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[2013] ZAECELLC 3
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Burmbuild (Pty) Ltd v Ndzama (EL 1248/2012, ECD2948/2012) [2013] ZAECELLC 3; [2013] 2 All SA 399 (ECG) (8 January 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION-EAST LONDON)
CASE NO: EL 1248/2012
ECD2948/2012
Heard on: 11
November 2012
Judgement
delivered: 8 January 2013
REPORTABLE
In the matter between:
BURMBUILD (PTY) LTD
.............................................................................
Applicant
and
SIBABINI NDZAMA
.................................................................................
Respondent
JUDGMENT
DUKADA J:
INTRODUCTION
[1] In this application applicant
seeks an order enforcing a written restraint clause contained in a
contract of employment between
the applicant and the respondent, and
effectively interdicting and restraining the latter from remaining or
being in the employ
of Vincent Hardware, East London or any other
similar business for a period of twelve (12) months from 1 October
2012, alternatively
the date of granting of the order.
[2] A certificate of urgency was
brought before me while on duty on the 4
th
October 2012
and I gave directions that the application papers be issued and set
down for hearing on Thursday the 11 October 2012,
papers to be served
on respondent by Friday the 5 October 2012 with respondent to deliver
answering affidavits, if any, by Monday
the 8 October 2012, applicant
to deliver replying affidavits, if any, by 16H00 on Tuesday the 9
October 2012 and Heads of Argument
to be delivered on or before 12H00
on Wednesday the 10 October 2012.
[3] The Notice to oppose, answering
affidavits, replying affidavits, and Heads of Argument were delivered
as directed. This matter
was accordingly argued on the 11 October
2012.
[4] The orders sought by the applicant
are set out as follows in the Notice of Motion:-
interdicting and restraining the
respondent from remaining and/or being in the employ of Vincent
Hardware, 47 Devereaux Avenue,
Vincent, East London for a period of
twelve (12) months from 1 October 2012, alternatively the date of
granting of this order;
and
interdicting and retraining the
respondent for a period of twelve (12) months from 10 October 2012
alternatively the date of granting
of this order from being involved
with Vincent Hardware or with any other business, firm, partnership,
business entity or company
which carries out the same or similar
functions/business as the applicant within a radius of 150 km from
the East London City
Hall, in any capacity whatsoever; and
costs of this application on the
scale as between party and party.
[5] As the
applicant is seeking relief of a final nature against the respondent
and there are disputes of fact, the proper approach
to follow was set
out by
Corbett
JA in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1
as follows:-
“
Where in
proceedings on notice of motion disputes of fact have arisen on the
affidavits, a final order, whether it be an interdict
or some other
form of relief, may be granted if those facts averred in the
applicant’s affidavits, which have been admitted
by the
respondent, together with the facts alleged by the respondent justify
such an order......... In certain instances the denial
by respondent
of a fact alleged by the applicant may not be such as to raise a
real, genuine, or bona fide dispute of fact.......If
in such a case
the respondent has not availed himself of his right to apply for the
deponents concerned to be called for cross-examination
under Rule 6
(5) (g) of the Uniform Rules of Court ........and the Court is
satisfied as to the inherent credibility of the applicant’s
factual averment, it may proceed on the basis of the correctness
thereof and include this fact among those upon which it determines
whether the applicant is entitled to the final relief which he
seeks.....”
FACTUAL BACKGROUND
[6] Applicant is trading as
Burmeisters at Bonza Bay Road, East London and is a sister company to
Burmeister & Co (Pty) Ltd
( “
Burmeisters
” ),
both of whom are owned by the Burmeister family.
[7] Respondent was first employed by
Burmeister & Co (Pty) Ltd on a temporary basis during or about
2000. He was permanently
employed on 8
th
March 2003 and
transferred to her paint department. When applicant commenced her
business operations during or about mid 2005 in
Beacon Bay, East
London as a further outlet of Burmeister & Co (Pty) Ltd, the
respondent was transferred together with a number
of other employees
and took up employment with the applicant. In order to protect her
intellectual property, trade secrets and
confidential information
prior to and during the currency of the employment of the respondent,
applicant resolved to have all employees
employed in the paint
department sign the necessary and appropriate restraint of trade
agreements. Restraint of trade clauses were
then included in all
applicant’s employment contracts.
