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[2016] ZALCJHB 71
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Medtronic (Africa) (Pty) Ltd v Van Wyk and Another; Medtronic (Africa) (Pty) Ltd v Potgieter and Another (J2019/15; J2339/15) [2016] ZALCJHB 71; (2016) 37 ILJ 1165 (LC) (24 February 2016)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: J2019/15
In the matter between:
MEDTRONIC
(AFRICA) (PTY) LTD

APPLICANT
and
FREDERICK THEODORUS
VAN WYK

FIRST RESPONDENT
GLOBUS
MEDICAL SOUTH AFRICA (PTY) LTD

SECOND RESPONDENT
Case
no: J 2339/15
MEDTRONIC (AFRICA)
(PTY) LTD

APPLICANT
and
CORNELIS JOHANNES
POTGIETER

FIRST
RESPONDENT
GLOBUS MEDICAL SOUTH
AFRICA (PTY) LTD

SECOND RESPONDENT
Application
heard
:
11
February 2016
Judgment
delivered:  24 February 2016
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
Mr. Fred van Wyk and Mr. CJ Potgieter were employed by the applicant
(Medtronic) until 30 September 2015 and 20 December 2015

respectively. During their employment both Van Wyk and Potgieter
were, broadly speaking, engaged in selling medical devices
manufactured
and distributed by Medtronic to orthopedic surgeons. The
terms of their employment by Medtronic incorporated restraint
undertakings
given in Medtronic’s favour. Both Van Wyk and
Potgieter resigned from Medtronic to take up employment with the
second respondent,
Globus, one of Medtronic’s direct
competitors. Medtronic seeks the partial enforcement of each
restraint – in Van Wyk’s
case, to the area that comprises
the Free State and Northern Cape provinces; in Potgieter’s
case, to the Western Cape, Kwa-Zulu
Natal and Eastern Cape provinces.
[2]
Neither Van Wyk nor Potgieter dispute that they entered into the
restraint undertakings that form the basis of these proceedings,
nor
do they dispute that by accepting employment by Globus they are in
breach of them. They contend that the undertakings are not

enforceable. Two key areas of dispute emerge from the papers. The
first is whether the relationships between Van Wyk and Potgieter
and
the surgeons to whom they sold medical devices constituted customer
connections protectable in Medtronic’s hands; the
second is
whether Van Wyk and Potgieter had access to any information at
Medtronic which constitutes confidential information worthy
of
protection. The concessions by Van Wyk and Potgieter that they signed
the restraint undertakings and that they intend to take
up employment
with Globus, a direct competitor of Medtronic, have the consequence
that Medtronic has discharged the onus of proving
that they are in
breach of the restraint of trade agreements. As will appear from the
relevant legal principles recorded below,
it is incumbent on Van Wyk
and Potgieter to discharge the onus to show that the restraint is
unreasonable and consequently unenforceable.
[3]
The two cases are the subject of separately filed applications.
However, they were argued simultaneously since both raise
substantially
the same factual and legal issues.
Material
facts
[4]
Medtronic is the South African member of Medtronic PLC, a
multinational business engaged in medical technology. Medtronic sells

medical devices throughout South Africa. Van Wyk and Potgieter were
employed in the spine navigation and neurological technologies

