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[2014] ZAGPJHC 307
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Micah Kitchens CC v Bradbury (2013/30964) [2014] ZAGPJHC 307 (31 October 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO. 2013/30964
DATE:
31 OCTOBER 2014
In
the matter between:
MICAH
KITCHENS CC
...........................................
Applicant
And
BRADBURY,
ROY DAVID
.................................
Respondent
JUDGMENT
NOCHUMSOHN
AJ
1.
This is an application, originally brought
as one of urgency, to enforce an agreement in restraint of trade.
2.
In terms of the Notice of Motion, in
addition to costs, the Applicant seeks the following relief :
“
2.
That the Respondent be interdicted and restrained from either alone
or jointly, directly or indirectly (including through any
other
entity in which he is directly or indirectly interested, engaged or
concerned) for a period of 24 months from 5 August 2013
and within a
radius of 100 kilometres from 6 Oscar Road, Boksburg:
2.1
soliciting work of whatever nature from, accepting work of whatever
nature from, referring work or being interested or engaged
in any
capacity whatsoever in or in connection with any person (including
natural and juristic persons) who is a client of the
Applicant as at
5 August 2013 or who was a client of the Applicant at any time within
2 years prior to 5 August 2013;
2.2
competing with the Applicant in the field of corporate work;
2.3
engaging or contacting any person who is
employed by the Applicant as at 5 August 2013 with the intention to
solicit or to encourage
such person to terminate his employment with
the Applicant;
2.4
Disclosing any of the Applicant’s
confidential information and/or trade secrets to anybody;
3.
Alternatively, and in the event of it being found that the restraint
is unenforceable that the Respondent be interdicted from:
3.1
soliciting work of whatever nature from, accepting work of whatever
nature from, referring work or being interested or engaged
in any
capacity whatsoever in or in connection with any person (including
natural and juristic persons) who is a client of the
Applicant as at
5 August 2013 or who was a client of the Applicant at any time within
2 years prior to 5 August 2013
”
.
3.
Before dealing with the substance and
merits of the matter, it is necessary to set out the procedural
history of this matter in
this court :
3.1.
The application was originally enrolled for
hearing on 3 September 2013, as an urgent application in terms of
Rule 6(12);
3.2.
On that day, by consent between the
parties, Judge Kathree-Setiloane made the following order (“
the
Interim Order
”):
“
1.
The application is postponed until the 1
st
day of October 2013.
2.
The Respondent is to deliver his Answering Affidavit on or before
17
th
September 2013.
3.
Pending the final determination of the application, the Respondent is
interdicted from soliciting work of whatever nature and
accepting
work of whatever nature from any person (including natural and
juristic person) who was a client of the Applicant on
5 August 2013
and whose identity and/or contact details became known to the
Respondent through his involvement with the Applicant.
4.
Costs are reserved.
”
3.3.
In compliance with paragraph 2 of the
Interim Order, the Respondent duly delivered his Answering Affidavit
on 17 September 2013.
3.4.
The matter was then placed by the
applicant's attorneys before Claassen J on 1 October 2013,
without it having appeared upon
the printed roll, but the Applicant
had not delivered its Replying Affidavit by that date. The matter was
removed because the Registrar
could not allocate the matter.
3.5.
The Applicant filed its Replying Affidavit
on 16 October 2013.
3.6.
The matter then stagnated for almost a
year. It was enrolled for hearing on 19 August 2014, when Judge
Nicholls again removed the
matter from the roll, with no order as to
costs. Whilst the Court file contains no indication as to why the
application was not
proceeded with on 19 August 2014, counsel for
applicant informed me that he had filed a Practice Note. Mr
Bradbury was unrepresented
and had not filed a Practice Note, and
absent a Practice Note from the respondent , the matter was removed.
3.7.
The application was again re-enrolled for
hearing in the week commencing 27 October 2014. It was argued before
me on 29 October
2014.
4.
The
history related above is apposite insofar as the application was
eventually argued before me, 15 months after the last day of
the
Respondent’s employment with the Applicant, being 30 July
2013
[1]
. As at time of
delivery of this judgment, more than half of the 24 month restraint
period which the Applicant seeks to enforce,
has already elapsed.
