SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
CASE NO: 19656/2023
In the matter between:
OMNI SOFTWARE SOLUTIONS (PTY) LTD First Applicant
OMNI SOFTWARE LIMITED Second Applicant
and
KOEKEMOER, ELMARIE First Respondent
ANALYSIS SUPPORT AND VENTURES (PTY) LTD Second Respondent
KOORSEN, MARIETTE Third Respondent
KOORSEN, GERT PIETER TIELMAN Fourth Respondent
BEKKER, JEREMIAS Fifth Respondent
EPICODE (PTY) LTD Sixth Respondent
Before: The Hon. Ms Acting Justice Mahomed
Heard: 03 June 2024
Delivered: 19 June 2024
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JUDGMENT
MAHOMED, AJ:
[1] This is an application for a temporary interdict which the first applicant (“ Omni SA") and
the second applicant (“ Omni UK ”) (jointly referred to as “ Omni”), launched on 3
November 2023 for the following relief:
[1.1] Pending final determination of the action to be instituted against the respondents
by Omni SA and Omni UK:
[1.1.1] The first respondent, Ms Elmarie Koekemoer (“Ms Koekemoer”), second
respondent, Analysis Support and Ventures (Pty) Ltd (“ASV”) and sixth
respondent, Epicode (Pty) Ltd (“Epicode”) be interdicted from:
(a) Unlawfully competing with Omni SA and/or Omni UK by:
(aa) Using any information which constitutes proprietary and/or
confidential information in connection with the business of
Omni SA and Omni UK;
(bb) Approaching, contacting, soliciting and/or engaging with
any of Omni's clients with a view to:
(i) Inducing them to terminate their contracts and/or
dealings with Omni SA and/or Omni UK; and/or
(ii) Securing them as clients for Koekemoer and
Koekemoer’s new employer, Epicode; and/or
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(iii) Representing to them directly or indirectly that the
Epicode’s system is identical and/or similar to Omni ’s
products and systems;
(cc) Passing off the products, systems and/or services offered by
Koekemoer and Epicode:
(i) As being those of Omni;
(ii) As being related to and/or affiliated with Omni;
(dd) Holding themselves out and/or Epicode as being affiliated
with Omni;
(ee) Offering the products, systems and/or services which they
offered to the public in a manner which is confusingly
similar to that of Omni's distinctive set-up, software and/or
application layout;
[1.1.2] Disclosing any of Omni's confidential information, including, but not
limited to, client lists, pricing information, information relating to the
development and maintenance of Omni’s syste ms, Omni Hotels, Omni
iManage IT and/or Omni Commercial and Health Care to:
(a) ASV;
(b) Epicode;
(c) Any third party.
[2] Omni are to be directed to institute an action against the respondents for final interdictory
relief of the kind mentioned in paragraph 1 above, as well as any other relief which they
might seek within 15 (fifteen) court days of the granting of this order “the action”.
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[3] The costs of this application be reserved for determination by the trial court in the action,
save in the event of opposition hereto, in which case any party opposing this application is
to make payment of the costs thereof on a scale as between attorney and client, including
the costs of two counsel, where so employed.
[4] The relief sought by Omni against ASV and Bekker was settled prior to the hearing of the
matter. At the commencement of the hearing, the counsel for Omni handed up a draft
order by agreement which I granted marked “X”.
COMMON CAUSE FACTS
The business of Omni
[5] Over the course of 25 years, Omni UK developed software for products and systems
which could be used in the hospitality industry to assist the management of its clients,
thereby resulting in the saving of costs (“ the products ”). The development of these
products came at tremendous cost to Omni UK.
[6] During February 2020, Omni UK introduced these products to South Africa with Omni
SA being licenced to market them to prospective clients.
[7] Omni UK’s ability to progress and develop its software products arose out of its intricate
understanding of the various workflows, traditional bottlenecks and cost -saving
possibilities capable of being achieved by the harnessing of the correct software
processes. The system is now so flexible that it has, in addition to the hospitality industry
and hotels, been used in fleet management, chemical plants, shopping centres, casinos and
game reserves.
The relationship between Omni and Ms Koekemoer
[8] Omni UK and Ms Koekemoer had a history dating back to 2005/2006 when Ms
Koekemoer was a recruiter in the United Kingdom and was employed as a director of a
recruitment company which Omni UK started in 2011.
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[9] In late 2017/early 2018, Mr Riaz Lad ha (“Mr Ladha ”), the deponent to Omni’s
affidavits, visited South Africa at the invitation of a friend , who was a successful hotelier.
During the visit, he was introduced by his friend to the Chief Executive Officer of T sogo
Sun, and through one of his regional managers in London, he was introduced to the
Managing Executive of Bidvest Prestige. The purpose of these meetings was for Mr
Ladha to introduce Omni’s products to the South African market.
[10] The companies were enamoured with the systems and products which Omni UK offered
and ultimately, Mr Ladha concluded contracts for these systems and products to be
supplied to the South African clients by way of a licence agreement.
[11] Pursuant thereto, the South African clients adopted and rolled out the Omni systems
within their supply chain which led to the conclusion of contracts with Afriboom (Pty)
Ltd (“Afriboom”), a specialised cleaning company in the Hospitality, Health care and
Food Hygiene and Contract Cleaning sectors, which had been rendering services to Tsogo
Sun (Afriboom was subsequently acquired by CSG Cleaning). Bidvest is a competitor of
Afriboom with both being outsourced cleaning contract companies. Tsogo Sun/Southern
Sun are clients of either Bidvest or Afriboo m. Hotels that were part of the Bidvest or
Afriboom Group also contracted directly with Omni SA and Omni UK.
[12] Given the impending expansion of the Omni business into South Africa, Mr Ladha
offered Koekemoer the opportunity of handling the South African operations and in return
for her involvement, she was offered 20% shareholding in the South African business and
salary equivalent to her local position. Omni UK subsidised the establishment of Omni
SA and all the costs associated therewith. Ms Koekemoer secured a significant 20%
ownership interest in the business without having to contribute anything.
[13] Ms Koekemoer was the sole director of Omni SA. She was also the company
representative and was responsible for sales, training and support of the systems in South
Africa, as well as managing and liaising with the South African clients.
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[14] Whilst Omni UK provided substantial support, Ms Koekemoer was the de facto face of
Omni SA and was responsible for hiring the trainers and installers who had been trained
by the Omni UK team. She herself was trained in the UK on the Omni systems.
[15] Given the level of responsibility given to Ms Koekemoer, was the primary reason that she
was offered a 20% share of the South African business.
[16] Her responsibilities included that of two staff and two branches in Johannesburg and Cape
Town. She recommended a package of R118 000.00 per month for herself.
[17] From approximately 2018 to 2020, the business of Omni SA was doing well, so much so
that Bidvest, one of Omni SA's largest clients, wanted to introduce the product to certain
banks and, in fact, introduced it to the Peermont Group Hotels. This, in turn, led to
Peermont wanting to use the maintenance module for its entire casino offerings.
