About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 370
|
|
Digiterra (Pty) Ltd v Mentz and Another (38845/2014) [2014] ZAGPPHC 370 (18 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER:
38845/2014
DATE: 18 JUNE
2014
In the matter
between:
DIGITERRA (PTY)
LTD
............................................................................................................
APPLICANT
and
JACOBA WILHELMINA
MENTZ
.................................................................................
1
st
RESPONDENT
ZERTIVE
CONSULTING
SERVICES
.........................................................................
2
nd
RESPONDENT
CORAM:
DE VRIES AJ
JUDGMENT
1. This matter comes
before Court as one of urgency brought in terms of the provisions of
Rule 6(12).
2. In terms of the
amended notice of motion the Applicant seeks the following relief
against the two Respondents:
"That the
employment agreement [attached as annexure “A" to the
founding affidavit and hereafter referred to as
the “employment
agreement") be rectified as follows:
2.1 The reference to
the clauses 68 - 73, in clause 63 of the employment agreement be
rectified to read 61 - 66.2.
2.2 The reference to
clause 71 of the employment agreement in clause 65, be rectified to
read 64; and
2.3 The reference to
clauses 68 - 73 in clause 66 of the employment agreement be rectified
to read 61 - 66."
3. The 1
si
Respondent is interdicted in her personal capacity and as director of
the 2
nd
Respondent, for the period of 1 year, from:
3.1 Contracting the
Applicant’s clients (as at the time of the 1
st
Respondent's employment with the Applicant) or interfering with the
Applicant’s relationships with its clients, in breach
of the
terms of the employment agreement (concluded between them and as
attached to the founding affidavit [annexure "B"]
with the
specific reference and inclusion of clauses 61 and 62 thereof),
specifically including but not limited to the following
clients:
3.1.1 Multichoice
Operations (Pty) Ltd;
3.1.2 Multichoice
Africa Ltd;
3.1.3 Multichioce
Support Services (Pty) Ltd; and
3.1.4 DSTV Digital
Media Mobile (Pty) Ltd.
3.2 Breaching the
conditions of the confidentiality agreement (attached as annexure
M
C”
to the founding affidavit) which was concluded between the parties,
and which shall include but not be limited to;
3.2.1 The 1
st
respondent be prohibited from communicating or discussing with any
third party person, associated company or legal entity (including
those listed supra) any information relating to the Applicant's
business affairs, pricing list, client list or other confidential
information, and in whatever form of by whatever means without the
prior written consent of the Applicant's chairman; and
3.2.2 Use of such
information for the I
s1
Respondent’s private or for
the 2
nd
Respondent’s benefit in whatsoever manner.
3.3 Illegally and
unlawfully using any confidential information obtained during the 1
st
Respondent's employment with the Applicant, to advance the
Respondent’s business interests at the Applicant’s
expense.
4. Leave is granted
to the Applicant to supplement its founding affidavit, if so advised,
relating to any new information which
may come to hand relating to
any further breach of the 1
st
Respondent or information
which may be relevant to the final adjudication of this application.
5. Prayer 3 will
function as an interim interdict, with immediate effect pending the
finalisation of this application.
6. That the
Respondents are ordered to pay the costs of the 10
th
of
June 2014.
7. That the
Respondents be ordered, jointly and severally, the one paying the
other to be absolved to pay the costs of this application.
8. The matter was
set down for hearing initially on the 10
th
of June 2014
and at that stage the Respondents, having failed to comply with the
time limits set out by the Applicant in the un-amended
notice of
motion, the matter was not ripe for hearing and stood down for
hearing until the 13
th
instant on which date the matter
was argued and was stood down for judgment to be delivered on the
17
th
of June 2014,
9. The Applicant
relied on a written agreement entered into between the Applicant and
the 1
st
Respondent with effect the 1
st
of May
2011. The document, being an employment agreement, had annexed to it
two annexures, being annexure “A”, a document
headed “Job
Profile & Job Description & Performance Agreement”,
a further annexure, being annexure
“C‘, headed
“Confidentiality Agreement". The documents were appended
to the founding affidavit, and marked
annexures “B, "C"
and “D" respectively.
10.
The clauses of the employment agreement are to be found on page 15 of
annexure “A”, numbered 61, 62, 63. 64, 65
and 66, and
read as follows:
“
61.
The parties (the employer and employee respectively) hereby
irrevocably agree and guarantee each other that they shall not,
directly or indirectly, interfere with, circumvent or attempt to
circumvent, avoid, bypass, or obviate each other's interest, or
the
interest or relationship between “the parties" with
producers, sellers, buyers, suppliers, brokers, dealers,
distributors,
refiners, shippers, financial institutions, technology
owners or manufacturers, to change, increase, or avoid directly or
indirectly
payment of established or to be established fees,
commissions or continuance of pre-established relationships or
intervene in uncontracted
relationship with manufacturers or
technology owners with the intermediaries, entrepreneurs, legal
counsel or initiate buy/sell
relationships or transnational
relationships that bypass one of "the parties" with any
corporation, producer, technology
owner, partnership, or individual
revealed or introduced by one of "the parties" to one
another in connection with an
ongoing or future "transaction"
or '‘project”, without the prior written consent of all
parties"
62. Furthermore, the
parties irrevocably agree that they shall not disclose or otherwise
reveal directly or indirectly to any third
party, any confidential
information provided by one party to the other or otherwise acquired
particularly, contract terms, product
information or manufacturing
processes, prices, fees, financing arrangements, schedules and
information concerning the identity
of sellers, producers, buyers,
lenders, borrowers, brokers, distributors, refiners, manufacturers,
technology owners, or their
representatives and specific individual
names, addresses, principals, or telefax/telex/telephone numbers,
references, product or
technology information, arid/or all other
information, advised by one “party/parties" to another as
being confidential
or privileged, without the prior specific written
consent of the "party/parties" providing such information.
