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2021
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[2021] ZAGPJHC 447
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Scoin Trading (Pty) Ltd v The Art of More Group (Pty) Ltd and Others (38147/2021) [2021] ZAGPJHC 447 (14 September 2021)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 38147/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
In the matter between:
SCOIN
TRADING (PTY)
LTD
Applicant
And
THE
ART OF MORE GROUP (PROPRIETARY) LTD
First Respondent
CHARL
ALLAN
WILLIAMS
Second Respondent
JOHN
DE
SOUSA
Third Respondent
JUDGMENT
MAKUME,
J
:
[1]
This is a restraint of trade application. The Applicant
approached this court
on an urgent basis seeking interim relief
restraining the Respondents from contacting one of its employees
namely Thale Cook (Cook)
and solicit from him confidential details
relating to the Applicant’s business.
[2]
The Applicant and the first Respondent are competitors in the
business of selling
of coins and medallions. Cook s an employee
of the Applicant.
[3]
The second Respondent is a director of the first Respondent and was
formerly in the
employment of the Applicant. The third
Respondent is in the employment of the first Respondent or has some
business relationship
with first Respondent as a broker in the coin
trade.
[4]
The Applicant through Mr Rael Demby its Chief Executive Officer
states that he noticed
over a period that a large proportion of coins
being withdrawn from the Applicant’s facilities. He
started suspecting
persons with knowledge of the Applicant’s
business such as employees, ex-employees or brokers. He
investigated this
and was able to establish a link to the second
Respondent.
[5]
On the 6
th
August 2021 Cook his employee confirmed that he
has been selling confidential information to the third Respondent on
behalf of
the first and second Respondents.
[6]
On the 9
th
August 2021 Cook deposed to an affidavit before
an independent attorney relating the
modus operandi
between
him and the third Respondent. In his affidavit Cook says the
following:
“
[3] He knew
that I had access to Scoins clients, including those who had coins
stored in their safe custody facility
and was particularly interested
in large portfolios and those who wanted to withdraw them as well as
details of clients and prospective
clients who wanted to buy or sell
coins to facilitate concluding transaction with them.
[4] He
told me that he was working with Charl Williams and the Art of More
and I would be remunerated
by them for providing these details as
they would transact with these clients of Scion.”
[7]
Cook later received payment in the amount of R2 500.00 on the 22
nd
April 2021 and R500.00 on the 23
rd
July 2021 these
payments were made after Cook had furnished to the third Respondent
names of clients of the Applicant, namely:
i)
Berrick Robinson
ii)
Von Brackel
iii)
Thameer Hassan
iv)
Cecil Corringam
v)
Bluger Family Trust
vi)
Christian Steyn
vii)
Johann Els
[8]
The transaction relating to the above clients were also picked up in
the Whatsapp
messages down loaded from Cook’s cell phone.
The Whatsapp messages clearly demonstrate discussions between Cook
and
the third Respondent on various days amongst others is where Cook
ask about payment to him whereupon third Respondent replies as
follows:
“
Charl will give me cash and I
will go straight to ATM and deposit yours bud.”
Then also appear an exchange where
Cook asks the third Respondent:
“
Cook: Is Charl delaying
with Steyn’s payment” whereupon third Respondent replies
as follows “I will sort
it out bud.”
[9]
The list goes on and on clearly demonstrating a pattern of
transactions aimed at taking
the Applicant’s clients.
[10] On
the 2 6
th
August 2021 Cook made an about turn and deposed
to an affidavit denying the contents of his affidavit. This is
after Cook
had a meeting with the second Respondent and told him how
he was threatened with arrest at a meeting with Mr Demby and others
on
the 6
th
April 2021 and also that he signed an affidavit
which was never read to him. He also distanced himself from the
whatsapp
messages and told second Respondent that his cell phone was
unlawfully taken from him and that he suspects that the messages were
edited.
[11] In
the final analysis so says Mr Williams that Cook and De Sousa the
third Respondent denied
that they ever exchanged details of the
Applicants business transactions, safe custody deposits or clients’
details.
[12] In
his turn about affidavit in support of the second Respondent Cook
says that he and De Sousa
the third Respondent have been friends for
several years their families socialise together. He denies
having given the information
that is in his affidavit made to the
Applicant. He says that Demby did not ask him he interrogated
him for six hours and
threatened him with arrest.
[13] In
paragraph 21 of his affidavit Cook says that the money he received
from De Sousa is money
he was owed by De Sousa when his wife fell
pregnant. There are no details as to when that took place about
the loan.
[14]
Strangely enough in his affidavit Cook does not respond to the
evidence about the whatsapp messages
whether same are true or not he
instead choses to rely on the Popi Act and says that none of the
persons mentioned in the whatsapp
messages have given him consent to
have their personal information including their names and purchases
disclosed.
[15] It
is clear that the Respondents defence is wholly based on the
affidavit made to them by Cook.
Mr Cook’s credibility is
now seriously under a spot light. As I indicated during the
hearing I doubt if he will survive
the mildest cross- examination in
explaining himself about the two affidavits. If Mr Cook was
threatened as he wants the
court to believe then why did he go and
sign an affidavit three days later when he could have sought
assistance with the Police
or his own attorney.
[16]
Counsel for the Respondent did not advance any argument in support of
the contravention of the
Popi Act. It was left open like that.
I cannot find any thread of evidence that Cook was threatened nor was
the whatsapp
messages taken without his consent.
[17] His
retractions and denials are belied by what he says to Mr Demby in a
text message when he
said the following:
“
thank you Rael I appreciate
that I have made the hugest mistake of my life and also have to face
the consequences of my actions.”
[18] The
mistake that Cook refers to in this text message of 11
th
August 2021 is his giving information about Applicant’s clients
to the Respondents and he is sorry about it.
[19] The
Applicants seek interim relief and having heard counsel and read the
papers I am persuaded
that the Applicant has made out a prima facie
case for interim relief and has satisfied all its requirements.
[20] In
the result I make the draft order marked “X” attached to
the papers an order of
court as amended.
Dated at Johannesburg on this 14 day
of September 2021
M A MAKUME
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
DATE OF HEARING
:
02
September 2021
DATE OF JUDGMENT
: 14
September
2021
FOR APPLICANT
:
ADV N
Segal Sc
INSTRUCTED BY
:
Gary
Segal Attorneys
FOR RESPONDENT
:
Adv
Lisa Metzer
INSTRUCTED BY
:
JM De
Villiers Attorneys