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[2014] ZAGPPHC 165
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Maxi Group Scheme (Pty) Ltd v Snyman (6963/13) [2014] ZAGPPHC 165 (4 April 2014)
REPUBLIC
OF SOUTH AFRICA
GAUTENG
HIGH COURT, PRETORIA
Case
No.: 6963/13
DATE:
4 APRIL 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
MAXI
GROUP SCHEME (PTY)
LTD
.......................................................................
Applicant
and
JURIE
SNYMAN
.......................................................................................................
Respondent
JUDGMENT
MNGQIBISA-THUSI,
J
1.
The applicant is seeking the following
relief:
1.1
an order interdicting the respondent to
comply with a restraint agreement concluded between the parties on 1
November 2012 whilst
the respondent was about to leave its employ;
1.2
an order interdicting the respondent
from disclosing confidential information to third parties and/or to
use such information for
his benefit; and
1.3
a cost order on an attorney and client
scale.
2.
The agreement in provides; inter alia,
that:
2.1
the respondent is 'prohibited, for a
period of 16 months after termination of employment to deal with any
of the employer's existing
clients.(clause 5.1.1);
2.2
the respondent is prohibited for a
period of 16 months to have any contact with any existing clients of
the applicant and to actively
solicit business from existing
clients whether directly or indirectly or through any entity
anywhere.(clause 5.1.2);
the
respondent will, in terms of the agreement, surrender to the
applicant on demand and in any event on the termination of
his
employment with the applicant all documentation, written
instruction, notes, computer programmes, sale material, disks,
memoranda , or recordings, education materials relating to the
business of his erstwhile employer in the broad and narrow sense,
relating to the trade secrets which are made by him or which comes
into his possession during the cause of his employment with
the
applicant all of which shall be deemed to be in possession of the
company, (clause 5.2.2).
3.
The applicant also sought condonation
for the late filing of its replying affidavit. The replying affidavit
was 39 days late. The
applicant's reason for the late filing of the
replying affidavit was that in the preparation of the affidavit, it
was necessary
for it to consult with various entities. The respondent
opposed the granting of condonation on the ground that the applicant
was
abusing the court process in that the replying affidavit it seeks
to have admitted consists of information which should have been
included in the founding affidavit and which information the
applicant knew of at the time of the founding affidavit. Further,
the
respondent opposes condonation being granted on the basis that it has
not been given an opportunity to reply to the new facts
introduced by
the applicant in the replying affidavit. Counsel for the applicant
conceded that there was a lot more in the replying
affidavit than
there was in the founding affidavit.
4.
I am satisfied that the applicant has
not shown sufficient cause why the facts introduced in the replying
affidavit were not included
in the founding affidavit. The inclusion
of the new facts in the replying affidavit prejudices the respondent
who has not had the
opportunity of responding thereto. The
application for condonation ought, therefore, to be dismissed.
5.
At the hearing of this application, the
agreement was to expire in three days from the hearing of the
application. There was agreement
between the parties that a
determination of this application would be academic.
6.
The only issue to be determined was
costs. It was submitted on behalf of the applicant that costs should
be granted in favour of
the applicant as it was necessary for the
applicant to bring the application in order to protect its rights.
7.
In general the successful party is
entitled to its costs.
8.
For the applicant to have succeeded in
its application for a final interdict, it would have had to convince
the court that: (i)
it has a clear right; (ii) that an injury was
actually committed or was reasonably apprehended; and (iii) that it
has no other
satisfactory remedy available to it.
9.
As appears from the founding affidavit,
the basis of the applicant relief is the agreement. It was submitted
on behalf of the applicant
that it has a clear right on the basis of
the agreement. It was contended that the respondent has breached the
agreement by making
available to third parties its confidential
information which the respondent allegedly obtained whilst still in
its employ. From
the papers it appears that the applicant relies on
an alleged breached committed by the respondent in June 2012. As a
result of
the breach, the respondent was suspended and disciplinary
procedures were conducted which culminated in the conclusion of the
agreement
on 1 June 2012. Furthermore, the applicant contended that
the respondent has refused to return to it all the documents the
respondent
had sent to himself before leaving the employ of the
applicant. This contention was not however, substantiated.
10.
It is the respondent's contention that
the applicant has not proven any breach of the agreement after it was
signed.
11.
I am of the view that based on the
applicant's affidavit, no cause has been shown that since the signing
of the agreement, that
it has suffered any injury or that there is a
reasonable apprehension that it will suffer any harm as it has not
shown that the
respondent has breached the agreement. The breach on
which the applicant relies was committed whilst the respondent was
still in
the employ of the applicant, and before the agreement was
signed. Consequently I am satisfied that the applicant would not have
succeeded in the relief it sought.
12.
I am of the view that the respondent is
entitled to be awarded the costs of opposing the application.
However, I am not convinced
that the application was frivolous
necessitating an award of damages on a punitive scale.
13.
Accordingly the following order is made:
1.
The condonation application is dismissed
with costs.
2.
The applicant to pay the respondent's
cost of the application.
NP
MNGQIBISA-THUSI
Judge
of the High Court
Appearances:
For
Applicant: Adv CPJ Strydom
Instructed
by: GP Prinsloo Attorneys
For
Respondent: Adv R Venter
Instructed
by: Nel & De Wet Attorneys