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[2013] ZALCJHB 333
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Shoprite Checkers (Pty) Ltd v Jordaan and Another (J05/13) [2013] ZALCJHB 333 (18 January 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO: J 05/13
In
the matter between:
SHOPRITE CHECKERS
(PTY) LTD
Applicant
and
IZAAN JORDAAN
First Respondent
PICK n pay holdings
ltd
Second Respondent
Heard
:
15 January 2013
Delivered:
18 January 2013
Summary:
Restraint of trade upheld.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The first respondent, Ms Izaan Jordaan, has
taken up employment with the second respondent, Pick n Pay Holdings
Limited (“Pick
n Pay”) in breach of a restraint of trade
agreement with the applicant, Shoprite Checkers (Pty Ltd, her former
employer.
[2]
The question to be decided on an urgent
basis is whether the agreement in restraint of trade is reasonable
and enforceable. Pick
n Pay abides the decision of the Court
Background
facts
[3]
Ms Jordaan is an LLB graduate. She
completed her articles of clerkship, but then decided to pursue a
different career. In January
2010 she was employed by the applicant,
initially as a junior buyer. After her first year of employment she
worked as a buyer in
its glassware department. Before she took up
employment with the applicant, she signed a contract of employment
that included clauses
pertaining to confidentiality and restraint.
Immediately above her signature, she recorded:
“
I
have received a copy of the contract of employment and a letter of
appointment. I understand and accept the terms and conditions
of
employment contained in these documents.”
[4]
A representative of the applicant signed a
copy of the agreement on 30 November 2009. Ms Jordaan only did so on
3 January 2010.
It appears that she had ample time to consider the
agreement. She raised no objection and did not attempt to renegotiate
the confidentiality
and restraint clauses.
[5]
Ms Jordaan underwent training and made
rapid progress. According to her, she had a “keen eye”
for glassware. Her annual
remuneration for 2012 was in the region of
R300 000. Her specific area of responsibility was the sourcing
and purchasing of
glassware (all over the world) for the applicant.
She became the sole buyer for glassware for the applicant’s
Checkers and
Checkers Hyper stores. During her employment with the
applicant, the volume of purchases with one supplier that she dealt
with
increased from a sales value of R6,9 million to R14, 9 million.
[6]
Ms Jordaan is married to an attorney who is
employed by one of the largest law firms in South Africa, DLA Cliffe
Dekker Hofmeyr.
At the end of 2012 he was transferred to the firm’s
Johannesburg office. On 30 November 2012, Ms Jordaan tendered her
resignation
on one month’s notice. She advised her superior, Mr
Stephen Braude, that she intended to take up employment with Pick n
Pay
in Johannesburg in essentially the same position as the one she
had with the applicant, i.e. a buyer of glassware. It is common
cause
that Pick n Pay and the applicant are direct competitors. Although Ms
Jordaan refused to make a copy of her contract of employment
with
Pick n Pay available to the Court, it also appears to be common cause
that is being paid more than she earned at the applicant
.
[7]
Having learnt that Ms Jordaan was going to
take up employment in direct competition with the applicant, the
applicant advised her
that she was not required to serve her notice
month and she left immediately.
[8]
On 5 December 2012 the applicant’s
human resources director, Mr Callie Burger, wrote to Ms Jordaan and
informed her that she
had breached the restraint agreement by taking
up employment with Pick n Pay. He warned her that, unless she
terminated her employment
with Pick n Pay and complied with clause 17
of her contract of employment (the restraint and confidentiality
clause), the applicant
would seek an interdict.
[9]
Ms Jordaan responded by email to Burger
(and apparently to the applicant’s CEO, Whitey Basson) on 7
December 2012 in these
terms:
“
Ek
het mnr Burger se skrywe ontvang en sal graag die situasie met u wil
bespreek.
Ek is nie seker of u
bewus is van die omstandighede wat die aanvaarding van my posisie by
Pick n Pay genoodsaak het nie. Ek het
dit dus goed geag om hierdie
epos aan beide van u te rig.
My man is ‘n
prokureur by Cliffe Dekker Hofmeyr Inc en is verplaas na sy firma se
kantoor in Johannesburg. My bedanking by
Shoprite was dus weens
omstandighede buite my beheer. Ek en my man is afhanklik van my
salaris en dit was dus noodsaaklik dat ek
‘n nuwe werk moes
soek. Ons is nie in ‘n finansiele posisie om my indiensneming
by Pick n Pay te beeindig nie. Dit
was ook nie vir my moontlik om u
te nader vir ‘n moontlike verplasing nie, aangesien, en soos u
bewus is, die aankopers in
die Non Foods afdeling van Shoprite in die
Kaap gestasioneer is.
