South Africa: Western Cape High Court, Cape Town

You are here: SAFLII >> Databases >> South Africa: Western Cape High Court, Cape Town >> 2011 >> [2011] ZAWCHC 216

| Noteup | LawCite

Truworths Ltd v Van Vuuren (2415/2011) [2011] ZAWCHC 216 (9 May 2011)

Download original files

PDF format

RTF format

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case no.:2415/2011

In the matter between

TRUWORTHS LIMITED ….................................................................................................................................................................Applicant

and

OTTO VAN VUUREN …................................................................................................................................................................Respondent

JUDGMENT DELIVERED ON 9 MAY 2011

SAMELA, J

[1] On the 9^th February 2011 the Applicant brought an urgent application against the Respondent, inter alia, seeking to enforce restraint of trade agreement and an order interdicting the Respondent for a period of six (6) months, commencing from 14 March 2011, from being employed byA & D Spitz (Pty) Ltd ("Spitz"), or any of the Applicant's competitors, either directly or indirectly, or of any of the suppliers of the Applicant's competitors where such supplier is not also a supplier to the Applicant. Furthermore, that the Respondent be interdicted and restrained for a period of twenty-four (24) months from offering or causing employment to be offered to any person employed by the Applicant at the termination of the Respondent's employment with the Applicant. Also, that the Respondent be interdicted and restrained from directly or indirectly disclosing, publishing or communicating to any third party any confidential information of the Applicant.

[2] On the 24^th February 2011. by agreement between the parties, the matter was postponed to the 17 March 2011 on the semi-urgent roll for hearing.

[3] At the commencement of the trial on the 17^th March 2011. the Respondent raised the following three points in limine:

paragraphs 55. 93 and 94 of the founding affidavit on the grounds that these paragraphs comprise inadmissible opinion evidence;
paragraphs 4. 5, 6, 7, 8,10 and 12 of the affidavit of Heinrich Gericke ("DD12") on the grounds that these paragraphs comprise inadmissible opinion evidence and/or inadmissible hearsay evidence;
paragraphs 62.1 62.2 and 62.3 of the founding affidavit on the grounds that the contents of the paragraphs are irrelevant;
paragraph 28 of the replying affidavit as being inadmissible hearsay and/or opinion evidence;
the affidavit of Thomas Maydon as well as annexure "TM 1" thereto on the grounds that the contents thereof constitute new material sought to be introduced in reply;
the letter of Rohan Dyer ("DD14") as being inadmissible opinion and/or hearsay evidence; and
paragraphs 4 to 24 of the further affidavit of Mr Heinrich Gericke (dated 23 February 2011) on the grounds that these paragraphs constitute inadmissible opinion and/or inadmissible hearsay evidence.

2. Urgency. The Respondent argued that the Applicant failed to justify the urgent basis on which the application has been brought, or to explain its dilatory conduct in the face of the urgency for which it contends. The Respondent submitted further that the urgent basis on which the present application has been launched constitutes an abuse which this court ought not to entertain.

3. Application to file further affidavits in terms of Rule 6(5)(e) of the Uniform Rules of Court.

[4] An application to strike out is provided by Rule 23 of the Uniform Court Rules.

Rule 23 provides the following:

(2) Where any pleading contains averments which are scandalous, vexatious or irrelevant, the opposite party may, within the period allowed for filing any subsequent pleading, apply for the striking out of the matter aforesaid, and may set such application down for hearing in terms of paragraph (f) or subrule (5) of rule 6. but the court shall not grant the same unless it is satisfied that the applicant will be prejudiced in the conduct of his claim or defence if it be not granted.

(4) Whenever any exception is taken to any pleading or an application to strike out is made_: no plea, replication or other pleading over shall be necessary.

[5] The Respondent in making an application to strike out portions of the Applicant's affidavits and annexures to such affidavits have failed to show any prejudice if the application is not granted.

[6] The consolidated practice notes of this division regarding urgent applications

provides the following in 34(3):

"Opposed matters which are not of extreme urgency, but which are nevertheless too urgent to await a hearing in the ordinary course on the continuous roll will be granted some preference. For convenience these matters are called 'semi-urgent' matters."

