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[2018] ZALCJHB 2
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Macneil Jhb (Pty) Ltd v Cocolaras and Another (J1722/17) [2018] ZALCJHB 2 (11 January 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
C
ase No: J 1722/17
In
the matter between:
MACNEIL
JHB (PTY) LTD
Applicant
and
MICHAEL
NICHOLAS COCOLARAS
BOLTFIX (PTY) LTD
First
Respondent
Second Respondent
Heard
:
12 December 2017
Delivered
:
11 January 2018
Summary:
Practice and procedure – urgent application –
allocation on the opposed motion roll on expedited basis –
unreasonable
delay in launching the application erodes urgency.
Restraint
of trade – enforcement is inherently urgent – applicant
must approach the court as soon as it becomes aware
that there is a
breach of the restraint – alternative remedy in damages.
JUDGMENT
Nkutha-Nkontwana
J
Introduction
[1]
In this application, the applicant seeks an
order, by way of an urgent application, interdicting and restraining
the first respondent
for a period of 24 months from 1 June 2017 and
in the areas of Gauteng, Mpumalanga and the Free State from being
engaged in any
business which wholly or partly competes with the
business of the applicant. In the alternative, the applicant seeks an
order for
a period and in a geographical area which the Court deems
appropriate.
[2]
The applicant also seeks an order interdicting
and restraining the first respondent from soliciting, canvassing or
procuring orders
or otherwise obtaining business from customers or
clients who were customers or clients of the applicant at any time in
the 12
months’ period prior to the termination of the first
respondent’s employment on 31 May 2017.
[3]
In addition, the applicant seeks an order that
the first respondent be interdicted and restrained from using and/or
disclosing its
confidential information and that the first respondent
be directed to return to the applicant any confidential information
in his
possession.
[4]
The first respondent opposes the application.
Background
facts
[5]
The first respondent commenced employment with
the applicant on 1 February 2012 for a period of approximately 5½
years. He
was initially employed as a sales manager and subsequently
promoted to the position of area sales manager for the region of
Mpumalanga,
Gauteng and Free State.
[6]
On 1 May 2017, the first respondent tendered his
resignation, effective from 31 May 2017, and indicated that he was
intending to
start a gym. The first respondent subsequently joined
this second respondent as an agent.
[7]
It is common cause that there is an overlap, to
some extent, in the business of the applicant and the second
respondent. The applicant
offers a wider range of sanitary ware and
plumbing supplies than the second respondent. The applicant does not
stock ironmongery,
windows, aluminium hardware, security fittings and
fasteners. Ironmongery, security fittings and fasteners are supplied
by its
associate DCLSA Distributors (Pty) Ltd (DCSLA). The
competition between the applicant and the second respondent is
restricted.
[8]
The relevant portions of the restraint agreement
which is part of the first respondent’s contract of employment
are set out
below:
‘
23. Restraint
23.1
Interpretation
23.1.2
“trade secrets” means without limiting the generality of
“trade secrets”
the following matters, all of which are
hereafter referred to as “trade secrets” –
23.1.2.1
process and techniques, technical detail, know-how, method of
operating the cause and source of any material, pricing and
purchasing of goods;
23.1.2.2
names of customers and potential customers of McNeil JHB brackets
including potential customers of McNeil JHB with McNeil JHB has not
as yet contacted, but in terms contacting for the peoples of
doing
business); …
23.2
Confidentiality
The
employee will not, either during the employment with MacNeil JHB or
it any time thereafter, unless the employee has obtained
McNeil JHB
prior written consent, directly or indirectly divulge or make known
to any unauthorised person McNeil JHB Trade Secret
or any
confidential information relating to the business, clients,
employees, products, methods of or processes of McNeil JHB and/or
its
clients at whose premises the Employee is assigned from time to time,
that may have come to the knowledge of the Employee at
any time
during the employment with MacNeil JHB, whether before or after
signature thereof, nor make any unauthorised use of such
confidential
information.
