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[2015] ZAKZDHC 64
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Super Group Trading (Pty) Ltd v Naidoo (12726/2014) [2015] ZAKZDHC 64 (25 August 2015)
IN
THE HIGH COURT OF SOUTH AFRICA,
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 12726/2014
In
the matter between:
SUPER
GROUP TRADING (PTY)
LTD
APPLICANT
and
DAYALAN
NAIDOO
FIRST RESPONDENT
JOOSABS WHOLESALERS AND
DISTRIBUTORS
SECOND RESPONDENT
ORDER
(1)
The
applicant’s application is dismissed with costs.
(2)
Such
costs to include all costs previously reserved and the costs of two
counsel where employed.
JUDGMENT
SISHI
J
[1]
On 6 November 2014, the applicant brought an urgent application
against the first and second respondents for a temporary interdict
pending the adjudication of the applicant’s application for a
final interdict, founded on a restraint of trade and confidentially
agreement allegedly entered into between the applicant and the first
respondent.
[2]
On that day, the application came before Olsen J, who granted a
consent order, adjourning the matter sine die and directed the
respondents to deliver their respective answering affidavits on or
before 24 November 2014, and reserved the costs of the day.
[3]
On 25 February 2015, the matter was granted preference on the special
opposed roll by the Acting Judge President.
[4]
The matter thereafter came before me in the Motion Court on 23 April
2015 as an opposed application.
[5]
Mr D Phillips SC, appeared on behalf of the applicant, Mr G Reddy
appeared for the first respondent and Mr I L Topping SC appeared
for
the second respondent.
[6]
As all the necessary affidavits had been filed. It was common
cause between the parties that the issue of an interim relief
was no
longer apposite in the circumstances of this case.
[7]
The relevant terms of the prayers sought in the Notice of Motion are
set out as follows:
‘
1.1
For a period of one year commencing on 30 September 2014:
1.1.1
The
first respondent be and is hereby interdicted and restrained
forthwith from being employed by the second respondent.
1.1.2 The first respondent
be and is hereby interdicted and restrained forthwith from directly
or indirectly becoming
employed by, or having any interest in, or
being engaged with, any company, firm or business which competes with
applicant in KwaZulu-Natal.
1.1.2
The
second respondent be and is hereby interdicted and restrained
forthwith from:
1.1.3.1
retaining the first respondent in its employ;
1.1.3.2
permitting the first respondent to represent it in any manner
whatsoever, whether directly or indirectly, in soliciting business
or
servicing customers within the KwaZulu- Natal area.”
Background
[8]
The following facts are either common cause, alternatively, cannot be
disputed by the parties on any reasonable grounds.
[8.1]
The applicant commenced trading approximately seven years ago
(approximately in 2007) as a distributor
and supplier of various
goods to convenient stores, bottle stores, and petrol station
forecourt stores.
[8.2]
The goods distributed and supplied by the applicant included products
known as “dry goods”
such as confectionery, snacks, chips
and sweets as well as cold drinks and alcoholic beverages.
[8.3]
The second respondent appeared to be conducting a similar business
and in direct competition with
the applicant.
[8.4]
The first respondent commenced employment with the applicant on 20
July 2009 as a salesman.
His employment with the applicant was
terminated by his resignation which became effective on 30 September
2014.
[8.5]
The applicant contends that the order is sought against the first
respondent, the applicant’s
erstwhile employee, and the second
respondent, a direct competitor of the applicant with whom the first
respondent is employed,
alternatively, for whom the first respondent
acts as an agent.
[9]
The applicant alleges that the first respondent’s conduct has
placed him in breach of the restraint of the confidentiality
undertaking. Furthermore, the second respondent with full
knowledge of the restraint and confidential undertaking has
facilitated
such breach.
[10]
This is disputed by the first and the second respondent.
The
issues to be decided
[11]
The following are the issues to be decided:
1.
Whether
there was any contract of employment between the applicant and the
first respondent, which included as one of its terms
the restraint of
trade.
2.
Whether
the first respondent was employed by the second respondent.
3.
Whether
the applicant has any proprietary interests warranting protection.
4.
Whether
the applicant repudiated or breached the employment contract with the
first respondent.
5.
Whether
the first respondent was in breach of the restraint and the
confidentiality undertaking.
