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[2016] ZAFSHC 107
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Metro Limited and Another v Fenwick and Others (4927/2015) [2016] ZAFSHC 107 (17 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case
number: 4927/2015
In
the matter between:
METPRO
LIMITED
1st
Applicant
METPRO
TECHNOLOGY AFRICA (PTY) LTD
2nd
Applicant
and
SEAN
FENWICK
1st Respondent
JOHN
FENWICK
2nd Respondent
RAPIDSRC
(PTY) LTD
3rd Respondent
CORAM:
MHLAMBI, AJ
HEARD
ON:
26 MAY 2016
JUDGMENT
BY:
MHLAMBI, AJ
DELIVERED
ON:
17 JUNE 2016
[1]
This is an application to enforce restraint of trade agreements and
confidentiality undertakings in the contracts concluded
by the first
and second respondents with the applicants;
[2]
The applicants seek to interdict the first and second respondents and
limit the territory over which the restraints apply
to South
Africa, the United Kingdom, Germany, the United States of America,
Spain, Italy and Hong Kong (although the applicants
were initially of
the view that the restraints applied over the area described as the
“global VCI market or territory where
VCI products are sold
around the world);
[3]
The restraint period in respect of the first respondent is 12 months,
starting from 31 July 2015 and terminating on 30 July
2016. The
period sought to be enforced as against the second respondent is
until 31 December 2016.
The
application is opposed.
Background
facts
[4]
The first applicant is a company registered and having its head
office situated in Kerry, Ireland. The second applicant
is a duly
registered company and incorporated in terms of the company laws of
the Republic of South Africa and having its principal
place of
business at Fairbank Street, Vanderbijlpark.
[5]
The applicants consider themselves as leading global developers and
manufactures of an extensive and diverse range of active
and
protective packaging systems for the preservation of high value
products, predominantly in the automotive, steel and industrial
manufacturing sector. Its product range caters for different sized
companies, both locally and globally.
[6]
Second respondent, a technologist, owned 100% (one hundred per cent)
of the members’ interest and contributions in Pentakem
CC. By a
written memorandum dated 15 April 2010 the business of Pentakem was
sold as a going concern to the second applicant; the
first applicant
and second respondent each acquiring 51% and 49% shareholding
respectively in the second applicant. The business
of Pentakem was
defined in the memorandum as the goodwill, all the intellectual
property including technological know-how, trade
secrets, copy
rights, patents and trademarks.
[7]
Subsequent to the memorandum, a written sale agreement was entered
into on 4 September 2013 at Vanderbijlpark between the second
respondent, the first and second applicants in terms of which the
second respondent sold his shareholding in the second applicant
to
the first applicant. Clause 6 of the sale agreement reads as follows:
“
6.
EMPLOYMENT
6.1
The seller will be employed by the Purchaser on a fixed
term contract basis for a period of 24 (TWENTY-FOUR) months
from the
effective date, on the material terms and conditions set out
hereunder:
6.1.1 The seller will be
paid the higher of:
(i)
an Annual Retainer of 15,000 (FIFTEEN THOUSAND POUNDS STERLING) or
amount as may be varied under 6.1.2 below, to be paid in
12 equal
monthly installments
and
(ii)
a Commission which shall be calculated at the rate 2.5% (TWO COMMA
FIVE PERCENT) of the PURCHASERS Global Annual Sales derive
from:
6.1.1.1
the SELLER’S new technology developed; and/or
6.1.1.2
the SELLER’S new technology provided, for the duration of his
employment and whilst participating and being actively
involved in
the business of the PURCHASER
6.1.2
For the avoidance of doubt the Commission for relevant year will be
calculated by 31 January of the following
year and the amount by
which the Commission calculated exceeds the Annual retainer will be
paid to the SELLER immediately. If the
Commission calculated is less
than or equal to the Annual Retainer, then there will be no
additional payment.
6.1.3
The annual retainer as per 6.1.1 will be reviewed an annually basis
until the employment contract is terminated
applying the South Africa
CPIX rate.