division. Globus, like Medtronic, sells medical devices throughout
South Africa and directly competes with Medtronic in respect
of spine
and biologics products.
[5]
Van Wyk was employed by Medtronic on 1 August 2011 as a sales
representative for the Free State and Northern Cape region. At
the
time of his resignation, he had been employed by Medtronic for more
than four years. On 1 October 2015, Van Wyk took up employment
with
Globus as a product manager. In this capacity, he will have both
selling and managerial functions. Globus has to date not
had a direct
presence in the Free State and Northern Cape.
[6]
Potgieter was employed on 1 August 2007 as a sales representative
based in Bloemfontein. In July 2012, he was promoted to the
position
of coastal regional sales manager in Medtronic’s spine and
biologics division. At the time of his resignation, Potgieter
had
held this position for three years and four months. The coastal
region extends from Vredenburg in the west to Richards Bay
in the
East and comprises the whole of the Western Cape, the Eastern Cape
and Kwa-Zulu Natal. After prevaricating, Potgieter finally
resigned
from Medtronic on 20 October 2015 to take up employment with Globus.
Potgieter was placed on gardening leave and his employment
with
Medtronic terminated on 19 December 2015.
[7]
Medtronic promotes and sells its products to surgeons. The duty of a
sales representative is to call on the surgeons resident
at hospitals
within the geographic area for which he or she has a responsibility,
to promote and demonstrate Medtronic’s
products to them, to
sell those products and to provide technical assistance and
information on the safe and effective use of Medtronic
products and
equipment to the surgeons. There is some dispute about the exact role
of the sales representative in theatre, but
it is common cause that
their role may in certain cases extend to being present during
surgery, both in and outside of the sterile
zone, to hand over the
product and provide any additional or alternative devices that may be
required.
[8]
Van Wyk had face to face contact with surgeons in the area for which
he was responsible, performing the above functions broadly
described
above. Potgieter headed up a sales team and thus performed more of a
managerial role, but he does not deny having contact
with surgeons
and hospital staff when he “co-travelled” with a member
of the sales team to a hospital, or when he was
required to “fill
in” for a member of his team at a surgery when that member was
unavailable.
[9]
The nature and purpose of the products sold by Medtronic and Globus
assumed some significance in these proceedings. In this
regard, Van
Wyk states:
20.
On the applicant’s own version its products are highly
technical and specialised medical
devices. The products were invented
to treat a variety of different injuries and pathologies affecting
the human spine including
biologic intervention, neuromodulation and
a range of neurovascular issues.
21.
Each product serves a specific purpose and may or may not be
applicable in any given situation.
The surgeon will assess each
patient on a case-by-case basis and, according to the medical
condition presented, the surgeon will
recommend that the hospital he
works at purchases a particular product.
22.
The applicant and second respondent do not sell all exactly the same
products. Each product
is unique and, without exception, registered
and patented so that only the owner of that intellectual property can
sell a particular
product
[10]
Van Wyk and Potgieter aver that because the products supplied by
Medtronic and Globus are not interchangeable, they tend to
sell
according to the surgeon’s preference, based on his or her
personal experience and knowledge. It follows, they say,
that it
would be difficult for them to convince Medtronic’s clients to
use Globus products because in the surgeon’s
view, the product
selected by him or her is tried and tested and familiar to the
surgeon, who has a high degree of expertise in
its use. In other
words, a surgeon does not choose from a range of similar products and
expect the same outcome from each one -
the decision about which
product to use for a particular patient is the surgeon’s alone.
This is a decision made regardless
of price and without regard to any
relationship a surgeon may have with a sales representative. On this
basis, Van Wyk and Potgieter
deny that Medtronic has a legitimate
protectable interest.
[11]
Medtronic does not dispute that there are differences in design
between its products and those manufactured and marketed by
Globus,
but contends that the products are interchangeable, at least in the
sense that they serve the same function and purpose
when treating a
particular pathology. In other words, there is not one spinal product
that can treat a particular pathology and
that pathology alone –
there are many interchangeable products in the sense that a surgeon
can responsibly choose any one
of them to treat a particular
condition.  Medtronic does not suggest that the salesperson or
any relationship between salesperson
and surgeon is the sole
determinant of the particular device to be used; rather, Medtronic
contends that the primary function of
its salespersons is to promote
its products and thereby contribute to the array of products from
which a surgeon might choose.
In this sense, and particularly in
respect of competing products that perform the same job, it is the
salesperson’s function
to explain one product’s
advantages over another, in the hope of possibly securing a sale.
This is the customer connection
on which Medtronic relies in order to
defend the reasonableness of the restraint undertakings.
Relevant
legal principles
[12]
The principles regulating the enforcement of restraint of trade
agreements are relatively well-established. Restraint of trade

agreements are enforceable unless and to the extent that they are
contrary to public policy because they impose an unreasonable