[12]
It is appropriate at this stage to deal with each of the sub-headings
referred to above to determine whether the applicant
is entitled to
any relief.
Whether
there was any contract of employment between the parties which
included as one of its terms the restraint of trade.
[13]
The written contract of employment between the applicant and the
first respondent is annexed to the founding affidavit and
marked “B”.
[14]
Clause 17 of the employment contract dealing with the restraint
provides as follows:
‘
RESTRAINT
OF TRADE / CONFIDENTIALITY UNDERTAKING
In
addition to the above paragraphs dealing with prohibition against
disclosure of secrets and conflict of interest, you agree that
in the
nature of your employment you will have access to confidential
information of the Company and will develop relations with
the
Group’s stakeholders. You further agree that the
restraints set out in this clause are reasonable and necessary
in
duration, scope and areas to protect the Company’s proprietary
information and business interests.’
[15]
The confidentiality undertaking agreement entered into between the
parties is annexed to the founding affidavit and marked
“C”.
[16]
Clause 2.1 of the confidentiality undertaking provides as follows:
‘
I
will not during the course of the employment/assignment or at any
time thereafter, either use or directly or indirectly divulge
or
disclose to others (except as required by the terms and nature of my
employment hereunder) any of the group’s trade secrets
or
confidential information’.
[17]
Clause 1.1 of the confidentiality undertaking defines “Trade
secrets” as follows:
‘
1.1.1
know-how, processes and techniques;
1.1.2
knowledge of and influence over the group’s customers and
business associates;
1.1.3
the
contractual arrangements between the group and its respective
business associates;
1.1.4
the
financial details of the group’s relationship with its business
associates;
1.1.5
the
financial details (including credit and discount terms) relating to
the group’s customers;
1.1.6
the
names of prospective customers and their requirements;
1.1.7
details
of the group’s financial structure and operating results;
1.1.8
details
of the remuneration paid by the group to its various employees and
their duties;
1.1.9
other matters which relate to the business of the group and in
respect of which information is not readily
available in the ordinary
course of business, to a competitor of the group.’
[18]
Although the first respondent initially challenged the authenticity
of annexure “B” to the applicant’s founding
affidavit, the employment contract, after inspection of the document
by the first respondent and his legal team, the question of
its
authenticity was not pursued further in the papers by the first
respondent.
[19]
Indeed in the heads of argument, it has been submitted on behalf of
the first respondent that for the purposes of this application,
the
first respondent accepts that annexure “B” and the
addendum thereto annexure “C” of the applicant’s
founding affidavit is the written contract of employment.
[20]
Furthermore, it has been accepted that, but for the
repudiation/breach of the employment contract on the part of the
applicant,
entitling the first respondent to cancel same, the first
respondent would have been in breach of the restraint.
[21]
In the light of these concessions on behalf of the first respondent,
and all other relevant information on the paper, it can
safely be
concluded that there was such a contract which included as one of its
terms the restraint of trade. I, accordingly,
find that there
was such a contract
Whether
the first respondent was employed by the second respondent
[25]
In the answering affidavit the first respondent describes himself as
a self-employed male. He alleges that when he did
not find
suitable employment with adequate remuneration, he then decided to go
into business on his own account, by approaching
entities that
conduct business identical to that of the applicant and worked as a
freelance sales person for such businesses.
[26]
In explaining the above, he alleges that he did not intend to be
employed by any of the applicant’s competitors, but
merely that
he would purchase good/stock and supply such goods to convenient
stores, petrol stations fore-court stores, bottle
stores and tarvens,
informal and spazza outlets and the like and enter into certain
repayment terms with such suppliers.
[27]
It has been submitted, correctly in my view, on behalf of the second
applicant that the applicant puts up no direct evidence
in support of
such contention and relies on reports made by third parties that the
first respondent was endeavouring to solicit
business on behalf of
the second respondent from its clients.
[28]
The second respondent submitted that it sold goods to the first
respondent subsequent to 1 October 2014 but denies that it
employed
the first respondent, in any capacity whatsoever, or that the first
respondent ever represented it as its agent.
[29]
Furthermore, the second respondent has substantiated its contention
that it did not employ the first respondent by pointing
out in the
answering affidavit that it has traded in the “area of
operation”, referred to by the applicant since 2003
and already
has a representative working in that area. The applicant has on
the papers not responded to these allegations.
