About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2016
>>
[2016] ZAKZPHC 62
|
|
Johannes Van Veijeren t/a Van Veijeren & Partners v Kruger (12634/2015) [2016] ZAKZPHC 62 (24 June 2016)
IN THE HIGH
COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
CASE NO:
12634/2015
DATE: 24
JUNE 2016
In the
matter between:
JOHANNES VAN VEIJEREN trading as
VAN VEIJEREN &
PARTNERS
.......................................................................................
APPLICANT
And
TONYA
KRUGER
..........................................................................................................
RESPONDENT
ORDER
(a) The respondent is interdicted
from either directly or indirectly being employed by or have an
interest, either as employee,
principal, agent, member, shareholder,
director, partner, consultant, financier or advisor in any concern or
entity which carries
on a Radiology Practice, or a business that
renders Diagnostic Ultrasound, Foetal Assessment, Doppler Studies
and/or Musclo Skeletal
ultrasound services, within a radius of 70
kilometers from Newcastle, Dundee and/or Vryheid, KwaZulu-Natal, for
a period of 12
months from date of grant of this order;
(b)
The respondent is hereby ordered to forthwith cease her Sonographer
practice in which she renders Diagnostic Ultrasound, Foetal
Assessment, Doppler Studies, and Musclo Skeletal Ultrasound services
from 234 Utrecht Street, Vryheid, KwaZulu-Natal;
(c)
The respondent is ordered to pay the costs of this application.
JUDGMENT
SEEGOBIN
J:
INTRODUCTION
[1] From the
seminal decision in
Magna Alloys and Research
(SA) (Pty) Ltd v Ellis
[1]
to the decisions in
Basson v Chilwan and
Others
[2]
and
Reddy v Siemens Telecommunications (Pty)
Ltd
,
[3]
our courts have consistently held that 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. Differently put,
a
restraint of trade agreement is valid and enforceable unless it is
unreasonable.
[2] In
Magna
Alloys
[4]
it was held that a restraint will be considered to be unreasonable
and thus contrary to public policy, and therefore unenforceable,
if
it does not protect a legally recognizable interest of the employer
but merely seeks to exclude or eliminate competition. An
applicant
seeking to enforce a restraint of trade agreement need only invoke
the contract and prove its breach. The
onus
to prove that the restraint is unreasonable and therefore
unenforceable rests on the party resisting its enforcement.
[3] In
Basson
v Chilwan
,
[5]
Nienaber JA identified four questions that should be asked when
considering the reasonableness of a restraint, namely:
(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 other party not to be economically
inactive and unproductive?
(d) Is there
any other aspect 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?
[4] Malan AJA
in
Reddy v Siemens
[6]
held that a court must make a value judgment with two principal
policy considerations in mind in determining the reasonableness
of a
restraint: the
first
is that the public interest requires that parties should comply with
their contractual obligations, a notion expressed by the maxim
pacta
servanda sunt
; and the
second
is that all persons should in the interests of society be productive
and be permitted to engage in trade and commerce or the professions.
The court went on to state the following:
“
Both considerations
reflect not only common-law but also constitutional values.
Contractual authority is part of freedom informing
the constitutional
value of dignity, and it is by entering into contracts that an
individual takes part in economic life.
In this sense, freedom
to contract is an integral part of the fundamental right referred to
in s22. Section 22 of the Constitution
guarantees ‘[e]very
citizen . . . the right to choose their trade, occupation or
profession freely’ reflecting the
closeness of the relationship
between the freedom to choose a vocation and the nature of a society
based on human dignity as contemplated
by the Constitution. It
is also an incident of the right to property to the extent that s25
protects the acquisition, use,
enjoyment and exploitation of
property, and of the fundamental rights in respect of freedom of
association (s18), labour relations
(s23) and cultural, religious and
linguistic communities (s31).”
[7]
THE
APPLICATION
[5] All this
brings me to the present application which was launched as a matter
of urgency on 12 September 2015. The issue of urgency
is now academic
as a period of about eight months have now passed since the
application was first launched. The disputes having
been fully
ventilated on the papers, the applicant now seeks final relief.
The test for final relief in motion proceedings
is
well-established:
[8]
a final order can only be granted in motion proceedings if the facts
stated by the respondent together with the admitted facts
in the
applicant’s affidavits justify the order sought, and this
applies irrespective of where the
onus
lies.
