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[2011] ZAGPJHC 130
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Bernd Triebiger (Pty) Ltd t/a BT Enterprises v Markay and Another (28033/2011) [2011] ZAGPJHC 130 (18 August 2011)
IN THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
: 28033/2011
DATE
: 2011-08-18
In the matter between
BERND TRIEBIGER (PTY) LTD t/a BT
ENTERPRISES
.........................................................................
Applicant
and
ELIZABETH CATHARINE MARKAY
…........................................................................................
First
Respondent
MARILLLE SYSTEMS (PTY) LTD
…......................................................................................
Second
Respondent
J U D G M E N T
WILLIS; J
:
[1] This is an application to enforce the restraint of trade
agreement which, it is common cause, was entered into between the
applicant and the first respondent.
[2] It is clear that the applicant and the second respondent are
engaged in intense competition with one another. I can quite
understand why the applicant is seriously aggrieved that its former
employee, the first respondent is now employed by the second
respondent.
[3] Courts having to hear these applications to enforce agreements in
restraint of trade have to perform a fine balancing act.
On the one
hand, contracts entered into between parties should normally be
enforced. This is the
pacta sunt servanda
principle, On the
other no court, wish to deprive a person of the opportunity
reasonably to earn a living. The applicant came to
court by way of
urgency. I understand why. If one looks at the notice of motion, the
first prayer deals with the question of urgency
with which I need not
be concerned at the moment.
[4] The second prayer deals with the intended prohibition on the
first respondent working for the second respondent for a period
of 12
months. The third prayer seeks to restrain the first respondent from
disclosing confidential information which it may have
gained from the
applicant during employment with it. Mr
van der Merwe
, who
appears for the respondents, fairly and correctly conceded that
relief sought in the third prayer amounts to no more than
a
restatement of law. Of course, the applicant is entitled to that
relief. The first respondent may not act in breach of the
requirements of law.
[5] As I already indicated, the court must perform a fine balancing
act. A court would not want to deprive the first respondent
of an
opportunity to earn a living. It therefore seems to me that what I
should do is grant an order in terms of prayer three,
postpone
sine
die
the relief sought in prayer two, and give the applicant a
right to approach the court again in the event that there is clear
evidence
of the first respondent having acted in breach of the relief
which shall be ordered in respect of prayer three. I shall postpone
the question of costs for 12 months in order to enable a court to
make an appropriate decision later in the light of the information
available to it then. I refer, in particular, to the question of
whether or not the first respondent has complied with this order.
[6] Accordingly, the following is the order of the court:
1. The relief sought in prayer 2 of the Notice of Motion dated 24
July 2011 is postponed
sine die
.
2. The applicant is given leave to approach the court again to
reconsider the relief sought in prayer 2 of the Notice of Motion,
upon the filing of a further supplementary affidavit to which the
respondents would have a right to answer.
3. An order is granted in terms of prayer 3 (including 3.1 to 3.5
thereof) of the Notice of Motion dated 24 July 2011.
4. Until further order, the issue of costs is postponed for at
least 12 months from today.
Counsel for the applicant: Adv
J M Heher
Attorneys for the applicant: Horn Attorneys
Counsel for the respondents: Adv C
van der Merwe
Attorneys for the respondents: Hartman Attorneys
Date of hearing and judgment: 18 August 2011