The question of urgency is no longer an issue in this matter because the matter is heard

in the semi-urgent court.

[7] After having read the papers relating to the points in limine and also having heard the submissions, I am of the view that there is no substance to any of the points raised in paragraphs 3 and 4 above. In the result, the application is dismissed. No costs order is made in respect of the application.

[8] The Respondent also applied to submit further affidavits into evidence. The Applicant did not firmly oppose additional affidavits. Rule 6(5)(e) of the Uniform Rules of Court provides:

"within 10 days of the service upon him. of the affidavit and documents referred to in subparagraph (ii) of paragraph (d) of subrule (5) the applicant may deliver a replying affidavit. The court may in its discretion permit the filing of further affidavits."

[9] After hearing the submissions, I rule that the affidavits in question be admitted into evidence. My reasons are based on the following decisions, in Mkwanazi v Van der Merwe and Another 1970(1) SA 609(A) at 626A-G. where the court set out the approach to be followed in such application as follows:

(a) The reason why the evidence was not led timeously;

(b) The degree of materiality of the evidence;

(d) The balance of prejudice, viz the prejudice to the plaintiff if the application is refused and the prejudice to the defendant if it is granted;

(e) The stage which the particular litigation has reached. Where judgment has been reserved after alt evidence has been heard and, before judgment is delivered, plaintiff asks for leave to lead further evidence, it may well be that he or she will have a greater burden because of factors such as the increased possibility of prejudice to the defendant, the greater need for finality, and the undesirability of a reconsideration of the whole case, and perhaps also the convenience of the court;

(f) The 'healing balm of an appropriate order as to costs;

(g) The general need for finality in judicial proceedings; and

(h) The appropriateness, or otherwise, in all the circumstances, of visiting the fault of the attorney upon the head of his client. See also Barclays
Western Bank Ltd v Gunas and Another 1981(3) SA 91(D) at 95C-96E and Porterstraat 69 Eiendomme v PA Venter Worcester 2000(4) SA 598(C) at617A-F.

I exercised judicial discretion in allowing the filing of further affidavits. I allowed admittance of further affidavits against the backdrop of fundamental consideration that the matter be adjudicated upon all the relevant issues in dispute. Also, I considered the question of fairness to the parties involved, and guarded against prejudice caused by filing of additional affidavits, which could not be remedied by an appropriate costs order.

[10] The Respondent opposed the relief sought on the basis that it is unreasonable and unenforceable.

[11] The facts in this matter are largely common cause. The Applicant is Truworths Limited, a public unlisted company. The Applicant is a leader retailer of fashion outwear, accessories and cosmetic products in the men's, ladies' and children's markets, with approximately 500 stores countrywide. The Respondent, Mr Otto Van Vuuren was employed by the Applicant since the 18^th December 2007, as a Planner

(designate). He was promoted on 1 November 2008 as a Planner. During the course of his employment, he signed a restraint of trade on the 21^s1 November 2007. On the 8^lh March 2010 he signed an addendum to the restraint of trade agreement. On 15^,flNovember 2010 the Respondent gave a written notice of resignation from the Applicant's employment, effective from the14th March 2011. The notice period was in accordance with his contract of employment. On the day the Respondent gave notice of his resignation, he had informed his line manager as well as his divisional director that he intended taking employment with Spitz, as planning manager as from the 21^stMarch 2011. Six days later, he confirmed the same to the Applicant. The Respondent continued performing his duties until the 11^lh February 2011, when he was suspended by the Applicant. Both the Applicant and Spitz are retailers in the fashion retail market. Both sell shoes and male apparel products.

[12] The basis for the relief sought by the Applicant is that in terms of the restraint agreement the Respondent undertook, amongst other things, not to work for any of Applicant's competitors or suppliers within a six months period stipulated in the agreement after the termination of his service with the Applicant. Furthermore, he was barred from sharing any confidential information he was exposed to during his term of employment with Applicant, with the abovementioned, within the said period stipulated in the agreement.

