CJP Chemicals (Pty) Ltd v Dapshis and Another (981/2021) [2021] ZAECPEHC 40 (29 June 2021)

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[2021] ZAECPEHC 40
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CJP Chemicals (Pty) Ltd v Dapshis and Another (981/2021) [2021] ZAECPEHC 40 (29 June 2021)

OF
INTEREST
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
No: 981/2021
In
the matter between:
CJP
CHEMICALS (PTY)
LTD
Applicant
and
JOHNATHON
DAPSHIS                                                                                     First
Respondent
GRANGE
HILL INVESTMENTS (PTY) LTD
t/a
CARSTEN CHEMICALA AND CONSULTANTS
Second
Respondent
JUDGMENT
Govindjee
AJ:
Background
[1]
The applicant is a company carrying on business as a wholesaler
and
distributor of chemical raw materials and allied products. It
approaches the court on a semi-urgent basis to enforce a restraint
of
trade covenant and seeks an interim interdict preventing the first
respondent’s involvement and employment with the second respondent
anywhere in the country. It seeks immediate application of the
interdict (‘the interim interdict’) pending the final
determination
of relief set forth in part B of the Notice of Motion
(but not beyond 30 October 2022). That part reflects the applicant’s
intention
to approach the court in future to seek relief in almost
identical terms for a period of two years from 30 October 2020 (‘the
final
interdict’). No relief is sought against the second
respondent.
[2]
The first respondent (‘Dapshis’) is presently employed by
the
second respondent (‘Carsten Chemicals’) as its National Sales
Manager, living and working in Gqeberha. Carsten Chemicals
operates
in direct competition to the applicant.
[3]
The court is required to decide the following issues:
(a)
Whether Dapshis’ application to strike out certain parts of the
applicant’s replying affidavit
should be granted;
(b)
Whether the matter was sufficiently urgent to justify the departure
from the Rules of Court;
(c)
Whether the applicant is effectively seeking final relief;
(d)
Whether the requirements for interim or final relief have been met;
(e)
Whether the restraint provisions in question offend against public
policy and whether the
applicant has established it has any
protectable proprietary interest.
The
application to strike out
[4]
Rule 23(2) provides as follows: ‘Where any pleading contains
averments which are scandalous, vexatious, or irrelevant, the
opposite party may, within the period allowed for filing any
subsequent
pleading, apply for the striking out of the matter
aforesaid, and may set such application down for hearing in terms of
paragraph
(f)
of subrule (5) of rule (6), but the court shall
not grant the same unless it is satisfied that the applicant will be
prejudiced in
the conduct of his claim or defence if it be not
granted.’
[5]
Importantly,
the key consideration is that of prejudice.
[1]
If the court is in doubt as to the relevancy of any matter, such
matter will not be struck out.
[2]
[6]
The
first issue raised by the application to strike relates to portions
of the replying affidavit pertaining to the alleged lack of
disclosure on the part of the first respondent at the time of his
resignation, and confirmatory affidavits of Breytenbach and
Msimang.
[3]
Given that there is
no dispute that the first respondent left the service of the
applicant to take up employment with the second
respondent,
[4]
it is doubtful whether the details pertaining to the alleged failure
are relevant. Given that doubt, the paragraphs in question (and
the
confirmatory affidavits) will not be struck out. I am in any event
not satisfied that the applicant will be prejudiced in this
regard. I
hold the same view in respect of paragraphs 11.10 to 11.12 (including
the confirmatory affidavit of Stemmet), and the third
sentence of
paragraph 11.21.
[7]
I do
agree, however, that the last two sentences of paragraphs 11.8; the
second sentence of paragraph 11.16 and the words “he misled
the
Applicant as to his intentions, and designedly so”, in paragraph
11.24, should be struck out due to their scandalous wording.
[5]
Paragraph 11.20 consists of irrelevant hearsay evidence to be struck
out.
[8]
The
other paragraphs or sentences that form the basis for the application
to strike are alleged to contain ‘new evidence material’
that the
respondent argues ought to have been included in the founding
affidavit. These paragraphs (12.2.2; 12.2.4; 12.2.6; 12.3.1;
12.3.2;
14.3; 15.2; 15.3; 16; 23; 25; 27.2; 27.3; 27.4; 27.5; 28.5; 29.2;
29.3; 32.2 and 34) relate to the merits of the matter and
contain
material facts. They respond, in essence, to the first respondent’s
averments (in paragraphs 40; 49;  50; 51; 67.2;
69.4, 75.3;
75.4; 77.2; 79.5; 81.5) relating to the nature of the applicant’s
business, commodities raw materials, suppliers,
customers, costs,
tenders, procurement, the role of regional managers, the first
respondent’s lack of contact with suppliers, whether
the
information he held was secret, the process leading to a quotation,
limited access to ‘commercially sensitive information’
or ‘new
customers’. They constitute a response to the first respondent’s
answering affidavit, which seeks to discharge the
onus of proving
that enforcement of the restraint would be contrary to the public
interest.
[6]
[9]
There
is clear authority supporting the applicant’s approach:
[7]
‘
Counsel for the
respondents complained that the applicant’s affidavits in reply
contain new matter and that the applicant has attempted
to make out a
case in reply. The
onus
is on the respondents to establish, as
their defence, that the applicant has no proprietary interests worthy
of protection, and they
were required to set out facts germane to
those contentions in their answering affidavits. The applicant was
entitled to deal with
such facts in its replying affidavits. The
respondents would have been entitled to apply for leave to file
further affidavits to
deal with the matter raised in reply by the
applicant…’
[10]
Mr
Richards sought to rely on various judgments, particularly
Smart
Office Connexion EC (Pty) Ltd v Van der Merwe and Another
,
[8]
to support the contention that the applicant had provided
insufficient detail in its founding affidavit to trigger the onus on
the
first respondent. The essence of the case in respect of the
protectable interest should, in other words, appear in the founding
affidavit.
As Mr Blou SC pointed out, the remaining authorities cited
in the paragraph relied upon in
Smart
Office Connexion
in fact suggest something different. Botha JA in
Basson
v Chilwan and Others
,
[9]
for example, states as follows:
‘
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 than in any other
civil case in general. 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…’
And
in
Experian
South Africa (Pty) Ltd v Haynes and Another
:
[10]
‘
The position in
our law is, therefore, that a party seeking to enforce a contract in
restraint of trade is required only to invoke
the restraint agreement
and prove a breach thereof. Thereupon, a party who seeks to avoid the
restraint bears the
onus
to demonstrate, on a balance of
probabilities, that the restraint agreement is unenforceable because
it is unreasonable.’
