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[2011] ZAGPJHC 1
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Strike Productions (Pty) Ltd v Bon View Trading 131 (Pty) Ltd and Others (10/21704) [2011] ZAGPJHC 1 (20 January 2011)
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
CASE NO:
10/21704
REPORTABLE
DATE: 20/01/2011
In the matter between:
STRIKE
PRODUCTIONS (PTY) LTD
Applicant
and
BON
VIEW TRADING 131 (PTY) LTD
.
First
Respondent
DREAM
SETS (PTY) LTD
Second
Respondent
JACOBS,
MAURITZ MATTHEW
Third
Respondent
THE
NEVERMACHINE (PTY) LTD
.
Fourth
Respondent
J U D G M E N T
SALDULKER, J:
INTRODUCTION
[1] No person can
be unreasonably prevented from earning a living in the public domain.
The right to trade and practice a
profession is highly prized. In the
workplace, restraint of trade agreements have become valuable tools
in the hands of employers,
protecting the circulation of their
identifiable confidential information and trade secrets by employees
post-employment. However,
where employees are not bound by an
appropriate acknowledgement of confidentiality, the question whether
employers have some protection
against the use of confidential
information by ex-employees raise issues that are not always easily
resolved.
[2] In this
application, the applicant, Strike Productions (Pty) Ltd , claims a
final interdict restraining the first respondent,
Bon View Trading
131 (Pty)Ltd from employing the third respondent, Mauritz
Matthew Jacobs (Jacobs) as a lighting technician
on the M-Net IDOLS
television reality show. Additionally, Jacobs is interdicted from
working on or being employed as a lighting
technician on IDOLS.
The IDOLS programme commenced in South Africa in 2002. It is a
singing competition in which contestants
all over the country
participate and where judges (and television viewers), ultimately
select the best singer and performer.
BACKGROUND
[3] The applicant was
founded in 1982 and specialises in Technical Event Support. It
provides Technical Sound, Lighting, Visual
and Staging services in
the Events and Television Production Industry and offers a ‘turnkey’
solution for all technical
and design aspects required by the Events
and Conferencing Industry in South Africa, ‘the SADC and
Sub-Saharan Africa’.
[4] The
applicant was responsible for part of the technical production of the
M-Net IDOLS television programme from
2002 to 2009. From January 2010
to May 2010, the applicant was also involved in the preparation for
the 2010 IDOLS programme and
its negotiations, with Nevermachine.
[5] Jacobs was
employed by the applicant from 1 July 2002 until 30 April 2010.
During such employment, he was involved
in the provision of technical
services to the IDOLS production, initially as a lighting technician
and thereafter as the senior
lighting technician.
[6] On or
about 4 March 2010, the management of the applicant issued new
contracts of employment which contained restraint
of trade agreements
to Jacobs and to all members of the applicant’s staff. The
restraint
inter alia
prohibited Jacobs from working for any
company doing business in competition with the applicant. It is
common cause that Jacobs
refused to sign the new contract of
employment, resigned on 23 April 2010, and left the applicant’s
employment on 30 April
2010. Thereafter Jacobs became employed with
Bon View, as a lighting technician, and during June 2010, began
working on the IDOLS
production which started at ‘Sun City’
during May 2010. It is not disputed that Jacobs’ job
description at Bon
View is identical to his job description with the
applicant.
[7] Bon View was
established during the period between January 2010 to April 2010. It
was a shelf company purchased by Sean
Mitford Hoey (Hoey) in April
2010, and Hoey became its director on 16 April 2010. Hoey is both a
director of Bon View and the second
respondent, Dream Sets (Pty) Ltd.
The latter is a Set and Stage Design manufacturing company that
provided stage construction to
the applicant on the IDOLS production,
and on other events, handled by the applicant since 2006.
PRINCIPAL SUBMISSIONS
[8] The applicant
relies on a series of e-mails sent by Jacobs to various persons, in
support for its contentions that whilst
the applicant and
Nevermachine were preparing for IDOLS 2010, Jacobs, who was
then still in the employment of the applicant,
attempted to ‘hijack’
the applicant’s business, using the ‘Applicant’s
IDOLS Intellectual Property’,
with the intention of taking over
the applicant’s customer base, to further his plans for ‘IDOLS’
and to continue
doing so ‘even after the 2010 IDOLS
production’.
[9] The applicant
contends that it invested considerable time and resources into
creating the intellectual property of the
IDOLS production since
2002, while Jacobs was in its employ. The applicant asserts that
Jacobs, his ex-employee is using its confidential
information for the
benefit of Bon View, his new employer, in competition with the
applicant. It contends that Bon View was established
by Hoey in
collaboration with Jacobs and that Jacobs conspired with Hoey to set
up Bon View specifically in order to ‘hijack’
the
applicant’s business with Nevermachine, using the applicant’s
business connections. Accordingly, the applicant
states that Jacobs,
unlawfully and wrongfully used his employment at the applicant as a
‘springboard’ to take
the applicant’s ‘IDOLS
business’ with him to Bon View. He secretly invited quotations
on work to be done,
sent an e-mail to his wife, containing the
applicant’s confidential contact list, ‘boasted’ of
his efforts to
damage the business of the applicant and
succeeded eventually in ‘poaching’ the provision of
technical
services to the M-Net IDOLS production from the applicant
to Bon View.
[10]
The respondents’
riposte
to the
aforegoing is that the applicant has failed to establish that it has
confidential information or trade secrets worthy of
protection by
law.
[1]
In
addition, the respondents contend, that Nevermachine followed Jacobs
to his new employer, Bon View, for the quality of the service
that it
provides. In this regard the respondents submit that the law protects
Jacobs’ freedom to take his personal knowledge
and skills,
which he acquired in the course of his employment with the applicant,
to his new employer, and, in the absence of a
restraint, to compete
with his ex- employer, as it is in the public interest to protect
such freedom.
[11] The respondents deny
that the applicant has confidential information regarding the IDOLS
programme or that Jacobs has any knowledge
of such confidential
information. The respondents state that the IDOLS programme requires
‘little original artistic input’,
all of which is done by
Gavin Wratten, the series and executive producer of IDOLS, and
under whose direction Jacobs
has been doing the lighting
on IDOLS since 2002.
[12] As Nevermachine has
indicated that it will not use the applicant again for IDOLS, the
respondents contend that the interdict
sought by the applicant is
academic, and should not be granted. A damages claim is, in the
circumstances of this case, an appropriate
remedy.
Brief Overview of Some
Legal Principles
[13]
Central to the issues in this matter, is the fact that Jacobs is not
bound by a restraint of trade agreement with his former
employer, the
applicant. Principles governing employer/employee relationships and
the obligations arising therefrom are to be found
in the judgment of
Stegmann J in
Meter
Systems Holdings Ltd v Venter and Another,
[2]
where
the following was succinctly stated:
“…
When
the fiduciary relationship is not based on contract, it is necessary
to look to the law of delict, and in particular to the
principles of
Aquilian liability, in order to ascertain the extent of the legal
duty to respect the confidentiality of information
imparted or
received in confidence…”.