[30]
The first respondent on the other hand has also vehemently denied
that he was ever employed by the second respondent or at
any stage
acted as its agent.
[31]
The first respondent has also admitted that he approached stores and
outlets which may be regarded as applicant’s customers
“albeit
not exclusively” the applicant’s customers and attempted
to sell “in certain instances” and
in fact sold “in
other instances” goods that he had sourced from the second
respondent. He also admitted that
he, in fact, handed credit
application forms of the second respondent to those customers to feel
in, as he had explained that,
this was a temporary measure and done
to cater for the particular exigency he found himself in.
[32]
Counsel for the second respondent submitted correctly in my view that
no case has been made out against the second respondent
based on
unlawful competition. The applicant simply relies on the
contention that the first respondent is employed by the
second
respondent and that such employment contravenes the terms of the
restraint of trade agreement it concluded with the first
respondent.
[33]
The conduct referred to above does not make the first respondent an
employee of the second respondent or its agent.
[34]
The submission in the applicant’s summary of argument, that it
is common cause that the first respondent has, at some
stage, been
operating as an indirect employee or agent of the second respondent
cannot be correct.
[35]
Considering all the above, and what is contained in the affidavits,
there is insufficient evidence to justify the conclusion
the first
respondent was either an employee or an agent of the second
respondent.
[36]
I accordingly find that the first respondent was not employed by the
second respondent.
[37]
Counsel for the second respondent has submitted correctly in my view
that it would be proper for the application in so far
as it relates
to the second respondent to be dismissed with costs including the
costs of senior counsel where employed.
[38]
In the light of the above finding, this should be the end of the
matter as the applicant’s case appears to be premised
on the
assumption that there was an employer-employee relationship between
the first respondent and the second respondent or agency
relationship
between the two parties.
[39]
It has never been the applicant’s case that the respondents are
in breach of the restraint and the confidentiality agreement
on the
basis that the first respondent has opened up his business in direct
competition with the applicant.
[40]
In the event that I am wrong in the finding referred to above, I will
proceed to deal with the other issues involved in this
matter.
Whether
the applicant had any propriety interest warranting protection.
[41]
It is trite that in considering the reasonableness of the restraint
agreement and whether it had been breached, the following
four
questions have to be addressed
[1]
:
(a)
Does one party have an interest that deserves protection after
termination of the agreement?
(b)
If so, is that interest threatened by the other party?
(c)
In that case, does such interest weigh qualitatively and
quantitatively against the
interest of the other party not to be
economically inactive and unproductive? and;
(d)
Is there an aspect of public policy, having nothing to do with
relationship between the
parties that require that the restraint be
maintained or rejected?
The
above passage was cited with approval in
Den
Braven v Pillay
and others
[2]
.
[42]
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 250E
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.
[3]
.
[43]
In considering the facts of a particular case it must always be borne
in mind that a protectable interest in the form of customer
connections 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.
[4]
[44]
Irrespective of the incidence of the onus, the court can only grant
the applicant the relief it seeks, if the facts stated
by the
respondents together with the admitted facts in the applicants
affidavits and the evidence on affidavits justify the order
[5]
.
[45]
The issue in this is whether the applicant has a protectable interest
that is threatened by the first respondent by his conduct.
[46]
In contending that the applicant had a protectable interest, it has
alleged that its proprietary interest arises from the customer
connections which the first respondent, was able to establish and
enhance whilst in its employ. In this regard the first
respondent has submitted that no evidence is produced to support this
assertion.
[47]
The type of goods distributed and supplied by the applicant to its
customers and the type of business it conducts have been
described
above.
[48]
The applicant’s business model is such that it operates by
either simply supplying the goods or, in some instances, in
terms of
a contract whereby it is obliged to do so, not only supplying the
goods, but also maintaining the point of purchase displays
in the
various stores, and setting up such points of purchase displays in
respect of certain goods.
[49]
In such instances, where the applicant is obliged to maintain the
point of purchase set up in the various stores, the obligation
to
maintain the store purchase point continues even if a particular
store owner purchases the product, for which the point of purchase
has been set up, from a source other than the applicant.
[50]
The applicant operates all through out South Africa and supply in
access of 10 000 stores of which 2 300 are in KwaZulu-Natal.