[11]
Cases
such as
Rawlins
confirm the correct position:
[11]
‘
Applying the
principles laid down in
Magna Alloys and Research (SA) Lty Ltd v
Ellis…
the matter turns on whether Rawlins has shown that,
judged at the time of the application, the restraint was an
unreasonable one and
therefore against the public interest. He sought
to do this along traditional lines. His case was that the respondent
had no proprietary
interest which required protection; in particular
no misuse or exploitation of either its trade secrets or trade
connections was
involved. It was furthermore argued that the
restraint was in any event too wide, particularly as to time…I
shall assume in favour
of Rawlins that he discharged the
onus
of proving that no information confidential to the respondent was
disclosed to him during his employment. This leaves for consideration
the question whether Rawlins negatived the second type of proprietary
interest, ie trade connections. It follows from what I have
said
that, unless he did, the restraint clause, not having been shown to
be unreasonable, was enforceable.’
[12]
And
yet, various cases cite the applicable principle in respect of onus,
only to seemingly apply that principle in a fashion that
requires
something more on the part of the party seeking to enforce the
restraint.
[12]
The judgment of
the court
a
quo
in
Sibex
Engineering Services (Pty) Ltd v Van Wyk
[13]
was criticised for precisely that reason by Harms J (as he then was)
on appeal:
[14]
‘
The Court
a
quo
correctly
held that in the light of
Magna
Alloys and Research (SA) (Pty) Ltd v Ellis
…the
onus
was upon the first respondent to prove that the clause should not be
enforced since its enforcement would be contrary to public policy…it
need only be pointed out that the question is not whether “the
public interest does not require” enforcement, but rather whether
the public interest requires non-enforcement. A complete
volte
face
appears immediately after the quoted sentence and the learned Judge
stated that: “The applicant therefore has to put facts before
the
Court that its right to enforce this clause, which it is common cause
is a valid clause, is a right which protects its interests,
confidentiality of trade secrets, chemical formulae…” Whether a
volte
face
was
intended does not appear from the rest of the judgment. The
last-quoted statement, as it stands, cannot be reconciled with
Magna
Alloys
.’
[15]
[13]
The
root of that approach in more recent times appears to be the comments
in
Den
Braven
.
[16]
In the case at hand, the existence of a restraint agreement and the
first respondent’s breach is not in dispute.
[17]
In so far as the onus might be relevant, the authorities that suggest
the need for an applicant to demonstrate trade connections
through
customer contact that can be exploited, before the onus shifts to the
party seeking to avoid the restraint, would appear
to go too far.
[18]
It is the party seeking to avoid the restraint that bears the onus of
proving that the enforcement of an agreed restrictive condition
would
be contrary to public policy – perhaps because that restrictive
condition is against policy policy due to its extent or effect,
because there is no protectable interest (normally linked to goodwill
in the form of trade connection and trade secrets) or because
it is
directed solely to the restriction of fair competition with the
ex-employer.
[19]
In
Sibex
Engineering Services (Pty) Ltd v Van Wyk and Another
,
[20]
the court confirmed that a covenant in restraint is enforceable
unless the
first
respondent discharges the onus of proving that
:
‘…
at the time
the enforcement is sought, the restraint is directed solely to the
restriction of fair 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 proprietary interest, being his goodwill in the form of
trade connection, and his trade secrets.’
[14]
As
discussed below, the perceived role and importance of onus in
restraint of trade cases has been altered by the remarks of the SCA
in
Reddy
v Siemens Telecommunications (Pty) Ltd
,
[21]
even though the Supreme Court of Appeal was not called upon to
pronounce on that issue given the facts of that matter.
[22]
The incidence of onus remains directly relevant, however, for
purposes of considering whether portions of the applicant’s
replying
affidavit should be struck out for containing new material.
The first respondent’s opportunity to discharge its onus was in his
answering affidavit, to which the applicant was entitled to reply, as
indicated above.
[23]
Aside
from what is referred to in paragraph 7, above, the application to
strike out stands to be dismissed with costs.
Urgency
[15]
Proceedings
for the enforcement of a restraint of trade agreement are usually, by
their very nature, urgent.
[24]
Rule 6(12) of the Uniform Rules of Court provides that a judge may
dispense with the forms and service provided for in the rules
and may
dispose of a matter at such time and place and in such manner and in
accordance with such procedure as it deems fit. The
procedure to be
adopted should as far as practicable be in terms of the Rules. In
this case the truncated time frames afforded the
respondents just
over a week to deliver an answering affidavit in the event of
opposition, and also curtailed the time period for
submission of
heads of argument.
[16]
It is
trite that urgency of commercial interests may justify the invocation
of the subrule no less than any other interests.
[25]
The degree of relaxation of the rules and of the ordinary practice of
the court depends upon the degree of urgency of a case.
[26]
The founding affidavit explains the urgency as follows:
[27]
‘
The nature of the
applicant’s business is that supplier and customer contracts come
up for renewal on a constant basis. The urgency
is thus ongoing. The
first respondent has already taken up employment with the second
respondent. The damage that can be done to
the applicant’s business
as a result of the first respondent’s breach of the restraint
provisions contained in the Agreement
is enormous. The longer that
the first respondent remains in the employ of the second respondent,
the more damage will be caused
to the applicant’s business. This is
inevitable, particularly given the first respondent’s attitude.’
[17]
I am
satisfied that the applicant set forth sufficient assertions in its
founding affidavit, read as a whole, to establish the type
of urgency
warranting the truncation of time periods as described.
[28]
Interim
or final relief
[18]
I have already concluded, with reasons provided at the time this
matter was argued,
that the application should be treated as one for
interim relief, as prayed for by the applicant. For the sake of
completeness, the
reasons for this decision are repeated in the
paragraphs that follow.