Ek was baie gelukkig by
Shoprite en is dankbaar vir die geleentheid wat u destyds vir my
gebied het toe ek van loopbaan verander
het. Ek wou dus ten alle
koste verhoed dat ek die maatskappy op ‘n slegte voet verlaat.
Ek verstaan dat u beide
baie besig is en indien u dus nie beskikbaar is om die aangeleentheid
met my en my man vandag te bespreek
nie, kan u dalk iemand aanwys om
met ons te ontmoet.
Ons trek Maandag en sal
dus u spoedige terugvoering opreg waardeer.”
[10]
As it happens, the applicant was prepared
to discuss matters, albeit not on the same day. It appears that the
applicant also had
sympathy for Ms Jordaan’s position in having
to relocate to Johannesburg and it was, once again, prepared to
accommodate
her and to offer her an opportunity not to part ways “op
‘n slegte voet”.
[11]
The parties met on 19 December 2012. The
applicant offered Ms Jordaan a position as a buyer in Johannesburg at
their House and Home
group, dealing with furniture and electronics.
Even though she would have to undergo some retraining, it would be
without any loss
of salary.
[12]
Ms Jordaan was not prepared to accept this
compromise position. On 26 December 2012 she wrote to the applicant
in these terms:
“
Ek
verwys na my ontmoeting die 19de Desember 2012 met mnr Horn by House
and Home se hoofkantoor.
Daar is aan my genoem dat
ek moontlik kan deel vorm van die House and Home groep.
Na deeglike oorweging het
ek besluit dat ‘n posisie by H & H weens verskeie redes nie
gepas sal wees nie.
Gedurende my tyd by
Shoprite was ek uitsluitlik blootgestel aan huisware en dus sal ‘n
skuif na die aankoop van meubels my
aansienlik terug sit in my
loopbaan.
Ek bedank u vir die tyd
wat u afgestaan het om my te ontmoet.”
[13]
Mr Burger responded:
“
Ek
is baie spyt om dit te hoor want ek het gehoop dat ons jou sou kon
behou.
Sterkte op die pad
vorentoe en ek vertrou dat jy by die kontraktuele ooreenkomste van
jou kontrak met ons (soos in van my vorige
kommunikasies aan jou
genoem) sal bly. Ek sal waardeer as jy dit so aan my sal bevestig
veral aangesien die pos by Pick n Pay ‘n
verbreking van
sodanige ooreenkoms sal beteken.”
[14]
This hope was in vain. Ms Jordaan
reiterated on 28 December 2012 that she was not prepared to refuse
the position at Pick n Pay.
She took up employment with Pick n Pay on
7 January 2013. The applicant launched this application on an urgent
basis on the same
day. It was heard on 15 January 2013.
Urgency
[15]
Mr
Du Plessis
,
for the first respondent, took issue with the matter of urgency. He
argued that Ms Jordaan had played open cards with the applicant
and
had told it at the time of her resignation on 30 November 2012 that
she intended to take up employment with Pick n Pay. He
criticised the
applicant for having waited until she did so before bringing the
application.
[16]
This argument does not take cognisance of
the interim events. As I have set out above, the applicant continued
with its efforts
to accommodate Ms Jordaan in Johannesburg. It is
only on 26 December that she refused that offer and on 28 December
that she made
it clear that she would continue to act in breach of
the restraint. From that time onwards, and taking into account the
difficulties
occasioned by the fact of many of the actors in this
drama being on leave at the time, the applicant did not unduly delay
the application.
[17]
In
a previous matter concerning a restraint of trade, this court
remarked in
Continuous
Oxygen Suppliers (Pty) Ltd t/a Vital Aire v Meintjes &
another:
[1]
“
In
my view, litigants should be encouraged in any attempt to avoid
litigation, rather than rushing to court as a first option.
Litigation is costly and often unnecessary.”
[18]
I stand by those
remarks. The applicant cannot be criticised for attempting to
accommodate Ms Jordaan before resorting to this application.
Once she
had refused its offer of continued employment in Johannesburg, it
acted expeditiously.
The
applicable legal principles
[19]
This
Court has recently set out the legal principles dealing with
restraints of trade fairly comprehensively in
Vital
Aire
[2]
and
in
Esquire
System Technology (Pty) Ltd t/a Esquire Technologies v Cronjé
&
another.
