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[2021] ZAGPJHC 465
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Auction Operation (Pty) Ltd v Fair and Another (10305/21) [2021] ZAGPJHC 465 (23 March 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 10305/21
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
23/3/2021
In
the matter between:
AUCTION
OPERATION (PTY) LTD
APPLICANT
and
IAN
FAIR
FIRST RESPONDENT
TIRHANI
AUCTIONEERS GAUTENG CC
SECOND RESPONDENT
JUDGMENT
WINDELL
J:
INTRODUCTION
[1]
This is an urgent application for an interdict enforcing a written
restraint of trade and confidentiality agreement entered
into between
the applicant, as employer, and the first respondent, as employee. I
am satisfied that the matter is urgent.
[2]
The applicant carries on business as, in the main, an auctioneer
facilitating the auctioning of salvaged, stolen and recovered,
as
well as repossessed motor vehicles. It conducts such services,
inter
alia
, for short-term insurance and financial institutions such as
Absa Bank Limited (Absa), Wesbank and BMW Finance. The applicant is
not only involved in the auctioning of the vehicles, but also in
preparing the vehicles for the auction and preparing the auction
itself. In the preparation of the vehicles the applicant will often
employ service providers (cleaning and valet services and specialised
repair services) for the vehicles. In preparation of the auction the
applicant also markets the vehicles, utilising its data base
of
clients and purchasers to ensure that the product is marketed to all
interested parties.
[3]
The first respondent was employed at the applicant for a period of 9
years. On 23 February 2021, the first respondent informed
the
applicant that he is leaving the employ of the applicant and taking
up employment with the second respondent. The applicant
and the
second respondent are competitors in the auctioneering business.
[4]
It is common cause that the first respondent signed a written
employment agreement that contained a confidentiality and restraint
clause. In the agreement the first respondent acknowledged that he
will:
“
in the ordinary
course of his or her employment under this agreement, and
specifically in respect of his or her duties as specified
in terms of
this contract, the employee will continue to be exposed to
information about the business of the employer and that
of its
suppliers, customers and clients which amounts to a trade secret, is
confidential or is commercially sensitive and which
may not be
readily available to others engaged in a similar business to that of
the employer or to the general public and/or which
if disclosed would
be liable to cause significant harm to the employer.”
[5]
The first respondent furthermore agreed that he would not, for a
period of 12 months after termination of his employment, be
directly
or indirectly interested, engaged, concerned with, associated or be
employed by a competitor within South Africa. He further
acknowledged
that the restraint was fair and reasonable.
[6]
The applicant seeks an order against the first and second respondents
in the following terms:
“
Interdicting
and restraining:
2.1 The first
respondent, for a period of twelve (12) months, commencing from the
22 February 2021, from, anywhere in South Africa,
being directly or
indirectly interested, engaged, concerned, associated with or
employed, whether as proprietor, partner, director,
shareholder,
employee, consultant, contractor, financier, principal, agent,
representative, assistant, advisor, administrator or
otherwise, in
any company, close corporation, firm, business undertaking, concern
or other association of any nature which directly
or indirectly
carries on any business or activity which is the same or similar to
that of the applicant;
2.2 The first
respondent, from, at any time soliciting, interfering with or
enticing away from the applicant any person, firm, association,
partnership, business undertaking, company, close corporation or
other legal person or association of persons who is a customer
of the
applicant at the termination date or was a customer of the applicant
at any time during the 6 (six) month's preceding the
termination
date; or attempt to do so;
2.3 The first
respondent, from, at any time, soliciting, interfering or enticing
away from the applicant any employee of the applicant
or attempt to
do so.
