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[2019] ZAKZPHC 67
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Monteagle Consumer Group Limited v Balcomb and Others (3302/19P) [2019] ZAKZPHC 67 (3 October 2019)

REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO:  3302/19P
In the matter between:
MONTEAGLE
CONSUMER GROUP LIMITED
Applicant
and
STUART
BASIL BALCOMB
First
Respondent
STEVEN
O’CONNOR
Second
Respondent
BIANCA
JOY RIDGEWAY
Third
Respondent
OMNIGSS
(PTY)
LTD
Fourth
Responden
Coram
:  Seegobin J
ORDER
1.        The
First and Third Respondents are interdicted from continuing with
their employment
with the Fourth Respondent for a period of 9 months,
as calculated from 9 March 2019 in respect of the First Respondent
and 9 February
2019 in respect of the Third Respondent, and an
interdict restraining the Fourth Respondent from employing them for
those respective
periods;
2.
The Second and Third Respondents are directed, within 24 hours of the
granting
of an Order, to deliver their laptop computers taken by them
when they left the employ of the Applicant to the Applicant in order

to permit an expert to analyse the hard drives of the respective
laptops for confidential and proprietary information belonging
to the
Applicant;
3.
The First, Second and Third Respondents are to deliver a list to the
Applicant
of all and any confidential information and/or proprietary
information of the Applicant that they have disseminated and to whom