[3]
[20]
It
is unnecessary to do so again. In short, restraints of trade in our
law remain valid and enforceable unless the party seeking
to escape
their effects show that they are unreasonable and thus contrary to
public policy.
[4]
[21]
This
requires a value judgment which encompasses the considerations
referred to in section 38(1) of the Constitution, requiring
a
determination as to whether the restraint is “reasonable and
justifiable in an open and democratic society based on human
dignity,
equality and freedom”.
[5]
[22]
The
value judgment required encompasses two principal policy
considerations, the first being that public interest requires that
parties should comply with their contractual obligations and the
second being that all persons should, in the interests of society,
be
productive and be permitted to engage in trade and commerce or their
professions.
[6]
[23]
The
four questions, identified in
Basson
v Chilwan & Others
[7]
,
that should be asked when considering the reasonableness of a
restraint are :
23.1
Does the one party have an interest that
deserves protection after termination of the agreement?
23.2
If so, is that interest threatened by the
other party?
23.3
In that case, does such interest weigh
qualitatively and quantitatively against the interest of the other
party not to be economically
inactive and unproductive?
23.4
Is there another facet of public policy not
having anything to do with the relationship between the parties which
requires that
the restraint should either be enforced or disallowed?
[24]
Wunsh
J in
Kwik
Kopy (SA) (Pty) Ltd v Van Haarlem and Another
[8]
added a further consideration, namely whether the restraint is wider
than what is necessary to protect the protectable interest.
Evaluation
[25]
It is common cause that Ms Jordaan has
taken up employment with a direct competitor in breach of the
restraint. The question is
whether that restraint is reasonable and
enforceable.
[26]
The confidentiality and restraint clause is
couched in wide terms. It reads:
“
17.1
By virtue of your appointment, you will be privy to information which
is confidential and/or proprietary to the Company. This
includes
information concerning the Company’s business, its operations,
finances, policies, practices, planning, purchases,
pricing, sales,
suppliers, stocks and other matters. You agree that you will not
(save so far as is necessary and appropriate)
disclose to any person,
without the written consent of the Company, any confidential and
proprietary information as to the business,
operations, dealings or
any other affairs of the Company during your employment or after the
termination of your employment.
17.2 You agree further
that, should you become involved in any business or other activity
with the Company or its associated operating
divisions, this would
severely prejudice the business of the Company. You therefore agree
and undertake in favour of the Company,
that during your employment
and for a period of two (2) years from the date of the termination of
your appointment with the company,
or with any associated or related
company, you will not anywhere in the Republic of South Africa,
directly or indirectly, alone
or with any other person, and whether
as an agent, employee, consultant, in partnership or as a company,
body corporate, franchisor
or franchisee, or in any other capacity,
be engaged, retained, employed or have a material interest in any
company, business, firm,
enterprise or undertaking, carrying on a
business involving the distribution and/or sale, through retail chain
stores or any other
retail outlet or wholesale operation, of any food
or related products, household products, furniture, beverages or any
other product,
product category or other items that are distributed
or sold through the retail chain operations of the Company or any
associated
company.
17.3
[9]
...
17.4 You acknowledge that
the terms of this restraint are fair and reasonable and go no further
than is reasonably required to protect
the proprietary interests,
trade secrets and confidential information of the Company, to which
you would have had access or to
which you would have been exposed.”
[27]
Ms Jordaan has belatedly tendered to agree
to a court order enforcing the terms of clause 17.1. With regard to
the remainder of
the relief sought, she has offered an undertaking
that neither she nor Pick n Pay will “directly or indirectly
engage”
the applicant’s two major suppliers for another
12 months. She also tendered to honour whatever “exclusivity
agreements”
the applicant may have in place with any suppliers
for as long as those agreements remain in place.
[28]
I agree with Mr
Stelzner
that, g
iven the applicant’s
preparedness to accommodate Ms Jordaan in one of its divisions in
Johannesburg and her own qualifications
and talents, the second
consideration outlined above – i.e. the ability of the employee
to be economically active and productive
– is in the present
matter not really at odds with the first, namely the enforcement of
the restraint in compliance with
the maxim
pacta
servanda sunt
.
[29]
The
questions outlined in
Basson
v Chilwan
[10]
remain to be addressed.
An
interest worthy of protection?
[30]
The applicant relies on its trade secrets
and confidential information as defined in clause 17.1 of its
contract of employment with
Ms Jordaan to be its protectable
interest. In addition it relies on its trade connections with
suppliers as the interest
worthy of protection.