restriction on the freedom to trade or to work (
Magna Alloys and
Research (SA) (Pty) Ltd v Ellis
[1984] ZASCA 116
;
1984 (4) SA 874
(A) at 891B-C)).
Put another way, the restraint of trade agreement is valid and
enforceable unless it is unreasonable. A restraint
will be considered
to be unreasonable and thus contrary to public policy, and therefore
unenforceable, if it does not protect a
legally recognisable interest
of the employer, but merely seeks to exclude or eliminate competition
(see
Magna Alloys
(
supra
) at 893C-G and 897H –
898D). An applicant seeking to enforce a restraint of trade agreement
need only invoke the contract
and prove a breach of the contract; the
onus to prove that the restraint is unreasonable and therefore
unenforceable rests on the
party resisting its enforcement.
[13]
When it determines the reasonableness of the restraint, a court is
required to make a value judgement, bearing in mind two
principal
considerations. The first is the public interest that requires a
party should comply with contractual obligations that
he or she has
undertaken (
pacta sunt servanda
); the second is the broader
public interest that requires all persons to be productive and to be
permitted to engage in trade and
commerce (
Reddy v Siemens
Telecommunications (Pty) Ltd
2007 (2) SA 486
(SCA)).
[14]
The test for reasonableness of restraint of trade provisions remains
that expressed in
Basson v Chilwan and others
[1993] ZASCA 61
;
1993 (3) SA 742
(A) where the court said the following, at 767A-D:
a.
Is there an interest of the one party which is
deserving of protection at the termination of the agreement?
b.
Is such interest being prejudiced by the other
party?
c.
If so, does such interest so way up qualitatively
and quantitatively against the interest of the other party that the
latter should
not be economically inactive and unproductive?
d.
Is there any other facet of public policy having
nothing to do with the relationship between the parties but which
requires that
the restraint should either be maintained or rejected?
[15]
Some decisions have added a fourth requirement in the form of an
enquiry into whether the restraint goes further than is necessary
to
protect  the interest claimed. Others have considered that this
enquiry is part and parcel of the test reflected above.
What matters
for present purposes is that the reasonableness enquiry extends to
both the geographical and temporal components of
restraint.
[16]
The interests that can be protected by a restraint agreement for the
purposes of the first leg in the
Basson v Chilwan
enquiry
include confidential information (sometimes referred to as trade
secrets) regarding the running or carrying on the business
which
could be used by a competitor, if disclosed, to gain a relative
competitive advantage. Whether information is confidential
is a
question of fact and may be predictable even if in the public domain
where the respondent obtained the information within
the context of a
confidential relationship (see
Multi Tube Systems (Pty) Ltd v
Ponting and others
1984 (3) SA 189).
Generally speaking,
confidential information capable of protection includes information
received by an employee about business
opportunities available to the
employer, information received in confidence by an employee while in
employment, and information
relating to the specifications of a
product or a process of manufacture which has been arrived at by the
expenditure of skill and
industry and has been kept confidential (see
Meter Systems Holdings v Venter
1993 (1) SA 409
(W)).
[17]
The second protectable interest is the employer’s relationship
with customers, potential customers and suppliers (sometimes
referred
to as ‘trade connection’) of the business, being a
component of the incorporeal property known as goodwill.
The need of
an employer to protect its trade connections arises where the
employee has access to customers and is in a position
to build up a
particular relationship with the customer so that when he or she
leaves the employer service, the customers could
easily be induced to
follow the employee to a new business. This is also factual enquiry,
and relevant criteria include the duties
of the employee, the
employee’s personality, the frequency and duration of contact
with customers, where the contact takes
place, what knowledge the
employee gains of the customer’s requirements and business, the
general nature of the relationship
between them, the degree of
competitiveness between the rival businesses, the type of product
being sold, and the like (see
Rawlins &
another v Caravantruck (Pty) Ltd
[1992] ZASCA 204
;
1993 (1) SA
537
(A) at 541).
Analysis
[18]
The issues to be determined are first, whether the relationship
between Van Wyk and Potgieter and the surgeons with whom they
worked
constitutes a protectable interest in Medtronic’s hands and
secondly, whether Van Wyk and Potgieter had any access
to information
which constitutes confidential protection and therefore protectable
in the hands of the applicant.
[19]
I deal first with the issue of customer connection. As I have
indicated, the substantive point of dispute that emerges from
the
papers is the interchangeability of products and in particular,
whether the fact that a particular product might fulfil the
same
purpose when treating a particular pathology makes it
interchangeable.
[20]
To some degree, each party has sought to cast the position of the
other in absolute terms. Medtronic has sought to emphasise
the role
of the salesperson and the nature and extent of the salesperson’s
engagement with the surgeon in support of its
contention that the
salesperson’s role and relationship with a particular surgeon
is highly influential in decisions that
surgeons make about choice of
product. Van Wyk and Potgieter on the other hand have sought to
portray the salesperson as having
little if any role in product
choices made by surgeons.
[21]
In both instances, this is a one-dimensional rendering of the facts.
Neither party suggests that the relationship between