23.3
Restraint of trade
23.3.1 For a period
of twenty-four (24) months after the termination of his/her
employment with McNeil JHB, the
Employee shall not hold any position
as a director, officer, employee, consultant, partner, principal or
agent, in any business
which is or is likely to be wholly or partly
in competition with the business of McNeil JHB.
23.3.3 for a period
of 24 months after the termination of his contract of employment with
McNeil JHB, the Employees
shall not, whether directly or indirectly,
or as a servant, agent or otherwise howsoever;
23.3.2.1
solicit, canvass or procure orders from otherwise seek to obtain
business from customers or clients whose were customers or clients of
McNeil JHB at any time during a period of twelve (12) months
prior to
the termination of the employee’s employment;
23.3.2.2
solicit from or place orders with or otherwise seek to obtain
business from suppliers for suppliers of McNeil JHB at any time
during a period of 12 months prior to the termination of Employee’s
employment;
23.3.2.3
seek any business, orders or customers in relation to any products
or
services provided by McNeil JHB with which the employee was concerned
during the time she was employed by McNeil Johannesburg;
23.3.2.4
induce or attempt to persuade, procure or otherwise facilitate
Employees of McNeil JHB to leave the employment or to accept
employment with any business that is wholly or partly in competition
with McNeil JHB.
23.4
Territory
The
restraint set out in the Agreement shall apply to Southern Africa,
Mainland China, Hong Kong, Thailand and Vietnam.’
[9]
It is not disputed that the first respondent
signed a restraint of trade agreement, incorporating clauses which
correspond with
the relief sought by the applicant in the notice of
motion. It is also not in dispute that the first respondent did have
access
to the applicants SAP system and the nature of the information
in the SAP system is contained in the applicant’s confidential
affidavit. The applicant contended that this information is
confidential as it contains its trade secrets and would be highly
valuable to a competitor who would use it to gain an upper hand in
the market.
[10]
The first respondent is opposing the enforcement
of the restraint of trade on the basis that it is unreasonable and
therefore unenforceable
and submits as follows.
10.1
The first respondent is engaged as an independent contractor serving
only the areas of
Pretoria and Johannesburg to sell the second
respondent’s products that are not sold by the applicant and
which the first
respondent did not sell while he was in the
applicant’s employ.
10.2
There is an overlap in the customer's supplied by the applicant and
the second respondent.
The second respondent, to the extent that it
services the same customers as the applicant, has its own proprietary
relationships
with those customers which are well established.
10.3
The first respondent conceded that he had a limited access to the
applicant’s SAP
system but disputes that the information is
confidential or would be of value to the second respondent. Also,
there are other two
employees of the applicant who had access to the
applicant’s SAP system during their employment with the
applicant and have
since taken up employment with the second
respondent and yet the applicant has not taken up steps to enforce
the restraints against
them.
10.4
The period for which the applicant seeks the enforcement against the
first respondent is
unreasonably long. Even though the applicant
seeks a ‘reading down’ of a period of 24 to 12 months,
the first respondent
contended that both periods are unreasonable.
10.5
The first respondent also contended that the area in respect of which
the restraint is
sought is also unreasonable. It applies to
geographical areas of Southern Africa, Mainland China, Hong Kong,
Thailand and Vietnam
when there is case of any business conducted
outside of South Africa. Even the amendment of the area in which
enforcement of restraint
is sought to Gauteng, Mpumalanga and the
Free State is also unreasonable, so it was further argued.
Urgency
[11]
Ms Govender, for the applicant, submitted, in her
opening submissions in Court, that the applicant is abandoning
urgency on the
basis that the matter has since been allocated on an
opposed motion roll. That is so, the argument went further, because
on 5 October
2017, Ms Govender, on behalf of the applicant, wrote a
letter to the Judge President of this Court, on notice to the
respondents,
requesting an expedited date for the hearing of the
matter. The details of the letter are as follows:
‘
1.
We refer to above matter and confirm we behalf of McNeil JHB, the
applicant in the matter.
The matter concerns a restraint application.
2.
