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[2018] ZAECPEHC 27
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City Paint & Tool (Pty) Ltd v Chamberlain and Another (1461/2018) [2018] ZAECPEHC 27 (26 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
no: 1461/2018
Date
heard: 31 May 2018
Date
delivered: 26 June 2018
In
the matter between:
CITY
PAINT & TOOL (PTY)
LTD
Applicant
vs
KEVIN
CHAMBERLAIN
First
Respondent
DAR
AUTOMOTIVE (PTY)
LTD
Second
Respondent
JUDGMENT
MSIZI
AJ:
INTRODUCTION
[1]
The applicant conducts business as,
inter alia,
a distributor
and retailer of paint (for residential, industrial, automotive and
marine applications) and hardware, from nine branches
located in the
Eastern and Western Cape, namely, North End and Walmer, Port
Elizabeth; Uitenhage; Humansdorp; Queenstown; East
London;
Pletternbeg Bay; Kynsna and George.
[2]
The first
respondent was employed by the applicant from 6 February 2006 to 16
December 2016. During the course of the employment
the applicant and
the first respondent concluded three restraint of trade agreements at
different time.
[1]
[3]
He commenced on 6 February 2006 as a manager of the applicant's
branch in Uitenhage where there were 7 employees. Later he was
promoted to a sales manager in Port Elizabeth in charge of 1O sales
representatives. In this position he was responsible for all
sales in
George; in the Western Cape; Uitenhage and North End branches of Port
Elizabeth. He regularly travelled to George and
Uitenhage to visit
clients in addition to visiting the ones resident in Port Elizabeth.
[4]
On 1 January 2013 the first respondent was again promoted to sales
director. This position entailed substantially the same duties
as
those of a Group Sales Director. In this position he was responsible
for all sales in George; Uitenhage and North End in Port
Elizabeth.
As such he would travel regularly to George and Uitenhage visiting
clients including those in Port Elizabeth. He was
in charge of 20
sales representatives and 4 technical sales representatives. On the
same date he was also made a statutory director
of the applicant.
[5]
On 15 July 2016, the first respondent returned to the employ of the
applicant as a sales manager. On 19 July 2016 the parties
signed a
new restraint of trade agreement. He resigned from the employ of the
applicant on 16 December 2016. In February 2017 he
assumed employment
with the second respondent.
[6]
The second respondent is a supplier of industrial and automotive
engineering components, a distributor of and retailer of sikken
automotive paints. The second respondent conducts business in Port
Elizabeth; Johannesburg; Cape Town; Pretoria; Durban; Bloemfontein;
George; Nelspruit and Polokwane.
HISTORICAL
DEVELOPMENTS
[7]
In September 2017, the second respondent entered the automotive paint
business selling sikken paint. This was seven months after
the first
respondent commenced his employment with the second respondent and
nine months since the latter left the applicant. At
the time the
applicant was oblivious to this development.
[8]
On 2 October 2017, Plastic Bumper Repairs ("BPR"), then a
client of the applicant, terminated its business relationship
with
the applicant and started using sikken paints supplied by the second
respondent as a replacement of the paint supplied by
the applicant.
Applicant also heard rumours that the first respondent played a role
in the termination of this contract.
[9]
On 8 November 2017, Swan Craft Panelbeaters ("SCP"),
another client of the applicant also terminated its business
contract
with the applicant and commenced using sikken paint supplied by the
second respondent.
[10]
In January 2018, Technodent, another client of the applicant,
underwent a trial of sikkens paint supplied by the second respondent.
On 12 February 2018, it terminated the supply of the paints by the
applicant and is now supplied sikken paints by the second respondent.
Technodent was responsible for an average of R230 000.00 per month
for purchases from the applicant.