[8] The respondent signed a written
contract of employment on the 4
th
March 2003 and also
signed a written restraint of trade agreement on the 10
th
April 2004. In his answering affidavit the respondent seemed to
dispute the validity of the contract of employment on the ground
that
it was not signed by the persons authorised to do so in the contract,
and so also was the restraint of trade which was also
so signed. He
also raised the question of urgency. However from the argument by
Counsel on behalf of the respondent those aspects
were not raised and
I assume they are no longer being pursued. For that reason I will not
deal with those aspects in this judgement.
[9] The respondent tendered his
resignation from the applicant’s employment on the 31
st
August 2012 effective at the end of September 2012. On 1
st
October 2012 the respondent took up employment with Vincent Hardware.
The respondent admits to have taken up employment with Vincent
Hardware as from 1 October 2012 but states that he is employed as a
General Assistant and not specifically in the paint department.
[10] The restraint clause in question
reads as follows:-
“
1.
The
employee undertakes not to be engaged or employed in establishing of
a new or existing business with similar products or of
a similar
nature to Burmeisters be it direct or indirect or as a shareholder,
partner, member of a close corporation, director
of
a
company or in any other capacity within one year after termination of
this agreement in the area known as within 150 km radius
from East
London City Hall.
2. The employee acknowledges and
agrees that the aforesaid restraint is fair, reasonable and necessary
for the protection of his
employer, his employer’s trade name
and goodwill attached thereto.
3. Without prejudice to any other
rights which the employer may have in law the employee acknowledges
that the agreed damages due
to his/her employer will be an amount of
the average of his/her last three months’ basic salary in
respect of each calendar
month during which any breach of the
aforesaid restraint continues and that the employer shall be entitled
to recover such amount
and any associated recovery costs, from the
employee in respect of such breach.
4. I agree that the above be part
of my contract of employment”
[11] Applicant states that Vincent
Hardware conducts the same business as the applicant and is a seller
and distributor of paint
and related products in and around East
London and surrounding areas. As such it is her competitor. She
further states that by
virtue of respondent’s employment he
obtained and has an intimate and detailed knowledge of the
applicant’s customer
base, the customer’s specific needs,
the customer’s specific purchasing volumes, discount
parameters, mark ups, pricing
structures, product specifications and
product capabilities. Applicant further states that the respondent,
as a sales person dealt
with her customers and products on daily
basis. She avers respondent had at all times, since the beginning of
his employment, access
to the applicant’s main computer
data-base by way of terminals in the paint department from which
data-base he could have
gleaned, obtained and downloaded all the
information at will. Applicant further states that as the respondent
has joined her competitor,
he and his new employer have the edge on
the applicant in that they will be able to approach applicant’s
customers and offer
them similar goods at carefully calculated rates
well-knowing the applicant’s rates and discount parameters in
order to alienate
their customers from the applicant.
[12] The respondent denies the
afore-mentioned allegations. He states that the applicant generally
serviced DIY requirements-individuals
and not contractors, retail
customers, factories, tradesman and construction companies who tend
to purchase from applicant’s
sister business at Fleet Street,
East London. He further states that his computer username did not
allow him access to the customer
data base. He is not aware of any
customer’s specific needs as the clients he assisted were
individuals and regular customers.
He also did not have customers who
regularly bought in volumes from him. He also states that he is not
privy to discount parameters
and was unable to give discounts when
customers requested same without obtaining permission from Clide
Martin who is the Head of
applicant’s paint department. He was
not privy to mark up information and did not take part in budgeting
or forecasting as
those were determined by people with a far higher
job grade than himself namely Clide Martin and other members of
Management. Respondent
admits that he is privy to information on
product specifications and product capabilities as he learnt it from
paint suppliers
and it is also written on the face of the paint tin.