2.4 The first
respondent, for whatever reason, from using, communicating or
revealing to any person, for the first respondent's
own or another's
benefit, any secret or confidential information concerning the
business, finances or organisation of the applicant,
its suppliers,
customers or clients which shall have come to his knowledge during
the course of the first respondent’s employment
with the
applicant; such confidential information shall include, but not be
limited to, any information or other data, whether
written, oral or
graphic which the applicant or a client of the applicant (hereinafter
"the disclosing party") may disclose
or provide to, or
which otherwise comes to the knowledge of the first respondent, by
whatsoever means and shall include:
2.4.1 information
relating to the disclosing party's strategic objectives and planning
for both its own operations and any proposed
business transaction;
2.4.2 information
relating to the disclosing party's business activities, business
relationships, products, services, customers
and clients;
2.4.3 information
contained in the disclosing party's software and associated material
documentation;
2.4.4 technical,
scientific, commercial, financial and market information, know-how
and trade secrets;
2.4.5 data concerning
business relationships, demonstrations, processes and products;
2.4.6 plans, designs,
drawings, functional and technical requirements and specifications;
information in respect of or supplied
by clients of the employer,
including details of their particular requirements; and
2.4.8 all other
information in whatever form, whether or not subject to, or protected
by, common law or statute related to copyright,
patent, trademarks or
otherwise, which is disclosed or communicated by the disclosing party
to or otherwise comes to the knowledge
of the employee;
2.5 The second
respondent from directly or indirectly employing or utilising the
services of the first respondent for a period of
12 months commencing
from the 22 February 2021.
2.6 The second
respondent from utilising any confidential information of or
concerning the applicant obtained from the first respondent
which
confidential information is set out in prayer 2.3 supra, in the
conduct of its business relations.”
[7]
The applicant alleges that the restraint of trade and confidentiality
clause in the employment agreement are reasonable and
necessary for
the legitimate protection of its confidential information which
includes, but not limited to the applicant’s
customer lists and
software program.
[8]
This application is opposed by the first and second respondent. They
allege that the applicant has failed to establish the requirements
for an interdict. They specifically dispute that the applicant has a
protectable interest and contend that the restraint of trade
is
unreasonable and unenforceable.
[9]
The application is one for final relief. It is trite that, being
motion proceedings, disputes of fact are to be dealt with in
accordance with the principles laid down in
Plascon
Evans Paints Ltd v Van Riebeeck Paints Ltd.
[1]
A final interdict may therefore only be granted if the facts stated
by the respondents’ answering affidavits together with
the
admitted facts in the applicant’s founding affidavit justify
such an order. In
Basson
v Chilwane
[2]
,
the Appellate Division (as it then was) stated that the
incidence of the
onus
in
a case concerning the enforceability of a contractual provision in
restraint of trade does not entail any greater or more
significant
consequences than in any other civil case in general. Botha JA stated
that “
the
effect of it in practical terms is this: the covenantee seeking to
enforce the restraint need do no more than to invoke the
provisions
of the contract and prove the breach; the covenantor seeking to avert
enforcement is required to prove on a preponderance
of probability
that in all the circumstances of the particular case it will be
unreasonable to enforce the restraint; if the Court
is unable to
make up its mind on the point, the restraint will be enforced. The
covenantor is burdened with the onus because
public policy
requires that people should be bound by their contractual
undertakings. The covenantor is not so bound, however,
if the
restraint is unreasonable, because public policy discountenances
unreasonable restrictions on people's freedom of trade.”
[10]
In
Basson supra
the court further held that to determine
the reasonableness or otherwise of a restraint of trade provision,
the following questions
should be asked:
a.
Is there an interest of the one party, which is deserving of
protection at the
termination of the agreement?
b.
Is such interest being prejudiced by the other party?
c.
If so, does such interest so weigh up qualitatively and
quantitatively against
the interest of the latter party that the
latter should not be economically inactive and unproductive?
d.
Is there another facet of public policy having nothing to do with the
relationship
between the parties but which requires that the
restraint should either be maintained or rejected?
BACKGROUND
FACTS
[11]
It is common cause that the applicant and the second respondent were
both providing auctioneering services for Absa at a site
belonging to
Absa situated at Boksburg (“the Boksburg site”). The
auctions at the Boksburg site was managed by the
first respondent on
behalf of the applicant. Absa terminated its services with the
applicant in respect of the Boksburg site with
effect from the end of
February 2021. As a result, the primary auctioneer at the Boksburg
site from the end of February 2021 is
the second respondent.
[12]
Pursuant to the cancellation of the contract, Mr Bezuidenhout,
chairman of the applicant, advised the staff of the termination
of
the contract and told them that they would be accommodated at other
branches of the applicant. The first respondent indicated
that he was
not sure whether he could continue working for applicant and
disclosed that he had been approached by the second respondent
to
continue managing the Absa contract on behalf of the second
respondent at the Boksburg site.