[19]
The applicant at this stage seeks only interim relief in accordance
with part A of
the notice of motion. The first respondent raises the
issue of whether, in seeking the relief in part A and part B (dealing
with
final relief), the applicant has in fact stipulated a process
which will require this court to consider the same facts and hear the
same argument twice, with the only difference being the approach to
be applied to disputes of fact on the papers. As Mr Richards’
put
it in his heads, ‘Whether the relief sought in part A, whilst
notionally formulated as being interim relief, is in fact final
relief in its effect and whether the application should be heard on
that basis.’
[20]
Both
parties referred me to
Cipla
Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation and Others
[29]
as the leading authority applicable. I have also briefly considered
the judgment in
Cronshaw
and Another v Coin Security Group (Pty) Ltd
,
[30]
which was a case dealing specifically with a restraint of trade
agreement. Notably, Gorven AJA, writing for the majority, found the
two cases to be indistinguishable, and concluded that an order that
had been granted was not final in effect, was in form and effect
an
interlocutory interdict and not appealable.
[21]
The
judgment makes it clear that granting an interim order at the
culmination of this hearing would be genuinely ‘interim’. It
also
confirms that a court may, of course, impose reasonable conditions
along the lines mentioned in
Cronshaw
so as to limit prejudice, if necessary, in dealing with a matter on
the basis that an interim interdict is sought.
[31]
[22]
In
Cronshaw
, it had been contended that prejudice
rendered an interlocutory interdict appealable.
Cronshaw
,
as is the position in this matter, concerned an interim interdict in
support of a two-year restraint of trade. By the time the matter
was
heard by the Supreme Court of Appeal the restraint period had
expired. The prejudice raised was that the final determination
would
not be made before the restraint expired. It was submitted that what
was in form interlocutory was in effect final since the
interdict had
operated during the entire restraint period. From this judgment,
which contains a detailed survey of the issue, it
becomes apparent
that an interim interdict is always final in the limited sense that
‘time run cannot be recalled’. There is
some prejudice as a
result, but this must be taken into account in judging the balance of
convenience. The matter was struck from
the roll, the point being
that not every kind of prejudice is relevant when considering such
matters, only that which directly affects
the issue of the ultimate
suit.
[23]
The
majority stopped short of confirming
BHT
Water Treatment (Pty) LTd v Leslie and Another
.
[32]
The minority judgment of Rogers AJA considered that matter in some
depth, together with the effect of
Reddy
[33]
– those cases dealt with attempts to enforce 12-month
restraints, and where it was seemingly appropriate to consider the
applications as being substantially an application for final relief.
[24]
Significantly,
a different approach operates in cases where it is clear at the time
the court grants an interdict that the matter
will not be able to be
finally determined before the interdict in any event expires. The
BHT
approach is concerned with whether the trial court will have the
opportunity to actually decide the case finally, given the limited
duration of the legal restraint (particularly in one-year restraint
cases).
BHT
and
Reddy
were cases of that kind and the
BHT
approach, in treating an application for an interim interdict as a
final interdict, should be reserved for such instances. The case
at
hand is different, involving a two-year restraint which only expires
in October 2022. Counsel conceded that there will be ample
time for
the final relief sought in part B to be addressed, whether on an
expedited, accelerated basis occasioned by either of the
parties or
otherwise.  As Rodgers JA noted in
Cipla
:
[34]
‘
The legal test,
according to
BHT
(as apparently confirmed in
Reddy
), is
that an interdict is final in effect if the trial court will not have
another opportunity to make a final determination before
the
restraint expires. If that legal test is right, there is no avoiding
an enquiry into whether in the present case the CCP would
have had an
opportunity to make a final determination…’
[25]
I have
given serious consideration to Mr Richards’ submissions that the
material is before the court to consider the matter as an
application
for a final interdict, including the impact on the first respondent’s
employment with the second respondent, in respect
of the difference
between ‘interim’ and ‘final’. For the reasons described, an
interim order in this case would not only
be interim in form but also
interim in substance and I am satisfied that this matter be
approached on that basis.
[35]
Whether
the requirements for interim relief have been met
[26]
In an
application for interim relief an applicant is not required to
establish its right to relief on a balance of probabilities.
It is
sufficient to show that such a right is
prima
facie
established
though open to some doubt. An applicant seeking interim relief must
establish:
[36]
(a)  A clear
right or, if not clear, that it has a
prima facie
right;
(b)  An
infringement of such a right by the respondent or a well-grounded
apprehension of such an infringement;
(c)  A
well-grounded apprehension of irreparable harm to the applicant if
the interim relief is not granted, and the ultimate
relief is
eventually granted;
(d)  That the
applicant has no other satisfactory remedy; and
(e)  That the
balance of convenience favours the grant of an interim interdict.
The
court must, finally, apply a judicial discretion
[27]
The
accepted test for a
prima
facie
right in the context of an interim interdict is to take the facts
averred by the applicant, together with such facts as set out by
the
respondent that are not or cannot be disputed and to consider
whether, having regard to the inherent probabilities, the applicant
should from those facts obtain final relief at the trial. In this
case, the final relief sought is to interdict the first respondent
for a period of two years from 30 October 2020 from being engaged in
or concerned with or employed by the second respondent anywhere
in
South Africa. The facts set up in contradiction by the respondent
should then be considered and, if serious doubt is thrown upon
the
case of the applicant, it cannot succeed.
[37]
If the facts disclosed on the affidavits, assessed in the manner
described, disclose that the restraint is reasonable, the applicant
succeeds on that score and the interim interdict will be granted if
the remaining requirements are established. If, however, those
facts
disclose that the restraint is unreasonable, the first respondent
must succeed.
[38]
Applied in
this way, the incidence of the onus plays no role in this value
judgment.
[39]
As stated in
Ball
v Bambalela Bolts (Pty) Ltd and Another
(in the context of an application for final relief):
[40]
‘
In
Reddy v
Siemens Telecommunications (Pty) Ltd
, it was held that the
reasonableness of a restraint could be determined without becoming
embroiled in the issue of onus. This could
be done if the facts
regarding reasonableness have been adequately explored in the
evidence…if the facts, assessed as aforementioned,
disclose that
the restraint is reasonable then the party, seeking the restraint
order, must succeed, but if those facts show that
the restraint is
unreasonable, then the party, sought to be restrained, must succeed…’
[28]
Determining
whether or not an agreement is contrary to public policy requires a
balancing of competing values.