He maintains, however, that such formation is also available to the
members
of the public and also that the product-data sheets are kept
by any person who works with paint. He admits that as a sales person
he deals with numerous customers on a daily basis just as any
salesman in any business. He deals with products which are sold
nationally. He admits to have had access to applicant’s main
computer data base by way of terminals but such access was restricted
to his user code. He was not allowed to activate and transfer stock,
activate a non-order, he could only see if it was possible
to give a
discount once Clide Martin had approved same and to print stock take
forms. He did not have access to the debtor master
list, the stock
master file and customer information or details.
Respondent emphatically denies to have
gleaned or obtained or downloaded any information relating to the
customer data base, customer
needs, discount parameters, mark ups or
pricing structures as he did not have access to them. He denies that
his present employer
has an edge on the applicant and states that he
will in no manner or form be able to approach the applicant’s
customers to
offer them better prices or to alienate their custom
from applicant.
[13] Applicant further states that the
respondent prior had no experience in the paint industry prior to
joining Burmeisters. The
respondent gained all his skills, knowledge
and training of applicant’s industry whilst in the employ of
the applicant and
her predecessor, Burmeisters. During the period of
his employment over the past approximately seven years, apart from
in-house
and on the job-training, the respondent received extensive
training from suppliers of the applicant such as
Plascon,
Woodock, Tile & Floor, Duram and Dulux.
Respondent admits that he had no
knowledge in applicant’s industry prior to joining Burmeisters.
He, however, sates that all
employees working with paint are exposed
to the same extensive training from suppliers such as
Plascon,
Woodock, Tile & Floor, Durum and Dulux
. He states that he
gained his skills, knowledge and training about paint from the
representatives of these suppliers and not from
the applicant nor
Burmeisters as all training came from external suppliers and not
in-house. Respondent further states that he
has commenced employment
with Vincent Hardware who not only sells paint but other hardware
goods. Respondent admits that the restraint
per se is not
unreasonable either with regard to time or territory but he states
that the knowledge that he has acquired is his
own and there is no
proprietary interest to which the applicant is entitled to place
reliance on the restraint. He further avers
that the third clause of
the restraint which is not severable from the agreement is against
public policy.
ISSUES
[14] The only issue remaining in my
view is whether this restraint clause is enforceable against the
respondent in the circumstances
of this case.
THE LAW
[15] Since the
decision in
Magna
Alloys & Research (SA) (Pty) Ltd v Ellis
2
,
contracts in restraint of trade are in principle valid and
enforceable, and will only be unenforceable if they are contrary to
public policy or public interest.
Didcott J puts it
aptly as follows in J. Louw and Co v Richter & Others
3
.
“
Covenants
in restraint of trade are valid. Like all other contractual
stipulations, however, they are unenforceable when, and to
the
extent, their enforcement would be contrary to public policy. It is
against public policy to enforce a covenant which is unreasonable,
one which unreasonably restricts the covenantor’s freedom to
trade or to work. In so far as it has that effect the covenant
will
not the therefore be enforced. Whether it is indeed unreasonable must
be determined with reference to the circumstances of
the case, such
circumstances are not limited to those that existed when the parties
entered into the covenant. Account must also
be taken of what has
happened since then and, in particular, of the situation prevailing
at the time enforcement is sought.”
[16] As far as the
incidence of onus is concerned the applicant who is seeking to
enforce the restraint need no more than to invoke
the restraint
agreement and prove the breach; the respondent who seeks to avert the
enforcement bears the onus to prove on a balance
of probabilities
that in all the circumstances of this case it will be unreasonable to
enforce the restraint
4
.
[17] In
Reddy
v Siemens Telecommunications (Pty) Ltd
5
Malan AJA remarked
as follows:-
“
A court
must make a value judgment with two principal considerations in mind
in determining the reasonableness of a restraint. The
first is that
public interest requires that the parties should comply with their
contractual obligations, a notion expressed by
the maxim
pacta
servanda sunt
.
The second is that all persons should in the interests of society be
productive and be permitted to engage in trade and commerce
or the
professions. Both considerations reflect not only common law but also
constitutional values.”
6
In paragraph 16 Malan AJA remarked
further as follows:
“
In
applying these two principal considerations the particular interests
must be examined. A restaurant would be unreasonable if
it prevents a
party after termination of his or her employment from partaking in
trade or commerce without a corresponding interest
of the other party
deserving of protection. Such a restraint is not in the public
interest. Moreover, a restraint which is reasonable
as between the
parties may for some other reason be contrary to public interest.”
