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[2017] ZALCJHB 141
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Aquatan (Pty) Ltd v Janse Van Vuuren and Another (J838/2017) [2017] ZALCJHB 141; (2017) 38 ILJ 2730 (LC) (4 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No: J 838 / 2017
In
the matter between:
AQUATAN
(PTY)
LTD
Applicant
and
HEINRICH
JANSEN VAN
VUUREN
First Respondent
ENGINEERED
LININGS
(a
division of PSV INDUSTRIAL (PTY)
LTD)
Second Respondent
Heard:
19 April 2017
Delivered:
4 May 2017
Summary:
Restraint of trade – duration -
restraint
is unreasonable in relation to the nature of the protectable interest
when balanced against the countervailing right of
the employee to
work in his trade – applicant
has
the duty to set out a proper basis for the partial enforcement or the
reading down of a restraint of trade agreement
JUDGMENT
Whitcher J
[1] This urgent
application is to enforce a restraint of trade agreement concluded
between the applicant and the first respondent,
in terms of which the
first respondent agreed to refrain from being employed by a
competitor of the applicant for a period of three
years from the
termination of his employment with the applicant.
[2] The restraint sought
by the applicant is unlimited in regard to area, notwithstanding that
the restraint agreement is limited
to a defined territory, namely the
Republic of South Africa, Botswana, Lesotho, Swaziland, Zimbabwe and
Namibia.
[3] The applicant
employed the first respondent, a qualified civil engineer, in the
capacities of contracts manager, executive contract
manager and sales
manager for a period of 13 years and 5 months. Both the first
respondent’s initial offer of employment
as Contracts Manager
and his later appointment to Sales Manager contain confidentiality
undertakings in terms of which he agreed
that during his employment
with the applicant he would acquire confidential information of the
applicant and deal with the applicant’s
customers, and, as a
result, he agreed to refrain from being employed by a competitor of
the applicant - for three years in respect
of the later agreement.
[4] On 24 March 2017, the
first respondent resigned from the applicant and took up employment
with a direct competitor of the applicant.
Both the applicant and
Engineered Linings, which trades as a division of the second
respondent, are specialists in the supply and
installation of
synthetic geo-membrane lining used for the containment of liquids and
waste, environmental protection and concrete
corrosion protection.
[5] The first respondent,
in his opposing affidavit, attempted to downplay his role in - and
knowledge of - the following aspects
of the applicant’s
business. However, having regard to his qualifications, the nature
and requirements of the positions he
held during his 13 years of
service, I find it inconceivable that he did not acquire
intimate
knowledge of the applicant’s installation, project management,
quality control, costing, pricing, marketing and tender processes,
potential projects, enquiries register and the applicant’s
customers, target customers, suppliers and consulting engineers.
He
admitted same to some extent in a letter to the managing director of
the applicant:
“
In dertien jaar
het ek soveel op site en Aquatan se naam hoog gedra en soveel in
diepte van site kondisies geleer en vrae wat konsultante
het en
waarvoor uitgekyk word i.t.v spesifikasie en installasie prosedures”.
[6] The applicant’s
claim that, apart from its managing director, the first respondent
has the most comprehensive technical
knowledge and experience in the
applicant and that he was often consulted to assist with the more
technically complex estimates
to provide accurate costing is highly
plausible.
[7] The question,
however, is whether the information the first respondent acquired is
worthy of protection as trade secrets and
whether he had such
personal knowledge of, and influence over, the customers of the
applicant as would enable him to take advantage
of the applicant’s
trade connections.
[8] The applicant sought
to rely on, amongst others, the part of the agreement wherein the
first respondent agreed he would acquire
confidential information and
customer connections during his employment and, further, acknowledged
the reasonableness of the restraint.
This is misplaced. It is trite
that the reasonableness of the restraint is determined with reference
to the circumstances at the
time the restraint is sought to be
enforced.
[9] In
Advtech
Resourcing (Pty) Ltd t/a Communicate Personnel Group v Kuhn,
[1]
the
court found that:
[17] The fact
that parties to an agreement choose to describe a restraint as being
reasonable, as in the
present case, is not itself decisive. The
reasonableness or otherwise thereof is a matter for the court to
determine (
Basson
(supra) at 768A - C) . . .