[41]
The enquiry into the reasonableness of a restraint is a value
judgment that involves a consideration of two policy considerations,
namely the public interest, which requires that parties to a contract
must comply with their contractual obligations, and the principle,
supported by the Constitution of the Republic of South Africa, 1996
(‘the Constitution’), that a citizen should be free to engage
or
follow a trade, occupation or profession of his or her choice.
[42]
A restraint that is found to be reasonably required for the
protection of the party who seeks to enforce it, in accordance with
the
test laid down in the cases, is constitutionally permitted.
[43]
[29]
In
Basson
v Chilwan and Others
,
Nienaber JA identified four questions that should be asked when
considering the reasonableness of a restraint, to which a fifth
was
subsequently added through the cases:
[44]
(a)  Does the
one party have an interest that deserves protection after termination
of the agreement?
(b)  If so, is
that interest threatened by the other party?
(c)  In that
case, does such interest weigh qualitatively and quantitatively
against the interest of the other party not to be
economically
inactive and unproductive?
(d)  Is there
an aspect of public policy having nothing to do with the relationship
between the parties that requires that the
restraint be maintained or
rejected?
(e)  Does the
restraint go further than necessary to protect the interest?
Where
the interest of the party sought to be restrained weighs more than
the interest to be protected, the restraint is unreasonable
and
consequently unenforceable.
[45]
[30]
In
amplification of the above, the following may be added. The
proprietary interests that can be protected by a restraint agreement
are essentially of two kinds. The first is 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 it, to gain a
relative advantage. This is sometimes referred to as ‘trade
secrets’.
[46]
The second is
the relationships with customers, potential customers, suppliers and
others that go to make up what is referred to
as the ‘trade
connection’ of the business.
[47]
Whether information constitutes a trade secret or whether a trade
connection exists is a factual question.
[48]
Even where it cannot be found that confidential information or trade
secrets have been communicated to a competitor, a restraint
may
nevertheless be enforceable, as it is not expected of an applicant to
run the risk of such communication.
[49]
[31]
The essential facts averred by the applicant include the following:
·
The applicant is a stockist and distributor of speciality and
commodity raw materials to a variety
of industries throughout South
Africa;
·
The first respondent was employed by the applicant as the Key Account
Manager and Branch Manager
of the applicant’s Eastern Cape branch,
also acting as the Regional Manager of the Eastern Cape;
·
The
applicant and first respondent concluded a written service agreement
on 28 August 2015. This agreement included restraint of trade
undertakings given by the first respondent to the applicant;
[50]
·
The first respondent has taken up employment with the second
respondent as its National Sales Manager,
in breach of the restraint,
and without informing the applicant of his intention to work for a
competitor;
·
The first respondent’s duties as National Sales Manager of the
second respondent are to oversee
the second respondent’s customers
nationally throughout South Africa;
·
The
second respondent is a direct competitor of the applicant in South
Africa as a supplier of commodities raw materials, which constitutes
approximately 70 percent of the total of the applicant’s business
in the food and industrial sections of its business (which are
large
sections of the applicant’s total business);
[51]
·
The second respondent competes with the applicant directly in the
same market in the food manufacturing
industry. The second
respondent’s business sells goods (products) in competition with
those the applicant sells and the target
market is the same as that
of the applicant, both in respect of existing customers and in
respect of potential customers.
·
The first respondent had access to and gained knowledge of the
applicant’s suppliers, the products
each supplier supplied and the
prices at which each supplier supplied those products. This took
place via the applicant’s central
database to which the first
respondent was given access because of his seniority and the trusted
position held. Not all employees
of the applicant enjoyed such
access.
·
The
applicant alleges a protectable interest in confidential
information
[52]
and in
customer connections.
[53]
In
particular, it is averred that the first respondent:
‘
is a very
intelligent and astute individual…[and] has had access to the
internal pricings and internal methodology of the Applicant
of
applying various direct and indirect costs within and to the
applicant in regard
inter
alia
to the Applicant’s commodities raw materials business and the
prices charged therein by the Applicant to its various customers…he
even went so far as to begin developing while he was employed by the
Applicant a costing model in regard to the costing of commodities
raw
materials.’
[54]
·
In addition:
‘…
because of
that knowledge, the First Respondent’s access to and insight into
the applicant’s internal costings, which includes
knowledge of what
costings the Applicant takes into account in determining its prices
to its customers and how it takes those costings
into account, the
First Respondent knows everything about how the Applicant
as
a system
costs its products as well as the Applicant’s margins or mark-ups.
This system is applied across the board within the Applicant
and
extends to how it deals with clearing costs, working capital charges
and items of that nature. All of this goes into the Applicant’s
mark-up or margin on the various products it deals in. All of this
information is highly confidential to the Applicant and clearly
of
great use to a competitor of the Applicant such as the Second
Respondent.’
[55]
·
The
first respondent received a daily sales report which covered all the
regions across the applicant’s sales nationally and could
also
access the applicant’s ‘Enterprise Resource Program’, which is
the applicant’s internal database and accounting system
containing
the entire record of its trade activities, including the sales and
prices of all products sold to all customers.
[56]
·
The
first respondent’s knowledge of the applicant’s internal workings
pertains to the differential on particular prices which
could affect
the awarding of tenders for commodities raw materials.
[57]
The first respondent had full access to the applicant’s internal
costing methodology and weighting.
[58]
·
Prior
to employment with the applicant, the first respondent had no prior
knowledge of the industry and gained all his knowledge from
his
employment with the applicant.
[59]
·
The
first respondent was privy to the applicant’s shipping lists which
indicated which suppliers supplied particular chemicals to
the
applicant and which constituted confidential information that would
be useful to a competitor.
[60]
The second respondent could spring-board the potentially lengthy
process of gaining approval from customers for particular products
supplied.
[61]
Enormous damage
to the applicant’s business could result.
[32]
Applying
these facts to the questions posed in
Basson
,
the applicant has an interest worthy of protection after termination
of its contract with the first respondent. This relates, at
the very
least, to the confidential information pertaining to the applicant’s
pricing methodology known only by a select group
of senior
people.
[62]
It constitutes
useful information which is not in the public knowledge, of economic
value to the applicant and capable of application
in setting prices
for the distribution of commodities raw materials.
[63]
That interest is threatened, objectively speaking, by the first
respondent’s employment with the second respondent, a direct
competitor of the applicant, due to the possibility of the disclosure
of such trade secrets.