[3]
And
at p430:
“
In the English
case of
Faccenda
Chickens Ltd v Fowler and Others; Fowler v Faccenda Chickens Ltd
[1985]
1 All ER 724
(Ch), it was held that, as
between
employer and employee, all information for which confidentiality is
usually claimed can be classified into three categories.
I quote the
passage in the judgment of Goulding J from 731
b
-732
e
:
'Let
me now deal with the alleged abuse of confidential information. I
must make it clear that anything I say about the law is intended
to
apply only to cases of master and servant. In my view information
acquired by an employee in the course of his service, and
not the
subject of any relevant express agreement, may fall as regards
confidence into any of three classes. First there is information
which, because of its trivial character or its easy accessibility
from public sources of information, cannot be regarded by reasonable
persons or by the law as confidential at all. The servant is at
liberty to impart it during his service or afterwards to anyone
he
pleases, even his master's competitor. . . . Second, there is
information which the servant must treat as confidential, either
because he is expressly told it is confidential, or because from its
character it obviously is so, but which once learned necessarily
remains in the servant's head and becomes part of his own skill and
knowledge applied in the course of his master's business. So
long as
the employment continues, he cannot otherwise use or disclose such
information without infidelity and therefore breach
of contract. But
when he is no longer in the same service, the law allows him to use
his full skill and knowledge for his own benefit
in competition with
his former master…The following passage from Maugham LJ's
judgment in
Wessex Dairies Ltd v Smith
[1935] 2 KB 80
at 89,
[1935] All ER Rep 75
is also material:
"First,
after the employment terminates, the servant may, in the absence of
special stipulation, canvass the customers of the
late employer, and
further he may send a circular to every customer. On the other hand,
it has been held that while the servant
is in the employment of the
master he is not justified in making a list of the master's
customers, and he can be restrained, as
he was in
Robb v Green,
from making such a list, or if he has made one, he will be
ordered to give it up. But it is to be noted that in
Robb v Green
([1895]
2 QB 315
,
[1895-9] All ER Rep 1053)
the defendant was not
restrained from sending out circulars to customers whose names he
could remember. Another thing to be borne
in mind is that although a
servant is not entitled to make use of information which he has
obtained in confidence in his master's
service he is entitled to make
use of the knowledge and skill which he acquired while in that
service, including knowledge and
skill directly obtained from the
master in teaching him his business. It follows, in my opinion, that
the servant may, while in
the employment of the master, be as
agreeable, attentive and skilful as it is in his power to be to
others with the ultimate view
of obtaining the benefit of the
customers' friendly feelings when he calls upon them if and when he
sets up business for himself.
That is, of course, where there is no
valid restrictive clause preventing him doing so."'
Goulding J then continued
at 732
d
:
“
Third,
however, there are, to my mind, specific trade secrets so
confidential that, even though they may necessarily have been learned
by heart and even though the servant may have left the service, they
cannot lawfully be used for anyone's benefit but the master's……”(my
emphasis).
[14]
Legal principles governing unlawful competition have been elaborated
upon in a number of decisions.
[4]
In
Waste
Products Utilisation (Pty) Ltd v Wilkes & Another
2003(2)
SA 515 at 571, the court stated as follows:
“
The particular
forms of unlawful competition complained of by the plaintiff, and
which have found recognition in our legal system,
are the unfair use
of a competitor's fruits and labour, and the misuse of confidential
information in order to advance one's own
business interests and
activities at the expenses of a competitor” (my emphasis).
And
at 573:
“
In
a non-contractual context the English authorities say that the
obligation not to use unfairly a competitor's fruits and labour
or to
misuse confidential information is based on the equitable doctrine
relating to confidential communications…
Confidential information
can be protected by means of an interdict and/or a claim for damages.
To succeed with such relief, the
following must be established. The
plaintiff must have an interest in the confidential information,
which need not necessarily
be ownership. The information must be of a
confidential nature. There must exist a relationship between the
parties which imposes
a duty on the defendant to preserve the
confidence of information imparted to him, which could be the
relationship between the
employer and employee, or the fact that he
is a trade rival who has obtained information in an improper manner.
The defendant must
have knowingly appropriated the confidential
information. The defendant must have made improper use of that
information, whether
as a springboard or otherwise, to obtain an
unfair advantage for himself. Finally, the plaintiff must have
suffered damage as a
result.”
[15] In
Terrapin Ltd v
Builders Supply Co (Hayes) Ltd
1960 RPC 128
(CA), as referred to
in
Multi Tube Systems (Pty) Ltd v Ponting and Others
1984 (3)
SA 182
(D) at 189B-I, the court stated as follows:
"As
I understand it, the essence of this branch of the law, whatever the
origin of it may be, is that a person who has obtained
information in
confidence is not allowed to use it as a springboard for activities
detrimental to the person who made the confidential
communication,
and springboard it remains even when all the features have been
published or can be ascertained by actual inspection
by any member of
the public... Therefore, the possessor of the confidential
information still has a long start over any member
of the public."
[16] In
Knox
D'Arcy Ltd and Others v Jamieson and Others
,
the court stated that a distinction should be drawn between two
classes of confidential information:
“
(a)
''trade secrets'', in a broad sense, being confidential
information of an employer to which an employee may have access
and
which is of such a nature that the employee may never use it except
for the benefit of the employer, and which the employee
remains bound
to keep secret at all times after leaving the employer's employ; and
(b)
other confidential information of an
employer which an employee must guard as confidential as long as he
remains employed by the
employer, by virtue of his general implied
duty of good faith to his employer (a duty, the extent of which
varies according to
the nature of the contract), but which is of such
a nature that ''it is inevitably carried away in the employee's head
after employment
has ended'', and which the employee then remains
free to use for the benefit of himself or others provided that he has
not, whilst
still employed by that employer, broken his duty of good
faith by, for example, making or copying a list of that employer's
customers
or deliberately memorising such a list.”
[17]
In
Hirt
v Carter
[5]
the
following was stated:
“
[57]
In my view, for an employer to succeed in establishing that trade
secrets and confidential information is an interest justifying
protection by the restraint, it should demonstrate in reasonably
clear terms, that the information, know how, technology or method,
as
the case may be, is
something
which is unique and peculiar to the employer and which is not public
property or public knowledge, and is more than just
trivial
.
(my emphasis)
[58]
In the light of the challenge to specify the precise nature and
details of this confidential information and trade secrets
relied
upon by it, it was incumbent upon the Applicant, in my view, to
identify what the specific information was, the reason why
it was
regarded as confidential and a trade secret, how and when it was
developed and who developed it and the period of its expected
existence. The more so, because, until the Applicant found the need
to impose a restraint upon the First and Second Respondents,
no
restraint was deemed necessary to restrict its former employees from
using such alleged confidential information or trade secrets
when
these ex-employees sought greener pastures in the photographic
industry.” (my emphasis)
[18]
In
Printers
& Finishers Ltd v Holloway
[6]
,
the plaintiff company employed a manager and instructed him to
preserve the secrecy of the printing process, but took no covenant
from him to restrict him from working for competitors when he left
them. The court held that in such circumstances no injunction
should
be granted to restrain the manager from using information that he had
acquired while working for the plaintiff company.