salesperson and surgeon is the sole determinant of product choices.
Surgeons make choices from a range of available products and
are
responsible for their choices. In this sense, the real issue in these
proceedings is less about the nature and extent of any
qualitative
differences between the products marketed by Medtronic and Globus
respectively, and more about the role of the salesperson
in
autonomous decision-making by surgeons based on their own analysis,
experience and preferences.
[22]
A useful starting point is the caution raised by Wallis AJ in is In
Den Braven SA (Pty) Ltd v Pillay and another
2008 (6) SA 229
(D), where he cautioned against the subconscious temptation to regard
the person engaged in sales as ‘just a salesman’.
The
court went on to say:
However,
in any business dependent for its profits on the sale of its
products, the sales function is of fundamental importance
and the
salesperson’s ability to damage the business of the employer
may be very considerable or even fatal, notwithstanding
the fact that
the salesperson may seem to stand fairly low in the staff hierarchy….
It
must be borne in mind that what is referred to in the cases as a
customer connection is often constituted by intangibles such
as the
relationship on personal issues between salesperson and purchaser;
the reputation of the salesperson for dealing with complaints
and
problems and his or her all round willingness to ‘go the extra
mile’ in order to secure a sale.
[23]
The ‘intangibles’ to which the court refers manifest
themselves in the present proceedings on the respondents’
own
version. Neither Potgieter nor Van Wyk dispute that at the most basic
level of engagement, they were “trained up”
on the
specifications of each product so that they could communicate that
information to surgeons who may have needed to use the
product. Both
acknowledge that they were required to know the specifications of
each product so that they were sufficiently competent,
in Van Wyk’s
case, to sell the product and in Potgieter’s case, ensure that
his sales team were sufficiently competent
to sell the products.
Potgieter says the following:
The
products are sold on the basis of a detailed explanation provided to
the surgeons in respect of the products; which then allows
them to
differentiate the products offered by the multitude of companies in
the market and make a medically sound decision.
[24]
The role of a salesperson, contrary to the image that Van Wyk and
Potgieter seek to portray, is not limited to conveying technical

information and specifications that might otherwise be discerned from
the cold reading of a catalogue. Were this to be so, it is
difficult
to imagine why suppliers such as Medtronic and Globus employ
salespeople – surgeons could simply select the desired
device
and place an order with the relevant supplier for delivery. The act
of selling necessarily entails the presentation of not
only the
product range, but of new products and an explanation of the benefits
and in particular, their advantages over similar
products
manufactured and marketed by competitors. This role is perhaps best
articulated in the fourth affidavit filed by Potgieter,
where he says
the following
7.4.
It is my case that surgeons make choices based on their analysis of
the products and the outcome that they can expect arising
from that
quality as well as ease of use of the products, that is to say the
comfort factor which a surgeon experiences when using
particular
devices.
7.5.
It is irrelevant for the purposes of determining customer connection
that more than one product can treat a particular pathology.
7.6.
The situation is rather how well a particular product treats a
particular pathology, in the opinion of the surgeon, and the
ease of
use of the product.
7.7.
In relation to pathology there are a range of products available from
different companies each of which has features which
may be more or
less attractive to individual surgeons and which must be evaluated by
them in making the decision of which product
to use…
7.8.
There are differences between the products and the applicant can only
contend that the difference (sic) are cosmetic. The applicant
and
many other companies in the industry have huge research and
development arms which constantly strive to better their products
and
develop new technologies in order to gain a competitive edge in the
marketplace. Were this not the case, they would be complete