[11]
Premier Body Works (PBW) another client terminated its supply
agreement with the applicant and contracted with the second
respondent for the supply of sikken paint. PBW generated about R80
000 per month for the applicant. On 12 March 2018, CP Nel, another
client, also followed suit. C P Nel was worth R115 000.00 per month
of the revenue of the applicant. Hardly a week later, on 23
March
2018 another client S&Z requested the applicant to remove its
paint bank with which the applicant uses to dispense its
paint at S&Z
premises. The applicant installs paint banks in the premises of its
customers premises to dispense its paint in
the site of its clients.
[12]
Within a space of a month the applicant lost three premium clients to
the second respondent. At this point there was a noticeable
definite
migration of the customers of the applicant to the second respondent.
[13]
This culminated in the launch of the present application on 19 April
2018, brought by way of semi urgency. The applicant seeks
a final
interdict in the following terms:
"2
The First
Respondent is interdicted and restrained from:
2.1
Approaching
any of the clients of the Applicant with
a
view to persuading
those clients to cease doing business with the Applicant;
2.2
Being
concerned in any business which is competitive or likely to be
competitive with the business of the Applicant, including but
not
limited to the Second Respondent, whether as principal agent.
partner, director, employee secretary of consultant, within the
Eastern Cape Provice for
a
period of 3 (three) years, and
within
a
200 (two hundred) kilometre radius of the magisterial
district of George for
a
periods of 2 (two) years from 16
December 2016."
[14]
In challenging this application, the first respondent has raised
three issues: lack of urgency; absence of a protectable interest
and
lack of breach. In the event that it is unsuccesful in challenging
this application on these grounds it made a tender. This
tender has
been rejected by the applicant.
URGENCY
[15]
The respondents were served with the application on 19 April 2018.
The first respondent was granted until 26 April 2018 to
indicate
whether he intended to oppose or not. He was also given until 14 May
to file his opposing papers. The application was
set down for
argument on 31 May 2018.
First
Respondent's contention
[16]
The first respondent contends that this application is not urgent or
if the Court finds it is, such urgency is self created
by the
applicant. As such, this application should be struck off the roll
with costs.
[17]
To support his resistance of the application, the first respondent
relied on the following factors. The application was brought
15
months after the termination of the employment contract between the
first respondent and the applicant. At least one of the
applicant's
directors became aware of the first respondent's new employment as
early as February 2017. Furthermore, applicant had
been aware since
2013 when it was approached by the second respondent that the latter
had desires to enter the automotive paint
industry. Therefore,
applicant should have acted in February 2017 not in April 2018.
[18]
Even on its own version, the applicant has problems regarding
urgency. According to the applicant it only became aware that
the
second respondent intended to sell automotive paints in July 2017,
yet it never brought this application then. Instead, on
2 August 2017
it sent the first respondent a letter through its erstwhile attorneys
in which it warned him that he was in breach
of the restraint of
trade. First respondent submitted that abundantly clear from this was
that already then, in August 2017 the
applicant believed that the
second respondent was in breach, yet did not institute any
proceedings. The applicant remained lethargic
even after learning
that in October 2017; November 2017; January/February 2018 and March
2018 it was losing clients to the second
respondent.
[19]
First respondent then urged the Court to reject the explanation of
the applicant for its apparent delay in bringing this application.
He
argued that the explanation proffered by the applicant that it had
not brought this application earlier because it relied on
the denial
of the attorneys of the first respondent that he was not in breach of
the restraint, and also acted on the advice of
its erstwhile attorney
that it first had to establish the involvement of the first
respondent in the exodus of its clients to the
second respondent. In
arguing for the rejection of this explanation, the first respondent
submitted that the applicant could not
have earnestly relied on the
denial of the first respondent's attorneys after it had itself
established that its interest was being
harmed. He pointed out on its
own version applicant contended that it had clear evidence of the
breach of restraint. In those circumstances
the advice from its
attorneys is thus clearly no excuse.
