an offer of employment made to him by the Second Respondent. Upon hearing this, the Applicant drew the attention of the First Respondent to the fact that there is a Restraint of Trade Agreement which the two of them entered into, which the First Respondent signed thus, subjecting himself to the terms of thereof. That notwithstanding, the First Respondent remained adamant, stating that he will take up employment under the Second Respondent nonetheless.

CLASH OF INTEREST.

7.   Because of the nature of business that both the First and the Second Respondent run; they compete within one and the same area of operation, much as they both vie for one and the same clients. Based on this, the Applicant became concerned about the First Respondent’s intended move. He is of a view that such a move on the part of the First Respondent cannot be lawful. Realizing that there is recalcitrance on the part of the first respondent, the Applicant sent letters to both the First and the Second Respondent on the 2^nd of September 2021. In the letter, the Applicant demanded written undertakings from each of the two respondents to the effect that they will not continue with their intended contravention of the stipulations in the Restraint of Trade Agreement.  he Applicant sent letters to both the First and the Second Respondent unlawful conduct.

8.   The Second Respondent ignored the demand made by the Applicant for an undertaking to be made by both Respondents while the First Respondent refused outright to make such an undertaking. He made it clear that he would persist taking up employment under the Second Applicant. The Applicant argues that over such a long period of time in which the First Respondent was under his employ, it would have been completely impossible that the First Respondent only ended up as a glorified ‘data-capturer’. It implies that the First Respondent knew much more of information pertaining to its business which information he, the First Respondent could impart to the Second Respondent.

 

 

URGENCY.

9.     The Applicant contends that the matter is urgent. To substantiate that contention, it cited the following:

9.1.   On the 1^st of September 2021, the First Respondent informed the Applicant that he, (First Respondent), accepted an offer of employment from the Second Respondent. 

9.2.   The First Respondent indicated that he is going to take up such employment with effect from the 1^st of October 2021 which is a day after his last day under the employ of the Applicant.

9.3.   The Applicant requested undertakings from both the First and the Second Respondents to the effect that they will not persist with the intended employment which is against the stipulations in the Restraint of Trade Agreement.

9.4.   Upon realising that the Respondents are not going to accede to the demand, the Applicant launched this application on an urgent basis. However, the Applicant made sure to allow the Respondents time within which to file their answering affidavits.

10.    The Applicant argues that he would not have attained any alternative redress had he sought to bring this application in the ordinary course because the First Respondent would by then have taken up employment with the Second Respondent. Applicant makes the point that such a scenario would have irreparably undermined the stipulations in the Restraint of Trade Agreement. In that case, the only option at the disposal of the Applicant would only be to pursue a damages claim in which case it would be difficult if not impossible to quantify the applicable amount.

 

11.    The First Respondent signed the Restraint of Trade Agreement on the 3^rd of January 2018. In it, he undertook among others not take up the complainant with a competitor of the Applicant for a period of 24 months within the accounting area[1]. On the 1^st of September 2021, the First Respondent informed the Applicant about the following:

11.1.   That he had an interview for employment with the Second  
  Respondent on the previous evening.

11.2.   That he accepted the offer of employment by the Second
  Respondent.

11.3.   That he is resigning from employment under the Applicant.

11.4.   That he intends taking up employment with the Second
  Respondent on the 1^st of October 2021 and

11.5.   That the position in which he will be important by the Second
  Respondent is that of an Estimator.

 

12.    Upon being reminded about the Restraint of Trade Agreement he signed, all that the First Respondent could commit to was that he would not go after any of the Second Respondent’s clients but he refused to commit into desisting from taking up employment with the Second Respondent. On the 2^nd of September 2021, in writing, the Applicant drew the First Respondent’s attention to the Restraint of Trade Agreement and he demanded a written undertaking that First Respondent would not take up the employment under the Second Respondent.

13.    The First Respondent argues that the Restraint of Trade Agreement in issue in this case is unreasonable. He argues that the term of restraint and the area within which it is to be enforced should both be found to be excessive. On that basis, he remained adamant that he would take up employment under the Second Respondent. The Second Respondent views that the Restraint of Trade Agreement contracted into between the Applicant and the First Respondent does not consent it.

 

 

NATURE OF RESTRAINTS OF TRADE.