it was disseminated;
4.
The respondents are to pay the Applicant’s costs, such costs to
include
the costs of senior counsel.
JUDGMENT
Seegobin
J
Introduction
[1]
This is an application for an interdict and the enforcement of a
restraint of trade
agreement. The application was launched in the
normal course on 15 May 2019. It was duly opposed by the respondents
and subsequently
adjourned for argument to the opposed motion roll on
23 August 2019. When the matter served before me on that date the
applicant
was represented by Mr Mossop SC and the respondents by Mr
Phillips SC. I am indebted to both counsel for their assistance
herein.
Nature of relief
[2]
The applicant seeks final relief in the following form:
‘
1.1
an interdict restraining the First and Third Respondents from
continuing with their employment
with the Fourth Respondent for a
period of 12 months, as calculated from 9 March 2019 in respect of
the First Respondent and 9
February 2019 in respect of the Third
Respondent, and an interdict restraining the Fourth Respondent from
employing them for those
respective periods;
1.2
an Order directing the Second and Third Respondents, within 24 hours
of the granting of
an Order, to deliver their laptop computers taken
by them when they left the employ of the Applicant to the Applicant
in order
to permit an expert to analyse the hard drives of the
respective laptops for confidential and proprietary information
belonging
to the Applicant;
1.3
an Order that the First, Second and Third Respondents deliver a list
to the Applicant of
all and any confidential information and/or
proprietary information of the Applicant that they have disseminated
and to whom it
was disseminated; and
1.4
costs of suit.’
The
parties
[3]
The applicant is a public company which conducts the business of an
importer and distribution
of fast-moving consumer goods at La Lucia
on the KwaZulu-Natal North Coast. The applicant is part of the
Monteagle Group of Companies.
Although the applicant is based and
headquartered in Durban, South Africa, it conducts business all over
the world, including South
Africa. The only markets in which the
applicant is not involved are the Chinese, American and Canadian
ones. The significance of
this will become apparent in due course.
[4]
The first, second and third respondents were previously employed by
the applicant.
The second respondent left his employment on 30
September 2018. The third respondent left her employment on 8
February 2019 while
the first respondent left the applicant on 8
March 2019. In view of the fact that some time has passed between the
second respondent’s
leaving and now, the applicant does not
seek to enforce the restraint of trade agreement against him.
However, it does persist
for certain other interdictory relief
against him as set out above.
[5]
The fourth respondent is a private company which has its principal
place of business
at 265 Sydney Road, Congella, Durban,
KwaZulu-Natal. The fourth respondent conducts business as a
fast-moving consumer goods global
procurement service provider. The
fourth respondent is part of the Omnigss Group of Companies which
operate internationally. The
fourth respondent is the South African
based arm of this business.
Employment contracts
[6]
At the commencement of their respective employment with the applicant
the first, second
and third respondents each signed an employment
contract with the applicant. These employment contracts are largely
identical in
their terms and conditions. For purposes of this
application only clauses 20 and 21 are relevant. They are set out
here below:
6.1
Clause 20 deals with the protection of confidential information and
provides as follows:
‘
PROTECTION OF CONFIDENTIAL
INFORMATION
20.1     For the
purposes of this agreement, all information relating to the employer
and which is disclosed
to or becomes known to the employee in any way
is “
Confidential Information
” except information
which is in the public domain or is public knowledge.
20.2     For
clarity, examples of Confidential information include:
20.2.1
information relating to the employer’s products, services and
prices;
20.2.2
information relating to the supply of the employer’s products
and services;
20.2.3
information relating to tenders and tender prices;
20.2.4
names, credit records and other details of current and prospective
customers, suppliers
and trade connections;
20.2.5
personnel records of employees;
20.2.6
financial information such as operating results, budgets, financial
reports and financial
statements;
20.2.7
business and financial strategies and strategic plans;
20.2.8
management and administration systems, including accounting systems,
purchasing and selling
systems, service systems, inventory control
systems and personnel management systems;
20.2.9
contact details of professional advisers and all opinions, advice and
documentation supplied
by such advisers;
20.2.10
details of computer systems and software;
20.2.11    marketing and
advertising material strategies.
20.3     The
employee acknowledges that the disclosure of the employer’s
Confidential Information will
prejudice the employer.
20.4    The employee
must:
20.4.1
keep all confidential information in the strictest confidence;
20.4.2
not utilise the confidential information for any purpose other than
to perform his employment
obligations for, and in accordance with the
instructions of, the employer; and
20.4.3
not disclose the confidential information to any third party without
the prior written
consent of the employer, which may require that
such third party signs a confidentiality undertaking on terms
substantially similar
to those set out in this agreement before I
gives its consent.
20.5     The
employer may request, at any time, and without notice that all
documents, manuals and/or reports
containing its Confidential
Information, together with all copies, be returned to it immediately.
20.6     The
employee is ever legally compelled to disclose any of the employer’s
Confidential Information,
he must immediately notify the employer of
that compulsion and cooperate fully with the employer in contesting
or otherwise dealing
with that compulsion.’
6.2
Clause 21 deals with a restraint and reads as follows:
‘
RESTRAINT
21.1     In order
to protect the Confidential Information and proprietary interests of
the employer, the employee
must not, for the duration of his
employment and for a period of one (1) year thereafter:
21.1.1
be engaged in or concerned with any trade or business whether as
principle, agent, partner,
representative, director, member,
employee, consultant, advisor, financier or officer of any business
or any company or close corporation
or trust, which competes with the
business of the employer in the region of Durban;
21.1.2
be employed by a customer of the employer with whom he was directly
involved in the course
and scope of his employment with the employer;
21.1.3
either for himself, or as the agents of anyone else, persuade,
induce, solicit, encourage
or procure any employee of the employer to
become employed by, or interested, in any manner whatsoever, in any
business, firm,
undertaking, entity, trust, close corporation or
company, directly or indirectly, in competition with the business
carried on by
the employer;
21.1.4
in any way whatsoever approach, persuade, induce, solicit, encourage
or procure any such
existing customer or supplier of the employer to
become a customer or supplier of, or to do business with, any
business, firm or
undertaking which carries on, or intends carrying
on, business in competition with the employer.
21.2
Notwithstanding the above, the employee may be engaged as a holder of
shares, debentures or any other
form of indebtedness in a public
company or building society.
21.3     The
employee has considered the restraints set out in this agreement and
acknowledges that those restraints:
21.3.1
are reasonable as to their subject matter, area and duration;
21.3.2
go no further than is reasonably necessary to protect the
Confidential Information and
proprietary interests of the employer,
and
21.3.3
are reasonably required by the employer to protect its Confidential
Information and proprietary
interests.’
[7]
It is common cause that on leaving the applicant, the first, second
and third respondents
took up employment with the fourth respondent.
It is here that they are currently employed.
The
papers
[8]
The applicant’s founding affidavit was deposed to by Deborah
Vivienne Mylrea
who describes herself as a financial director of the
applicant. The answering affidavit delivered on behalf of the
respondents
was deposed to by the third respondent. The third
respondent purports to speak on behalf of all the respondents. The
first and
second respondents have put up confirmatory affidavits in
the usual form. Neither one of them has sought to deal pertinently
with
certain important allegations made against them by the
applicant.
[9]
I point out at the outset that the manner in which the answering
affidavit was drawn
has created some serious difficulties for the
respondents especially the first and second respondents. Of the 207
paragraphs that
comprise the founding affidavit, 80 of them have
simply not been answered at all. As correctly pointed out by Mr
Mossop this does
not include those paragraphs where the third
respondent avoids dealing with ‘WhatsApp’ conversations
on the basis that
these are
sub
judice
.
If one also has regard to these paragraphs the total number of
unanswered paragraphs rises to 145.
[10]
Whilst no fault can be laid at the door of Mr Phillips in this regard
as he was not the one involved
in preparing the answering papers, I
consider that the failure of a party not to deal pertinently with
allegations made against
him or her must carry serious consequences
when one assesses the issue of prospects in a matter. It is trite
that if the respondent’s
affidavit, in answer to an
applicant’s, fails to admit or deny, or confess and avoid,
allegations in the applicant’s
affidavit, the court will, for
purposes of the application; accept the applicant’s allegations
as correct.
[1]
A statement of
lack of knowledge coupled with a challenge to the applicant to prove
part of his or her case does not amount to
a denial of the averments
by the applicant.
[2]
[11]
Rather than attempting to answer the complaints made against them by
the applicant in its founding
papers, the respondents’ approach
has been to simply avoid dealing with such complaints altogether.
Instead they resorted
to raising certain points
in limine
which not surprisingly were not really persisted with by Mr Phillips
in argument.
Nature
of applicant’s business
[12]
According to the applicant ‘fast-moving consumer goods’
(in which it trades), comprise
both food products as well as non-food
products. Food products are those packaged in tins and bags such as
canned tuna, canned
pulses, pasta and frozen vegetables. Non-food
products are those that comprise baby and facial wipes, shaving gel
and canned pet
food.
[13]
In addition to its business involving fast-moving consumer goods the
applicant is also an importer
of bulk ingredients for the
manufacturing sector. It imports and sells to certain local producers
products such as bulk tapioca
starch, modified starch, soya protein
isolate as well as bulk frozen vegetables and non-food products such
as bulk talc powder.
[14]
The applicant avers that the Monteagle Group of Companies is also
involved in property ownership
and the supply of coffee and tools. It
also has a share portfolio. The market in which the applicant trades
is said to be extremely
competitive as there are a number of entities
all vying for a market share especially in the international market.
According to
the applicant any advantage that one competitor gains
over its fellow competitors can be exploited by it to improve its
position
at the expense of its fellow competitors.
[15]
Two of the applicant’s major customers are Spar and Shoprite.
Due to the large volume of
sales done with these two customers, the
applicant has also gone to the extent of affording them warehousing
and distribution solutions
to their main distribution centres. For
Spar, for instance, the applicant carries an average of about R90
million worth of stock
per month at the various warehouses. For
Shoprite it carries an average amount of R8 million worth of stock
per month at its warehouse.
The combined turnover of Spar and
Shoprite’s business in the last financial year with the
applicant is said to be in the
region of R840 million. Considering
that the applicant did business in the same financial year with 35
other customers for a total
value of less than R100 million, it
becomes apparent just how important Spar and Shoprite are to the
applicant. Approximately eighty
five per cent of the applicant’s
turnover emanates from these two entities.
Other role-players
[16]
Given the nature of the complaints being made by the applicant
against the respondents this picture
would not be complete without a
mention of two other parties, who though not cited in these
proceedings, seemed to have played
a significant role insofar as the
conduct of the first, second and third respondents are concerned. One
of them is Anthony Dumas
(‘Dumas’) who for many years was
not only employed by the applicant but was also a director of at
least four other
companies in the Monteagle Group of Companies. Dumas
left the applicant on 5 February 2019 and resigned from his positions
in the
other companies at various other times at the beginning of
2019.
[17]
While Dumas was still associated with the applicant, he proposed in
about 2018 that the applicant
should venture into the Chinese,
American and Canadian markets. The applicant, however, declined to do
so. Dumas then resolved
to leave the applicant with the sole purpose
of penetrating these markets through the fourth respondent. Since his
departure from
the applicant was based strictly on this understanding
the separation was consensual and achieved on good terms.
[18]
By agreement with the applicant and strictly on the understanding
that Dumas would be operating
in the Chinese, American and Canadian
markets, the applicant allowed him to recruit the second and third
respondents to be employed
by him at the fourth respondent. Dumas
later also recruited the first respondent to join him.
[19]
As it turned out, Dumas’s foray into the Chinese, American and
Canadian markets was unsuccessful
and the fourth respondent began
trading in competition with the applicant in a market in which the
applicant was already active.
The applicant claims that it and the
fourth respondent are now direct competitors in the same markets,
both locally and internationally.
[20]
The other person who features strongly in the applicant’s
complaints against the first,
second and third respondents is Bridget
Baker (‘Baker’). Baker was previously employed by the
applicant at its Durban
Office. She was subsequently transferred by
the applicant to work in a company in the United Kingdom known as
Monteagle International
(‘MUK’). MUK is said to be a
fully integrated global procurement shipping, supply-chain and risk
management business.
On 1 October 2018 Baker became a statutory
director of MUK. On Tuesday 5 March 2019, however, she unexpectedly
resigned from her
position with MUK.
[21]
The applicant claims that Baker had a strong bond with Dumas and that
upon leaving her employment
with the applicant she immediately took
up employment with Omnigss Ltd in London. As mentioned already, the
fourth respondent is
the South African arm of that group. How Dumas
and Baker were involved in the conduct of the first, second and third
respondents
thereby necessitating the present proceedings is dealt
with here below.
Applicant’s
case against first, second and third respondents
[22]
The applicant’s case against the first and third respondents is
that they have conducted
themselves in flagrant breach of the terms
of their employment contracts, in that not only do they have access
to, or are in possession
of confidential information belonging to the
applicant, but that they have also attempted and/or succeeded in
soliciting some of
the applicant’s suppliers/customers to the
detriment of the applicant. In short, the two forms of proprietary
interests which
the applicant contends are deserving of protection by
the restraint herein concerns,
first
,
its confidential information or trade secrets and
second
,
its trade or customer connections. I start with the case against the
first respondent.
[23]
The first respondent commenced his employment with the applicant on
17 January 2017 as a junior
trader. Prior to this he was a deckhand
on a yacht. Whatever skills and contacts he developed were all
acquired while employed
with the applicant. As a junior trader he
acquired knowledge and understanding of global market trends and
external factors that
affect prices and products. By the time he
terminated his employment with the applicant he was a divisional
trader managing specific
categories of products in various regions
such as India, the Middle East and Eastern Europe.
[24]
The applicant alleges that in performing his job, the first
respondent had direct relationships
with customers, including certain
customers with whom the applicant had previously not had any
relationships with. In this time
the first respondent helped to
establish relationships with about five customers. In this regard he
had prolonged and repeated
contact with applicant’s customers
and suppliers. The first respondent rose to middle management and in
doing so he was required
to make strategic decisions with suppliers
and customers in conjunction with the applicant’s sales
department.
[25]
According to the applicant the first respondent had access to the
following confidential information
which in terms of the applicant’s
normal practice was stored on his laptop:
25.1
product costings that would show gross profit, container packing,
duties and tariff headings, and freight
rates for projects that he
was working on;
25.2
product feasibilities that would have been emailed to clients;
25.3
the cost price and selling prices for products forming part of
projects that he was working on;
25.4
orders when they were emailed to factories required to manufacture
those orders;
25.5
all factories and customer contact details for projects that he was
working on;
25.6
supplier agreements;
25.7    a
supplier agreement summary showing which suppliers had not bound
themselves to the applicant’s terms
and conditions of sale;
25.8
the full supplier base for all products showing the packaging type,
country of origin, cases per container,
minimum print run, and shelf
life;
25.9
stock on hand for warehoused products and their expiry dates;
25.10  freight rates
of products supplied;
25.11  documentation
identifying the rate of sale of products;
25.12  credit limits
and payment terms for customers;
25.13  which
customers the applicant credit insured; and
25.14  the
divisional accounts for the division that the first respondent ran.
[26]
It is common cause that on the termination of his employment the
first respondent returned his
laptop to the applicant. It was not
clear, however, whether the proprietary information had been copied
on another storage device
or not.
[27]
The applicant goes on to catalogue a series of communication that
took place between the first
respondent and Baker in London. Baker
was at that stage still employed by MUK. The communications took
place via the WhatsApp social
network commonly utilised on cellular
phones. For purposes of this judgment I do not intend setting out
every piece of communication
between the first respondent and Baker.
A few examples will suffice to illustrate the concerns raised by the
applicant herein.
27.1    On
11 March 2019, for instance, and 3 days after leaving the applicant,
the first respondent was in contact
with Baker. In a message from
Baker she requested the first respondent to provide her with his OMNI
email address as she wanted
to copy him in on her email to ‘Hitesh’
regarding coffee. Hitesh was said to be Hitesh Mahajan who previously
worked
for the Monteagle group in the Middle East and North African
areas. According to the applicant the reference by Baker to ‘coffee’