[18] Bidvest also wanted to start using the system for health care. Discussions were had about
adapting the system for that purpose. It was then decided to re -develop the system,
leading to the development of Omni Commercial, Facilities and Maintenance and the
rebranding of Omni Clean to become Omni Hotels given that it had new and additional
features.
[19] As the sole director of Omni SA, Ms Koekemoer had fiduciary duties in terms of,
amongst others, sections 76(3)(c) and 76(2)(a) of the Companies Act, 71 of 2008 (“ the
Companies Act, 2008 ”) as well as the common law to act in the company’s best interest
and certainly not in conflict with them.
[20] As part of the position in Omni SA, Ms Koekemoer was also responsible for appointing
employees.
The inter-relationship between Ms Koekemoer and the remaining respondents
ASV
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[21] ASV is a company, whose sole director is the fifth respondent, Mr Jeremias Bekker (“ Mr
Bekker”). Mr Bekker started ASV whilst employed by Omni SA and, after his departure
from Omni SA in February 2023, ASV now directly competes with Omni SA.
[22] According to Omni, Mr Bekker and Ms Koekemoer have been friends for many years and
that is particularly important since Mr Bekker is the director of ASV which is a direct
competitor of Omni SA. The history of how ASV came about and Ms Koekemoer’s
involvement therein is discussed below.
The third and fourth respondents
[23] As regards to the third and fourth respondents, they are Ms Mariette Koorsen (“Ms
Koorsen”) and Mr Gert Koorsen (“Mr Koorsen”) who are married to each other and both
of whom were employed at Omni SA by Ms Koekemoer.
[24] Ms Koorsen is Ms Koekemoer’s sister and Mr Koorsen is Ms Koekemoer’s brother -in-
law.
[25] According to Omni, even though the evidence implicates Mr and Ms Koorsen in having
acted with Ms Koekemoer and Mr Bekker in pursuit of a common purpose, no
interdictory relief is sought against Mr and Mrs Koorsen.
[26] Regarding Mr Koorsen's knowledge and expertise and experience, Mr Koorsen himself
provided no information regarding this. T he information provided in respect of Mr
Koorsen comes from Ms Koekemoer and Mr Bekker and is somewhat contradictory in
that:
[26.1] According to Ms Koekemoer, Mr Koorsen has no knowledge of computer
engineering or software coding or any other skills to steal information from Omni
but this notwithstanding, he was able to tailor -make programs for Epicode to suit
clients’ needs and that this can be written in 2 – 3 days.
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[26.2] Mr Bekker, on the other hand, states that Mr Koorsen worked for ASV as the head
of development.
Epicode
[27] Regarding Epicode, this company was registered on 1 November 2023 but had been in
existence as a shelf company since 2 August 2023 . The director of Epicode is Ms
Koekemoer’s husband, Mr Leon Koekemoer and Mr Koorsen.
FACTS WHICH APPEAR TO BE DISPUTED
[28] The facts hereunder appear to be disputed but the admissions made by Ms Koekemoer
render them common cause.
[29] According to Omni, Epicode is being used by Ms Koekemoer and the other respondents
as a front to conduct ASV’s business , alternatively to frustrate the Omni SA and Omni
UK in their pursuit of the relief sought in this application and that whilst Ms Koekemoer
holds herself out to be a representative of Epicode and has recorded that Epicode is a
competitor of ASV, this is not true.
[30] According to Omni, Epicode is peddling ASV’s software and unlawfully competing with
Omni.
[31] It transpired that all of the employees of Omni SA were family and friends of Ms
Koekemoer with whom she had a close relationship.
[32] Omni UK’s Chief Operating Officer (“COO”), Ms Michelle Daniels (“Ms Daniels”) also
informed Mr Ladha that the salaries being paid in South Africa as per Ms Koekemoer’s
recommendation to Mr Ladha when she first joined Omni SA was 30% higher than the
market-related costs for such salaries
[33] Subsequent to Mr Ladha confronting Ms Koekemoer about th is, she effectively reduced
all the respondents’ salaries by approximately 30%.
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[34] This culminated in Mr Koorsen leaving Omni SA at the beginning of 2023; Mr Bekker
resigning in or about February 2023.
[35] Ms Koorsen’s employment was terminated on 21 September 2023 as a result of her
working for ASV at the same time that she was working for and being paid by Omni SA.
Details of which Ms Koekemoer denies having any knowledge of.
[36] According to Ms Koekemoer, Mr Koorsen was forced to leave after Mr Ladha instructed
her to stop all casual payments at the end of January 202 3. He accordingly stopped being
a casual for Omni SA at the beginning of February 202 3; Mr Bekker left the employ of
Omni SA at the end of March 2023 and Ms Koorsen was summarily fired on 21
September 2023. Ms Koekemoer denied that Ms Koorsen was ever employed by ASV.
The decline of Omni SA and the investigation that pursued
[37] According to Omni, i n early 2020, during the advent of the Coronavirus outbreak due to
the severe restrictions that adversely affected both tourism and travel, as well as the
hospitality industry, many of Omni SA's clients were affected. Omni SA reached
agreements with these clients to suspend their services and their obligations during the
pandemic notwithstanding the contractual provisions that Omni SA might otherwise have
been entitled to enforce.
[38] Omni UK utilised the pandemic and lockdown period to develop Omni Commercial
Health Care and Maintenance in order that it could provide a full suite of modules, as well
as fine tune the health care offering particularly for Bidvest.
[39] As the effects of the COVID pandemic started to subside, Ms Koekemoer started raising
what Omni alleges to be spurious concerns about Omni systems and products, the services
which Omni SA was offering. These included, inter alia, the following:
[39.1] That the mobile phones which had been rolled out to customers were deficient,
this notwithstanding that Ms Koekemoer had been the one responsible for
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selecting the mobile devices because the Omni systems have never been unable to
operate on mobile devices;
[39.2] That Omni SA clients’ staff were unable to use the mobile devices, although it was
Ms Koekemoer and her team’s job to ensure that the training on the system of
adequate as part of Omni SA's obligations to its client;
[39.3] That load shedding was crippling the business because the networks were
allegedly being lost, with Omni SA’s clients losing data as a result. After
investigation, this turned out to be false given that all mobile phones work on SIM
cards that would automatically save the relevant information to the hosted served.
She also complained that there was no “offline capability” on the Omni SA system
which was problematic.
[39.3.1] According to Omni, Ms Koekemoer’s complaints regarding offline
capabilities and loadshedding were simply wrong. Ms Koekemoer was
offered the opportunity to prioritise the offline development over other
development requirements but she specifically requested that other
development requirements be prioritised over offline development.
[39.3.2] This was despite Ms Daniels given indications that offline functionality
development could be prioritised over OHIP functionality especially if
load shedding had been as detrimental as alleged.
[39.3.3] No explanation was provided by Ms Koekemoer for why she declined
the offer to prioritise the offline issue as this clearly required top
priority.
[39.3.4] Ms Koekemoer admitted that she asked for OHIP to take precedence as
there was big contract that they needed to retain but that she had been
insisting for years that the offline capabilities must be addressed.
