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2021
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[2021] ZAGPPHC 458
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EQiGATE (Pty) Limited v Myburgh (13128/2021) [2021] ZAGPPHC 458 (29 June 2021)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG PROVINCIAL DIVISION, PRETORIA
CASE
NO: 13128/ 2021
In the matter between:
EQiGATE (Pty) Limited
Applicant
And
Myburgh
DK Respondent
JUDGMENT
NYATHI AJ
A. INTRODUCTION
[1]
The
applicant, a former employer of the respondent, approached this court
on an urgent basis seeking interdictory relief against
the
respondent. The applicant sought to enforce terms of a restraint of
trade agreement it had entered into with the respondent.
[2]
The Respondent opposed the
application. The Respondent also filed a counter- application but had
not filed a replying affidavit
at the time the matter was
heard.
[3]
The applicant cited and relied on
the respondent's continuing infringements of the terms of the
restraint of trade agreement as
the main reason for bringing this
matter on an urgent basis in terms of Rule 6 (11) of t h e Uniform
Rules of Court.
[4]
The
applicant alleged that the respondent has already breached the
agreement between the parties, has failed to cease his actions,
or to
give an undertaking as requested by the applicant.
[5]
It
is common cause that
the
respondent had on the final
day
of his employment with the applicant, handed over his laptop to the
technical executive of the employer to purge the laptop
of some
information belonging to the employer. It transpired that the
technical executive did not remove from the respondent's
laptop a
so-called management software programme that had been installed at
the time the respondent assumed his employment contract.
This program
enabled the employer
to
track activities on
the
laptop. This enabled
the
employer to notice suspicious
documents and
activities
which alerted it to the
use
of its confidential material by the respondent in breach of the
restraint of trade agreement.
[6]
The
applicant is unable to bring this application on a normal unopposed
basis, or even an opposed basis, if the matter were to be
brought in
the ordinary course of applications it would result in further
infringements of its rights which could have serious
and detrimental
effects upon the Applicant's business.
[7]
At
that stage, the agreed upon restraint of trade would have run out or
lapsed, and the applicant would have been unable
to
protect its interest, its business, and its trade secrets.
[8]
The respondent's response both on
urgency and the issue of the management software was not convincing.
[9]
The court then heard the matter
as one of urgency, given the cited circumstances.
[1]
An order was granted in the
following terms:
"
...2. That a provisional interdict, with immediate effect is granted,
in
the follow1ng terms:
2.1 That, in terms of the confidentiality agreement between the
parties, the respondent be interdicted and restrained from using,
distributing or referencing any and all documents of the
applicant, which include, but are not limited strategic business
and
technical information, plan aids, methods, process, computer
programs, research projects, marketing information , products
and
techniques of the applicant, copyrighted program, material, manual,
document , publication or concept legally owned by the
applicant, or
any other documents and information, that belongs to the applicant,
and which the respondent obtained from the applicant,
as a result of
the responden'ts employment with the applicant, and which the
respondent has in his possession or control, either
physically, or
electronically;
That
in terms of the restraint of trade agreement between the parties, the
respondent is interdicted and restrained from,
either directly
or indirectly , solely or jointly, or on behalf of any person, or
entity be employed by, or carry on or assist,
financially or
otherwise be engaged, concerned or interested in, or act as a
consultant, an advisor, agent or representative of
any person or
entity, corporate or incorporate, which, within the Restraint
Territory, comes on business which competes directly,
or indirectly,
with the business of the applicant, or comes on any business which is
similar to or in competition with such business
as the applicant may
be carrying on at date of termination of the responden'ts employment
agreement.
·
That the restraint of trade over the respondent referred to in
2.3 above, will be effective for a period of six months, from date
of
termination of the respondent's employment agreement, being from
the 30
th
of January 2021 to the 30
th
of July
2021, and this Restraint of Trade will be effective for the entire
territory of the Republic of South Africa.
That
the relief in paragraphs 2.1 to 2.4 above, excluding the costs of the
application referred to in paragraph 3 hereunder, shall
have
immediate effect and operate as a rule nisi, pending the final
judgment in this regard.
That
the costs of the main application and the counter application are
reserved."
[10]
The
order granted on the 24 March 2021 and dated 26 March 2021 was a
provisional order which operated as a rule nisi.
[11]
In terms of the restraint of
trade agreement. the restraint over the respondent is effective for a
period of six months from date
of termination of the respondent's
employment agreement, being from the 30
th
of January 2021 to the 30
th
of July
2021.
[12]
I
have perused the official case file on Caselines and have not been
informed of any application to anticipate as at
the
writing of this document. The restraint is due to lapse on it
own on the 30
th
July 2021 whereafter the current
provisional order will become moot.
The
rule nisi will also be discharged on the said date.
COSTS
[13]
The
only issue that needs
determination is the issue of costs which was stayed on the date of
this provisional order.
Respondent to pay the applicant's costs.
J.S.
NYATHI
Acting Judge of the High Court
Gauteng Division,
Pretoria
Date of Judgment: 29 June 2021
On behalf of the
Appellant:
Adv
Zjaan Schoeman
Instructed by: CR LAW
ATTORNEYS
FIRST FLOOR
CENTURION WINE & ART CENTRE
123 AMKOR ROAD
LYTT ELTON MANOR
PRETORIA
REF: EQIGATE/ MVDM
Email:
On behalf of the Respondent: Adv Johann Van Wyk
Instructed by: WALDICK JANSEN VAN RENSBURG INC
58 Lyttelton Road, Clubview
CENTURION Ext 1784
Ref:
MAT 6887/DK//M DE VRIES
Email:
melanie@wjvrlaw.co.za;
dylan@wjvrlaw.co.za
[1]
Twentieth Century Fox Film Corporation& Another v Anthony Black
Films (Pty) Ltd
1982 (3) SA 582
(JV) AT 586 G, Luna Meubel
Vervaardigers (Edms) Bpk v Makin & Another (t/a Mak1n's
Furniture Manufacturers)
1977 (4) SA 135
(W) at 136 H