The restraint of trade is limited in duration of 24 months
alternatively a period
the court deems appropriate as per the notice
of motion. The applicant has made provision for “reading down”
of the
duration of enforcement and contended that 12 months would be
reasonable. It is trite that restraint applications are urgent by
their very nature and in vast number of cases; the court has reduced
the duration of the restraint. In the circumstances, our client
will
be prejudiced should the matter be enrolled under the normal course
on the opposed roll. The dates for the opposed motion
are usually
allocated 6 to 12 months from the request of set down. Hence, given
the possible limited period for enforcement of
the restraint, the
Applicant will suffer severe prejudice should the matter not be set
down on the expedited roll
alternatively
semi-urgent roll.
3.
We have further provided the Respondents, 10 (ten) days to file their
answering
papers and all the papers in excess of 400 pages. It is
pertinent to mention at this juncture; that leave is further sought
for
a confidential affidavit. In the circumstances, it would not be
prudent to set the matter down on the urgent roll in light of the
volume of the papers and the practice that parties are only allowed
to set down urgent matters three weeks in advance.
4.
In the circumstances, we humbly request for an expedited date for the
hearing
of the matter preferably prior to 15 December 2017
alternatively should the court not be amenable to do so, we humbly
request a
date in November 2017 on semi-urgent roll in order to
eliminate any prejudice to the Respondents and the Court.
5.
We trust you find the above in order and respectfully request an
urgent response.’
[12]
The matter was then set down as per the
applicant’s request on an opposed roll on expedited basis.
[13]
In reply, Ms Govender submitted, as alternative,
that the applicant has made a case in its papers before the Court for
the hearing
of the matter on urgent basis. The applicant’s main
assertion is basically rehashed in the reasons provided in its
request
for an expedited allocation and it dealt with urgency for the
first time in its replying affidavit.
[14]
The explanation tendered for the delay in
launching the application is that there was some communication
between the parties and
their attorneys, including requests for
undertakings that were not forthcoming. The matter became urgent once
it became aware that
its proprietary interests worthy of protection,
were indeed threatened. The applicant was alive to the fact that it
has challenges
with urgency hence a half-hearted concession that, “at
first blush”, urgency appears to be self-created.
[15]
The first respondent vehemently challenged the
hearing of the matter either on urgent or expedited basis as argued
by the applicant.
It was argued by the respondent’s counsel
that the applicant failed to act with reasonable expedition as soon
as it gained
cognisance of the fact that the first respondent was
seemingly acting in breach of the restraint of trade and
confidentiality undertakings.
[16]
The first respondent, in its written submissions,
mapped out the chronology of events that led to the launching of the
application
as follows:
16.1 The first
respondent resigned from the applicant’s employ on 1 May 2017
and his last day of employment
was 31 May 2017.
16.2 On the
applicant’s own version, by 13 June 2017 the applicant had
received unsubstantiated reports
that the first respondent had joined
the second respondent.
16.3 Accordingly, on
13 June 2017, the applicant dispatched a letter to the first
respondent in which it is recorded
that it had become apparent that
the first respondent intended taking up employment with the second
respondent, a direct competitor
of the applicant. The applicant
sought an undertaking from the first respondent within 48 hours of
the dispatch of the letter dated
15 June 2017 that the first
respondent would abide by the terms of his contract of employment,
failing which an urgent application
would be brought against both the
first respondent and the second respondent.
16.4 While the
reports that the applicant had heard that the first respondent had
taken up employment with the
second respondent by June 2017, are
alleged to be unsubstantiated, it certainly knew sufficient
information to dispatch a letter
of demand to the first respondent
threatening litigation.
16.5 The applicant
asserts that it became aware of the relationship between the first
and the second respondent
during early July 2017 albeit that the
exact nature of the relationship was allegedly unknown to it.
16.6 The applicant
claims that the first respondent solicited its clients and procured
orders for the second respondent
from July 2017 and, as a result, it
sought the advice of its attorneys on or about 5 July 2017 which led
to the dispatch by the
applicant’s attorneys of two further
letters of demand, one to the first respondent and the other to the
second respondent.