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[39.3.5] In fact, in Ms Koekemoer’s answering affidavit and during oral
arguments, she stated as one of the major reasons for referring work to
ASV, as being the fact that Omni products do not have an “ offline
capability”.
[39.3.6] At no stage did she mention during the course of her argument that Ms
Koekemoer was offered the opportunity to address the offline
capabilities as a priority, which she declined.
[39.3.7] Ms Koekemoer saw it fit to refer client s to ASV simply because they
had offline capabilities when she was well aware that Omni SA was
capable of developing offline capabilities for its products but she has not
explained why she refused this offer.
[39.4] Omni’s clients had complained that the company’s prices were too high and when
she was encouraged to offer her clients a free trial and to negotiate with the clients
in relation to pricing, rather than losing the client or prospective business, she
failed to do so.
[39.5] She insisted that “extra reporting requirements” were necessary. She complained
Mr Ladha did not fully understand as the systems are capable of generating 100
different types of reports. According to Ms Koekemoer, Omni’s clients were not
willing to log on to see the reports, but instead required weekly summaries.
[39.5.1] According to Omni, it transpired that Ms Koekemoer and her team had
not been attending to supplying Omni’s clients with proper training
despite numerous requests by the clients and reporting required and it
was for this reason that the clients were unaware of the systems
reporting functionality.
The outcome of the investigation that led to the resignation of Ms Koekemoer
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[40] Omni contends that on or about 21 September 2023, developments regarding the
respondents and their conduct came to their attention. These primarily related to two of
Omni SA’s clients:
[40.1] Kievits Kroon Wine Estate (Pty) Ltd and Mr Wayne Hill, previously of Bidvest
and more recently the PPLE Group.
The formation of ASV
[41] Omni contends that s ubsequent to the recent developments of 21 September 20 23, it
conducted an investigation into Ms Koekemoer which led to the discovery that Ms
Koekemoer and the respondents had:
[41.1] Stolen Omni’s company proprietary information;
[41.2] Used same to establish ASV which was simply a shelf company, and peddle to the
public what they represented to be a product and system which ASV developed
which was Omni SA’s products; and
[41.3] On that basis, wrongfully and unlawfully diverted Omni’s customers to ASV to
the detriment of Omni.
[42] According to Omni:
[42.1] Further investigations showed that ASV had been established by erstwhile
employees of Omni SA being Mr Bekker, Ms Koorsen and Mr Koorsen in 2021
whilst they were employed by Omni SA. The systems and product s which ASV
offered to its clients is either identical or substantially similar to that of Omni SA,
with such systems and product offerings which had been developed by Omni UK
and Omni SA over an extended period of time and at great costs;
[42.2] Ms Koekemoer, Ms Koorsen, Mr Koorsen and Mr Bekker, all of whom were
employed by Omni SA, wrongfully, unlawfully and intentionally (while acting in
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concert and/or with a common purpose) utilised the proprietary information and
know-how which they acquired while employed at Omni SA to:
[42.2.1] Copy its system and product offering;
[42.2.2] Establish ASV and Epicode while Ms Koekemoer was a director and
employee of Omni SA and the others employed by it; and
[42.2.3] Divert Omni SA’s customers to ASV so that they could use the former
as a springboard to launch the latter as a direct competitor in the market.
Simply put, what Ms Koekemoer and the respondents did constituted
unlawful competition which had to be stopped by way of this urgent
application.
[42.3] Ms Koekemoer breached her fiduciary duties and failed to act in the best interest
of the company but rather she acted in conflict with Omni SA. They allege further
that the respondents had the same obligations to Omni SA because they were
employees of the company.
[42.4] Ms Koekemoer’s conduct constituted a breach of confidence as contemplated in
section 213 of the Companies Act, 2008 in that, while she was a director, and thus
carrying out a function under the Companies Act, she disclosed confidential
information to Mr Bekker at ASV and permitted ASV to access such information.
This also constitutes a criminal offence as contemplated in section 216 of the
Companies Act, 2008.
[43] Ms Koekemoer, in her answering affidavit, denies having played any part in ASV at all,
be it unlawfully misappropriating Omni SA’s clients or deliberately causing Omni SA to
overcharge its clients and short servicing them to a degree that drove the clients away and
simply directed them to ASV as a substitute.
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[44] She states categorically that she never directed any of Omni SA’s clients to ASV, but that
on two occasions she did refer clients to ASV:
[44.1] First, she was contacted by a cancelled client asking whether Omni SA had
obtained offline functionality to which she informed them that it had not and in
that instance, she referred that client to ASV;
[44.2] Second, she was contacted by one Ms Adele Esterhuizen of Tsebo who had a
similar enquiry as they were previously using Omni SA’s software on a different
site. Ms Esterhui zen apparently c ould not continue with the Omni product now
that Tsebo had taken over Kievits Kroon . In this case, she again referred Kievits
Kroon to ASV.
[45] According to Omni, the following transpired with regards to Kievits Kroon:
[45.1] That Omni SA had an association with Kievits Kroon and contracted with
Afriboom ( previously o wned by CSG Holdings Ltd), to outsource cleaning
services, and Omni SA was rendering services to Afriboom.
[45.2] On or about 15 September 2021, Kievits Kroon terminated its outsourcing
agreement with Afriboom. According to Ms Koekemoer, the reason for this was
because Kievits Kroon had not paid Afriboom an amount of R1.2 million.
[45.3] The Tsebo Group took over as the contract cleaners and at the time, Ms
Koekemoer recommended the ASV software to management at Kievits Kroon.
[45.4] Unbeknownst to Omni, by 19 August 2021, Ms Koekemoer was already acting on
behalf of ASV and engaging in negotiations with Kievits Kroon, represented by
Mr Francois Stemmelaar in order to secure a contract between ASV and Kievits
Kroon.
[45.5] In terms of the e -mails exchanged between Ms Koekemoer and Francois
Stemmelaar, which e -mails contained ASV’s signature, it was clear that Ms
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Koekemoer was securing contracts for ASV instead of Omni SA. This was not
denied by Ms Koekemoer.
[45.6] On 11 October 2021, the abovementioned negotiations between Ms Koekemoer
and Mr Stemmelaar culminated in a licence agreement being signed between ASV
and Kievits Kroon on 3 February 2022, duly signed by Ms Koekemoer.
[45.7] The Word version of the licence agreement sent by Ms Koekemoer included a crib
of the Omni SA licence agreement . Ms Koekemoer’s deni ed that she was ever
employed by ASV and yet, she signed the licence agreement between ASV and
Kievits Kroon for and on behalf of ASV.
[45.8] In her answering affidavit, she admits that she signed the contract on request of Mr
Bekker as he was out of town, but denies that she ever held herself out to be a
director of ASV and never meant to bind herself as such. She also denied that the
ASV licencing agreement was a mirror image of the Omni SA licencing
agreement, despite the fact that the wording of the two licencing agreements are
exactly the same . She also then contends that since no proper power of attorney
was given to her to act on behalf of ASV, the agreement was null and void.