6.2
The employment of the SELLER can be extended for a further 12
(TWELVE) months, by mutual agreement,
which is to be communicated in
writing by the PURCHASER to the SELLER not later than 30 days before
due date of expiration of contact
of employment.
6.3
The SELLER will also be subject to restraint of trade from the date
of signature of this agreement
and for the duration of his employment
with the PURCHASER as set out in paragraph 7 hereunder.
6.4
The essential terms of the SELLER’S employment with the
PURCHASER as set out above will
in conjunction with SELLER’S
voluntary resignation from THE COMPANY on the effective date. A copy
of the employment contract
(annexure” A”) and the
resignation letter (annexure” B”) is annexed hereto.”
Annexure
“A” reads as follows:
“
Employment
Agreement Dr JTF Fenwick
In
terms of agreement of sale of his remaining shares in MetPro
Technology Africa Pty Ltd, Dr JTF Fenwick will no longer be employed
by MTA from the 1
st
January 2014.
[8]
MetPro Ltd. Has offered DR JTF Fenwick an “employment/restraint
agreement” in the form of a stipend as laid down
in the Sale
Agreement. Such “employment/restraint agreement” entails
acting as Chief Chemist to the MetPro Group and
assist in driving
sales in their business. On acceptance of this offer Dr JTF Fenwick
shall, health permitting be available to
MetPro to: -
1.
Mentor
personnel in technology supplied by him.
2.
Undertake
twice yearly visits to MetPro Ltd for duration of approximately 6
weeks
3.
Assist on
an “ad hoc” basis with MTA to drive sales
Any
expenses incurred during this “employment/restraint agreement”
for travel, accommodation and subsistence will on
documentary
evidence be refunded or paid for by MetPro Ltd.”
9.
Clause 7 of the agreement reads as follows:
“
RESTRAINT
OF TRADE
7.1
As from the date of signature hereof until 31
st
December 2013 and from the 1
st
of January 2014 until the 31
st
of December 2016, the SELLER shall be subject to restraint of trade
as set out hereunder:
7.2
The PURCHASER shall pay the SELLER an amount of E1, 250.00 (ONE
THOUSAND TWO HUNDRED AND FIFTY POUNDS) per month, from
the 1
st
of January 2014 until the 31
st
of December 2016 and the SELLER shall in turn be restrained:
7.2.1
to enter into any business activity which competes directly or
indirectly with the COMPANY or the PURCHASER, in
particular, utilize
the trade secrets or technology which is owned by the COMPANY and/or
PURCHASER or approach any of the established
clients of the COMPANY
of the PURCHASER in order to procure or solicit orders in competition
with the COMPANY or the PURCHASER:
7.2.2
nor shall the SELLER sell or otherwise deal in any products which are
the same as or similar to any of the products
within the COMPANY or
PURCHASER alternatively, similar or in competition with the COMPANY
or PURCHASER or otherwise compete with
the products:
7.2.3
to be employed or associated with any business where such employment
or association enables such business to compete
with the COMPANY or
the PURCHASER.
7.3
The above restraint shall be effective over the territory described
as the global VCI market, which shall include such
products as metal
cleaners, metal working fluids and water based rust preventative
coatings defined as worldwide
7.4
The SELLER acknowledges and agrees that such restraint is intended to
prevent the SELLER from competing directly or indirectly
with the
company or the PURCHASER within the stipulated period and territory,
furthermore to prevent the SELLER from diverting
any work from the
COMPANY or the PURCHASER to any other competing business during the
period of the restraint.
7.5
The SELLER acknowledges that the aforesaid restraint is fair and
reasonable in view of the investment made by the PURCHASER
in the
COMPANY, the contracts established by them with the existing clients
of the PURCHASER, their acquisition of knowledge and
information
relating to the clients of the PURCHASER, and/or COMPANY and so
forth.
7.6
The SELLER specifically acknowledges that his restraint is necessary
for the protection of the business relationship existing
between the
COMPANY and the PURCHASER, the owner of the COMPANY or the PURCHASE
and the established clients of the company or the
PURCHASER.
7.7
The aforesaid restraints are specifically created in favour of the
COMPANY and/or the PURCHASER and owners thereof.