[18] In determining the reasonableness
of a restraint agreement, Nienaber JA, in
Basson v Chilwan and
Others, supra, at 767 C-H
, stated that the following
questions should asked:
“
(a)
Is
there an interest of the one party which is deserving of
protection at the
termination
of the agreement?
Is such an interest being
prejudiced by the other party?
If so, does such interest so weigh
up qualitatively and quantitatively against the interest of the
latter party that the latter
should not be economically inactive and
unproductive?
Is there another fact of public
policy having nothing to do with the relationship between the
parties but which requires that
the restraint should be maintained?”
[19] Where the
interest of the party sought to be restrained weighs more than the
interest to be protected, the restraint is unreasonable
and
consequently unenforceable. The enquiry which is undertaken at the
time of enforcement covers a wide field and includes the
nature,
extent and duration of the restraint and factors peculiar to the
parties and their respective bargaining powers and interest.
7
Malan AJA, in
Reddy’s case supra at 498 D-F,
adds
a fifth question to the four questions identified in Basson,
remarking as follows”.
“
A fifth
question, implied by question (C) which may be expressly added, viz,
whether the restraint goes further than necessary to
protect the
interest, corresponds with s36(1)(e) requiring a consideration of
less restrictive measures to achieve the purpose
of the limitation.
The value judgment required by Basson necessarily requires
determining whether the restraint or limitation is
reasonable and
justifiable in an open democratic society based on human dignity,
equality and freedom.”
[20] Applicant
relies for the enforcement of the restraint agreement on her trade
secrets or connections, confidential information
and the “
know-know”
that was acquired
by the respondent in her business.
[21] Stegmann J in
Sibex
Engineering Services (Pty) Ltd v Van Wyk and Another
8
remarked as follows
on protectable proprietary interests:- “
The
proprietary interests that could be protected by such a restraint
were essentially of two kinds. The first kind consisted of
the
relationships with customers, potential customers, suppliers and
others go to make up what is compendiously referred to as
the ‘trade
connection’ of the business, being an important aspect of its
incorporeal property known as goodwill. The
second consisted of all
confidential matter which is useful for the carrying on of the
business and which could therefore be used
by a competitor, if
disclosed to him, to gain a relative competitive advantage. Such
confidential material is sometimes compendiously
referred to as
‘trade secrets”.
[22] Discussing the
term “trade connection” in
Rawlins
and Another v Caravantruck (Pty) Ltd
9
Nestadt JA quotes
with approval Heydon: The Restraint of Trade Doctrine (1971). Heydon
says at page 108 saying:-
“
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”.
Heydon
further says that the “customer contract” 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.”
Nestadt JA further quotes with
approval
Morris (Hebert) Limited v Saxelby
[1916] 1 AC 688
(HL)
at 709
where it was said that the relationship must be such
that the employee acquires :-
“
s
uch
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 by
our Courts (for example, by Eksteen J in
Recycling Industries
(Pty) Ltd v Mohamed and Another
1981 (3) SA 250
(E) at 256 C-F)
.
The learned Judge of Appeal further
remarked at 541 G-H as follows:
“
Whether
the criteria referred to are satisfied is essentially a question 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 (
Heydon
op cit at 108 -
120),
and see also
Drewtons
(Pty) Ltd v Carlie
1981 (4) SA 305
(C) at 307 G-H and 341 C and G”.
[23] For information to qualify as
confidential information it must comply with three requirements:-
“
First it
must involve and be capable of application in trade or industry i.e
it must be useful (Van Heerden & Neetling, Unlawful
Competition
at 225). Second, it must not be public knowledge and public property
i.e objectively determined it must be known only
to a restricted
number of people or to a closed circle (
Harvey
Tiling Co (Pty) Ltd v Rortomac (Pty) Ltd,
1977 (1) SA 316
(T) at 321
G-H; Van Castricum v Theunissen and Another
1993 (2) SA 726
and
the cases cited therein). Third, the information objectively
determined must be of economic value to the person seeking to protect
it. (
Cooler
Ventilator Co. (SA) (Pty) Ltd v Liebenberg
1967 (1) SA 686
(W) at 691
B-C, Van Castricum v Thaunissen
,
supra
at 732 A-F).