[45.9] In Mr Bekker’s answering affidavit, he states that he was not aware of Ms
Koekemoer ever holding herself out to be a director of ASV and that it was for her
to explain. He states further that on a few occasions he asked Ms Koekemoer to
send an e -mail when he was out of town, that is all. As regards the licence
agreement, she states that he and ASV were not responsible for this document.
[45.10] By September 2023, according to Omni, ASV was failing to provide an efficient
service to Kievits Kroon making them more disgruntled. Neither Ms Koekemoer
nor any other representatives of ASV were responding to Kievits Kroon’s
complaints satisfactorily and this was told to Mr Ladha by Mr Stemmelaar
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himself. What was significant was that Mr Stemmelaar was directing his
complaints to Ms Koekemoer as he believed that she representing ASV.
[45.11] In an e -mail dated 20 September 2023, whilst Ms Koekemoer was still in the
employ of Omni SA and its sole director, she addressed an e -mail from Omni
Software Solutions e-mail address to Mr Stemmelaar advising that:
“Please note Elmarie is with ASV and no longer with Omni. This is Omni’s e-
mail address and no longer applicable to this contract. Please delete this e -
mail address on your side and update and use software[…].
Kind regards
Elmarie Koekemoer” (Emphasis added)
[45.12] Ms Koekemoer’s response to this was that Mr Stemmelaar’s had the mistaken
impression that Ms Koekemoer was employed by ASV and he had emailed her a
few times on her work e -mail address at Omni . She decided that she had had it
with Mr Stemmelaar and sent him the e -mail in an attempt to get him to contact
ASV and leave her alone. This response does not make sense. Had Ms
Koekemoer wanted to get M r Stemmelaar off her back, one would think that her
email would have read along the lines that: “I work for Omni. Kindly contact
someone as ASV for assistance.”
The PPLE Group
[46] According to Mr Ladha:
[46.1] On 5 October 2023, he received an e -mail from Mr Wayne Hill who was a
customer of Omni SA , the PPLE Group , wherein he enquired as to whether
everything was in order and whether Omni SA was continuing its presence in
South Africa. He did so because he informed Mr Ladha that Ms Koekemoer was
“onto something else” and that Mr Ladha did not know;
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[46.2] He immediately contacted Mr Hill to obtain clarity on the issue and it appeared
that during or about August and September 2023, Ms Koekemoer, writing from an
e-mail address software[…] a had approached Mr Hill on behalf of ASV with a
view to appropriating PPLE as a client for ASV.
[47] Ms Koekemoer admits the contents of the e -mail thread between Mr Hill and herself
wherein, she presents as a representative of ASV advising Mr Hill that she was keen to
meet with him in order to present ASV’s software. The systems and functionality which
Ms Koekemoer was offering to PPLE on behalf of ASV pertained to all of those company
operations Omni SA was already servicing and which included, inter alia, time and
attendance, stock take, purchase orders, fleet management, audit systems, asset
management, health and safety, housekeeping and hygiene management.
[48] According to Omni, Ms Koekemoer made no effort to conceal her involvement with ASV
during the entire time that she was the sole director and an employee of Omni SA. This
constituted a breach of the fiduciary duties which she owed to Omni SA in terms of the
Companies Act, 2008.
[49] Pursuant to further investigations conducted by Omni, the following transpired during
October 2023:
[49.1] Mr Bekker is the director of ASV;
[49.2] Ms Koorsen is involved in installations and support in respect of ASV’s product
offering (while she was still employed with Omni SA) as evidenced by e -mails
from Ms Koekemoer;
[49.3] Mr Koorsen was now Head of Development for ASV;
[49.4] That the ASV product s functionality mirrored the Omni SA products
functionality;
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[49.5] Ms Koekemoer was involved in the establishment and running of ASV whilst
being a director of Omni SA as evidenced by:
[49.5.1] An invoice in respect of purchases for ASV relating to server services;
[49.5.2] An invoice in respect of Technomobi SIM cards;
[49.5.3] An e -mail between Ms Koekemoer and Euro Cape in relation to
enquiries from a client regarding adding functionality and in respect of
which Ms Koekemoer indicates that the client should contact Mr
Bekker;
[49.5.4] In an e -mail dated 29 August 2023, M r Koorsen sent Ms Koekemoer a
copy of a report obtained from the Omni system 6 months after he had
left Omni SA, that this evidence is that Mr Koorsen is clearly accessing
the Omni systems using Ms Koekemoer’s login details whilst working
for ASV as Head of Development.
[50] Ms Koekemoer admits that Mr Bekker is the director of ASV but denies that Mr Koorsen
was previously employed by ASV, and states that he is a director and the developer at
Epicode. This differs from what Mr Bekker says about Mr Koorsen. According to Mr
Bekker, Mr Koorsen was the head of development at ASV and despite now being a
director of Epicode, he “presently” does freelance work for ASV.
[51] Ms Koekemoer denies being involved in the establishment of ASV whilst being a director
of Omni SA , even though the dates of the establishment of ASV , the signing of the
licencing agreement with Kievits Kroon and the e -mails sent to Mr Hill trying to solicit
him as a client, all occurred during the tenure of Ms Koekemoer as the sole director of
Omni SA.
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[52] Ms Koekemoer also admits to paying the Vox accounts as Omni SA paid for fibre for Ms
Koorsen as she was working from home. However, the Vox accounts and the SIM card
orders were made out to ASV, not Omni SA.
[53] As regards to the e -mail dated 29 August 2023 from Mr Koorsen to Ms Koekemoer
attaching a report obtained from the Omni system, according to Ms Koekemoer this was
in fact Ms Koorsen sending her the document from Mr Koorsen’s previous Omni SA e -
mail address.
[54] Omni provided further information and evidence in the form of e -mails which show that
ASV had also poached Holiday Inn, Rosebank which was a client of Omni SA and which
was now a client of ASV.
[55] In Omni’s replying affidavit, Omni sets out further examples that date back from as far as
14 January 2021 with Ms Koekemoer’s involvement with ASV and which includes
meeting invitations from Mr Bekker to Omni’s clients like Topturf and Euro Cape with
the intention of poaching them where Ms Koekemoer was invited to these meetings.
[56] Even though Ms Koekemoer denies ever attending these meetings, the issue that arises
here is why was she being invited to these meetings in the first place when she was the
director of Omni SA. Ms Koekemoer does not seem to have provided any explanation for
this.
[57] Omni alleges that at the time when Ms Koekemoer had resigned as a director and an
employee and was put on notice, she was required to do a handover to one Mr Maharaj
Dees of Omni UK.
[58] During the course of the investigation subsequent to Ms Koekemoer’s resignation, Omni
found an e-mail where Ms Koekemoer had e -mailed from her work e -mail address to her
private e -mail address, all personal details and confidential information including
customer details and client lists of Omni SA to herself.
20
[59] Ms Koekemoer’s reply to this , in her fourth set of affidavits to this allegation, was as
follows:
“In my messages whilst compiling the handover I informed Maharaj that I
am using 2 PC’s and that I am e -mailing documents between my work and
my personal e-mail.”