BACKGROUND
FACTS
[6] The
relevant background facts are not complicated. They can
conveniently be summarized as follows:
6.1 The
applicant, a qualified radiologist, conducts his radiology practices
in Newcastle, Dundee and Vryheid in KwaZulu-Natal.
These
practices render, amongst others, the following sonographer
(ultrasound) services, namely, general ultrasound, musclo skeletal
ultrasound (MSK) (i.e. the examination of muscles, joints and the
like), foetal assessments and Doppler studies (i.e. vascular
examinations).
6.2 The respondent, on the
other hand, is not a qualified radiologist. She is, however, a
qualified radiographer and also
holds a B-Tech diploma in
sonography. In 2006 she accepted a position to work in the
applicant’s practice at Vryheid
as a sonographer, radiographer
and practice manager.
6.3 The relationship
between the parties was governed by an employment contract (the
contract) which was signed on 22 February 2006.
The contract
consisted of an appointment letter, a document titled ‘My
Employer and Me’, a confidentiality undertaking
and restraint
as well as an addendum “A” thereto.
[9]
6.4 For the purposes of the
present dispute it suffices to have reference to the following terms
and conditions:
6.4.1 In
terms of clause 3.1.4 of the document titled ‘My Employer and
Me’, it was agreed that the work done in the
applicant’s
practice was of such a nature that all information obtained during
the performance of the work must be kept confidential
and may not be
disclosed to any person outside the practice. This also applied
to the names and information concerning the
health of any patient.
6.4.2 Clause
7 of the same document stipulated that the agreement was conditional
upon the respondent signing the confidentiality
undertaking and
restraint.
6.4.3 Clause
2 of the confidentiality undertaking and restraint recorded that the
respondent will, as a consequence of her employment,
have access to
trade secrets and confidential information and that she agrees,
undertakes and binds herself, in order to protect
the applicant’s
proprietary interest and the trade secrets and confidential
information that, during the period of her employment
and forever
thereafter, she will not, either directly or indirectly, use,
disclose, divulge or make known any of the trade secrets
or
confidential information.
6.4.4 Clause
4 of the confidentiality undertaking and restraint provides that
respondent agrees that applicant’s proprietary
interest in the
trade secrets and confidential information will be prejudiced if she
takes up employment or becomes interested
in any concern within the
area of applicant’s operation that competes with him and it is
accordingly agreed that in order
to protect such proprietary
interest, she binds herself, during the period of her employment and
for five years after termination
thereof, not to encourage, assist,
persuade, induce, incite or procure any of his employees or become
employed by or interested
in (whatsoever capacity, either directly or
indirectly) any concern of whatsoever nature which carries on as a
part of or as the
whole of its undertaking or business, the same
business similar to or like his business. Respondent shall also
not approach,
advise or contact in order to, either directly or
indirectly, solicit the custom of any person or entity who was a
customer or
with whom or to whom or on behalf of the applicant,
negotiations, discussions or representations, were entered into or
made during
the period of her employment. She will not either
directly or indirectly be employed by or have an interest in, either
as
employee, principal, agent, member, shareholder, director,
partner, consultant, financier or advisor or any other like capacity
in ay concern or entity which carried on a business similar to or
like my business within the area of his operation, which she
acknowledged to be fully acquainted with. The restraint
specifically refers to areas surrounding Newcastle, Dundee and
Vryheid
with a 100 kilometer radius around it. Respondent
acknowledged that the restraints imposed are reasonable in all
respects.
6.4.5 Clause
3 of annexure “D” recorded that although the respondent
will be mainly employed in the applicant’s
Vryheid practice,
she shall also attend the Dundee practice and surrounding towns on a
weekly basis.
6.4.6 Clause
7 of annexure “D” provided that before the conclusion of
the period of contract, the period may be extended
by agreement in
writing between the parties either for a fixed period or for an
indefinite period, and during such extended period
all the terms and
conditions of the agreement shall apply.
6.5 There is
no dispute that the contract period was extended from time to time in
terms of various addenda signed by the parties,
the last of which was
concluded on 25 April 2013.
[10]
The restraint which forms the subject matter of the present dispute
between the parties is contained in clause 9 of the addendum.
It
provides as follows:
“
Kruger
will not either directly or indirectly be employed by or have an
interest in, either as employee, principal, agent, member,
shareholder, director, partner, consultant, financier or advisor or
in any other like capacity in any concern or entity which carries
on
Radiology Practice or a business similar to or alike the business of
Van Veijeren within a radius of 70km to Van Veijeren’s
various
practices, which Kruger acknowledges to be fully acquainted with.