The delay in the adjudication of the matter is attributable directly
and solely to the tardiness of
the Applicant, who, failed to
properly
enrol the matter for more than a year.
5.
In all of this time, the Applicant has been
enjoying the benefit of the Interim Order, which, pertinently, only
interdicts the Respondent
from soliciting work from persons who were
clients of the Applicant. The Interim Order does not
encapsulate an all embracing
restraint interdicting the Respondent
from competing with the Applicant, as sought in prayer 2.2 of the
Notice of Motion.
6.
One can only assume that the Applicant was
content to allow the matter to lie dormant for this extended period
of time, because
it was happy with the protection afforded to it by
the Interim Order. The Applicant’s counsel did not
seriously challenge
this notion when I interrogated this aspect
during the course of argument.
7.
This
is relevant because just 6 days after the grant of the Interim Order,
the Respondent’s attorneys made a
with
prejudice
offer to the Applicant, offering to dispose of the matter upon
substantially the same terms and conditions as those provided for
in
paragraph 3 of the Interim Order. This was communicated to the
Applicant’s attorneys in terms of a letter from the
Respondent’s
attorneys dated 9 September 2013,
[2]
the salient provisions of which read as follows :
“
2.
We confirm that we act on behalf of Mr. Roy David Bradbury (our
client) who has instructed us as follows :
2.1
our client is an un-rehabilitated insolvent who has no assets or
source of fixed monthly income (attached hereto is a copy of
the
Court Order confirming the final sequestration of our client and his
wife);
2.2
our client would have been more than willing to settle the above
matter in an amicable manner, should your client have approached
him
in an arranged manner, without having to resort to costly litigation;
2.3
our client is further willing to settle the above matter on the
following terms, which offer of settlement is open for acceptance
until close of business on Wednesday the 11
th
of September
2013:
2.3.1
Our client will not solicit or accept work of whatever nature from
any person (including natural and/or juristic) who was
a client of
your client as at the 5
th
of August 2013 and whose
identity and/or contact details became known to our client through
his employment with your client, which
client’s are listed in
annexure “FA4” to your pending application; and
2.3.2
each party to pay its own costs.
3.
Should your client however not be willing to accept our client’s
offer of settlement, and no response is received as aforesaid,
we
have been instructed to oppose the matter at hand, at which point in
time this letter will be incorporated into our opposing
papers, and a
cost order requested against your client.
4.
We trust that the aforesaid will meet your client’s approval
and await your favourable response pertaining thereto.”
8.
This
with
prejudice
offer was rejected out of hand
[3]
by
the Applicant, through its attorney, Boela Van der Merwe, who
addressed the Respondent’s attorneys as follows on 13 September
2013 :
“
We
refer to your client’s settlement proposals as contained in
your letter dated the 9
th
of September 2013 and wish to advise that the settlement proposals
are unacceptable to our client.
Your
client is therefore required to deliver his Answering Affidavit not
later than close of business on the 17
th
of September 2013.
”
9.
The Applicant’s rejection of the with
prejudice settlement offer effectively forced the Respondent, a man
of meagre means,
to pursue his opposition of the application.
The Applicant’s attitude in refusing to accept terms which it
subsequently
was seemingly happy to live with for more than a year
since the date of the Interim Order, is suggestive of a
modus
operandi
which is bullying and
punitive, to no real end.
10.
In
this regard, this court also notes, with surprise and displeasure,
that the Applicant did not see fit to express any form
of
demand of the Respondent that he comply with the restraint agreement
before proceeding to launch a voluminous and extremely
costly
application. The Respondent’s attorney makes the point
[4]
that had the Applicant made
an approach to the Respondent before launching the application, that
the Respondent would have been
amenable to settling the matter.
It is thus apparent that the Applicant, through its conduct, has
deliberately scuppered
two opportunities to avoid the cost, acrimony
and prolixity of this application. I will revert to this aspect
below.
11.
I
turn now to deal with the merits of the application. The
Applicant is a close corporation, having its principal place of
business at 6 Oscar Road, Boksburg. It is in the business of
manufacturing, selling and installation of kitchens, built-in
cupboards, bars and vanities, as well as plumbing and electrical work
and tiling
[5]
.
12.