14.    It is trite that a Restraint of Trade Agreement is prima facie valid and enforceable[2]. Once the existence of a Restraint of Trade Agreement has been proven, it falls for the party alleged to be subject to it to prove that its enforcement would be against public policy[3]. The Applicant contends that public policy expects parties to be held to the terms of contracts[4]. It  argues that it is incumbent on the First Respondent to clearly set out the factual basis upon which he relies for contending that the restrictions imposed through the Restraint of Trade Agreement contradict public policy[5]

 

15.    The Applicant argues that there ought to be no haste in declaring Restraint of Trade Agreements to be against public policy. In the case of SASFIN v Beukes[6], at page9 B-C, the Supreme Court of Appeal held as follows: “the power to declare contracts contrary to public policy should be ….. exercised sparingly and only in the clearest of cases, lest uncertainly as to the validity of contracts result from an arbitrary and indiscriminate use of power. One must be careful not to conclude that a contract is contrary to public policy merely because its terms (or some of them) offend one’s individual sense of propriety and fairness.”

 

16.    The Applicant refutes the contention by the First Respondent to the effect that the enforcement of the Restraint of Trade Agreement
will be unjust. To substantiate this argument, the Applicant raises the following:

16.1.     Firstly, the First Respondent received his complete training from the Applicant. First Respondent joined the Applicant as an apprentice boilermaker about 20 years ago.

16.2.     Secondly, the First Respondent was gainfully employed by the Applicant all this time and now that he received an offer of employment from the Second Respondent, he opted to accept this offer.

16.3.     Thirdly, the Restraint of Trade Agreement got to be required only at the time the First Respondent was to be promoted from the position of “Planner” to an “Estimator” which was after the First Respondent had received training and hat received exposure to sensitive and confidential information as well as to processes on which he would be able to gain knowledge as an Estimator.

16.4.     Fourthly, the First Respondent is intent on taking up employment with a direct competitor to the Applicant within the same area of operation. He aims to do that directly after leaving the employ of the Applicant. The Applicant rebuts the claim by the Applicant the effect that his job entails no exposure to sensitive information and that it involves little more than populating a spreadsheet. Applicant argues that the court ought to reject such an argument because:

16.5.     The Applicant pays the First Respondent a monthly salary which is not insignificant and 

16.6.     Over the past 20 years, the First Respondent worked his way up the ladder within the Applicant’s organization, starting as an apprentice-boilermaker, later as a Planner, until he was promoted to the position of an ‘Estimator’ in 2018. The Applicant argues that over such a long period of time, it would have been completely impossible that the Applicant the conflict glorified ‘data-capturer’.

 

17.    In this case, for purposes of arriving at a decision, the nature of the job that the First Respondent does is of essence. The Applicant charges that First Respondent wrongly claims that his job entails insignificant exercises. He makes the point that the First Respondent has in-depth knowledge about the manner in which the Applicant determines its pricing and determines its quotations for projects. The Applicant points out that such knowledge can enable a competitor like the Second Respondent to continuously outbid the Applicant where it regards projects where they may have competing interests, where the exercise of submitting quotations would be relevant. 

18.    In the case of Reddy v Siemens Telecommunications (Pty) Ltd[7], at paragraphs 20 – 21, Malan AJA stated the following which is of importance:

18.1.     [20]. Reddy is in possession of confidential information in respect of which the risk of disclosure by his employment with a competitor, assessed objectively, is obvious. It is not that the mere possession of knowledge in sufficient, and that this is not to what was suggested by Marais J in BTH Water. Reddy will be employed by Ericsson, ‘a concern which carries on the same business as [Siemens]’ in a position similar to the one he occupies with Siemens. His loyalty will be to his new employers and the opportunity to disclose confidential information at his disposal, whether deliberately or not, will exist. The restraint was intended to relieve Siemens precisely of this risk of disclosure. In these circumstances the restraint is neither unreasonable nor contrary to public policy. I agree with the remarks of Marais J in BTH Water.