[9]
On 21 May 2010, the First Respondent concluded a written contract of
employment with Fairy Wing Trading 115 (PTY) LTD, a company
whose
name was changed to that of the second respondent on 5 July 2010, and
the contract continued in force. He was employed as
a Technology
Transfer Engineer and his employment contract was subject to
confidentiality, competition and restraint clauses. Clause
16 of the
employment contract reads as follows:
“
16.
Restraint
of Trade
16.1 You
acknowledge and agree that in the course of your employment with the
Company, you will become acquainted with the
employees, trade secrets
and clients of the Company. In order to protect the proprietary
interest, customer and employee base,
and trade secrets of the
Company, you agree and undertake that you will not, either directly
or indirectly and in any capacity,
throughout the period of your
employ and for 12(twelve) months after termination of your services,
approach any existing employee,
client or future client that you are
aware is being contracted to the Company, for the purpose of
providing, rendering or soliciting
services or business that is
allied or similar to the Company’s business.
16.2
You may not:
be
engaged, concerned or interested or hold any material interest in
either directly or indirectly in any capacity either on your
own
behalf or in conjunction with or on behalf of any person, firm,
company, business, concern or enterprise whatsoever in the
Relevant
Business or in any business wholly or partly in competition
with the Relevant Business: or directly or indirectly
in any capacity
either on your own behalf or in conjunction with or on behalf of any
other person, firm, company, business, concern
or enterprise
whatsoever;
(a)
Solicit or
entice or endeavor to solicit or entice away from the service of the
Company or any Association Undertaking any person
employed by the
Company or any Associated Undertaking in any capacity whatsoever
whether or not you would commit a breach of your
contact of
employment by reason of leaving such service;
(b)
Canvass,
solicit or approach or cause to be canvassed or solicited or
approached for orders in respect of any service provided or
any goods
dealt in by Company or any Associated Undertaking any person, firm,
company, business, concern or enterprise whatsoever
who is or was at
any time during the period of 6 months immediately preceding the
termination of the Agreement employment a customer
of or supplier to
or in the habit of dealing with Company or any Association
Undertaking or who is or had been during the said
6 month period
negotiating with the Company for the supply of such services or
goods; or
(c)
Interfere
or seek to interfere to take steps as may interfere with the
continuance of supplies to the Company or any Associated
Undertaking
(or the terms relating to such supplies) from any persons who are or
who have been supplying components, materials,
goods or services to
the Company or to any Associated Undertaking at any time during the 6
month period immediately preceding termination
of this agreement.
16.3
You acknowledge and agree that the restraints imposed on your terms
of this clause are reasonable, and are reasonably
required by the
Company to protect and maintain the goodwill and proprietary
interests of the Company.”
[10]
The first respondent resigned on 31
July
2015
Submissions
The
applicants contended that both first and second respondents engaged
in unlawful competition during the subsistence of their
employment
with the applicants by making use ofthe applicants’ resources,
confidential information and customer and supplier
connections as a
springboard to launch their own business, in direct competition with
the applicants and have thus breached the
restraint of trade
clauses/provisions of their respective contracts.
[11]
First and second respondents set up the third respondent company to
engage in direct competition with the applicants’
business,
which is reflected in the third respondent’s promotional
material and its company profile. The first and second
respondents
have, in addition, also been approaching the applicants’
customers and suppliers in breach of theirrestraints.
[12]
The first respondent does not provide a viable, or indeed any
coherent, challenge to the restraint, and does not challenge
the
reasonableness of the restraint or the area over which the restraint
applies. The second respondent has failed to deliver a
comprehensive
answering affidavit. On the basis of
Plascon-Evans
Paints Limited Van Riebeck Paints (Pty)LTD
[1984] ZASCA 51
;
1984 (3)
SA
623
(A
),
the applicants are entitled to relief.
[13]
The first respondent disputes that the applicants have protectable
interests, which are being infringed and denies that a restraint
of
trade is in force against the first and third respondents. The second
respondent does not dispute the relevant restraint of
trade
provisions that apply to him but denies that he was ever employed by
the applicants.