The Applicant states that it has been in
business for the past 25 years, and claims to be one of the market
leaders in the Gauteng
area. The Respondent denies this.
13.
The
Applicant states that it services the entire spectrum of customers,
from the small individual who requires a residential kitchen
or
cupboard, to so-called large developers and contractors who require
entire developments to be fitted with kitchens and cupboards.
The Applicant seeks to categorise this latter part of its business as
being “corporate work”.
[6]
14.
The
Applicant alleges that it has spent large amounts over the years in
advertising its business. The media in which the Applicant
advertises are listed as being Homemakers Fair Magazine, The
Homeowners Magazine, The 94.7 radio station, flyers and brochures,
and on its website.
[7]
This advertising is seemingly directed at the individual or
residential market, and not the corporate market. (The relevance
of
this is that the Respondent is not in fact restrained by the
agreement from competing in the residential market.)
15.
The Applicant states that its business
relationships with its customers and suppliers are frail and easily
attacked, but the Respondent
disputes this.
16.
On
27 May 2013, the Respondent approached the Applicant and applied for
a position of Sales Consultant. The deponent to the
Founding
Affidavit, Gary Adamson (“
Adamson
”)
states that he interviewed the Respondent on the same day. He
states
[8]
that during the
course of this interview, the Respondent informed him that he had
been in the kitchen industry for many years,
but that he had however
lost his job and all his possessions. The Respondent begged him
for the job. It is clear that
the approach for employment by
the Respondent came at a time when he was desperate.
17.
It
is common cause that the Respondent is a “
man
of straw
”.
In point of fact, the Respondent’s estate was sequestrated in
September 2011.
[9]
18.
Adamson states that he offered the
Respondent the job of Sales Consultant, subject to an oral agreement
in terms of which the Respondent
would commence his employment with
immediate effect, but on a trial basis for a period of three months.
This probationary
period would terminate on 27 August 2013.
Adamson states that it was a material term of this oral agreement
that the Respondent
would, when requested, sign the Applicant’s
standard written contract of employment which embodies a restraint.
19.
Although
the Respondent commenced his employment immediately (on 27 May 2013),
the written contract of employment was eventually
signed by both
parties only on 12 July 2013. There is a dispute of fact as
between the Applicant and the Respondent in relation
to the
surrounding circumstances pertaining to this delay. It is
however common cause that the written contract of employment
was
signed, and it is annexed to the Founding Affidavit as annexure “FA3”
[10]
.
20.
The
Respondent states that he signed the contract of employment very
reluctantly, and only because his livelihood was threatened.
The Respondent makes much of the fact that he was coerced into
signing the contract of employment. I do not accept this.
It is clear that the Respondent was not subject to any unlawful form
of duress, and that he signed the contract of employment of
his own
volition. The restraint is contained in clause 16
[11]
of the contract of employment, and it reads as follows :
“
16.
RESTRAINT
16.1The
employee acknowledges that:-
16.1.1
during the course of his/her
employment with the Employer, he/she will be introduced and exposed
to the confidential information
and secrets of the Employer, being
inter alia, introductions to suppliers, clients, corporate clients
and corporate work, pricing
(notably corporate clients), copyrights,
brand names, business manufacturing and marketing techniques,
financial information, which
he/she acknowledges and recognizes as
being information of a highly confidential and potentially damaging
nature and which, if
disseminated amount the Employer’s
competitors, will result in unfair competition; and
16.1.2
it is both necessary and reasonable
that he/she undertakes a restraint on the terms and condition set out
hereunder, which he/she
acknowledges and accepts are reasonable and
which are freely, voluntarily and by choice given by him/her
16.2The
Employee undertakes to the Employer that he/she will not, either
alone or jointly, directly or indirectly (including through
any other
entity in which he/she is directly or indirectly interested, engaged
or concerned), or in any other manner whatsoever,
for the duration of
the agreement (save insofar as the performance of this agreement is
concerned) and for a period of 24 (twenty-four)
months from the
termination of his/her employment with the Employer (“the
restraint period”) and within a radius of
100 kilometres from
the head office of the Employer (“the restraint territory”)
for whatsoever reason :-
16.2.1
solicit work of whatever nature
from, accept work of whatever nature from, refer work to or be
interested or engaged in any capacity
whatsoever in or for or in
connection with, any person (person includes natural and juristic
persons) who is a client of the employer
at the termination of the
Employee’s employment, or who such a client at any time within
2 (two) years prior to such termination,
within the restraint
territory; or
16.2.2
compete with the Employer in the
field of corporate work within the restraint territory; or
16.2.3
engage or contract any person who
was employed by or contracted to the Employer;
16.2.4
at any time within 2 (two) years
prior to the termination of the Employee’s
16.2.5
employment, or encourage or solicit
such person’s termination of his/her employment or contract
with the Employer, or in any
way be involved with the said persons
termination of employment or contract with the Employer and the
taking up by such person
of employment or contractual relationship
elsewhere; or
16.3During
any part of the restraint period and thereafter, to the extent that
the same are protected by law, the Employee shall
not disclose any
confidential information and are/or trade secrets of the Employer.