The basis for the
decision was that it would put the manager in an impossible position
if, after leaving the plaintiff company
and starting to work for a
rival concern, he was to be obliged to refrain from making use of
information or skills that he had
acquired while working for the
plaintiff company. If the defendant was free to work for a rival
concern, it was unrealistic to
say that he must not use his stock of
knowledge of methods of work, even if he had acquired much of it
while working for the company
(my emphasis).
[19]
In the absence of a restraint of trade agreement, it is difficult for
an employer to monopolise the services of its employee.
The old
case of
Triangle
Film Corp. v. Artcraft Pictures Corp
[7]
expresses
what is still the majority rule in regard to the hiring of
competitors’ employees
:
“
Nobody has ever
thought, so far as we can find, that in the absence of some
monopolistic purpose everyone has not the right to offer
better terms
to another’s employee, so long as the latter is free to leave.
The result of the contrary would be intolerable,
both to such
employers as could use the employee more effectively and to such
employees as might receive added pay. It would put
an end to any kind
of competition.
In the absence of
contract, an employer has no vested right in the continuity of its
employees’ services which will protect
it from a competitor’s
efforts to persuade its workers to quit. Furthermore, inducing
another’s employee to terminate
a contract which is terminable
at will is not unlawful, if the actor’s purpose is merely to
recruit skilled employees.
If an employer expects to enjoy a
‘vested right’ in labour, it must be anchored by a
contract which is not terminable
at will. And this is a true
for independent contractors as it is for employees.”
[20]
A party that seeks to protect its confidential information, its trade
secrets, and intellectual property must show that
the information,
know-how, technology or method is unique and peculiar to its business
and that such information is not public
property or that it falls
within the public’s knowledge
[8]
.
Furthermore the party must show that the interest that it has in the
information it seeks to protect, is worthy of protection.
[21]
Trade secrets are clearly a species of confidential information.
[9]
Courts
have recognised many categories of confidential information
[10]
:
there are trade secrets that may never be used by an employee, either
during or after employment; there is information that does
not
constitute trade secrets but that, it must be treated as confidential
by an employee in the discharge of his duties. However,
in certain
circumstances, information may be used after termination of
employment. As was stated in
Knox
D’Arcy
v
Jamieson
&
Others:
“
to
the extent that, it is inevitably carried away in the employee’s
head after the employment has ended, it may then be freely
used for
the benefit either of himself or of others”.
[11]
[22]
For the applicant to succeed in this case it must establish that it
has trade secrets, confidential information and intellectual
property
worthy of protection and which is ‘proprietary‘ to it,
which Jacobs is allegedly using. The claim to
confidentiality must be
made on reliable facts. It is not sufficient for a party to merely
state that it has ‘intellectual
property’, ‘know-how’,
‘
modus
operandi
’
or
that certain aspects of its business are secret or confidential.
[12]
[23]
The mere fact that a party chooses to call something secret does not
per se make it so.
[13]
In
Saltman
Technicianing Co Ltd and Others v Campbell Technicianing Co Ltd
[14]
,
Lord Greene MR stated that, to be confidential, the information
concerned must ‘have the necessary quality of confidence
about
it, namely it must not be something which is public property or
public knowledge’.
[15]
[24]
In
Advtech
Resourcing (Pty) Ltd v Kuhn
[16]
,
it was stated that to qualify as confidential information the
information must comply with three requirements:
[24.1] It must involve
and be capable of application in trade or industry; that is: it must
be useful
[24.2] It must not be
public knowledge and public property, that is objectively determined
it must be known only to a restricted
number of people or to a close
circle.
[24.3] The
information objectively determined must be of economic value to the
person seeking to protect it.
[25]
The relationship between the applicant and Jacobs was a fiduciary
one, as between employer and employee. Generally, these
relationships are either governed by restraint of trade covenants or
not. Parties to such contracts have the freedom to determine
the
extent of the protection to be enjoyed by the confidential
information, as defined by them, against the use or disclosure by
a
party to the contract during its subsistence and after the
termination of the contract. Restraint of trade agreements are
sometimes regarded as ‘instruments of oppression’.
[17]
However
restraints are valid and enforceable unless they unreasonably
restrict a person’s right to trade or work and are in
conflict
with section 22 of the Constitution, Act 108 of 1996. As was stated
in
Reddy
v Siemens Telecommunications (Pty) Ltd
[18]
:
“…
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.”
[26]
Thus the party seeking to escape their contractual undertaking of a
restraint of trade agreement must show that they
are unreasonable and
thus contrary to public policy.
[19]
In
Reeves
& Another v Marfield Insurance Brokers CC & Another
[20]
,
Scott JA stated as follows:
“
An employee who by
virtue of his employment would be in a position to exploit on his own
behalf his employer's customer connections
is free on leaving his
employment, subject to certain limitations, to compete with his
erstwhile employer for the business of the
latter's customers unless
restrained by contract from doing so.”
[27]
In
Sunshine
Records (Pty) Ltd v Frohling & Others
[21]
Grosskopf
JA stated as follows:
“ …
In
determining whether a restriction on the freedom to trade or to
practise a profession is enforce-able, a court should have regard
to
two main considerations. The first is that the public interest
requires, in general, that parties should comply with their
contractual obligations even if these are unreasonable or unfair. The
second consideration is that all persons should, in the interests
of
society, be permitted as far as possible to engage in commerce or the
professions-or, expressing this differently, that it is
detrimental
to society if an unreasonable fëtter is placed on a person's
freedom to trade or to pursue a profession. In applying
these two
main considerations a court will obviously have regard to the
circumstances of the case before it. In general, however,
it will be
contrary to the public interest to enforce an unreasonable
restriction on a person's freedom to trade.”
[28]
In
Magna
Alloys and Research (SA) (Pty) Ltd v Ellis:
[22]
“
Although public
policy requires that agreements freely entered into should be
honoured, it also requires, generally, that everyone
should be free
to seek fulfilment in the business and professional world. An
unreasonable restriction of a person’s
freedom of trade would
probably also be contrary to public policy, should it be enforced.
Acceptance of public
policy as the criterion means that, when a party alleges that he is
not bound by a restrictive condition to
which he had agreed, he bears
the onus of proving that the enforcement of the condition would be
contrary to public policy.
The Court would have to have regard
to the circumstances obtaining at the time when it is asked to
enforce the restriction. ”
[29]
In
Arthur
Murray Dance Studios of Cleveland Inc v Witter
[23]
,
it
was stated as follows:
“
You can’t
have vanilla ice cream without having ice cream. You can’t have
business or trade secrets without secrets.
You don’t make
the multiplication tables a secret merely by calling them a secret …
(All
the plaintiff has said is) ‘I taught Clifford Witter my method
of teaching’. How does that prove secrecy?
All of
us have ‘our method’ of doing a million things –
our method of combing our hair, shining our shoes, mowing
our lawn.
Labelling it ‘my method’ does not make it secret …
…
In self-serving
‘Whereas’ clauses an employer cannot state that he is
going to confide something unique and hush-hush,
and then merely
disclose the A.B.C.’s or Mother Goose rhymes, and make that the
basis of irreparable injury.”