[60] She makes reference to a WhatsApp message that she forwarded to Mr Maharaj and if
regard is had to the WhatsApp message, it states the following:
“Working on two PCs to include Annelie’s details also so you have details
that the support team used before, because quicker to search and type
through masses of info from any e -mail, Annelie’s PC and Mariette who
feeds info to so you will see that I forward from my personal email some stuff
and work e-mail to. Hope it is ok.” (Emphasis added)
[61] The submission made by Ms Koekemoer’s counsel regarding these averments is that
because Ms Koekemoer was working off two PCs, she had to forward her work e -mails to
her personal e-mails in order to compile a report for handover.
[62] This is not what the first respondent states in either her fourth affidavit or her WhatsApp
message to Mr Maharaj. What she does say to Mr Maharaj is that she will forward e -
mails to him from both her personal e -mail and her work e -mail since she has to collate
information from Annelie and Mariette as well.
[63] The submission made by Ms Koekemoer’s counsel in this regard was therefore inaccurate
and differed toto caelo from what is in fact stated by the first respondent under oath.
[64] According to Omni, while Ms Koekemoer denies having played any part in ASV
unlawfully misappropriating Omni SA’s clients, she also deliberately caused Omni SA to
overcharge its clients in breach of the price ranges adopted by the company and then
following that through by short servicing them to such a degree that she drove the clients
away and simply directed them to ASV as a substitute.
[65] Ms Koekemoer denies these allegations but provides no explanation for her actions
suffice to say that she always acted in the best interests of Omni SA.
21
[66] According to Omni, Ms Koekemoer and the respondents were:
[66.1] Stealing from Omni SA and Omni UK information and know -how necessary to
create a product for ASV and establishing ASV as a competitor;
[66.2] Product offering and diverting clients from Omni SA to ASV;
[66.3] Failing to service Omni SA clients in order that they would become frustrated and
then recommending such clients that they utilise ASV.
[67] Ms Koekemoer again denies these allegations.
[68] She avers that:
[68.1] Ms Koorsen was never the head trainer and installer at Omni SA but rather the
trainer and installer support.
[68.2] Mr Koorsen has no knowledge of computer engineering, software coding or any
other skills to steal information from Omni SA. He was merely a casual installing
the software on the devices and handing these over to the customers.
[68.3] Mr Bekker, on the other hand, appointed Mr Koorsen a s head of development at
ASV.
[68.4] During argument, Ms Koekemoer’s counsel was at pains to explain that there was
no reason for any of Omni’s staff to ever access the Redmine digital platform as
they were not developers of any products and that Omni SA essentially signed the
licence agreement between Omni SA and the client, provided the mobile phone
with the application and trained the clients on how to use the product.
[68.5] She mentioned that the Tuesday meetings were development meetings and that
except for one occasion where Mr Bekker attended, none of the other respondents
were ever at these Tuesday meetings.
22
[68.6] In argument, Ms Koekemoer’s counsel also stated that the product that ASV and
Epicode sell is different to the product that Omni sells in that they sell a bespoke
application that is specifically designed for the needs of a particular client , each
application is unique to the client’s needs and they have offline connectivity. What
is not explained is why ASV used the exact same licensing agreement as Omni if
their product was so different to that of Omni.
The relief sought against Epicode
[69] Ms Koekemoer contended that nowhere in the founding affidavit does Omni make out a
case against Epicode and that this arises for the first time in the replying affidavit.
[70] According to Omni, Epicode started after the resignation of Ms Koekemoer.
[71] In addition to what Omni says about Epicode in its description of Epicode as the sixth
respondent, Omni also contends that b oth ASV and Epicode have appropriated Omni’s
clients and that there exists a risk that Omni will, prospectively, lose more, if not all, their
clients if Ms Koekemoer and the respondents are permitted to continue in the manner as
they have been.
[72] What is not contested is that Mr Pieter van der Westhuisen of Afriboom became a close
friend of Ms Koekemoer over the years while she was at Omni SA and when Afriboom
was a client of Omni SA.
[73] As for the Capital Group, four days after Ms Koekemoer left Omni SA, there is an email
trail confirming that the Capital Group will be transferring to Epicode and Ms Koekemoer
reverting with dates. Omni contends that it is inconceivable that such preparation only
commenced after Ms Koekemoer left Omni and that this must have started whils t she was
still at Omni SA. Ms Koekemoer has not denied this in her fourth set of affidavits.
23
[74] Ms Koekemoer admits that Afriboom and the Capital Group are now clients of Epicode.
She, however, denies approaching these clients and contends that the clients approached
her after she left Omni.
[75] Omni, on the other hand, contends that notwithstanding the undertaking which Ms
Koekemoer gave in terms of which she undertook not to approach the clients of Omni SA
and Omni UK, that she proceeded to do just that and that is how Epicode landed both
Afriboom and the Capital Group as clients. According to Omni, Ms Koekemoer had
approached both of these whilst she was employed with Omni SA.
ISSUES TO BE DETERMINED
[76] The issue in dispute is whether Omni SA and Omni UK have satisfied the requirements
for an interim interdict against Ms Koekemoer and Epicode arising from unlawful
competition perpetrated by way of:
[76.1] Using confidential and proprietary information belonging to Omni;
[76.2] Approaching and soliciting Omni’s clients in South Africa and the United
Kingdom; and
[76.3] Passing off the products, systems and/or services offered by Koekemoer and
Epicode as being those of Omni and/or as being related to and/or affiliated with
Omni.
The Undertaking
[77] Ms Koekemoer provided Omni with essentially two undertakings:
[77.1] On 10 October 2023, Ms Koekemoer gave Omni an undertaking that she will
henceforth:
[77.1.1] no longer hold herself out as a director or employee or representative of
Omni nor do anything to damage or impair their reputation;
24
[77.1.2] not hold herself out as a representative of ASV, nor pass off ASV nor
allow ASV to be passed as an entity associated with Omni or otherwise
associate herself with ASV;
[77.1.3] return to the company the laptops, cellular phones and tablet computer
belonging to Omni as soon as all of the same was received by her via
courier.
[77.2] In her answering affidavit, Ms Koekemoer, under oath, in both her personal
capacity and on behalf of Epicode, undertook to not approach any of Omni's
clients in South Africa or the United Kingdom.
[78] According to the Omni:
[78.1] They are satisfied with the undertaking by Ms Koekemoer, in her answering
affidavit in her personal capacity and on behalf of Epicode that she will not
approach any of Omni SA or Omni UK clients;
[78.2] They are not satisfied that the undertaking is insufficient insofar as passing off is
concerned and they seek all the relief in the notice of motion as set out above.
LEGAL FRAMEWORK
Unlawful competition
[79] It is settled law that unlawful competition gives rise to two causes of action, namely a
delictual claim for damages and/or a claim for interdictory relief; and the applicant is
obviously at large to pursue those remedies against the respondents if so minded. In this
regard, the locus classicus on the remedies available in cases of unlawful competition is
Dun and Bradst reet (Pty) Ltd v SA Merchants Combined Credit Bureau 1, where the
court stated the following:
1 1968 (1) SA 209 (C) at 221C-H
25
“Reverting to the position in our law and without attempting to define generally
the limits of lawful competition, it seems to me that where, as in this case, a trader
has by the exercise of his skill and labour compiled information which he distributes
to his clients upon a confidential basis (i.e. upon the basis that the information
should not be disclosed to others), a rival trader who is not a client but in some
manner obtains this information and, well knowing its nature and the basis upon
which it was distributed, uses it in his competing business and thereby injuring the
first mentioned trader in his business, commits a wrongful act vis -à-vis the latter
and will be liable to him in damages . In an appropriate case, the plaintiff trader
would also be entitled to claim an interdict against the continuation of such
wrongful conduct.