16.7 Again, a
written undertaking was sought by the applicant from the first
respondent by not later than 16h00
on 7 July 2017 that he would abide
by the terms of his restraint agreement failing which the applicant
would institute the necessary
proceedings to interdict him from
breaching the terms of his restraint agreement. A similar undertaking
was sought from the second
respondent.
16.8 On 10 July
2017, the second respondent responded to the applicant’s
attorneys indicating that it had
not employed the first respondent,
but that he was an independent contractor. A copy of the first
respondent independent contractor
agreement was forwarded to the
applicant. The second respondent also indicated that the first
respondent would be engaged in servicing
the second respondent’s
existing client base and that the second respondent would not engage
with any client of the applicant
in respect of which the applicant
had any ‘intellectual rights’ or ‘exclusivity’.
16.9 A similar email
was dispersed by the first respondent to the applicant on 11 July
2017 in which the first
respondent highlighted that he would only
service the existing clients of the applicant and that he would not
approach any client
of the applicant that are not part of the second
respondent’s client base. The first respondent indicated that
he would be
predominantly selling ironmongery and hardware products
which were not sold by the applicant.
16.10 Accordingly, by not later
than 11 July 2017, the applicant knew that the first and the second
respondents would not
provide the undertaking that it had demanded in
its attorneys’ letter dated 6 July 2017. The applicant also
knew the precise
nature of the first respondent’s involvement
with the second respondent.
16.11 Despite not receiving the
undertaking that it sought, the applicant did not launch interdict
proceedings against the
first respondent as threatened in its letters
of 13 June 2017 and 6 July 2017. The applicant cannot contend that it
was satisfied
with these undertakings given that it records
specifically that, in its view, to render services to the existing
clients of the
applicant would involve it ‘divulging the
confidential information’ of the applicant to the second
respondent. There
is no explanation provided as to why proceedings
were not launched by the applicant at this stage.
16.12 The applicant assets
further that on or about 27 July 2017, it was informed by a client,
Autoplumb Suppliers CC (Autoplumb),
that the first respondent had
contacted Autoplumb and forwarded an email to Autoplumb. It is common
cause that the second applicant
never contacted Autoplumb but
Wholesale Plumbing Services who are the applicant’s client but
not the second respondent’
existing client.
16.13 On 16 August 2017,
notwithstanding the first and second respondents’ stances, the
applicant dispatched another
set of similar letters of demand to the
first and second respondents seeking an undertaking by 17 August 2017
that the first respondent
would abide by the terms of his restraint
agreement. The applicant yet again threatened to launch these
proceedings. The second
respondent, after consulting with attorneys,
posed various questions to the applicant with regard to the details
of the undertakings
sought but was not favoured with a response.
16.14 The applicant only
launched these proceedings on 1 September 2017, 3 months after the
second respondent left its employ,
and almost 2 months after its
letter of demand dated 13 June 2017 which threatened to launch this
application within 48 hours if
the undertakings it had sought were
not forthcoming.
16.15 The applicant afforded the
respondents 10 days to file their answering affidavits. The first
respondent filed its answering
affidavit on 19 September 2017. A
further delay was occasioned by the filling of the confidentiality
affidavit. Despite having
sought the confidentiality undertakings
from the first respondent on 26 September 2017 and being provided
them on 4 October 2017,
the confidentiality affidavit was only
delivered on 11 October 2017.
16.16 The first respondent is
effectively engaged by the second respondent for more than 6 months
now.
[17]
The first respondent further argued that
axiomatically, the horse has bolted. The urgency of the application
is self-created as
the applicant folded its arms and elected to
launch this application at its leisure. There is no explanation for
the delay other
than the fact that the applicant had been dilatory
and capably remiss in its conduct.
The
legal principles and evolution
[18]
The principles applicable to
urgent applications in relation to restraint of trade litigation are
succinctly echoed in
Ecolab
(Proprietary) Limited v Thoabala and Others,
[1]
where the Court said that:
‘
[20]
…
parties
alleging breaches of restraint of trade agreements are not
indemnified from satisfying the requirements in Rule 8.