[24] Reverting to the case at hand,
applicant seeks protection of the following strategic information
which she regards as confidential:-
(i) Technical details, techniques,
know-know, method of operating, cost and source of material, pricing,
names of customers, buying
capacity of customers and product
preferences of customers;
(ii) Customer data base including
information from each customer such as their preferences and discount
arrangements,
(iii) Identity of each cash and credit
account customer and the prices charged to them for the item.
Names and contact details.
[25] Except for the technical details,
technique and know-how, the other items of confidential information
to which applicant seeks
protection seem to me to be protectable
interests. Respondent, however, denies having access to such
information.
[26] The other aspect in this matter
is the training, acquisition of skill, experience and know-how which
the respondent gained
while in the employ of the applicant, which the
latter avers will be utilized to her disadvantage if the restraint
clause is not
enforced. In paragraph 38 of applicant’s founding
affidavit she says:
“
To the
best of my knowledge, the respondent, prior to joining the
Burmeisters, had no experience in the home and building retail
sector
and, in particular, had no experience in the paint industry. The
respondent gained all his skills, knowledge and training
of this
specialized industry whilst in the employ of the applicant and its
predecessor, Burmeisters. During the period of his employment
over
the past seven years, apart from in- house and on- the job- training,
the respondent received extensive training from suppliers
of the
applicant such as
Plascon,
Wood Tile and Floor, Duram and Dulux
”
[27] Dealing with a
matter concerning the enforcement of restraint of trade clause, Kroon
J, in
Aranda
Textiles Mills (Pty) Ltd v Hum and Another
10
,
remarked as
follows:-
“
A mans
skills and abilities are a part of himself and he cannot ordinarily
be precluded from making use of them by a contract in
restraint of
trade. An employer who has been to the trouble and expense of
training a workman in an established field of work,
and who has
thereby provided the workman with knowledge and skills in the public
domain, which the workman might not otherwise
have gained, has an
obvious interest in retaining the services of the workman. In the
eyes of the law, however, such an interest
is not in the nature of
property in the hands of the employer.
It
affords the employer no proprietary interest in the workman, his
know-how or skills. Such know-how and skills in the public domain
become attributes of the workman himself, do not belong in anyway to
the employer and the use thereof cannot be subjected to restriction
by way of a restraint of trade provision. Such a restriction
impinging as it would on the workman’s ability to compete
freely
and fairly in the market place, is unreasonable and contrary
to public policy. (See also
Automotive
Tooling
System (Pty) Ltd v Wilkens & Others
2007 (2) SA 271
(SCA) at 279
D-G and Townsend Productions (Pty) Ltd v Leach & Others
2001 (4)
SA 33
CPD at 50 1-51E, Basson v Chilwan & Others, supra at 778 D,
Sibex Engineering Services (Pty) Ltd v Van Wyk and Another
1991 (2)
SA 482
(T) 478 G-I 570 G-F, Advtech Resourcing (Pty) Ltd v Kuhn &
Another [2007] 4 All SA1368 (C) in para 20.
Chachalia AJA
Automative Tooling
System (Pty) Ltd v Williens and Others, supra, at 279 D-E r
emarked
as follows:-
“
In
practice, the dividing line between the use by an employee of his own
skill, knowledge and experience which he cannot be restrained
from
using, and the use of his employer’s trade secrets or
confidential information or other interest which he may not disclose
if bound by a restraint is notoriously difficult to define.”
I fully agree with this observation.
[28] Turning again to the case at hand
the respondent obtained the training, skill, experience and know-how
while in the employment
of the applicant. In my view those skills,
know-how and abilities are a part of himself and he cannot ordinarily
be precluded from
making use of them by a restraint clause. It is
understandable that the applicant who took trouble to have the
respondent trained
and afforded him the opportunity to acquire the
skills and knowledge he might otherwise not have had an opportunity
to acquire,
has an obvious interest in restraining the services of
the respondent.
