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[2019] ZAFSHC 119
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S A Sight Enhancement Initiative v Benade and Others (278/2019) [2019] ZAFSHC 119; 2020 (5) SA 211 (FB) (5 July 2019)
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
No: 278/2019
In the matter between:
S
A SIGHT ENHANCEMENT INITIATIVE
[1]
Applicant
(Non-Profit
Organisation: 2016/308593/08)
a
nd
GIDEON
FRANCOIS BENADE
[2]
First
Respondent
VM
OPTICS
Second
Respondent
LIBRA
OPTICAL
Third
Respondent
Coram:
Opperman,
J
Heard:
25
APRIL 2019
Delivered:
5
JULY
2019
Judgment:
Opperman
J
Summary:
Restraint
of trade – non-profit organisation – protectable interest
of non-profit organisation in business
JUDGMENT
INTRODUCTION
1.
The
applicant seeks a final interdict to enforce the covenant of
restraint of trade and vindicatory relief pertaining to some moveable
assets. The case revolves, mainly, around the restraint-of-trade
provision. The dispute is distinctive in that the applicant is
a
registered non-profit organisation.
2.
The
Non-profit Organisations Act
71
of 1997
defines
a “non-profit organisation” (NPO) to mean a trust,
company or other association of persons—
(a)
established
for a public purpose; and
(b) the income and
property of which are not distributable to its members or
office-bearers except as reasonable compensation for
services
rendered.
3.
On
26 May 2017 the Companies and Intellectual Property Commission of
South Africa issued the applicant with a Certificate of
Confirmation
[3]
in which the
“enterprise type” was depicted as a “Non-profit
Company” and the “enterprise status”
to be “in
Business”. It is important to realise at this stage that NPOs
are more often than not businesses and the
accreditation of the
enterprise status by the Commission confirms such. The NGO is
distinguishable in that any income and profit
must be applied for
public purpose except for fair remuneration for services rendered to
members or office bearers.
4.
Fodor
and Radebe
[4]
summarise the system in which charity organisations operates under
the law with reference to “The Law of South Africa”
(LAWSA), second edition (2011), volume 31, page 4 to 5 and 86 to 97.
(Also see the White Paper on Social Welfare Government Gazette
18166
GN 1108, 8 August 1997), pertinently.
“
South
Africa's legal system is
affected by the Roman Dutch and English legislative regimes' historic
impact on its development. However,
the spirit of
Ubuntu
(a
Zulu word that denotes the essential human virtues including
compassion and humanity) with which the South African Constitution
is
infused is pervasive in post-Apartheid legislation.
Charity law in South
Africa is broadly classed under the heading of "welfare".
As such, the Constitution places welfare
within the ambit of
co-operative government (
part 2, Volume 31, LAWSA
), with
national and provincial government enjoying concurrent jurisdiction.
Each province can promulgate its own welfare statutes
in addition to
the nationally applicable statutes like the
Non-Profit Organisations
Act 1997
and the
Companies Act 2008
. The
Non-Profit Organisations Act
1997
represents the culmination of the efforts of the Directorate for
Non-Governmental Organisations, under the auspices of the Department
of Welfare. It takes a holistic approach to the welfare sector,
creating an enabling environment to address the needs of the greater
South African society.”
5.
On
12 July 2017 the applicant was issued with a “Certificate of
Registration of a Non-Profit Organisation”
[5]
by the Department of Social Development that declared the applicant
to meet the requirements for registration
.
6.
The
applicant was established to provide low cost access to basic eye
care in underserviced areas in South Africa by doing electronic
eye
screening. After screening the person will choose a frame. The
glasses are ordered from a specific supplier. The glasses are
sold at
a fixed price which included the free eye screening, the frame, case
and cloth and normally the person will pay on lay-buy
for the glasses
in one to four instalments.
7.