[31]
“
Trade secrets”, “trade
connections” and “confidential information” are all
three recognised to be
categories of interests worthy of protection.
[32]
The applicant argued that these would
relate to :
32.1
the names of the applicant’s
suppliers and agents,
32.2
the contractual arrangements between the
applicant and its agents and suppliers (such as the duration thereof,
whether exclusive
or not),
32.3
the financial details of the applicant’s
relationship with its suppliers and agents (such as credit terms,
discounts, rebates,
other terms of payment),
32.4
the names of prospective suppliers and
agents and their requirements / demands,
32.5
details of the applicant’s operating
structure, results and future strategies and plans ; and
32.6
other technical detail, techniques,
operating methods and any other matter which relates to the business
of the Applicant which
information is not readily available in the
ordinary course of business to a competitor of the applicant.
[33]
If exploited by a competitor this would be
to the serious detriment of the business, goodwill and best interests
of the applicant.
[34]
The applicant provided numerous detailed
examples of its confidential information and trade secrets. These
examples arise from Ms
Jordaan’s position as the sole buyer for
glassware at the applicant’s Checkers and Checkers Hyper
stores. This included
detailed information about the suppliers,
sourcing, pricing, stocks, profit margins and merchandise trends, as
well as contact
details for specific contact persons at overseas
suppliers.
[35]
The information relied on by the applicant
appears to me to meet the three general requirements for a trade
secret :
35.1
It relates to and is capable of application
in the trade or industry.
35.2
Most of it is secret or confidential –
it is only available and thus known to a restricted number of people
or to a close
circle. Apart from the names of certain suppliers that
would appear on the product itself, it is not in the public
domain.
35.3
Objectively viewed it is of economic or
business value to the plaintiff.
[36]
The same considerations apply to at least
some of the trade secrets that the applicant relies upon, such as her
password protected
access to the Shoprite Data Warehouse. This is an
enterprise wide source of information that includes current and
historical data
on sales quantities and values, margin values and
percentages, stock quantities and pricing. She also had access to the
applicant’s
Tradestone system, a global sourcing and logistics
information technology system pertaining to imported goods. Detailed
supplier
information – examples of which were provided to the
Court by way of “screen shots” – is contained on
the
system.
[37]
Examples of the connection between Ms
Jordaan and the applicant’s suppliers are equally detailed. She
admits that, inter alia,
discounts are negotiated on each transaction
with theses suppliers. It stands to reason that, should she contact
any of those suppliers
as a glassware buyer for Pick n Pay, she will
be able to use her prior knowledge of, for example, discounts given
to the applicant
an her existing relationship with that supplier in
order to negotiate a similar discount for Pick n Pay to compete with
the applicant.
[38]
The
connection is such as to constitute a protectable interest.
[11]
Is
the interest threatened?
[39]
As I have set out in the example above, the
applicant’s interests are clearly threatened by the
respondents. Ms Jordaan’s
access to the applicant’s
confidential information, her intimate knowledge of its whole
glassware procurement process and
pricing, and especially her
connections with its suppliers, places her in an ideal position to
share this information with Pick
n Pay to the detriment of the
applicant.
[40]
The
situation is very similar to that in
Reddy
v Siemens Telecommunications (Pty) Ltd.
[12]
In that case, the SCA upheld a 12 month restraint against an employee
who had joined a competitor (Ericsson). Malan AJA stated
that it was
not necessary for the court to find that the employee
would
use his previous employer’s trade secrets and confidential
information in his new employment but that it was sufficient if
he
could
do so:
“
Reddy
is in possession of confidential information in respect of which the
risk of disclosure by his employment with a competitor,
assessed
objectively, is obvious. Reddy will be employed by Ericsson, a
‘concern which carries on the same business
as [Siemens]’
in a position similar to the one he occupied with Siemens. His
loyalty will be to his new employers and the
opportunity to disclose
confidential information at his disposal, whether deliberately or
not, will exist. The restraint
was intended to relieve Siemens
precisely of this risk of disclosure. In these circumstances the
restraint is neither unreasonable
nor contrary to public policy.”
[41]
The
SCA in Reddy agreed with the sentiments expressed by Marais J in
BHT
Water Treatment (Pty) Ltd v Leslie and Another
:
[13]
“
In
my view, all that the applicant can do is to show that there is
secret information to which the employee had access, and which
in
theory the employee could transmit to the second respondent should he
desire to do so. The very purpose of the restraint agreement
was that
the applicant did not wish to have to rely on the bona fides or lack
of retained knowledge on the part of the employee...