[10] Turning to whether
the knowledge acquired by the first respondent while employed by the
applicant constituted trade secrets
(and thus should be protected),
the court in
Experian SA (Pty) Ltd v Haynes and Another,
stated:
It is trite that
the law enjoins confidential information with protection. Whether
information constitutes a trade secret is a factual
question. For
information to be confidential it must be capable of application in
the trade or industry, that is, it must be useful
and not be public
knowledge and property;
known
only to a restricted number of people or a close circle
;
and be of economic value to the person seeking to protect it.
[2]
(emphasis added)
[11] I note here that, at
the commencement of the hearing, with no prior notice to the first
respondent’s legal team, the
applicant tendered a confidential
affidavit for the court’s attention. I did not accept it
because it was not tendered to
the first respondent’s attorney
and counsel, which had been possible with appropriate non-disclosure
undertakings. The third
respondent, at least through his legal
counsel, accordingly had had no opportunity to make representations
on the contents thereof.
I did not permit an adjournment because the
applicant claimed the application was urgent and ought to have
anticipated the first
respondent’s objection.
[12] In my view, the
papers before me demonstrate that the first respondent was, by and
large, not exposed to trade secrets. The
applicant failed to
demonstrate that the first respondent was exposed to techniques,
technology and installation processes unique
to the applicant and
exclusively in the knowledge of the applicant. Unlike the applicant,
the first respondent pertinently dealt
with this issue in his
affidavit and gave detailed evidence that the applicant does not use
unique, secret technology and installation
processes. The technology
and installation processes in the industry is reasonably standard and
readily available in the public
domain [conferences, specialist
magazine articles and so on]. The applicant’s patented
products and solutions are available
to all in the industry. It has,
in any event, recourse to patent law to protect unauthorised use of
these products or methods.
[13] On the papers, the
only unpatented material unique to the applicant is Hyperliner. I,
however, accept that the first respondent
does not know the formula
used in the manufacturing process, nor was this alleged.
[14] The only product
uniquely manufactured by the applicant, again on the papers, appears
to be HiDrain. In my view, the knowledge
acquired by the first
respondent about the use and installation of this one specific
product does constitute a trade secret. I
will return to this finding
later, pausing to note here, however, that the first respondent’s
submission in his answering
affidavit that similar products (cupsated
drain cores) are available from numerous suppliers was not contested
in reply.
[15] I accept the first
respondent’s reasoning that information pertaining to potential
projects, particularly major ones,
is available in the industry
generally in that the majority of projects go out to tender. The
applicant did not direct the court’s
attention in its founding
affidavit to any particular project in which it possessed specific
knowledge that the first respondent
acquired and could misuse.
[16] The applicant
alleges in reply, (for the first time and impermissibly), that its
company specific standards far exceed (the
applicant does not say
how) those in the public domain and that its SANS 10409 is currently
under review and the first respondent
is familiar with the rewrite.
[17] The applicant
provided no substantive evidence to gainsay the first respondent’s
testimony that the industry is small,
with common suppliers,
customers and consultants such that the first respondent did not
acquire knowledge of the
specific
needs and methodologies of
the applicant’s customers – the needs and requirements
and methodologies of the customers
in the industry are known to the
companies that operate in the industry. Indeed, since the
majority of projects go out to
tender, these customers’ needs
would be published for all to see. The first respondent also
plausibly disputed that his relationships
with consultants is
unique in some way such that he knew how, other than through the
obvious mechanism of payment, to obtain priority
service from them.
[18] I am further not
convinced that the applicant made out a sufficient case in its
founding affidavit that its software was in
any way specialised.
[19] With regard to
costings, I accept that this constitutes a trade secret and that the
first respondent’s position would
have given him insight into
such. This would include mark-up or margin policies, overhead costs
and supplier pricing arrangements.
However, the first respondent
avers that since August 2016, he was no longer involved in costing
work and any knowledge he may
have is no longer current. This
evidence was not disputed in reply meaning that the court may accept
that the first respondent’s
knowledge of costings is already
eight months old.
[3]
[20] The applicant has
not disputed the averment that labour and material prices increase
annually and the applicant must further
continually adjust its
costings to take into account the volatile rand / dollar exchange
rate. Notwithstanding the above, I do
find that the applicant has a
protectable interest in keeping this information, of economic value,
confidential. Whether a restraint
for the full period three year
period is reasonable is a matter I will return to later.