Applicant’s
Memorandum of Incorporation
[6]
states as follows:
“
2.1
INTRODUCTION
Visual impairment is not
just a health problem – it has economic, educational and public
safety implications. According to
the World Health Organisation
approximately 90% of the world’s visually impaired live in low-
income settings, and 80% of
all visual impairment can be prevented or
cured. A pair of eyeglasses can transform the life of a poor person –
from enabling
a child to read and learn, to enabling an adult to
perform daily tasks such as cooking food, sewing, shopping or driving
a motor
vehicle. Employment opportunities are severely limited by
visual impairment.
The company is a
non-profit company without members, and with the following object:
To provide corrective
healthcare treatment to poor and needy visually-impaired persons,
thereby improving their socio-economic situations
and transforming
their quality of life.
It aims to achieve this
objective by offering mobile care services to the poor and needy in
impoverished and rural areas, through
the provision of,
inter
alia
:
·
Free
eye testing in rural and impoverished areas;
·
Free
or low-cost eyeglasses, according to assessed need;
·
Patient
education regarding follow-up treatment and
·
Access
to specialised surgical intervention, where necessary.
2. OBJECTS AND POWERS OF
THE COMPANY
2.5 All activities of the
company shall be carried out in a non-profit manner and with an
altruistic or philanthropic intent and
no such activity shall be
intended to directly or indirectly promote the economic self-interest
of any director, officer or employee
of the company, otherwise than
by way of reasonable remuneration payable to that director, officer
or employee.”
DISPUTE
8.
The
first respondent unequivocally admits in his opposing affidavit that
he continued business against the covenant of the restraint
of
trade.
[7]
He questions that the
applicant possesses a proprietary interest and/or clear right that
warrants the enforcement of a covenant
of restraint of trade. It is
the first respondent case that the applicant does indeed apply all
its assets and income, however
derived, to advance the objectives of
the organisation. Nevertheless, SASEI may not restrain charity
services by way of contract;
it will be against public policy.
[8]
9.
He,
in addition, attacks the fairness of the covenant because of the
following:
[9]
9.1
I
have been in this occupation for a mere three years now. First as an
employee of the applicant and later as a business owner with
my own
clientele.
9.2
Although
I am still finding my feet, I learned the needs of the community I
serve and find their appreciation of the service I render
very
rewarding.
9.3
I
have no other foreseeable means of making a living.
First respondent further
averred that the applicant is merely acting maliciously with the
claim.
10.
The
argument of the first respondent is that enforcement of the restraint
of trade is in direct contrast with the fair rendering
of services to
the community. It is only logical that the more service providers to
the community, the more beneficial it would
be to the impoverished in
need of eye care.
11.
Moreover,
first respondent specifically denies that “the applicant has
clients and suggests that it might rather have beneficiaries.”
He sourced the individuals in issue as clients himself. They were not
part of the data base of clients supplied by the applicant.
12.
He
further admits that he ordered supplies from suppliers in breach of
the contract. He was forced to do this because the applicant
repudiated the contract.
[10]
In regard to the claim for delivery of goods the defence is that it
was not part of the lease agreement although he is in possession
of
some items and tender delivery to the applicant thereof.
THE CLAIM AND THE
FACTS
13.
The
claim is against the first respondent only. There lies no claim
against second and third respondents and no relief or costs
order is
sought against them. They are cited due to the alleged fact that they
provided first respondent with supplies to act in
alleged
contradiction with the restraint of trade clause in the contract and
might have an interest in the litigation.
14.
The
agreement between applicant and first respondent was entered into
with the resolve to improve access to basic eye care services
in
underserviced areas in the Republic of South Africa by mobile units
and/or on fixed premises.
15.
The
agreement can be typified as a hybrid supplier/lease/profit
share/sub-contractor service agreement.
[11]
The applicant’s claim is based on this agreement only.
[12]
The terms of the contract are common cause. It is common cause that
the contract was terminated; the reasons and cause thereof
are in
dispute but not relevant to the existing litigation.
[13]
The date of termination will be deemed to be 1 November 2018.
16.
The
applicant did not enter into the contract with the first respondent
with the intention that he, first respondent, be a beneficiary
of the
NPO but purely for the purposes of promoting the business and welfare
objectives of the SASEI.