[30]
Central to the issues in this matter is also the applicant’s
right to practice his trade with skills and abilities which
are “part
of himself”. In
Aranda
Textile Mills (Pty) Ltd v Hurn and Another
[24]
,
it was stated that:
“
A
man’s skills and abilities are part of himself and he cannot
ordinarily be precluded from making use of them by a contract
in
restraint of trade. An employer who has been to the trouble and
expense of training a workman in an established field of work,
and
who has thereby provided the workman with knowledge and skills in the
public domain, which the workman might not otherwise
have gained, has
an obvious interest in retaining the services of the workman.
In the eye of the law, however, such an interest
is not in the nature
of property in the hands of the employer. It affords the
employer no proprietary interest in the workman,
his know-how or
skills. Such know-how and skills in the public domain became
attributes of the workman himself, do not belong
in any way to the
employer and the use thereof cannot be subjected to restriction by
way of a restraint of trade provision. Such
a restriction, impinging
as it would on the workman’s ability to compete freely and
fairly in the market place, is unreasonable
and contrary to public
policy.”
[25]
[31]
In
Highlands
Park Football Club Ltd v Viljoen and Another,
[26]
it was
stressed that a man’s aptitude, skill cannot be shackled by a
restraint of trade agreement:
“…
a man’s
aptitudes, his skill, his dexterity and his manual and mental ability
are not his master’s property but his
own. They are himself.
The master cannot buy them other than during the period of service.”
[32]
In order to succeed in this matter the applicant must satisfy the
requirements for a final interdict; the applicant has to
establish a
clear right, an injury committed or reasonably apprehended, and that
there is no satisfactory alternative remedy.
As this is an
application for final relief, the applicant can only succeed if the
respondents’ version justifies the relief
sought.
[27]
An
interdict is an inappropriate remedy when the infringement has
already occurred and there is no fear that it will be repeated.
In
Condé
Nast Publications Ltd v Jaffe
[28]
the
court held that:
“
As
stated in
Maeder
v. Perm-Us (Pty) Ltd
.,
1938 C.P.D. 208
and by van der Linde in his Institutes 3.4.7, an
interdict is not the proper remedy where there is no fear that the
wrong formerly
committed will be repeated. In this case I can
see no grounds upon which there can be any apprehension that the
infringement
complained of will be repeated. The grounds upon
which interdicts are granted in copyright matters are exactly similar
to
those upon which interdicts are granted in other matters. See
Halsbury (Hails. Ed., Vol. 7, p. 588, sec. 913). I am,
therefore,
of opinion that applicant has failed to prove one of the
essential requirements for interdict and is therefore not entitled to
the interdict claimed
.
”
[29]
ASSESSMENT
[33] The applicant
contends that it has trade secrets, confidential information and
intellectual property, worthy of protection.
It claims that its
intellectual property is that it is ‘the developer and owner,
inter alia
, of the detail design, concepts of the staging,
audio production and lighting production for the IDOLS show, together
with all
trade secrets, sources of supply, business methods, client
information and costing of IDOLS as developed and executed by the
applicant
for IDOLS from 2002 to 2009’.
[34]
Throughout the papers, the applicant has laid claim to its alleged
‘IDOLS Intellectual property’. For
the applicant to
succeed in its claims, there must be a genuine and legitimate
interest that needs protecting.
[30]
As was
stated in
Petre
& Madco (Pty) Ltd t/a T-Chem v Sanderson-Kasner and Others
[31]
:
“
It seems to me
highly unlikely that the applicant had any proprietary interest to
protect by a restraint. There is a good deal of
talk in the papers
about unique product demonstrations, special sales methods,
confidential information and that sort of thing
but nothing to show
why or how these are secret or confidential. It is trite law
that one cannot make something secret by
calling it secret.
Facts must be proved from which it may be inferred that the matters
alleged to be secret are indeed secret.”
In the nature of
things it seems to me that it is unlikely that the applicant will
operate in a way that is markedly different
from the way in which its
numerous competitors operate. There is nothing to show what is so
unique about the products demonstrations
or what is so special about
the sales methods. Nor is there anything to show why the information
said to be confidential can properly
be regarded as confidential”
(my emphasis).
[35] It is not
known in which way the applicant is ‘the developer and owner’,
inter alia
of the intellectual property relating to the IDOLS
programme. The applicant has not specified the precise nature and
detail of
the confidential information and trade secrets relied upon
it in regard to these claims. The applicant did not provide any
particulars
as to how it invested its considerable time and resources
in creating the alleged ‘IDOLS intellectual property’
that
constitute its confidential information relating to the IDOLS
programme since 2002. It was incumbent upon the applicant to
establish
the facts on which it relies, to prove that it has trade
secrets or confidential information or the intellectual property
relating
to IDOLS. The applicant has not shown how any of its
purported trade secrets
inter alia
, its records, business
plans and its ‘know-how’ are so unique, or so peculiar
that they are worthy of legal protection.
The applicant has
failed to provide specific information as to why it regarded the
intellectual property relating to IDOLS as confidential
and a trade
secret, and as to how it was created and developed. Without any
specific information or sufficient particularity
in regard to these
claims, this court must accept that the applicant has no unique nor
any confidential business plans, trade secrets
or intellectual
property relating to the IDOLS programme worthy of protection.
The case made out by the applicant falls far
short of establishing
that there is a protectable interest in the form of confidential
information or trade secrets worthy of legal
protection.
[36] The applicant claims
that IDOLS in South Africa is based on the British programme Pop
IDOLS. In contrast, the respondents contend
that it is prescribed by
the American IDOLS programme. In my view, this dispute, in regard to
the origins of the IDOLS programme,
emphasises that IDOLS was not
developed in South Africa, did not have its origins in this country
and that therefore, as Jacobs
contends, ‘its production
requires little original creative designing, conceptualising of the
staging, designing and planning
of the audio and lightning
production’, as ‘it is a formatted programme which has
been tried, tested and proven’.
It is not disputed that M-Net
has the ‘rights’ to produce and televise the IDOLS
programme in South Africa since 2002.
On the applicant’s
version, it was responsible for only ‘part of the technical
production of IDOLS from 2002 to 2009’.
The applicant has also
conceded that it was not alone in providing these services. Two other
entities, Matrix Sound and Joi Design
provided the Audio Production
and the Staging services.
[37]
Trade and customer connections form part of the intellectual property
of any business and contribute to the goodwill
established by it.
Goodwill, trade and customer connections have been regarded as a
protectable interest in circumstances
where the former employer has
built a relationship with a customer to the extent that the customer
will be easily induced to abandon
the business of the former employer
and follow the employee to his new business
[32]
.
The observations by the court in
Automotive
Tooling Systems (Pty) Ltd v Wilkens & Others
[33]
are
significant in this regard. In this case, the court stated that the
dividing line between the use by an employee of his own
skill,
knowledge and experience which he cannot be restrained from using,
and the use of his employer’s trade secrets, or
confidential
information or other interest, an employee which he may not disclose
if bound by a restraint, is often very difficult
to define. However,
the court held that the interest must be one that might be properly
described as belonging to the employer
rather than to the employee,
and in that sense ‘proprietary to the employer’. The
court further held that the mere
fact that a former employee took up
employment with a competitor did not in itself entitle the former
employer to any relief if
all that the ex-employee was doing was
applying skills and knowledge acquired whilst in the employ of the
former employer.