[13] For convenience's sake the relevant part of the restraint of trade agreement signed between the Applicant and the Respondent is the following:

'If and when you are promoted to the Planner position, then, due to the fact that you will be given access to even more confidential information, should your employment with Truworths be terminated during such time or subsequently during your time as an employee of Truworths in any of its buying or merchandise departments including without limitation in the position of buyer or merchandise planner or a more senior position regardless of the title being used at the time, you cannot work for any of our competitors in South Africa, either directly or indirectly, or for any of the suppliers of our competitors where such supplier is not also a supplier to Truworths. for ten months (later changed to six months) after you have left Truworths, i.e. ten (now six) months after the date of termination of your employment.

You cannot share any of our confidential information by any means (i.e. fax, copy, verbally or digitally), whether during or after termination of your employment with Truworths without the express written permission of our Chief Executive Officer."

[14] The following are in dispute:

(i) whether or not the Applicant and Spitz are competitors (consequently,
whether the Respondent's employment with Spitz constitutes a breach of
the restraint agreement);

(ii) whether or not the information alleged by the Applicant to which the
Respondent was exposed to is confidential and constitutes a protectable
interest in the hands of the Respondent; and

(iii) whether or not this application is urgent.

[15] The court is required to determine whether:

(a) the Applicant and Spitz are competitors;

(b) the restraint is reasonable and enforceable; and

[16] The Respondent opposed the application on various grounds:

Firstly, the Respondent denies that the Applicant and Spitz are competitors.

[17] Secondly, he denies that the information which the Applicant seeks to protect by the enforcement of the restraint of trade undertaking is objectively useful to Spitz, and as such, constitutes a proprietary interest deserving of protection by the enforcement of the restraint of trade.

[18] Thirdly, the Respondent denies that his employment with Spitz will pose any risk to the Applicant and or warrants the enforcement of the restraint undertaking.

[19] Section 22 of the Constitution of the Republic of South Africa provides:

"Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law."

[20] Defining "Competition" the court in Payen Components CC v Boric Gaskets CC and Others 1994(2) SA 464 (WLD) at 473 H-l said the following:

"In general terms competition involves the idea of a struggle between rivals endeavouring to obtain the same end. It may be said to exist whenever there is a potential diversion of trade from one to another. For competition to exist the articles or services of the competitors should be related to the same purpose or must satisfy the same need."

See also Lorimar Productions v Sterling Clothing Mnf 1981(3) 1129 (TPD) at 1141 G.

Applicant and Spitz comparative price tables.

A. Applicant's Comparative Price Tables

		Total		Total	UZZI		DH
	Min	Min on FJS1	Max	Max on FJS1	Min	Max	Min	Max
Double Mercerised	330	380	475	475	370	399	399	475
Knits (Ts & Golfers)	120	140	360	299	160	299	180	360
Woven Shirts	170	170	425	399	280	380	390	425
Knitwear	250	299	499	399	299	399	360	450
Denim	299	350	550	499	360	550	399	450
Non Denim Pants	320	280	475	450	350	450	399	475
Chinos	250	280	425	399	350	350	340	425
Jackets	399	399	999	799	499	999	750	999
Formal Shoes	330	360	650	599	450	650	380	450
Casual Shoes	199	299	650	550	299	650	320	625

								550
Sweats	NA	340	425		425	340		340.360.399
Suit Jackets	NA	699	999	799	999		699.750. 799
Suit Trouser	NA	299	450	380	450		299,360.380
Shoes Formal	1295-2295	360	599	450, 499, 550, 599	425		360.380, 390.399, 425. 450
Shoes Casual	795-1495	299	550	399, 450	399. 425. 450		299.360. 390.399, 425.450, 499. 550

C. A Simple Comparative Tables between the Applicant and Spitz (at page 2 of the comments by the Applicant in affidavit of James Hodge.)