[21] I accept that the
first respondent possesses knowledge of specific customer needs that
could be conveyed to his new employer
to the prejudice of the
applicant. Specifically, he probably knows how a customer or
consultant could be influenced by alternative
specifications, higher
standards, or alternative products which could ensure the successful
award of a tender or project. However,
in my view, the nature of this
knowledge is not proprietary. To the extent that the first
applicant’s technical competence
and experience in the industry
has given him a feel for how to structure a liquid containment
solution that best addresses a customer’s
needs – this is
more a skill he has developed and carries in his head than a discrete
piece of knowledge he has purloined
from the applicant’s
cabinet of trade secrets.
[22] It is seems obvious
that a major concern underlying this application is that the first
respondent possesses
technical
skills
and experience which he is able to strategically apply to give
whomever employs him a competitive advantage in marketing
their
services and drafting attractive tender proposals
[4]
.
This ability, however, has a value without reference to any of the
applicant’s secrets. It is an ability to strategically
apply
general technical knowledge and experience to the advantage of an
employer and, as stated above, does not belong to the applicant.
As
stated by the Labour Appeal Court in
Labournet
(Pty) Ltd v Jankielsohn and Another
[5]
:
Even if an employer spent time and
effort and money to train or “
skill
” an employee
in a particular area of work the employer has no proprietary hold on
the employee, or his, or her, knowledge,
skills and experience, even
if those were acquired at that employer.
[23] The same point was
made in
Sibex
Engineering Services (Pty) Ltd v Van Wyk and Another
[6]
,
where the court pointed out that:
In seeking to protect his ‘investment’
in training the workmen, the employer is pursuing an objective which
is unreasonable
and contrary to public policy. For public policy
requires that workmen should be free to compete fairly in the market
place to
sell their skills and know-how to their own best advantage;
and the enforcement of a restraint which has no objective other than
to stifle such free and fair competition is unreasonable and contrary
to public policy.
[24] Turning to the issue
of customer connections, in
Rawlins
v Caravantruck (Pty) Ltd,
[7]
it was held that whether there is an attachment between an employee
and customer
of
such a nature that the employee would be able to induce those
customers to follow him or her to another company is a question
of
fact to be determine in each case:
A great deal will depend on the
employee’s duties, his personality, the frequency of his
contact with clients and the duration
of such contact, what knowledge
he gains of their requirements and business, the general nature of
the relationship he or she has
with clients; whether the employee is
involved in the canvassing of customers and whether any customers
were lost after the employee
left his or her employment. This is
clearly not a closed list of factors.
[25] The first respondent
plausibly rebutted the applicant’s rather vague averments that
relationships the first respondent
may have developed with customers
or consultants placed him in a position to induce them to follow him
to the second respondent.
Once again, the majority of projects go to
tender, so the applicant’s customer base in that regard is not
specific to it.
Second, I agree that the applicant has not specified
in its founding affidavit the nature of the first respondent’s
relationship
with (any) customers such that they may plausibly cancel
orders already placed. It is an example of the rather broad and vague
manner in which the applicant pleaded its case that it does not
initially name any client with whom the first respondent could be
said to enjoy a ‘
strong’ enough
relationship to
likely induce such a client to terminate its work with the applicant.
[26] I turn now to what I
see as the defining issue in this case. The applicant contends that
it conducts business in South Africa,
the African continent and the
Indian Ocean Islands. It contends that a three year restraint is
necessary to protect the interests
it has identified.
[27] Aside from the
passages in the authorities already mentioned, the Labour Appeal
Court in
Labournet
succinctly summarized the law on restraint
of trade.
[39]
According to the decision in
Magna
Alloys and Research SA (Pty) Ltd v Ellis,
[8]
(“
Magna
Alloys
”)
restraints of trade are enforceable unless they are proved to be
unreasonable. Because the right of a citizen, to freely
choose a
trade, occupation, or profession and to practice such, is
constitutionally protected, the
onus
to
prove “
the
reasonableness
”
of a restraint might well have been affected.
[40]
In
Reddy
[9]
,
the Supreme Court of Appeal preferred not to become embroiled in the
issue of
onus
and
adopted a pragmatic approach, which according to it, was consistent
with an approach where there was a direct application
of the
Constitution to restraint agreements. This approach was specifically
adopted in respect of motion proceedings for the enforcement
of
restraints where the issue for determination was the reasonableness
of the restraint. In terms of that approach, where the facts,
concerning the reasonableness, had been canvassed in the affidavits –
genuine disputes of fact are to be resolved in favour
of the party
sought to be restrained by applying the
so-called
Plascon-Evans
rule.
[10]
If
the accepted facts show that the restraint is reasonable, then the
applicant must succeed, but if they show that the restraint
is
unreasonable then the respondent in those proceedings must
succeed.
