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[2017] ZALCJHB 503
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Shoprite Checkers (Pty) Ltd v Jansen and Another (J2761/17) [2017] ZALCJHB 503 (13 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Not
Reportable
Not
of interest to other judges
Case
No: J 2761/17
In
the matter between:
SHOPRITE
CHECKERS (PTY) LTD
Applicant
and
RUANE
JANSEN
First
Respondent
DIS-CHEM
PHARMACIES LTD
Second
Respondent
Heard:
22 November 2017
Order:
4 December
2017
Reasons:
13 December 2017
REASONS
BARNES
AJ
[1.]
On 4 December 2017 I made the following
order:
[1.1.]
The application is dismissed with costs.
[1.2.]
The undertaking made by the first and
second respondents and recorded in the letter from Saltzman Attorneys
to Cliffe Dekker Hofmeyr
dated 3 November 2017 at paragraph 2.18
thereof is made an Order of Court.
[2.]
I set out my reasons below.
Introduction
[3.]
This is an urgent application to enforce a
restraint of trade agreement.
[4.]
The applicant sought a final order in the
first instance, and an interim order only in the alternative. The
application was effectively
argued before me as one for final relief.
[5.]
The first respondent, Mr Jansen, was
employed by the applicant from 1 February 2011 until his resignation
on 14 October 2017. At
the time of his resignation, Mr Jansen was a
Groceries Buyer responsible for the purchasing of sweets, snacks,
biscuits, confectionary
and beverages for the applicant’s
stores in its Great North Division.
[6.]
Upon handing in his resignation, Mr Jansen
informed the applicant that he would be taking up employment with the
second respondent,
Dis-Chem Pharmacies (Pty) Ltd (“Dis-Chem”)
as a buyer.
[7.]
The applicant informed Mr Jansen that this
would constitute a breach of the restraint of the trade undertaking
he had signed in
the applicant’s favour. The applicant sought
to persuade Mr Jansen to withdraw his resignation and offered to
continue to
employ him, an offer which it reiterated at the hearing
of the application.
[8.]
Mr Jansen was unpersuaded. He accepted that
he had signed a restraint of trade undertaking in the applicant’s
favour. He contended
however that it would not be enforceable in
precluding him from taking up employment with Dis-Chem.
[9.]
Mr Jansen commenced employment with
Dis-Chem on 20 November 2017.
[10.]
The applicant launched this application
expeditiously after exhausting attempts to convince Mr Jansen to
comply with his restraint
of trade undertaking. I am satisfied that
it was justifiably brought as one of urgency.
Background
Facts
[11.]
Mr Jansen commenced employment with the
applicant on 1 February 2011 as an Assistant Manager Designate. The
applicant attached Mr
Jansen’s contract of employment, signed
on 28 February 2011, to its founding affidavit. This contract, on the
face of it,
contains no restraint of trade clause. However, Mr Jansen
stated in his answering affidavit that his contract did include a
restraint
of trade undertaking in substantially similar terms to the
undertakings which he signed in subsequent years during his
employment
with the applicant. Those undertakings are set out below.
[12.]
Mr Jansen moved quickly through the
applicant’s ranks. Not long after his appointment, in April
2011, the applicant promoted
him to Regional Fruit and Veg
Specialist.
[13.]
In May 2013, Mr Jansen was appointed as a
Trainee Buyer in the applicant’s Food Buying Department. Prior
to commencing in
this position, on 7 May 2013, Mr Jansen signed a
confidentiality and restraint undertaking in favour of the applicant.
This formed
an addendum to Mr Jansen’s contract of employment.
[14.]
On 1 December 2014, Mr Jansen was promoted
to the position of Groceries Buyer. Pursuant to his appointment in
this position, Mr
Jansen signed a further confidentiality and
restraint undertaking in favour of the applicant. He did so on 11
December 2014. This
undertaking too formed an addendum to Mr Jansen’s
contract of employment.
[15.]
The undertakings signed by Mr Jansen on 7
May 2013 and 11 December 2014, respectively, are in identical terms.