The fact that the information is distributed in a confidential basis to a limited class
of people prevents it from becoming public property capable of being used or
imitated by rival traders . In such circumstances, the conduct of a rival trader who
obtains and, well knowing the position, uses the information to advance his own
business interests and activities amounts to a deliberate misappropriation of the
products of another's skill and labour. Such conduct must, in my view, be regarded
as dishonest and as constituting a fraud Upon the compiler of the information ”
[emphasis added]”
Using confidential and proprietary information belonging to Omni
[80] One of the main issues for determination in this matter is whether the information which
Ms Koekemoer, Mr Koorsen, Ms Koorsen and Mr Bekker were all privy to whilst being
employed with Omni SA constituted confidential information and whether they all, in
particular, Ms Koekemoer, used it even after h er resignation in order to promote the
business of Epicode to the detriment of Omni’s business, then that would constitute
unlawful competition.
[81] According to Omni, its confidential information comprised of client lists, pricing
information and Omni’s databases (“confidential information”).
[82] In Cambridge Plan AG and Another v Moore and Others2, the court held as follows:
“There is authority that a party to a fiduciary relationship may not make a list of
customers during the currency of their relationship for the purpose of using it to the
detriment of the other party after the relationship has been terminated. In Pelunsky &
Co. v Teron 1913 WLD 34, the defendant when he knew he was going to leave the
plaintiffs employee, took a copy of a list of customers for use in a business he was
setting up for himself. In awarding damages against him, the court extracted the
principle from the English decisions that:
‘Speaking generally, a servant is not entitled to use information which he gained in
his masters employment in any way inconsistent with good faith. This applies to
information which he has honestly acquired during the course of the service on his
2 1987 (4) SA 821 (D) at 846C
26
master's behalf -a fortiori it applies to information acquired from his master in the
course of his employment without his master's knowledge.’
This message was quoted with approval in Coolair Ventilator Co SA (Pty) Ltd v
Liebenberg & Another 1967 (1) SA 686 (W) at 690.”
[83] Legitimate competition in trade normally entails infringement of a competitor’s right to
goodwill3. It is only when the infringement is regarded as wrongful that we talk of
unlawful competition. Filching confidential information of a trader to promote the
interests of another to his prejudice , is one of the instances that are recognised by our law
as unlawful competition, a nd that trader needs no restraint of trade contract to obtain
protection against such unlawful conduct. The position was put as follows in Easyfind
International v Instaplan Holdings4:
“What is clearly established in our law is that it is unlawful for a servant to take his
master’s confidential information or documents and use them to compete with the
master.”
[84] Confidential information is, broadly speaking, information that is meant for the exclusive
use of a trader and circulates within the confines of such trader’s business. It is not
readily available to the public or, as it is generally expressed, it is not public knowledge.
The position was stated as follows in Van Castricum v Theunissen and Another5, where
the court held that:
“The information must have the necessary quality of confidence about it, namely it must
not be something which is public property and public knowledge.”
[85] Whether the requirements for confidentiality have been met is an issue to be decided with
reference to the facts of the particular case. But there are certain factors that would point
to the confidential nature of the information. Usefulness to a rival is one such factor in
the sense that the information would give him/her an advantage over the trader from
whom the information comes. The presumption of confidentiality would be even stronger
3 Neethling, Potgieter and Visser, Law of Delict at p.316 refers to this as factual infringement
4 1983 (3) SA 917 (W) at 927D. See also Coolair Ventilators (supra)
5 1993 (2) SA 726 (T) at 730H
27
where an employer’s information divulged by his/her employee has in fact been used by a
rival to the detriment of the employer6.
[86] Our law also recognises certain categories of information or documents as being of a
confidential nature.
[87] A customer’s list is one such type of document 7. In Easyfind (supra)8, it is categorically
stated:
“Customer lists certainly are confidential information.”
[88] There is also no evidence at all pertaining to the:
[88.1] The amount of money that Epicode spent in order to develop its product;
[88.2] Who assisted Epicode to develop its product;
[88.3] Ownership of its software;
[88.4] The functionality of its software and the product; and
[88.5] How Epicode managed to develop this product when until at least November
2023, it was a dormant company.
[89] From the facts as set out above:
[89.1] It is clear that Ms Koekemoer and Mr Koorsen were all involved in filching
Omni’s client lists and also utilising Omni’s Licencing Agreement, somewhat
shamelessly, and then denying that it was the same document and that it was, in
any event, not confidential.
[89.2] It is clea r that the argument by the counsel for Ms Koekemoer and Epicode, that
Epicode is not a competitor of Omni is, to put it mildly, devoid of any merit and
can be summarily dismissed.
6 Coolair Ventilators (supra) at 689F-H
7 Van Heerden & Neethling, Unlawful Competition at p.227 specifically lists a customer’s list as such
8 At 929D
28
[90] Epicode clearly competes with Omni in terms of the products that were developed by
Omni at great expense. Ms Koekemoer’s evidence regarding the development of
Epicode’s products is very unclear, unsubstantiated by Mr Koorsen himself and is
contradictory to that of Mr Bekker particularly in relation to Mr Koorsen’s abilities.
Passing off of Epicode products as that of Omni
[91] I agree with Omni’s submission that g iven the fact that Ms Koekemoer has always been
the “face” of Omni SA, it can be accepted that the two clients which Epicode solicited
from Omni, were lured with Epicode’s product being passed off as that of Omni
alternatively that such product is affiliated with Omni.
[92] Ms Koeke moer’s contentions that two of Omni’s clients came to Epicode of their own
accord and were not lured by her, is somewhat difficult to digest, given her previous
conduct with ASV and her display of the same conduct in favour of Epicode to the
detriment of Omni . What is clear is that whilst she was the sole director of Omni, she
referred Omni’s clients to ASV and that she is still actively lur ing away Omni’s clients
with products supplied by Epicode.
Solicitation of Omni’s clients
[93] In light of Ms Koekemoer’s undertaking in this regard, it is not necessary to address the
legal principles pertaining to solicitation of clients as an act of unlawful competition.
Suffice to say that the facts above explain why Ms Koekemoer gave the undertaking.
The requirements for an interim interdict and whether Omni has satisfied these
requirements
[94] The relief sought by Omni is analogous to that of a temporary interdict, which requires
Omni to show that:
29
[94.1] The right which is the subject matter of the main action and which they seek to
protect is a clear or alternatively prima facie right established though open to some
doubt;
[94.2] The right is only prima facie established, that there is a well -grounded
apprehension of irreparable harm to Omni if the interim relief is not granted, and
they ultimately succeed in establishing their rights;
[94.3] That the balance of convenience favours granting Omni the interim relief; and
[94.4] That Omni has no other satisfactory remedy.