[51]
Its business has grown from a turnover of approximately R1.1 billion
in 2012 to a turnover for the last financial year of approximately
R1.6 billion. KwaZulu-Natal contributes approximately 16 percent of
the turnover.
[52]
By the very nature of its business, namely, distributing to a vast
and wide network of small retail outlets, the applicant
is wholly
reliant on its team of sales representatives to preserve, maintain
and expand its customer base.
[53]
Each sales representative is allocated specific region or area within
South Africa.
[54]
According to the applicant, on a day to day basis, a sales
representative visits various stores to check up on stock
requirements
and is also the interface with the various customers in
respect of any special requirements. The sales representative
is
also the source from which a customer will receive information
about special offers or deals which may be available. Indeed, any
matter which needs to be addressed by the applicant for such customer
is dealt with by the sales representative, including maintaining
the
point of purchase standard as required by the applicant’s
suppliers.
[55]
These sales representatives are the only regular face of the
applicant which each individual customer encounters.
[56]
It is common cause that the applicant operates in a highly
competitive environment as there are numerous sales outlets including
the second respondent from where individual customers can source
stock.
[57]
As in the
SG
Convenience
case
[6]
,
the second respondent is also involved in the retail and distribution
business providing products directly to customers in various
sectors
of the market in direct competition with the applicant. The
market within which the applicant and the second respondent
operate
is an extremely competitive environment, which competitiveness is
exacerbated by the fact that customers do not enter into
any direct
purchasing arrangements with the retail distributors such as the
applicant and the second respondent. Accordingly,
there is no
guarantee of a continued support by a customer nor is there an
obligation on such customer to purchase from only one
provider,
albeit the applicant and the second respondent.
[58]
The customers in the area and industry were not exclusive to the
applicant. Every single customer in the industry bought from
anyone.
The applicant has not provided any evidence that it had exclusive
customers in the industry.
[59]
Counsel for the first respondent referred to the
Den
Braven
case
(supra)
and
submitted that the facts of the instant case are distinguishable from
the
Den
Braven
case,
as in
Den
Braven
case,
the first respondent was given an exclusive list of the customers of
the employer. In the instant case, the first respondent
was not
given any of the employer’s customers.
[60]
It is not in dispute that the first respondent was an excellent
salesman. According to the papers, he himself was poached by
the
applicant from Jubiter due to his excellent salesmanship qualities.
The first respondent did not walk away with any of
the applicant’s
customers. Some of these customers are customers he had brought
with him from Jubiter.
[61]
The applicant submits that the first respondent does not in any way
at all adduce evidence to the fact that his association
with such
customers was not enhanced whilst he was employed by the applicant.
In failing to do so, he failed to discharge
the onus upon him to
rebut, the applicant’s assertion that the proprietary interest
which arises from such customer connections,
rests on the applicant.
[62]
The first respondent on the other hand, has submitted that what is
inescapable and significantly the applicant
has been unable to
gainsay, is that just about every one of the applicant’s
present customers (if not every single one of
them) are also engaged
as customers of most, if not all of, the competition. In my
view, the first respondent’s submission
in this regard is
correct.
[63]
It has further been submitted on behalf of the first respondent that
the nature of the interaction between the first respondent
(as a
salesman) and customers is such that, while admittedly familiarities
developed, relationships encompassing fidelity and loyalty
to the
applicant (which is what the applicant contends for) is simply
non-existent: which the applicant is unable to dismiss.
[64]
On the enhancement of relationship between the first respondent and
the applicant’s customers, it has been submitted
that the first
respondent has adduced such evidence and has shown precisely that the
applicant has not produced any evidence whatsoever
to suggest:
(a)
Relationships that allegedly are fostered between the salesman and
the customers: and
(b)
Such relationships were enhanced by the fact that the applicant being
a particular salesperson’s
employer.
[65]
It has been disputed, correctly in my view, that the first respondent
has failed to rebut the applicant’s assertion and
contentions
in this regard.
[66]
In the light of the above, and in particular the fact that the
customers in the industry were not exclusively those of the
applicant
therefore, the applicant cannot claim a protectable proprietary
interest.
Alleged
repudiation / breach of the employment contract by the applicant
[67]
The first respondent has contended that the applicant unilaterally
and unlawfully reduced his remuneration. The conduct of
the applicant
in this regard amounted to a repudiation or breach of the contract of
employment,
[68]
In terms of clause 7 of annexure “B” to the applicant’s
founding affidavit, the employment contract between
the parties, it
was agreed that the first respondent’s remuneration was 3.5% of
gross sales.