[29] A restraint of
trade clause being a contractual term is subject to constitutional
rights. Courts will invalidate and refuse
to enforce agreements that
are contrary to public policy.
11
Section 22 of the
Republic of South Africa Constitution Act, 1996 provides:-
“
Every
citizen has the right to choose their trade, occupation or profession
freely. The practice of a trade, occupation or profession
may be
regulated by law.”
Although some
cases
12
dealt with the
impact of section 26 of the interim Constitution of 1993 (Republic of
South Africa Constitution Act 200 of 1993)
on the restraint of trade
clause, their view-point seem to hold still even in respect of the
Republic of South Africa Constitution
Act, 1996. Thus in my view the
principles set out in the preceding paragraphs relating to restraint
of trade agreements remain
fully of application.
[30] A further
aspect which needs consideration in this exercise is the dignity of
work which was commented on as follows by the
full Court in
Affordable
Medicines Trust and Others v Minister of Health of RSA and Others
13
.
“
What is
at stake is more than one’s right to earn a living important
though that is. Freedom to choose a vacation is intrinsic
to the
nature of the society based on human dignity as contemplated by the
Constitution. One’s work is part of one’s
identity and it
is constitutive of one’s dignity. Every individual has a right
to take up any activity which he or she believes
himself or herself
prepared to undertake as profession and to make that activity the
very basis of his or her life. And there is
a relationship ‘between
work and the human personality as a whole.’ It is a
relationship that shapes and completes
the individual over a lifetime
of devoted activity, it is the foundation of the person’s
existence.”
[31] In
Advtech Resourcing (Pty)
Ltd v Kuhn and Another
, supra in paragraph 31, Davis J raises
the value of ubuntu as a further consideration though the time
constraints did not permit
him to develop more fully on this aspect,
he concluded by stating that there is powerful and important argument
which should prompt
Courts to grasp the mettle and either through the
prism of section 8 or section 39 (2) revisit the entire issue of
restraint of
trade within the context. The Honourable Judge remarks
in paragraphs 25 that “
the duty to develop the common law to
promote the spirit, purport and object of the Bill of Rights is
particularly present where
a Court deals with value-laden concepts
such as public policy which must arise in the present dispute.”
He referred to a number of cases, viz:
Brisley v Drotsky
2002 (4) SA 1
(SCA) paras 90 and 91; Afrox
Healthcare Bpk v Strydom
2002 (6) SA 21
(SCA); Napier v Barkhuizen
2006 (4) SA 1
(SCA) paragraphs 6-14.
The value of ubuntu is one of the
important society values which embodies attributes of humaness,
fairness and justice between man
and man (“
man” in the
sense of a human being)
. Madala J in S v Makwanyane
[1995] ZACC 3
;
1995 (6) BCLR
665
(cc) in paragraph 237 described the concept ubuntu as follows:
“
The
concept carries in it the ideas of humaness, social justice and
fairness.”
Dealing in that case with the aspect
of irrevocability of the death penalty, Madala J remarked as follows
in paragraph 241: “
as observed before, the death penalty
rejects the possibility of rehabilitation of the convicted persons,
conderning them as ‘no
good’ once and for all, and
drafting them to the death row and the gallows. One must then ask
whether such rejection of rehabilitation
as a possibility accords
with the concept of ubuntu.”
In paragraph 44 he states that
our Courts, have found room for the exercise of ubuntu and referred
in his support to a number of
cases. With such support for the
infusion of the concept ubuntu in sentencing coming from Madala J as
set out about, it seems the
voices arguing to prompt Courts to grasp
the nettle and either through the prism of section 8 or section 39
(2) revisit the entire
issue of restraint of trade with the concept
of ubuntu in particular, to have positive prospects. Another positive
factor of the
infusion in favour of the concept of ubuntu into our
law is as reflected in paragraph 232 of the judgement of Madala J
where he
says “…
..it is a concept that permeates the
Constitution generally and more particularly chapter 3 which
entrenches fundamental human rights”.