[38]
The applicant has not shown that it has any ’proprietary
interest worthy of protection’, in respect of the IDOLS
programme.
[34]
Nor
has the applicant been able to persuade this court that, it is the
developer, or the owner of any ‘IDOLS intellectual
property. In
the absence of anything to the contrary, the statement by Anneke De
Ridder of Nevermachine that Freemantle Media are
the owners of the
proprietary interest in the IDOLS programme must be accepted. The
applicant cannot claim any entitlement to the
‘IDOLS
Intellectual property’. The information which the applicant in
respect of IDOLS is, in my view, not confidential
information worthy
of protection by the law.
[39] The same criticism
can be levelled against the applicant’s claims that Jacobs
had full access to
inter alia
, its records, software and
property including
modus operandi
, profit margins, business
plans and in particular to the applicant’s ‘IDOLS
intellectual property’. The applicant
has not elaborated nor
provided any detail in regard to these claims nor has it been able to
show how Jacobs, a lighting technician
would have had access to the
applicant’s business plans.
[40] Exactly what the
applicant’s ‘intellectual property’,
relating to IDOLS is, that Jacobs
is alleged to have
‘poached’ and ‘hijacked’ is not discernible
from the applicant’s contentions.
It is the applicant’s
case that the e-mail that Jacobs sent on 24 February 2010 to Ms Debby
Schulman of Nevermachine, was
sinister as it was to solicit a meeting
with Gavin Wratten of Nevermachine, to discuss ‘IDOLS’,
and it was an attempt
to ‘hijack’ and ‘poach’
Nevermachine as a client by using the applicant’s trade secrets
and confidential
information and business connections, with
Nevermachine as a ‘springboard’ to compete unlawfully
with the applicant.
The applicant contends that Jacobs’
subsequent invitations for quotations on work to be done were an
attempt to further the
interests of his new business, Bon View.
According to the applicant, what Jacobs planned to discuss with
Nevermachine was
taking the IDOLS production away from the applicant
using the ‘applicant’s IDOLS intellectual property’,
using
the applicant’s established ‘goodwill’ as a
‘springboard’ to divert the applicant’s business
to
his new employer, Bon View. In my view the applicant’s
inferences are speculative, unfounded and devoid of any merit.
I am
not persuaded of any sinister motive on the part of Jacobs in sending
an e-mail to arrange a meeting with Gavin Wratten, with
whom he had
been working, on the IDOLS programme at the time, as its lighting
technician. It is also not disputed that Gavin
Wratten is the
series director and executive producer of IDOLS since its inception
in 2002. Jacobs openly requested a meeting to
discuss IDOLS with
Wratten, this request was direct and not disguised.
[41]
The applicant’s assertions that Bon View and Jacobs conspired
as early as February 2010 to hijack the provision of technical
services by using the applicant’s ‘IDOLS intellectual
property’ as a springboard
[35]
is
unsubstantiated. The applicant contends that Jacobs in collaboration
with Hoey, a director of Bon View and Dream Sets enabled
Jacobs’
present employer Bon View to ‘poach’ the contract away
from the applicant. In my view these allegations
are farfetched
and unconvincing. According to Jacobs, Dream Sets supplied the
sets to the applicant’s clients as a
subcontractor of the
applicant. Hoey, who was the managing director of Dream Sets, became
aware that the applicant was losing clients,
and that it was under
threat of losing business, and so the ‘idea germinated
with Sean Hoey to start his own company’
supplying technical
services, and so Bon View was born. This is a plausible
explanation.
[42] During early
March 2010 Jacobs and other members of the applicant were forwarded
new contracts of employment which contained
a restraint clause.
Despite discussions, Jacobs refused to sign the new contract of
employment. It was during this time, at the
end of March 2010, that
he was contacted by Hoey enquiring whether he would be interested in
taking up employment with a
company to be established to provide
technical services. For obvious reasons including the fact that he
was unhappy with the new
management, Jacobs responded positively.
According to Jacobs, he was offered the job because Hoey knew he had
the skills to provide
the services that prospective clients would
demand and that such skills would attract clients such as Gavin
Wratten of Nevermachine,
with whom Jacobs had worked for a number of
years on the IDOLS production. This explanation is candid and
plausible. His
subsequent e-mails to Hoey ‘boasting’ of
his plan for IDOLS, clearly indicates that he was openly and not
secretly
as the applicant infers, furthering new business interests.
I am not persuaded that Jacobs was intent on ‘sabotaging’
the applicant, as he also ’boasted’ about the technical
services he would provide for ‘IDOLS’ upon his
resignation, to Hossy, a director of the applicant. As Jacobs was not
contractually bound to his employer, he could seek ‘greener
pastures’ if he wished to.
[43]
Jacobs’ assertions that ‘The applicant had to compete
against the first respondent for my services to be able to
continue
providing the lighting services on IDOLS. It lost the contest’,
are in my view credible, candid and convincing.
The parties work and
trade in a competitive industry. Jacobs accepted the offer to work
for Bon View, as a result of which Bon
View was able to successfully
compete against the applicant for such the contract to provide the
technical services and equipment
on IDOLS. In my view all of the
aforegoing explanations by Jacobs, in response to the applicant’s
allegations, are dispositive
of the applicant’s suspicions of a
conspiracy between Bon View and Jacobs to ‘hijack’
Nevermachine as its client.
Furthermore there is nothing
surreptitious about Jacobs, conduct nor does it demonstrate an
appreciation of the confidential nature
of the applicant’s
business. The applicant has not shown that Jacobs was in possession
of any secret or confidential information
which would have been of
economic value to Bon View or any other competitor, and detrimental
to the applicant. In
Premier
Medical and Industrial Equipment (Pty) Ltd v Winkler and
Another
[36]
,
the court held that the following dictum of Lord
Denning’s in
Seager
v Copydex Ltd
[37]
in
regard to the ‘springboard doctrine’ was no doubt correct
in regard to information which was indeed a secret and
could be used
in a way which is detrimental to the company:
“
As
I understand it, the essence of this branch of the law, whatever the
origin of it may be, is that a person who has obtained information
in
confidence is not allowed to use it as a springboard for activities
detrimental to the persons who made the confidential communication…”.
[44] The applicant has
clearly failed to establish a conspiracy between Jacobs and Hoey.
Jacobs’ explanation that Hoey had
approached him with a job
offer in March, but that he did not want to disclose this, makes
sense if one has regard to the fact
that he had his wife and two
children to support, and he could not run the risk of losing his
employment before securing a new
one. Jacobs was at all times
aware that the applicant had the right to terminate his employment on
one month’s notice.
The ‘conspiracy theory’ of the
applicant clearly flounders if one takes into account that Hoey,
totally unsolicited,
tested Jacobs’ interest in taking up
employment with a new company to be formed by Hoey, but appeared to
have made him a
firm job offer only on 23 April 2010, which he
accepted, and only then resigned as an employee of the applicant.