was a reference to a project to manufacture cappuccino sticks that
was being explored by the applicant at the time. Hitesh was
no longer
working for Monteagle and was now aligned to Omnigss. It seems that
Baker now wished to include the first respondent
in her dealings with
Hitesh.
27.2    In
a separate conversation later on the same day the first respondent
requested Baker to provide him with
a list of ‘active products’
that were being supplied to Shoprite out of Eastern Europe, China,
India and Mauritius.
He asked Baker whether she was able to send him
the information from her personal mail to his new address. Baker
undertook to do
so on the following day.
27.3
This list of ‘active products’, according to the
applicant, could only mean those products that
the Monteagle Group
was purchasing out of those areas for supply to Shoprite being one of
its major customers in South Africa.
The applicant’s fear was
that the first respondent could target those suppliers and take over
the relationship.
27.4    In
a conversation with Baker on 12 March 2019 the first respondent
indicated that he was due to meet with
‘Renaldo’. Baker
had informed the first respondent that she needed more time regarding
the list he wanted. The reference
to ‘Renaldo’, according
to the applicant, was a reference to Renaldo Nadesan Phillips who was
the head buyer of the
‘Private Lines’ brand of Shoprite.
Phillips is a powerful figure at Shoprite and the entire buying
office reports to
him.
27.5    On
13 March 2019 a series of conversations took place between the first
respondent and Baker. Again there
is clear reference to the Shoprite
list regarding the goods being supplied to it by Monteagle.
27.6
From a chain of emails starting on 25 February 2019 the applicant
demonstrates how the first respondent continued
to divert business
away from it to the fourth respondent. For purposes of this judgment
I merely refer to two of the applicant’s
loyal and
long-standing suppliers from India namely ‘Mrs Bectors’
and ‘Mother Nutri’. The contents of an
email from Dumas
to a sales director of the applicant on 25 March 2019 which was
copied to first respondent and Phillips confirm
conclusively that the
above suppliers from India were now opting to trade with Omni. The
email reads as follows:
‘
Mrs Bectors & Mother Nutri
have opted to trade exclusively through Omni and have notified
Shoprite as such, the notification
has been acknowledged c/o Renaldo
who has asked us to advise you.
It
would be 100% our intention to complete your orders currently in the
system and manage an amicable hand over in the best interest
and
wishes of our mutual client Shoprite.’
[28]
As far as the second respondent is concerned the applicant contends
that he too, like the first
respondent, is in possession of
confidential information stored on his laptop which is proprietary to
the applicant. While the
applicant had agreed that the second
respondent could take the laptop with him when he left it was
expected that he would honour
the terms of his employment contract
and that he would delete all confidential or proprietary information
from his laptop. Like
with the first respondent, the applicant has
put up a series of ‘WhatsApp’ discussions that took place
between the
second respondent and Baker in which information was
openly shared and solicited not only about suppliers but also about
poaching
employees away from the applicant to work for the fourth
respondent. One such employee was Vivek Rampersad who was previously
employed
by the applicant. Vivek had experience both in the
applicant’s internal systems and clearance processes as well as
shipping.
It seems that on Baker’s recommendation Vivek was
approached by the second respondent because in mid-April 2019 Vivek
handed
in his notice of resignation to the applicant.
[29]
The conversations between the second respondent and Baker show that
they were working together
concertedly so as to extract information
about the applicant’s operations and where possible members of
the applicant’s
staff as happened with Vivek. The applicant
contends that when the second respondent left it was at a time when
the fourth respondent
was going to concentrate strictly on the
Chinese, American and Canadian markets. There was no talk whatsoever
of any intention
to compete with the applicant as the conduct of the
applicant’s ex-employees and the fourth respondent now show.
[30]
The applicant’s server shows a constant flow of emails from the
second respondent to various
people resulting in applicant’s
confidential information being utilised for the benefit of the fourth
respondent. On 4 January
2019 for instance Melanie Kelly (Kelly) sent
an email to the second respondent on his Monteagle email address.
Kelly indicated
that she was looking for an email from ‘Ant’
meaning Dumas in which Dumas had enclosed ‘Walters’
shareholder’s
agreement with ‘AVI’ being a factory
from which the applicant purchased pet food. ‘Walter’ is
said to be
Walter Frey, a shareholder in AVI and also the fourth
respondent’s chairperson. Kelly indicated that she was unable
to locate
the email. On Saturday 12 January 2019 the second
respondent, utilising his previous Monteagle email address extracted
the document
Kelly was seeking and sent it to his new email address.
This, according to the applicant, shows that the second respondent

