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[2015] ZAGPPHC 283
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Hi Cell Shops (Pty) Ltd v Loubser and Others (38789/2014) [2015] ZAGPPHC 283 (5 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 38789/2014
Date:
5 May 2015
Not
reportable
Not
of interest to other judges
In
the matter between:
HI CELL V SHOPS
(PTY) LTD
(Registration
No.
1999/019031/07)
....................................................................................
APPLICANT
And
ANDRE
LOUBSER
.................................................................................................
1
ST
RESPONDENT
SUNE
BESTER
.......................................................................................................
2
ND
RESPONDENT
CHATZ
CONNECT ZAMBESI CC t/a CHATZ ZAMBESI
..............................
3
RD
RESPONDENT
KLATRADE
262 (PTY)
LTD
.................................................................................
4
TH
RESPONDENT
VODACOM
(PTY)
LTD
.........................................................................................
5
TH
RESPONDENT
JUDGMENT
PRETORIUS
J,
[1]
The
applicant applies for interdictory relief as set out in para 1.1 of
the Notice of Motion as follows:
“
1.
That the First, Second and Third Respondents be hereby interdicted
and ordered not to:
1.1
Entice
away, whether directly or indirectly, any of the persons, companies,
close corporations, or institutions, of whatsoever nature,
which
appear on or form part of the client base that was part of the res
vendita that the Applicant purchased from the Fourth Respondent
in
terms of the sale agreement dated the 1
st
of March 2013 annexed as Annexure “HVS2” to this
application”
[2]
The
applicant furthermore asks for costs of the application to be paid by
the respondents. The applicant abandoned prayer
1.2 of the
Notice of Motion.
[3]
The
first and third respondents raised a point
in
limine
.
According to counsel for the first and third respondents bona fide
disputes of fact exist on the papers which cannot be
determined on
the papers.
[4]
The
first and third respondents are of the view that the matter should be
referred for trial so that the facts can be properly ventilated
and
placed before the court. According to the first and third
respondents they were not aware that the second respondent
had at any
stage been in possession of the client bases of her previous
employer. One of the main issues is the contents
of the e-mails
the second respondent sent to four clients of the applicant, which
all read the same.
“
Ek
is nie meer by Vodacom Shop Brooklyn nie. Ek het ‘n beter
aanbod gekry by Andre Loubser wat nous y eie Vodacom winkel
oopgemaak
het.
Ek wil graag nog
steeds julle kontrakte hanteer as dit julle so sal pas. Ons
gaan di took meer gerieflik vir julle maak da
tons na julle toe sal
kom, julle hoef dan glad nie meer in te kom winkel toe nie.
As julle wil hê
ons moet nog steeds vir julle diens gee op julle Vodacom Rekening kan
julle asseblief net vir my formele brief
stuur wat so aanvra.
Vriendelike
Groete
Sune Bester
Chatz Connect
Zambesi
0728099007”
[5]
The
respondents all deny that this e-mail was sent to solicit and entice
clients away from the applicant.
[6]
Background:
The applicant
purchased the Vodacom shop, Brooklyn, from the fourth respondent in
terms of the sale agreement dated 1 March 2013.
The Vodacom
shop was sold as a going concern, which included the existing short
term and long term purchase and supply contracts
and clients.
The effective date of sale would be 1 April 2013. Clause 2.1.6
of the agreement provides:
“
All
VSP airtime bases attached to the business (including all commissions
due and payable from the effective date) (Dealer ID: D202:
VDSBR)”
[7]
VSP
airtime bases are the list of clients that entered into contracts
with the fifth respondent. The list of clients is the
main
income generating asset of the business bought by the applicant.
The applicant earns commission on each subscription,
on each call
made by its clients and on all data usage by each customer. The
list of clients comprises of 17 000 individuals
and 1 000
corporate customers.
[8]
The
applicant paid R40 million in respect of the purchase of the
business, relying on the number of customers on the client list.
[9]
The
first respondent was the manager of the applicant at the time of
purchase and was a 10% shareholder in the applicant.
After the
sale of the Vodacom shop, Brooklyn, the first respondent bought his
own cellular service provider shop and was no longer
involved in the
Vodacom shop. Brooklyn.
[10]
The
applicant earns commission on each subscription call made and data
used by each customer listed on the client base of the business,
which earns the applicant approximately R5.5 million per annum.
A further R2 million is generated when existing clients upgrade
their
contracts with the fifth respondent as service provider.
[11]
The
second respondent was an employee of the Vodacom shop in Brooklyn
prior to the applicant buying the shop. She was a sales
consultant when the applicant took over the business on 1 April
2013. She left the employment on 30 April 2013 due to not
being
satisfied with the new terms of her employment. It is common
cause that the second respondent had emailed the client
base of the
Vodashop, Brooklyn to her private email address. The client
base so e-mailed consisted of a list of corporate
customers of the
applicant. There were 3 200 customers on the list, according to
the applicant. According to the second
respondent this was done
by her to organise a base of all corporate clients for her work at
the applicant. According to the
second respondent she had
deleted this e-mail when she left the applicant’s employ.
Both the first and third respondents
denied having any knowledge of
these actions by the second respondent. The second respondent
commenced employment at the
third respondent on 1 May 2013, after her
resignation from the employ of the applicant.
[12]
The
applicant alleges that the first and second respondents enticed 154
clients away from the applicant during May and June 2013.
The
first and third respondents deny that any business was solicited from
the clients of the applicant. The third respondent
admitted
that services were provided to clients of the applicant, but it was
done under the dealer code for the applicant, which
would result in
the applicant still receiving all of the benefits from these services
provided by the third respondent. Neither
the first nor the
third respondents had ever had the client base of the applicant in
their possession, nor had they insight into
the client base.
