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[2020] ZAGPPHC 10
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Savvy Holdings Group (Pty) Ltd v Sewel and Another (93147/2019) [2020] ZAGPPHC 10 (15 January 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 93147/2019
15/1/2020
In
the matter between:
SAVVY
HOLDINGS GROUP (PTY) LTD
APPELLANT
And
ELLY
ELIZABETH MARRY JACOB SEWEL
FIRST RESPONDENT
XPAND-MEDIA
(PTY) LTD
SECOND RESPONDENT
JUDGMENT
MAVUNDLA
J ;
[1]
The applicant approached this court seeking the following relief
that:
1.1
the matter be heard on urgent basis in
terms of Rule 6(12) of the Uniform Court Rules:
1.2
an interim interdict be issued in the
following terms:
a.
that the first respondent be restrained
and interdicted from being involved, in any capacity including, but
not limited to, that
of principal, agent, partner, representative,
shareholder, consultant, advisor, financier, demonstrator, employer
or any like capacity,
with any entity in any business which competes
with or carries on business activities in the sector of the
applicant, pending the
finalization of the action brought under case
number 82133/2019;
b.
That the first respondent be restrained
from and interdicted from sharing confidential information gathered
by virtue of employment
by the applicant, alternatively gained access
to by virtue of employment by the applicant, which may to be to the
detriment of
applicant's business success, pending the finalization
of the action brought under case number 82133/2019;
c.
That the first respondent be restrained
from and interdicted from communicating, dealing, negotiating prices
with or giving quotations
to customers or former customers of the
applicant in any regard whatsoever, pending the finalization of the
action brought under
case number 82133/19.
1.3
That
the first respondent be directed to terminate her employment with
second respondent, pending the finalization of the action
brought
under case number 82133/2019.
1.4
Cost of this application on a scale as
between attorney and client;
1.5
Further and or alternative relief.
[2]
The applicant is a juristic person, whose founding affidavit is
deposed to by its
only director Mr Armanda Matthysen, a businessman
of Beyerspark in Boksburg.
[3]
It
is common cause that the first respondent was on or about 1 March
2018 employed by the applicant as a general manager, office
manager
and human resources officer. The terms and conditions of her
employment were regulated by the contract of employment which
its
effective date was from 6 March 2018. A copy of the employment
agreement was attached to the papers as annexure SH3. It contained,
inter alia, confidentially clauses and undertaking not to be engaged
in any other business, in competition with the employer's
business,
be it direct or indirect or as a shareholder, partner, member of a
close Corporation, director of a company, or in any
other capacity
within 1 (one) year after termination of the agreement, in the area
of Gauteng.
[4]
It
is common cause that the applicant left her employment with the
applicant on 3 October 2019.
[5]
According
to the applicant during:
5.1
October
2019 it became aware that the first respondent had been employed by
the second respondent. The applicant also became aware
that the first
respondent and the second respondent have been contacting the clients
and employees of the applicant in order to
induce them to move their
business relations to the second respondent
5.2
both
the first and second respondents have used and are still using the
applicant's information, such as clients list and price
list specific
to various clients, which they have wrongfully misappropriated from
the applicant in order to entice the clients
and employees of the
applicant to move their business relations to the second respondent;
5.3
as a result of the above, it is clear,
that the first respondent further also breached the agreement in one
or more of the following
respects:
5.3.1
she
engaged in the business of the second respondent in direct
competition with the applicant in Gauteng;
5.3.2
alternatively
she rendered services to the second respondent through a labour
broker;
5.3.3
She
rendered services from August 2019 until date hereof and within the
twelve months' period of restrained of trade as agreed to
between the
first respondent and the applicant.
5.3.4
as
a direct result of this breach and the misuse of the wrongfully
misappropriated information from the applicant, the applicant
suffered damages in the amount of R1 364 940. 47, calculated as
follows:
i
the respondents cause a client, K2014126770 (Pty) Ltd ta Luvland, to
cancel its agreement with the applicant and move its business to the
second respondent. The yearly value of this agreement was
R971183.84;
ii
the respondents cause a further client,
Sunset Palms, to cancel its agreement with the applicant and move its
business this to the
second respondent. The yearly value of this
agreement was R253 425.00;
iii
the
respondents caused a further client, Continental, to and move its
business to the second respondent. The yearly value of this
agreement
was R140 331.63.