[13]
On 18 February 2021, Mr Bernard DeCombes, a manager at second
respondent, approached Mr Bezuidenhout to purchase certain of
the
applicant’s equipment at the Boksburg site, and also enquired
whether some of applicant's staff would be available to
the second
respondent. Mr Bezuidenhout informed Mr DeCombes that the staff would
be redeployed on other contracts and were therefore
unavailable. On
19 February 2021, the applicant discovered that the second respondent
had approached and employed almost all the
staff the applicant had
utilized at the site, namely, Mr Molefe a forklift driver, Mr
Mbongeleni, a wash bay supervisor, six casual
general workers, and
the first respondent. The said staff members, save for first
respondent, are not considered “key staff
members” and
only the first respondent had concluded a restraint agreement with
the applicant.
PROTECTABLE
INTEREST
[14]
It is common cause that the first respondent, whilst employed at the
applicant, was tasked to manage the preparation of auctions,
the
execution thereof and administering the entire process. In his
capacity as manager he also oversaw the staff and sourced vehicles
for the auctions.
[15]
The applicant alleges that the first respondent had access to its
confidential data base (which contained
all the
information in connection with each and every transaction effected by
the client/buyer/service provider (“
transactional
history”), as well as client, customer and purchaser details),
was introduced to the applicant’s clients,
service providers
and purchasers and has built up a relationship with their key
personnel.
As a result of the long history with its
customers, pricing discounts and commissions have been agreed upon
which is to the financial
advantage of both the applicant and its
customers.
It is alleged
that the
database is confidential to the applicant;
that only a few selected staff had access to it; and is not available
to the public.
[16]
The applicant states that in order to compete in the modern business
environment, and in particular to address the trend towards
doing
business remotely (having regard to,
inter alia
, Covid 19) the
applicant has utilised it extensive experience in the industry to
instruct software developers to develop software
which it utilises in
its business. This software, so the applicant contends, is unique to
the applicant and offers the applicant
a significant competitive
advantage in the industry. Such software includes a stock control and
reporting system also known as
the “One Stop System”. It
keeps control and reports on a product/car from receipt of the
product to the sale thereof.
[17]
The applicant contends that it has trained its staff, and the staff
of its clients, in its auctioneering methods and software
systems
thereby enabling its clients and the applicant to work efficiently
together. Even though the software programs such as
the virtual
auction system, the controlling and logistics system and the timed
online auction system are exposed to use by the
public, the operating
of the system, the uploading of information to the system and the
maintenance of the systems are confidential
— this information
is restrained to the software developers and the applicant. The
applicant submits that the second respondent
has not developed
digital systems such as a virtual auction, a controlling and
logistics or timed online auctioning system as sophisticated
and
encompassing as the applicant's.
[18]
The applicant avers that when it employed the first respondent at the
beginning of 2012, he was unemployed and had no experience
as an
auctioneer. He was trained by,
inter alia
, Mr Bezuidenhout and
his son, and they have imparted to him the necessary skills to be a
successful auctioneer manager. In addition,
he was trained to operate
all applicant's operating systems, which included,
inter alia,
the “Timed Online Auction System”, the ”Virtual
Auction” and the “One Stop System”.
[19]
The applicant alleges that the first respondent was intimately
acquainted with the details of all contracts concluded between
the
applicant and its clients/purchasers and service providers and has
obtained considerable goodwill with such service providers/clients
and purchasers. The applicant fears that the first respondent will
utilise such goodwill to try and persuade clients of applicant
to
move their business to the second respondent. The applicant fears
further that first respondent will impart information concerning
the
pricing and commission structures with second respondent and that
second respondent will utilise such information to undercut
the
applicant, thereby taking business away from applicant. This
information not only includes the expertise imparted by the applicant
to operate as an auction manager, but access to applicant's data base
and software programmes. If this information is imparted
to second
respondent by the first respondent, this will provide a huge
competitive advantage to the second respondent, by giving
it access
to key personal knowledge of clients/service providers/purchasers of
the applicant, which knowledge will facilitate the
second
respondent's introduction to such clients/service providers and
purchasers and the obtaining by the second respondent of
the business
of such clients. The knowledge that the first respondent has of the
operation, maintenance and programming/uploading
of information
onto/of the software systems of applicant, including knowledge of who
developed such systems for applicant, will
enable the second
respondent to adopt such systems, thereby negating this competitive
advantage of the applicant. It is alleged
that the first respondent
also has knowledge of the software developers who have developed the
systems and can therefore impart
this information to the second
respondent, thereby enabling the second respondent to develop such
systems. It is alleged that because
Absa is already trained to
operate on the software systems, the second respondent can only
enhance its business relationship with
Absa by adopting such systems.