The
Applicant's response
[20]
The explanation of the applicant was that when it first learnt of the
employment of the first respondent by the second respondent
in
February 2017, the former had assured it that the second respondent
was not a competitor in the automotive sector and did not
intend to
enter that business. He thus assured the applicant that there was no
need for the reminder about the restraint.
[21]
Later in July 2017 applicant only learnt of the intention of the
second respondent to enter the automotive business. At that
point,
the second respondent had not commenced that business. This prompted
a warning to the first respondent in the letter of
August written by
the applicant's former attorneys. It then relied on the denial of the
first respondent's attorneys of any culpability
of the first
respondent. However, this response had not explained the actual job
of the first respondent and the applicant through
its attorneys
requested a job description of the first respondent in October 2017
to satisfy itself. The first respondent's attorneys
only responded in
January 2018 providing the description and denying the breach.
[22]
During the period between 12 February and 12 March 2018 the
applicant lost three premium clients to the second respondent. On 23
March the applicant received information that the first respondent
had visited one of its then clients, S&Z in George. The
applicant
had received this information directly from S& Z employee
confirming that the first respondent was in direct contact
with them
about this move of business. The applicant's employee also took a
photo of the first respondent at the site of S&Z
on 23 March
2018.
[23]
In his answering affidavit even though the first respondent
denied being instrumental in the removal of the businesses lost to
the
second respondent, he confirmed that he was in direct
communication with Technodent; PBW and S&Z.
[24]
At the point of being advised to gather more information
linking the first respondent, the applicant only possessed
information
in the form of rumours and suspicions which it could not
directly link to the first respondent, a
lacuna
it was advised
was by its erstwhile attorneys, was fatal. By April it had changed
its attorneys to the present. That is when things
moved forward.
[25]
Though the application was brought on the basis of urgency,
the time given for response was adequate and the first respondent has
not been prejudiced, he certainly did not raise any prejudice in his
papers.
[26]
I
have considered the explanation proffered by the applicant in
particular how the applicant has explained every stage in the journey
towards bringing this application. This detail has provided this
Court with the essential information regarding the time of bringing
the application in relation to when the applicant became aware of the
harm to it. I have also considered and I am persuaded by
applicant's
counsel that applications to enforce restraint of trade agreements
are, by their nature characterised by a measure
of urgency.
[2]
I have also considered the merits of the applicant's case. I am also
satisfied that the applicant did not drag its feet in this
instance.
The first respondent has also not shown any prejudice suffered as a
result of the urgent application. Dictates of justice
require that
this Court should entertain the application.
THE
LAW APPLICABLE
Proper
Approach to Final lnterdictory Relief
[27]
The applicant seeks a final interdict. The requirements for a
final interdict are: a clear right; injury actually committed or
reasonably
apprehended; no other suitable alternative remedy.
[28]
Motion proceedings are not designed to resolve factual
disputes. Unless concerned with interim relief, such applications are
all
about the resolution of legal issues based on common cause facts.
In the absence of special circumstances they are not used to
resolving factual issues because they are not designed to determine
probabilities.
[29]
In
Plascon- Evans Paint Ltd v Van Riebeeck Paints (Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA 623(A)
634-635,
the rule was
established that where in motion proceedings disputes of fact arise
on the affidavits, a final order can be granted
only if the facts
averred in applicant's affidavits, which have been admitted by the
respondent, together with the facts alleged
by the latter, justify
such order. It may be different if the respondent's version consists
of bald or uncreditworthy denials,
raises fictitious disputes of
fact, is palpably implausible, farfetched, all so clearly untenable
that the Court is justified in
rejecting them merely on the papers
see
National Director of Public Prosecutions v Zuma
2009
(2) SA 279
SCA [26].
[30]
As
regard specifically applicants regarding restraint of trade, in
Omni
Technologies (Pty) Ltd v Barnard and Others
[2008]
2 All SA 207
with reference to
Reddy
v Siemens Telecommunications (Pty) Ltd
2007
2) SA 486
(SCA) the Court explained the position to be taken when is
requested to implement a restraint of trade provisions. It held that
the Court exercises a value judgment on its assessment of facts seen
in the light of both the common law principles and the cositutional
values (the first is essentially embodied in the maxim
pacta
servanda sunt)
.