stagnation in the field, which is the reverse of what the applicant
contends….
7.10.
It is by definition part of the duty of surgeons in this field to be
in touch with the market, developments and technology
across the
scope of brands. Technologies may change quickly and the surgeon
would necessarily look to acquiring the best product
for his patient.
7.11.
It cannot be asserted that technology developed simultaneously in all
of the various companies that produce
the relevant devices. There
will always be one company that is first to market with a particular
technology. Other companies may
or may not introduce that technology.
In the circumstances a surgeon must be in a position to choose based
on medical factors and
the benefit of the technology in relation to
his patient’s needs.
[25]
What this exposition raises is the true role of the salesperson in
the present context– while the choice of a particular
product
is ultimately that of the surgeon who carries sole responsibility for
his or her choice, that choice is informed by what
the salesperson
conveys in the context of an established relationship. As Potgieter
himself points out, the market is not static.
The investment by
companies like Medtronic and Globus and their competitors in research
and development serves to inject new technology
into the market and
generate new choices for surgeons. It would be naive to think that
the role of a salesperson in this context
is limited to that of a
purveyor of technical specifications. Responsible surgeons would no
doubt be open to a presentation on
the claimed benefits and
advantages of any new technology. In this context, the existence of a
relationship between salesperson
and surgeon built up over months if
not years is not irrelevant. As Wallis AJ put it in
Den Braven
in response to a submission that customers would never be influenced
by the connection with a sales person but would always adopt
the
hardheaded commercial approach of opting for the lowest price:
The
second difficulty is that it thus fails to take account of such
factors as customer loyalty to a particular supplier; customer

inertia in continuing to purchase from an established supplier rather
than going to the effort of always checking the market for
the best
possible price; and the fact that where two different suppliers quote
very similar prices for comparable products, the
trade connection
established through the salesperson may well be the decisive factor.
[26]
This is the value of trade connections and customer contact. It
enables any salesperson or sales manager to execute the key
task of
cementing existing relationships with clients and bringing in
business, partly at least by drawing business away from competitors

and persuading clients to move to the employer’s products.
[27]
In the present instance, the relationship between salesperson and
surgeon extends beyond the interface that occurs on visits
to
hospitals in the relevant regions. It is common cause that sales
persons and surgeons meet at congresses hosted by third parties;

Potgieter refers to four to six congresses per annum. These events,
attended by surgeons, gave Van Wyk and Potgieter the opportunity
to
reinforce Medtronic customer connections and promote their brand and
their new technologies. In addition, Medtronic hosts cadaver

workshops, in conjunction with the Universities of Cape Town and
Stellenbosch, at which instruction and training on the implanting
of
products are held. Van Wyk and Potgieter do not dispute having
attended these workshops, which no doubt provided an opportunity
to
interact with surgeons based at hospitals in their respective sales
areas. Further, Van Wyk records that Medtronic sponsors
international
conferences and pays for doctors to attend these conferences. This he
describes as ‘a significant part of the
applicant’s
business model.’ Although Van Wyk concludes from this that it
is not the salesman (and not him, in particular)
who engenders the
loyalty of the clients rather than the product, its qualities and the
training and exposure to the product that
surgeons receive at
conferences, what this submission ignores is the fact that Medtronic
establishes customer connections through
the medium of its employees
and in particular, its sales staff. The nature and extent of these
interactions establish that the
sales function has roots that extend
well beyond the consulting room, and that regular exposure to
Medtronic’s products and
their application can only serve to
facilitate the face-to-face engagement between salesperson and
surgeon.
[28]
I must also necessarily take into account that in Van Wyk’s
case, Globus has to date not had a presence in the Free State
and
Northern Cape. Van Wyk’s employment by Globus is clearly
intended to establish the latter’s market presence in
those
provinces, in circumstances where Globus is presented with the
obvious opportunity to capitalise on the relationships that
Van Wyk
has established while in Medtronic’s employ and at its expense.
Van Wyk’s response to this averment is to suggest
that if
Medtronic’s products are indeed better and that surgeons in the
provinces concerned form that perception, then Medtronic
will be able
to sell its products regardless of the identity of the salesperson.
He says: ‘
All a Sales Rep can do is have a thorough working
knowledge of the second respondent’s product and a friendly
demeanour; this
is what will make the sale if it is to be made.
However, these attributes are not proprietary to the applicant’
.
[29]
While it is correct that Van Wyk’s no doubt friendly demeanour
and his knowledge of Medtronic’s products are not
interests to
which Medtronic can lay any proprietary claim, his assertion rests on
a limited conception of the sales and marketing
function which, for
the reasons stated above, cannot be sustained.  The marketing
function in the medical device business
extends beyond a sales pitch
and a smile; it comprises a complex web of personal relationships
cemented by sponsorships, workshops
and technical assistance. In any
event, if as Van Wyk earlier contended surgeons are not amenable to
changing their products, there
would be no point in Globus
introducing its products into what for it is unchartered terrain. But
this is precisely what it is
doing by entering the spinal market in
the Free State and Northern Cape.
[30]
It is sufficient for an applicant to show that trade connections
through customer contact exist and can be exploited by the
former
employee if employed by a competitor. In
Den Braven
, the court
made the point this way:
It
is not in my view necessary for the applicant in the situation to
winnow the wheat of trade connections and customer contact
from the
chaff of other factors that may influence purchasing decisions. It
suffices for the applicant to show the trade connection
through
customer contact exist and can be exploited by the former employee if
employed by a competitor.
[31]
In my view, for the reasons stated above, Medtronic has trade
connections through customer contact by both Van Wyk and Potgieter