[64]
That interest also weighs favourably, quantitatively and
qualitatively, against the first respondent’s interest not to be
economically
inactive and unproductive, without going further than
necessary to protect the interest. There does not appear to be any
aspect of
public policy in this instance, having nothing to do with
the relationship between the applicant and first respondent, that
requires
the restraint to be maintained or rejected. It cannot be
said that the interests of the first respondent weighs more than the
applicant’s
interests to be protected, so that the restraint is
unreasonable and unenforceable.
[33]
Taking the facts set out by the applicant together with the facts set
out by the first
respondent which the applicant cannot dispute, and
having regard to the inherent probabilities, I am satisfied that the
applicant
should on these facts obtain final relief when part B is
ultimately argued. The facts set up in contradiction by the
respondent must
still be assessed to determine if serious doubt has
been thrown upon the applicant’s case. These facts include the
following:
·
The second respondent’s business is exclusively in the commodities
raw material field, and operates
on an entirely different business
model, outsourcing all storage and delivery costs as well as the
calculation of landed cost of
any particular material.
·
The Gqeberha (Port Elizabeth) branch of the applicant generated only
between 4% and 6% of the turnover
of the applicant’s business as a
whole during the time the first respondent was employed by the
applicant.
·
The cost of commodities raw materials is extremely volatile and there
is little or no customer loyalty
– users typically purchase from
the supplier able to offer the commodity at the cheapest price.
·
While working for the applicant, the first respondent would request
the purchasing division of the
applicant (in Johannesburg) to
approach all available suppliers to obtain the best prices and
available quantities if a request for
a quotation was received. A
demand planner would be asked to calculate the best means of
delivering the required supply over the
period in question.
·
The price contained in a quote would be dependent upon a number of
constantly changing variables
and was not based on any secrets or
special strategies, or pricing methodology, which the applicant did
not possess. Most of the
components of any price were determined as a
result of a calculation based on information not available to the
first respondent.
·
The first respondent had only limited access to the applicant’s
suppliers, products supplied and
prices and this could, in any event,
not constitute ‘commercially sensitive’ or ‘confidential’
information. The applicant
has not established that it has any
protectable proprietary interest and the restraint is against public
policy and not enforceable,
also being directed to the restriction of
fair competition with the applicant and for an unreasonable period of
time.
·
The first respondent has an academic background in cost accounting
and was aware that pricing would
be a combination of the price from
the supplier, being the base price in the relevant currency, applied
to the exchange rate at payment
date, together with the applicant’s
overhead cost and the application of a profit factor. The cost
calculation occurred in terms
of a spreadsheet developed and applied
by a head office team consisting of finance and procurement
employees. Any calculations undertaken
by the first respondent were
based on values provided by the applicant (supplier cost price from
purchasing, forward exchange rate
from finance, shipment details from
purchasing, which resulted in a spreadsheet being created by finance
and purchasing to calculate
the cost price). This was later the work
of the demand planner appointed.
·
All of the applicant’s regular customers in the commodities raw
material field were also regular
(and simultaneous) customers of
other suppliers, including the second respondent.
·
It would in any event be against the first respondent’s principles
to use any inside knowledge.
The first respondent engaged an
employment consultant for a period of some six months in an attempt
to find and secure alternative
employment, without success.
·
Despite the first respondent being employed by the second respondent
for a period of six months,
the applicant has been unable to
demonstrate any damage or loss incurred during that period.
[34]
In
Webster
,
the
locus classicus
on
opposed applications for interim relief, the court explained what is
required for a right ‘
prima facie
established though open to
some doubt’:
‘…
more is
required than merely to look at the allegations of the applicant, but
something short of a weighing up of the probabilities
of conflicting
versions is required…If serious doubt is thrown on the case of the
applicant he could not succeed in obtaining temporary
relief, for his
right,
prima facie
established, may only be open to “some
doubt”. But if there is mere contradiction, or unconvincing
explanation, the matter should
be left to trial and the right
protected in the meanwhile, subject of course to the respective
prejudice in the grant or refusal
or interim relief.’
[35]
A
restraint which does not protect some legally recognisable interest
of the employer and merely seeks to exclude or eliminate competition
would be unreasonable, contrary to public policy and
unenforceable.
[65]
Similarly,
a restraint which is wider than reasonably necessary for the
legitimate protection of any such proprietary interest will
be held
to be unreasonable and therefore contrary to public policy.
[66]
Such restraints would negate the applicant’s ability to demonstrate
a
prima
facie
entitlement
to the final relief sought. It is only if the restriction on the
first respondent’s activities serves to protect a proprietary
interest relied on by the applicant that would result in an
enforceable restraint.
[36]
Bearing
in mind the inherent probabilities, the respondent’s averments are,
in my view, of the kind that contradict the applicant’s
position
and cast some doubt on the applicant’s entitlement to relief –
without throwing ‘serious doubt’ on the applicant’s
case. As
such, the applicant has shown that it has a right,
prima
facie
established though open to some doubt, to the final relief noted in
the notice of motion. There is also a well-grounded apprehension
of
infringement through potential disclosure of confidential information
to a competitor
[67]
and a
similar apprehension of irreparable harm to the applicant if the
interim relief is not granted, and the ultimate relief is
granted.
There is, furthermore, no suggestion that an alternative remedy is
available to the applicant in the circumstances.
[37]
As to
the balance of convenience, I must consider the prospect of prejudice
which appears to threaten the applicant if at this stage
its claim
for an interim interdict is refused, and it is ultimately able to
prove that the first respondent should be restrained
from being
connected to the second respondent for the full duration of the
restraint. I must also consider the prospect of prejudice
which
appears to threaten the respondents if I should at this stage grant
the interim interdict sought, and if it should later transpire
that
the defences raised by the first respondent have always been sound.
In effect, I must form a view on the question as to which
of the
parties are liable to be the more seriously inconvenienced by the
prospective prejudice.
[68]
[38]
It is
important that the application does not seek to restrict the first
respondent from working or obtaining other forms of employment
– it
is only his involvement with the second respondent that is
prohibited. The first respondent is clearly a person with significant
skills, having risen to occupy a position as National Sales Manager.