[14]
It is argued on behalf of second respondent that, had he been
employed by the applicants, he would have received benefits in
accordance with the Basic Condition of Employment Act. He never
received such benefits. He was retained over the fixed term on
a
monthly retainer as stated in the relevant agreement.
[15]
The first respondent contested the interpretation given by the
applicants to clause 16 of the agreement. He admitted the restraint
in clause 16.1. He contended that clause16.2 was totally separate
from clause 16.1 and was clearly not subject to a 12(twelve)-month
period after the termination of the contract.
[16]
Even though the first respondent is the director of the third
respondent, the latter was not trading but investigating solar
and
energy markets within which to venture. It disputed that it was a
manufacturer of the products alleged by the applicant. First
respondent denied having spoken to potential customers and suppliers
of the applicants.
[17]
Relying
on Den Braven SA (Pty) LTD v Pillay 2008(6) SA 229 (D)
paragraph 9, it was argued on behalf of the first respondent that the
order was not needed as the remaining period for the restraint
to
lapse was but a few weeks away and, at most, it could take 6(six)
months to train new personnel. Furthermore, the applicants
had failed
to prove by way of admissible evidence that a restraint of trade
existed in as far as the first respondent was concerned.
Even if the
respondent was contravening the restraint clause, an order was not
necessary a mere month before its expiration.
[18]
The first respondent raised issues disputing the authority of the
applicants’ attorneys to act on their behalf; the authority
of
Ms. Du Plessis to depose to the affidavit in support of the
applicants’ application; and the validity of the confirmatory
affidavit deposed to by Rick Earley due to it allegedly being
improperly executed outside of the Republic of South Africa.
All of these issues were abandoned on behalf of the respondents
during oral argument. It was also conceded on behalf of the first
respondent that, should it be found that clause16.2 was not
inconsistent with clause 16.1, then the full effect of the restraint
clause should come into effect.
The
issues
[19]
The issues to be determined are:
1.
Whether the
Applicants have a protectable proprietary interest;
2.
Whether the
Respondents are subject to the restraints of trade;
3.
Whether the
restraints are unreasonable or contrary to public policy.
Restraints
of trade – legal principles
[20]
In
Magna
Alloys and research (SA) (Pty) LTD V Ellis
[1984] ZASCA 116
;
1984 (4) SA 874
(A)
the following principles were adopted:
20.1
Prima facie
every restraint agreement signed by a restrainee is enforceable.
Where a restrainee wishes to be released from his restraint
obligations, the onus lies on the restrainee to show that the
restraint is not only unreasonable, but
contra
bonos mores,
that
is, contrary to public policy.
20.2
In
determining whether a restraint is
contra
bonos mores,
a
court will look at the facts and circumstances at the time that the
restrainor is attempting to enforce the agreement against
the
restrainee and weigh up to two main considerations. The first is that
the public interest requires, in general, that parties
should comply
with their contractual obligations even if these are unreasonable or
unfair [
pacta
sunt servanda].
The
second consideration is that all persons should, in the interest of
society, be permitted as far as possible to engage in commerce
or the
professions freely. Expressing this differently, it is detrimental to
society if an unreasonable fetter is placed on a person’s
freedom of trade or a person’s freedom to pursue a profession.
20.3
In determining whether a restraint is
contra
bonos mores,
a
court will consider, among others, the following factors:
20.3.1
the
duration of the restraint;
20.3.2
the area in
which the restraint applies;
20.3.3
whether a
restraint payment was paid to the restrainee;
20.3.4
whether the
restrainee still has the ability to earn a living
20.3.5
the
“proprietary interest” or capital asset that the
restrainor seeks to protect.”
[21]
In
Basson
v Chilwan and others 1993(3) SA 742 (A) at 767
it was stated that the court should pose four questions in assessing
the reasonableness of a restraint.
These
are:
a)
is there an
interest of one party, which is deserving of protection at the
termination of the agreement?
b)
is such an
interest being prejudiced by the other party?
c)
if so, does
such interest weigh up qualitatively and quantitatively against the
interest of the latter party that the latter should
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?