[6]
The
applicant contended that it has a
prima
facie
right by virtue of the
agreements entered between the applicant and the first respondent and
has a an enforceable restrained of
trade against the first
respondent. The respondent is in the process of enforcing the
restrained of trade through the summons it
issued against the
respondents in this court under case number 82132/2019 on 31 October
2019.
[7]
The
applicant further contended that it has to date suffered damages in
the amount of R1 364 940.47, and the respondents have not
ceased
contacting and or enticing the clients and employees of the applicant
to move their business relations to the second respondent.
Should the
court not come its rescue, it will suffer irreparable harm, in
particular because the damages claim it instituted against
the
respondent might not be finalised in the immediate future, by which
time it would have been forced to cease its business and
its
employees left without employment.
[8]
The
applicant further contended in its papers that balance of convenience
in this matter favours as a result of the fact that our
legal system
clearly prohibits the respondents, breaking a valid and enforceable
restraint of trade.
[9]
The
applicant further contended that it has no other remedy by virtue of
the urgency of the matter, which urgency is due to:
9.1
the
applicant's attorney having addressed a letter requesting an
undertaking from respondents that it (sic) will cease its
infringement
of restraint of trade on 21October 2019;
9.2
the
respondents per letter dated 6 November 2019 marked annexure SH2,
duly refused to provide such undertaking to the applicant
thus
necessitating the applicant to institute a claim for the restraint of
trade order and damages suffered as a result of the
actions by the
respondents on 6 November 2019;
9.3
it
came to the applicant's attention on 10 December 2019 that the
conduct of the respondents has not ceased and the respondents
caused
yet another client of the applicant to cancel its service agreement
with the applicant resulting in a major loss for the
applicant;
9.4
it is the belief of the applicant that
as a result if the actions of the respondents has had on its
business, the applicant will
cease to be financially viable and be
forced to close down should this court not hear the matter on urgent
basis.
[10] The first
respondent in opposing the application contended,
inter alia,
in
her answering affidavit that:
10.1 the urgent application
was served by the applicant's attorney of record,
via
email on
Kern & Partners Attorneys on Friday 13 December 2019 at
approximately 12h30;
10.2
it is common cause that the parties are
currently engaged in action proceedings in this court under case
number 82133/2019, wherein
Kern & Partners Attorneys were
appointed by the respondents (being the defendants therein) as their
attorney of record;
10.3
this urgent application by the applicant
does not constitute an interlocutory application under the aforesaid
mentioned action proceedings,
and therefore amounts to a document
initiating new proceedings. Accordingly, service of this application
was required to be compliant
with rule 4 of the Uniform Rules of
Court, and ought to have been served by the sheriff direct on the
respondents;
10.3
at no point was it agreed between the
parties that Kern & Partners Attorneys would accept service of
this application on behalf
of the respondents, and therefore service
has not been effected;
10.4
The applicant has not sought any
condonation for its failure to comply with the requirements for
service, nor has the applicant
provided any motivation for its
failure to comply with the said requirements. Accordingly, service
has not been effected and on
that ground alone the application falls
to be dismissed with a punitive costs order;
10.5
the purported urgency is premised on two
aspects, namely:
10.5.1
the respondent's failure to provide an
undertaking that they would cease infringing the alleged restraint of
trade;
10.5.2 the respondents' purportedly
causing a client of the applicant to cancel its service agreement
with the applicant
resulting in major losses to the applicant;
10.6
the alleged letter by the applicant
dated 21 October 2019 was addressed to the second respondent, and
makes no mention whatsoever
of any purported restraint of trade.