who had terminated his employment in September 2018 was quite
brazenly infiltrating the applicant’s server for the benefit
of
the fourth respondent. Similar conduct from the second respondent
followed again on 15 February 2019.
[31]
As far as the third respondent is concerned, she had commenced her
employment with the applicant
on 7 April 2015. She was employed as a
professional assistant and worked exclusively for Dumas. It is common
cause that she is
currently employed by the fourth respondent. It is
common cause that she is currently in possession of a laptop that
belongs to
the applicant.
[32]
Whilst performing her duties for Dumas the third respondent was
tasked by the applicant to administer
and store all its trademark
applications and records and other matters ancillary to the
applicant’s trademark. On her laptop
the following information
was stored: copies of divisional agreements that show the base salary
and percentage shareholding for
each region; a confidentiality
agreement with at least one customer; power point presentations to
customers; minutes of monthly
management and board meetings with
Monteagle Logistics and the applicant’s sales data.
[33]
The applicant contends that the above constitutes proprietary
information specific to the applicant.
One of the terms of the
contract of employment was that the third respondent was prevented
from approaching any of the applicant’s
clients with a view to
obtaining the custom of that client.
[34]
Whilst it is common cause that the third respondent’s
termination of employment with the
applicant was consensual, it is
her conduct subsequently which the applicant finds offensive and in
breach of the restraint provisions
found in her employment contract.
The applicant has produced evidence to show that the third
respondent, like the first and second
respondents, was engaged in
‘WhatsApp’ conversations with Baker barely a month after
leaving the applicant. On 13 March
2019, for instance, the third
respondent contacted Baker and sought the email address of one
‘Carlos’ from Tottus.
According to the applicant the said
Carlos is in fact Carlos Florez who is employed by Tottus which is a
chain of Chilean owned
hypermarkets that trade in Peru and Chile.
Tottus has been a long-standing client of the applicant.
[35]
The list of conversations put by the applicant shows that not even
thirty five minutes after
receiving the requisite information from
Baker, the first respondent attempted to contact Carlos Florez albeit
unsuccessfully due
to the email address being incorrect. Baker was
contacted again and so informed. Unfortunately Baker was unable to
assist. The
third respondent, however, was able to figure out the
mistake in the email address on her own and she informed Baker
accordingly.
[36]
Based on the third respondent’s conduct since leaving the
applicant, the applicant avers
that she is in the process of
compiling a data base of customer connections utilising the details
of applicant’s customers
for the benefit of the fourth
respondent.
[37]
In setting out the applicant’s complaints against the first,
second and third respondents,
I have merely outlined the salient
aspects thereof having regard to the nature of the relief sought
herein. I consider that it
would be an exhaustive and unnecessary
exercise to set out such allegations in the minutest of detail as has
been done by the applicant.
I intend dealing with the respondents’
case and their responses to the applicant’s allegations when I
make my findings
in due course. Before I do so, however, it is
perhaps convenient at this stage to outline some of the established
legal principles
pertaining to matters of this nature.
Final
relief
[38]
The applicant seeks final relief. The test for final relief in motion
proceedings is well-established:
an applicant is required to
establish a clear right, a reasonable apprehension of immediate harm
if the relief sought is not granted,
and a lack of a suitable
alternative remedy. The availability of an alternative remedy is a
factor that may be taken into account
in considering whether and to
what extent the restraint should be enforced.
[3]
[39]
It is also well established that motion proceedings are only
appropriate for the resolution of
legal issues based on common cause
facts and not designed to determine probabilities. Any disputes of
fact that arise on the papers
must be approached in light of the test
formulated by Corbett JA in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints Ltd.
[4]
The test is well known and bears no repetition herein.
Restraint
of trade – legal foundation
[40]
From such decisions as in
Magna
Alloys and Research (SA) (Pty) Ltd v Ellis
,
[5]
Basson v
Chilwan & others
[6]
and
Reddy
v Siemens Telecommunications (Pty) Ltd
,
[7]
our courts have consistently held that covenants in restraint of
trade agreements are enforceable unless and to the extent that
they
are contrary to public policy, because they impose an unreasonable
restriction on a person’s freedom to trade or to
work.
[41]
In deciding whether a restraint of trade is contrary to public policy
regard must be had to two
principal considerations: the
first
is that agreements freely concluded should be honoured, and the
second
is that each person should be free to enter into a business, a
profession or a trade in the manner in which they deem fit.
[8]
It is for this reason that unreasonable restraint of trade clauses
are considered to be contrary to public policy.
[42]
In
Basson
v Chilwan
[9]
Nienaber JA identified the following four questions that should be
asked when considering the reasonableness of restraint (listed
here
for ease of reference):
‘
(a)
Is there an interest of the one party which is deserving of
protection at the termination
of the agreement?
(b)
Is such interest being prejudiced by the other party?
(c)
If so, does such interest so weigh up qualitatively and
quantitatively against the
interest of the one party not to be
economically inactive and unproductive?
(d)
Is there another facet of public policy having nothing to do with the
relationship
between the parties but which requires that the
restraint should either be maintained or rejected? Insofar as the
interest in (c)
surpasses the interest in (d), the restraint would as
a rule be unreasonable and accordingly unenforceable. It is a matter
of judgment
which can vary from case to case.’
[43]
The
onus
to establish that a restraint is unreasonable and
that it should not as a matter of public policy be enforced
ordinarily falls
on the party affected by such a clause. An applicant
on the other hand bears the
onus
of establishing the remaining
requirements to justify the relief sought.
Applicant’s
protectable interests
[44]
The nature of the protectable interests contended for by the
applicant relate
firstly
to confidential information and
secondly
to customer connections.
Confidential
information
44.1
What is confidential information can perhaps be understood from what
was said by Marais J in
Coolair
Ventilator Co (SA) (Pty) Ltd v Liebenberg & another
where
Marais J said:
[10]
‘
It is a matter of common
knowledge that, under a system of free private enterprise and
therefore of competition, it is to the advantage
of a trader to
obtain as much information as possible concerning the business of his
rivals and to let them know as little as possible
of his own . . . He
is of course aware of the fact that his employees collectively know a
great deal if not all of his business
affairs. Whilst in his employ,
or even after leaving it, it is in their power to disclose to
competitors information capable of
use adverse to him. The
information  may  be a trade secret, e.g. a method of
production not protected by a parent, or
a business secret, such as
the financial arrangements of the undertaking, or a piece of domestic
information, like the salary scale
of a clerk, or the efficiency of
the firm’s filing system.
Some of this information would be of a
highly confidential nature, as being potentially damaging if a
competitor should obtain it,
some would be less so, and much would be
worthless to a rival organisation.
. . .
The difficult question in each case
would be to decide what information gleaned by an employee is to be
regarded as disclosable
as being harmless or general knowledge and
what items are confidential or secret. The dividing line may move
from case to case,
according to what is the general practice or
convention in the category of trade or manufacture in which the
plaintiff falls, with
particular reference to existing or potential
competitors of his. If, however, it is objectively established that a
particular
item of information could reasonably be useful to a
competitor as such, i.e. to gain an advantage over the plaintiff, it
would
seem that such knowledge is
prima facie
confidential as
between an employee and third parties and that disclosure would be a
breach of the service contract.’
44.2    In
Walter
McNaughton (Pty) Ltd v Schwartz & others
,
[11]
van Reenen J outlined the basis of the inquiry relating to
confidential information or trade secrets as follows:
‘
Whether the information
constitutes trade secrets is a factual question… For
information to be confidential it must (a) be
capable of application
in trade or industry, that is, it must be useful; not be public
knowledge or property; (b) it must be known
only to a restricted
number of people or a closed circle; and (c) be  of economic
value to the person seeking to protect it…’
Customer or trade
connections
44.3
The principles applicable to the issue of protectable trade
connections were carefully considered by Nestadt
JA in
Rawlins
and Another v Caravantruck (Pty)
[12]
Ltd
as follows:
‘
The need of an employer to
protect his trade connections arises where the employee has access to
customers and is in a position
to build up a particular relationship
with the customers so that when he leaves the employer’s
service he could easily induce
the customers to follow him to a new
business (Joubert
General
Principles of the Law of Contract
at 149). Heydon
The
Restraint of Trade Doctrine
(1971) at 108, quoting an American case, says that the ‘customer
contract’ doctrine depends on the notion that:
‘
the employee, by contract with
the customer, gets the customer so strongly attached to him that when
the employee quits and joins
a rival he automatically carries the
customer with him in his pocket.’
In
Morris (Herbert) Ltd v Saxelby
[1916] 1 AC 688
(HL) at 709 it was said that the relationship must be
such that the employee acquires
‘
such personal knowledge of and
influence over the customer of his employer … as would enable
him (the servant or apprentice),
if competition were allowed, to take
advantage of his employer’s trade connection …’
This statement has been applied in our
Courts (for example, by Eksteen J in
Recycling Industries (Pty)
Ltd v Mahammed and Another
1981 (3) SA 250
(E) at 256C-F.).
Whether the criteria referred to are satisfied is essentially a
question of fact in each case, and in many, one
of degree. Much will
depend on the duties of the employee; his personality; the frequency
and duration of contact between him and
the customers; where such
contact takes place; what knowledge he gains of their requirements
and business; the general nature of
their relationship (including
whether an attachment is formed between them, the extent to which
customers rely on the employee
and how personal their association
is); how competitive the rival businesses are; in the case of a
salesman, the type of product
being sold; and whether there is
evidence that customers were lost after the employee left (
Heydon
(
op cit
at 108-120); and see also
Drewtons (Pty) Ltd v
Carlie
1981 (4) SA 305
(c) at 307 G-H and 314C and G).’
44.4   At page
542 of the judgment at G-H, Nestadt JA went on to state that:
‘
Even though the persons to whom
an employee sells and whom he canvasses were previously known to him
and in this sense ‘his
customers’, he may nevertheless
during his employment, and because of it, form an attachment to and
acquire an influence
over them which he never had before. Where this
occurs, what I call the customer goodwill which is created or
enhanced, is at least
in part an asset of the employer. As such it
becomes a trade connection of the employer which is capable of
protection by means
of a restraint of trade clause.’
Applicability
of legal principles to facts
[45]
Given the nature of the legal principle enunciated in
Plascon-Evans
,
Davis J in
Mozart
Ice Cream Franchises (Pty) Ltd v Davidoff
[13]
cautions that the
ipse
dixit
of the applicant cannot suffice on its own to establish these
proprietary interests. In this regard Davis J was referring to what