Stock	Kurt Geiger (min-max)	Applicant (min-max)
Double Mercerised	R595 - R795	R330 - R475
Golfers
Knits (T-shirts & Golfers	R395 - R795	R120 - R360
Woven Shins	R695-R895	R170-R425
Knitwear	R495 - R695	R250 - R499
Denim	R695- R1.195	R299 - R550
Non Denim Trousers	R595- R1.195	R320 - R475
Chino	R595 - R895	R250-R425
Jackets	R795 - R4,495	R399 - R999
Formal Shoes	R1.295-R2.295	R330 - R650
Casual Shoes	R795-R1.495	R199-R650

[21 ] It is trite law that four questions have to be addressed to determine whether the restraint of trade is reasonable or not between the parties, see Basson v Chilwan & Others [1993] ZASCA 61; 1993 (3) SA 742 (A) at 767G, where the court set out the approach to be followed as follows:

(a) Is there an interest of the one party which is deserving of protection at the termination of the agreement?

(b) Is such interest being prejudiced by the other party?

(c) If so. does such interest so weigh up qualitatively and quantitatively against the interest of the other party that the latter should not be economically inactive and unproductive?

(d) Is there another fact of public policy having nothing to do with the relationship between the parties but which requires that the restraint should either be maintained or rejected?

[22] At 762 C-H the court tried to clarify the public policy issue and by so doing made reference to considerations of reasonableness, when it said:

"The public interest must be the touchstone for deciding whether the Courts will enforce

								550
Sweats	NA	340	425		425	340		340.360.399
Suit jacket	NA	699	999	799	999		699750.8
Suit Trouser	NA	299	450	380	450		299360.38
Shoes Formal	1295-2295	360	599	450, 499, 550, 599	425		360,380 390, 399 425,450
Shoes Casual	795-1495	299	550	399, 450	399, 425, 450		299,360.390, 399, 425, 450, 499, 550

C. A Simple Comparative Tables between the Applicant and Spitz (at page 2 ofthe comments by the Applicant in affidavit of James Hodge.)

Stock	Kurt Geiqer (min-max)	Applicant (min-max)
Double Mercerised	R595 - R795	R330 - R475
Golfers
Knits (T-shirts & Golfers	R395 - R795
Woven Shirts	R695-R895
Knitwear	R495 - R695
Denim	R695-R1.195
Non Denim Trousers	R595-R1.195
Chino	R595 - R895
Jackets	R795 - R4.495
Formal Shoes	R1.295-R2.295
Casual Shoes	R795-R1.495

[21] It is trite law that four questions have to be addressed to determine whether the restraint of trade is reasonable or not between the parties, see Basson v Chilwan & Others [1993] ZASCA 61; 1993 (3) SA 742 (A) at 767G, where the court set out the approach to be followed as follows:

(a) Is there an interest of the one party which is deserving of protection at the termination of the agreement?

(b) Is such interest being prejudiced by the other party?

(c) if so, does such interest so weigh up qualitatively and quantitatively against the interest of the other party that the latter should not be economically inactive and unproductive?

(d) Is there another fact of public policy having nothing to do with the relationship between the parties but which requires that the restraint should either be maintained or rejected?

[22] At 762 C-H the court tried to clarify the public policy issue and by so doing made reference to considerations of reasonableness, when it said:

'The public interest must be the touchstone for deciding whether the Courts will enforce the restraint clause or not. The party seeking to avoid the contractual obligation to which he had solemnly agreed should therefore be required to prove that the public interest would be detrimentally affected by the enforcement of the clause (at 892I-893D). The mere fact that the clause may be unreasonable inter partes is not normally a ground for attacking its validity, since the public interest demands that parties to a contract beheld to the terms of their agreement (at 893H-I). A second consideration however, is this: that it is also generally accepted that a person should be free to engage in useful economic activity and to contribute to the welfare of society by the exercise of the skills to which he has been trained. Any unreasonable restriction on such freedom would generally be regarded as contrary to public policy. In deciding on the enforceability of a restraint clause the Court would be required to consider both these aspects in the light of the circumstances of each particular case. There can be no justification, therefore, in the ordinary course, for limiting the concept of reasonableness to cases where a party has knowledge of trade secrets or trade connections or the established customers of a firm."