[45] Jacobs’
explanation that he was not prepared to agree to the provisions of
the restraint, as he was not prepared to make
it more difficult for
him to leave the employment of the applicant by signing a covenant
prohibiting him to work for any company
doing business in competition
with the applicant, for 6 months after his resignation, particularly
as he was the sole bread winner
of his family, is convincing.
Furthermore, there is nothing unreasonable about Jacobs’
explanation that it was not
only because of the applicant’s
insistence that he sign the restraint that caused him to terminate
his employment with the
applicant, but also the fact that Jacobs was
dissatisfied with the new management of the applicant. Thus Jacobs’
explanation
that he had been seeking new employment since March 2010
cannot be rejected if one takes into account that it was during March
that the employees of the applicant were offered new contracts of
employment. His explanation that he was aware that if he resigned,
then, Nevermachine would follow him to his new place of employment,
is candid. He was not secretive about this as he also informed
the
director of the applicant David Hossy, via e-mail that “Gavin
said, they go where Mo goes’. Clearly Nevermachine
which
was responsible for the production of the IDOLS programme required
the particular services of a lighting technician which
Jacobs could
provide. Nevermachine had been involved with Jacobs on the
IDOLS programme and was aware of the distinctive
service that Jacobs
could offer in the form of his individual skills as a lighting
technician.
[46] Jacobs’
denials that he was involved with the costing for IDOLS, is not
unconvincing, if one has regard to
an e-mail dated
20 January 2010, addressed to Ms Justine Schrimpling by Jacobs,
where Jacobs is requesting a quotation
in respect of the
equipment he would need for the IDOLS show later in the year. From
this, it is clear that Jacobs was not involved
in the costing or the
preparation of quotations for the applicant nor in any negotiations
with Nevermachine but that Ms Schrimpling
was, and who in turn
negotiated contracts on behalf of the applicant with Anneke de
Ridder, who was a producer of the IDOLS programme
and was also
employed with Nevermachine. Jacobs’ explanation that the nature
of his work as a lighting technician with the
applicant was limited
to its job cards is not unconvincing. That the nature of his work
caused him to be out of the office ‘most
of the time’ is
not unreasonable.
[47] According to the
applicant, when Jacobs invited quotations for a ’gig’ in
during ‘August, September and October’,
he was
deliberately disguising the fact that it was for the IDOLS programme.
Further e-mails followed thereafter, which were indicative
of Jacobs’
intention to take over the applicant’s customer base, before he
had even left the employ and further
his ‘plans for
IDOLS’, thus using the applicant as a springboard to compete
unlawfully. In my view these inferences
are far-fetched and
unreasonable. Jacobs’ response to these inferences is
convincing. Jacobs explained that the
applicant had quoted
Nevermachine R2,3 million for the IDOLS event. As Nevermachine
had complained about the figure being
too high, Jacobs then sought to
obtain comparable quotations in support of his argument with
Nevermachine, that the applicant was
unable to provide the services
required for less than R1,7 million in respect of the 2010 IDOLS
programme. In my view, this appears
to be a reasonable explanation. I
am not persuaded that Jacobs’ conduct in obtaining the
comparable quotations was surreptitious.
The applicant’s
inferences of unlawful competition from the aforegoing must be
rejected.
[48]
According to the applicant, Jacobs forwarded to his wife
via
e-mail
,its confidential list of contact details of parties that the
applicant interacts with in its business operations and which
could
be of great value to any competitor of the applicant. According
to Jacobs this was a list of mainly suppliers of the
applicant, with
their contact details, which was not exclusive to the applicant, and
that David Hossy, a director of the applicant,
permitted the use of
such list by others in the industry. Jacobs contends that at the time
he made a copy of the list, he bona
fide believed that it was not
unlawful to do so. Since then he had received legal advice that his
conduct may have been unlawful
and he deleted the list from his
computer.
[38]
[49]
The question is whether the contact list is confidential and
deserving of legal protection. In my view, the applicant’s
attitude towards this list is ambiguous as it does not dispute that
others in the industry have a copy of it, and therefore the
names of
the suppliers do not appear to be exclusive to the applicant. In my
view, in these circumstances the applicant could not
have regarded a
list that had been circulated in the industry, as confidential
It does not appear to have been intimated
to Jacobs either orally or
in writing that the list was of a confidential nature. Furthermore,
it has also not been shown that
the list in the hands of Jacobs would
be detrimental to the applicant’s interests and beneficial to
his new employer Bon
View or to any of its competitors
[39]
,
to enable them to gain an advantage over the applicant. In my view
the applicant’s belief that the list was confidential
is not
reasonable in the circumstances. These considerations clearly
lead me to the conclusion that the information contained
in the list
is not of a confidential nature and not worthy of legal protection.
[50] Jacobs was not
contractually bound by a restraint of trade agreement during the
period of his employment with the applicant.
Had their fiduciary
relationship been governed by a restraint, the obligation to respect
the confidentiality of any information
imparted or received in
confidence in regard to the applicant’s business secrets in
respect of its alleged “IDOLS intellectual
property’,
would have been in all probability subject to such terms in the
restraint.
[51]
The question, whether an employee, in the absence of a restraint of
trade agreement, can use his employer’s customer
connection
with impunity and in direct competition after the termination of his
employment,
[40]
appears
to have been answered in
Premier
Medical and Industrial Equipment (Pty) Ltd v Winkler and Another,
[41]
where
it was held that, where a written contract of service is in existence
the court will not readily read into it an implied covenant
in
restraint of trade. In this case, while the first respondent was the
managing director of the applicant company, which carried
on business
as importers and exporters of medical suppliers, he formed and
registered the second respondent company which was in
direct
competition with the applicant. The first respondent wrote to the
applicant’s suppliers persuading them to terminate
their agency
contract with the applicant and award it to them. The applicant
applied for an order restraining the respondents from
continuing
their activities. The court held that there was nothing in the first
respondent’s contract restraining him from
soliciting the
customers and suppliers of the applicant. The knowledge of the
identity of the suppliers was not confidential information.
The court
said that although there were pricelists in existence which could be
regarded as confidential, the first respondent had
stated that
although he had been in possession of these lists, but had destroyed
them and the applicant had no option but to accept
this statement.
The court also held that though the first respondent’s conduct
had been illegal during the time when
he was still employed by the
applicant, for persuading the applicant’s suppliers to transfer
their allegiance to him, damages
were an adequate remedy in the
circumstances.
[52] Clearly, what
occurred in this matter, is that the applicant was unable to
negotiate a new contract of employment, which contained
a restraint
of trade agreement, with Jacobs, and it was therefore unable to
compete for his services in the industry. Thus the
applicant lost the
competition against Bon View for Jacobs’ skills. As the
applicant lost Jacobs, it also lost its capacity
to supply to
Nevermachine the skills and services needed for the IDOLS programme.
Nevermachine moved its business to Bon
View which it was entitled to
do and the applicant lost the contract to provide technical services.
It was the technical skills
of Jacobs as a lighting technician that
was being sought after by both Bon View and Nevermachine. It has not
been shown that Bon
View and Nevermachine were after any ‘proprietary
interest’ of the applicant or that Jacobs had access to or been
exposed
to protectable information confidential to the applicant that
would be useful to them. In these circumstances, no danger exists
that Jacobs could disclose any to Bon View. Thus Jacobs’
employment with Bon View does not constitute a threat to the
applicant.