[14]
The first respondent is just what the agreement depicts; an
independent contractor.
[15]
The individuals serviced by the applicant and the first respondent
are indeed beneficiaries. The moment when the first respondent
engaged in his private capacity and not in terms of the agreement in
business with the public, he turned them, per definition,
into
clients for his own gain.
17.
The core of
the agreement lies with the first respondent to do a free, practical
eye screening, after which he assists the member
of public to choose
a frame and make an arrangement for the lay-buy payment of the
glasses with such a member of public, upon which
the pre-fixed tariff
for the glasses will be collected by the first respondent. On
payment of 75% of the price for the glasses,
the laboratory
automatically receives the script, manufactures the glasses and
delivers same directly to the first respondent.
18.
The
agreement
inter
alia
provided:
18.1
That
the first respondent will not at any time during the course of the
agreement or during any renewal or extension thereof or
during the
duration of the restraint period directly or indirectly enter into
negotiations or conclude any agreement with any third
party which
would in any other way conflict with or detract from the objective
set out in the agreement, or offer products or services
similar or
related to the products or services rendered by the applicant (clause
7.1.1), and
18.2
first
respondent will for the duration of the agreement with consideration
of the restraint period comply with all the terms and
obligations of
the agreement (clause 8.1), and
18.3
first
respondent will for the duration of the agreement place exclusively
with applicant all orders for products relating to the
services
rendered in execution thereof, such orders to be placed and processed
as specified in the operation/administrative system
(clause 8.1.1),
and
18.4
the
products (glasses) are sold at a fixed rate, as referred to in clause
9 of the agreement, for example initially a single vision
eye glass
was sold at the amount of R550.00, of which an amount of R210.00 was
retained by the first respondent and an amount of
R340.00 should have
been paid over to the applicant, and
18.5
that
the first respondent, its executives including but not limited to a
proprietor, principal, member, agent, partner, representative,
shareholder, director, manager, consultant, advisor, financier,
administrator and/or in any other like capacity (restrainees)
irrevocably undertake in favour of the applicant, and its successor
entitled, that they shall not from the date of termination of
the
agreement for the period of 2 years within the allotted area or any
other area already in service of the applicant, be directly
or
indirectly associated and/or concerned with, interested and/or
engaged in and/or interest itself in any firm, business, company,
close corporation or any other form of business that carries on
business similar to the business of the applicant (clause 28.1).
19.
It all
worked very well, until the first respondent fell in arrears with his
payments of the agreed amount(s) to the applicant,
while, on the
other side, the applicant remained liable towards the laboratory for
payment of all those applicable frames and glasses
having been
manufactured by the laboratory.
20.
First
respondent is currently in arrears to the amount of R201,619.94 in
terms of payments due and payable to applicant, while applicant
was
obliged to pay all laboratory invoices, which it indeed did.
First respondent’s failure to pay the applicant the
agreed
amount in terms of each eye screening and glasses basically caused
the business relationship between the applicant and the
first
respondent to have deteriorated to such an extent that it was finally
terminated during November 2018. Applicant issued summons
in relation
hereto in the Regional Court, Bloemfontein and the summons was served
simultaneously with service of this application.
THE
LAW
21.
The
major issue is, and specific to the facts
in
casu;
whether the applicant wants protection of charity or merely business
that generates an income and which is ploughed back into the
non-profit organisation to render welfare services to the indigent.
If the protectable right
[16]
claimed is charity, the question that follows is whether any entity
may have contractual monopoly and a protectable interest in
charity
to the community. If the protectable interest; on the facts is
business to generate income or profit for charity, will
the covenant
be automatically illegal and unenforceable because the applicant is a
non-profit organisation?
22.
Sutherland
[17]
summarized the situation in law as it stands currently in South
Africa correctly:
22.1
The
mere fact that an entity is typified as an association not for profit
or a
section 21
company will not in itself mean that its activities
will not be subject to competition law rules.