[23] In Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA486 (SCA) at 496 (para 15) and 497 (para 16) the court had this to say:

"[15] A court must make a value judgment with two principal policy considerations in mind in determining the reasonableness of a restraint. The first is that the public interest requires that parties should comply with their contractual obligations, a notion expressed by the maxim pacta servanda sunt. The second is that all persons should in the interests of society be productive and be permitted to engage in trade and commerce or the professions. Both considerations reflect not only common-law but also constitutional values."

[16] In applying these two principal considerations, the particular interests must be examined. A restraint would be unenforceable if it prevents a party after termination of his or her employment from partaking in trade or commerce without a corresponding interest of the other party deserving of protection. Such a restraint is not in the public interest:'

[24] In Automotive Tooling Systems (Pty) Ltd v Wilkens & Others (2007) (2) SA 271 (SCA) the court outlines what qualifies as a "proprietary interest" and had this to say at 277-278:

'An agreement in restraint of trade is enforceable unless it is unreasonable. It is generally accepted that a restraint will be considered unreasonable, and this contrary to public policy, and therefore unenforceable, if it does not protect some legally recognizable interest of the employer but merely seeks to exclude or eliminate competition/'

[25] In Walter McNaughton (Pty) Ltd v Schwartz & Others 2003 (1) ALLSA 770 (C) at 777 the court outlined the requirements to be met in order for the information to be classified as confidential, when it said:

Tor information to be "confidential it must (a) be capable of application in trade or industry, that is it must be useful, not be public knowledge and property, (b) be known to only a restricted number of people or a closed circle, and (c) be of economic value to the person seeking to protect it."

[26] The requirements for the granting of final interdict are well known, namely: a clear right, injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy, see Setlogelo v Setlogelo 1914 AD

221 at 227.

[27] The next question is whether or not the Applicant and Spitz are competitors.

[28] Mr Sholto-Douglas SC, for the Applicant, submitted that the Applicant relies on the market analysis conducted by Mr Gericke. The market analysis showed the following conclusions:

(a) that a large portion of Applicant's higher income or upper-end customers had either shopped at Spitz's clothing and shoes stores or would do so if such a store was locally available;

(b) there are some similarities in the clothing styles, branding and pricing when one compares the Applicant's upper-end menswear range and the "Kurt Geiger" menswear range.

He further submitted that the question whether the Applicant and Spitz are competitors cannot only be determined by a comparison of the nature of their overall business operations, but rather by undertaking a simple enquiry as to whether or not they compete for the same customers. He pointed out that the test is; whether any of the products the Applicant and Spitz sell are sufficiently similar that it can be concluded that they are pursuing the same market. (See comparative tables above at para 20).

[29] Mr Rood SC, on behalf of the Respondent, relied on the opinions of Respondent's experts especially Dr Corder. He criticised Mr Gericke's market analysis as being fatally flawed and that Mr Gericke's assertion and/or opinion on the market survey that Spitz is a competitor of the Applicant are neither sustainable nor admissible. He pointed out the following regarding the Applicant's market survey, that:

(a) there is no suggestion in Mr Gericke's first affidavit that he has any qualification/s, knowledge, experience and/or expertise in the field of market research which qualifies him to conduct the market survey or analysis or to express any opinion thereon or on whether the Applicant and Spitz are competitors;

(b) no alleged finding view or opinion expressed by Mr Gericke in his affidavits is admissible;

(c) even if Mr Gericke's affidavits are held to be admissible, no weight should be attached to any finding view or opinion contained therein;

(d) the questions should be fair, and should be so formulated as to preclude weighted or conditioned response. The market survey fails to meet this requirement;

(e) Dr Corder's criticism of Mr Gericke's analysis, inter alia, methodology, composition of the participants, survey created awareness amongst the interviews that Spitz was the main subject matter of study, and could bias the results;

(f) the questionnaires contained a number of leading and biased questions;

(g) no information is provided as to any training given to interviewers or any control measures in place while interviews were conducted;

(h) the survey was done not in accordance with internationally accepted marketing research standards;

(i) no supporting affidavits are available from the interviews.

He submitted further that the Applicant and Spitz are substantially different in respect of both range and price. He concluded by submitting that the Applicant and Spitz are not competitors within the same market.