The applicant contends that it is therefore essential that the
applicant invokes the terms and conditions
of the employment
agreement to protect itself against such competition.
[20]
The first respondent denies the allegations. He states that
he
had extensive auctioneering experience by the time he joined the
applicant
and that he did
not receive any specialised training from the applicant.
He
states that when he started working for the applicant as a General
Manager, he was responsible for the following: overseeing
an
administrative department of approximately 15 staff members; ensuring
that all eight branches nationwide were operating efficiently;
worked
as a Human Resources Manager drawing up new contracts for new
employees; was responsible for the dismissal of staff; and
the
opening of new branches in places like Polokwane, Bloemfontein, and
Port Elizabeth. He also oversaw the opening of the Boksburg
branch.
His duties at the Boksburg branch entailed maintaining the efficient
operation of the Boksburg branch; overseeing the welfare
of 12 staff
members; preparing auctions for Wesbank vehicles bi-monthly (between
80 and 120 lots) and Absa auctions once a month
at the Boksburg site;
sourcing additional vehicles for auctions and assisting with
furniture auctions.
[21]
The first respondent alleges that he was generally functioning at
mid-management level at the Boksburg branch and his functions
generally entailed the execution of administrative tasks and the
management of the applicant’s human resources. He states
that
he did not have access to any of the applicant’s strategic
meetings at an executive or board level and had no access
to
confidential information or software data, whether written, oral or
graphic. He had no access to any secret or confidential
information
concerning the business, finances or organisation of the applicant,
its suppliers, customers or clients. He contends
that the applicant
has therefore failed to allege and establish that there is a
protectable interest at the termination of the
agreement and also
failed to establish that the interest (if there is one) is being
prejudiced.
[22]
The second respondent contends that there is nothing confidential
about the information the applicant has classified as confidential
in
its application, particularly as the confidential information relates
to the non-strategic position held by the first respondent
in the
applicant's organisation and the responsibilities attached thereto.
The second respondent's contends that the information
the applicant
has classified as confidential in its application is either already
in the public domain, or in the possession of
the applicant's
competitors in varying formats.
[23]
The second respondent’s denies the applicant's claim that its
software is unique. It states that most professional auction
houses
of the scale of the applicant and the second respondent have digital
software infrastructure, facilities, and capabilities
of varying
styles and efficiencies, albeit competitive. By means of
illustration, by following four easy steps from the Auction
Operation
website/ online system one can ascertain who the online auction
service provider is. The second respondent states that
the software
functionality outlined by the applicant in its founding affidavit are
not unique to the applicant and some of the
claims by the applicant
are exaggerated. It contends that the applicant’s online system
is not as sophisticated or unique
as the applicant wants this court
to believe. The second respondent also has a bespoke stock control
and reporting system like
the applicant's "One Stop System".
The applicant's claim that
"presently, no other auction house
virtual auction which can be said to be the same or of similar
standard to applicant’s
” is also denied. The second
respondent contends that as early as 2009, and long before Covid 19,
it was amongst the first
auction houses in South Africa to have
online auction capabilities in association with its American
partners. It contends that
contrary to the false claims of the
applicant, the second respondent had access to a real time auction
system called "Live
Webcast Online Auction" like the
applicant's "Virtual Online Auction" from 2009. It further
disputes the applicant’s
insinuation that the second respondent
has no capabilities to prepare assets for auction. It is contended
that for obvious logistical
reasons, Absa deemed it fit to have only
one of its two auctioneers on its panel to do asset preparations at
its trade centres.
The applicant was chosen to do this because their
company was on board at the time the second respondent joined Absa's
panel. As
it is now, “Park Village Auctions”, an
auctioneering house far bigger than the businesses of both the
applicant and
the second respondent, has now joined Absa's panel.
Absa has, however, given the second respondent the “opportunity
and honour”
to do the work which the applicant was doing all
along on behalf of its own auctions and Park Village's auctions as
well. Surely,
so it is submitted, this should put all the applicant's
claims about its “
anointment and importance to rest”
.