[22]
The person who sells a business and then seeks to make use of the
trade connections that he sold will be interdicted from doing
so even
in the absence of a restraint of trade agreement where a business
sought to protect itself by securing a restraint of trade
undertaking
from an employee.
There
is no reason for the courts or the law to review this with disfavor
.
Den
Braven SA (Pty)
LTD
v Pillay 2008(6) SA 229 (D) at paragraph 35.
Discussion
The first respondent
[23]
In essence, and taking into account the heads of argument and the
oral argument, the first respondent’s opposition revolves
around the interpretation of clause 16 of the employment agreement.
The terms of the agreement, having been drafted by the second
applicant, it is argued by the respondents, must convey a clear
meaning. In the event of an ambiguity, an interpretation less
favourable for the applicant should be given to the term. I cannot
agree with this approach especially when the argument is advanced
that clause 16.1 and 16.2 are separable. The restraint of trade
provision is contained in clause 16 under the heading “restraint
of trade” consisting of three sub-clauses. My view is that the
clause should be read as a whole for the elucidation of the
clause
and to ascertain the intention of the parties.
Chotabhai
v Union Government
1911 AD 13
at 24; Turfontein Estate v Mining
Commissioner, Johannesburg
1917 AD 419
at 431.
I
therefore agree with the applicants’ argument that clause 16.2
elaborates on the type of conduct that would be prohibited
during the
period of the restraint. Even if I am wrong, if one looks at the
whole scheme of the employment contract, the circumstances
which gave
rise to such employment contract, the inclusion of confidentiality
and competition clauses, it is evident what protection
is being
sought; and in my view, which could be granted in the absence of a
restraint of trade undertaking from an employee:
Den
Braven ,supra
.
It is noteworthy that first respondent does not contest, save for the
interpretation of clause 16.1 and 16.2, the contents of
the whole of
clause 16.
[24]
In oral argument, I was referred by respondents’ counsel to
page 17 of the employment contract appearing on page
176 of the
bundle of documents which dealt with the acceptance and offer of the
contract. This paragraph entails that the first
respondent should
confirm acceptance of the terms and conditions of employment by
initialing each page and signing the final page
of the agreement
before he could commence employment. Counsel remarked that the
contract was not signed as the space reserved for
the Chief Executive
Officer remained blank.
[25]
The employee’s signature and that of a witness appear at the
bottom of the page under the heading “declaration
by the
employee”, where the latter confirmed having read and received
the explanation of the terms and conditions which he
confirmed that
he understood and accepted in full. Each and every other page was
initialed. I did not understand the Counsel’s
submission about
the missing signature of the Chief Executive officer on the last page
of the contract. If the submission suggested
that an employment
relationship did not exist between the second applicant and the first
respondent on the terms and conditions
as set out in the contract
document, I would disagree for the following reasons: firstly, the
first respondent’s signature
on the contract was never in
dispute; secondly, save for suggesting a different interpretation of
clause 16 of the contract, the
contract itself was not pertinently
disputed, or a submission to that effect made. In paragraph 4.2 of
the answering affidavit,
the first respondent admitted the restraint
of trade contained in clause 16.1 of the contract but averred that
the twelve (12)
month restraint period contained therein should not
be extended to clause 16.2. It is clear to me that for all intents
and purposes,
the relationship between the parties was regulated by
the terms and conditions set out in the contract document. I am
therefore
satisfied that an employment contract with a valid
restraint of trade provision existed between the second
applicant and
the first respondent.
The
second respondent
[26]
The second respondent stated briefly in his opposing affidavit that
he was never employed by the applicants and was not
in
contravention of any restraint. Despite strong allegations and
accusations by the applicants that as a technologist and
a previous
shareholder of the second applicant, he was intimately involved in
the creation of some of the second applicant’s
technology; and,
together with the second respondent, interacted with both the
applicants’ customers and suppliers and formed
strong customer
and supplier connections with them, he chose not to address and
respond to these allegations. Litigants are
required to
seriously engage with factual allegations they seek to challenge and
to furnish not only an answer , but also countervailing
evidence
particularly where the facts are within their personal knowledge;
Wight
v Wight & Another 2015(1) SA 262
SCA
paragraph 15
.