[53]
The skills that Jacobs acquired in the course of his employment with
the applicant as a lighting technician are his own. Jacobs
has been
involved with the lighting on IDOLS for a long time, his skills being
recognised in the industry in which he chooses to
practice his trade
and by those who produce the IDOLS show, including the applicant, who
even after Jacobs terminated his employment
sought to hire him on a
freelance basis and utilised his services on ‘overflow work’.
Both the applicant and
Wratten had associated with Jacobs for a long
time on the IDOLS programme and they had recognised his skills and
expertise as a
lighting technician. Jacobs certainly did not
carry either of them ‘in his pocket’.
[42]
[54]
Clearly, there are certain practical skills and knowledge that an
employee acquires in the course of working for his employer.
[43]
These
skills do not belong to the employer but to the employee and may be
used by him for the benefit of future employers. The knowledge
and
skills that Jacobs acquired in the course of his employment with the
applicant are ‘part of himself’ and which
he can utilise
in a freemarket economy. More importantly he is not
contractually bound by a restraint of trade agreement
with his
ex-employer, thus the applicant, a former employer, has no monopoly
over his services. To prevent him from doing
so would be
against public policy. These skills are not something that the
applicant ‘can claim ownership’ of. In
Herbert
Morris Ltd v Saxelby
,
the court held that:
“……
a
man’s aptitudes, his skill, his dexterity … –all
these things which in sound philosophical language are not
objective,
but subjective – they may and they ought not to be relinquished
by a servant; they are not his master’s
property; they are his
own property; they are himself. There is no public interest
which compels the rendering of those things
dormant or sterile or
unavailing; on the contrary, the right to use and expand his powers
is advantageous to every citizen, and
may be highly so for the
country at large.”
[44]
[55] As there is no
restraint of trade agreement between Jacobs and the applicant, the
latter does not enjoy any contractual power
to restrain Jacobs from
using his skills in the free economy. It must follow therefore, that
a new employer is free to poach an
employee, in the absence of a
restraint, as long as the employee is free to leave. Jacobs is
therefore free to choose whom he should
work for, without hindrance.
[56]
In the absence of being contractually bound, the applicant cannot
claim its pound of flesh from Jacobs.
[45]
The
applicant’s inability to convince Jacobs to sign a restraint,
was to its own detriment. Jacobs had specialised skill which
his
ex-employer was unable to appropriate to its benefit with a
restraint. What the applicant has tried to do in this matter is
to
imply a restraint of trade agreement into Jacobs’ contract of
employment where a restraint clearly does not exist. Jacobs
cannot be
prevented from exploiting his own skill and knowledge. No contract
exists between the applicant and Jacobs, precluding
him from using
his expertise as a lighting technician for any entity, including a
competitor of the applicant. He is free to choose
his employer and
cannot be restrained from taking up employment with Bon View.
[57] In my view the
reliance by the applicant on the various e-mails for its contentions
are devoid of merit, vague and unsubstantiated.
The applicant’s
inferences drawn from the e-mails are unfounded. Jacobs’
explanations in response to the applicant’s
contentions are
credible, convincing and persuasive and dispose of the applicant’s
claims.
CONCLUSION
[58] The applicant has
failed to establish that Jacobs attempted to ‘hijack’ the
applicant’s business using its
‘IDOLS intellectual
property’ with the intention of taking over the applicant’s
customer base to further his
plans for ‘IDOLS’ and to
continue doing so after the 2010 IDOLS production. The applicant has
failed to establish that
it has any trade secrets, confidential
information or intellectual property relating to the IDOLS programme
worthy of protection.
[59] An interdict is a
remedy providing protection against future conduct. The relief
claimed by the applicant is limited to IDOLS.
According to Jacobs,
Nevermachine will ‘never’ use the applicant again for the
IDOLS programme or any other show. Jacobs
is no longer in the employ
of the applicant. Nevermachine has followed Jacobs to Bon View. This
must mean that Nevermachine’s
relationship with the applicant
has been severed. The interdict claimed by the applicant will not
restore it. An interdict in these
circumstances is an inappropriate
remedy as the infringement has already occurred, and there is no fear
that it will be repeated.
The applicant is therefore not
entitled to the interdicts sought. The applicant has not satisfied
the requirements for the granting
of a final interdict.
[60] The applicant has
been able to estimate its gross revenue in respect of IDOLS and other
events. Thus, a damages claim will
not be difficult to quantify.
A damages claim in the circumstances of this case, is an appropriate
alternative remedy.
[61] This matter
initially commenced on 13 July 2010 as an urgent application. It is
just and equitable that any award for costs,
include the costs
incurred by the respondents for 13 July 2010.
[62] The following order
is made:
[62.1] The
application is dismissed with costs, including the costs of two
counsel.
[62.2] Costs to
include the costs of the urgent application on 13 July 2010.
H SALDULKER
JUDGE OF THE SOUTH
GAUTENG HIGH COURT
ATTORNEY
FOR THE APPLICANT:
.
FREDERICK
P. RALL
.
ATTORNEYS
COUNSEL
FOR THE APPLICANT:
.
ADV.
MOORCROFT
ATTORNEY
FOR THE RESPONDENTS:
..
EUGENE
MARAIS
.
ATTORNEY
COUNSEL
FOR THE RESPONDENTS:
ADV.
GAUTSCHI SC
ADV.
STEYN
...
DATE OF
HEARING:
..........................................
30
JULY 2010
DATE OF
JUDGMENT:
......................................
10
DECEMBER 2010
JUDGMENT WAS DELIVERED:
….................…
20 JANUARY 2011
[1]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984(3)
SA 623(A), at 634H-I;
Advtech
Resourcing (Pty) Ltd v Kuhn
2007
(4) ALL SA 1386
, C, para 51;
Rawlins
and Another v Caravantruck (Pty) Ltd
[1992] ZASCA 204
;
1993
(1) SA 537
(A);
Meter
Systems Holdings Ltd v Venter and Another
1993
(1) SA 409
(W);
Reddy
v Siemens Telecommunications (Pty) Ltd
2007
(2) SA 486
(SCA) at 493 para [10], p495 para [14].
[2]
1993(1) SA 409, at 426E-427B; see also
Knox
D
’
Arcy
Ltd and Others v Jamieson and Others
1992
(3) SA 520.
[3]
Meter
Systems
,
p426, I to J.
[4]
Waste
Products Utilisation (Pty) Ltd v Wilkes and Another
2003
(2) SA 515
at 570F-J;
Nampesca
(SA) Products (Pty) Ltd and Another v Zaderer and Another
1999
(1) SA 886
(C) at 894;
Da
Silva and Others v CH Chemicals (Pty) Ltd
[2008] ZASCA 110
;
2008
(6) SA 620
at 627.See also
Spur
Steak Ranches Ltd and Others v Saddles Steak Ranch Claremont and
another
1996(3)
SA 706 (C ) at 714 H-715B;
MultiTube
Systems (Pty)Ltd v Ponting and others
1984(3)
SA 182(D) 189B-I;
Terrapin
Ltd v Builders Supply Co (Hayes) Ltd
1960
RPC 128(CA)
[5]
[2007] 4 All SA 1423
(D) at para [57]-[58].