They provide as follows:
“
Confidentiality
and Restraint
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 insofar as is necessary and
appropriate) disclose
to any person, without the written consent of
the Company, any confidential or proprietary information as the
business, operations,
dealings or any other affairs of the Company
during your employment or after the termination of your contract of
employment.
2.
You agree further that, should you become
involved in any business or other activity competing 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 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 of franchisee, or in any other capacity, be engaged,
retained or employed or have a material interest in any Company,
business, firm person, enterprise or undertaking, carrying on a
business involving the distribution and/or sale, through chain
retail
stores, of any food or related products, household products,
furniture, beverages or any other product, product category
or other
items that are distributed by, and/or sold through the retail chain
operations of the Company or any associated Company.
3.
You will not, either for yourself, or as
the agent of anyone else, persuade, induce, solicit, encourage or
procure (or endeavour
to do any of the aforegoing) any of the
Company’s employees to become employed by or interested in any
manner whatsoever
in any business, firm, undertaking or company
(collectively referred to herein as ‘any concern’)
directly or
indirectly in competition with the Company, or to
terminate employment with the Company, nor will you furnish any
information or
advice acquired by you as a result off your
employment with the Company, to any person whomsoever, which
results or may result
in any of the Company’s employees
becoming employed by or interested in any manner whatsoever, whether
directly or
indirectly, in any concern.
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.”
(“the restraint”)
[16.]
As a Groceries Buyer, Mr Jansen was one of
a team of 13 Buyers and 3 Trainee Buyers who reported to the
applicant’s Head of
Buying and Marketing: Great North Division,
Mr Charles Ochse. Mr Jansen had initially been responsible for
purchasing in the paper
and plastics categories. This encompassed
items such as sandwich bags, freezer bags, cling wrap, foil, toilet
paper, roller towels
and serviettes. From the end of 2016 until his
resignation Mr Jansen was responsible for purchasing in the
categories of sweets,
snacks, biscuits, confectionary and beverages.
[17.]
The applicant’s application is
premised on the contention that Dis-Chem is its competitor. The
applicant contended that, as
a Groceries Buyer, Mr Jansen was privy
to trade connections and confidential information, which are its
protectable interests,
and which stand to be prejudiced by Mr
Jansen’s employment at Dis-Chem.
[18.]
It is evident from the restraint that
clause 2 prohibits employment or engagement with the entities defined
therein for a period
for two years. The applicant however, sought to
enforce this clause against Mr Jansen for a period of one year only.
It also sought
the enforcement of clauses 1 and 3 of the restraint.
[19.]
In answer to the applicant’s
contentions, Mr Jansen submitted in the first instance that the
restraint is, on its terms, contrary
to public policy and
unenforceable.
[20.]
Secondly, and in the alternative, Mr Jansen
submitted that it would not be reasonable to enforce the restraint
against him. He contended
that this was so having regard to the
nature of Dis-Chem’s business vis-à-vis that of the
applicant and the fact that
they are not competitors. Mr Jansen
submitted that in this context, the applicant does not have a
protectable interest, alternatively,
even if it does, there could be
no question of any prejudice to the applicant.
[21.]
Mr
Jansen’s averments pertaining to the nature of Dis-Chem’s
business and the fact that it is not in competition with
the
applicant, were confirmed by Dis-Chem on the papers.
[1]
[22.]
Mr Jansen pleaded further that at Dis-Chem
he is designated to be a buyer for baby care, intimate care, foot
care, haircare, incontinence
and paper products and not beverages,
sweets, snacks, biscuits and confectionary.
[23.]
Prior to the commencement of the
litigation, Mr Jansen and Dis-Chem offered undertakings to the
applicant in the following terms:
“……
our
clients are willing to provide your client with the following
undertakings in an attempt to reassure your client and dissuade
it
from instituting the aforesaid proceedings:
Mr Jansen shall indefinitely abide by
items 1 and 3 of the restraint; and
Dis-Chem shall not employ or in any
way involve Mr Jansen as a buyer in respect of confectionary,
beverages and related products
for a period of 1 (one) year after
commencement of his employment with Dis-Chem, i.e., until 6 November
2018.”