Kruger hereby acknowledges that the restraints
imposed on her in terms of this contract are reasonable in all
respects and are seasonably
[sic] required by Van Veijeren to protect
and maintain the proprietary interest in his business as set out
above and maybe [sic]
enforced against the [sic] Kruger by Van
Veijeren.
The provisions of the restraints above are severable
as to each of the undertakings set out in respect of each of the
businesses
and each of the area of operations of Van Veijeren.”
6.6 Throughout the duration
of her employment with the applicant the respondent’s duties
remained virtually the same. These
were stipulated in the employment
contract and the various addenda which were concluded from time to
time. The duties constituted
the following:
·
The respondent was to perform all such duties as assigned to
her from time to time by the applicant.
·
The respondent was required to devote all of her time and
attention in performing her duties under the agreement.
·
The respondent was required to use her best endeavours to
promote and extend the applicant’s business.
·
The respondent was required to attend the Dundee practice and
the surrounding towns on a weekly basis in order to do ultrasounds.
·
The respondent was required to do ultrasounds as well as
general radiology at the Vryheid practice.
6.7 While the
restraint in annexure “C” stipulated a radius of 100
kilometers from Newcastle, Dundee and Vryheid and
was for a period of
five years, the restraint in annexure “F” stipulated a
radius of 70 kilometers from the three practices
referred to above.
6.8 It is common cause
that the respondent left the applicant’s practice with effect
from 31 May 2015. It is not disputed
that by 15 June 2015 the
respondent opened a practice for her own account in Vryheid from
which she conducts foetal ultra-sounds.
By the 14 August 2015
the applicant established, through certain social media, that the
respondent also opened a sonographer practice
in Vryheid. The
present application was launched on 18 September 2015. This was
not before the applicant had, through
his attorneys, requested the
respondent to desist from her conduct which she refused to do.
[7]
While in the notice of motion the applicant sought an enforcement of
the restraint for a period of 24 months, in his heads
of argument and
in oral submissions before me on 13 June 2016, Mr
van Rooyen
who appeared on behalf of the applicant indicated that the applicant
would be content to have the restraint period reduced to 12
months.
APPLICANT’S
CASE
[8] On behalf
of the applicant it was argued that the respondent does not dispute
that she is in breach of the restraint.
She accordingly bears
the
onus
of establishing on a balance of probabilities that
the restraint is unreasonable, that it offends against public policy
and that
it is unenforceable. It was contended that the
applicant has a proprietary interest in his customer base which
includes patients
and referring doctors/physicians. It was
argued that the applicant was afforded no opportunity after the
departure of the
respondent to re-arrange his affairs in Vryheid
before the respondent unlawfully started competing with him in breach
of the restraint.
[9] It was
further argued that the applicant has demonstrated a material decline
in his Vryheid practice and this was directly attributed
to the
conduct of the respondent. According to the applicant the area
in which the restraint is to be applicable does not
preclude the
respondent from pursuing her practice and from earning an income.
It was submitted that the fact that the restraint
is open-ended does
not make it unenforceable.
RESPONDENT’S
CASE
[10] While
the respondent did not dispute the restraint and its terms,
Ms
Bosman
, who appeared on behalf of the respondent, contended
strongly that it would be unreasonable to enforce the restraint
against the
respondent, given the fact that she has been out of the
applicant's employ for just over a year in circumstances where:
10.1
first,
the applicant has no proprietary interests that are worthy of
protection;
10.2
second,
the
enforcement of the restraint will mean that the respondent is unable
to practice her profession as a sonographer and ultra-sound
practitioner within a 70 kilometer radius of Vryheid, Newcastle and
Dundee for a period of 12 months; and
10.3
third
, the
enforcement of the restraint would be aimed at limiting competition
for sonography and ultra-sound services in Vryheid.
[11] Ms
Basson listed the following areas of dispute that exist between the
parties. These relate to the following:
(a) Whether
the applicant has proprietary interests in confidential information
or customer connection which are protectable;
(b) Whether
the applicant’s patient base is proprietary and accordingly
protectable;
(c) Whether
the applicant’s referring physicians are proprietary to the
applicant and accordingly protectable;
(d) Whether
the restraint restricts the respondent from exercising her
profession, skills and expertise as a sonographer and ultrasound
practitioner;
(e) Whether
the enforcement of the restraint is ought to limit competition for
sonography and ultrasound services in Vryheid;
(f) Whether
the restraint is overbroad in terms of duration;
(g) Whether
the restraint is overbroad in terms of area.