was stated by Olivier AJ in the unreported judgment of
Viamedia
(Pty) Ltd v Sessa
[14]
in which the learned acting Judge had this to say:
‘
Information does not become
confidential and a process or practice does not become secret merely
because Viamedia contends that
they do – or, perhaps, even if
Mr Sessa subjectively belied them to be so. It does not suffice for
Viamedia to say that it
has confidential information or trade
secrets. It must set out what they are and when and how Mr Sessa was
exposed to them. It
must set up the facts from which the conclusion
could be drawn that something is indeed confidential or secret.’
Assessment
of evidence and findings
[46]
In order to assess whether the applicant has discharged the
onus
resting on it, it becomes necessary to examine its complaints against
the versions of the respondents as dealt with by the third
respondent
in the answering affidavit. The applicant’s case is fairly
straight-forward: it sets out in some detail the manner
in which the
first to third respondents have conducted themselves after
terminating their employment with the applicant and joining
the
fourth respondent. The number of ‘WhatsApp’ discussions
between the respondents, Baker and Dumas relating,
inter
alia
,
to the kind of products being supplied by the applicant for instance
to Shoprite, one of the applicant’s major customers;

information relating to the suppliers themselves; the manner in which
employees of the applicant’s customers were approached
directly
such as Phillips who is the head buyer for Shoprite; the manner in
which suppliers such as ‘Mrs Bectors’ and
‘Mother
Nutri’ from India were approached and persuaded to advise
Shoprite to place orders for such products through
the fourth
respondent; the manner in which certain experienced and skilled
employees of the applicant were targeted and enticed
to leave the
applicant as happened with Vivek Rampersad; evidence of the first to
third respondent having direct access to applicant’s

confidential information still stored on their laptops and
infiltrating the applicant’s server and retrieving confidential

