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[2013] ZAGPPHC 277
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Premier Foods (Pty) Ltd v Dos Reis (10975/2011) [2013] ZAGPPHC 277 (2 October 2013)
REPORTABLE
IN
THE HIGH COURT OF NORTH GAUTENG HELD AT PRETORIA
In
the matter between:
CASE
NO. 10975/2011
DATE:02/10/2013
PREMIER
FOODS (PTY)
LTD
.........................................................................
APPLICANT
and
FRANCISCO
DOS
REIS
..............................................................................
RESPONDENT
JUDGMENT
PRELLER
J:
The
applicant seeks, by way of motion proceedings, final interdictory
relief enforcing an agreement of restraint of trade. There
is no
alternative claim for interim relief.
The
applicant does business as a manufacturer and seller of food,
including maize and other grain products and to a large extent
in the
production and sale of bread. The respondent was initially employed
as distribution manager and later site manager of the
applicant’s
Middelburg area between September 2008 and August 2010. In August he
was transferred to the applicant’s
Durban branch as “site
manager’, which seems to refer to the entire Durban area.
Before starting to work for the applicant,
he was employed in the
sales department of Albany, another competitor in the field. At about
the same time he was requested to
sign an employment agreement which
contains the restraint that the applicant is seeking to enforce.
Towards the end of November
the respondent gave notice of his
intention to terminate his employment with the applicant as from the
end of January 2010, and
it is common cause that the respondent has
since taken up employment in Ermelo with Albany, one of the
competitors of the applicant.
The
restraint is cast in the widest of possible terms, is for a period of
24 months and covers the entire area of the Republic of
South Africa.
The restraint is patently too wide. According to the founding
affidavit the respondent became privy to a wide variety
of
confidential information belonging to the applicant, ranging from
secret bread recipes and production costs to their sales strategy
and
client lists. The applicant alleges that approximately 70% of its
bread sales is to “informal” clients, being spaza
shops
and tuck shops throughout the rural and township areas around
Middelburg. The client lists and the details thereof are of
paramount
importance since the informal customers need to be approached
individually at locations known to the employees of the
applicant,
and the drivers of the delivery trucks constitute the important link
between the applicant and its customers. The applicant
has 3058
customers scattered over 64 routes in the Middelburg region. That
would mean that here are approximately 2400 informal
customers. It
seems to me that the respondent would need to spread himself rather
thinly in order to keep his finger on the pulse
of all this important
confidential information belonging to the applicant.
In
his answering affidavit the respondent deals extensively with the
allegations in the founding papers and I do not propose to
deal in
any detail with the disputes. Suffice it to say that every important
allegation by the applicant is disputed by the respondent.
As pointed
out by Mr. Oosthuizen on behalf of the respondent, the high water
mark of the applicant’s case is the access that
the respondent
had to its customer lists. As far as that is concerned there can be
no doubt that the identity of all the “formal”
customers,
being well-known retailers like Spar, Checkers and the like, will be
either known or easily ascertainable by any competitor.
By the very
nature of the business done by these retailers, every supplier in the
field will probably do business with all the
applicant's customers in
any event. The applicant can have no protectable interest in their
names. On the applicant’s own
showing the contact with the
informal customers is with the drivers/sellers working for the
applicant and the respondent could
not possibly, in addition to all
his other duties as site manager of the region, have personal contact
with the owner of every
informal shop or even with any substantial
part of them. Quite apart from that, all that any new competitor in
the field would
need to do to find out the identity of the
applicant’s customers is to simply follow the applicant’s
delivery trucks
on their roundsI need to refer to but two example of
trade secrets which the applicant claims to have been poached by the
respondent.
The first relates to a promotion drive by the applicant
in which informal customers were advised to supply buyers of the
applicant’s
bread with some free achaar and which the
respondent apparently copied. Another complaint relates to discounts
in the form of three
free loaves for every ten bought, which Albany
has copied since the applicant had joined its ranks. That kind of
promotion must
necessarily rely on publicity among members of the
public and informal traders for its success and with that the
confidentiality
of the trade secret flies out of the window. There
can be no doubt that if informal traders are offering this kind of
benefit in
respect of applicant’s products, the other suppliers
will be asked why the are not offering something similar.
In
view of the serious doubt about the existence of a protectable
interest and also the disputes that arose on the affidavits, the
application cannot succeed.
ORDER: The application is dismissed
with costs.
FG
PRELLER
JUDGE
OF THE HIGH COURT