The second is reflected in section 22 of the Constitution, that every
citizen has the freedom to choose his or her occupation.
[3]
Legal
Principles Applicable to agreements in Restraint of Trade
[31]
The
locus classicus
on this subject is
Magna
Alloys and Reasearch (SA) (Pty) Ltd v Ellis 1984(4)
SA 874
(A) at 897F-898E, where the legal position was summarised,
inter
alia,
as follows:
"12.1 There is
nothing in our common law which states that a restraint of trade
agreement is invalid or unenforceable;
12.2 It is a principle of
our law that agreements which are contrary to the public interest are
unenforceable. Accordingly, an agreement
in restraint of trade is
unenforceable if the circumstances of the particular case are such,
in the court's view, as to render
enforcement of the rstraint
prejudicial to the public interest;
12.3 It is in the public
interest that agreements entered into freely should be honoured and
that everyone should, as far as possible,
be able to operate freely
in the comercial and professional world;
12.4 In our law the
enforcement of a restraint should be determined by asking whether the
enforcement will prejudice the public
interest;
12.5
When
someone alleges that is not bound by a restraint to which he had
assented in a contract, he bears the onus of proving that
enforcement
of the restraint is contrary to the public interest"
[4]
[32]
In
our law, a party seeking to enforce a contract in restraint of trade
is required only to invoke the restraint agreement and prove
breach
thereof. In
Basson
v Chilwan
[5]
Botha JA in a separate judgment held:
"The incidence of
the onus in a case concerning the enforceability of a contractual
provision in restraint of trade does not
appear to me in principle to
entail any greater or more significant consequences that in any other
civil case in general. The effect
of it in practical terms is this:
the convenantee seeking to enforce the restraint need do no more than
to invoke the provisions
of the contract and prove the breach; the
covenanter seeking to avert the 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 covenanter is burdenend with the onus because
public
policy requires that people should be bound by their
contractual undertakings. The convenantor is not so bound, however,
if the
restraint is unreasonable, because public policy
discountenances unreasonable restrictions on people's freedom of
trade. In regard
to these two opposing considerations of public
policy, it sems to me that the operation of the former is exhausted
by the placing
of the onus on the covenanter; it has no further role
to play thereafter, when reasonableness or otherwise of the restraint
is
being enquired into."
[33]
It
is trite that all an applicant is required to show is merely that the
respondent could utilise the applicant's confidential information
and
not that he actually did
[6]
.
PROTECTABLE
INTEREST AND BREACH
[34]
It is common cause that the first respondent was employed by
the applicant for more than 11 years, in very senior positions. He
understands the automotive paint industry in and out especially in
the Eastern Cape and part of the Western Cape as he had been
in the
industry for about 21 years since he left school. He also operated in
Port Elizabeth and its surrounds up to George in the
Western Cape.
[35]
It is also not denied that during his employment with the
applicant he acquired secrets of the trade and confidential
information
regarding the business strategy of the applicant. He was
privy to the applicant's pricing and marketing strategy and the
system
it uses in this respect. He also acquired privileged
information regarding the special automotive paint used by, supplied
and distributed
by the applicant. He also received training in these
products. In this context he learnt about the strength and weaknesses
in the
business of the applicant and the needs of applicant's
clients.
[36]
All three restraint of trade agreements were premised on the
fact that during his employment, the first respondent would access
confidential information of the applicant. Confidential information
included trade secrets. He is thus restrained from
inter alia,
enticing applicant's clients to another supplier or be concerned
in any business which is in competition or likely to be in competion
with the applicant. He is equally restrained from competing with the
applicant in any activity relating to the manufacturing and
marketing
and selling products in respect of which the applicant is trading or
any related business. He is prohibited from soliciting
any business
opportunity sought by the applicant or utilise the information or
knowledge accummulated by the applicant in terms
of which he stands
to profit at the expense of the applicant. One of the issues
in
casu
is which of the three agreements is operational.