[24.]
Mr Jansen and Dis-Chem tendered that the
aforesaid undertakings be made an Order of Court.
The
Applicable Law
[25.]
Prior
to
Magna
Alloys and Research SA (Pty) Ltd v Ellis (“Magna Alloys”),
[2]
restraints of trade were only enforceable if they were proved to be
reasonable. The effect of
Magna
Alloys
was to reverse this position, by placing an
onus
on the party sought to be restrained, to prove on a balance of
probabilities, that the restraint was unreasonable. Since then the
position has been that restraints of trade are enforceable unless
they are proved, by the party sought to be restrained, to be
unreasonable.
[26.]
However,
as the Labour Appeal Court noted in
Ball
v Bambalela Bolts (Pty) Ltd
[3]
and another:
“
Because the
right of a citizen to freely choose a trade, occupation or profession
is protected in terms of section 22 of the Constitution
and a
restraint constitutes a limitation of that right, the
onus
may well be on the party who seeks to enforce the restraint to prove
that it is a reasonable or justifiable limitation of that
right of
the party sought to be restrained. (see
Fidelity
Guards Holdings (Pty) Ltd t/a Fidelity Guards v Pearmain
2001
(2) SA 853
(SE) at 862;
Canon
KwaZulu Natal (Pty) Ltd t/s Canon Office Automation v Booth and
another
2005
(3) SA 205
(N). Also compare
Affordable
Medicines Trust and others v Minister of Health of RSA and another
2005 (6) BCLR 529 (CC))”
[4]
[27.]
In
Reddy
v Siemens Telecommunications (Pty) Ltd,
[5]
the Supreme Court of Appeal held that the question of the
reasonableness or unreasonableness of a restraint is always a value
judgment which involves the weighing up of two policy considerations:
the public interest which requires that parties to a contract
comply
with their contractual obligations (
pacta
servanda sunt
)
and the principle that a citizen should be free to follow a trade,
occupation or profession of her choice.
[6]
[28.]
The
value judgment must be based on factual findings, after any disputes
have been resolved in the respondent’s favour by
the
application of the
Plascon
Evans
rule.
[7]
Thus the Supreme Court of Appeal held in
Reddy
v Siemens Telecommunications
that if the facts, assessed in this way, disclose that the restraint
is reasonable then the party seeking the restraint order must
succeed. If on the other hand, those facts show that the restraint is
unreasonable, then the party sought to be restrained must
succeed.
“
What
this calls for is a value judgment, rather than a determination of
what facts have been proved, and the incidence of the onus
accordingly plays no role.
”
[8]
[29.]
The
test for reasonableness of restraint of trade provisions remains that
set out in
Basson
v Chilwan and others
[9]
where the court held that the facts are to be assessed with reference
to the following questions:
(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 weigh 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 be maintained or rejected?
[10]
[30.]
In
Kwik
Kopy (SA) (Pty) Ltd v Van Haarlem and another
[11]
the court added a further consideration, namely whether the restraint
is wider than what is necessary in order to protect the protectable
interest.
[31.]
As stated above, Mr Jansen submitted, in
the first instance, that the restraint falls to be declared
unenforceable on the grounds
that it is contrary to public policy on
its terms.
[32.]
This is so, he submitted, because the
restraint as it stands may preclude Mr Jansen’s employment for
two years anywhere in
the Republic of South Africa (a) by any entity
that carries and sells the same products as those sold by the
applicant and its
associate companies and (b) by any entity that
trades in competition with the applicant and its associated
companies.
[33.]
Mr Jansen submitted that, as such, the
restraint is manifestly overbroad and restricts, for no legitimate
purpose, economic freedom
and the right of an individual to choose
her occupation.
[34.]