‘In my view, all the applicant can do is to show that there is a secret information to which the respondent had access, and which in theory the first respondent could transmit to the second respondent should he desire to do so. The very purpose of the restraint agreement was that the applicant did not wish to have to rely on the bona fides or lack of on the part of the first respondent, of the secret formulae. In my view, it cannot be unreasonable for the applicant in these circumstances to enforce the bargain it has exacted to protect itself. Indeed, the very ratio underlying the bargain was that the applicant should not have to content itself with crossing its fingers and hoping that the first respondent would act honourably or abide by the undertakings he has given … in my view, and ex-employee bound by restraint the proposal for which is to protect the existing confidential information of his former employer, cannot defeat an application to enforce such a restraint by giving an undertaking that he will not diverge the information if he is allowed, contrary to the restraint, to enter the employment of a competitor of the applicant. No, in my view, can the ex-employee defeated the restraint by saying that he does not remember the confidential information to which it is common cause that he had access. This will be the more so where the ex-employee, as is the case here, has already breached the terms of the restraint by entering the service of a competitor.”

[21]. Public policy requires contracts to be enforced. This is consistent with the constitutional values of dignity and autonomy. The restraint agreement in this matter is not against public policy and should be enforced. Its terms are reasonable. What Reddy is required to do is to honour the agreement he entered into `voluntarily and in the exercise of his own freedom of contract. While it is correct that his employment with Ericsson will be restricted, it remains a breach of his contractual undertaking. It follows that it is not the answer to suggest that the undertaking would be sufficient to protect Siemens’ interests and that the less restrictive means could therefore achieve the same purpose as enforcing the restraints, (s 36 (1) (e)).

19.    In the papers of this case, the First Respondent stated the following at paragraph 82: “I specifically wish to state that I intend to honour my obligations under the agreements, and will not divulge confidential information to anybody.” The Applicant argues that under the circumstances, a statement such as this is simply absurd because the First Respondent has made it abundantly clear that he has no intention of honouring its contractual obligations stemming from the Restraint of Trade Agreement. The Applicant argues that on that basis the First Respondent cannot be taken on his word.

 

20.    The First Respondent also argues that it was completely unnecessary for the Applicant to seek the relief it does against the Second Respondent because the relief it seeks in prayer 2, as against it, (the First Respondent), is sufficient to provide it with all the protection it claims to be entitled to. The First Respondent charges that it is completely unnecessary for the Applicant to seek an interdictory relief against the Second Respondent in prayer 3 since the relief it seeks in prayer 2 as against the First Respondent is sufficient for the purpose it wishes to pursue.

 

 

REQUIREMENTS FOR AN INTERDICT.

21.    Our law dictates that in order to obtain the relief of an interdict, the applicant has to fulfil applicable requirements. In the case of IIR South Africa BV (Incorporated in the Netherlands t/a Institute of International Research v Tarita and Others[8], at page 166 H – J, the words of Marais J come particularly apposite where the learned judge stated: “Both First and Second Respondents deny that they have used any confidential information or trade secrets in promoting the business of the Third Respondent or had communicated or would communicate any such information to the Third Respondent. As will appear, I cannot find that the First and Second Respondents have indeed communicated such information to the Third Respondent but in my view the restraint is nevertheless enforceable and should be enforced for the reasons given by me in BHT Water Treatment (Pty) Ltd v Leslie and Another[9], at 57H – 58D. In short, the Applicant has endeavoured to safeguard itself against the unpoliceable danger of the First and Second Respondents communicating its trade secrets to a rival concern after entering their employ.  The risk that the Respondents will do so is one which the Applicant does not have to run and neither is it incumbent upon the Applicant to enquire into the bona fides of the First and Second Respondents and demonstrate that they are mala fide before being allowed to enforce its contractually agreed right to restrain the First and Second Respondents from entering the employ of a direct competitor.  The principles set out in the BHT case were refined and applied by Cloete J in International Executive Communications Limited t/a Institute for International Research v Turnley and Another, at 1055E to 1057B.

I take the view that it does not lie in the mouth of the ex-employee who has breached her Restraint Agreement to say to her ex-employer ‘Trust me: I will not breach the restraint further than I have already been proved to have done’.

The restraint is accordingly enforceable and should be enforced for what limited time remains.

 

All the requirements for a final interdict have been satisfied, the right and the breach being clear.  The interdict will therefore be final.”

 

22.    In the case of Setlogelo v Setlogelo[10], the court set down the requirements towards the granting of an interdict. In that regard, the court listed the following:

22.1.     Proof of the existence of a clear right.

22.2.     Proof that an unlawful interference with that right, actually committed or reasonably apprehended;

22.3.     Proof that injury has been actually committed or that it is reasonably apprehended.

22.4.     Proof of the absence of a similar protection by any other
ordinary remedy.

 

23.   The Applicant argues that it shall suffer irreparable harm if the interdict it seeks is not granted.

UNLAWFUL COMPETITION.

