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[2017] ZAFSHC 79
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Marcor Konstruksie Bk v Bocsh and Others (2679/2016) [2017] ZAFSHC 79 (8 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2679/2016
In
the matter between:
MARCOR
KONSTRUKSIE
BK
Applicant
and
MYLENE BOCSH
First
Respondent
ANNALIEN BAKKER
Second
Respondent
ICALC TRAINING
ACADEMY (PTY) LTD
Third
Respondent
HEARD ON:
1 SEPTEMBER 2016
JUDGMENT
BY:
MHLAMBI, AJ
DELIVERED
ON:
08 June 2017
MHLAMBI,
AJ
Introduction
[1]
The applicant seeks an order to interdict and restrain the
respondents from using and imparting any information of the business
of the applicant which they had access to or obtained from its Pastel
computer software programme on 1 June 2016. The respondents
should
furthermore be ordered to deliver to the applicant’s attorneys
a schedule of the confidential information downloaded
by them to any
electronic source within three days of the granting of the order,
alternatively a written declaration that they
did not download any
such confidential information. Should the Respondents have downloaded
any confidential information they be
ordered to destroy it in the
presence of the Sheriff for the district of Welkom upon service of
the copy of the order on them with
the schedule referred to above and
to pay costs of the application jointly and severally.
Purpose
of the application
[2]
The applicant stated in his founding affidavit that the interdictory
relief sought was in essence an order to restrain the respondents
from using personal, private and confidential information pertaining
to the applicant which was unlawfully obtained by them on
1 June 2016
and also ordering them to deliver to his attorney a schedule of
information so obtained and to destroy such information
in the
presence of the sheriff of the High court for the district of Welkom.
The
applicant’s case
[3]
The applicant is primarily a construction business involved mainly in
the construction of MTN cellular transmitter towers throughout
the
Republic of South Africa. Its confidential information is stored on a
Pastel computer business management software program.
Marius Smit is
the only member of the applicant who appointed one Jackie Klopper on
an independent contractor basis to assist with
the financial
management of the business.
[4]
On her advice, he purchased the Pastel software programme at the
beginning of May 2016. He was allocated with a unique username
/
password known only to himself, Klopper, his personal assistant,
Zurika Barnard and the second respondent who assisted and had
a
business connection with Klopper. The third respondent also utilised
the services of Klopper, but the relationship between Klopper
and the
third respondent subsequently soured.
[5]
On 1 June 2016, the first Respondent telephoned Barnard and informed
her that she was busy with a fraud case against Klopper.
On being
informed to communicate with Smit if she required information, the
first respondent advised Barnard that she had unsuccessfully
contacted him on his cell phone. The first respondent handed the
telephone receiver to the second respondent to continue the
discussion.
Barnard obliged to second respondent’s prompts and
requests to provide her with the information pertaining to the
applicant’s
business Pastel programme, inter alia usernames/
password, serial numbers and the like, which enabled her to gain full
access to
the confidential information.
[6]
Barnard was led to believe by both respondents that they required in
particular the serial numbers to establish whether Klopper
had
incorrectly downloaded the third respondent’s Pastel onto the
applicant’s computers. Marius Smit stated in the
founding
affidavit that he did not know whether the respondents did in fact
perform a download or not but they did have full access
to the
confidential information and the opportunity do so.
[7]
Having given the information, and as an afterthought, Barnard
contacted and informed Smit of what had happened. He and his wife,
Angelique Smit, immediately went to the business of the third
respondent with the sole purpose of confronting Bosch. Having being
directed to her office, he asked the first respondent why she misled
Barnard to obtain access to the applicant’s Pastel software.
She replied and said that Pastel had provided her with certain
information. As she said she had a client with her and could not
speak to him, he informed her that the matter had to be resolved and
retired to the reception area.
[8]
Five minutes later the respondent’s attorney, Mr Edrich du
Preez arrived, enraged and pointing his finger in the direction
of
his wife and shouting at her that she did not know the amount of
trouble she was in. Having explained the purpose of his visit
to Du
Preez, the latter went to the first respondent’s office,
returned a few minutes later and apologised that he had mistaken
him
for someone else. Du Preez then made defamatory allegations about
Klopper being involved in fraud.