22.2
These
entities often perform economic activities that even earn profits,
although the profits made from those activities may not
be
distributed to their members.
22.3
The
organisational structure of an entity should nevertheless be
considered as one of the evidentiary factors that point towards
it
being involved in business or non-business activities.
22.4
The
nature of the activity may depend on the nature of the entity
performing it. The entity’s
central
purpose might not be to achieve profit. The activity at issue may not
be commercial in that there is no attempt to profit
from it or that
the underlying activity does not affect commerce, regardless of the
actor's intent.
22.5
The
fundraising activities of charities are probably immune from the
Competition Act 89 of 1998
although there may also be strong
arguments for subjecting these activities to competition law
supervision.
23.
Lindsey
D. Blanchard
[18]
in an article
themed “
Charitable
Non-profits’ Use of Noncompetition Agreements: Having the Best
of Both Worlds”
reflects
the focus and question of this case when she stated:
“
However,
in a competitive marketplace—where every person is out for him
or herself and the goal is to maximize profits—courts
and
legislatures in many jurisdictions are reluctant to invalidate
otherwise reasonable noncompetition agreements. After all, companies
should have the right to expect that freely negotiated contract
provisions will be enforced. But what if the noncompetition agreement
is entered into between an individual and a non-profit organization?
Should the non-profit organization have the same right of
expectation? For the most part, the courts and legislatures seem to
think so. And, perhaps they are right, at least when it comes
to the
general class of non-profits and to non-profits that are protecting
their interests against for-profit entities.”
24.
It
goes without saying that charity in its purest form may never belong
to any one entity. Neither by contract nor by law. Charity
is for the
people from the people. There is not a formal legal definition of
charity. The English dictionary meaning does not pay
homage to the
word “charity”
[19]
in the African sphere as does the guiding principle of “Unbuntu”.
[20]
The sentiment correlates with the principia that developed the
Competition Act 89 of 1998
:
“
On
the contrary, it is the result of a determined policy initiative to
bring South African competition law into line with international
best
practice, adapted for an African and developing country
environment.”
[21]
25.
Charity
is not only monetary relief to the poor. In 1964 Potgieter J in
Stadsraad, Edenburg v NG Gemeente, Edenburg
1965 (2) SA 112
(O)
quoted
Lord
Herschell from
the
case of
Commissioners
for Special Purposes of Income Tax v Pemsel,
[1891] UKHL 1
;
1891 A.C. 531
on pages 571 and 572:
“
It is the
helplessness of those who are the objects of its care which invokes
the assistance of the benevolent. I think, then, that
the popular
conception of a charitable purpose covers the relief of any form of
necessity, destitution or helplessness which excites
the compassion
or sympathy of men, and so appeals to their benevolence for relief.”
26.
The
predicament is when charity involves business. In Council for Medical
Schemes and Others v Liberty Medical Scheme and Another
(35254/2012)
[2013] ZAGPPHC 542 (28 May 2013) in paragraph 28 the dictum of the
Australian High Court, Williams Breen v Williams
(1996) 186 CLR 71
(HCA) were relied upon and which is also relevant in this case:
“
The
law of fiduciary duty rests not so much on morality or conscience as
on the acceptance of the implications of the biblical injunction
that
'[n]o man can serve two masters’ (Matt 6:24). Duty and self-
interest, like God and Mammon, make inconsistent calls
on the
faithful.”
27.
In
terms of the
Constitution
of the Republic of South Africa, 1996 e
very
citizen has the right to choose their trade, occupation or profession
freely. The practice of a trade, occupation or profession
may be
regulated by law.
28.
The
Magna Alloys-test
[22]
is
trite. The adjudication of restraint-of-trade disputes was ruled by
the Supreme Court of Appeals to be on the following principles:
28.1
Each
agreement should be examined with regard to its own circumstances to
ascertain whether the enforcement of the agreement would
be contrary
to public policy.
28.2
In
which case it would be unenforceable.
28.3
Although
public policy requires that agreements freely entered into should be
honoured, it also requires, generally, that everyone
should be free
to seek fulfilment in the business and professional world.