[27]
One would have expected the second respondent to respond and clarify
the restraint of trade contained in paragraph 7 of the
agreement of
sale concluded on 4 September 2016, amongst a host of allegations
leveled against him. I agree with applicants’
counsel that the
respondent has not presented his version before the court. He has
failed to properly address the facts raised
against him and resorted
to bald denials and evasiveness. His version does not raise a genuine
dispute of fact and justifies its
outright rejection:
Plascon-Evans,
supra
at 634E-635;
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another 2008(3) SA 371
SCA
at paragraph 12.
The
third respondent
[28]
The third respondent is a company of which the first respondent is
the sole director. Applicants hold the view that it is the
alter ego
of the first respondent and used as a vehicle by first and second
respondents to compete unlawfully with the applicants
in breach of
their restraint of trade undertakings. In the applicants’
founding affidavit and in particular paragraph 120,
it was alleged
that ,in the third respondent’s promotional material ,which had
been designed and produced prior to
first and second
respondents’ exit from the second applicant on 31 July 2015,
the first respondent is described as the project
manager while the
second respondent is described as the technologist and chief chemist.
In the answering affidavit, on behalf of
both first and third
respondents the response was as follows: “ There is still much
call for John’s expertise in various
other chemical sectors
from water treatment to plant optimization. The allegations do not
constitute a contravention of second
respondent’s agreement.”.
[29]
Similarly, in paragraphs 121 to 125 of the founding affidavit it was
alleged that the third respondent stated in its company
profile
that its current product base included “ industrial, hygiene
and pharmaceutical base products as well as specially
packaging
products developed for very specific needs”, a manufacturer of
products in competition with applicants and claims
to be an
authorized agent of dessicants for humidity control. In the answering
affidavit, save to state that the third respondent
was not a
manufacturer, the rest of the allegations were denied without an
explanation.
The
Proprietary interest
[30]
Trade secrets, pricing and customer connections are all proprietary
interests which justify protection. A protectable customer
or
supplier relationship exists where an employee has personal knowledge
of and influence over the customers or suppliers of his
employer so
as to enable him, if the competition were to be allowed, to take
advantage of his former employer’s trade connections.
Rawlins
& Another Caravan truck (Pty) LTD1993 (1) SA 537 (A) at 541 E,
543
C-G
.
In
Reddy
v Siemens Telecommunications (Pty) LTD
2007 (2) SA 486
(SCA),
the court applied a 12 month restraint against an employee who had
joined a competitor stating that it was not necessary for the
court
to find that the employee would use his previous employer’s
trade
secrets and confidential information in his new employment but that
it was sufficient if he could do so.
[31]
Though first and second respondents refused that they colluded with
each other to breach the restraint agreements, the documentary
evidence in the form of e-mails between the two respondents clearly
show that they were aware of the restraint clauses and were
willing
to act in breach of such clauses. Consequently, I am of the view that
the applicants have an interest that is threatened
by the
respondents, worthy of protection.
[32]
The question that crops up is whether, on the given facts, the
applicants have proprietary interests that deserve protection.
Applying the principles in the
Plascon-Evans
case,
it is crystal clear that the respondents have failed to resist the
onslaught as made against them as well as the relief sought.
The documentary evidence presented supports the allegation that the
third respondent was nothing else but an alter ego of the first
and
second respondents.
Relief
sought
[33]
Prayers 1-6 in the notice of motion are mandatory in nature and seek
to compel the respondents to do certain things. These
are a
regurgitation of what the first respondent was prohibited to do
under the heading “Intellectual Property”
in paragraph 7
of the employment agreement. This clause, according to the contract,
applies to the intellectual property used,
created, produced,
invented or discovered during the first respondent’s employment
with the company, which , in the opinion
of the company, may be
capable of being used. The facts presented are not consistent with
the relief sought and in my mind
require evidence of
clarification to determine the range of such relief. Besides, the
thrust of the clause is restricted to the
period of employment of the
first respondent and not beyond. Counsel for the respondents
correctly pointed out in his heads of
argument that, apart from the
enforcement of the restraint of trade, none of the other relief is
seriously being pursued by the
applicants. I agree.