24.    The Applicant pointed out that on the 2^nd of September 2021, it made the Second Respondent aware of the Restraint of Trade Agreement that handling contracted into as well as the Confidentiality Agreement concluded between it and the First Respondent. The Second Respondent contends that thus far, it has not made a formal offer of employment to the First Respondent, while the First Respondent states that only an informal offer has been made.

25.    The First Respondent however admits having told Mr. and Mrs. Cameron that he had accepted the offer of employment from the Second Respondent. The Applicant charges that the Respondents are simply resorting to technicalities in attempting to differentiate between a formal offer and an informal offer. The Applicant also makes the point that even on the version of the First Respondent, to the effect that only an informal offer has been made thus far, coupled with the Second Respondent’s refusal to provide the undertaking demanded from it, one can safely conclude that the Second Respondent has no intention to desist from following up on its informal offer with a former one. Applicant points out that such a development has more than potential to reduce the First Respondent to breach its obligations under the Restraint of Trade Agreement.

26.    In the case of Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd[11], at page 173 H, Van Dijkhorst J held: “A delictual remedy is available to a party to a contract who complains that a third party has intentionally and without lawful justification induced another party to the contract to commit a breach thereof.”

 

27.    In this case, it is common cause that the Second Respondent and the Applicant compete against one another in a marketplace situated within the same geographic area. The position in respect of which the Second Respondent intends to employ the First Respondent is that of an Estimator. The Applicant points out that what that means is that with effect from the 1^st of October 2021, First Respondent shall be responsible for preparing quotations on behalf of the Second Respondent and that is where his concerns lie.

28.    The Applicant also points out that the Second Respondent created an atmosphere where the First Respondent is more likely to contravene the terms of the Restraint of Trade Agreement he and the Applicant entered into by luring him. (the First Respondent), to assume employment under him. He stated that this is particularly concerning considering that up until the 30^th of September 2021, First Respondent would still be tasked with the responsibility to prepare quotations on behalf of the First Respondent.

 

29.    The Applicant points out that it is more than likely that upon assuming employment under the Second Respondent, the First Respondent will employ his best efforts in preparing quotations for the benefit of the Second Respondent. In that way, the Second Respondent is likely to a major winner where it regards not only projects in which he, (the Applicant), also has an interest but also with regard to those in which the Applicant has submitted applications.

 

30.    Applicant argues that such a scenario shall constitute unfair competition in favour of the Second Applicant much as it shall constitute a breach of the Restraint of Trade Agreement referred to above. He argues that it is in that regard that an interdictory relief becomes warranted. In the Pikkewyn Ghwano case[12], the court also quoted the learned author, McKerron[13] where the author stated: “Interference with the trade or calling of another is not unlawful and is therefore not actionable unless the defendant either used illegal means or was actuated by malice. By illegal means is meant means which involve the commission or threatened commission of criminal or a civil wrong, for example assaulting or intimidating the customers of the other trader, threatening to take fictitious legal proceedings or inducing others to break their contract with him.”

 

31.    In the case of GenWest Batteries (Pty) Ltd v Van der Heyden and Others[14], Goldstein J held as follows: “Such competition would amount to intentionally assisting in breaching the undertaking. Such assistance is wrongful and can thus be interdicted. See Isaacman v Muller[15], at 61, 65; Atlas Organic Fertilisers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd and Others[16], at page 202 E – H. If the assistance can be interdicted then the manner in which it is rendered, viz by trading in competition with the Applicant, can be interdicted too.”

 

32.    The Applicant is required to fulfil the requirements for the granting of an interdict as a relief regarding the claims it has made. It must show a clear right, a reasonable apprehension of harm and a lack of an alternative suitable remedy.[17] Concerning whether the Applicant has a clear right, it has shown that it has a clear right to protect its proprietary information, including its pricing methodology and processes by means of a written Restraint of Trade Agreement concluded between the Applicant and the First Respondent.

33.    The Applicant contends that it has shown that the Second Respondent, has interfered with the Applicant’s contractual rights and that such interference amounts to a delict of unlawful competition. It has further shown that, in the event that the First Respondent, (who is at present still employed as an Estimator with the Applicant), were to take up employment as an Estimator with the Second Respondent, it, (the Applicant), would suffer significant prejudice and the Second Respondent would gain an unfair advantage in the event where the two companies could submit competing quotations in the future.