An approach which seeks to have a restraint
declared unenforceable, on its terms, without regard to the
reasonableness or otherwise
of the form in which its enforcement is
sought, is against the weight of prevailing authority.
[35.]
In
Den
Braven SA (Pty) Limited v Pillay and another
,
[12]
a case in which the same approach was attempted, the court held as
follows:
“
As regards
the authorities I have dealt with those above. They show in my view
that it is inappropriate to have resort to general
principles of
severability in approaching a restraint of trade agreement that is
too widely drawn but which is sought to be enforced
only in respect
of conduct which manifestly falls within its terms and in respect of
which the enforcement would be fair and reasonable
in accordance with
the norms of public policy derived from the Constitution. In my view
it forms no part of the analysis in that
situation to ask whether the
agreement as a whole is so broad that it will be unenforceable if
enforcement is sought of its terms
in their entirety. There mere fact
that only limited relief is being sought will ordinarily indicate
that this is the case. 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.”
[13]
[36.]
This is the approach I intend to follow.
The conduct which the applicant seeks to interdict in this case
clearly falls within the
ambit of the restraint. I shall therefore
proceed to determine, by applying the test set out in
Basson
v Chilwan,
whether it would be
reasonable to enforce the restraint to the extent sought by the
applicant.
[37.]
The first question for determination in
terms of the
Basson v Chilwan
test
is whether the applicant has an interest worthy of protection after
the termination of the agreement, that is, a protectable
interest. It
is by now well established that a protectable interest may be of two
broad kinds:
“
The first
kind consists of the relationships with customers, potential
customers, suppliers and others that go to make up what is
compendiously referred to as the ‘trade connections’ of
the business, being an important part of its incorporeal property
known as goodwill.
The second kind
consists of all confidential matter which is useful for the carrying
on of the business and which could therefore
be used by a competitor,
if disclosed to him, to gain a relative competitive advantage.”
[14]
[38.]
As
far as trade connections are concerned, it is well established that a
protectable customer or supplier relationship exists where
an
employee has personal knowledge of, and influence over, the customers
(or suppliers) of her employer so as to enable her, if
the
competition was allowed, to induce the customer or supplier to follow
her to the new employer.
[15]
[39.]
In relation to confidential information,
there is no closed list of the type of information that may be
confidential. However, certain
requirements must be satisfied in
order for information to properly qualify as confidential in this
context. These are the following:
(a)
The information must involve and be capable
of application in trade or industry, that is, it must be useful.
(b)
The information must not be public
knowledge and public property, that is, objectively determined, it
must be known only to a restricted
number of people or to a closed
circle.
(c)
The
information objectively determined must be of economic value to the
person seeking to protect it
[16]
and be objectively useful to a competitor.
[17]
[40.]
There
is a dispute in this case as to whether or not the applicant and
Dis-Chem are competitors. This has important implications
for the
confidentiality of the information sought to be relied on by the
applicant, for if Dis-Chem is in fact not the applicant’s
competitor, then the applicant’s information would be of no use
to Dis-Chem and would accordingly not qualify as confidential.
[18]
[41.]
In
Value
Logistics Ltd v Paula Smit and Another,
[19]
the court, even presuming that the relevant businesses competed with
each other, found that the information in question was of
no use to
the so-called competitor and therefore could not be classified as
confidential for purposes of protection by a restraint.
[42.]
The second question for determination in
terms of the
Basson v Chilwan
test is whether, if a protectable interest is found to exist, it
would be prejudiced by Mr Jansen’s employment at Dis-Chem.
Here
too, the question of whether the applicant and Dis-Chem are
competitors is important.
[43.]
As John Saner states in his book
Agreements
in Restraint of Trade in South African Law:
“
Even where
protectable interests exist, for example in the form of confidential
information to which the respondent had been exposed,
if the
respective companies are not in competition with each other, then the
confidential information will effectively be useless
in the hands of
the respondent’s new employer which will in turn lead to a
finding of the unreasonableness of the restraint.”
[20]
[44.]