[30] There is a factual dispute between the parties regarding whether there are competitors for the purpose of enforcing the restraint clause. The Applicant avers that Spitz is a competitor as they compete for the same market. On the other side, the Respondent avers that the Applicant and Spitz are fundamentally different to each other in a number of very material respects. The effect of which the Applicant and Spitz are not competitors within the same market. As far as the factual dispute is concerned, I will resolve it on the basis of the Applicant's averment, because in my view the Respondent's version does not raise a real, genuine or bona fide dispute. In my view it is clearly far-fetched or clearly untenable.

[31] In the circumstances the Applicant and Spitz are competitors for the following reasons:

(i) the Applicant and Spitz compete for the same customers, namely, men;

(ii) the Applicant's and Spitz's products are sufficiently similar that it can be concluded that both are pursuing the same market. See Mr Gericke's chart (for Applicant) which indicates similarities in general. Also, see Ms Seegers' chart on similar products between Applicant and Spitz {para 20 above);

(iii) both the Applicant and Spitz sell footwear and clothing though the prices
are not the same;

(iv) there is no evidence before court that Spitz's products are of higher
quality than those sold by the Applicant;

(v) the Respondent did no provide any competing survey to show end results of the Applicant's survey, is wrong;

(vi) questions formulated in Mr Gericke's survey were fair and precluded a
weighted or conditioned response;

(vii) the survey was fair and unbiased and that the results can be relied on;(viii) the survey evidence in this matter is admissible.

[32] The next issue is whether or not the information which the Applicant alleges the Respondent was exposed to is confidential and constitutes a protectable interest in the hands of the Respondent.

[33] Mr Sholto-Douglas submitted that the Respondent was trained, coached and had access to the following of Applicant's confidential information:

(a) the Applicant's store performance information;

(b) the Applicant's product performance information by category of merchandise, by store and overtime;

(d) the relative performance of the different brands within the Applicant's store;

(e) the stock management philosophies implemented by the Applicant to achieve ideal "stock turns" and "weeks of stock" by category of merchandise and store;

(f) seasonal bench marks applied by the Applicant;

(g) the Applicant's methods of assorting product ranges and the processes and systems used to balance those ranges;

(h) the Applicant's methodology for measuring product attribute performance criteria;

(i) the Applicant's expected and actual margins on its different products;

(j) the Applicant's best-selling ranges and individual products the Applicant intends to capitalise on in the future, as well as the Applicant's conclusions for the performance or non-performance of certain products;

(k) the Applicant's mark-down strategy and philosophies to maximise stock performance and profitability;

the Applicant's supplier lists;

the Applicant's "Buyers Assortment Rewrite Project";

(n) the Applicant's "Range Sheets" in respect of all Applicant's existing clothing and accessories (for Winter and Summer 2011);

(o) the Applicant's Style Cards, which give a very clear indication of what is
and what is not selling across the Applicant's various departments and
divisions;

(p) the Applicant's "Executive Information System", which gives a complete and detailed summary of the stock, sales, history and forward planning of the business by its divisions and every category of merchandise, which covers in detail the Applicant's financial and product strategy;

(q) the Applicants International Sourcing Division and its present and future buying strategies;

(r) "Merchandise Systems" customised by the Applicant to allocate stock based on in house algorithms using a mix of planned on;

(s) attendance at the Applicant's "Seasonal Fashion Overview" and "Directors' Synopsis" (for Winter and Summer 2011); and

(t) retail planners plan for "replenishments".

[34] Mr Rood countered Mr Sholto-Douglas' submission and submitted the following;

(i) there is no Applicant's interest either deserving of protection or which is
threatened by the Respondent;

(ii) even if it was found that the Applicant does have some interest which
could conceivably qualify for protection, in this matter such interest does
not weigh up qualitatively or quantitatively against the public interest and
the Respondent's interest being gainfully employed by Spitz;

(iii) the enforcement of the restraint undertaking will be unreasonable and
offend against the public interest;

(iv) of importance, even if regard were to be had to the market survey, the
"overlap" of customers is less than 3.3%;

(v) the Applicant's attempt to restraint the Respondent is unfounded and
high-handed, and smacks of a strategy designed to deter employees from
leaving its employ and taking up employment in any enterprise remotely
similar to that of the Applicant, albeit that it is not a competitor of the
Applicant.