[37]
However, the first respondents contended that he left the employ of
the applicant in December 2016. The information relied
on by the
applicant, its pricing and marketing strategy, dates back
approximately 18 months to 16 December 2016. The applicant
conceded
that its pricing changes at least twice a year in April. Accordingly,
its pricing had changed at least twice since the
he left applicant's
employ. Any pricing he may have been aware of is of no longer
relevant. Therefore the applicant no longer has
a protectable
interest in that information as it is stale.
[38]
A pricing strategy is more than just the actual prices. If his
submission were to be sustained, that would be a distortion
of what a
strategy is and the reduction of the issue. This point therefore
should be rejected.
[39]
As regards contacts with the applicant's customers, first respondent
submitted that the relations he has with some of the applicant's
customers predate his employment by the applicant. Some are his
family and others schools friends etc. He was born and bred in
Port
Elizabeth, which is a small town and there is bound to be an overlap
in the relationships.
[40]
This stance has to be taken together with what he stated In
his answering affidavit. He averred that during the course of his
employment
with the applicant, the applicant had relied on the
previous networks he had gathered from his previous employer where he
worked
for ten years before joining the applicant. From this it is
abundantly clear that the importance of these networks is not lost to
him. It is therefore not open to him to dismiss the pivotal role of
these networks by simply saying they are relationships that
he built
before he entered the employ of the applicant, as he is doing. The
fact of the matter is that there is value in those
networks which for
the applicant translates into a protectable interest.
[41]
Though it is undeniable that some of the customers that have
now emigrated to the second respondent had been the second
respondent's
existing customers as it supplied these customers with
automotive parts, that is a nuetral point for the first respondent.
The
restraint prohibits him from interfacing with these customers.
Any thing else is irrelevant.
[42]
I am satisfied that a protectable interest exists.
[43]
The first respondent's submitted that in the event that this
Court finds that such protectable interest exists, he has not
breached
the agreement.
[44]
The first respondent denies that he ever approached
applicant's customers. According to him, those who migrated to the
second respondent
were disgruntled and unhappy with applicant's
service. They actively sought an alternative supplier. Losing these
customers was
thus inevitable, whether to the second respondent
or·another competitor. These customers' choice of the second
respondent
was due to the effort of
Messrs Nortier and Everard
the
second applicant's sales representative. He therefore denies any
breach of the restraint of trade.
[45]
In 2013, whilst the first respondent was still employed by the
applicant, the applicant was approached by the second respondent.
The
latter revealed its desire to enter the automotive paints industry
and was in a way testing waters with the applicant on a
possible
collaboration. Nothing ever transpired between the two after this
meeting. The applicant only became aware in July 2017
that the second
respondent intended to enter the automotive paint industry. This was
five months after the first respondent entered
the employ of the
second respondent. In September 2017, the business commenced. This is
in direct competition with the applicant.
Soon thereafter a high
number of the customers of the applicant move over to the second
respondent the new employer of the first
respondent. the first
respondent had been instrumental in securing at least three of these
customers for the applicant. It is highly
impossible that the
migration of the customers of the applicant to the second respondent
is caused by a mere coincidence.
[46]
During his employment by the applicant, the first respondent
held senior positions. The seniority of the position he held with the
applicant is a material consideration- see
Dickson Holdings
Group (Pty) Ltd v Du Plessis
2008 (4) SA 214
(N)
at
paragraphs [34] and [38]. I also considered what was said in
Reddy
at paragraph [20] that:
"Reddy is in
possession of confidential information in respect of which the risk
of disclosure by his employment with a competitor,
assessed
objectively, is obvious. It is not that the mere possession of
knowledge is sufficient, and this is not what was suggested
by Marais
J in BHT Water: Reddy will be employed by Ericsson, a 'concern which
carries on the same business as [Siemens]' in a
position similar to
the one he occupied with Siemens. His loyalty will be to his new
employers and the opportunity to disclose
confidential information at
his disposal, whether deliberately or not, will exist."