This
is what transpired in
Shoprite
Checkers (Pty) Ltd v Coskey
(“Coskey”),
[21]
a case in which the applicant sought to enforce a restraint against a
former employee who took up employment at Federated Timbers
(Pty)
Limited trading as Builders Trade Depot (“Federated Timbers”).
The restraint sought to be enforced by the
applicant in that
case was identical to the restraint sought to be enforced in this
case.
[45.]
In
Coskey
,
the applicant contended that because it sold certain limited lines of
general hardware and building ware, Federated Timbers was
one of its
competitors.
[46.]
The court in
Coskey
found that the applicant and Federated Timbers were not in
competition with one another in any substantial sense and therefore
that any information which may have been in the knowledge or
possession of the applicant’s former employee, even if
confidential,
was completely irrelevant to Federated Timber’s
operations. For these reasons the court found that it would be
unreasonable
to enforce the restraint and declined to do so.
Applying
the Law to the Facts
The
Applicant’s Contentions
[47.]
In support of its contention that Dis-Chem
is its competitor, the applicant pleaded as follows:
“
Although the
second respondent is primarily a pharmacy group, its retail
pharmacies also sell personal care, baby care, confectionary,
dry
grocery, household and other ancillary products. It is in this
specific area in which the second respondent competes with the
applicant.”
[48.]
Insofar as its protectable interest is
concerned, the applicant contended that Mr Jansen had been privy to
its confidential information.
This, according to the applicant, was
the following:
“
The First
Respondent is privy to not only the prices for the various categories
which
he was required to obtain on behalf
of the Applicant, but also the pricing structure, including the
discounts and other incentives
which form part of competitive
pricing.”
[49.]
The applicant accepted that prices
themselves fluctuated on a regular basis but contended that its
pricing structures and discount
structures were highly confidential:
“
Although the
specific prices would change from time to time, depending on each
negotiation, the basic structure and the terms within
which the
negotiations
take place, which is
confidential to the applicant would provide him and his new employer
with the unfair competitive edge.”
[50.]
The applicant also, albeit more faintly,
contended that Mr Jansen’s exposure to its trade connections,
and its suppliers in
particular, constituted a protectable interest:
“…
by
virtue of his employment with the Applicant, First Respondent was
privy to the names and other details of those suppliers he
got to
know during his employment and was able to build up a special
relationship with them, one which (apart from his knowledge
of their
specific prices, pricing structures and the resultant margins) would
allow him to try and convince these suppliers to
do business with
second respondent in the future to the prejudice of the Applicant.”
The
First Respondents’ Contentions
[51.]
Mr Jansen pleaded as follows:
[51.1.]
The applicant and Dis-Chem are not
competitors. The applicant is the largest retail supermarket in the
country. It is not a pharmacy.
Dis-Chem is first and foremost a
pharmacy. The applicant and Dis-Chem are fundamentally different
businesses with different customer
focuses. They do not compete for
market share.
[51.2.]
For from being competitors, the applicant
and Dis-Chem are complementary stores and are, for this reason, often
placed in close
proximity to one other in shopping malls.
[51.3.]
Dis-Chem has been trading for more than 30
years and can fairly be described as well established to the point of
being a household
name and market leader. There can be no risk of
Dis-Chem seeking to “springboard” off the applicant’s
trade connections
or confidential information in these circumstances.
[51.4.]
Dis-Chem is a sophisticated modern business
with an established network of suppliers and established pricing
structures tailored
to its core business which is the retail of
pharmaceutical goods and products. It does not seek to copy the
applicant’s business
model and does not require the applicant’s
information for its operations.
[51.5.]
Where there is limited overlap of the goods
sold by the applicant and Dis-Chem, they use some of the same
suppliers. There
is no risk of Mr Jansen inducing suppliers
away from the applicant in these circumstances. But in any event,
given the applicant’s
market share and buying power, the notion
that its suppliers could be persuaded not to do business with it is
far-fetched.
[52.]