[12] It would
seem to me that the issues outlined in sub-para’s (a), (b), (c)
and (d) above can be grouped together and dealt
with as one.
The same would apply to those in sub-para’s (f) and (g).
The issues raised in (f) and (g) really
turn on the question of
reasonableness. In addressing these issues I will also endeavor
to address the four questions posed
in
Basson, supra.
The issue of ‘competition’ in sub-para (e) will, as far
as possible, be dealt with separately.
FINDINGS
[13] The
applicant alleged that in the period of nine years in which the
respondent was employed at his Vryheid practice, she not
only gained
vast knowledge of his patient base but also of his referring
doctors/physicians with whom she had contact. The
respondent
denies that either of these aspects are in fact proprietary to the
applicant and protectable in his hands. She
avers that she had
no dealings with the applicant’s patients at his Newcastle and
Dundee practices since she only worked
at his Vryheid practice. She
furthermore contends that patients treated at the Vryheid practice
“or the Newcastle or Dundee
practices” are not
proprietary to the applicant but are the patients of the general
practitioners and doctors who refer them
for radiography or
ultrasound services. She avers that when patients are referred for
radiography or ultrasound services by their
doctors, they are
provided with a form and are afforded the choice of engaging a
radiographer or ultrasound practitioner.
As such, no repeat
business can be garnered from these patients due to some kind of
customer connection.
[14]
The
legal position where an employer seeks to enforce a restraint
of trade agreement on the basis of a risk of harm to its
trade
connections and in particular its connections with its customers, has
been authoritatively set out in the following terms:
“
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 contact' doctrine depends on
the notion that 'the employee,
by contact 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 customers 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
Mohammed 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. .
. .”
[15]
In
Walter
McNaughton (Pty) Ltd v Schwartz & Others
,
[11]
van Reenen J pointed out that:
“
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 and 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.”
[16]
In
Den Braven SA
(Pty) Ltd v Pillay and Another
,
[12]
it was pointed out that in considering the facts of a particular case
it must always be borne in mind that a protectable interest
in the
form of customer connection does not come into being simply because
the former employee had contact with the employer’s
customers
in the course of their work. The connection between the former
employee and the customer must be such that it will probably
enable
the former employee to induce the customer to follow him or her to a
new business.
[17]
The facts which are relevant to this aspect of the matter are the
following. By all accounts the applicant’s practice
was
well-established. This is evident from the fact that he not only
conducted his practice from Vryheid but also from Newcastle
and
Dundee. In the nine odd years that the respondent was employed
by the applicant, she not only carried out her professional
duties as
a radiographer and sonographer, she was also the practice manager.
It stands to reason that she was the face of
the practice. She
not only dealt with the patients who were referred to the practice by
the general practitioners in the
area, but also with the general
practitioners themselves. In such circumstances, it is reasonable to
infer that whatever links
she was able to forge she did so in the
course of her employment with the applicant.
[18]
I further consider that apart from rendering professional services to
the practices patients and general practitioners over
a lengthy
period of time, it is reasonable to assume that the respondent also
interacted with and forged relationships with medical
sales persons
and other suppliers of goods and services to the practice.
Again, all this would have taken place in the course
of her
employment with the applicant.
[19]
In my view, whatever relationships the applicant established and
whatever ‘customers’ (whether in the nature of
general
practitioners or patients) she procured by her own efforts in the
course of her employment, it cannot be denied that these
were
customers of the applicant.
[20]
I further consider that in her capacity as practice manager, the
applicant would have gained intimate, useful and confidential
knowledge of the applicant’s practice, particular those aspects
relating to the applicant’s customer base, his suppliers
and
how the practice operated. The confidential nature of all this
information can only be relevant and applicable to the
particular
practice, it would have been known only to the applicant and
respondent and lastly, its economic value is only applicable
to the
applicant who seeks to protect it.
[21]
While in the one breath, the applicant claims that the patients
treated at the Vryheid practice are not proprietary to the
applicant
but are patients of the general practitioners and doctors who refer
them, in the very next, she suggests that patients
who are referred
for radiography or ultrasound services by their doctors are simply
provided with a form and are afforded the opportunity
of making their
own choice. This argument is not only contradictory but it is
also devoid of any substance. It is most
improbable, in my
view, that a doctor would simply provide a patient with a form and
request that he/she find a radiographer/radiologist
of their choice.