16.4the
Employee acknowledges and agreed that:-
16.4.1
the restraints imposed upon him/her
in terms of the above provisions, are reasonable as to subject
matter, period and territorial
limitation and are no more that are
reasonably and necessary required by the Employer to maintain its
goodwill, business and legitimate
business interests, more
particularly having regard to the frequency of his/her contact with
the Employer’s customers and
clients, the knowledge which
he/she will gain for the customers/clients’ requirements and
business, the general nature of
the relationship between him/her and
the customers/clients, the competitiveness of rival businesses, the
type of product manufactured,
sold and installed and the possibility
of the loss of customers and clientele if and when the Employee
should leave the employ
of the Employer.
16.4.2
the restraint as herein provided for
is the only effective and reasonable manner in which the Employers
proprietary rights to its
confidential information can be protected;
16.4.3
each restraint imposed herein and
each clause of the restraint is severable, the one from the other,
and in the event of any clause
herein being found to be defective or
unenforceable for any reason by the competent Court of Law, the
remaining clauses shall be
of full force and effect and continue to
be of full force and effect.
16.5Should
a Court of Law find any clause of term of these restraint provisions
to be unreasonable, the Court may vary such provisions
to bring them
within the bounds of reasonableness.
”
21.
The Respondent, as stated above, commenced
his employment on 27 May 2013, and he left the Applicant on 30 July
2013. Although
he formally resigned on 5 August 2013, he was
effectively employed for only 9 weeks (formally 10 weeks), and did
not even serve
out his probationary period.
22.
Nevertheless,
the Applicant alleges that the Respondent, during this short period,
was exposed to all facets of the Applicant’s
business,
including its customer lists (both individual and corporate), pricing
structures, supplier lists.
[12]
23.
The
Applicant also states that the Respondent attended regular sales
meetings, interacted with the Applicant’s Admin Manager
and
staff, and received customer leads. The Applicant states that these
leads constituted a handwritten list, which is annexed
to the
Founding Affidavit as annexure “FA4”
[13]
of some 34 names. Pertinently, these are all handwritten names
of individuals. No reference to any companies are made.
The names of the individuals and their area is listed, but the
customer list does not ascribe a telephone number to any of these
individuals. It is relevant that all of the names on Annexure
“FA4” are those of individuals (as opposed to companies),
because the blanket restraint does not seek to disentitle the
Respondent from competing in the residential market. Yet, the
Applicant places much reliance on this list as being evidence of the
“
customer
connections
”
to which the Applicant exposed the Respondent.
24.
The
Applicant also states
[14]
as
follows :
“
8.6
The Respondent through his employment with the Applicant, was
introduced and exposed to the Applicant’s confidential
information, such as the Applicant’s know-how, formula
processes, systems, business methods, marketing methods, financial
methods, pricing structures, financial arrangements with corporate
clients and operating results.
”
25.
I find these allegations as being vague,
embarrassing and meaningless. They appear to be a cut and paste
from similar applications
of this nature. Not only do they lack
detail, but given the extremely short and unsuccessful duration of
the Respondent’s
employment with the Applicant, I find these
allegations to be highly improbable. (They are denied by the
Respondent). Be
that as it may, the Applicant asserts that it
has a proprietary interest which is in need of protection.
26.