As noted above, Mr Jansen’s averments
pertaining to the nature of Dis-Chem’s business and the fact
that it is not in
competition with the applicant were confirmed by
Dis-Chem on the papers.
Analysis
[53.]
Mr Jansen made much of the fact that at
Dis-Chem he will not be responsible for buying sweets, snacks and
beverages but will be
working in an entirely different department. I
agree with Mr Stelzner, who appeared for the applicant, that this
does not necessarily
eliminate the risk faced by it the applicant if
indeed, it is found, legitimately, to be at risk. The fact that Mr
Jansen is employed
in baby care, intimate care and so forth would not
preclude him from disclosing confidential information and seeking to
exploit
trade connections in the categories of sweets, snacks and
beverages, if he wished to do so. The question is whether the
applicant
has a protectable interest which would be prejudiced by Mr
Jansen’s employment at Dis-Chem.
[54.]
In
argument, Mr Stelzner placed heavy reliance on two judgments of this
court which enforced a restraint, in identical terms to
the present
one, at the instance of the applicant. The judgments are
Shoprite
Checkers (Pty) Ltd v Jordaan and Another
[22]
and
Shoprite
Checkers (Pty) Ltd v Jana Alida Thirion.
[23]
Mr Stelzner submitted that the facts in those cases are sufficiently
similar to the facts of the present case for the judgments
to be on
point and that I am accordingly, unless I find that those judgments
were wrongly decided, bound to follow them.
This submission is
not correct. The second respondent in both those cases was Pick n Pay
Holdings Limited, a direct competitor
of the applicant. That alone
makes the facts of those cases wholly different from the present one.
In my view, the facts of the
present case are far more similar to
those in
Coskey,
a case to which I was not referred by the parties.
[55.]
The dispute as to whether or not the
applicant and Dis-Chem are competitors falls to be resolved in
accordance with the
Plascon-Evans
rule. Applying that rule to the pleadings, I find that this is
case where, like
Coskey
,
the businesses are substantially different and do not compete for
market share and the fact that there is some limited overlap
in goods
sold is insufficient to render them competitors.
[56.]
The applicant is best described as a
grocery retailer. Its primary business is selling food and related
fast moving consumer goods
to consumers. Those consumers frequent its
supermarkets with the primary purpose of doing their periodic grocery
shopping. Dis-Chem,
by contrast, is primarily a pharmacy chain. Its
stores are established to sell pharmaceuticals, although they do also
offer their
customers general medical (first aid and self
medication), health (vitamins and sport supplements) and beauty and
personal care
products. To the extent that Dis-Chem sells sweets,
snacks and beverages, this is an incidental offering. Put simply,
while Dis-Chem
customers may reach for a chocolate bar while waiting
in the queue to pay for their medicines, they are unlikely to choose
Dis-Chem
as their destination store to buy their grocery supplies of
sweets, snacks and beverages.
[57.]
It is common cause that the applicant and
Dis-Chem use some of the same suppliers in respect of overlapping
goods. Those suppliers
could obviously not be induced to do business
with Dis-Chem at the expense of the applicant. They already do
business with both.
Furthermore, and in any event, the applicant’s
market share and buying power is fairly described as “gargantuan”
in Mr Jansen’s answering affidavit. I agree that in these
circumstances, the notion that Mr Jansen would be able to induce
them
not to do business with the applicant (or to somehow do business with
Dis-Chem at the expense of the applicant) is far-fetched.
I therefore
find that Mr Jansen’s exposure to the applicant’s trade
connections does not give the applicant a protectable
interest in
this case.
[58.]
Turning then to Mr Jansen’s exposure
to the applicant’s confidential information, that is, its
pricing and discount
structures. Having found that the applicant and
Dis-Chem are not competitors, it follows that any information that Mr
Jansen may
presently have would not be objectively useful to
Dis-Chem. In any event, given the applicant’s
considerable size and
buying power, it is most unlikely that Dis-Chem
could derive any benefit from knowing the applicant’s current
pricing and
discount structures. I am therefore of the view
that it is not ‘confidential’ vis-á-vis Dis-Chem,
and
for this reason does not give the applicant a protectable
interest in the context of this case.