[24] The second
respondent submits that the first respondent dealt with what could be
described as 'front end work” and had
none to very little
knowledge of the "back end work". In fact, the only client
first respondent dealt with was Absa at
the Boksburg site. The
purchasers who attended the auctions went there on the understanding
that it is an Absa site administered
by the second respondent and the
applicant. Neither the applicant nor the second respondent could
claim exclusivity to those purchasers
as “
they
weren't ours but rather Absa's
.”
The second respondent submits that the Consumer Protection Act
[3]
in any event requires all auctioneers to disclose all the costs
associated with its auctions such as the administration fees and
commission structure. This information is public knowledge and the
applicant can't claim exclusive rights to it.
CONCLUSION
[25]
Whether information can be classified as confidential
is
a factual question and can only be determined on a case to case
basis. Ordinary general information about a business is not
confidential simply because the proprietor defines it as such. In
Alum-Phos
(Pty) Ltd v Spatz
[4]
,
the court held that in order to qualify as confidential information,
such information must comply with the following three requirements:
(a)
It must involve and be capable of application in trade or
industry; that is it must be useful.
(b)
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 closed circle of persons.
[5]
(c)
The
information objectively determined must be of economic value to the
person seeking to protect it.
[6]
[26]
General knowledge and skills acquired by the employee during
employment with a particular employer may be used once they leave
the
employment, even if the new employer will benefit from such knowledge
and skills. A distinction must therefore be made between
what can be
classified as confidential information and what is classified as
employee’s general stock of knowledge. In the
matter of
Northern
Office Micro Computers (Pty) Ltd v Rosenstein,
[7]
the court held as follows, drawing this distinction:
“
The
dividing line between the use by an employee of his own skill,
knowledge and experience, and the use by him of his employer's
trade
secrets is notoriously difficult to draw. An employer's trade secret
may be no more than the result of the application by
an employee of
his own skill, knowledge and experience. But, if the employee was
engaged to evolve the secret, it remains the employer's
trade secret
for all that. The employee may not simply copy it if, by copy, one
means that literally. For example, if he has conducted
a confidential
market survey for his erstwhile employer to establish what
demand, if any, exists in a particular area for
a particular type of
product, he cannot simply copy the survey and hand it to his new
employer. But non constat that
the employee may never again
set out to establish the market demand for that particular type of
product in the same area. Generally
speaking, he cannot be prevented
from using his own skill and experience to attain a particular
result, merely because it is a
result which he has achieved
before for a previous employer. I say, generally speaking, because
one can conceive of cases where
the result sought to be achieved is
so elusive that only a solution of the kind which legend has it
prompted Archimedes to say
"Eureka" will do, and the
employee has been engaged specifically to find it. In such a case, it
may well be that the
employee who has evolved the solution may have
to refrain from solving it in the same way for a future
employer.”
[27]
It
is generally accepted that a restraint will be considered to be
unreasonable, and thus contrary to public policy, and therefore
unenforceable, if it does not protect some legally recognisable
interest of the employer, but merely seeks to exclude or eliminate
competition.
[8]
In
essence, the determination centres on the fact that there must be an
interest of the employer which is deserving of protection,
and were
such interest to come into the hands of a competitor, this would give
the competitor an unfair advantage over the employer.
Information
sought to be protected that does not qualify as such can only serve
one purpose, that being the elimination of competitors.
[9]
[28]
The applicant proved that there was a valid
agreement containing the restraint clause and that the first
respondent acted in conflict
therewith. The question is whether there
is an
interest which must be protected at the termination of
the agreement.
[29]
Although the contract between the applicant and the first respondent
makes mention of “trade secrets” the applicant
does not
allege that it seeks to protect any “trade secrets”. The
confidential information it seeks to protect is the
applicant’s
data base which contains transaction history and details of customers
and service providers and its software
programme. It is not clear
from the applicant’s founding affidavit why this information is
confidential. The software program
the applicant utilizes is
available to all its customers and is not unique to the applicant.
There are also no allegations that
the first respondent has intimate
knowledge of the design of the software program. Although it is not
in dispute that the applicant
and the second respondent are
competitors in the auctioneering business , it is difficult to
comprehend under which circumstances
the details of service providers
and purchasers of an auctioneering business could be confidential.The
applicant failed to explain
why, in the context of the auctioneering
business, the applicant’s data base, which contains the details
of customers, service
providers and purchasers is confidential and
worthy of protection. The applicant merely contends that the “
key
to its success is, inter alia, its employees and their expertise, its
business model, the business relationship it has built
up with its
clients, service providers and purchasers and its knowledge of its
trade, and product”.