Therein the applicant makes various allegations against the second
respondent and demands
an undertaking that the second respondent
would cease any further unlawful conduct in competing with the
applicant;
10.7
the second respondent rightfully refused
to provide any undertaking;
10.8
the aforesaid exchange of correspondence
occurred between 21 October 2019 and 6 November 2019, whereas this
application was only
served five weeks later on 13 December 2019,
which demonstrates that on the applicant's version, the matter was
not urgent as alleged;
10.9
the applicant has failed to take the
court into its confidence, and has deliberately failed to provide any
information regarding
the client the respondents allegedly caused to
cancel its service agreement;
10.10
the first respondent dispute that the
matter is urgent;
10.11
the application was served on Kern &
Partners Attorneys on Friday 13 December 2019 at 12h30, affording the
respondents until
19 December 2019 to serve a notice to oppose, and
until 27 December 2019 to serve an answering affidavit, which conduct
of the
applicant is an abuse of the court process;
10.12
the applicant denies that she is working
or engaged in the sector of the applicant, and the applicant has
failed at any stage in
its affidavit to dearly define its purported
"sector" and denies having or intended to contact the
applicant's clients
or prospective clients.
10.13
the applicant is involved in in mobile
advertising using trailers, and by the very nature of its business,
the identity of the applicant's
clients is public knowledge and any
third party is at liberty to contact those clients;
10.14
the first respondent denies having
breached any agreement, having contacted applicant's clients; having
utilized any of applicant's
information to nor did entice applicant's
clients and employees;
10.15
no relief is sought against the second
respondent;
10.16
the first respondent is a 58 year
unemployed widow, the interdict sought, if granted, will in effect
have the effect of restraining
her for a period of four years, with
no recourse whatsoever against the applicant, which restraint is too
wide and broad and unreasonable;
10.17
the application should be dismissed with
punitive costs order.
[11] The second
respondent, through the affidavit of its general manager Mr Marne
Andries Els contended
that:
11.1
the business of the applicant entails
providing mobile adverting in the form if banners, boards etc. on
mobile trailers which are
then placed on the side of the road at
various high volume traffic locations, such as busy intersections.
For the past several
years the applicant has been virtually the sole
supplier of such service within Boksburg and East Rand area, and as a
result thereof
has profited greatly;
11.2
since July 2019 the second respondent
has successfully inserted themselves in this industry in direct
competition with the applicant,
which has naturally resulted in a
decline of the applicant's business;
11.3
the applicant has through various ways
tried to hamstring the second respondent thus to removing the
competition, resulting in baseless
legal litigation and encumbering
the second respondent in unnecessarily exorbitant legal expenses;
11.4
from the applicant's notice of motion it
does not seem that there is any relief sought against the second
respondent;
11.5
the second respondent denied any
allegation levelled upon it in the letter of demand to cease acting
in competition with the applicant;
11.6
the applicant has,
inter
alia,
directly contacted:
11.6.1
the second respondent's client's
printing service provider in order to ensure that they would no
longer provide printing services
to the second respondent, which
conduct amounts to unlawful interference;
11.6.2
second respondent's numerous clients
stating that the business of the second respondent is unlawful and
that applicant intended
to suing for damages;
11.7
the second respondent denies:
11.7.1 having caused any of the
applicant's clients to cancel their services with the applicant
prematurely;
11.7.2
having used any of the applicant's
information, nor having appropriated such information wrongfully or
at all;
11.7.3
that the applicant has suffered any
damages as a result of any conduct on the part of the second
respondent or at all;
11.8
in respect of K2014126770 Pty Ltd t/a
Luvland, the latter ended its relationship with the applicant as it
elected to employ the
services of a third party named Next Level
Branding. It was only at a later stage that it was agreed that the
second respondent
would provide advertising in the East Rand area
while Next Level Branding would provide these services in Pretoria.
The relationship
between the applicant and the third party had
terminated before the second respondent had any involvement with this
client;
11.9
in respect of Sunset Palms terminating
their services agreement with the applicant in March 2019, roughly
three months before the
second respondent was even incorporated, the
second respondent was in no way responsible for the alleged claimed
loss;
11.10
Continental has not utilised the
services agreement of the applicant for over a year, therefore the
applicant cannot hold the second
respondent liable for damages due to
the fact this client has now elected to employ the services of the
second respondent;
11.11
the
second respondent prays that the application should be dismissed with
punitive attorney and client costs.