[59.]
For all these reasons I am of the view that
it would not be reasonable to enforce the restraint as sought by the
applicant. I therefore
dismissed the application.
[60.]
I fully accept that an employee cannot
escape a reasonable restraint by giving an undertaking. However this
does not render the
undertakings given by the respondents incapable
of enforcement and therefore meaningless, as suggested by Mr Stelzner
in argument.
Particularly when made an Order of Court, the
undertakings provide comfort and assurance that Mr Jansen and
Dis-Chem will not act
in contravention thereof and are certainly
capable of enforcement.
________________________
H BARNES
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant: Adv R Stelzner SC
Instructed
by:
Cliffe Dekker Hofmeyr
For
the Respondent: Adv J Daniels with Adv H Van Zyl
Instructed
by:
Saltzman
[1]
In
confirmatory affidavits attached to Mr Jansen’s answering
affidavit deposed to by Saul Lever, Dis-Chem’s HR Manager
and
Mr Ronald Govender, a Senior Dis-Chem Executive.
[2]
1984 (4) SA
874 (A)
[3]
[2013] 9
BLR 843 (LAC).
[4]
At para 13.
[5]
2007 (2) SA
486 (SCA).
[6]
Reddy v
Siemens Telecommunications,
at
para 15.
[7]
Plascon
Evans Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A). The rule is applicable in labour matters; see
Fry’s
Metals (Pty) Ltd v NUMSA and Others
[2003] 2 BLLR 140 (LAC)
[8]
Reddy v
Siemens Telecommunications,
at
para 14.
[9]
1993 (3) SA
742 (A).
[10]
At 767A –
D. This test has been regularly applied by this court. See for
example
Esquire
System Technology (Pty) Ltd t/a Esquire Technologies v Cronje and
Another
(2011) 32 ILJ 601 (LC);
Shoprite
Checkers (Pty) Ltd v Jordaan and Another
(2013) 32 ILJ2105 (LC) and
Medtronic
(Africa) (Pty) Ltd v Van Wyk and Another
(2016) 37 ILJ 1165 (LC).
[11]
1999 (1) SA
472 (W).
[12]
[2008] 3
All SA 518 (D)
[13]
At para 50.
[14]
Kwik Kop
(SA) (Pty) Ltd v Van Haarlem
supra at
paras 14 -17.
[15]
Rawlins
& another v Caravantruck (Pty) Ltd
[1992] ZASCA 204
;
1993 (1) SA
537
(A) at 541E; 543 C-G.
[16]
Alum-Phos
(Pty) Ltd v Spatz
[1997] 1
All SA 616
(W) at 623f -624a;
Aranda
Textile Mills (Pty) Ltd v Hum
[2000] 4 All SA 183
(E) at 190 i – d;
Townsend
Productions (Pty) Ltd v Leech
[2001] 2 All SA 255
(C);
Canon
KwaZulu Natal (Pty) Ltd v Booth
2001 (1) BCLR 39
(N);
Advtech
Resourcing (Pty) Ltd v Kuhn
[2007] 4 All SA 1386 (C).
[17]
Dickinson
Holdings Group v Du Plessis
2008 4 SA
214
(N) at para 35;
Coolair
Ventilator Co (SA) (Pty) Ltd v Liebenberg
1967 1 SA 686
(W) 689 and
Hirt
& Carter (Pty) Ltd v Mansfield
2008 3 SA 512
(D) 523 at para 46.
[18]
See Saner
Agreements
in Restraint of Trade in South African Law
(Lexis Nexis) at 7-31.
[19]
Unreported
case no 2013/9906 (GSJ).
[20]
Supra at
7-8.
[21]
Unreported
case no 11 626/2008 (D), (2009 JDR 0013 (D).
[22]
(2013) 34
ILJ 2105 (LC).
[23]
Unreported
judgment handed down on 19 April 2017 under case number C82/2017.