[34]
Prayer 9 seeks to interdict and to restrain the first to the third
respondents for a period of 12 (twelve) months from
1 August
2016 from approaching any customer or supplier or prospective
customer or supplier of the applicants. This relief
cannot be granted
as it is without base.
Conclusion
[35]
The applicants have established proprietary interests worthy of
protection, which, if not so protected by the enforcement of
the
restraint, may lead to the applicants suffering irreparable harm.
Both first and second respondents have not shown that the
period of
the restraint is unreasonable. The second respondent will receive
compensation for the remainder of the period of the
restraint. He
would therefore not be economically inactive and unproductive.
Costs
[36]
In the result, costs should follow the event.
Order
[37]
An order is granted on the following terms:
1.
interdicting and restraining the first
respondent, for a period of 12 months after termination of the
first
respondent’s services with the second applicant, being
until 31 July 2016:
2.
from, either directly or indirectly and in
any capacity, approaching any existing employee, client or
future
client of the second applicant for the purpose of providing,
rendering or soliciting services or business that is allied
or
similar to the second applicant’s business;
3.
being engaged, concerned or interested or
holding any material interest in, either directly or indirectly
in
any capacity, either on his own behalf or in conjunction with or on
behalf of any person, firm, company, business concern or
enterprise
whatsoever in the relevant business (as defined in the Employment
Contract annexed marked “FA6” to the founding
affidavit)
or in any business wholly or partly in competition with the relevant
business:
4.
directly or indirectly in any
capacity, either on his own behalf or in conjunction with or on
behalf of any person, firm, company, business concern or enterprise
whatsoever:
4.1
soliciting or enticing or endeavoring to solicit or entice away from
the service of the second applicant or any associated undertaking
(as
defined in the Employment Contract annexed marked “FA6”
to the founding affidavit), any person employed by second
applicant
or any associated undertaking in any capacity whatsoever;
4.2
canvassing, soliciting or approaching, or causing to be canvassed or
solicited or approached, for orders in respect of any services
provided or any goods dealt in by the second applicant or any
associated undertaking, any person, firm, company, business concern
or enterprise whatsoever who is or was at any time during the period
of 6 months immediately preceding the termination of the Employment
Contract a customer of or supplier to or in the habit of dealing with
the second applicant or any associated undertaking or who
is or had
been during the said 6 month period negotiating with the second
applicant for the supply of such services or goods;
4.3.
interfering or seeking to interfere, or to take steps as may
interfere with the continuance of supplies to the second applicant
or
any associated undertaking from any persons who are or who have been
supplying components, materials, goods or services to the
second
applicant or to any associated undertaking at any time during 6
months period immediately preceding termination of
the
Employment Contract.
5.
interdicting and restraining the second
respondent, against payment of the sum of $ 1,250 (British pounds
)
per month to the second respondent, until 31 December 2016, from:
5.1.
entering into any business activity which competes directly or
indirectly with the applicants, in particular utilizing
the trade
secrets or technology which is owned by applicants, or approaching
any of the established clients of the applicants in
order to procure
or solicit orders in competition with the applicants;
5.2.
selling or otherwise dealing in any products which are the same as or
similar to any of the products within the applicants,
alternatively
,
similar or in competition with the applicants or otherwise compete
with their products;
5.3.
from being employed or associated with any business where such
employment or association enables such business to compete with
the
applicants.
6.
Costs are granted on the scale as between
party and party.
______________
JJ
MHLAMBI, AJ
On behalf of
applicants:
Adv. Z.M. Navsa
Instructed
by:
Phatshoane
Henney Attorneys
Bloemfontein
On behalf of 1st, 2nd and
3rd respondent: Adv. S.J. Reinders
Instructed
by:
Molenaar
& Griffiths
Attorneys
c/o Symington
&
De Kok
Bloemfontein
/PK