[9]
Du Preez ushered him and his wife into the boardroom where he, Smit,
explained to him fully what Barnard told him. Du Preez
went to the
first respondent’s office and on his return, he stated that
there was a big misunderstanding (“n groot
misverstand’).
Smit emphasised to him that as far as he was concerned, the
infringement of the confidential information was
unlawful and in fact
criminal, whereafter he left the building. He consulted with his
attorneys on 2 June 2016 and, due to business
commitments, was only
able to consult with counsel on Thursday, 9 June 2016. Given the
devious and fraudulent means used by the
respondents to obtain access
to the confidential information, he had no doubts that the
respondents would not give an undertaking
not to use the confidential
information in anyway whatsoever.
The
respondent’s case
[10]
The opposing affidavit was deposed to by the first respondent in her
capacity as the company director by virtue of a resolution
by the
third respondent dated 14 June 2016. She stated in her affidavit that
there was no justification in the application since
it was founded
mostly on speculation. She denied that she and the second respondent
downloaded any confidential data from the applicant’s
computer
system, could not have done it and therefore could not make it
available to any third party.
[11]
She is a mechanical engineer and the third respondent is a training
academy and renders educational services. They pose no
threat to the
applicant as they are not in the same line of business, neither do
they deal with MTN as a client nor have any knowledge,
interest or
affiliation with the applicant’s business. During the latter
part of 2015 negotiations took place with Klopper
to be employed as a
lecturer by the third respondent as she had proper knowledge and
training to do the bookkeeping of the ordinary
business like the
applicant’s. Klopper assured them that she had several clients
that would be interested to enter into an
agreement with the third
respondent to do their bookkeeping. On this basis an agreement was
concluded in terms of which Klopper
would be paid a salary of R20
000.00 per month.
[12]
Time passed and despite Klopper alleging that several clients,
including the applicant, were billed, no money was deposited
into the
account of the third respondent. This gave rise to a concern that
Kloppers was not earning her salary. She also caused
financial harm
to the third respondent in the manner that she dealt with third
respondent’s finances as the person responsible
for its
financial administration. Her services were suspended on 13 May 2016.
She terminated her services on 17 May 2016.
[13]
Third respondent bought the computer program called “Pastel”
from Sage Pastel and it was delivered by way of computer
discs which
were then loaded onto the purchaser’s computers. On termination
of her duties, Klopper had in her possession
the third respondent’s
computer discs containing the Pastel program. On demand she delivered
to the third respondent someone
else’s outdated and old sets of
discs and not the discs that were bought. As at the time of this
deposition, the third respondent’s
Pastel program was still in
her possession.
[14]
Enquiries were made to clients who were exposed to Klopper to
establish whether they had downloaded the third respondent’s
programs or made use of the Pastel programs furnished by Klopper as
she had no authority to provide them to any person. On 24 May
2016
the Pastel program was downloaded and it could only be done with the
Pastel program in the possession of Klopper.
[15]
On 1 June 2016 the first respondent called Smit on the landline as
she did not have his cell number. As he was not in the office,
she
spoke to the lady on the line, presumably Barnard, advising her of
the communication from Pastel that their discs had been
used
somewhere. She requested her to check on her system whether the
software was used. She handed the phone to the second respondent
who
understood the system better to discuss the matter further with
Barnard. The first respondent asked the second respondent to
apologise for any inconvenience caused should it turn out that the
program used by the applicant was not the third respondent’s.
Barnard was very polite and she was in no way pushed to divulge any
information other than to ensure that the program used was
not the
third respondent’s. It was incorrect that first and second
respondents wanted the serial numbers to establish that
Klopper had
downloaded the program. Second respondent only guided Barnard to
ascertain whether the software was used or not. In
support of their
allegations, a letter from Sage Pastel dated 14 June 2016 addressed
to the first respondent was attached to the
opposing affidavit and
marked annexure “M8”. It confirmed that the serial number
allocated to the third respondent
was last registered on 24 May 2016
using the online registration of Pastel and that having an account
number or serial number for
the contract at Pastel did not mean that
one had access to the financial information of a company.