[6]
Referred to in
Thomas
Marshall (Exports) Ltd v Guinle
[1978]
3 ALL ER , p 208, A-C;
[1964] 3 ALL ER 54
, [1965] 1WLR1; See also
Premier
Medical and Industrial Equipment v Winkler
1971(3)
SA 866, at 868 B-C.
[7]
Triangle
Film Corporation v Artcraft Pictures Corporation
250
F
.
981, 982 (2d Cir. 1918) 33
.
[8]
Hirt
Carter (Pty) Ltd v Mansfield and Another
2008(3)
SA 512 (D) at para [57].
[9]
Aranda
Textile Mills (Pty) Ltd v Hurn and Another
[2000]
4 ALL SA 183
(E) at 190 para [29].
[10]
Meter
Systems
,
p428;
Waste
Products
,
p571-577
;
KnoxD’Arcy
,
p526.
[11]
Knox
D
’
Arcy
Ltd v Jamieson and Others
1992
(3) SA 520
(W) at 526 E and at 528 G;
Printers
and Finishers v Holloway
,
fn 6.
[12]
Automative
Tooling Systems (Pty) Ltd v Wilkens and Others
2007(2)
SA 271 (SCA) at 281 B-D;
Basson
v Chilwan
[1993] ZASCA 61
;
1993
(3) SA 742
(A);
Kwik
Kopy (SA) (Pty) Ltd v Van Haarlem and Another
1999
(1) SA 472 (W).
[13]
Telefund
Raisers CC v Isaacs and Others
1998
(1) SA 521
at 528 E-G.
[14]
[1948] 65RPC 203 (Ch), at 215.
[15]
Coolair
Ventilator Co (SA) (Pty) Ltd v Liebenberg and Another
1967(1)
SA 686 (W) at 691B;
Van
Castricum v Theunissen and Another
1993(2)
SA 726(T) at 731F-H.
[16]
2007(4) ALL SA 1386, C para [51].
[17]
Home
Counties Dairies Ltd and another v Skilton and Another
[1970]
1 ALL ER 1227
at p1229.
[18]
2007(2) SA 486 (SCA) at 496 para [15]; see also
Sunshine
Records (Pty) Ltd v Frohling and Others
1990
(4) SA 782 (A).
[19]
Reddy
v Siemens Telecommunications (Pty) Ltd
2007
(2) SA 486
(SCA) at para [10], 493 G-494A;
Magna
Alloys and Research SA (Pty) Ltd v Ellis
[1984] ZASCA 116
;
1984
(4) SA 874
(A);
J
Louw and Co (Pty) Ltd v Richter and Others
1987(2)
SA 237 (N) at 243B.
[20]
[1996] ZASCA 39
;
1996 (3) SA 766
at 772 D-G.
[21]
1990 (4) SA 782
at 794 B-E.
[22]
1984 (4) SA 872
at 875 G-I.
[23]
105 N.E. 2d 686, 709-710 (Ohio C.P., 1952), quoted in Heydon
The
Restraint of Trade Doctrine
at
106-107; See also
Herbert
Morris Ltd v Saxelby
1960
1.A.C. 688 at 711-712.
[24]
[2000] 4 ALL SA 183(E)
at 192 para [33].
[25]
Aranda
Textile Mills (Pty) Ltd v Hurn and Another
[2000]
4 ALL SA 183
(E) at para [33].
[26]
Highlands
Park Football Club Ltd v Viljoen and Another
1978
(3) SA 191
(W) at 198F-G.;
Harvey
Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd and Another
1977(1)
SA 316 (T) at 326.
[27]
Plascon
–
Evans
Paints Ltd Van Riebeeck Paints (Pty) Ltd
1984(3)
SA 623 (A) at 634 H to I.
[28]
1951 (1) SA 81
(C) at 86H-87A.
[29]
Condé
Nast
Publications Ltd v Jaffe
1951
(1) SA 81
(C) at 86H-87A.
[30]
Basson
v Chilwan and Others
[1993] ZASCA 61
;
1993
(3) SA 742
(A) at 767G-H;
Kwik
Kopy SA (Pty) Ltd v Van Haarlem and Another
1999
(1) SA 472
(W) at 484 B-E.
[31]
1984 (3) SA 850
(W) at 858 E-G.
[32]
David
Crouch Marketing CC v Du Plessis
(2009)
30 ILJ 1828(LC), 1839 at para [22];
Rawlins
and another v Caravantruck (Pty) Ltd
[1992] ZASCA 204
;
1993
(1) SA 537
at 541;
Basson
v Chilwan and others
1993
(3) SA at 742 at 769.
[33]
2007 (2) SA 271
SCA at 279 para [10].
[34]
Automotive
Tooling Systems (Pty) Ltd v Wilkens & Others
2007
(2) SA 271
SCA at 277 G – 278A-279D, para [8], [9].
[35]
Waste
Products Utilisation (Pty) Ltd v Wilkes & Another
2003
(2) SA 515
, at 582 F-J, where Lewis J stated as follows:
’Springboarding’ entails not starting at the beginning
in developing
a technique…but using as a starting point the
fruits of someone else’s labour’.
[36]
1971 (3) SA 866 (W).
[37]
Premier
Medical and Industrial Equipment (Pty) Ltd v Winkler and Another
1971
(3) SA 866
(W) at 869 G-H: Seager,
[1967] 2 ALL ER 415
(C.A.);
see also
Waste
Products
.
[38]
Premier
Medical and Industrial Equipment (Pty) Ltd v Winkler and Another
1971
(3) SA 866
(W) at 870.
[39]
Freight
Bureau (Pty) Ltd v Kruger and Another
1979
(4) SA 337
(W );
Marks
v Luntz and Another
1915
CPD 712
;
Atlas
Organic Fertlizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd and Others
1981(2)
SA 173 (T);
Meter
Systems Holdings v Venter and Another
1993
(1) SA 409
(W) at 426 E-I.
[40]
Restraint of Trade, Heydon, p91, p106-107;
Wessex
Dairies Ltd v Smith
[1935]
2 K.B.80;
Sanders
v Parry
[1967]
2 All E.R. 803.
[41]
1971 (3) SA 866
(W),at 868 para B-C.
[42]
Rawlins
and Another v Caravantruck (Pty) Ltd
[1992] ZASCA 204
;
1993
(1) SA 537
(A) at 541 where the following was stated: “Heydon
The
Restraint of Trade Doctrine
(1971)
at 108, quoting an American case, says that the 'customer contact'
doctrine depends on the notion that
'the
employee, by contact with the customer, gets the customer so
strongly attached to him that when the employee quits and joins
a
rival he automatically carries the customer with him in his
pocket'.”
[43]
Harvey
Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd and Another
1977
(1) SA 316
(T) at 326H-327E.
[44]
Littlewoods
Organisation Ltd v Harris
[1978]
1 All ER 1026(CA)
at 1033 C-D;
Herbert
Morris Ltd v Saxelby
[1916]
1 AC 688
at 714.
[45]
BHT
Water Treatment (Pty) Ltd V Leslie and Another
1993
(1) SA 47
(W) at 57.