[12] The applicant
filed its replying affidavit, to which it attached annexure AM 3, an
accounting statement
of Savvy, showing that it received various
payments,
inter alia,
from Sunset Palms; Luvland, and
Continental to demonstrate that these were its clients effecting
payments as late as in 2019. (I
must point out that in so far as:
i.
Sunset
Palms there are only five credit payments between 16 / 04 2019 and
24/04/2019.
ii.
Luvland
there are six various payment transactions between 05/04/ 2019 and
12/09/2019;
iii.
Continental
is concerned, there is only two credit payments transaction between
since 13 August 2018 and 05/ 10 /2019.)
[13] the applicant,
persists,
inter alia,
that:
13.1
the matter is urgent and that the rules
permit that service can be effected upon the respondents' attorneys
of record and that
in casu
there
was concession, in this regard attaching annexure AMI remitted on 13
/ 12 /2019;
13.2
the summons was issued on 31 October
2019 and when on 10 December 2019 the respondents continued with
their conduct, the applicant
had no option but to bring the urgent
application in order to mitigate its damages;
13.3
the respondents were afforded 14 days to
file their answering affidavit but took extra 10 days before filing
their answering affidavit;
13.4
the applicant did apply for condonation.
[14] Rule 4(1)(a A}
provides that: "Where any person to be served with any document
initiating application
proceedings is already represented by an
attorney of record, such document may be served upon such attorney by
the party initiating
such proceedings."
[15] In the
Erasmus
Superior Court Practice second Edition,
[Service
3, 2016] 01-37 the learned authors stated that:
"Subrule
(1)(a Al this rule makes It clear that service by the sheriff is not
necessary in interlocutory applications where
there is already an
attorney of record for the respondent.
[1]
The subrule applies to the service of an application in terms of rule
43 in pending divorce proceedings."
[16] In the matter of
BHP Billiton Energy Coal SA v
Minister of Mineral Resources
[2]
the Court in respect of the
aforesaid Subrule (l){a A) held that: "It is apparent that this
Rule applies to proceedings already
instituted
(Herbstein
and Van Winsen, The Civil Practice of the High Courts of South
Africa,
Volume 1, 5th edition, pp.
343 and 359) so that it in effect applies to ancillary and
interlocutory applications. It is the Applicant's
contention that the
interdict proceedings were brought pending the initiation of the
review proceedings not later than 25 January
2007 and that the
interdict proceedings are indeed interlocutory to the main
application, being the review proceedings.
In my opinion it is obvious that the interdict
proceedings were instituted on a dispute relating to the refusal of
prospecting rights
in respect of which the Applicant had the
exclusive right to apply and had as its aim to restrain the First,
Second and Fourth
Respondents from granting any rights mining rights
to any other person pending the institution of review proceedings
challenging
the refusal to grant the Applicant such prospecting
rights. As such those proceedings were, so to speak,
pendente lite
or incidental to the review proceedings which were to be
initiated not later than 25 January 2006 (see: South Cape Corporation
(Pty)
Ltd v Engineering Management Services 1977(3) SA 534 (A) at
549G-H). It had at its aim to protect the very interest which formed
the subject of the review application until such time as the review
application has been pronounced upon.
I am accordingly satisfied that the Applicant's
attorney of record was by virtue of Rule 4(1)(aA) entitled to serve
the review proceedings
on the State Attorney who was on record in the
interdict proceedings, who eventually came on record in the review
proceedings and
who, incidentally, in effect confirmed that they were
still on record and agreed to accept serve on behalf of the
Respondents."