[47]
He was responsible for the applicant securing three of the
four customers who have now migrated to the second respondent. The
natural
inference must be that he was involved in securing these
customers for the second respondent through
Nortier.
Applicant
argued that this inference is further supported by the first
respondent's failure to describe what his job as a National
Sales
Manager of the applicant in fact entails. I agree with that.
[48]
Also time spent by first respondent in the employ of the
applicant is significant in considering his range of influence - see
Value Logistics Ltd v Van Zyl
[2009] JOL 23613
(GNP)
where the following was held:
"Common sense should
prevail that within the four years that the first respondent spent in
the employ of the applicant he must
have learnt of the style of
entertainment offered by the applicant to its customers and must also
have obtained trade secrets as
protectable proprietary interests of
the applicant. The first respondent during that period must have
fostered a close and ongoing
relationship with the customer
connections and built up extremely close relationships with the
applicant's customers."
WHICH
RESTRAINT OF TRADE IS OPERATIONAL
[49]
The first respondent contended that the operating agreement is
the one signed on 19 July 2016. In contending for the application
of
a two years restraint, the first respondent refers to the history of
the relationship with the applicant and the restraint of
trade
agreements concluded during the subsistence of the employment.
[50]
The first agreement in February 2006 on commencement of the
employment with the applicant bound him to a year's restrain from the
date of termination of that employment.
[51]
The second agreement was signed in January 2013 when the first
respondent became a sales director. It prohibited him from being
concerned with any business which is competitive with or likely to be
competitive with the business of the applicant for a period
of three
(3) years after the termination of the employment and within the
province of the Eastern Cape. He retained this position
for three and
a half years before he resigned on 11 July 2016.
[52]
Explaining his stance, the first respondent proferred the
following explanation. Along the way, in 2016 the relations with the
applicant
became strained eventually he was compelled to resign by
the applicant. He was then persuaded to return a week later in a
lower
position. On his return the previous agreement was abandoned a
new one was concluded.
[53]
The first respondent posits that the only operating restraint
is the last one concluded on his return on 19 July 2016. He argued
that the 2013 contract was novated and superceded by the July 2016
contract. Therefore, the terms of the previous agreement cannot
be
used to vary or defeat the 2016 agreement.
[54]
Based on this he made a "without prejudice" tender
of the terms of restraint.
"That the first
respondent be interdicted and restrained :
"(a) until 16
December 2018 from approaching any clients of the applicant with a
view to persuading those clients to cease
to do business with the
applicant;
(b)
from using the confidential information of the applicant (to the
extent that it exists) for his own benefit or for the benefit
of
a
third party including the second respondent;
(c)
from disclosing the confidential information of the applicant (to the
extent that it exists) for his own benefit or the benefit
of a third
party including the second respondent."
[55]
The applicant's stance is that all three restraint agreements
are operational either concurrently and from the date of the
termination
of the employment of the applicant in 16 December 2016.
Alternatively, each agreement operates severally in respect of each
position
held, further alternatively, that the restraint concluded
upon the first respondent's demotion to sales manager applies as such
was a written novation of a previous restraint. It therefore rejected
the tender of the first respondent.
[56]
The
difficulty with the first respondent's proposition is the following.
The purpose of a restraint is to eliminate the possible
sabotage of
the business of a former employer. It precludes a former employee
who, relying on the intimate knowledge of the former
employer's
business, ventures out to reestablish himself/herself riding on the
advantages of the information and the networks acquired
whilst with
the former employer. The extent of a restraint naturally has to be
determined by the extent of the risk. So, the position
occupied by an
employee is a determining factor.