The applicant denies that it had received any benefits from deals
done by the third respondent on the applicant’s
code.
There is thus a factual dispute in this regard.
[13]
The
affidavit by Mr Nel supporting the applicant’s application is
based on hearsay. Furthermore the first and third
respondents
attached an affidavit by Mr Froneman denying the contents of Mr Nel’s
affidavit, causing a further factual, material
dispute.
[14]
The
first and third respondents denied having solicited business from the
154 clients, who, according to the applicant, had been
solicited by
the first, second and third respondents, which in itself is a genuine
factual dispute.
[15]
In
any event, the court cannot draw inferences from this list, as there
is no proof that these are or were the applicant’s
clients.
No evidence was provided to support these allegations. The
first and third respondents admitted to rendering
certain services to
certain clients of the applicant, but it was allegedly done on the
applicant’s dealer code. The
first and third respondents
attached the list of clients to the opposing affidavit. The
first and third respondents explained
that these upgrades done by the
third respondent through its employees were done under the dealer
codes of the applicant and therefor
the applicant did not suffer any
loss due to the third respondent doing the upgrades.
[16]
The
applicant denied these allegations as untrue. This court cannot
make a decision to the veracity or not of the applicant’s
and
respondents’ statements in this regard. These are issues
which should be ventilated through oral evidence and
cross-examination.
[17]
The
court further has to establish whether the client list constitutes
confidential information.
[18]
In
the present instance the first respondent had become the manager of
the Vodacom shop, Brooklyn, for a considerable length of
time.
He had a 10% interest in the shop.
[19]
In
Neil
van Vuuren v Geneva Printotek (Pty) Ltd, Case no. A5046/2007
,
an unreported full bench appeal in the WLD on 17 November 2008 where
van Oosten J held:
“
The
first building block counsel argued is the fact that the appellant
established a competing business which was fully functional
within
three weeks of him leaving the employ of the respondent. To do
that from scratch on his own in a record time counsel
further
submitted, without using of the respondent’s confidential
information, must be regarded as inconceivable. I
am unable to
share counsel’s reservations: the appellant as I have
alluded to, firstly, was possessed of certain knowledge,
experience
and skills in the printer industry prior to joining the respondent
and secondly, was entitled in the absence of a restraint
of trade to
carry with him the knowledge, experience and skills he had acquired
whilst employed at the respondent.”
[20]
This
dicta
applies in the present instance where the facts of the present matter
regarding the establishment of the third respondent is similar.
The first and third respondents denied that they were in possession
of the client base or that they had ever used it to solicit
business
from the applicant’s clients. Similarly the second
respondent denied using the client base or giving the client
base to
the first and third respondents. The court has to accept this
as these are motion proceedings. The applicant
should have
foreseen that there would be disputes in this regard before
proceeding by launching an application. There is no evidence
that the
client base constitutes confidential information.
[21]
In limine
:
Dispute of fact:
Counsel for the
applicant urged the court to deal with the application on the papers
as they stand and not to refer the application
to trial and to apply
the so-called Plascon-Evans rule.
[22]
The
general rule was stated in
Stellenbosh
Farmers Winery Ltd v Stellenbosh Winery (Pty) Ltd 1957(4) SA 234 (C)
at 235 E-G, by van Wyk J (De Villiers JP and Rosenow AJ concurring):
“…
where
there is a dispute as to the facts a final interdict should
only
be granted in notice of motion proceedings if the facts as stated by
the respondent together with the admitted facts in the
applicant’s
affidavits justify such an order
…
Where
it is clear that facts, though not formally admitted, cannot be
denied, they must be regarded as admitted.”
(Court’s
emphasis)
[23]
In
Moosa
Bros & Sons (Pty) Ltd v Rajah 1975(4) SA 87 (D&CLD)
Kumleben J found at p93 F-H:
“
Without
attempting to lay down any precise rule, which may have the effect of
limiting the wide discretion implicit in this Rule,
in my view oral
evidence in one or other form envisaged by
the
Rule should be allowed if here are reasonable grounds for doubting
the correctness of the allegations concerned
.
In reaching a decision in this regard, facts peculiarly within the
knowledge of an applicant, which for that reason cannot
be directly
contradicted or refuted by the opposite party, are to be carefully
scrutinised.”
(Court’s
emphasis)
[24]
I
have considered all the arguments, facts and authorities carefully.
I am of the opinion that there is a genuine,
bona
fide
dispute of facts which cannot be decided on the papers without oral
evidence. The issues are of such a nature that the matter
should be referred to trial and not to oral evidence only.
[25]
I
cannot agree with the applicant that interim relief should be granted
pending the outcome of the trial. The applicant failed
to
annexe a client base to the papers. This court is not prepared
to give an interim interdict in the circumstances where
the
respondents do not know and cannot determine who the applicant’s
clients are.
[26]
I
make the following order:
1.
The
application is referred to trial;
2.
The
notice of motion shall stand as a simple summons;
3.
The
notice of intention to oppose shall stand as a notice of intention to
defend;
4.
The
applicant shall deliver a declaration within 20 (twenty) days of this
order;
5.
Thereafter,
the rules relating to actions shall apply;
6.
The
costs of the application will be costs in the trial.
________________
Judge
C Pretorius
Case
number: 38789/2014
Application
heard on : 14 April 2015
For the Applicant :
Adv. AJH Bosman SC / Adv Z Schoeman
Instructed
by : Ronel Coetzee Attorneys
For the Respondent :
Adv. PJ Greyling
Instructed
by: Botha & Human Inc.
Date of Judgment :
2015