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[2013] ZAKZDHC 20
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Corrocoat SA (Pty) Ltd v Lavental (10995/2012) [2013] ZAKZDHC 20 (15 March 2013)
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO. 10995/2012
In
the matter between:
CORROCOAT
SA (PTY) LTD
.......................................................
APPLICANT
and
RICHARD
SCOTT LAVENTAL
.................................................
RESPONDENT
J
U D G M E N T (draft 1)
Date
Delivered
:
_____________________________________________________________
S
R MULLINS, A J:
[1]
Mr Richard Lavental was previously employed by the applicant. He
resigned by letter dated 9 July 2012 and left the applicant’s
employ at the end of that month.
[2]
In this application (which was launched in October 2012), the
applicant seeks an order in the form of a final interdict in the
following terms:
“
a) That the
respondent be and is hereby interdicted for a period of eight months,
effective from the date of this order, from contacting,
in any
manner, any of the applicant’s customers, or any of the contact
persons or employees of such customers, listed in
Annexure “A”
hereto, for the purpose of securing any business from such customers;
b) That the respondent be and is
hereby restrained from making use of any confidential information,
acquired whilst the respondent
was in the employ of the applicant,
relating to the business of the customers identified in Annexure “A”
hereto;
c) That the respondent be directed to
pay the costs of the application on the scale as between attorney and
client.”
[3]
The list, Annexure “A” reflects some 23 alleged
customers.
[4]
The application was formulated on the basis that what would be
sought, when the matter first came before court on 30 October
2012,
was a rule
nisi
with
interim relief. In the result interim relief was not granted and the
matter came before me for the purpose of the grant or
refusal of
final relief on Friday 15 March 2013. By that time the respondent had
delivered his answering affidavit and the applicant
had delivered its
replying affidavit. Mr Combrinck, who appeared on behalf of the
applicant, conceded that any relief would be
final in effect, given
that it could not extend beyond June 2013.
[5]
The background to the litigation is, in summary, the following.
[6]
The applicant is a company which forms part of a larger international
group. It specialises in heavy duty industrial coatings
and linings
and apparently applies a comprehensive range “specialist glass
flake epoxies, vinyl and polyester GRP linings
and coatings, thick
film urethane linings, rubber linings and fluoropolymer linings”.
Over the past three decades, the applicant
has built up an impressive
client list (many of which clients are listed on Annexure “A”
to be proposed interdict order)and
is recognised as one of the top
coating concerns in South Africa.
[7]
The respondent was employed in December 1997 as a supervisor, but was
subsequently promoted to “Site Manager”. The
applicant
claims that, in consequence of his employment and his senior position
as Site Manager, the respondent was privy to wide
ranging
confidential information, not only with regard to applicant’s
business, its costing structures and products, but
also with regard
to the particular needs of its various customers.
[8]
The respondent had, on his resignation from the employ of the
applicant, taken up employment with a concern, “REMA”,
which is a competitor of the applicant in the field of rubber
linings.
[9]
Notwithstanding that the respondent is apparently based inMpumalanga
working as a site manager project there, the applicant
is concerned
that has managed to use both knowledge which he would have acquired
in the course of his employment with the applicant
and also personal
relationships which we will have built up with employees of customers
of the applicant to assist his new employer
to compete with the
applicant.
[10]
The applicant
[11]
The respondent’s employment, with effect from 1 December 1997,
was in terms of a written contract. Relevant provisions
as are relied
upon by the applicant in this case were those quoted below. I quote
them verbatim, without correction.
[9]
Firstly there is Clause 12 of the employment contract headed
“
Secrecy
”
and
reading
“
TheEmployee will not, either during or at
the termination of employment divulge or communicate to any other
person(s) secrets of
the Company or any other information received or
obtained in relation to the Company’s interests
”
[10]
Secondly the applicant relies on an agreement contained a Schedule
“A” and forming part of the employment contract.
Clause
A.1 provided that the employee would not take up any other employment
whilst employed by the applicant. Clause A.2, which
is relied upon by
the applicant, reads as follows:
“
A.2 a) The
Employee acknowledges that the Employer carries on business, inter
alia concerned with treating of engineering equipment
items and such
like with a resin and glass flake filler compound for the purpose of
protecting such items against erosion and corrosion,
and the
reconditioning and repair of such items using the same process (e.g.
Fluiglide).
b) The Employee acknowledges that
during the course of this employment he will acquire knowledge of a
confidential nature the Employer’s
customers, suppliers,
franchisors and licensors; also its trade secrets, compounds and
processes, technical information and know-how.
c) The Employee further undertakes,
after the termination of his employment for any reason whatsoever,
not to be employed, or concerned
whether directly or indirectly, in a
similar business to which conducted by the Employer, or a business
which competes with or
is likely to compete with the Employer’s
business.
d) The Employee agrees that this
restraint shall operate for a period of 24 months after the date of
termination of his employment.
Further, the restraint shall apply
within the radius 1200 kilometers from the place at which the
Employer’s business is conducted,
or if the Employee is
employed or works at a branch of such business, within the same
radius of such branch.
e) The Employee agrees that each of
the restraints are separate and Independentof each other; further
that such restraints are reasonable
as to subject matter, are (sic)
and period.
Clause
A.2 must be read subject to A.3(which plainly applies only to A.2 and
not A.1) and provides
“
This
restraint DOES NOT applies to sand blasting, industrial painting, nor
rubber lining.”
[11]
Finally the applicant relies on a further schedule “B” to
the Employment Contract, which commences with the opening
paragraph
reading:
“
Your
employment with this Company gives excess to information and
procurement of information considered to be of a secret nature
in
respect that it is considered useful to a competitive Company and may
also be used for private gain.”
and
goes on to provide,
inter
alia,
andexcluding
provisions not directly relevant:
“
You shall
not therefore during the continuance of employment with this Company
or at any time thereafter divulge to any person whomsoever
any trade
secret or manufacturing process or any confidential information
concerning the business or finances of the Company or
any of its
subsidiaries or any of its dealings, transactions or affairs which
may come to your knowledge during the course of your
employment,
further you shall use your best endeavours to prevent publication or
disclosure of any such information.”
[12]
APPEARANCES:
APPLICANTS
COUNSEL: Mr P Combrink
(0828742226)
Instructed
by
RESPONDENTS
COUNSEL: Mr D Crampton
(0827717274)
Instructed
by
Date
of hearing: 15 March 2013.
Date
of judgment delivered : March 2013.