He also has an academic background in cost accounting and could
seek
work or temporary employment in various ways pending the final
determination of the part B relief, which counsel agreed could
be
heard on an expedited basis. An unfortunate consequence of the
enforcement of any restraint clause is the imposition of some degree
of hardship on the party to whom it applies. In our law, this on its
own is insufficient to deprive the applicant of the relief
sought.
[69]
The position of
the applicant is tenuous while the first respondent continues to
render services to the second respondent, which
poses a threat to the
applicant’s business.
[70]
The balance of convenience, in my view, favours the granting of an
interim interdict.
[39]
Finally,
this court must weigh its assessment of the strength of the
applicant’s
prima
facie
case
together with the balance of convenience and exercise a judicial
discretion in deciding whether or not the interim relief sought
ought
to be granted.
[71]
In the
circumstances, I am minded to grant the interim interdict. I also
order that the costs of the proceedings shall be reserved
for
determination with the part B proceedings directed towards the final
interdict, and direct that the applicant proceed to prosecute
that
matter expeditiously to minimise the prejudice to the first
respondent in the event that the final relief is refused. Should
the
applicant unreasonably fail to do so, the first respondent may
approach the court (whether as presently constituted or not),
on
notice to the applicant, for an order that the interim interdict has
lapsed, together with further relief. The first respondent
may, of
course, also claim damages from the applicant in the event that the
final relief is not granted.
Order
[40]
In the result I make the following order:
1.
The application to strike out is dismissed with costs, other than the
following
parts of the replying affidavit, which are struck out:
(a)  The last
two sentences of paragraphs 11.8;
(b)  The second
sentence of paragraph 11.16;
(c)  The words
“he misled the Applicant as to his intentions, and designedly so”,
in paragraph 11.24;
(d)  Paragraph
11.20.
2.
The matter is dealt with on the basis of urgency, in accordance with
Rule 6(12)(a)
of the Uniform Rules of Court.
3.
The first respondent is interdicted from being directly or indirectly
interested
or engaged in or connected with or employed by the second
respondent anywhere in South Africa, whether as proprietor, partner,
director,
shareholder, member, employee, consultant, contractor,
financier, agent, representative, assistant, trustee or beneficiary
of a trust
or otherwise and whether for reward or not.
4.
This interim interdict shall apply with immediate effect pending the
final determination
of the relief set forth in part B of the notice
of motion, but not beyond 30 October 2022.
5.
The costs of the proceedings in part A are reserved for determination
with the
relief in part B.
6.
The applicant is directed to prosecute the part B proceedings
expeditiously, failing
which the first respondent may approach the
court, on notice to the applicant, for an order that the interim
interdict has lapsed
and for further relief.
A.
GOVINDJEE
ACTING
JUDGE OF THE HIGH COURT
Appearances
:
Obo
the Applicant
:          Adv
Blou
SC / Adv Bosman
Instructed
by                        :          Knowles
Husain Lindsau Inc. c/o Boqwana Burns
84
Sixth Ave, Newton Park, Port Elizabeth
Obo
the Respondent
:
Adv
Richards
Instructed
by                        :         Rushmere
Noach Inc, 5 Ascot Office Park,
Conyngham
Road, Greenacres
Heard                                 :          20
May 2021
Delivered                            :         29
June 2021
[1]
Swissborough
Diamond Mines (Pty) Ltd v Government of the Republic of South Africa
and
Others
1999
(2) SA 279
(T) at 337C.
[2]
Harding
and Parker v John Pierce & Co
1919 OPD 113
at 122.
[3]
Paragraphs 11.6.1 to 11.6.7 of the replying affidavit.
[4]
In any event, paragraph 11.6 of the replying affidavit, which is not
the subject of an application to strike, states: ‘The first
respondent does not set forth a single fact to contradict the clear
statement by the applicant that the first respondent at the
time of
his resignation did not inform the applicant of his intention to
work for a competitor.’
[5]
See
Laser
Junction (Pty) Ltd v Fick
(case no. 6970 / 2017, KZN Local Division, Durban) at para 52.
[6]
The papers make it clear that the first respondent accepts this
onus. See, for example, para 30.5 of the first respondent’s heads
of argument. Also see
Rawlins
and another v Caravantruck (Pty) Ltd
[1992] ZASCA 204
;
1993
(1) SA 537
(A).
[7]
Townsend
Productions (Pty) Ltd v Leech and others
2001 (4) SA 33
(C) at 41A-C. Also see the judgments of Eksteen JA in
Basson
v Chilwan and others
[1993] ZASCA 61
;
1993 (3) SA 742
(A) at 752I-753B, Stegmann J in
Sibex
Engineering supra
at 494A and Myburgh JA in
Vox
Telecommunications (Pty) Ltd v Steyn and another
[2015] ZALCJHB 278 at para 18.
[8]
Unreported Eastern Cape Local Division, Port Elizabeth (case no.
847/2019) at para 22. The paragraph in question relies on
Den
Braven SA (Pty) Ltd v Pillay and another
2008 (6) SA 229
(D) at para 17: ‘It is not in my view necessary
for an applicant in this situation to winnow the wheat of trade
connections and
customer contact from the chaff of other factors
that may influence purchasing decisions. It suffices for the
applicant to show
that trade connections through customer contact
exist and can be exploited by the former employee if employed by a
competitor.
The applicant in this case has discharged that onus.’
[9]
[1993] ZASCA 61
;
1993 (3) SA 742
(A) at 776H-777B. Also see J Saner
Agreements
in Restraint of Trade in South African Law
(Issue 22) (March 2018) at 5.4.
[10]
2013 (1) SA 135
(GSJ) at para 14.
[11]
Also see Saner 5-17.
[12]
See
Experian
supra
at para 20;
Longfields
Trading CC v Bradfield & another
[2011] JOL 28113
(KZD) at para 22;
Vox
Telecommunications supra
at para 31;
Laser
Junction supra
at
para 37, 44. In
Automotive
Tooling Systems (Pty) Ltd v Wilkens
2007 (2) SA 271
(SCA) at para 9, the suggestion seems to be that
absence of a proprietary interest would negate the possibility of a
breach of
contract.
[13]
1988 (2) SA 54 (T).
[14]
Sibex
Engineering Services (Pty) Ltd v Van Wyk and another
1991 (2) SA 482
(T) at 485I-486D.