In deciding whether or not the Applicant
has established a
prima facie
case, the enforceability of the contractual stipulation in clause 16
of the contract of employment, depends upon whether the Applicant
has
established a proprietary interest of a kind that our law recognises
as susceptible to protection by way of a restraint of
trade.
The proprietary interests which the Applicant seeks to invoke are the
so-called customer connections, most notably
those as listed in
Annexure “FA4”. Trade connections have been held to
be recognised interests, which are protectable
proprietary
interests.
See
Basson v Chilwan and Others
1992 (3) SA 742
(AD)
,
Sibex Engineering Services (Pty) Ltd v Van Wyk
1991
(2) SA 482
.
27.
In the
Sibex
Engineering
case at 502
et
seq
the court defined the two kind of
interests that could be protected:
“
The
first kind consisted of the relationships with customers, potential
customers, suppliers and others that go to make up what
is
compendiously referred to as the “trade connection” of
the business being an important aspect of its incorporeal
property
known as goodwill. The second kind consisted of all
confidential matter which is useful for the carrying on of the
business and which could therefore be used by a competitor if
disclosed to him to gain a relative competitive advantage”
(at
502D-E)
.
28.
In
Humphrys
v Laser Transport Holdings Limited and Another
1994 (4) SA 338
CPD
,
the court stated as follows (at 400G),
in regard to the enforceability of a restraint:
“
The
enforceability of the restraint
It
is now established South African law that agreements in restraint of
trade are prima facie enforceable and that the onus is on
the person
seeking to avoid the restraint agreement to prove that its
enforcement would be contrary to the public interest
(
see
Magnus Alloys and Research (SA) (Pty) Ltd v Ellis
[1984] ZASCA 116
;
1984 (4) SA 874
(A)
at 897F-898D
;
Basson v Chilwan and Others
[1993] ZASCA 61
;
1993
(3) SA 742
(A) at 762 (D
)
. in the
Basson
case supra, Eksteen JA stated the legal position thus (his references
are to the
Magna Alloy
case at 762 C - F:
‘
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 be held
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
restrictions 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 (at 894B-E)."
29.
The Applicant alleges that the Respondent
has breached the restraint by virtue of the fact that he is a member
of Glorious Kitchens
CC, whom the Applicant alleges are direct
competitors of the Applicant. The Applicant also states that
the Respondent has
made contact with certain of the customers listed
in Annexure “FA4”. There are a multiplicity of
factual disputes
surrounding the alleged breaches, but I do not
propose to burden this judgment with an analysis thereof, as I
consider them to
be largely superfluous to this application, which
hinges upon the reasonableness and enforceability or otherwise of the
restraint.
30.
In
Reddy
v Siemens Telecommunications (Pty) Ltd
[15]
the court held that in
deciding whether or not to enforce a restraint of trade, the
following must be considered :
“
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. A Contractual autonomy is part of
freedom informing the constitutional value of dignity, and it is by
entering into
contracts that an individual takes part in economic
life. In this sense freedom to contract is an integral part of
the fundamental
right referred to in s22.
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. Moreover, a restraint which
is
reasonable as between the parties may for some other reason be
contrary to the public interest.
31.
The
Respondent hotly disputes that he is apprised of highly confidential
information which is the property of the Applicant. He
states that he
has been involved in the building / kitchen industry for
approximately 20 years, and although he concedes
that during the
first two weeks of his employment he was office based and did undergo
in-house training, he asserts that none of
this training “better
equipped” him for the position
[16]
.
The Respondent alleges that he had the necessary know-how prior to
commencing employment with the Applicant, and repeatedly
states that
he learned nothing new in the 10 weeks in which he was employed at
the Applicant.
32.
The Respondent states that he was asked to
“shadow” a fellow sales consultant in the third week of
his employment, but
again he denies that he learned anything
pertaining to the industry which was not previously known to him.
33.
The
Respondent concedes
[17]
that
he was privy to approximately 34 leads, and that he managed to secure
5 sales for the Applicant.
34.
He disputes however that the Applicant has
a protectable interest in the restraint, and disputes that he
constitutes any threat
to the proprietary interests of the Applicant.
35.