The
replying affidavit
[16]
In his replying affidavit, Smit mentioned that prior to the filing of
the opposing affidavits, there was communication between
his and the
respondents’ attorneys about his willingness to accept a
declaration that no information was downloaded from
the applicant’s
systems. Subsequently, his attorney Preller informed Du Preez by way
of SMS of 15 June 2016 that the applicant
would be prepared to accept
a declaration and an undertaking that if any information was
obtained, it would not be used. Furthermore,
the respondents must pay
the costs until then. For the sake of completeness the SMS reads as
follows:
‘’
Het
met klient en Mike gepraat. Klient is bereid om te skik dat die
deklarasie en onderneming opgestel word. Mike het deurgegee
hy sal
dit doen. Dit word n bevel van die hof gemaak die 30 ste en jou
klient betaal die kostes. Die onderneming kon direk na die
insident
gegee word en moes daar eers n aansoek kom voor dit gegee word. So
nee geen onderhandeling op kostes nie. Ek laat jou
weet”.
On
21 June 2016 Preller addressed a facsimile to the respondents’
attorneys referring to the communication of 15 June 2016.
The second
paragraph reads as follows
:
“
Geliewe
kennis te neem soos aan u deurgegee is ons klient bereid om op die
volgende basis te skik: Die nodige deklerasie (sic) word
opgetrek en
die onderneming word gegee deur u klient dat
geen van
die inligting afgelaai en / of gebruik en / of versprei is nie;”.
[17]
Respondents’ attorneys responded by way of an e-mail dated 22
June 2016 stating that the respondents did not obtain any
of the
applicant’s information and as the applicant insisted on the
payment of costs despite their being willing to furnish
a
declaration, the application would be opposed. The second paragraph
reads as follows
:
“
Ons
het instruksies vanaf ons klient bekom om hierdie aasoek te opponeer
weens die feit dat daar reeds aan u telefonies meegedeel
is dat ons
kliente geen van u klient se inligting bekom het nie en was ons
kliente bereid om ‘n deklarasie tot die effek
te lewer maar het
u aangedring op koste welke nie vir ons kliente aanvaarbaar is nie.”
Applicant’s
attorneys responded in writing on the same day and paragraph 2 of
their letter reads as follows:
“
You
only enquired (never tendered) on behalf of your clients, obviously
with a view to settling the matter, whether our client would
accept a
declaration and each party pay their own costs, contending that
although your clients accessed our clients system they
had not
obtained any of our client’s information (“…geen
inligting van u klient bekom het nie …”).
Paragraph
6 of the said letter reads as follows:
“
To
date hereof we have not received a declaration from your client, nor
have we received an undertaking. We emphasize that you initially
only
enquired whether our client was prepared to accept a declaration and
never mentioned that your client was prepared to give
an undertaking.
We are therefore somewhat surprised to hear that your client was
prepared to give a declaration”.
The
issues
[18]
Applicant’s counsel submitted that the issues to be decided are
whether the first and second respondents had unlawful
access to the
application on 1 June 2016 and that their conduct constituted
unlawful interference in the applicant’s business
and costs.
The respondent’s counsel submitted that the issues for
determination are costs, whether applicant had alternative
remedies,
why the applicant waited nine days before consulting with counsel and
what happened on 1 June 2016 during the telephone
call to the
applicant’s office by the respondents.
Applicable
Law
[19]
The requirements for the granting of a final interdict are trite
[1]
.
The applicant would have to establish (a) a clear right, (b) unlawful
interference with that right, actually committed or reasonably
apprehended, and (c) the absence of any other satisfactory remedy
[2]
.
Both
counsel referred me to the case of
Plascon
Evans Paints LTD v Van Riebeeck Paints (Pty) LTD
[3]
for the
application of the principles established therein in this matter. In
my view the approach is correct as the applicants are
seeking relief
which is final of nature and the parties have not requested that any
factual issues be referred for trial or evidence
in terms of Rule
6(5)(g) of the Uniform Rules of Court. The interdict sought can be
granted only if the facts as stated by the
respondents together with
the admitted facts in the applicant’s affidavits, justify the
granting thereof. The court can decide
the issues only if it is
satisfied that there are no real and genuine disputes of fact
[4]
.
Analysis
[20]
The wording and construction of prayers 2 to 5 in the notice of
motion presuppose that the respondents were indeed in possession
of
the confidential information which forms the subject matter of the
interdict. In prayer 2 use is made of the expression “using
any
information of the business which they
had
accessed or obtained
of- or about the
business”. The New Oxford dictionary meaning of the verb
“access” is, when it refers to computing,”
gain
access to, read, obtain, examine or retrieve (data or a file)”.