Thus,
a
mere contention that the enforcement of restraint of trade is
inherently urgent and therefore must be treated as such by this
court
without any further consideration cannot by all accounts be
sustainable. The fact that these disputes may have an inherent
quality of urgency cannot be equated to a free pass to urgent relief
on the already over-burdened urgent roll in this court.
Like
all other urgent matters, more than a mere allegation that a matter
is urgent is required.
[2]
This therefore implies
inter
alia
that
the
Court
must be placed in a position where it must appreciate that indeed a
matter is urgent, and also that an applicant in the face
of a threat
to it or its interests had acted with the necessary haste to mitigate
the effects of that threat.’
[19]
In essence, urgency must not be
self-created as a consequence of the applicant’s failure to
launch the application at the
first available opportunity. It stands
to reason that a litigant seeking an indulgence to be heard on urgent
basis must act swiftly
in instituting the litigation. Urgency
dwindles with time, hence the applicant must come to Court
immediately, or risk failing
on urgency.
[3]
In
Valerie Collins t/a
Waterkloof Farm v Bernickow NO and Another
[4]
the Court held:
‘
[9]
It is clear from the above that the Courts do not easily grant urgent
relief. This caution
is justified given the exceptional and drastic
nature of such relief. The Labour Court Rules set out the proper
procedure through
which applications to the Court should be pursued
and these rules exist to ensure that due process is allowed to run
its course.
They have not been arrived at arbitrarily but after
careful consideration as developed over years of practice. Thus,
deviation
from the usual rules should not be taken lightly, it is
only in exceptional circumstances that the Court will deal with
applications
on an urgent basis. In order to succeed in an urgent
application, the applicant must satisfy the Court that on balance the
interests
of justice outweighs the right of the parties to have a
considered opportunity to place their case before this Court.
Although
the Courts recognise that financial consideration may be
taken into account, the onus is on the applicant to show the
prejudicial
effect that will give rise to the injustice and plus the
urgency of the situation. In particular, the applicant must show that
he has launched the application at the first available opportunity;
that special circumstances exist justifying the granting of
the
order; and there is no alternative remedy available to it.’
[20]
In the present case, the applicant faced with the challenge of
justifying approaching this Court on urgent basis sought to
have the
matter allocated on expedited basis without seeking the first
respondent’s indulgence. The first respondent objected
to the
applicant’s approach as at the time the request was made, it
had not filed its supplementary answering affidavit and
there was no
agreement on the process and enrolment moving forward as the matter
was launched as an urgent application.
[21]
To the extent that the applicant persists that the matter is urgent,
I deal first with urgency. The applicant in this matter
acted with
inexplicable laxity. There is no explanation as to why it failed to
launch this application as early as June 2017, when
it first became
aware that the first respondent was in breach of his restraint
undertakings. Better still, in July 2017 when it
was clear,
consequent to the first and second respondents’ respective
responses to its letters of demand, that the undertakings
it was
seeking were not forthcoming.
[22]
When the applicant launched these proceedings, the first respondent
had already been engaged by the second respondent for 3
months and 6
months when the matter was heard in Court. There is only one isolated
incident where the first respondent is accused
of pursuing the
applicant’s customer. There is no evidence that the first
respondent successfully marketed the applicant’s
clients and
won them over during the 6 months’ period.
[23]
The applicant was alive to the
fact that it has insurmountable difficulties with urgency hence it
asserts in its replying affidavit
that, “at first blush”,
urgency appears to be self-created. Certainly, urgency in this matter
is self-created. The
applicant failed to act with reasonable haste
once it became aware that the first respondent was seemingly
conducting himself in
breach of the restraint.
[5]
The applicant, like in the case of
Ecolab
,
has not made a case for the Court to hear this matter on urgent
basis.