[11]
[41]
The enquiry into the reasonableness of the restraint is essentially a
value judgment that encompasses
a consideration of two policies,
namely the duty on parties to comply with their contractual
obligations and the right to freely
choose and practice a trade,
occupation or profession. A restraint is only reasonable and
enforceable if it serves to protect an
interest, which, in terms of
the law, requires and deserves protection. The list of such interests
is not closed, but confidential
information (or trade secrets) and
customer (or trade) connections are recognised as being such
interests. To seek to enforce a
restraint merely in order to prevent
an employee from competing with an employer is not reasonable.
[12]
[42]
According to the Appellate Division in
Basson
v Chilwan and Others,
[13]
the
following questions require investigation; namely, whether the party
who seeks to restrain has a protectable interest, and whether
it is
being prejudiced by the party sought to be restrained. Further, if
there is such an interest – to determine how that
interest
weighs up, qualitatively and quantitatively, against the interest of
the other party to be economically active and productive.
Fourthly,
to ascertain whether there are any other public policy considerations
which require that the restraint be enforced. If
the interest of the
party to be restrained outweighs the interest of the restrainer –
the restraint is unreasonable and unenforceable.
[43]
It is now clear from,
inter
alia, Basson
and
Reddy
that
the reasonableness and enforceability of a restraint depend on the
nature of the activity sought to be restrained,
the
rationale
(purpose)
for the restraint, the duration of the restraint, the area of the
restraint, as well as the parties’ respective
bargaining
positions. The reasonableness of the restraint is determined with
reference to the circumstances at the time the restraint
is sought to
be enforced.
[14]
With reference particularly to the facts of this matter, it is an
established principle of law that the employee cannot be interdicted
or restrained from taking away his or her experience, skills or
knowledge, even if those were acquired as a result of the training
which the employer provided to the employee.
[15]
[44]
Even though it is acknowledged that it is difficult to distinguish
between the employee’s use
of his or her own knowledge, skill
and experience, and the use of his or her employer’s trade
secrets, it is accepted that
an employee cannot be prevented from
using what is in his, or her, head.
[16]
[45] Also
relevant to this matter are the principles relating to the
reasonableness of the duration of
the restraint. This aspect is
generally assessed as part and parcel of assessing the reasonableness
of the restraint, but it bears
mentioning that the duration must the
rational and reasonable. It cannot be reasonable if it is not
rational.”
[28] Above, I have found
that the applicant has a protectable interest, on the grounds of
confidentiality, in the following knowledge
that the employee
possesses: the use and installation of the HiDrain product; and
costings, which include mark-up or margin policies,
overhead costs
and supplier pricing arrangements.
[29] In respect of the
HiDrain product, while it is unique to the applicant, the first
respondent’s knowledge of its existence
and installation is
hardly a commercial game-changer. This is because other cuspated
drain core products are on the market for
anyone in the industry to
use. I did not understand the applicant to suggest that the second
respondent would copy this product
if it received details of the
HiDrain from the first respondent. Any prejudice likely to be
suffered would be limited to a competitor
having the benefit of a
first-hand assessment of how well HiDrain works and insight into what
cost savings it might entail.
[30] While it is
understandable that the applicant wishes to keep this secret, the
question I must answer is whether a three year
restraint is
reasonable in relation to this interest when balanced against the
countervailing right of the employee to work in
the only trade in
which he enjoys any prospects of income commensurate with what he
had. This is, in its nature,
a judgement call. To
my mind, the employee will likely lose far more than the applicant
should the restraint be enforced to protect.
Losing a job in the
present depressed economic climate is not something lightly to be
contemplated and does not seem justified
in light of all the nature
of the interests the applicant has established it has.
[31] In respect of the
costings, I take note of the applicant’s contention that its
pricing methodology does not change drastically
every year. The first
respondent partially denies this by stating that pricings themselves
change at least once a year. He also
states that for eight months
already, he had not played any role in costings. Consequently, again,
while the applicant has a protectable
interest in its recent costings
being confidential, this court in my view cannot reasonably enforce
such confidentiality for three
years. Such a period is obviously
excessive given the disconnection between the rationale for the
restraint (to protect trade secrets
unlikely to be in operation for
more than a year) and the duration of the restraint (three years).
[32] I turn now to
whether enforcing a restraint for a lesser period may be appropriate.