A list was then set out as to the type of information
that was
referred to. In particular paragraph 4 stated clearly that the
respondents should be ordered to deliver a schedule of
the
confidential information
downloaded
by them, alternatively, furnish a written declaration that they did
not download the information. Surprisingly, the construction
of
prayer 5 and the order sought appear to be conditional on the
respondents having downloaded the conditional information. This
poses
a difficulty for me as it creates the impression that the applicant
is uncertain of the factual basis whereupon his claim
is based.
Viewed from the affidavit of Marius Smit that he did not know whether
the information was downloaded or not and in the
absence of positive
evidence by the applicant’s witnesses that the downloading did
take place on 1 June 2016, it becomes
apparent that the prayers are
without foundation and cannot be sustained.
[21]
The Respondents’ counsel argued, and correctly so, that it was
not in dispute that the respondents would furnish the
applicant with
a declaration that they did not download any confidential
information. This is in line with the alternative prayer
in 4 and was
stated in attorney Du Preez’ communication with the applicant’s
attorneys. The correspondence between
the attorneys indicates that a
settlement or agreement could not be reached as the applicant
insisted on the payment of costs and
an undertaking that the
respondents would not use the applicant’s information that they
“might have access to”.
The
events of 1 June 2016
[22]
It is clear that Smit was upset on the day he visited the third
respondent’s premises “with the sole purpose of
confronting Bosch”. Despite Du Preez’ explanation that
there was a big mistake (“groot misverstand”), he
emphasised his standpoint that the respondents acted unlawfully and
criminally and left the building without the matter having
been
resolved. It is evident that he neither demanded a declaration nor
instructed his attorneys to do so and that the first time
the idea
came to the fore, was during the preparation of the application. The
respondents’ version is that they never downloaded
applicant’s
information on that day or any other. They simply made enquiries to
protect their interests.
Absence
of any other satisfactory remedy
[24]
The applicant has to show the absence of any other satisfactory
remedy.
In casu
, the applicant averred that it had no option
but to approach the court for an interdict. The respondents stated
that the applicant
had more than one remedy: either to act civilly
and responsibly through the parties’ respective attorneys to
secure an assurance
that the respondents did not download the
applicant’s information or seek access to their computers to
ascertain that it
did not happen. I agree with this view.
Conclusion
[25]
In the circumstances, and having thoroughly considered the total
facts presented, I cannot find that there was an act which
was
prejudicial to or interfered with the applicant’s rights. A
rights invasion will be effected most often by way of physical
conduct, but to prove the necessary injury, it is enough to show that
a right has been invaded
[5]
. The
applicant must show objectively that his apprehensions are well
grounded and not just mere assertions. I am satisfied that
there are
no real and genuine disputes of fact. I am however not persuaded that
the facts presented justify the granting of the
orders sought and
they are therefore denied.
Costs
[26]
In the result, the costs should follow the event.
Order
[27]
The following order is made:
The application is
dismissed with costs.
____________
MHLAMBI,
AJ
Counsel
for Applicant: M.C Louw
Instructed
by: JMM Verwey
Hill
Mchardy & Herbst Inc.
7
Collins Road
Arborelum
BLOEMFONTEIN
Counsel
for Respondents: P.J Heymans
Instructed
by: N.C Oosthuizen
E.G
Cooper Majiedt Inc
77
Kellmer Street
Westdene
BLOEMFONTIEN
[1]
Van
Deventer v Ivory Sun Trading 77 (Pty) Ltd
[2015] 1 All SA 55
(SCA) para [26]. See also
Setlogelo
v Setlogelo
1914
AD 221
at 227.
[2]
Ibid.
[3]
Plascon
Evans Paints LTD v Van Riebeeck Paints (Pty) LTD
1984
(3) SA 623 (A)
[4]
Nampesca
(SA) Products (Pty) LTD v Zaderer and Others
1999 (1) SA 886
(C) at 892 (H). See also
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984
(3) SA
623
(A)
at 634E
[5]
V &
A Waterfront Property (Pty) Ltd and Another v Helicopter &
Marine Services (Pty) Ltd and Others
2006
(1) SA 252
(SCA) at 257F-258 A.