[17] This decision in
BHP Billiton Energy Coal SA v
Minister of Mineral Resources supra
was
confirmed by the Supreme Court of Appeal in the matter of
Finishing
Touch v BHP Billiton Energy Coal SA,
[3]
a matter which did not deal with
rule 43 , clearly pointing out that the thus rule is not confined to
rule 43, as contended, with
respect, by the learned authors in the
Erasmus Superior Court Practice Second Edition vide paragraph (14]
supra.
[18] The applicant has
already initiated aa damages action against the present respondents
(therein as defendants)
and the attorneys of record are the same
attorneys for the respondents in this application. In the damages
action, the question
of restraint clause is one of the issues to be
decided, which will be dealing with the rights and interest of the
present applicant.
In the present application the applicant seeks
protection of its commercial interest through an interim restraint
order against
the respondents. In both matters the parties are the
same, and the attorneys are the same. The applicant has placed,
albeit through
replying affidavit a letter indicating that the
respondents' attorneys of record agreed to accept service of the
present application
on behalf of the respondents. That being the
position, in my view, there is no prejudice suffered by the
respondents in finding
that although the application is not an
interlocutory application to the main action, the service on their
attorneys of record
cannot be faulted.
[19] The respondents
complain about the extent to which the applicant abridged the time
frames provided
for by rule 6(5). In the matter of
Luna
Meubels Vevaardigers (Edms) Bpk v Makin and Another (t/a Makinn's
Furniture Manufactures)
[4]
the Court cautioned that
practitioners should carefully analyse the facts of each case to
determine, for the purposes of setting
the case down for hearing,
whether a greater or lesser degree of relaxation of the Rules and of
the ordinary practice of the Court
is required. The degree of
relaxation should not be greater than the exigency of the case
demands. It must be commensurate therewith.
Mere lip service to the
requirements of Rule 6 (12) (b) will not do and an applicant must
make out a case in the founding affidavit
to justify the particular
extent of the departure from the norm, which is involved in the time
and day for which the matter will
be set down.
[20] A party brining an
urgent application must depart as little as possible from rule
G(S)(a), depending
on the degree of urgency;
vide
Gallagher v
Norman's
Transport Lines (Pty) Ltd
[5]
The degree of relaxation of the time
frames prescribed by 6(5) (a), should not be greater than the
exigency of the case demands.
It must be commensurate therewith.
[21] The application
was served on the respondent's attorney of record on 13 December
2019. The respondents
were afforded until 19 December 2019 to serve a
notice to oppose, which was a period of mere three working court
days, and until
27 December 2019 to serve their answering affidavit,
which was again a mere three court days, disregarding the fact that
it was
during festive season. However, the respondents filed their
answering affidavit on 6 January 2020. In as much as the time frames
were truncated to a bare minimum, which was unreasonable, I do not
think that this warrants the dismissal of the application. In
my mind
the respondents have shown no prejudice suffered on their part as a
result of such unreasonable abridgment of time frames.
However, the
court is entitled, within its discretion, to condone such
unreasonable abridgment but show its disapproval by way
of mulcting
the applicant with punitive costs or disallow the applicant such
costs as befit the noncompliant depending on the ultimate
outcome of
the application.
[22]
In my
view,
the application pertains to
protection of a commercial interest through an interim relief pending
the finalization of the damages
claim. According to the applicant, it
became aware of the alleged enticement of its clients by the
respondents in November 2019.
Instead of approaching the court
immediately on urgent basis for the necessary restraint interdict, it
chose to issue summons.
It was only after the 10 December 2019 when
it realised that the alleged transgressions were not desisting that
it brought the
urgent application. In my view, it cannot be said that
the delay was inordinate to a degree warranting the application to be
dismissed
for lack of urgency, which urgency I assume; vide in this
regard the authority immediately herein below.
[23]
In the matter of
Bundle
Investments (Pty) Ltd v Registrar of Deeds and Others
[6]
the Court held that:
"Although
it could conceivably be argued that the applicant was somewhat
dilatory in obtaining the required consent, the explanation
furnished
by the applicant for the delay is not unreasonable. The urgency of
commercial interests, as
in casu,
may justify the application
of Rule 6(12) no less than other interest and, for purposes of
deciding upon urgency, I must assume
that the applicant's case is a
good one and that it has a right to the relief which it seeks. (See
Twentieth Century Fox Film Corporation
and Another v Anthony Black
Films (Pty) Ltd
1982 (3) SA 582
(W) at 586."