This is an overly broad and general
statement to make. It does not explain why, if this information ends
up in the hands of the
second respondent, it would give the second
respondent an unfair advantage. It further does not explain why a
purchaser would follow
the first respondent to participate in the
second respondent’s auctions and not, for example, participate
in both. The first
respondent is not a salesperson that only sells to
a selected group of people. The applicant is in the business of
auctioneering.
[30]
A protectable interest in the form of customer connections does not
come into being by simply having contact with an employer’s
customers. The existence or otherwise of such relationships is a
question of fact and depends on the nature of the employees’
duties; the frequency and duration of the contact with customers;
where such contact takes place; what knowledge he or she gains
of
their requirements and business; the general nature of their
relationship; how competitive the rival businesses are; and whether
there is evidence that customers were lost after the employee left.
In
Bridgestone
Firestone Maxiprest Ltd v Taylor
[10]
it was
accepted that:
“
[o]nce it is
established that there is an agreement, the contract must be
enforced, unless the party sought to be restrained shows
that the
party seeking to enforce the restraint has no protectable interest,
which protectable interest may take the form of trade
secrets or
confidential information, or goodwill or trade connections, i.e. he
must discharge onus of proving that at the time
the enforcement is
sought, the restraint is directed solely to the restriction of first
respondent competition with the ex-employer
(the covenantee); and
that the restraint is not at that time reasonably necessary for the
legitimate protection of the covenantee’s
protectable
interests, being his goodwill in the form of trade connections and
his trade secrets“.
[31]
The goodwill the first respondent has generated is only mentioned by
the applicant in general terms. It is trite that “
goodwill”
is not something which is easy to define. It has many
different connotations depending upon the context in
which it is
used.
[11]
The
applicant further failed to explain why the particular relationships
the first respondent has built with its clients would induce
the
customers to follow him to a new business. It is not clear from the
papers what is meant by goodwill and why it should be protected
under
the specific circumstances.
[32]
Sweeping generalisations and exaggerations permeate the applicant’s
papers.
The
proprietary interest the applicant seeks to protect and which were
enumerated in the founding affidavit, is not unique to the
applicant.
In any event, there are factual disputes in regard thereto. The
applicant lost its contract with Absa, whilst the second
respondent’s
contract with Absa is still in place. The applicant is clearly
disappointed with the situation and bemoans the
fact that the second
respondent took over the site as well as some of its employees. I am
satisfied that it is more probable that
the applicant’s
enforcement of the restraint is intended to stifle competition and
not a legitimate protection of a proprietary
right.
In
the light of the applicant’s denials,
and applying the
principles enunciated in
Plascon Evans
,
I
accept that there is no protectable interest.
[33]
In the result the following order is made:
1. The application is
dismissed with costs.
L.
WINDELL
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically to the
parties/their
legal representatives by email and by uploading it to the electronic
file of this matter on CaseLines. The date for
the hand-down is
deemed to be 23 March 2021.
APPEARANCES
Counsel
for applicant:
Advocate
M. Smit
Instructed
by:
Sarlie & Ismail Inc.
Counsel
for respondents:
Advocate A. Stoto
Instructed
by:
Victor Nkhwashu Attorneys
Date
matter heard:
9 March 2021
Judgment
date:
23 March 2021
[1]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 E-I.
[2]
Basson
v Chilwan
1993
(3) SA 742 (A).
[3]
Act
68 of 2008
[4]
[1997] 1 All SA 616
(W).
[5]
See
also
Telefund
Raisers CC v Isaacs
1998 (1) SA 521
(C) at 528E.
[6]
At
632F-624A.
[7]
1981
(4) SA 123 (C).
[8]
Automotive
Tooling Systems (Pty) Ltd v Wilkins
2007
(2) SA 271
(SCA) at [8]. Also see Neethling
Unlawful
Competition
above
fn 29 at 20 fn 46.
[9]
Basson
v Chilwan
[1993] ZASCA 61
;
1993
(3) SA 742
(A) 767D.
[10]
2003 JDR 0203 (N) at p6.
[11]
See
Protea
Holdings Ltd and Another v Herzberg and Another
1982
(4) SA 773
(K)
at
786G-787E