28.4
An
unreasonable restriction of a person's freedom of trade would
probably also be contrary to public policy, should it be enforced.
28.5
Acceptance
of public policy as the criterion means that, when a party alleges
that he is not bound by a restrictive condition to
which he had
agreed, he bears the onus of proving that the enforcement of the
condition would be contrary to public policy.
28.6
The
Court would have to have regard to the circumstances prevailing at
the time when it is asked to enforce the restriction.
CONCLUSION
29.
The
evidence leads to the conclusion that the applicant does gain
financially from the agreement with the first respondent.
30.
The mere
fact that the applicant is an NPO does not prevent the generation of
profit as long as it is for the benefit of charity
and provided that
it applies all its assets, income and profit to the welfare and
objective of the organisation’s altruistic
and selfless
activities. The evidence does not proof any misconduct or
transgressions in this regard by the applicant. His contract
with the
first respondent is to promote charity.
31.
The
applicant had a business relationship cemented in the agreement with
the first respondent and the activity performed in regard
to the
services rendered is an economic activity that might affect commerce.
The lease of the equipment and the supply of the glasses
is
indicative of this.
32.
It does,
however, remain in the sphere of the contract between the parties and
does not affect the wider economy and cannot be said
to be against
the interest of the public. It does not prevent charity; it prevents
business under the name and certification of
the applicant in terms
of the contract. As said, charity or welfare is regulated by
government and nothing prevents the first respondent
to apply for
certification. If the authorities deem his services necessary
it will issue consent. This cannot be prevented
by the applicant by
contract.
33.
The
legality of “trade in charity” in welfare services is
regulated by government and not contract between entities
horizontally.
[23]
34.
The law of
contract is just as applicable to entities for profit as it is for
non-profit entities provided that the contract may
not be to
monopolise welfare services in its primary form. The following dictum
applies:
34.1 In
Basson v Chilwan and Others
[1993] ZASCA 61
;
1993 (3) SA 742
(A) at 762H Eksteen JA
referred to:
“
The
paramount importance of upholding the sanctity of contracts, without
which all trade would be impossible …”
Further,
“
If there is one
thing that is more than public policy requires, it is that men of
full age and competent understanding shall have
the utmost liberty of
contracting, and that their contracts when entered into freely and
voluntarily shall be held sacred and shall
be enforced by courts of
justice. Therefore, you have this para-mount public policy to
consider - that you are not lightly to interfere
with this freedom of
contract.”
34.2
Justice Ackermann in Ferreira v Levin NO; Vryenhoek v Powell NO
1996
(1) SA 984
(CC) paragraph 26 described it as “a central
consideration in a constitutional state”. These statements aim
for reasonable
certainty, so that parties can go about their business
knowing the rules of the game; constitutional economic integrity is
vital.
34.3
Moseneke J (as he then was) pointed out in his dissent in Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) paragraph 98 that:
“
Public policy
cannot be determined at the behest of the idiosyncrasies of
individual contracting parties. If it were so, the determination
of
public policy would be held ransom by the infinite variations to be
found in any set of contracting parties.”
35.
The
applicant, with the restraint of trade covenant, does not want to
prevent the first respondent from doing charity work. As said
above,
charity is for the people and nobody may have a monopoly in any form
on this. His intent is inferred to be to, in terms
of a contract,
prevent the first respondent from doing business under the guise of
charity and to gain personally from the profits
in contravention of
the prescriptions regulating non-profit organisations, and to the
detriment of the beneficiaries.
36.
The first
respond was contracted as a sub-contractor doing charity work. The
evidence shows that the contract was consensual and
the terms clear.
The first respondent was bound by the contract to ensure income to
the charity by way of service and profit. He
sourced his clients
under the auspices of the applicant’s identity.
37.
The plea
that the business, in contravention of the covenant, is his only
means of making a living, does not convince to be against
public
interest and unfair if measured against the evidence as a whole. The
length of time for which the restraint operates is
not unduly long,
the geographical area to which the restraint applies is limited to
the areas specified in the contract and the
first respondent still
has the capacity to earn a living in other areas. According to the
evidence the first respondent is skilled
for other work.