At page
215 1· 216A in
the Bandle Investments {Pty) Ltd v Registrar
of Deeds (supra)
the Court cited from
Films Rover
International Ltd and Others v Cannon Films Sales Ltd
[1986] 3AII
ER 722(Ch)
at 780·1 where it was held that:
"The
principal dilemma about the grant of interlocutory injunctions,
whether prohibitory or mandatory, is that there is by
definition a
risk that the court may make the "wrong" decision, in the
sense of granting an injunction to a party who
fails to establish his
right at the trial or would fail if there was a trial or
alternatively, in failing to grant an injunction
to a party who
succeeds (or would succeed at trial). A fundamental principle is
therefore that the court should take whichever
course appears to
carry the lower risk of injustice if it should turn out to have been
" wrong" in the sense l have described.''
[24]
It is trite that where an interim relief
is sought, for the applicant to succeed it/ he / she must show:
"(1) that
the right which is
subject matter of the main action and which
he seeks to protect by means of an interim relief is
clear or
if
not clear, is
prima facie
established though open to
some doubt,
(11) that, if the right
is only
prima facie
established, there is a well-grounded
apprehension of irreparable harm to the applicant if the interim
relief is not granted and
he ultimately succeeds in establishing his
right,
(111) that the balance of
convenience favours the grant of interim relief; and
(iv)
that the applicant has no other
satisfactory remedy.";
vide
Bandle Investments (Pty) Ltd v Registrar of Deeds.
[7]
In
Fedsure
Life Assurance v Worldwide African Investments Holdings
[8]
the court sets out the law in regard
to interdicts as follows:
'(25)
Where the right asserted on the strength of which an interim
interdict is sought is not clear, the position is as follows
according to
Eriksen Motors (Welkom) Ltd v Warrenton and Another
1973 (3) SA 685
(A) at 691C-G:
'The
granting of an interim interdict pending an action is an
extraordinary remedy within the discretion of the Court. Where the
right which it is sought to protect is not clear, the Court's
approach in the matter of an interim interdict was lucidly laid down
by Innes JA in Setlogelo v Setlogelo1914 AO 221 at 227. In general,
the requisites are-
(a)
a
right which, 'THOUGH
prima
facie
established,
is open to some doubt';
(b)
a
well-grounded apprehension of irreparable injury;
(c)
the
absence of ordinary remedy in exercising its discretion, the Court
weighs,
inter
alia,
the
prejudice to the applicant, if the interdict is withheld, against the
prejudice to the respondent if it is granted. This is
sometimes
called the balance of convenience."
[25]
The very fact that the applicant has
already issued summons negates any suggestion that it has no other
alternative relief. I do
bear in mind the fact that the applicant
contended that if not granted the relief sought, by the time the
damages claim is finalized
it would have been financially wiped off.
I am not persuaded by this submission. The financial statements
produced relating to
the clients allegedly touted away by the
respondents, clearly indicate that there was not much financial
activity, even before
the alleged touting away;
vide
paragraph "[12]"
supra.
[26]
The applicant seeks an order directing
the first respondent to terminate her employment with the second
respondent. It also seeks
an order interdicting her from using
whatever information relating to the applicant's clients, unlawfully
procured. An employee
of any company would invariably obtain through
the work certain information,
in casu
such as customers of the applicant.
The first respondent also has a right to ply her "profession"
or work skills to even
set out her own business or practice.
[27]
There are therefore two competing
interest the court has to look at, that of the applicant and of the
first respondent. The second
respondent contended that whatever
client's applicant is moaning of, their information is out in the
public as same is displaced
on billboards along busy intersections.
This as much has not been refuted by the applicant, as such I must
accept this version.