[95] The court must take into account the allegations made by Omni, as well as Ms
Koekemoer in respect of herself and Epicode in deciding whether a prima facie right has,
in fact, been established by Omni. It is not sufficient that Omni has in its affidavits made
out a prima facie case.
[96] In Webster v Mitchell 9, Clayden , J set out the following approach which has been
followed by our courts for more than 70 years:
“The use of the phrase 'prima facie established though open to some doubt '
indicates I think that more is required than merely to look at the allegations of the
applicant, but something short of a weighing up of the probabilities of conflicting
versions is required. The proper manner of approach I consider is to take the facts
as set out by the applicant, together with any facts set out by the respondent which
the applicant cannot dispute, and to consider whether, having regard to the inherent
probabilities, the applicant could on those facts obtain final relief at a trial. The
facts set up in contradiction by the respondent should then be considered. If serious
doubt is thrown on the case of the applicant, he could not succeed in obtaining
temporary relief, for his prima facie right established, may only be open to 'some
doubt'. But if there is mere contradiction, or unconvincing explanation, the matter
should be left to trial and the right be protected in the meanwhile, subject of course
to the respective prejudice in the grant or refusal of interim relief.”
[97] In Olympic Passenger Services (Pty) Ltd v Ramlagan 10, the court succinctly set out the
position in relation to the granting of interim interdicts as follows:
9 1948 (1) SA 1186 (W) at 1189
10 1957 (2) SA 382 (D) at 383C-G
30
“It thus appears that where the applicant's right is clear, and the other requisites
are present, no difficulty presents itself about granting an interdict. At the other end
of the scale, where his prospects of ultimate success are nil, obviously the Court will
refuse an interdict. Between those two extremes fall the intermediate cases in which,
on the papers as a whole, the applicants' prospects of ultimate success may range
all the way from strong to weak. The expression 'prima facie established though
open to some doubt' seems to me a brilliantly apt classification of these cases. In
such cases, upon proof of a well -grounded apprehension of irreparable harm, and
there being no adequate remedy, the Court may grant an interdict — it has a
discretion, to be exercised judicially upon a consideration of all the facts . Usually
this will resolve itself into a nice consideration of the prospects of success and the
balance of convenience — the stronger the prospects of success, the less need for
such balance to favour the applicant: the weaker the prospects of success, the
greater the need for the balance of convenience to favour him. I need hardly add
that by balance of convenience is meant the prejudice to the applicant if the interdict
be refused, weighed against the prejudice to the respondent if it be granted.”
Application of the legal principles to the facts
[98] It has been laid down that for competition to become unlawful it must infringe upon a
legal norm. That norm is the legal convictions of the community, also referred to as the
boni mores or public policy.
[99] There are certain categories of competition that the Courts have classified as being contra
bonos mores or offensive to the convictions of the community and therefore amount to
unlawful competition.
[100] The filching of confidential information b y an employee or ex -employee to be used to
harm the business interests of the employer, is one such instance.
[101] It is clear that whilst in the employ of Omni SA , Ms Koekemoer engaged in unlawful
competition with Omni in favour of ASV and th at Omni was entitled to stop such
activities, inter alia , with an interdict had it come to its attention sooner than October
2023.
[102] Should Omni now be denied an interim interdict simply because Ms Koekemoer is no
longer its employee, especially given the facts in this matter?
[103] What Ms Koekemoer did was abuse her position as the sole director of Omni SA, to build
two rival businesses, ASV and Epicode, and as soon as she was caught and suspended ,
31
she tendered her resignation and even then, during the handover, she continued to filch
Omni’s confidential information, with the intention of taking Omni’s clients with her.
[104] In my view, that is by all accounts morally reprehensible conduct that the trading
community would frown upon. It is certainly unfair and dishonest practice that cannot be
tolerated. Ms Koekemoer was employed precisely to bring in clients for Omni SA, which
is not denied, but she did exactly the opposite.
[105] She was paid a rather handsome salary for doing her job as an employee of Omni SA and
was even given additional incentive in the form of a 20% share in Omni without any
financial investment by her.
[106] Once the clients were brought on board, they became the clients of Omni and Ms
Koekemoer was not and is not entitled to lure them as if they are her personal property by
using Omni’s confidential information to do so , for the purposes of building Epicode’s
business.
[107] It is not only the fact that Ms Koekemoer has been filching confidential information prior
to her resignation and during the hand -over phase or canvassing the clients after her
resignation that taints h er conduct. What does taint her conduct i s that she abused her
relationship of trust with Omni in order to initiate this process of luring away the clients
by using Omni’s confidential information.
[108] And this notwithstanding, she wants to be free to complete that illegitimate process from
outside. This kind of conduct serves to le gitimise unlawful conduct and cannot be
countenanced.
Whether Omni has established a prima facie right
[109] The facts set out above confirm that Omni has at least established a prima facie right for
the relief that it seeks.
32
[110] The unlawful conduct of Ms Koekemoer and Epicode as set out above is gravely
prejudicial to Omni.
[111] Omni developed the information for its products over a period of 25 years and spent
millions of Pound Sterling to develop these products and Ms Koekemoer, in her capacity
as the sole director, usurped that information, in concert with the ex-employees of Omni
who now own Omni’s rival companies, ASV and Epicode.
[112] The very fact that clients left Omni to contract with ASV initially and now Epicode for
the same product for which they initially contracted with Omni, is sufficient evidence for
showing that the products that ASV and Epicode are advertising, come directly from the
information utilised to create the Omni’s products.
Well-grounded apprehension of harm and balance of convenience
[113] It is clear from the facts set out above that Ms Koekemoer has been openly soliciting Omni’s
clients and has been successful in luring at least two major clients being Afriboom and the
Capital Group.
[114] Prior to the formation of Epicode and whil st she was the sole director and employee of
Omni, she also openly referred Omni’s clients and new potential Omni clients to ASV
instead of Omni, in clear breach of her fiduciary duties to Omni.
[115] In light of the above, it is clear that Omni’s business is at risk and that there is at least a
reasonable apprehension of harm should the interim interdict not be granted.
The balance of convenience
[116] Omni contends that it will be prejudiced if the interim interdict is not granted, but that Ms
Koekemoer and Epicode will not suffer any prejudice whatsoever , as they are free to
develop their own product.
33
[117] Given Ms Koekemoer’s contention that Epicode does not compete at all with Omni and
that they sell a different product altogether and that Epicode does not directly compete
with Omni at all, an interim interdict will not harm Ms Koekemoer and Epicode.
Absence of satisfactory alternative form of relief
[118] Based on the facts as set out above, Omni contends that Ms Koekemoer and Epicode need
to be stopped in their tracks and that based on Dun and Bradstreet (supra), at this stage,
there is no alternative remedy except an interim relief pending the outcome of the
damages claim which they will institute within 15 days of the granting of this order.
DISCUSSION
[119] Based on the facts read with the legal principles enunciated above, Omni has a right to the
protection of its goodwill against unlawful infringement.