[15]
The
majority went on to note that the issue of a protectable interest,
and earlier cases which suggested that a restraint had to
serve some
interest of the person in whose favour it was inserted to be valid,
were based on a different, pre-
Magna
Alloys
premise: at 486G.
[16]
For a critique of other aspects of this judgment, see
Mozart
Ice Cream Classic Franchises (Pty) Ltd v Davidoff and another
2009 (3) SA 78 (C).
[17]
Para
96 of the answering affidavit.
Cf
Boomerang
Trade CC t/a Border Sheet Metals v Groenewald and another
[2012] JOL 29426
(ECG) at para 46
et
seq
.
[18]
See, for example,
Townsend
Productions (Pty) Ltd v Leech and others
2001 (4) SA 33
(C) at 41A-B: the onus is on the first respondent to
establish, as his defence, that the applicant has no proprietary
interests
worthy of protection. See
Vox
Telecommunications supra at
paras 44 and 45 and
Sibex
Engineering supra
at
494A.
Cf
Handico
(Pty) Ltd t/a Hardware Centre v Vallabh and another
[2019] ZAGPJHC 90 at para 14: ‘The employer has the onus to show
that it has a protectable interest to protect in the restraint
agreement which may be in the form of trade secrets, pricing or
customer connections. It will suffice if the employer can show
that
the acquisition of such protectable knowledge or interest prevailed
during the term of employment of the respondent and that
it had the
potential to be used or has been used in competition against him.’
[19]
The onus of proving that enforcement would be against public policy
is on the person resisting enforcement:
Magna
Alloys and Research (SA) (Pty) Ltd v Ellis
[1984] ZASCA 116
;
1984 (4) SA 874
(A). See the comments of Stegmann J in
Thorpe
Timber Co (Pty) Ltd v CJ Griffin
(WLD
case No 9111/89, 23 June 1989) cited in the minority judgment in
Sibex
Engineering supra
at 499B-506G. In particular: ‘I accordingly reach the conclusion
that, in order to prove that the enforcement of a contractual
obligation by which he has curtailed his freedom to work would be
unreasonable and contrary to public policy, a former employee
has to
do nothing more than to prove that his former employer, seeking to
enforce the restraint, has no trade connection and no
trade secrets
to protect; or, if he has, that the restraint is such that its
enforcement would not serve to protect him. Alternatively,
he may
show, if he can, that the restraint is wider than is reasonably
necessary for the protection of the former employer’s
trade
connection and trade secrets. There are no other relevant aspects of
the matter that need to be addressed for the purpose
of arriving at
a conclusion on the question whether enforcement of such a restraint
should be refused, or allowed in part only,
on the grounds of
unreasonableness and public policy.’ (at 505I-506B).
[20]
1991 (2) SA 482
(T) at 503A. For a detailed exposition of the
circumstances recognised by the law as sufficient to justify on
grounds of public
policy a decision not to enforce a restraint, see
500C
et
seq
.
[21]
2007
(2) SA 486 (SCA).
[22]
See Saner 5.5.
[23]
The position would have been different if the issue of breach of the
restraint was in dispute, because the onus of proving a breach
rests
on the applicant: see
Kelly
Group Ltd v Capazorio
2011 (JDR 0221 (GSJ) at para 17.
[24]
Boomerang
Trade CC t/a Border Sheet Metals v Groenewald and another
[2012] JOL 29426
(ECG) at para 36;
Mozart
Ice Cream Classic Franchises (Pty) Ltd v Davidhoff and another
2009 (3) SA 78
(C);
Inter-Waste
(Pty) Ltd v Smith
(unreported, case no: J197/2021, Labour Court, Johnanesburg) at para
5.
[25]
Twentieth
Century Fox Film Corporation v Anthony Black Films (Pty) Ltd
1982
(3) SA 582
(W) at 586G.
[26]
Luna
Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture
Manufacturers)
1977 (4) SA 135
(W) at 137E.
[27]
At paras 57-62 of the founding affidavit. It may also be accepted
that the applicant only obtained confirmation that the first
respondent was working for a competitor sometime during the middle
of March 2021, and that it has not been dilatory in launching
these
proceedings.
[28]
Swissborough
supra
at
323.
[29]
2018 (6) SA 440 (SCA).
[30]
1996 (3) SA 686 (A).
[31]
Also see
International
Executive Communications Ltd t/a Institute for International
Research v Turnley and another
1996 (3) SA 1043
(W) at 1059A-E.
[32]
1993
(1) SA 47 (W).
[33]
Reddy
supra
at
para 4.
[34]
Cipla
supra
at
para 29.
[35]
See
Knox
D’ Arcy Ltd and Others v Jamieson and Others
1995 (2) SA 579
(W) at 603J-605B.
[36]
Reckitt
& Colman SA (Pty) Ltd v SC Johnson & Son (SA) (Pty) Ltd
1995
(1) SA 725
(T) 729I-730G;
LF
Boshoff Investments (Pty) Ltd v Cape Town Municipality
1969 (2) SA 256
(C) at 267B-E. Also see
Knox
D’Arcy supra
at
593B-E.
[37]
Webster
v Mitchell
1948
(1) SA 1186
(W) at 1189-1190 and
Gool
v Minister of Justice and another
1955 (2) SA 682
(C) at 688B-F, cited with approval in
Simon
NO v Air Operations of Europe Ab and Others
[1998] ZASCA 79
;
1999 (1) SA 217
(SCA) at 228 F-I. Also see
Knox
D’Arcy supra
at 600H-601C.
[38]
Reddy
supra
at para 14.
[39]
Ibid
.
See Saner 5-15: in a case where a determination of which facts had
been proved was not called for, a value judgment has to be
made
between the
pacta
sunt servanda
principle
and every person’s constitutional right freely to engage in his or
her profession.
[40]
(2013) 34
ILJ
2821 (LAC) at para 14. Also see
Laser
Junction supra
at
para 32 (with reference to I Rautenbach ‘Enforcement’ in
Bill
of Rights Compendium
para
1A97): the incidence of onus should not play a role where there are
no factual disputes and only the application of standards
such as
reasonableness is at issue, which ameliorates the burden on the
respondent to prove the unreasonableness of the restraint.