The more probable scenario is that the referring doctor will direct
the patient to a particular practice
with which he has developed a
close relationship which in the present case would be that of the
applicant.
[22]
Having regard to the diverse nature of the services provided by the
applicant in the Vryheid practice, the number of years
that the
respondent worked for him and the access which she had not only to
his ‘doctor/patient’ base which allowed
her to forge her
own relationships, but also to all the confidential information
pertaining to his practice, it is disingenuous
for the respondent to
suggest that no protectable interest exists which warrant
protection. The fact that the applicant did
not offer
ultrasound or sonography services at the Vryheid practice until
December 2015 is, in my view, immaterial. The point is
that the
respondent gave him no opportunity to rearrange his practice when she
left at the end of May 2015. Judging from
the fact that she was
able to start her own practice barely three weeks after leaving the
applicant indicates, in my view, just
how strong a bond she managed
to establish with the applicant’s referring doctors/patients,
thus allowing her to virtually
carry them ‘in her pocket’
when she left.
[23]
As for her right (and freedom) to carry out her profession, skills
and expertise as a sonographer and ultrasound practitioner
is
concerned, I do not consider that the restraint unduly restricts her
from doing so. She can do so anywhere else but not
within a
radius of 70 kilometers of the applicant’s practices. I
accordingly conclude on these aspects that the applicant
has clearly
demonstrated that he has a protectable interest which deserves
protection by the restraint and the respondent has flagrantly
breached same.
[24]
Turning to the issue of competition as raised by Ms Bosman in
sub-para (e) above, it was submitted that the restraint seeks
to
prevent the respondent from using her skills and expertise as a
sonographer and ultrasound practitioner. It was contended
that
to impose a geographic radius of 70 kilometers from the towns of
Vryheid, Newcastle and Dundee would be unreasonable especially
in
circumstances where the respondent has only worked in Vryheid and not
in Dundee and Newcastle. Additionally, it was pointed
out that
the respondent lives in Vryheid and raises her family there.
[25]
There are two considerations that apply here.
First,
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 over-rides the legal maxim of
pacta
servanda sunt
.
[13]
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.
[14]
[26]
In the present matter no dispute whatsoever exists regarding the
conclusion of the various agreements between the parties from
time to
time. Nor is there any suggestion on the part of the respondent
that she was misled in any way by the applicant regarding
the full
import and implication of the restraint clauses. If anything,
an examination of the restraint clauses as they appeared
in the
various annexures from the commencement of the employment contract
until the last one which terminated on 31 May 2015, indicates
that at
each stage the respondent was able to negotiate for more favourable
terms concerning the duration of the restraint and
the area of its
application. She cannot now be seen to complain that it
prevents her from competing unfairly in the same
field as the
applicant.
[27]
As for the second issue referred to above, I have already found that
the applicant has a proprietary interest which is deserving
of
protection by the restraint. In my view, the restraint
contained in clause 9 of Annexure “F”, does not seek
to
prevent the respondent from pursuing her profession as a sonographer
or radiographer entirely. It merely restricts her
from doing so
for a limited period and only insofar as the three towns in which the
applicant has his practices concentrated.
She is otherwise free
to pursue her economic activity anywhere else in the Republic.
It is noted that she has also established
a practice in Piet Retief.
[28]
A further point that should be made here is that the respondent
cannot claim that she walked into the respondent’s practice
with all the requisite skills and expertise of a sonographer and
radiographer. Much of this was acquired by her in the course
of
her employment with the applicant in the nine years that she worked
for him. At paragraph 34 of his replying affidavit,
the
applicant points out that he also sent the respondent on a
mammography course at his own expense. It seems to me that
her
employment with the applicant allowed the respondent to acquire far
more knowledge, skill and expertise about the profession
than she
otherwise had when she first started working for him.
[29]
On the issue of overbreadth of the restraint, both in terms of
duration as well as in terms of area, as contended for by Ms
Bosman
in sub-paras (f) and (g)
supra
, I believe that the following
considerations may be relevant. Problems associated with issues
of overbreadth in the field
of restraints of trade agreements are
on-going. These seem to arise especially at the enforcement
stage, as in the present
matter. Ms
Bosman
contended
that it would be unfair and against public policy to enforce the
restraint in its current form bearing in mind that the
respondent did
not perform any services at Dundee or Newcastle, and furthermore that
the designation of 70 kilometers was arbitrary
given that there are
no towns of any significance in any of these areas.