documents and emails from it as happened with Walter Frey’s
shareholder’s agreement with AVI, all point, in my view
to a
deliberate and concerted effort on the part of the respondents to
divert business and customers away from the applicant.
[47]
The respondents for their part, have done very little to dispel the
notion that their conduct
was wrongful and prejudicial to the
applicant. As I pointed out at the beginning of this judgment, the
respondents have simply
failed to deal with a number of allegations
made against them by the applicant. The only conclusion that one can
draw from this
is that the allegations are true and the respondents
are just not in a position to dispute any of them. This becomes
patently obvious
when one has regard, for instance, to the manner in
which the first respondent has sought to respond to the allegations
concerning
the nature of the confidential information which the
applicant avers he had access to as outlined in paragraph 25 above:
he admits
that product costings are confidential;
[15]
he does not deal with any of the items referred to in sub- paragraph
66.2 – 66.4 of the founding affidavit; he denies that
factory
and customer contact details for projects he was working on are
confidential;
[16]
he fails to
deal with any of the items referred to in sub-paragraphs 66.1 –
66.9; he denies that the freight rates paid by
the applicant are
confidential;
[17]
he admits
that information not within the public domain is confidential but
asserts, only in respect of Spar, that such information
is on the
shelves in the stores holding such products.
[48]
The first respondent has not denied that the confidential information
referred to by the applicant
was digitally stored on his laptop. The
first to third respondents have not denied that the laptops are the
property of the applicant.
There is no dispute about the fact that
the first respondent returned his laptop to the applicant when he
left. There is also no
dispute that the laptops contained information
belonging to the applicant which information was to be used by the
respondents in
the course of their employment with the applicant and
only for the benefit of the applicant. The first respondent has not
said
anything about the applicant’s insinuation that
proprietary information stored on his device could have been copied
to another
storage device prior to the laptop being returned to the
applicant.
[49]
The applicant has quite clearly and concisely identified itself in
the Monteagle Group of Companies;
it has stated precisely what its
business is, who its customers are and in which markets it trades.
The respondents do not deny
any of this. In my view, information
relating to the applicant’s product costs, supplier details,
tariff and freight rates,
payment terms etc. are all confidential and
subject to protection under the covenant. The first respondent’s
silence on these
matters must count against him on the enforcement of
the restraint.
[50]
Given the positions which the first and second respondents occupied
with the applicant, both
of them had complete access to the
applicant’s customer base and suppliers. Both of them were in a
position to establish
strong business relationships with them for the
benefit of the applicant. The conduct of the first and second
respondent as demonstrated
by the brazen manner in which they
solicited and shared information relating to applicants customers and
suppliers with Baker,
establishes conclusively, in my view, that they
were bent on furthering the business of the fourth respondent.
[51]
The same conclusion can be drawn insofar the conduct of the third
respondent is concerned. She
had access to and was responsible for
the applicant’s trademarks. This, in my view, constitutes
information which was privy
to the applicant only and proprietary to
it. The third respondent has not sought to deny this. Nor has she
sought to deny the applicant’s
version as to how she went about
soliciting information from Baker in London about a supplier in
Chile.
[52]
The submission advanced on behalf of the respondents that once
information leaves the applicants
front door to be shared by one or
more of the other companies in the Monteagle Group, such information
and secrets then fall into
the public domain, is, in my view,
untenable. Such information would only be deemed to be in the public
domain if it is accessible
to the general public.
[53]
One of the points raised by the respondents in their answering
affidavit is that the first and
second respondents were not employed
by the applicant when they resigned. They contend that their
employment contracts were not
extant at the time of their
resignations and were substituted by so-called divisional
shareholders agreements concluded by Monteagle
International Limited
and that the applicant was not part of these agreements. This is a
preposterous suggestion if ever there
was one. The signed contracts
of employment, the pay-slips of the first to third respondents and
their respective IRP5 documents
put up by the applicant all evidence
proof that the first and second respondents were indeed employed by
the applicant at the time.
In my view, this point is nothing more
than a red-herring which does not assist the respondents at all.
[54]
The roles of Dumas and Baker in the conduct of the first to third
respondents cannot escape scrutiny.
The evidence procured by the
applicant shows convincingly that they both acted with a common
design to solicit and divert customers
and suppliers away from the
applicant. Dumas clearly had intimate knowledge of the way in which
the applicant operated, who were
its customers, which markets it
operated in and who were its main suppliers. This information was
also known to Baker. Armed with
this kind of information and
knowledge it became easy for Dumas and Baker to use the first to
third respondents as conduits to
serve the needs of the fourth
respondent. It would have been quite easy for Dumas and Baker to put
up affidavits herein in order
to explain their roles insofar as the
first to third respondents are concerned. Their failure to do so can
only mean that they
each have something to hide. It would seem to me
that Dumas’ undertaking to the applicant that the fourth
respondent would
only operate in the Chinese, American and Canadian
markets was nothing but a ruse cleverly designed to divert attention
away from
his true intentions, namely, to compete directly with the
applicant in the applicant’s well-established and lucrative
markets.
[55]
It goes without saying that the applicant operates in a highly
competitive and demanding market.
Any use of its confidential
information and customer connections can prove to be highly
prejudicial to it. The overall evidence
satisfies me that the first
to third respondents have acted in material breach of the
confidentiality and restraint clauses contained
in their employment
contracts referred to above. I am accordingly of the view that the
applicant has discharged its
onus
insofar as the matters referred to in paragraphs (a) and (b) of
Basson v
Chilwan
[18]
are concerned. What follows is whether the requirements set out in
paragraphs (c) and (d) are met.
Reasonableness of
restraint
[56]
As the authorities show, various difficulties arise when a court has
to consider whether a restraint
clause is reasonable or not and
whether it offends against public policy. In the
Magna
Alloys
judgment
[19]
it was held that
a contractual restraint curtailing the freedom of a former employee
to work in the field for which he was qualified
would be enforced
unless the ex-employee proved that enforcement would be unreasonable.
However, as pointed out by Stegmann J in
Sibex
Engineering Services (Pty) Ltd v Van Wyk & another
,
[20]
the judgment in
Magna
Alloys
did not go on to indicate expressly how he could do so. As Stegmann J
points out that perhaps the answer lies in the proposition
appearing
at page 898A of the
Magna
Alloys
judgment which is to the effect that the public interest requires
that generally speaking the freedom of each individual
to work and
compete in the field in which he or she is qualified should not be
curtailed. The learned judge goes on to state the
following:
‘
The individual may use his
freedom of contract to curtail his freedom to work. To hold him to
such a contractual obligation remains
reasonable for as long as, and
to the extent that, such a contractual obligation remains reasonable
for as long as, and to the
extent that, such curtailment is necessary
for the legitimate protection of the trade connection and trade
secrets of a former
employer. Beyond that, it is detrimental to the
public interest and therefore unreasonable to enforce such a
contractual provision.
I accordingly reach the conclusion
that, in order to prove that the enforcement of a contractual
obligation by which he has curtailed
his freedom to work would be
unreasonable and contrary to public policy, a former employee has to
do nothing more than to prove
that his former employer, seeking to
enforce the restraint, has no trade connection and no trade secrets
to protect; or, if he
has, that the restraint is such that its
enforcement would not serve to protect him. Alternatively he may
show, if he can, that
the restraint is wider than is reasonably
necessary for the protection of the former employer’s trade
connection and trade
secrets. There are no other relevant aspects of
the matter that need to be addressed for the purpose of arriving at a
conclusion
on the question whether enforcement of such a restrain
should be refused, or allowed in part only, on the grounds of
unreasonableness
and public policy.’
[57]
There are two considerations that apply here: the
first
is that it is a matter of great public interest and concern that
agreements concluded by the parties thereto with serious contractual