 

34.    The Applicant argues that it is not necessary for it to have to wait for the actual damages to happened before it can institute a claim concerning the harm because by then, its chances to obtain an interdict will be effectually limited.[18] On that basis, the Applicant submits that it has made out a proper case towards the granting of the relief sought against the First and Second Respondents. It submits that consequently, an order in terms of the Notice of Motion is warranted.

 

35.    In conclusion, the Applicant submits that the normal rule that the costs follow the outcome has to apply. Applicant also points out that the First and Second Respondents were afforded a fair and reasonable opportunity to avoid the urgent application and the interdicts sought. Had they simply acceded to the demand for a written undertaking litigation would have been necessary.

 

36.    The Applicant argues that the unreasonable refusal on the part of the First and Second Respondents to provide a written undertaking as demanded by the Applicant makes for a further reason why costs has to be awarded against them jointly and severally, the one paying and the other to be absolved.

 

37.    The First Respondent argues that the enforcement of the Restraint of Trade Agreement on which the Applicant relies will be unreasonable because both the term of restraint and the area within which it is to be enforced are excessive. However, the First Respondent signed the same Restraint of Trade Agreement in his sound and sober senses. He did not sign it under duress. From the time he signed it, none of which terms was altered.

 

38.    In the case of Wells v South African Alumenite Company[19], the court held as follows: “If there is one thing which, more than another, public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred and enforced by the courts of justice.” 

 

39.    In the case of Brisley v Drotsky[20], Cameron JA held that judges must exercise ‘perspective restraint’ lest contract law becomes unacceptably uncertain. Cameron JA noted that the judicial enforcement of terms, as agreed to, is underpinned by weighty considerations of commercial reliance and social certainty’.

40.    In the majority judgment in Barkhuizen, Ngcobo J endorsed Cameron JA’s broader conception of the law of contract as reflected in Brisley[21] and affirmed that the Constitution requires parties to honour contractual obligations that were freely and voluntarily undertaken. The court went further on to say: “while it is necessary to recognize the doctrine of ‘pacta sunt servanda’, courts should be able to decline the enforcement of …. A a clause if it would result in unfairness or would be unreasonable.”

 

41.    In the case of Bredenkamp & Others v Standard Bank of South Africa Ltd[22], Harms DP interpreted Ngcobo J’s reference to public policy importing notions of ‘fairness, justice and reasonableness’ as not extending these notions beyond instances in which public policy considerations found in the Constitution or elsewhere will be impacted: “This all means that, as I understand this judgment, if the contract is prima facie to constitutional values questions of enforcement would not advise. However, enforcement of a prima facie innocent contract may implicate an identified constitutional value. If the value is justifiably affected, the term will not be enforced. An example would be where a lease provides for the right to sublease with the consent of the landlord. Such a term is prima facie innocent. Should the landlord attempt to use it to prevent the property being sublet in circumstances amounting to discrimination under the equality clause, the term will not be enforced.”

42.    Harms DP went on to say: “With all due respect, I do not believe that the judgment held or purported to hold that the enforcement of a valid contractual term must be fair and reasonable given if no public policy consideration found in the Constitution or elsewhere is implicated. Had it been otherwise I do not believe that Ngcobo J Ngcobo J would have said this in paragraph 57: “Self-autonomy or the ability to regulate one’s own affairs, even to one’s own detriment is there very essence of freedom and a vital part of dignity. The extent to which the contract was freely and voluntarily concluded is clearly a vital factor as it will determine the weight that should be afforded to the values of freedom and dignity. The other consideration is that all persons have a right to seek judicial redress.” 

43.    The Second Respondent argues that all that happened is that on the 31^st of August 2021, there was a discussion between the First Respondents and it’s representative. The discussion revolved around possibilities of the First Respondent taking up employment under it. It states that the said the discussion did not go beyond discussing such possibilities and that no concrete issues like discussing details took place.

 

44.    Second Respondent argues that having a discussion with someone regarding their possible employment can and should never amount to an offer of employment. Without a discussion of specific terms to be considered by the potential employee with a view to either accept or refuse, it cannot be correct that an offer of employment was made. The Second Respondent is adamant that it never put any such terms for consideration by the First Respondent.