[30]
I find it strange that the respondent only now seeks to complain
about the extent of the restraint. It is significant
that she
raised no such complaints when the last extension of her contract was
concluded. One would have expected her to
have done it then.
In any event, I see no merit in her complaint. While she now
maintains that she did not perform
any services in Newcastle and
Dundee, in paragraph 16 of her answering affidavit, she avers that
she did work in the Dundee practice
until about 2007 on a weekly
basis. Her assertions to the contrary are, in my view,
disingenuous and rather opportunistic.
I accordingly conclude
that there is nothing unreasonable or arbitrary either about the
duration of the restraint or the area it
covers. This is what
she agreed to and this is what she should be held to.
CONCLUSION
[31]
Based on all of the above I am not persuaded that the respondent has
discharged the
onus
resting on her. She has failed to
establish that the restraint is unreasonable or that it offends
against public policy.
She has been in flagrant breach of the
restraint since the 15 June 2015 despite the efforts on the part of
the applicant (through
his attorneys) to convince her to desist from
such conduct.
[32]
As far as the duration of the restraint is concerned, I believe that
the applicant has been fair to suggest that it should
be for a period
of 12 months. Inasmuch as the applicant may complain that the
enforcement of the restraint will cause her
to suffer some hardship
at this stage, she must bear in mind that thus far she has had the
full financial benefit of a practice
at Vryheid in material breach of
a restraint undertaking which she all along agreed to.
[33]
I accordingly conclude that the applicant has established quite
conclusively that he has an interest that deserves protection
and
that such interest has been severely threatened by the conduct of the
respondent. I am also satisfied that the protection of
the
applicant’s interest does not in any way prevent the respondent
from being economically active and productive.
ORDER
[34]
In the result, I make the following order:
(a)
The respondent is interdicted from either directly or indirectly
being employed by or have an interest, either as employee,
principal,
agent, member, shareholder, director, partner, consultant, financier
or advisor in any concern or entity which carries
on a Radiology
Practice, or a business that renders Diagnostic Ultrasound, Foetal
Assessment, Doppler Studies and/or Musclo Skeletal
ultrasound
services, within a radius of 70 kilometers from Newcastle, Dundee
and/or Vryheid, KwaZulu-Natal, for a period of 12
months from date of
grant of this order;
(b)
The respondent is hereby ordered to forthwith cease her Sonographer
practice in which she renders Diagnostic Ultrasound, Foetal
Assessment, Doppler Studies, and Musclo Skeletal Ultrasound services
from 234 Utrecht Street, Vryheid, KwaZulu-Natal;
(c)
The respondent is ordered to pay the costs of this application.
Date
of Hearing : 13 June 2016
Date
of Judgment : 24 June 2016
Counsel
for Applicant : RM van Rooyen
Instructed by
: De Jager Baqwa Maritz Inc.
c/o Venns
Attorneys
Counsel
for Respondent : Ms P Bosman
Instructed by
: Corien Potgieter Inc.
c/o Viv Greene
Attorneys
[1]
[1984] ZASCA 116
;
1984 (4) SA 874
(A).
[2]
[1993] ZASCA 61
;
1993 (3) SA 742
(A).
[3]
2007 (2) SA 486
(SCA).
[4]
At 893 C-G and 898D.
[5]
At 767A-D.
[6]
Para [15].
[7]
The rights referred to by
Malan AJA herein were those in terms of the interim constitution.
These have not been affected
by the final constitution of 1996.
[8]
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
1984(3)
SA 623 (A).
[9]
Founding Affidavit, Annexures
“A”, “B”, “C” and “D”
and addendum “A”,
pages 23-53.
[10]
Founding Affidavit, Annexure
“F”, pages 51-53.
[11]
2004 (3) SA 381
(C) at
390C-D.
[12]
2008 (6) SA 229
(D).
[13]
Saner, Agreements in
Restraints of Trade in SA, 1-8, and the authorities referred to in
footnote 29.
[14]
Forwarding African
Transport Services CC t/a FATS v Manica Africa (Pty) Ltd
[2004] 4 All SA 527(D)
530i-531c.