[120] It is trite that for the purposes of an interim interdict it is sufficient that there be potential
prejudice.
[121] Omni has established a prima facie right. There can be no doubt that the conduct of Ms
Koekemoer and the other respondents was calculated to cause Omni prejudice.
[122] Using of confidential information and l uring clients away from Omni obviously entails a
diminution of Omni’s business. I am therefore satisfied that Omni has shown a
reasonable apprehension of harm and the threat of such harm continued even after Ms
Koekemoer’s resignation which is also when all of these events and untoward conduct by
Ms Koekemoer and the respondents came to Omni’s attention.
[123] Omni has contended that it has no alternative remedy. In principle it would be entitled to
sue for damages and that seems to be the relief that Omni intend to pursue as per
paragraph 3 of the notice of motion but this would entail a quantification of such damages
which would entail more time that could lead to further harm.
34
COSTS:
[124] The parties argued with regards to the costs of the postponement application and the
hearing on 30 November 2023.
[125] According to Omni, the hearing of the interim interdict application was set down for 30
November 2023, but that a postponement was triggered by the fact that Omni was not
timeously able to access more than 59 000 e -mails that Ms Koekemoer had deleted prior
to leaving her office , and that these needed to be recovered in order to consider them
before finalising their replying papers.
[126] Ms Koekemoer contended that Omni brought this application in an undue hurry as they
should have obtained all of the information prior to bringing this application and that
accordingly, because the postponement was at the behest of Omni, that Omni should pay
the costs of the postponement.
[127] Omni only became aware of Ms Koekemoer and the respondents ' conduct relating to its
business in South Africa during October 2023 and given the in -depth investigation that
had to be undertaken and how quickly this all unfolded, Omni had every right to bring this
application on an urgent basis.
[128] It is common cause that Ms Koekemoer opposed the application and insisted that Omni
urgently serve a substantive application for postponement which would be opposed. In
the end, a formal application was brought and, contrary to Ms Koekemoer’s threats to
oppose the application for a postponement, she did not, and the Honourable Mr Justice
Thulare granted the postponement for the matter to be heard on 3 June 2024 with the issue
of costs to stand over for later determination.
[129] I understand that Omni was not in a position to file their replying affidavit based on the
deletion of 59 000 e-mails by Ms Koekemoer and the time that it took to retrieve these e -
mails.
35
[130] However, Ms Koekemoer ’s explanation for why 59 000 emails were deleted from her
work computer is not implausible . She states that these were deleted since 2016 over a
period of “ seventeen years as all my emails were amalgamated as they changed.
Therefore, my inbox represents messages from all my employment obligations with
Ladha”. I point out first that between 2016 and 2023 is seven years and that thes e
submissions, therefore, seemingly lacks merit.
[131] Her insistence that Omni bring a substantive application for postponement was also
unreasonable since not only did she not oppose the postponement application but she also
filed a fourth set of affidavits once she was served with Omni’s replying affidavit.
[132] In light of the aforegoing, I am of the view that the costs for the postponement application
and the hearing of 30 November 2023 should be borne by Ms Koekemoer and Epicode,
jointly and severally, the one paying the other to be absolved.
[133] With regards to the main application, I see no reason why costs should not follow the
result.
CONCLUSION:
[134] For all the reasons set out above , Omni SA and Omni UK had no alternative but to
approach a court on an urgent basis in order to secure temporary interdictory relief
pending the final determination of an action which Omni SA and Omni UK will institute
against all of the respondents.
[135] The temporary relief required by Omni SA and Omni UK is not to address the damage
already done, but it will have the effect of restraining any continuation of the aforesaid
unlawful conduct by Ms Koekemoer and the respondents.
[136] The reason for this is because both Omni SA and Omni UK reasonably apprehend that
since Ms Koekemoer no longer works for Omni SA, she and the respondents are at large
36
to approach all of Omni SA and Omni UK’s clients with a view to inducing them to leave
Omni SA and Omni UK and take their business to ASV and/or Epicode.
[137] Having copied Omni’s product without having to spend the years and the millions of
Rands/Pounds Sterling that would otherwise be required to develop such a product, as
Omni did, there exists a very real risk that the respondents will simply pursue not all of
Omni SA’s clients, but also those of Omni UK as well.
[138] In light of all of the facts as set out above read with the case law pertaining to unlawful
competition, I am satisfied that Omni SA and Omni UK have satisfied the requirements
for an interim interdict and that there is no reason why such interdict should not be
granted against Ms Koekemoer and Epicode.
[139] Accordingly, I make the following order:
[139.1] Pending the final determination of the action to be instituted against the
respondents, as contemplated hereinbelow:
[139.1.1] That Ms Koekemoer and Epicode are interdicted from:
(i) Unlawfully competing with Omni SA and Omni UK by:
(a) Using any information which constitutes proprietary and/or
confidential information in connection with Omni’s business
in South Africa and the United Kingdom;
(b) Approaching, contacting, soliciting and/or engaging with any
of Omni’s clients with a view to:
(aa) Inducing them to terminate their contracts and/or
dealings with Omni SA or Omni UK or either of them;
and/or
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(bb) Securing them as clients for Ms Koekemoer and/or
Epicode; and/or
(cc) Representing to them direct ly or indirectly that
Epicode’s systems are identical and/or similar to
Omni’s products and systems, which are described in
the founding affidavit.
(c) Passing off the products, systems and/or services offered by
Ms Koekemoer and/or Epicode:
(aa) As being those of Omni SA and Omni UK;
(bb) As being related to and/or affiliated with Omni SA or
Omni UK.
(d) Epicode holding itself out as being affiliated with Omni SA
and/or Omni UK.
(e) Offering the products, systems and/or services which they
offer to the public in a manner which is confusingly similar to
Omni SA and Omni UK’s distinctive get -up, software and/or
application layout.
[139.1.2] Disclosing any of Omni’s confidential information, including, but not
limited to, client lists, pricing information, information relating to the
development and maintenance of Omni’s systems to include but are not
limited to Omni Hotels, Omni iManage It and/or Omni Commercial and
Health Care to:
(i) Epicode;
(ii) Any third party.
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[139.2] That Omni SA and Omni UK are directed to institute an action against the
respondents, as well as any other relief which they might seek, within fifteen (15)
court days of the granting of this order (“the action”).
[139.3] As regards the issue of costs, that Ms Koekemoer and Epicode are ordered to pay
the costs of Omni SA and Omni UK jointly and severally, the one paying the
other to be absolved as follows:
[139.3.1] The costs of the main application on a party and party Scale C
including the cost of two counsel, where so employed in respect of
attendances on or after 12 April 2024.
[139.3.2] The costs of the postponement application a nd opposed hearing on 30
November 2023 on a party and party Scale C, including the cost of
counsel.
______________________ ___
The Hon. Ms Acting Justice Mahomed
Of the Western Cape High Court
APPEARANCES:
Applicant’s Counsel: Adv Rod Howie
Instructed by: David Shapiro & Associates Inc.
Respondents’ Counsel: Adv Mea Steyn
Instructed by: AB Attorneys