In its notice of motion the applicant asked
that the first respondent
be interdicted and restrained for a period of 3 (three) years from 30
April 2017,
alternatively for such a period as the court deems
reasonable and appropriate
.
[33] Although, I may have
been inclined to confirm a restraint for a shorter period, I decline
to accept the task of calculating
what this should be for the reasons
that follow.
[34] In
Benchmark
Signs Incorporated v Muller and Another
[17]
,
Molahleli
J neatly set out the law in this regard:
[21]
The
approach to adopt when dealing with the request for partial
enforcement is set out by
Kathree-Setiloane
J
in
Kelly
Group Limited v Capazorio and Others
[7]
in
the following terms:
“
[43]
I am of the view that there is much force in this contention for the
following reasons. Where a court
is asked to read down an agreement
so as to make it reasonable and, hence, enforceable, this must be
pertinently raised at the
outset, in the applicant’s papers,
and the facts must be set out in support of the severance itself and,
of the partial enforcement
of the restraint clause, so that the
issues can be fully ventilated.
[22]
In
Nampesca
(SA) Products (Pty) Ltd v Zaderer,
[8]
the
court
held
that:
“
Our Courts
are furthermore reluctant to cut down restraint clauses, unless it
can be done by deleting the oppressive parts neatly
and conveniently
(see
MacPhail
(Pty) Ltd v Janse van Rensburg and Others
1996
(1) SA 594 (T)
at
599B). Where only partial enforcement of a restraint is sought an
applicant must lay a proper basis for the enforcement of a
lesser
restraint (see the
MacPhail
case
supra
at
599C;
Sunshine
Records (Pty) Ltd v Frohling and Others
1990
(4) SA 782
(A)
at
795I). That has not been done in the instant case.”
[23]
In
Henred
Reuhauf (Pty) Ltd v Davel & Another
,
[18]
Lagrange
J correctly cautioned and warned against the development of a
practice in terms of which wide ranging restraints
are drafted, only
to be reformulated into more reasonable restrictions when the matter
comes to court. In this respect the
Learned Judge had the
following to say:
“
[21]
At the hearing on the matter, Mr Snyman for the applicant, submitted
that the applicant would be content
if the restraint were to be
imposed for a period of only 12 months in the Durban and Vryheid
regions. If the restraint was modified
in this fashion, the first
respondent would still be required to relocate if he wished to pursue
employment in the industry. Given
the slender nature of any
protectable interests that the applicant might have, even a more
circumscribed restraint would not justify
the limitations placed on
the first respondent's ability to work in the industry.
[22]
Moreover, the practice of cutting and trimming a manifestly
over-broad restraint at the behest of
the party which drafted it, is
not a practice the court should encourage. It would be wrong to
promote the practice of drafting
wide ranging restraints, which are
only reformulated into more reasonable prohibitions when the matter
comes to court, whereas
up to that point the sweeping scope of the
provision hangs over the employee like an exaggerated sword of
Damocles.”
[10]
[24] In
the present matter the applicant neither concedes nor acknowledges
that the restraint clause
is unreasonable but as stated above says
that it is only in the event that the court finds it to be so that
partial enforcement
should be made. The request for the partial
enforcement is that the geographic scope of the restraint be limited
to …The
period of the restraint be reduced to two years from
date of order.
[25]
It is generally accepted that the onus to prove unreasonableness in
cases of partial enforcement
still remains with the respondent.
However, the applicant has the duty to set out a proper basis for the
partial enforcement or
the reading down of the restraint. In
Macphail
(Pty) Ltd v Janse van Rensburg
[11],
the
Court after stating that the Courts are averse to cutting down the
restraint of trade clauses said:
“
Where a
party does ask for partial enforcement of a restraint, he must lay a
basis for the lesser restraint. See National Chemsearch
(SA) (Pty)
Ltd v Borrowman and Another (supra at 1114B-F and 1116G-H).
I accept that,
where a restraint clause is stated to be separable in its various
components, it will be easier for a Court to resort
to partial
enforcement
.”
[26]
The approach which was adopted by the applicant in this matter in
relation to the partial enforcement
is not different that in
Kelly
Group
where
the court in dealing with that issue had the following to say:
“
[44]
Having perused the applicant’s affidavits, it is clear that the
applicant only makes mention
in passing, in its replying affidavit,
that in the event of this Court concluding that the period of 24
months is not justifiable,
it will seek an order for a period of 18
months from date of termination of the first respondent’s
employment. This notwithstanding,
nowhere on its affidavits does the
applicant state that its 24 month restraint is too wide, and it seeks
to enforce something less
than that. Nor does it set out facts in
support of the severance or the partial enforcement of the restraint.