which are open to exploitation by them as employees of Globus. In
view of the basis on which I have come to this conclusion, it
is not
necessary for me to consider the affidavit of Dr Vlok, the
admissibility of which was contested and which deals primarily
with
the issue of the interchangeability of products or otherwise.
[32]
Turning next to the element of confidential information, it is not
disputed that Van Wyk has access to Medtronic’s strategies
for
its spine and biologics division. The strategies were discussed at
meetings convened, amongst other things, to discuss the
successes,
failures and threats to the business and to formulate strategies to
improve them. Further, Van Wyk was party to Medtronic
sales targets
and marketing strategies. One of his duties was to implement the
business plan in the region for which he was responsible.
The
business plans contain key elements of Medtronic’s marketing
strategy including the products which Medtronic intends
to launch in
South Africa, a determination of market share, revenue forecast and
the like. Van Wyk thus has knowledge of those
of Medtronic’s
products that generate higher sales and which are vulnerable. While
Van Wyk denies having sight of any information
that is confidential
to Medtronic, and to the extent that he asserts that business plans
and strategies to which he was privy were
couched in the broadest
terms, a simple analysis of the categories of information to which
Van Wyk was exposed and which would
ordinarily not be available to a
competitor, would be of obvious and immense assistance to a
competitor, particularly a start-up
operation in the provinces in
which Van Wyk has been employed. In the hands of a competitor such as
Globus, the information that
he has at his disposal provides an
invaluable tool. It will assist Globus to understand where Medtronic
is weak in relation to
particular product in particular hospitals.
Knowledge of Medtronic’s sales strategies and their successes
and failures will
obviously assist Globus with the formulation of its
own strategy.
[33]
In Potgieter’s case, similar considerations apply. He was
employed in a more senior position and thus enjoyed greater
access to
Medtronic’s confidential information relating to its business
operations and plans in the region for which Potgieter
had
responsibility. He also has intimate knowledge of the business
opportunities in the market and had put in place strategic plans
to
drive more growth at competitors’ expense. Potgieter is aware
of Medtronic’s future business plans for the region.

Information of this nature in the hands of a competitor which has a
less significant presence in the region would place that party
at an
obviously unfair advantage.
[34]
Both Van Wyk and Potgieter have consented to observe the
confidentiality undertakings given by them while remaining in the

employ of Globus. The applicable legal principle as well established:
the party seeking to enforce a restraint does not have to
demonstrate
that the other party has in fact utilised information confidential to
it, it is sufficient to show that he or she could
do so. As it is
sometimes put, the applicant need not be content with having to cross
its fingers in the hope that a respondent
would abide by any
undertakings given (see
Experian South Africa (Pty) Ltd v Haynes
and another
2013 (1) SA 135
(GSJ) at paragraph 22. The court went
on to say “
It does not lie in the mouth of the ex-employee
who has breached a restraint agreement by taking up employment with a
competitor
to say to the ex-employer, ‘Trust me, I will not
breach the restraint further than I have already been proved to have
done.
’ “).
[35]
In so far as the weighing of interests is concerned (the third leg of
the test in
Basson
), it should be recalled that both Van Wyk
and Potgieter left Medtronic’s employ of their own accord and
in circumstances
where they were fully aware that they were subject
to restraint of trade undertakings. Despite this, both chose to join
a direct
competitor. Both are able to remain economically active
outside of the area of restraint and free to utilise their skills and
experience
within that domain. The predictable consequences of
personal inconvenience and ramifications on family and career
prospects are
not factors that weigh against enforcement.
[36]
There is nothing within the realm of public policy that militates
against the enforcement of the restraints. Further, there
is nothing
on the papers to suggest that the restraints, formulated as they are
in terms narrower than those contemplated by the
original restraint
undertakings, go further than is necessary to protect Medtronic’s
legitimate proprietary interests. The
period of the restraint is not
unreasonable having regard to the time that Medtronic adverts will be
necessary to train replacement
salespeople and having regard further
to the useful life of the confidential information to which Van Wyk
and Potgieter had access
during the course of their employment by
Medtronic.
[37]
In summary: Potgieter’s employment with Globus in the Western
Cape, the Eastern Cape and Kwa-Zulu Natal will infringe
upon
Medtronic’s proprietary interests in its confidential
information and customer connection respectively. It is also clear