38.
The plea
for return of goods is not curtailed by the issues of non-profit or
profit or charity. It goes without saying that if the
contract is
terminated in any manner whatsoever, the property remains that of the
applicant and must be returned in terms of the
contract. During the
hearing of the application the applicant conceded to claim just the
goods as referred to in paragraphs 3.1,
3.4, 3.5 and 3.6. of the
Notice of Motion.
39.
Finally,
in conclusion on the main issue; the applicant wants protection of
his business that generates an income by way of profit
and which is
ploughed back into the non-profit organisation to render welfare
services to the indigent; not charity. Charity is
not a protectable
right to be regulated horizontally between entities and for them to
claim monopoly on
via
contract. The covenant, on the facts of this case, to restrain trade
is not automatically illegal and unenforceable because the
applicant
is a non-profit organisation.
ORDER
40.
The
application is granted and it is ordered as follows:
40.1
That,
for a period of two (2) years, commencing on 1 November 2018 and in
the South Eastern Free State within the geographical area
of the
towns Bloemfontein, Reddersburg, Edenburg, Rouxville, Zastron,
Smithfield, Wepener, Dewetsdorp, Botshabelo, Thaba Nchu,
Hobhouse,
Thaba Phatswa, Tweespruit, Excelsior, Ladybrand, Marquard and
Clocolan, the first respondent is interdicted and restrained
to
directly or indirectly; in any capacity, be associated and/or
concerned with, interested and/or engaged in any firm, business,
company, close corporation or any other form of business that carries
on business similar to the business of the applicant, being
eye
screening on members of the public and the subsequent provision of
eye glasses to such member of public:
Provided
that
the first respondent may apply to register as a non-profit
organisation with the relevant authorities and if granted, continue
with the business prohibited above but, with legislatively prescribed
charity objectives;
40.2
For
a period of two (2) years, commencing on 1 November 2018, enter into
negotiations or conclude any agreement with second- and/or
third
respondents, whether in his own name or for and on behalf of a third
party, which offers products or services similar or
related to the
products or services rendered by the applicant, being in the
provision of spectacle-frames and/or the manufacturing
for and/or the
provision of eye glasses to first respondent:
Provided
that
the first respondent may apply to register as a non-profit
organisation with the relevant authorities and if granted, continue
with the business prohibited above but, with legislatively prescribed
charity objectives;
40.3
That
first respondent be ordered to immediately cease its business
rendering general eye screening services to the pubic within
the
allocated area and/or to provide members of the public within the
allocated area with eyeglasses:
Provided
that
the first respondent may apply to register as a non-profit
organisation with the relevant authorities and if granted, continue
with the business prohibited above but, with legislatively prescribed
charity objectives.
40.4
That
first respondent is ordered to remove applicant’s logo, or any
logo obviously similar in shape and colour to that of
the applicant,
from any and/or all vehicles in first respondent’s possession
or under his control.
40.5
That
first respondent is ordered to hand the items referred to in
paragraphs 3.1, 3.4, 3.5 and 3.6 back to applicant within 3 (three)
days after the date of this order.
40.6
That
first respondent is ordered to pay the costs of this application.
40.7
The
judgement must be forwarded by the Registrar of the Free State
Division of the High Court to the relevant powers that be at
the
Department of Social Welfare, South African Revenue Services and the
Registrar of Companies to investigate and ensure that
the business
that caused the dispute, that of the applicant: S A SIGHT ENHANCEMENT
INITIATIVE, is operated in accordance with the
law.
M. OPPERMAN, J
On
behalf of the Applicant:
Adv. Merabe
Instructed by:
Horn & Van Rensburg
Attorneys
BLOEMFONTEIN
Ref: MJVR/Maryke/SM2623
On
behalf of the First Respondent: Mr. J.H.D. Bloem
Instructed by:
Spangenberg, Zietsman
& Bloem Attorneys
BLOEMFONTEIN
Ref: MAT 2489
[1]
SASEI.