The
Respondent denied that he bears any knowledge of the so-called
corporate work or corporate clients of the Applicant, or that
the
Applicant’s relationship with its customers and suppliers is
frail and easily attacked
[18]
.
36.
Although
the Respondent does admit to being a member of Glorious Kitchens CC,
he demonstrates that this entity is hardly a viable
or a going
concern. He does so by annexing a bundle of bank statements in
relation to Glorious Kitchens’ Nedbank account
for the period
March 2013 to June 2013
[19]
.
Not only do these bank statements demonstrate a total lack of trade,
but they are indicative of an entity in financial distress.
The
bank balances maintained throughout the period of the bank statements
annexed are paltry, and shortly before the closure of
the account,
there are in fact various returned debit order items.
37.
I therefore cannot take seriously the
Applicant’s suggestion to the effect that the Respondent’s
involvement in Glorious
Kitchens CC justifies the imposition of a 2
year (or indeed any) restraint period in the so-called corporate
market. I cannot see
how Glorious Kitchens CC poses any threat to the
commercial interests of the Applicant.
38.
In
deciding whether a restraint of trade agreement is enforceable, the
court is required to examine the circumstances which prevail
as at
the time of enforcement thereof
[20]
.
In
casu
,
the employment relationship lasted a mere 10 weeks. It ended
some 15 months ago. The Respondent disputes that he gained
any
technical or confidential information from the Applicant, or that his
brief association with the Applicant gave him any sort
of springboard
to compete. Nevertheless, the Applicant still belatedly seeks
to enforce the balance of the two year restraint
period.
39.
The
Respondent suggests that his employment with the Applicant was not
only very short-lived, but also a spectacular disaster.
He
advances the following as reasons for his decisions to leave the
Applicant in his resignation letter
[21]
of 5 August 2013 :
“
My
next ambition was to join a stable company like Micah Kitchens to
share my expertise and make a better future for me and my family
but
sadly I am in a worse position now than what I ever was. Since
joining Micah Kitchens I have lost my medical aid, life
insurances
and all policies due to the fact that I could not make ends meet.
I was now given two weeks’ notice to vacate
the premises I am
renting also due to the fact that I was behind on mortgage payments
and could not bring the payments up to date
this month. The
money that I am currently earning at Micah Kitchens is far below my
bread line of income that I need per
month even with sales going up
we only get paid 10% on carcasses commission which 5% we add on
automatically.
”
40.
There
is an irrelevant factual dispute as to how much the Respondent
actually earned in June and July 2013, but on the Applicant’s
own version, he earned a net salary of R9 835.02 in June 2013, and
was paid a net amount of R14 796.74 in July 2013.
The
Applicant submits
[22]
that
“
the
only reasonable inference is that
”
the Respondent was never really interested in taking up permanent
employment with the Applicant, and that he just used the
latter to
gain knowledge of its business and leads. I find no
justification in this suggestion.
41.
Having regard to the brevity of the
employment relationship, and the fact that the contract of employment
was only signed four weeks
prior to the termination thereof, this
court is of the view that it is decidedly unreasonable, and indeed
contrary to public policy,
to prevent the Respondent from earning a
living for 2 years in his chosen field of endeavour. The Respondent
has worked in the
kitchen building industry for some 20 years, and
his experience and expertise in that field are what equip him to
remain economically
active. He is financially distressed as it –
the imposition of a 2 year restraint would obviously break him.
A brief
10 week stint with the Applicant surely cannot serve as being
justification for the imposition of a two year restraint. To
grant this relief against the Respondent, would, to my mind, be
extraordinarily harsh, and unnecessary. I do not accept that
the interdict sought by the Applicant is reasonably necessary to
protect its proprietary interests.
42.
Even if I was predisposed to exercising my
discretion (as this court is entitled to do) to enforce a reduced
period, the fact is
that 15 months of the restraint period have
already expired as at the time that I deliver this judgment.
The reasons for
this are enumerated in paragraph
3
above. The Applicant rushed to court with an
urgent application, and then allowed the litigation to stagnate.
In the
result, the effluxion of all this time has effectively
rendered the restraint period as being superfluous.
43.
Accordingly, this court declines to grant
the relief as sought in prayer 2.2 of the Notice of Motion.
44.