[69]
The applicant has further admitted that this remuneration structure
was unilaterally changed to 20% of net gross profit in
accordance
with the entitlement that the applicant contends were in terms of
clause 7 of annexure “B”. Clause
7 of annexure “B”
makes no such provision of the above.
[70]
Clause 7 of the agreement further provides that the remuneration
structure may be amended at any time according to the employer’s
or employee’s requirements.
[71]
Clause 1.2 of the same annexure “B” provides:
“
It
is recorded that these terms and conditions may be amended from time
to time in consultation with an employee, if deemed necessary,
in the
light of the company’s operational requirements”.
[72]
There is no allegation anywhere in the entirety of the applicant’s
papers that deduction in remuneration was consensual.
Therefore, it can be safely concluded that the reduction in the
remuneration was not consensual and contrary to the provisions
of the
agreement.
[73]
There were multiple complaints by the first respondent about the
reductions from his remuneration. The applicant does
not state
that the first respondent did not ever complain against the said
reduction in remuneration. Instead, the applicant
deals with
this aspect by a series of bare denials concerning specific occasions
of complaint and adding that it was entitled to
effect such changes.
[74]
The explanation for the reduction only comes in the replying
affidavit.
[75]
No consultation in terms of clause 1.2 of annexure “B”,
to the agreement took place between the applicant and the
first
respondent prior to the reductions from his remuneration.
[76]
The first respondent does not suggest that he was dismissed,
constructively or otherwise. He has indicated a willingness
to
have continued in his employment with the applicant on terms
contained in annexure “B”.
[77]
The applicant has contended that the allegation that it repudiated
the employment contract is an afterthought. It is
not supported
by the evidence adduced by the first respondent and would appear to
be a manufactured defence. There is no
evidence of any
constructive dismissal, or any steps taken by the first respondent
arising from such dismissal. The applicant
contends that the
so-called underpayment of the first respondent came about as a result
of illegitimate and unlawful variation
of his employment contract in
terms of which the terms of that employment contract, arising from
the abusive conduct of the first
respondent and his colleagues in
selling products below margin in order to boost turnover.
[78]
According to the first respondent, his various complaints and
willingness to remain in the applicant’s employ in terms
of the
terms set out in annexure “B” are actions consistent with
calling upon the applicant to comply with the terms
of the employment
contract.
[79]
The applicant’s refusal to do so is a repudiation/breach of the
employment contract. The first respondent left the applicant’s
employment because his salary was reduced unlawfully and
unilaterally. The first respondent was always entitled to cancel the
agreement in those circumstances as he did.
[80]
It is suggested that the first respondent did not cancel the
agreement prior to or at the time of his resignation and that
his
attempt to do so
ex
post facto
(his resignation) is impossible in law. The first respondent
has submitted, correctly in my view, that the second of those
contentions is, with respect, incorrect in law. There is no
reason and indeed no bar to the first respondent cancelling the
agreement post his resignation.
[81]
Resignation is merely an incidence of the employment
relationships/contract. Termination of employment (whether by
resignation
or any other manner) does not necessarily depend upon a
prior or contemporaneous cancellation of any employment contract. The
said
contract may very well, as so often it does, survive the parting
of ways of the employer and the employee.
[82]
That survival “of the employment contract” does not make
it immune from cancellation where there has been a breach/repudiation
“such as in the present case” or for any other valid
reason.
[83]
In
Drewtons
(Pty) Ltd vs Calie
[7]
Watermeyer JP expressed the view that an employer cannot
enforce a restraint clause if he himself had repudiated his
obligations
under the contract of service.
[84]
In
Cape
Can (Pty) Ltd t/a Canon Western Cape v Van Nimwegen and another
[8]
Van der Heerven J thought that this would not necessarily be the case
in every situation.
[85]
In
Reevs
v Marfield Insurance Brokers CC
[9]
,
Scott JA inter alia concluded that:
‘…
in
appropriate circumstances, however, such conduct, e.g. the
repudiation of the contract by the employer and the nature thereof,
may well serve to tip the scales in favour of the conclusion that it
would be contrary to public policy to enforce the restraint
clause’.