[7]
[57]
When the first respondent was the sales director, his area of
business was expanded; his access to knowledge about the business
naturally also increased. He was elevated to the upper echelons of
the business. He also became the statutory director of the company.
This must have informed the period of the restraint. Surely then he
accessed more intimate information of the business of the applicant.
He remained in this position for three years and as such must have
accessed that information.
[58]
The knowledge he had acquired in the three and half years he
was a sales director was still very much alive when in July 2016 he
became a sales manager. That knowledge and relationships fostered
with the applicant's customers did not disappear in the week
he had
resigned. His contention otherwise does not reside well with logic.
His interpretation makes a mockery of the rational and
purpose of a
restraint of trade.
[59]
Therefore, I am in agreement with the applicant that this
Court should accept that there was a continuous employment
relationship
albeit different positions, with the first respondent.
In all the positions he held, he had access to the confidential
information
of the applicant and developed strategic relationships
with the applicant's clients. This justified that the restraints of
trade
agreements should apply cumulatively.
[60]
I am equally persuaded that the radius of the restraint must
extend to George given the first respondent's sphere of influence at
the time he was in the employ of the applicant. This is also anchored
by the fact that one of the clients who has migrated to the
second
respondent is based in George and the first respondent himself does
not deny that he was in contact with that client.
COSTS
[61]
In the notice of motion the applicant spelt out that it only
sought costs against the second respondent in the even that it
directly
or indirectly opposed the relief sought against the first
respondent. Otherwise it only sought costs against the first
respondent
only. The second respondent did not oppose this
application.
[62]
I can see no reason for costs not to follow the event.
ORDER
[63]
In the result, the following order is issued:
1. The First Respondent
is interdicted and restrained from:
1.1
Approaching any of the clients of the Applicant with a view to
persuading those clients to cease doing business with the Applicant;
1.2
Being concerned in any business which is competitive or likely to be
competitive with the business of the Applicant, including
but not
limited to the Second Respondent, whether as principal agent.
partner, director, employee secretary of consultant. within
the
Eastern Cape Provice for a period of 3 (three) years, and within a
200 (two hundred) kilometre radius of the magisterial district
of
George for a periods of 2 (two) years from 16 December 2016."
2. The costs of the
application shall be paid by the first respondent.
________________________
N
MSIZI
Acting
Judge of the High Court
Appearances:
For
the Applicant
Adv JJ Nepgen
Instructed by:
Joubert Galpin Searle
Port Elizabeth
For
the Respondent
Adv P Bosman
Instructed by:
Eversshed Sutherland (SA)
Inc.
C/O Greyvensteins
[1]
I deal with each of the agreements later.
[2]
MMA Security Services CC t/a Broubant Security and Another v Brian
Paul Calllanan and Another Case No. 495/10 unreported judgment
of
Kroon J delivered in Port Elizabeth High Court on 31 May 2010 (See
paragraph [20]
[3]
MMA Security Services CC (supra) at paragraph [14]
[4]
These principles have been reaffirmed in other decisions of our
courts. Sasson v Chilwan and Others
[1993] ZASCA 61
;
1993 (3) SA 742
(A) at 7676-H
and 776h-777A-B; Kwik Kopy (SA) (Pty) Ltd v Van Haarlem and Another
1999 (1) SA 472
(W) at 484 (E); Rawling and Another v Caravan Truck
(Pty) Ltd
[1992] ZASCA 204
;
1993 (1) SA 537
11R
SA BV (Inc in the Netherlands) t/a Institute for International
Research v Tarita
2004 (4) SA 156
(W) at
[5]
At 776H-J-777A-B. See footnote 3 above,
[6]
11R SA BV (Inc in the Netherlands) t/a Institute for International
Research v Tarita
2004 (4) SA 156
(W) at 1664H-167A/B
[7]
Reddy (supra)