Although the Honourable
Judge was commenting on the interim Constitution of the Republic of
South Africa Act No. 200 of 1993 in
my view, his remark still hold in
respect of the new Constitution (Constitution of the Republic of
South Africa Act No. 108 of
1996) (the Constitution) as the latter
Act seems to me to retain the spirit, purport and objects of the
former Act, more particularly
Chapter 2 which contains the Bill of
Rights.
Section 39 (2)
of the Constitution provides:
“
When
interpreting any legislation, and when developing the common law or
customary law every court, tribunal or forum .must promote
the
spirit, purport and objects of the Bill of Rights.”
One is mindful of the misgivings expressed in
Brisley
v Drotsky
,
supra
about “
over-hasty
or unreflective importation into the field of contract law of concept
of boni mores” a
s
put by Cameron JA (as he then was) in Afrox case,
supra.
He
commented further saying at 35 C-E:-
“
What is
evident is that neither the Constitution nor the value system it
embodies gives the Courts a general jurisdiction to invalidate
contracts on the basis of judicially perceived notions of unjustness
or to determine their enforceability on the basis of imprecise
notions of good faith”.
However, in my view, the legislature
in section 39 (2) provided Courts with power to develop common law so
as to promote the spirit,
purport and objects of the Bill of Rights
and if the circumstances of a case justify such development a Court
will have to exercise
the power conferred upon it or else our
jurisprudence will lag behind in the path for the future development
of our law ushered
or beckoned by our Constitution. It seems to me,
therefore, that our courts have also to guard against reluctance or
unwillingness
to develop common law when circumstances of a case
justify such development. This is of course a constitutional mandate.
[32] Notwithstanding the above
observations the position set out in
Reddy v Siemens
Telecommunications (Pty) Ltd,
supra
still holds. I
have to make a value judgment which involves the weighing up of the
interests involved. As stated above the applicant’s
interests
to her trade secrets and confidential information is protectable’
to which the respondent has, however, denied
to have access, but as
far as the skill, knowledge and abilities while the respondent
obtained which in the employ of the applicant
those are attributes of
the respondent which do not constitute a proprietary interest vesting
in the applicant but accrue to the
respondent as part of his general
stock of skill and knowledge which he may not be prevented from
exploiting. As such applicant
has no proprietary interest that might
legitimately be protected by enforcing the restraint of trade clause
against the applicant.
The restraint therefore, in all the
circumstances of this matter, inimical to public policy and
unenforceable. The respondent has
discharged the onus to prove a
balance of probabilities that in all the circumstances of this case
it will be unreasonable to enforce
the restraint.
[33] As far as the costs are concerned
I find no reason justifying a departure from the general rule that
costs follow the event.
[34] For these reasons therefore this
application is dismissed with costs.
__________________
D.Z.DUKADA
JUDGE OF THE HIGH COURT
Appearances:
For the Plaintiff : Adv Schultz
Instructed by Smith Tabatha Inc.
For the respondent : Adv D.H De la
Harpe Instructed by Russell Inc.
1
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634 H-635C
2
1984
(4) SA 784
(A) at 791-792
3
1987
(2) SA 237
(NPD) at 243 B-D
4
Basson
v Chilwan and others
[1993] ZASCA 61
;
1993 (3) SA 742
(A) at 776 i-j
5
2007
(2) SA 486
(SCA) in para 15
6
See
also Sunshine Records (Pty) Ltd v Frolling and Others
1990 (4) SA
782
(AD) at 794 C-E
7
Reddy
v Siemens Telecommunactions (Pty) Ltd, supra, at 497 E-F
8
1991
(2) SA 482
(TPD) at 502 D-F
9
[1992] ZASCA 204
;
1993
(1) SA 537
(AD) at 541
10
[2000]
4 All SA 183
(E) at 192 g-j
11
Advtech
Resourcing (Pty) Ltd v Kuhn & Another, supra, in para 26;
Barkhuizen v Napier
[2007] ZACC 5
;
2007 (7) BCLR 691
(4) paras 29+29 and other
cases cited therein
12
Waltons
Stationery &Another
1994 (1) BCLR 50
(o) and Arande Textile
Nulls (Pty) Ltd v Hum & Another, supra, at 193 a-b
13
[2005] ZACC 3
;
2006
(3) SA 247
(CC) para 59