[2]
First respondent.
[3]
Court
Bundle on page 34.
[4]
Principia Charitable Organisations in South Africa: Overview
,
https://uk.practicallaw.thomsonreuters.com/9-632-4485?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1
sourced on 15 June 2019.
[5]
Court
Bundle on page 33.
[6]
The Memorandum of Incorporation at page 265 of the Court Bundle.
[7]
See clause 7 EXCLUSIVITY, clause 8, clause 9, clause 11, clause 14
and clause 28 RESTRAINT of the agreement marked “NJL4”
from pages 38 to 61.
[8]
Opposing affidavit in Court Bundle at pages 109 to 111 and page 116
paragraphs 81 to 83.
[9]
Opposing affidavit in Court Bundle at page 111.
[10]
The applicant denies the repudiation.
[11]
Court bundle at pages 33 to 61.
[12]
Court bundle, founding affidavit, page 13
paragraph 4.1.
[13]
See clause 6.2 on page 44 of the court bundle.
[14]
See clause 7.2 on page 44 of the court bundle.
[15]
Clause 14.1 of the agreement on page 53 of the court bundle.
[16]
It is also referred to as “proprietary interest” in the
contract at paragraph 28.1 on page 57 of the Court Bundle.
Note that
the “proprietary interest” was not defined in the
contract.
[17]
Competition Law of South Africa,
https://www.mylexisnexis.co.za/Index.aspx:
21 June 2019, Last Updated: November 2017 at 4.4.
[18]
Golden Gate University Law Review, Volume 44 | Issue 3 Article 3,
July 2014, Charitable Nonprofits’ Use of Noncompetition
Agreements: Having the Best of Both Worlds, University of St. Thomas
School.
[19]
“Charity: the act of giving money, food, or other kinds
of help to people who are poor, sick, etc. also : something
(such as
money or food) that is given to people who are poor, sick, etc. : an
organization that helps people who are poor, sick,
etc. : the
organizations that help people in need.
Charity
| Definition of Charity by Merriam-Webster,
https://www.merriam-webster.com/dictionary/charity
retrieved on 20 June 2019.
[20]
‘’...Ubuntu - the essence of being human. Ubuntu speaks
particularly about the fact that you can't exist as a human
being in
isolation.
https://www.capetownmagazine.com/whats-the-deal-with/ubuntu/125_22_17348
on 20 June 2019.
[21]
Sutherland at 3.2.5.
[22]
Magna Alloys and Research (SA) Pty Ltd v Ellis 1984 (4) 874 (A).
[23]
Non-profit Organisations Act 71 of 1997
:
2. Objects
of Act. —The objects of this Act are to encourage and support
non-profit organisations in their
contribution to meeting the
diverse needs of the population of the Republic by—
(
a
)
creating an environment in which non-profit organisations can
flourish;
(
b
)
establishing an administrative and regulatory framework within which
non-profit organisations can conduct their affairs;
(
c
)
encouraging non-profit organisations to maintain adequate standards
of governance, transparency and accountability and to improve
those
standards;
(
d
)
creating an environment within which the public may have access to
information concerning registered non-profit organisations;
and
(
e
)
promoting a spirit of co-operation and shared responsibility within
government, donors and amongst other interested persons
in their
dealings with non-profit organisations.
3. State’s
responsibility to non-profit organisations. —Within the limits
prescribed by law, every
organ of state must determine and
co-ordinate the implementation of its policies and measures in a
manner designed to promote,
support and enhance the capacity of
non-profit organisations to perform their functions.
Fodor and
Radebe supra states the principal legislative sources of law in this
instance correctly as: The Constitution of South
Africa, 1996, The
Non-Profit Organisations Act, 71 of 1997
, The
Companies Act 71 of
2008
, The Trust Property Control Act 57 of 1988 and The Income Tax
Act 58 of 1962. I would add herewith The
Competition Act
89
of 1998
for purposes of this judgement.