In my view, it
cannot be unreasonable for the applicant in these circumstances to
enforce the bargain it has exacted to protect
itself. Indeed,
the very ratio underlying the bargain was that the applicant should
not have to content itself with crossing
its fingers and hoping that
the employee would act honourably or abide by the undertakings that
he has given.”
[42]
The
same considerations apply in this case. The undertakings tendered by
Ms Jordaan are impossible to police while she is in the
employ of
Pick n Pay. It is also not helpful to suggest, as Mr
Du
Plessis
did, that the applicant can police and, if necessary, take action
against suppliers who breach their exclusivity agreements with
the
applicant. It is exactly in order to avoid this type of harm, and the
attendant legal costs, that the applicant sought to enter
into a
restraint of trade agreement with Ms Jordaan. She agreed to it
without amendment. And she is not an ignorant or low-level
employee.
She has apparently qualified as an attorney.
[14]
Her husband is an attorney with a large international law firm. She
had ample opportunity to consider and reflect upon the restraint
agreement before she agreed to it. She entered into the agreement
with open eyes and she wilfully breached it.
[43]
The
undertakings belatedly offered by the employee can also not save her.
As the court pointed out in
BHT
Water:
[15]
“
In
my view, an ex-employee bound by a restraint, the purpose of which is
to protect the existing confidential information of his
former
employer, cannot defeat an application to enforce such a restraint by
giving an undertaking that he will not divulge the
information if he
is allowed, contrary to the restraint, to enter the employment of a
competitor of the applicant. Nor, in my view,
can the ex-employee
defeat the restraint by saying that he does not remember the
confidential information to which it is common
cause that he has had
access. This would be more so where the ex-employee, as is the case
here, has already breached the terms
of the restraint by entering the
service of a competitor”.
Weighing
up the qualitative and quantitative interests
[44]
The situation in this case is an unusual
one. The exercise of weighing up the threat to the applicant’s
interests against
the interest of the other party not to be
economically inactive and unproductive is a simpler one than usual.
Ms Jordaan need not
be economically inactive and unproductive. The
applicant offered her a position in Johannesburg – ostensibly
the reason why
she had to resign – at the same salary. She had
the opportunity to continue with her career as a buyer, albeit in a
different
entity, without any loss of salary, without breaching her
restraint. She elected not to do so.
[45]
The period of the restraint is another
matter. So is the wide terms in which it has been couched.
[46]
Ms Jordaan signed off what are known as
“die-lines” for each season (usually 6 months in advance)
with the result that
she has direct knowledge of forward orders, new
product ranges and other operational issues for at least the next six
months, but
it is unlikely to endure for as long as 24 months. New
prices and product ranges are revealed at annual trade fairs. The
information
changes fairly frequently, and at least on an annual
basis. A restraint period of 12 months would appear to me to
adequately protect
the applicant’s interests.
[47]
Our
courts have in the past cautioned against the “reading down”
of an overbroad restraint.
[16]
But the approach adopted by Wallis AJ
[17]
in
Den
Braven SA (Pty) Ltd v Pillay and Another
[18]
seems to be a sensible one in a case such as this:
“
The
proper approach in my view is for the court to ask itself whether the
conduct that the applicant seeks to restrain by way of
an interdict
is conduct that falls within the terms of the restraint agreement and
from which the former employee agreed to abstain.
If the answer to
that question is in the affirmative the court then moves to an
analysis of whether it should, in accordance with
the principles of
public policy, enforce the agreement to that extent by granting
relief to the applicant. It has no need in those
circumstances to
have regard to those portions of the agreement that are more
extensive than the relief actually being sought.
....
I confine my remarks to
the question whether a restraint of trade agreement that is too broad
in its terms can on those grounds
be held to be contrary to public
policy and unenforceable in circumstances where, within the four
corners of the agreement, there
are restraints clearly spelt out
which are reasonable in nature and which are the only restraints that
the court is asked to enforce.
In my judgment in that situation the
court should in accordance with binding precedent grant relief to the
applicant. There is
no basis in law for it refusing to do so by
holding the entire agreement to be unenforceable on the grounds of
public policy.”
[48]
In the course of oral argument, I debated with Mr
Stelzner
whether the whole of the restraint as drafted in clause 17.2 needed
to be enforced in order to protect the applicant’s interests
vis-à-vis Ms Jordaan. He agreed that it did not. He helpfully
drafted an alternative order that I intend to grant.
