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[2017] ZAGPPHC 39
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Q-Photo (Pty) Ltd v Tope and Another (2016/8250) [2017] ZAGPPHC 39 (14 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
14
February 2017
CASE
NO: 2016/8250
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
In
the matter between: -
Q-PHOTO
(PTY)
LTD
Applicant
and
HENRY-DEAN
TOPE
First Respondent
ATPHOTO
(PTY)
LTD
Second Respondent
JUDGEMENT
TSATSAWANE
AJ
Introduction
1.
The
applicant seeks an order to enforce a restaurant of trade agreement.
In this regard, it seeks an order in terms of which, amongst
others:
1.1
the
first respondent is interdicted and restrained from being interested
in the second respondent's business;
1.2
the
first respondent is interdicted and restrained from, either alone or
jointly with others, being engaged, interested or concerned
in any
business, including the second d respondent's business which, amongst
others, produces and or manufactures any of the products
produced and
manufactured by the applicant;
1.3
the
first respondent 1s interdicted and restrained from divulging the
applicant's information and trade secrets;
1.4
the
second respondent is interdicted and restrained from keeping the
first respondent in its employment.
2.
The
application is opposed by the first respondent. The second respondent
did not play any role in the proceedings before me.
The
restrained of trade agreement
3.
The
applicant and the first respondent concluded a contract of permanent
employment in April 2013 and the restraint of trade provisions
are
contained in Annexure A thereto.
4.
There
is no dispute about the validity and enforcement of the restraint of
trade agreement and that it seeks to restrain the first
respondent
from, amongst others, disclosing the applicant's trade secrets and
being engaged or interested in any business which
completes with the
applicant. In particular, the first respondent agreed not to work for
the second respondent and the applicant
seeks to interdict him from
doing so.
5.
The
restraint period is defined in clause 1.5 of the restraint of trade
agreement to mean a period of twelve months following the
termination
of the employment relationship. The first respondent resigned from
the applicant's employment with effect from 12 December
2015.
The
applicant's case
6.
This
application was brought on an urgent basis and set down for hearing
on 9 February 2016. At that time, the first respondent
was already
employed by the second respondent.
7.
The
application was struck off the roll for lack of urgency and it came
before me in the normal opposed motion court on 4 August
2016. At
that time the first respondent had already been in the second
respondent's employment for many months without any restraint
or
interdict.
8.
In
paragraph 9.6 of its founding affidavit, the applicant says that:
"9.6
Although to date there is no concrete proof I can place before this
honourable court, all that the Applicant can submit
is that there are
trade secrets and or secret information to which the First Respondent
had access as a result of his position
and employment with the
Applicant, and which in theory the First Respondent could transmit to
the Second Respondent should he desire
to do so.
"
9.
As
I understand the applicant's above quoted paragraph, it simply means
that there is no evidence to prove that the first respondent
gained
access to the applicant's trade secrets or secret information. The
first respondent can only divulge that which he has acquired
and the
applicant says that there is no
"concrete
proof'
that
·'there
are trade secrets and or secret information to which the First
Respondent had access as a result of his position
and employment ..."
10.
Insofar
as the applicant seeks to interdict and restrain the first respondent
from divulging “
any
information concerning the trade secrets of the Applicant"
it
must establish not only that the first respondent is in possession of
"information
concerning the trade secrets of the Applicant"
it
must also expressly identify (in its founding papers) such
information, and also state how the first respondent acquired such
information. On the applicant's version, there is no
"concrete
proof'
of
the first respondent acquiring access to such information.
11.
In
its attempt to justify the hearing of this application on an urgent
basis, the applicant said the following in its founding affidavit:
"9.2
Should the Applicant need to wait to be heard in the normal course,
at the stage at which we will be heard by this honourable
court, the
related problems and or potential damage would have become only
academic in nature, offering no implementable or practical
relief to
the Applicant herein. This would relate directly to the nature of the
information which the First Respondent has in his
possession and the
fact that the quantification of the potential damage is almost
impossible to quantify at this point.
…
9.4
it is submitted and argued that as a result of the very nature of the
application, it is rendered urgent, and that should the
relief sought
not be granted on an urgent basis, there will be no other form of
relief in terms of which the Applicant will be
able to obtain
substantial relief.