Therefore, severance
or partial enforcement has, in my view, not been
pertinently raised by the applicant. Accordingly, the case must be
dealt with
on the basis that the applicant seeks to enforce a 24
month restraint, and not on the basis of counsel’s submission
from
the bar. Accordingly, I am persuaded by the respondents’
submission that the applicant elected to seek to enforce the full
extent of the agreement on its papers. It should, therefore, be held
to this election, and the restraint should be held to be unreasonable
in its terms on this account too.”
[27] As
indicated earlier the issue of partial enforcement in the present
matter is raised for the
first time in the replying affidavit and
also without conceding that the restraint is over-board in terms of
both its duration
and geographic scope. Except for stating that the
severance should be for the duration of two years and the geographic
limit to
what is mentioned above, the applicant provides no other
details as to the partial enforcement.”
[35]
In this matter, the applicant only contemplates (but both fails to
set
out a proper basis
and
fails to make the necessary concession in the pleadings - for) a
partial enforcement or reading down of the duration of the
restraint
in its notice of motion. The reasonableness of a shorter duration was
thus not raised “
as
an issue to be dealt with in evidence and argument”.
[19]
Since this issue was not adequately canvassed, I decline to
cut
and trim the over-broad restraint the applicant wishes to enforce.
[36] In the circumstances
I thus find that the first respondent has discharged the onus of
showing that the restraint of trade provisions
in his contract are
unenforceable.
Order
[37] The application is
dismissed with costs.
__________________________
Whitcher J
Judge of the Labour Court
of South Africa
APPEARANCES:
For
the applicant:
Adv AJR
Booysen
Instructed
by:
A J Stone
Attorneys
For
the first respondent:
Adv L Hollander
Instructed
by:
Fluxmans Inc. Attorneys
[1]
2008 (2) SA 375 (C)
[2]
(2013) 34 ILJ 529 (GSJ) at para 19.
[3]
While I understand that the applicant claims that its costing
methodology is also a secret, it did not explain how knowledge
of
this methodology would help a competitor if the applicant
continually adjusted its margin, reduced overheads or obtained
better deals from suppliers which is an inevitable part of doing
business.
[4]
The applicant calls it “technical knowledge” (including
the strategic application to maintain a competitive advantage.
[5]
(JA48/2016) [2017] ZALAC 7
[6]
[1992] ZASCA 204
;
1991 (2) SA 482
(T)
1993 (1) SA
537
(A) at 541 G-I
[8]
1994 (4) SA 574 (A)
[9]
R
eddy v Siemens Telecommunications (Pty) Ltd
2007 (2) SA 406 (SCA)
[10]
See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634
[11]
See
Reddy v
Siemens Telecommunications (Pty) Ltd
(above)
at 496B-D; and the LAC’s decision in
Ball
v Bambalela Bolts (Pty) Ltd and Another
(above)
at para 14.
[12]
See
Ball v
Bambalela Bolts (Pty) Ltd and Another, supra.
[13]
[1993] ZASCA 61
;
1993 (3) SA 742
(A) at 767E-I.
[14]
See:
Reddy v Siemens Telecommunications (Pty) Ltd (above)
at
497F, at para 16;
Ball v Bambalela Bolts (Pty) Ltd (above)
at
para 17.
[15]
See: inter alia,
Easy Find International SA (Pty) Ltd v Insta
Plan Holdings
1983 (3)
SA
917
(W)
at 929F-930A and the
cases cited there.
[16]
See; for example,
Northern Office Microcomputers (Pty) Ltd v
Rosenstein
[1981] 4
All SA
509
;
1981 (4) SA 123
(C); Knox
D’Arcy Ltd v Jamieson
[1992] 4
All SA
275
;
1992 (3) SA
520
(W).
In, inter alia,
Automotive Tooling Systems (Pty) Ltd
v Wilkens
2007 (2) SA 271
(SCA) at 282E-G
, it was held that the
skills which an employee acquired in the course of developing his or
her trade, even if they were specialised,
did not constitute a
protectable interest of the employer who sought to restrain the
employee.
[17]
(J1153/16) [2016] ZALCJHB 238, unreported, (7
July 2016).
[18]
(2011) 32 ILJ 618 (LC).
[19]
Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 of
Synthesis
(4) SA 874 (A) at 896A - E