that Van Wyk’s employment by Globus in the Free State and
Northern Cape provinces will have the same consequence. These are
not
risks that Medtronic is required to run. The applicant is accordingly
entitled to the relief it seeks in the notice of motion.
Costs
[38]
Finally, there is no reason why costs should not follow the result.
I
make the following order:
1.
In respect of the application brought under case
number J 2019/15, the first respondent is interdicted and restrained
for a period
of 12 months from 30 September 2015, the date on which
his employment with the applicant terminated, until 30 September 2016
within
the Free State and Northern Cape provinces from:
1.1.
being employed by, or associated with, Globus
Medical South Africa (Pty) Ltd, whether directly and indirectly;
1.2.
being employed by, associated or concerned with,
or interested or engaged in, whether directly or indirectly,
any entity which
promotes or sells products in competition to the
applicant’s spinal surgery products;
1.3.
promoting, selling or being involved in any
capacity in the promotion or sale of any products, for or on behalf
of Global Medical
South Africa (Pty) Ltd or any other third party, in
competition to the applicant’s spinal surgery products;
1.4.
directly or indirectly, instructing, permitting
or requiring any other person to market, promote or sell any products
which compete
with the applicant’s spinal surgery products; and
1.5.
inducing, inciting, soliciting, encouraging or
procuring any employee, consultant, agent, representative or
contractor of the applicant
to vary or terminate their agreements or
arrangements with the applicant, to leave the employ of the
applicant, or to curtail,
restrict or alter their arrangements or
business dealings with the applicant in any way.
2.
The first respondent is interdicted and
restrained from disclosing any of the applicant’s confidential
information.
3.
In respect of the application brought under case
number J 2339/15, the first respondent is interdicted and restrained
for a period
of 12 months from 30 September 2015, the date on which
his employment with the applicant terminated, until 30 September 2016
within
the Western Cape, Kwa-Zulu Natal and Eastern Cape provinces
from:
3.1.
being employed by, or associated with, Globus
Medical South Africa (Pty) Ltd, whether directly and indirectly;
3.2.
being employed by, associated or concerned with,
or interested or engaged in, whether directly or indirectly, any
entity which promotes
or sells products in competition to the
applicant’s spinal and biologics surgery products;
3.3.
promoting, selling or being involved in any
capacity in the promotion or sale of any products, for or on behalf
of Global Medical
South Africa (Pty) Ltd or any other third party, in
competition to the applicant’s spinal and biologics surgery
products;
3.4.
directly or indirectly, instructing, permitting
or requiring any other person to market, promote or sell any products
which compete
with the applicant’s spinal and biologics surgery
products; and
3.5.
inducing, inciting, soliciting, encouraging or
procuring any employee, consultant, agent, representative or
contractor of the applicant
to vary or terminate their agreements or
arrangements with the applicant, to leave the employ of the
applicant, or to curtail,
restrict or alter their arrangements or
business dealings with the applicant in any way.
4.
The first respondent is interdicted and
restrained from disclosing any of the applicant’s confidential
information.
5.
The first and second respondents in each instance
are ordered to pay the costs of the proceedings under case numbers J
2019/15 and
J 2339/15, jointly and severally, the one paying the
other to be absolved, such costs to include the costs of two counsel.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION
For
the applicant: Adv. C Whitcutt SC, with him Adv. J Nicholson
instructed by Fasken Martineau
For
the respondents: Adv. A Snider, with him Adv. CL Robertson instructed
by Cliffe Dekker Hofmeyr Inc.