…
9.4.1
In the event of the list of professional fall into the hands of the
Second Respondent, and they are in consequence lured to
the business
of the Second Respondent by, for example, offering them discounts
based on the pricing structure of the Applicant,
undercutting same,
serious financial damage could be inflicted on the business of the
Applicant without the Applicant having real
recourse by way of the
institution of action proceedings for the recovery of damages.
9.6.1
I submit that it is highly unlikely that the First Respondent would
refrain from divulging the Applicant's secret information
to the
Second Respondent, even if it is only to impress the Second
Respondent can add to the business of the Second Respondent."
12.
On
the applicant's version quoted above:
12.1
There
is no evidence that the first respondent had any access to the
applicant's trade secrets.
12.2
If
the relief was not granted on an urgent basis and the application is
only heard in the normal course which is what eventually
happened,
"the
related problems and or potential damage would have become only
academic in nature, offering no implementable or practical
relief to
the Applicant herein."
12.3
It
is highly unlikely that the first respondent would refrain from
divulging the applicant's secret information to the second
respondent,
"even
if it is only to impress the Second Respondent with the value that
the First Respondent can add to the business of the
Second
Respondent."
13.
Insofar
as there is no evidence or
"concrete
proof'
that
the first respondent had access to the applicant's trade secrets or
secret information, it follows that the applicant is not
entitled to
an order interdicting the disclosure of trade secrets and secret
information. This is so due to the fact that such
an order is only
competent if it has been established that the person to be
interdicted did acquire the trade secrets or secret
information
sought to be protected. In addition, the information must be
identified and it must also be stated (in the founding
affidavit) as
to when and how the information was obtained. It is not sufficient to
simply
"submit
...
that
there are trade secrets and or secret information to which the First
Respondent had access."
It
is also not competent to attempt to make out such a case in the
replying affidavit.
14.
When
this application was heard in August 2016, the first respondent had
already been employed by the second respondent for a period
of eight
months. When the application was struck-off the roll for lack of
urgency, the first respondent had already been employed
by the second
respondent for a period of two months. On the applicant's version
that
"it
is highly unlikely that the First Respondent would refrain from
divulging the Applicant's secret information"
even
if it is to impress the second respondent, the first respondent must
have divulged the alleged trade secrets or secret information
(if
any) the very first month (if not the first day) that he started
working for the second respondent in order to impress the
second
respondent. There is no reason why the first respondent would have
waited for too long
1
•ta impress the Second Respondent with the value that the First
Respondent can add to the business of the Second Respondent."
15.
Accordingly,
if there are any trade secrets or secret information to which the
first respondent gained access, the first respondent
must, on the
applicant's own version, have already divulged the same to the second
respondent. For this reason, the relief sought
in this regard would
serve no purpose.
16.
As
far as the interdict against the second respondent is concerned, no
purpose would be served by granting that relief. Such an
interdict
would only serve to punish the first respondent, which is not the
purpose of a restraint of trade agreement. In any event,
that which
the restraint of trade of agreement was intended to protect must, on
the applicant's own version have been disclosed
to the second
respondent.
17.
In
the view which I have taken, it is not necessary to canvass many of
the first respondent's submissions other than his opposition
to the
alternative relief which the applicant seeks. In its alternative
relief, the applicant wants the Court to determine the
"restrictions
in terms of the restraint of trade clause."
The
applicant has not made out a case in its founding affidavit to
justify the Court effectively rewriting the restraint of trade
agreement. The Court also cannot do so. Accordingly, the invitation
is refused.
18.
The
first respondent is not entitled to costs due to the fact that he
took employment with the second respondent in circumstances
where he
expressly agreed not to take employment with the second respondent.
In addition, the applicant would most probably have
brought its
application earlier (and most probably obtained its order) if the
first respondent had disclosed his intention to take
employment with
the second respondent as he was aware that he was prohibited from
doing so in terms of his employment contract
with the applicant.
19.
In
the premises, the following order is made:
19.1
the
application is dismissed;
19.2
there
is no order as to costs.
_________________________
Kennedy
Tsatsawane
Acting
Judge of the Gauteng Division of the High Court of South Africa,
Pretoria.