 

45.    The Second Respondent is adamant that it never informed the First Respondent that intends to employ him. It argues further that the Applicant failed to prove that it has suffered any damage or that any damage to be suffered by it is imminent. However, the Second Respondent disputes that the Applicant has a clear right stemming out of the Restraint of Trade Agreement, which the First Respondent signed thereby, subjecting himself to its terms.

 

46.    Our case law is clear in stating the position of our courts regarding the requirement for parties in contracts to be bound by the terms therein. See Brisley v Drotsky[23], Bredenkamp & Others v Standard Bank of South Africa Ltd[24], Wells v South African Alumenite Company[25].

 

47.    The Applicant is entitled to seek the belief that it seeks against the First Respondent who is under each employ and will signed the Restraint of Trade Agreement in issue. Nothing in this case justifies in order against the Second Respondent. It cannot be that because the Applicant and the First respondent entered into a Restraint of Trade Agreement, then the Applicant can obtain an introductory order against whomsoever it wishes who is engaged in a trade which is similar to that which it runs.

 

48.    The court finds that the Applicant failed to prove that the Second Respondent has always about to cause it any damage by way of taking the First Respondent under its employ. Neither has the Applicant proven that it is currently suffering any injury at the hands of the Second Respondent or that the Second Respondent has threatened to injure it or cause it any damage. It is also worth mentioning that the Second Respondent is not party to the Restraint of Trade Agreement referred to and therefore cannot be expected to have been away of its existence.

 

49.    It is only after the Second Respondent received communication from the Applicant which alluded to the existence of a Restraint of Trade Agreement entered into between the Applicant and the First Respondent that the Second Respondent can be deemed to have become aware that there is a Restraint of Trade Agreement between the Applicant and the First Respondent. That notwithstanding, it is quite another question whether the Second Respondent can or cannot be held to be bound by the terms of the Restraint of Trade Agreement.

 

50.    By the time this matter was argued in court, the date on which the First Respondent intended to terminate his employment under the applicant, (the 30^th of September 2021), had arrived. Player number 2 in the Applicant’s notice reads as follows:

50.1.     That the First Respondent be restrained and interdicted from taking up employment with the Second Respondent for a period of 24 months commencing on 1 October 2021 and terminating on 30 September 2023.

 

51.    The First Respondent does not address the accusation by the Applicant to the effect that he intends to take up employment with the Second Respondent. However, knowing that he signed a Restraint of Trade Agreement drafted upon agreement between him and the Applicant, when the Applicant invited him to provide a written undertaking to the effect that you shall not take up employment under the Second Respondent, where the Applicant also indicated an intent to resort to litigation if such an undertaking is not given, he did not respond, stating that he does not intend to take up such employment. Neither he give the undertaking that was demanded.

52.    Through reliance on the allegation by the Applicant alone that the First Respondent intends to take up employment under the Second Respondent. However, when the First Respondent does not respond to a written demand by the Applicant for an undertaking despite that he is currently employed under this Applicant, the court finds that the apprehension on the part of the Applicant is unreasonable.

53.    While the passage of time makes it questionable to interdict the First Respondent from taking up employment with the Second Respondent, the court finds that the Applicant’s apprehension regarding a possibility that the First Respondent may divulge its trade secrets, resulting in it suffering damages regarding the field of trade it is engaged in is reasonable and desires protection by the court.

54.    Having heard both counsel for the Applicant and Respondents and having read papers filed of record it is hereby ordered that:

ORDER.

54.1.     That the time periods and other requirements laid down by the Uniform Rules of Court and Practice Directives, to the extent necessary, be dispensed with and that the matter be heard as one of urgency in terms of Uniform Rule 6(12);

54.2.     The First Respondent is interdicted from using information concerning the operations regarding the business of the Applicant. In that regard, the First Respondent is ordered to adhere to the terms of the Restraint of Trade Agreement.

54.3.     The First Respondent is ordered to pay the costs of this application.

 

T.A Maumela.

Judge of the High Court of South Africa.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

REFERENCES

 

For the Applicant:                      Adv. Ben Steyn

Instructed by:                             Marais Attorneys

For the 1^st Respondent:              Adv. W J Prinsloo

Instructed by:                             Lautenbach Attorneys

 

 

For the 2^nd Respondent:             Adv. Ben Steyn

Instructed by:                             Marais Attorneys

 

 

Judgment reserved:                    01 October 20201

Judgment delivered:                   19 October 2021

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