[86]
There is no doubt in my mind that the employer has breached or
repudiated the contract of employment between the parties.
Whether
the first respondent was in breach of the restraint and the
confidentially undertaking.
[87]
The applicant alleges that the first respondent since the termination
of his employment with it, has been acting in breach
of the restraint
and confidentiality undertaking by being employed by the second
respondent.
[88]
In so far as the breach of the confidentiality undertaking is
concerned, the first respondent has submitted, correctly in my
view,
that the suggestion in the applicant’s heads of argument that
the first respondent is in breach of the confidentiality
undertaking
“as spelt out in annexure “C” is unsustainable as,
apart from anything else, not a single averment
thereof is made in
the applicant’s founding affidavit or replying papers.
Furthermore, the first respondent without
demur has stated that he
has not imparted any such information to third parties.
[89]
It is trite that a case has to be made in the founding affidavit and
not in the replying affidavit nor can it be made in the
heads of
argument.
[90]
The applicant has failed to make a case justifying the conclusion
that the first respondent breached the restraint and the
confidentiality undertaking.
[91]
In the light of the above findings, it is not necessary to deal with
the reasonableness of the restraint agreement.
[92]
Considering all the above, I am satisfied that the applicant has
failed to make out a case for the granting of the prayers
sought in
the notice of motion. Accordingly, the application is dismissed.
Costs
[93]
Counsel for the first and second respondent submitted that the
applicant’s application should be dismissed with costs,
and
that in the case of the second respondent such costs to include the
costs of two counsel.
[94]
The applicant on the other hand submitted that the first and the
second respondents should be ordered to pay the costs of the
application.
[95]
In my view, there is no reason why the costs should not follow the
result in this matter.
Order
[96]
In the circumstances, I make the following order:
(1)
The
applicant’s application is dismissed with costs.
(2)
Such
costs to include all costs previously reserved and
the
costs of two counsel where employed.
____________
SISHI
J
APPEARANCES
Date
of Hearing
: 23
April 2015
Date
of Judgment
:
25
August 2015
Applicant’s
Counsel
:
D
PHILLIPS SC
Instructed
by
:
LEGATOR, McKENNA INCORPORATED
21
st
Floor,
Eagle Building
357 Dr Pixley
Kaseme (West) Street
DURBAN
Ref: Mr
Pilkington/fk/H.873
Tel:
(031) 305 1571
Email:
farhanak@legatormckenna.co.za
1
st
Respondent’s Counsel
:
G
REDDY
Instructed
by
:
ZUBEDA
K. SEEDAT & COMPANY
19/21 Hunt Road
GLENWOOD, DURBAN
Tel:
(031) 202-0031/2/3
Email:
zseedat@mwebbiz.co.za
2
nd
Respondent’s Counsel:
I.L. TOPPING SC
Instructed
by
: D K SINGH, VAHED AND PARTNERS
88 Harvey Road
MORNINGSIDE, DURBAN
Tel:
(031) 303 9271
Ref:
Mr Archary/J0059/0021
[1]
Basson v Chilwan & others
[1993] ZASCA 61
;
1993
(3) SA 742
(A) at 767 G-H; and
Reddy v
Seamens
Telecommunications
(Pty) Ltd
2007 (2) SA 486
(SCA), para
16.
[2]
2008 (6) SA 229
(D) at para 4.
[3]
Rawlins and Another v Caravantruck (Pty) Ltd
[1992] ZASCA 204
;
1993 (1) SA 537
(A) at 541D-H. See also
Paragon
Business Forms (Pty) Ltd v Du Preez
1994 (1) SA p434(SE)
at 444 A-F; and
Nampesca
(SA) Products (Pty) Ltd
and
Another v Zaderer and Others
1999 (1)
SA 886
(C) at 899B-900 C.
[4]
Walter McNaughtan (Pty) Ltd v Schwartz and
Others
2004 (3) 381 (C) at 390 C-D.
[5]
Plascon Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd 1984(3) SA 623 (AD) at 634H – 635B.
[6]
SG Convenience (A Division of Super Group
Trading (Pty) Ltd) v De Sousa and another
[2013]
ZAG PPHR 165
[7]
1981 (4) SA 305
C at 308 D-E
[8]
1988 (2) SA 454
C at 460 B-C
[9]
[1996] ZASCA 39
;
1996 (3) SA 766(A)
at 776 H-I.