Prayer 2.1 of the Notice of Motion seeks to
restrain the Respondent from soliciting work with any person who was
a client of the
Applicant as at 5 August 2013 (or who was a client
within a 2 year timeframe prior thereto). As I have noted in
paragraph
3.2
above,
the Interim Order has given the Applicant the benefit of this relief
since it was handed down on 3 September 2013, some 13
months ago. I
believe this 13 month period to be more than adequate to protect any
protectable proprietary interest to the
customer connections to which
the Respondent may have been exposed during his short term of
employment with the Applicant.
Surely, by now, any leads which
the Respondent may have become exposed to have become sterilised by
the effluxion of time.
Typically, all of the leads arise from
individuals in the residential market, who have responded to
advertising, and in the nature
of things, these people have either
already bought kitchens, or they are no longer in the market.
45.
I accordingly do not believe that the
Applicant is in genuine need of the relief sought in terms of prayer
2.1, and I see no reason
to extend the Interim Order (which was made
pending the outcome of this application) any further.
46.
Insofar as prayers 2.3 and 2.4 of the
Notice of Motion are concerned, there is no suggestion in the
Applicant’s papers that
the Respondent has at any time sought
to solicit the Applicant’s staff. The Founding Affidavit
also makes no allegations
to the effect that the Respondent has
disseminated any of the Applicant’s confidential information.
The Respondent
denies being in possession of any such
confidential information. In any event, any confidential
information of which
the Respondent may have been apprised during his
10 weeks of employment is, to my mind, of little benefit to a
competitor, and
I do not believe that the Applicant is in need of or
is entitled to the relief sought in either of prayers 2.3 or 2.4.
47.
In the circumstances, the application must
fail. Having regard to the conduct of the Applicant, as
enumerated in paragraphs
3
and
4
above, and more specifically the Applicant’s
:
47.1.
failure to engage with the Respondent or to
issue any form of demand prior to instituting these proceedings; and
47.2.
rejection of an offer immediately
succeeding the grant of the Interim Order, in circumstances where the
Applicant’s own conduct
demonstrates that the relief offered in
terms thereof satisfied the Applicant to the extent that it dragged
its feet for more than
a year in enrolling this application.
48.
The Applicant’s conduct is laced with
malice and vexatiousness in the way that it treated the Respondent in
regard to these
proceedings. I am also mindful of the fact that the
Respondent is a man of meagre financial means, and have little doubt
that the
costs of this application constitute an immense financial
burden on the Respondent. Indeed, I feel certain that this
was
the primary motivation in launching and pursuing this application
(even after the restraint period became sterile), rather
than a
genuine endeavour to protect a proprietary interest. Accordingly,
this court considers punitive costs against the Applicant
to be
appropriate.
In
the circumstances, I make the following order :
1.
The application is dismissed.
2.
The Interim Order dated 3 September 2013
is discharged.
3.
The Applicant is ordered to pay the
Respondent’s costs of the application, including the reserved
costs of 3 September 2013
and 1 October 2013, on the scale as between
attorney and client.
NOCHUMSOHN,
G
ACTING
JUDGE OF THE HIGH COURT
On
behalf of the Applicant: Advocate HD Baer
Instructed
by: Boela van der Merwe
On
behalf of the Respondent: In person
Date
of Hearing: 29 October 2014
Date
of Judgment: 31 October 2014
[1]
FA
p20
[2]
Annexure
RD6 to AA, p140
[3]
Annexure
RD8 to AA p146
[4]
Annexure RD6 to AA, p140
[5]
FA
p8
[6]
AA
p9
[7]
Para
6 of FA at p9
[8]
Para
6.2 of FA p11
[9]
See
Court Order under case no. 45496/2011, p142
[10]
At
p44
[11]
At
p53
[12]
FA,
p18
[13]
At
p60
[14]
At
para 8.6 of FA, p19
[15]
(2007) 28 ILJ 317 (SCA)
[16]
AA
p98
[17]
At
para 20 of AA, p99
[18]
Para
27.3 and 27.4 of AA at p101
[19]
Annexure
“RD11” to AA, pp149-163
[20]
Magna
Alloys supra
[21]
Annexure
“FA5” to AA, p62
[22]
Para
52 of RA, p183