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2022
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[2022] ZAECQBHC 25
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NCS Resins (Pty) Ltd v Allan and Others (2708/2016) [2022] ZAECQBHC 25 (30 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, GQEBERHA
Case
No.: 2708/2016
Date
Heard: 23 May 2022
Date
Delivered: 30 August 2022
In
the matter between:
NCS
RESINS (PTY) LTD
Plaintiff
and
ELMARIE
HAZEL ALLAN (nee VAN DER MERWE)
First Defendant
ATLIN
CHEMICALS
CC
Second Defendant
DEAN
HAYDEN
Third Defendant
PAUL
HEUNIS
Fourth Defendant
GLEN
BLOM
Fifth Defendant
NAAS
FERREIRA
Sixth Defendant
ATLIN
CHEMICALS (NATAL) (PTY) LTD
Seventh Defendant
JUDGMENT
RONAASEN
AJ:
Introduction
[1]
In this action, instituted in March 2017,
the plaintiff seeks payment of substantial damages from the
defendants, jointly and severally.
[2]
In summary, the claim for damages proceeds
against the background of the following alleged circumstances:
2.1.
the first defendant, as from 1 September
2005 was employed by the plaintiff at its Gqeberha branch as a sales
and administrative
assistant and internal salesperson;
2.2.
the first defendant’s terms of
employment were governed by three agreements, namely a contract of
employment, a secrecy and
restraint agreement and an intellectual
property agreement;
2.3.
the first defendant’s employment
relationship with the plaintiff terminated in May 2016;
2.4.
in breach of the agreements the first
defendant misappropriated certain proprietary and confidential
information belonging to the
plaintiff;
2.5.
the first defendant disseminated the
proprietary and confidential information to the remaining defendants
who, despite knowing that
the information belonged to the plaintiff,
utilised it and continue to utilise it to compete unfairly and/or
unlawfully with the
plaintiff;
2.6.
as a result of the first defendant’s
breaches of the agreements and the remaining defendants’
unlawful conduct the plaintiff
suffered the damages it seeks to
recover from the defendants.
[3]
The pleadings have closed and the matter is
trial-ready.
The
separation order
[4]
On 10 April 2018
Mageza
AJ
granted an order (“the
separation order”) directing that certain issues of law and
fact be determined separately from
and before the determination of
the other issues in dispute between the parties, in accordance with
the provisions of Uniform Role
33(4). The order was granted pursuant
to an application brought by the plaintiff, which was opposed by the
defendants.
The
trial and the defendants’ application to rescind the separation
order
[5]
I am charged with adjudicating this action
and, to that end, the matter was set down for trial before me on 23
May 2022.
[6]
At the commencement of the trial, I was
asked to hear and determine an application brought by the defendants
for a reconsideration
and rescission of the separation order.
[7]
It was agreed by the parties that I would
determine the defendants’ application and that, after such
determination, the trial
would proceed before me in accordance with
my determination.
The
defendants’ application
[8]
The defendants’ application proceeded
before me on the basis of the contention that I was entitled to
revisit the separation
order as it was interlocutory in nature and
therefore did not have final effect. This was not seriously
disputed in argument
before me. I am satisfied that this is the
case and that I may revisit the separation order.
[9]
The principal argument advanced by the
defendants was that it would not be convenient for the issues
identified in the separation
order to be determined separately from
and before the other issues in dispute between the parties.
[10]
The separation order envisages that I would
first have to determine:
10.1.
which documents were allegedly
misappropriated by the first defendant from the plaintiff;
10.2.
what information and to whom the first
defendant disseminated the information she allegedly misappropriated;
10.3.
whether the first defendant, in taking the
information concerned, breached her contractual obligations to the
plaintiff, alternatively,
acted unlawfully;
10.4.
to what extent the remaining defendants
induced, procured and/or facilitated the breaches of the first
defendant’s contractual
arrangements with the plaintiff;
10.5.
the fate of and the liability for the costs
of various other interlocutory proceedings.
[11]
Apart from the question of the alleged
damages (which are equated to the value of the allegedly confidential
information) suffered
by the plaintiff, standing over for
determination would be the questions as to whether the information
allegedly misappropriated
by the first defendant from the plaintiff
was:
11.1.
in fact, confidential information;
11.2.
used by the defendants unlawfully to the
prejudice of the plaintiff, causing it to suffer damages.
[12]
In my view the issues identified in the two
preceding paragraphs cannot conveniently be determined separately.
This is so particularly
with reference to paragraph 13 of the
particulars of claim, which illustrates how closely the question of
the confidentiality of
the information is linked to the issues
summarised in paragraph 10, above. The information concerned could
only be regarded as
having been misappropriated if it was
confidential information. Put differently – if the
information was in the public
domain, it could not have been
misappropriated. Similarly, the defendants could only have
acted unlawfully if the information
appropriated by the first
defendant and disseminated to and used by the remaining defendants
was confidential in nature.
[13]
It is difficult to conceive that the
witnesses, who will be called to identify the information allegedly
misappropriated and the
alleged unlawful conduct of the defendants,
will not also be called to establish the confidential nature of the
information and
the value of the information. It is not
convenient in such circumstances to have the issues determined
separately, particularly
where, in the first round, credibility
findings might have to be made in respect of the witnesses concerned.
Conclusion
[14]
In the circumstances it would not be
convenient for the issues identified in the separation order to be
determined separately.
Order
[15]
I therefore make the following order:
1.
The order made on 10 April 2018, as
set out in paragraph 26 of the judgment of Mageza AJ of the same
date, is hereby rescinded in
its entirety.
2.
The costs of this application are to
be costs in the action.
3.
The action will proceed to trial
before me on all the issues in dispute between the parties on the
pleadings on a date to be arranged
with the Registrar.
O
H RONAASEN
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For plaintiff:
Adv WN Shapiro SC instructed
by Macgregor Erasmus Attorneys Inc,
Duran (Tel: 031 201-8955) c/o Kaplan Blumberg Attorneys,
Gqeberha (Tel: 041 363-6044)
For Defendant:
Adv A Beylevend SC instructed by Friedman Scheckter Attorneys,
Gqeberha (Tel: 041 395-8400)