[35] I agree with Mr Shalto-Douglas' submissions because it is clear from his detailed submissions that the information is confidential and deserves protection for the following reasons;

(i) it is useful and capable of application in trade secrets or track
connections;

(ii) it is not public knowledge and property;

(iii) known only to restricted people including the Respondent;

(iv) the Respondent acknowledges that he was privy to the information
though he denies that it is confidential and/or protectable interest; and

(v) is of economic value to the Applicant.

[36] The next question is whether the restraint in question is in the public interest. Mr Sholto-Douglas submitted that the restraint is reasonable and enforceable, in that it seeks to protect the Applicant's proprietary interests, and is not against public interest, which requires the parties to comply with their contractual obligations even if it is unproductive.

[37] In reply, Mr Rood submitted that a restraint undertaking is not enforceable in that the enforcement thereof would not serve to protect any legitimate proprietary interest of the Applicant, and as such the enforcement thereof would be against public policy.

[38] I disagree with Mr Rood's contention. In my view the restraint of trade is reasonable because it is for a very short period of time, namely, six months. The Respondent raises no dispute regarding the reasonableness of the period of the restraint. Although it operated throughout the Republic of South Africa, it is reasonable given that the Applicant operates throughout the Republic. The Respondent also received share options as a 'quid pro quo" for his restraint of trade. In these circumstances. I am of the view that the restraint agreement is reasonable and enforceable and not against the public policy. See Basson's case (supra) at 762; Reddy's (supra) at 496 para 15 and 497 para 16 and Automotive Tooling Systems (supra) at 277-278.

[39] There is no doubt that the Respondent voluntarily signed the restraint agreement on 21 November 2007 without any undue influence and was fully aware of the legal consequences flowing from the agreement. In the circumstances there is no basis for him to contend that he misunderstood the restraint agreement.

[40] By accepting employment with Spitz, the Respondent breached the restraint agreement. The undertaking given by the Respondent, inter alia, that objectively assessed, the Respondent's employment with Spitz poses no threat to the Applicant's product ranges, is not enough to protect the Applicant's interests because it will be difficult to enforce it. Consequently, I therefore find that the Respondent has not discharged the onus of showing that the restraint of trade agreement is unreasonable.

[41] In the circumstances I find that the Applicant has established a clear right, that is, Applicant's proprietary and business interest. The Applicant has furthermore established that there is a real likelihood that the Respondent could use the confidential information, which will cause the Applicant to suffer serious proprietary and business interests. There is no alternative or appropriate remedy available to the Applicant, because a claim for damages against the Respondent will be difficult to quantify.

[42] In the result, the following order is made:

(i) That the Respondent is interdicted and restrained for a period of six (6) months with effect from 14 March 2011 and in the Republic of South Africa from breaching the terms of a restraint of trade agreement concluded by him in favour of the Applicant on 21 November 2007 by working for A AND D Spitz (Proprietary) Limited or any of the Applicant's competitors, either directly or indirectly, or for any of the suppliers of the Applicant's competitors where such supplier is not also supplier to the Applicant.

(ii) That the Respondent is interdicted and restrained for a period of twenty- four (24) months from directly or indirectly, impliedly or expressly, offering employment to or causing employment to be offered to or causing to be employed, any person employed by the Applicant as at the termination of the Respondent's employment with the Applicant or at any stage during the six (6) month period immediately preceding such date.

(iii) That the Respondent is interdicted and restrained from directly or indirectly:

(a) disclosing, publishing or communicating to any third party, other than to fellow employees, any confidential information in any manner, for any reason or purpose whatsoever, without the prior written consent of the Applicant;

(b) publishing, utilising or exploiting or in any other manner whatsoever using the Applicant's confidential information for any purpose whatsoever without the prior written consent of the Applicant.

(iv) The Respondent to pay the costs, including the costs of two counsel.

SAMELA, J