[41]
Bredenkamp
and others v Standard Bank of SA Ltd
2010 (9) BCLR 892
(SCA) at para 38. The value judgment necessarily
requires a determination whether the restraint (or limitation of a
fundamental
right/s) is, in terms of section 36 of the Constitution,
reasonable and justifiable in an open and democratic society based
on
human dignity, equality and freedom:
Omni
Technologies supra
at para 11.
[42]
Ball
v Bambalela Bolts (Pty) Ltd and another
[2013] 9 BLLR 843
(LAC) at para 15;
Reddy
supra
at para 15.
[43]
See
Omni
Technologies (Pty) Ltd v Barnard
[2008] 2 All SA 207
(SE) at para 11, with reference to
Reddy
supra
at paras 11-13.
[44]
Basson
supra at
767G-H.
The fifth question, corresponds with section 36(1)
(e)
of the Constitution requiring a consideration of less restrictive
measures to achieve the purpose of the limitation:
Siemens
supra
at
para 17;
Kwik
Kopy (SA) (Pty) Ltd v Van Haarlem and Another
1999 (1) SA 472
(W) at 484D-E.
[45]
See
Siemens
supra
at para 16, 17, also in respect of how the common-law approach in
balancing or reconciling the interests give effect to the precepts
of section 36(1) of the Constitution of the Republic of South
Africa, 1996.
[46]
See
Meter
Systems Holdings Ltd v Venter and another
[1993] 3 All SA 574
(W) at 588.
[47]
Vox
Telecommunications supra
at
para 30.
[48]
See
Walter
McNaughtan (Pty) Ltd v Schwartz and others
2004 (3) SA 381
(C) at 388J-398B.
[49]
See
IIR
South Africa BV t/a Institute for International Research v Tarita
and others
2004 (4) SA 156
(W) at 166G-J;
IIR
South Africa BV t/a Institute for International Research v Hall (aka
Baghas) and another
2004 (4) SA 174
(W) at 179H.
[50]
Clauses
12.3 and 13.5 of the service agreement provide as follows: Clause
12.3: ‘…the Employee shall not, during the period
of his
employment and for a period of 2 (two) years from the Termination
Date, whether as proprietor, partner, director, shareholder,
member,
employee, consultant, contractor, financier, agent, representative,
assistant, trustee or beneficiary of a trust or otherwise
and
whether for reward or not, directly or indirectly –
12.3.1
carry on; or
12.3.2
be interested or engaged in or concerned with or employed by any
company, close corporation,
firm, undertaking or concern which
carries on in any of the Prescribed Areas any business which sells
Prescribed Goods or Competing
Goods or renders Prescribed Services
or Competing Services or in the course of which Prescribed Goods or
Competing Goods are sold
or Prescribed Services or Competing
Services are rendered…’
Clause
13.5: ‘Without derogating from the obligations imposed by this
clause 13 the Employee undertakes that neither he nor any
company,
firm, undertaking or concern in or by which he is directly or
indirectly interested, engaged, concerned or employed, will
for a
period of 2 (two) years after the Termination Date directly or
indirectly, whether as proprietor, partner, director, shareholder,
employee, consultant, contractor, financier, agent, representative,
assistant, trustee or beneficiary of a trust or otherwise in
any
part of the Prescribed Areas and whether for reward or not –
13.5.1
solicit orders from Prescribed Customers for the Prescribed Goods or
any Competing Goods and
/ or the Prescribed Services or any
Competing Services;
13.5.2
canvass business in respect of the Prescribed Goods or any Competing
Goods and / or the Prescribed
Services or Competing Services from
Prescribed Customers;
13.5.3
sell or otherwise supply any Prescribed Goods or Competing Goods to
any Prescribed Customer;
13.5.4
render any Prescribed Services or Competing Services to any
Prescribed Customer;
13.5.5
purchase any Prescribed Goods from any Prescribed Supplier or accept
the rendering of any Prescribed
Services from it;
13.5.6
solicit appointment as a distributor, licensee, agent or
representative of any Prescribed Supplier
in respect of Prescribed
Goods and / or Prescribed Services, including on behalf of or for
the benefit of a Prescribed Supplier.’
[51]
Para 12.3.1 of the replying affidavit.
[52]
See
Townsend
Productions (Pty) Ltd v Leech and others
2001 (4) SA 33 (C).
[53]
See
Rawlins
and another v Caravantrucks (Pty) Ltd
[1992] ZASCA 204
;
1993 (1) SA 537
(A) at 541D-H.
[54]
Paras 12.2.1, 12.2.2 and 12.2.4 of the replying affidavit.
[55]
At para 12.2.6 of the replying affidavit.
[56]
Para 14.3 of the replying affidavit.
[57]
Para 15.3 of the replying affidavit.
[58]
Para 16 of the replying affidavit.
[59]
Para 18.2 of the replying affidavit.
[60]
Para 27.2 of the replying affidavit.
[61]
Paras 27.3-27.4 of the replying affidavit.
[62]
See
Meter
Systems supra
at 593 citing
Sibex
Construction supra
at 64D and 67F-68C. On the relevance of the seniority of the first
respondent to this enquiry, see
Dickinson
supra
at para 38.
[63]
See
Walter
McNaughtan supra
at
389A-B. Also see
Knox
D’Arcy supra
at 613E-F.
[64]
International
Executive Communications Ltd t/a Institute for International
Research v Turnley and another
1996 (3) SA 1043
(W). A court is accordingly not influenced by
undertakings by the ex-employee not to disclose such information,
and will not typically
investigate the
bona
fides
of the ex-employee in tendering such undertakings: at 1056C/D-F,
read with 1056H/I-1057A/B.
[65]
Automotive
Tooling Systems supra
at
para 8.
[66]
Saner 5.6.
[67]
See
Longfields
Trading CC v Bradfield & another
[2011] JOL 28113
(KZD) at para 21, citing
Turner
Morris (Pty) Ltd v Riddell
1996 (4) SA 397 (E).
[68]
Knox
D’Arcy supra
at 601C-F. It may be added that Mr Blou SC suggested that the court
could approach the applicant in the event that a tender for
damages
was considered to be necessary to settle the issue of the balance of
convenience. On the approach I take to the matter
this is
unnecessary in this instance.
[69]
See
Branco
and another t/a Mr Cool v Gale
1996 (1) SA 163(E)
at 179E-F.
[70]
See
Turnley
supra
at
1058B-H.
[71]
Knox
D’Arcy supra
at 601E-G.