and binding intent, should be enforced, unless there is a more
compelling public interest which overrides the legal maxim of
pacta
sunt servanda
;
[21]
and
second
,
in a society where promotion of the principle of commercial
competition is believed to be in the interests of society, any
attempt
to restrict unreasonably, or reduce healthy competition and
therefore a person’s right to participate freely in a trade or

business will be regarded as harmful and tending to lessen the
performance of participants in business and the economy.
[22]
[58]
Turning to the position of the first and third respondents against
whom the restraint is sought
to be affected, I consider that they
have failed dismally to provide any evidence to show why they feel
that the terms of the restraint
are unreasonable and highly
prejudicial to them. Apart from the first respondent saying that she
and her husband have two children
to support and that the family is
dependent on her income, she provides no other information. On behalf
of the first and second
respondents all she mentions is that their
employment with the fourth respondent is their only source of income.
[59]
I have already concluded that the applicant has proved that it has
proprietary interests in the
form of confidential information and
customer connection or trade secrets which are worthy of protection
by the restraint. The
respondents have not shown that it does not. It
seems to me that the period of restraint sought to be implemented by
the applicant
is very relevant to its protection of the trade
connections and whatever confidential information it has with regard
to its dealings
with its two major customers, namely, Spar and
Shoprite. There can be no dispute whatsoever that the fourth
respondent is now a
competitor of the applicant in this market. The
question that arises is whether a restraint against the employment of
the first
and third respondents with the fourth respondent is
reasonably necessary for the protection of the appellant’s
trade connection
and in particular the protection of such ‘goodwill’
as the applicant enjoys from Spar and Shoprite.
[60]
The term ‘goodwill’ was described by Stegmann J in
Sibex
Engineering
[23]
as being:
‘
a somewhat volatile commodity
and one which the appellants must constantly work to maintain. This
they can only do by providing
an efficient service which continues to
satisfy their customers. Preventing the first respondent from working
for a competitor
for a limited period can be of some practical
assistance in protecting the applicants’ goodwill from being
eroded by a competitor,
but only to the extent that the first
respondent’s departure from the appellants weakens the
appellant’s competitive
position and strengthens that of the
competitor.’
[61]
Notwithstanding the paucity of evidence from the first and third
respondents on reasonableness
or otherwise of the restraint, I
consider that it is incumbent upon me to consider whether the
duration of the restraint will result
in any material hardship on
them at this stage. As I mentioned already, the applicant seeks no
enforcement against the second respondent.
The applicant could have
taken steps against the second respondent but elected not to do so.
In my view, the damage to applicant’s
proprietary interests was
already done when Dumas left, let alone the second respondent. To now
‘punish’ the first
and third  respondents the full
extent of the restraint would, in my view, be manifestly unfair and
unreasonable. I am accordingly
of the opinion that a period not
exceeding nine (9) months with effect from their termination dates
would suffice in the circumstances.
Anything more would result in
undue hardship and prejudice.
[62]
I consider that every person is entitled to engage in free economic
activity and in a vocation
of his or her choice. Our Constitution
[24]
provides for this. The views expressed in the following cases are
instructive:
62.1
In
Zero
Model Management (Pty) Ltd v Barnard
[25]
the following was stated in relation to the constitutionality of
contractual clauses:
‘
As
regards the Constitutional Court's approach to constitutional
challenges to contractual terms, I refer in particular
to
Barkhuizen
at
paragraphs 27 to 30. As regards the test for assessing
the constitutionality of contractual time-limitation
clauses,
I refer in particular to
Barkhuizen
at
paragraphs 45 to 52, 56 to 60 and 69 to 70. As this is an urgent
application in which, in my judgment, a prompt decision by this
court
is required, suffice it to say the following concerning the approach
of the majority of the Constitutional Court in
Barkhuizen:
it
said that the proper approach to constitutional challenges to
contractual terms is to determine whether the term challenged is

contrary to public policy as evidenced by our constitutional values,
in particular those found in the Bill of Rights; this approach,
it
said, leaves space for the doctrine of
pacta
sunt servanda
to
operate, but at the same time allows courts to decline to enforce
contractual terms that are in conflict with the constitutional
values
even though the parties may have consented to them; and that public
policy required that contractual time-limitation clauses
be
reasonable and fair, more specifically that they afford an adequate
and fair opportunity to seek judicial redress, a matter
to be
determined in the light of the relative situation of the contracting
parties including any inequality of bargaining power.’
62.2
Further to the constitutionality of, specifically, restraint of trade
clauses Tlhapi J in
Brisan
Distributers CC v Du Plessis & another
[26]
set out the following
‘
It was argued for the
respondents that the restraint of trade agreement infringed on
section 22 of the Constitution. The competing
rights of the employer
and employee in as far as the Constitution is concerned, are not
absolute rights in that the agreement is
deemed to be
prima
facie
valid and enforceable
in the spirit of holding contracting parties to agreements they enter
into. The employer’s right to
protect certain interests, which
are usually not in the public domain, from unfair competitive
exploitation by an employee is recognized.
On the other hand, the
right of an employee to freely choose and exercise his or her trade
and to engage in fair competition as
long as the agreement is not
against public policy is also recognised.’
62.3
Discussing Davis J’s remarks in
Advtech
Resourcing t/a Communication Personal Group v Kuhn
[27]
Tlhapi J held as follows in respect to the development of the common
law with regards to restraint of trade clauses
[28]
‘
Counsel for the respondents,
relying on what was stated by Davis J in
Advtech
Resourcing t/a Communicate Personel Group v Kuhn
2008
(2) SA 375
(CPD) at para 28, submitted that in relation to certain
sections in the Constitution the employer 'was required to justify a
restraint,
i.e. that the employer bore the onus of proving
reasonableness of a restraint '. The law in as far as who bore the
onus regarding
unreasonableness of a restraint of trade agreement
still remains with the employee. In
Advetch
supra
Davis J, in
obiter,
discussed the need to
develop the common law in restraint of trade matters, so as to place
the onus on the employer to justify the
need for a restraint
agreement, since these agreements entail a limitation on the right to
work of an employee. This issue was
not settled.’
62.4
Further to the cases referred to above, I agree fully with the views
expressed by Davis J in
Mozart Ice Cream Franchisers
in which
the learned Judge says the following at page 85 F-H:
‘
The challenge of our
Constitution is therefore not to reproduce uncritically the
shibboleths of the past, but to transform (as opposed
to abolish or
ignore) legal concepts in the image of the Constitution. Contract law
cannot be reduced to a museum of a past
judisprudence
.
Expressed differently, the methodology mandated by 39 (2) of the
Constitution needs to be implemented whenever a dispute such
as the
present is placed before a court. This permits a far less deferential
approach to the formal contractual provisions than
if the decision in
Den Braven
is followed.’
[63]
Although not dealing specifically with restraints of trade, the
comments made by Mhlantla J in
The
Business Zone 1010 CC t/a Emmarentia Convenience Centre v Engen
Petroleum Ltd & others
[29]
should be kept in mind, namely, that a standard of fairness and
equitableness and reasonableness must prevail in all contracts,

including whether these are referred to arbitration or formal court
litigation. To unduly restrict a person from being economically

active offends the notion of fairness and the values underlying our
constitutional order. It is a known fact that we are currently

experiencing unprecedented rates of unemployment in this country, the
repercussions of which affect every facet of society. Restraint

clauses of the nature herein do not help the situation. They serve to
aggravate it. I consider that perhaps it is time for the