[24]
In National Police Services
Union and Others v National Negotiating Forum and Others
[6]
this
Court expressed an unwillingness to assist applicants who act in
slumber where there is threat of injustice when it held that:
‘
The
latitude extended to parties to dispense with the rules of this court
in circumstances of urgency is an integral part of a balance
that the
rules attempt to strike between time-limits that afford parties a
considered opportunity to place their respective cases
before the
court and a recognition that in some instances, the application of
the prescribed time-limits or any time limits at
all, might occasion
injustice. For that reason, rule 8 permits a departure from the
provisions of rule 7, which would otherwise
govern an application
such as this. But this exception to the norm should not be available
to parties who are dilatory to the point
where their very inactivity
is the cause of the harm on which they rely to seek relief in this
court…’
[25]
That takes me to the second issue of expedited allocation of the
matter. The applicant was not open to the Judge President
when it
sought an expedited allocation. It did not explain that the matter
has been launched on urgent basis. Despite having afforded
the
respondents 10 days to file their replying papers, the applicant
clearly understood that it was launching an urgent application,
seeking an indulgence not to be heard on the ordinary opposed motion
roll.
[26]
In terms of clause 12.14 of the Practice Manual of this Court, ‘An
applicant that wishes to have an application heard
on an expedited
but not an urgent basis may approach the Judge President or his
deputy, with a properly motivated request in writing,
for a direction
as to the conduct of the application, time periods that will apply
and the allocation of a date for hearing.’
Clearly, the
practice directive refers to a situation where a litigant who intends
to launch proceedings in the ordinary course
but has a justification
for the expedited or speedy allocation of the matter could approach
the Judge President or his deputy.
[27]
The approach undertaken by the applicant causes the mind to boggle.
It requested an expedited allocation of a matter launched
on urgent
basis. This it did without seeking consent of the respondents. As it
turned out in Court, the first respondent vehemently
challenged the
expedited allocation in light of the fact that the applicant failed
to proffer any reasonable justification. Despite
an acknowledgement
that restraint litigations are inherently urgent, the applicant
abandoned the urgent application to follow a
normal course simply
because, in my view, it could not deal with the inexplicable dilatory
manner it dealt with the application.
[28]
It is impermissible for the applicant to seek a speedy allocation on
the opposed motion roll simply because it was slack in
enforcing the
restraint agreement once it was apprised with the breach thereof by
the second respondent and, as such, could not
pass the hurdle of
proving urgency. The Court has a duty to protect its processes from
this kind of abuse.
[29]
In re: Several matters on
the urgent court roll 18 September 2012
,
[7]
the Court considered the force and effect of the provisions of
Chapter 9.24 of the Practice Manual of the South Gauteng High
Court
regarding the failure by the applicant to set out the explicit
circumstances which rendered the matter urgent and stated
that in law
the Judge President was entitled to issue practice directives
relating to the procedure of setting down matters on
the roll.
[30]
Therefore, the
applicant seeking to be heard on expedited basis is also expected to
justify the granting of the indulgence sought,
particularly when it
seeks a final interdict that is vehemently challenged by the
respondent.
[8]
In
Warner-Lambert
v Teva UK Limited and Others
,
[9]
an English
authority of the Chancery Division,
the
defendant to a patent claim was bound by an interim injunction and
sought an expedited trial to reduce the period for which
it might be
at a competitive disadvantage. The following principles set out by
the Court are instructive:
30.1 The general principle is that
cases are to be brought to court as soon as reasonably possible
(consistent with the overriding
objective).
30.2 The issue of whether to
grant expedition, and if so, how much and on what terms, is a matter
essentially for the discretion
of the judge.
20.3 That discretion must of
course be exercised judicially; which is partly a question of
principle and partly a question
of practice.
30.4 Any order for expedition
involves giving preference to one case in the allocation of court
time over other cases. The
court therefore has a wider responsibility
and must take into account the requirements of other litigants. This
aspect has even
more weight in relation to Court of Appeal cases.
30.5 Therefore, the applicant
must satisfy the court that there is an objective urgency to deciding
the claim.
30.6 The procedural history in
any case is relevant. Delay in seeking an order is a factor which may
count against an applicant.
By contrast, the attitude of the
respondent is not really of importance unless he can show some real
prejudice to him if the trial
is expedited.
30.7 In judging whether urgency
is justified, the court does not consider urgency to necessarily mean
that a case needs to
be heard in the immediate future. A case may be
urgent in the sense that an answer is needed before the hearing date
would, in
the ordinary course of proceedings, arrive.