63. This Agreement
shall be valid from date of signature and upon termination of this
agreement, clauses 61 to 66 will survive and
remain applicable for a
minimum of two (2) years from the termination date of this Agreement,
and for two (2) years after completion
of each transaction or
exchange of information, whichever occurs later, with an additional
two (2) years automatic roll over/renewals
at the close of each
transaction or exchange of information and thereafter at the end of
any roll over period without the need
of advisement, unless mutually
agreed in writing to be terminated by all “the parties",
which termination can occur
only at the end of any roll over period
and must be acknowledged by notice through Certified Mail thereof, if
notice is not given
by all "the parties" within ten (10)
days after the beginning of a new roll over period, it shall be
construed that the
Agreement is in full force and effect between "the
parties" for another two (2) years.
64. The Employee
agrees that they may under no circumstances approach or accept an
offer of employment in any form from Digiterra
clients to which they
are or have been deployed. This applies to all forms of ]ob offers
including amongst other offers in the
public domain and employment
agents. If such a breach were to occur then the Employee will
immediately be liable to pay the company
a solicitation fee within
seven calendar days of the acceptance of an offer by the Employee.
The solicitation fee to be paid to
the Company by the Employee is to
be calculated as the full amount of revenue that would have been
generated by the Employee for
a twelve month period computed at the
maximum Employee sale rate to the customer and where the Employee is
utilised at 1 60hrs
per month.
65. The Employee
expressly understands and agrees that they will personally be liable
for the solicitation fee as set out in section
64 of this document.
66. The Employee
expressly understands and agrees that any legal costs on the scale as
between attorney and own client incurred
In the execution of the
Companies rights under this section will be for the full account of
the Employee. This section is defined
as clauses 61 to 66.”
11.
That the parties agreed that this agreement contained the full
agreement between the parties is evident from
67
which
reads as follows:
“
67.
This Agreement read together with the Company Codes and Policies and
Procedures constitutes the whole agreement between the
parties and
supersedes all prior verbal or written agreements or understandings
or representations by or between the parties regarding
the subject
matter of this Agreement, and the parties will not be entitled to
rely, in any dispute regarding this Agreement, on
any terms,
conditions or representations not expressly contained in this
Agreement read together with the Company's codes as amended
from time
to time."
12. Clause 62 deals
exclusively with confidential information and clause 64 caters for
employment by an employee of the Applicant
with a client of the
Applicant which is clearly not applicable here.
13. The only basis
for the restraint of trade on which the Applicant relies, must be
found in clause 61.
14.
From the facts of the matter it is clear that this agreement was
drawn by the Applicant and that the
contra
prefereniem
rule
will apply.
15. Tellingly the
clause does not expressly prohibit the Respondent from competing with
the Applicant in the market place or taking
up employment with an
entity that so competes. Of even greater significance is that the
clause appears to envisage a reciprocal
arrangement in terms of which
the employer and the employee will not interfere with each other’s
interests as set out in
the clause.
16. What the
intention of the draftsman could have been in choosing this wording
escapes the Court entirety. Even if a reliable
construction in favour
of the Applicant could be found, the wording, being in the main
verbiage, referring to each and every business
connection of the
parties, extending even to a legal counsel, is so wide that it would
be well-nigh impossible for any of the parties
to be able to comply
therewith, not only in regard to the classes of persons that it
attempts to prescribe, but has no geographical
limitation in regard
to its operations.
17. I was invited by
the Applicant’s counsel, in the event of it being found that
the matter be referred to trial. I cannot
see that this will avail
the Applicant at all.
18.Clauses
67
and
68 places this dispute foursquare within the ambit of
SA
Sentrale Ko-op Graan Maatskappy Bpk v Shifren en Andere
1964 (4j SA
760
A,
and any attempt to lead oral evidence in order to explain or amplify
the terms of the agreement will for that reason fail.
19. To my mind the
concession by the Respondents’ counsel that the 1
st
Respondent was bound by the confidentiality clause does not avail the
Applicant as the main complaint, and that which gives rise
to the
dispute between the parties is in essence one of a restraint of trade
to which the Applicant is not entitled.
20. For these
reasons the following order is made:
20.1 The 1
st
Respondent is interdicted from breaching the provisions of the
confidentiality agreement (attached as annexure “C" to
the
founding affidavit) which was concluded between the parties, and
which shall include but not be limited to:
20.1.1
The 1
st
Respondent be prohibited from
communicating
or discussing with any third party, person, firm, association,
company or legal entity (including those listed supra)
any
information relating to the Applicant's business affairs, pricing
list, client list or other confidential information and in
whatever
form of by whatever means, without the prior written consent of the
Applicant’s chairman;
20.1.2 Use of such
information for the 1
st
Respondent's private or for the
2
nd
Respondent's benefit in whatsoever manner;
20.1.3 Illegally and
unlawfully using any of the confidential information, obtained during
the 1
st
Respondent’s employment with the Applicant,
to advance the Respondent's business interests at the Applicant’s
expense.
20.2 The balance of
the prayers contained in the notice of motion, as amended, are
dismissed.
20.3 The Applicant
is ordered to pay the Respondents' costs of the application.
20.4 The Respondent
is ordered to pay the Applicant's wasted costs of the 10
th
of June 2014.
DE VRIES AJ