[28]
In the context of balance of
convenience, it is apposite to cite the matter of
Basson
v Chilwan and Others
[9]
where the Appellate Court held that
there are four questions that arise in restraint matters and these
are:
(a)
whether
the claiming party has a protectable interest;
(b)
whether
such interest has been prejudiced by the other party;
(c)
if
so, whether such interest, weighed qualitatiyely and quantitatively
against the interest of the other party, such that the latter
should
not be economically inactive and unproductive; and
(d)
whether
there is another facet of public policy having nothing to do with the
relationship between the parties which requires restrain
either to be
enforced or to be voided; and that the views of the parties as
regards reasonableness of the restraint is never decisive
but only a
factor to be considered in decision as to reasonableness.
[29] In the matter of
Interest
Computation Experts en
Andere v Nelen Andere
[10]
the Court citied Grooskopft AJ in
Sunshine Records (Pty) Ltd v Frohling
and Others
[11]
as saying that:
"ln
determining whether a restriction on the freedom to trade or to
practise a profession is enforceable; a court should have
regard to
two main considerations. The first is that the public interest
requires, in general, that parties should comply with
their
contractual obligations even if these are unreasonable or unfair. The
second consideration is that all persons should, in
the interests of
society, be permitted as far as possible to engage in commerce or the
professions or, expressing this differently,
that it is detrimental
to society if an unreasonable fetter is placed on a person's freedom
of trade or to pursue a profession.
In applying these two main
considerations a court will obviously have regard to the
circumstances of the case before it. In general,
however, it will be
contrary to the public interest to enforce an
unreasonable
restriction on a person's freedom to trade."
[30] The first
respondent is a 57-year-old widow. The order directing her to
terminate her employment with
the second respondent would be
draconian and against public policy. Besides, it is uncertain when
the main trial would be finalized.
The effect of such an order would
commission the first respondent to undefined period of unemployment,
which would be unreasonable
and prejudicial to her. In my view her
prejudice by far outweighs whatever commercial prejudice the
applicant would suffer, which
in any event can still be addressed
through the damages claim already in progress.
[31]
On the other hand, the sector the
applicant seeks to lay claim to, is undefined . The applicant, when
the court asked it about this
alleged sector, responded through its
counsel that the first respondent knows it. I must hasten to state
that this was a vague
response and the sector remains undefined,
therefore it would be imprudent and unreasonable to issue an order
that denies a person
not to work in an undefined sector. The balance
of convenience dictate that the court should incline towards the side
of the first
respondent, I may as well say of the second respondent
as well and refuse to grant the applicant the reliefs sought.
Besides, on
the notice of motion itself there was no particular
relief sought against the second respondent. Therefore the
application stands
to be dismissed.
[32]
It is trite that costs follow the event.
The applicant had sought costs on attorney and client basis. I see no
reason why the respondents
are not entitled to the same type of costs
order. Accordingly, in the exercise of my discretion, the costs of
this application
must be borne by the applicant on the scale of
attorney and client.
[33] In the result the
following order is issued:
i.
That
the application is dismissed;
ii.
That
the applicant is ordered to pay the costs of the application on
attorney and client scale.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
Date
of Hearing
:
07/01/2020
Date
of Judgment
:
15/01/2020
Applicant's
Advocate :
ADV B BESTER
INSTRUCTED
BY
:
COETZEE
ATTORNEYS
Respondent's
Advocate :
ADV G.H. JANSE VAN
VUUREN
INSTRUCTED
BY
:
KEN &
PARTNERS
[1]
[2]
2011 (2) A 536 GNP at 542
[3]
2013 (2) SA 204
at 211D--213A.
[4]
1977 (4) SA 135
(W) at 1360 -E.
[5]
1992 (3) SA 500
at 502E-503 D.
[6]
2001 (2) SA 203
at 213E· F
[7]
Supra at 2141-2015B;
[8]
2003 (3) SA 268
WLD at 277F-H.
[9]
1993 (3) SA 742 (AD).
[10]
1995 (1) SA 174
(TPD) at 179F-H.
[11]
1990 (4) SA 782
(A) at 794 8 -E.