Another
aspect of public policy?
[49]
There
is no other aspect of public policy that would render the restraint
unreasonable and thus unenforceable. This is especially
so where Ms
Jordaan’s Constitutional right
[19]
to choose her occupation freely was not directly threatened in this
case.
Conclusion
[50]
For these reasons, I am satisfied that the
restraint of trade should be enforced, albeit in a more limited form.
The first respondent
has already conceded that clause 17.1 of the
contract of employment (the confidentiality clause) should be
enforced.
[51]
The
applicant has established a clear right for the relief it seeks. It
will suffer irreparable harm if the restraint is not enforced.
And
the alternative remedy of a damages claim in due course –
probably after the restraint period had run its course –
would
be difficult to prove, costly, and against the very purpose of a
restraint of trade.
[20]
Costs
[52]
Mr
du Plessis
submitted that, should the applicant be successful, the first
respondent should not be ordered to pay its costs, given that she
is
an individual who may be rendered unemployed as a result of this
judgment and the applicant is a large company with extensive
financial resources. In the circumstances of this case, I do not
agree. Ms Jordaan acted recklessly, both in wilfully breaching
the
restraint and in pursuing this litigation. The applicant made her
aware of her breach before launching this application. It
went
further and offered her an alternative position at the same salary.
She elected to refuse the offer, persist with the breach
and defend
the application. There is no reason in law and fairness why she
should not be ordered to pay the applicant’s costs.
Order
[53]
For these reasons, I issue an order in the
following terms:
53.1
The first respondent, Ms Jordaan, is
interdicted from disclosing to any person, including the second
respondent (Pick n Pay), any
confidential and proprietary information
of the applicant, including but not limited to confidential
information concerning the
applicant’s business, its
operations, finances, policies, practices, planning, purchases,
pricing, sales, suppliers and stocks;
53.2
The first respondent is interdicted and
restrained until 31 December 2013 and within the Republic of South
Africa from directly
or indirectly being engaged, retained, employed
by or having a material interest in the second respondent or any
other company,
business, firm, person, enterprise or undertaking
carrying on a business in competition with the applicant involving
the distribution
or sale, through retail chain stores or any other
retail outlet or wholesale operation, of
inter
alia
glassware.
53.3
The first respondent is ordered to pay the
applicant’s costs.
_______________________
AJ Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
R
G L Stelzner SC
Instructed
by Perrott Van Niekerk Woodhouse Matyolo Inc.
FIRST
RESPONDENT:
APJ
du Plessis
Instructed
by Van der Merwe Du Toit Inc.
SECOND
RESPONDENT:
Bowman
Gilfillan Inc.
[1]
(2012) 33
ILJ
629 (LC) para [22].
[2]
Supra.
[3]
(2011) 32
ILJ
601
(LC).
[4]
Reddy v
Siemens Telecommunications (Pty) Ltd
2007 (2) SA 486 (SCA).
[5]
Reddy
supra
at
495E-496D.
[6]
Reddy
supra
at
496D-F.
[7]
[1993] ZASCA 61
;
1993
(3) SA 742
(A) at 767 G-H.
[8]
1999
(1) SA 472
(W) ([1998]
2 All SA 362)
at 484E (SA) and 375a (All SA).
[9]
This is a non-solicitation clause that is not relevant to the
current dispute.
[10]
Supra.
[11]
Den
Braven SA (Pty) Ltd v Pillay and Another
2008 (6) SA 229
(D) ([2008]
3 All SA 518)
para [6].
[12]
2007 (2) SA 486
(SCA) para [20] at 499 G-H.
[13]
1993
(1) SA 47
(W) 58H – 59A; See also
Fidelity
Guards v Pearmain
2001 (2) SA 853
(SE) 859 D-I and
Esquire
Technology (supra)
paras
[30] – [34].
[14]
It is not clear whether she was admitted as an attorney, but she has
completed her articles of clerkship.
[15]
Supra
58 C-D.
[16]
Cf
National
Chemsearch
(SA) (Pty) Ltd v Borrowman
1979 (3) SA 1092 (T) 1117 A-B.
[17]
as he then was.
[18]
2008 (6) SA 229
(D) 260F – 263C paras [50] – [54].
[19]
Constitution of the Republic of South Africa s 22.
[20]
Cf
Esquire
Technology (supra)
para [40];
Vital
Aire (supra)
para
[50].