30.8 The court should resolve
timetabling in a way which is the least unjust to all the interests
concerned.
[31]
In my view, the above principles constitute a guideline even in
expedited motion proceedings in terms of this Court’s
Practice
Manual. Clearly, the applicant who wishes to launch an application
that is not necessarily burning but needs to be resolved
before the
hearing in due course, may request an expedited allocation. The Judge
President or the allocated judge will assist the
parties in dealing
with the timetable for the filing of papers and the set down of the
matter.
[32]
In this instance, the converse is true. Whilst it is given that
urgency is a matter of degree and a litigant approaching the
Court on
urgent basis is expected to factor that in when setting the matter
down the matter, urgency in this matter has been eroded
by the delay
in launching the application.
[33]
Even though the matter is allocated on an opposed motion roll, the
applicant had to satisfy the Court that it had made a case
to be
heard on urgent basis or expedited basis. There are several matters
that are struck off the urgent roll for lack of urgency
in each and
every sitting of the urgent Court. It would be disastrous if all
those matters would be re-enrolled on expedited basis.
[34]
In addition, nothing is placed before the Court to indicate that the
second respondent’s undertaking not to solicit business
from
the applicant’s customers, who are not supplied by the second
respondent in future was not made in good faith.
During the
period of 6 months that the first respondent has been engaged by the
second respondent, there is only one incident of
him pursuing the
applicant’s customer who is not in the current customer list of
the second respondent. The marketing was
only in relation to the
products that are not supplied by the applicant.
[35]
Also, given the lapse of time due to the delay at the instance of the
applicant, there is a great possibility that the confidential
information has lost its value. Likewise, there seems to be other
former employees of the applicant who had access to the SAP system
and who are now in the employment of the second respondent but the
applicant has taken no steps to enforce the restraint of trade
agreements against them.
[36]
The applicant is not without a suitable alternative remedy in due
course. It can sue the second respondent for damages
for
breach of contract
, if at all.
Conclusion
[37]
In instances, such as this one, where a litigant
who alleges a breach of the restraint of trade agreement, drags its
feet and unreasonably
delays to approach the Court, it must accept
that it gambled away urgency and the Court would be disinclined to
hear the matter
on urgent or expedited basis.
[38]
I am convinced that the applicant has failed to make a case to be
heard on expedited or urgent basis as such the application
accordingly stands to be stuck off the roll.
[39]
On costs, both parties argued that costs should follow the result. I
agree, there is no reason why costs should not follow
the result.
[40]
In the circumstances, I make the following order:
Order
1. The
applicant’s application is struck off the roll for lack of
urgency.
2. The
applicant is ordered to pay to the costs of this application.
_________________
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
P Govender from
Macgregor Erasmus Attorneys.
For
the Respondents: Advocate:
P Bosman
Instructed
by:
Hogan Lovells Inc
[1]
[2017] ZALCJHB 300; (2017) 38 ILJ 2741 (LC) at paras 16 to 20.
[2]
See
Moyo
& Others v Administrator of the Transvaal & Another
(1988)
9 ILJ 372 (W) at 387I:
“
An
applicant who seeks relief by way of notice of motion should put all
the facts, in as much detail as possible, before the Court.
The mere
fact that an application is urgent and urgent relief is sought does
not relieve an application of this duty.”
[3]
See
Public
Servants Association of SA and Another v Minister of Home Affairs
and Others
[2016] ZALCJHB
439 at paras 12 to 18.
[4]
)
[2001] ZALC 223
at para 9.
[5]
See also
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
(2010) 31 ILJ 112 (LC)
at para 18.
[6]
(1999) 20
ILJ 1081 (LC) at para 39
[7]
[2012] 4 All SA 570 (GSJ).
[8]
Tshwaedi v Greater Louis
Trichardt Transitional Council
[2000] 4 BLLR 469
(LC) at para 11.
[9]
[2011] EWHC 2018
(Ch) at para 12. The court referred to
CPC
Group Limited and Qatari Diar Real Estate Investment Company
[2009] EWHC, 3204
(Ch) with approval.