Constitutional Court (in a suitable case) to closely examine whether
such a restrictive clause in an employment contract should
continue
to remain part of our jurisprudence.
[30]
[64]
As far as the relief contained in sub-paragraph 1.2 is concerned, I
consider that the applicant
is entitled to the return of these
laptops from the second and third respondents. There is no dispute
that these computers are
the property of the applicant. I further
consider that the applicant is entitled to the relief contained in
sub-paragraph 1.3.
As for the question of costs, I see no reason why
the applicant should not be entitled to its costs herein.
Order
[65]
In the result I grant the following order:
1.
The First and Third Respondents are interdicted from continuing with
their employment
with the Fourth Respondent for a period of 9 months,
as calculated from 9 March 2019 in respect of the First Respondent
and 9 February
2019 in respect of the Third Respondent, and an
interdict restraining the Fourth Respondent from employing them for
those respective
periods;
2.
The Second and Third Respondents are directed, within 24 hours of the
granting
of this Order, to deliver their laptop computers taken by
them when they left the employ of the Applicant to the Applicant in
order
to permit an expert to analyse the hard drives of the
respective laptops for confidential and proprietary information
belonging
to the Applicant;
3.
The First, Second and Third Respondents are to deliver a list to the
Applicant
of all and any confidential information and/or proprietary
information of the Applicant that they have disseminated and to whom

it was disseminated;
4.
The respondents are to pay the applicant’s costs, such costs to
include
the costs of senior counsel.
__________________
Seegobin J
APPEARANCES:
COUNSEL
FOR THE APPLICANT:

R G Mossop SC (Instructed by Shepstone & Wylie, Umhlanga
Rocks
COUNSEL
FOR THE RESPNDENTS:
D Phillips SC (Instructed
by Anand-Nepaul)
DATE
OF HEARING:

30 September 2019
DATE
OF JUDGMENT:

3 October 2019
[1]
Moosa v Knox
1949 (3) SA 327
(N) at 331; also
Ebrahim
v Georgoulas
1992 (2) SA
151
(BG) at 152H – 153D.
[2]
Saflec Security Systems (Pty) Ltd
v Group Five Building (East Cape) (Pty) Ltd
1990 (4) SA 626
(E) at 631B-E.
[3]
Mozart Ice Cream Franchises (Pty)
Ltd v Davidoff
2009 (3) SA
78
(C) at 82C-D.
[4]
Plascon-Evans Paints Ltd v Van
Riebeeck Paints Ltd
1984
(3) SA 623 (A).
[5]
Magna Alloys and Research (SA)
(Pty) Ltd v Ellis
1984 (1)
SA 874 (A).
[6]
Basson v Chilwan & others
1993
(3) SA 742 (A).
[7]
Reddy v Siemens Telecommunications
(Pty) Ltd
2007 (2) SA 486
(SCA).
[8]
Sunshine Records (Pty) Ltd v
Frohling & others
1990
(4) SA 782
at 794C-E.
[9]
Basson v Chilwan & others
fn6 at 743G-I of the headnote.
[10]
Coolair Ventilator Co (SA) (Pty)
Ltd v Liebenberg & another
1967
(1) SA 686
(W) at 689.
[11]
Walter McNaughton (Pty) Ltd v
Schwartz & others
2004
(3) SA 381
(C) at 388J – 339B.
[12]
Rawlins & another v
Caravantruck (Pty) Ltd
1993 (1) DS 537 (A) at 541C-I.
[13]
Mozart Ice Cream Franchises (Pty)
Ltd v Davidoff
2009 (3) SA
78
(CPD) at 87A-B.
[14]
Viamedia (Pty) Ltd v Sessa
unreported, CPD case No 8679/2008.
[15]
Sub-para 66.1 of the founding
affidavit.
[16]
Sub-para 66.5 of the founding
affidavit.
[17]
Sub-para 66.10 of the founding
affidavit.
[18]
Basson v Chilwan & others
[1993] ZASCA 61
;
1993
(3) SA 742
(A) at 743G-I of the headnote (see 42 of this judgment)
[19]
Magna Alloys and Research (SA)
(Pty) Ltd v Ellis
1984 (1)
SA 874
(A).
[20]
Sibex Engineering Services (Pty)
Ltd v Van Wyk & another
1991
(2) SA 482
(T) at 505H – 506B.
[21]
J Saner,
Agreements
in Restrains of Trade in SA
,
(March 2019 – Service Issue 4) at 1-8 and the authorities in
footnote 29.
[22]
Forwarding African Transport
Services CC t/a Fats v Manica Africa (Pty) Ltd
[2004] 4 All SA 527
(D) 530i- 531c.
[23]
Sibex Engineering Services (Pty)
Ltd v Van Wyk & another
1991
(2) SA 482
(T) at 511F-H.
[24]
See section 22 of the Bill of Rights.
[25]
Zero Model Management (Pty) Ltd v
Barnard
2010 JDR 0842
(WCC) para 38: the court referred to
Barkhuzen
v Napier
2007 (5) SA 323
(CC).
[26]
Brisan Distributers CC v Du
Plessis & another
[2017] ZAGPPHC 1061 para 23.
[27]
Advtech Resourcing t/a Communicate
Personel Group v Kuhn
2008
(2) SA 375 (CPD)
[28]
Brisan Distributers CC v Du
Plessis & another
fn25
para 25.
[29]
The Business Zone 1010 CC t/a
Emmarentia Convenience Centre v Engen Petroleum Ltd & others
2017 (6) BCLR 773
(CC) para 52.
[30]
JM Otto ‘Bedinge en kontrakre
ter beperking van die handelsvryheid. Drie Dekades sedert
Magna
Alloys v Ellis
[1984] ZASCA 116
;
1984 4 SA
874
(A)’
(2016) 1
TSAR
133
, the learned author herein in his concluding remarks, states as
follows (translated) ‘Unless the Constitutional Court makes
a
radical decision regarding the onus and current position of the law
on restraints of trade and consensual contracts, not much
will
change’