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[2018] ZALCJHB 175
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WNS Global Services SA (Pty) Ltd v Hayes (J961/18) [2018] ZALCJHB 175 (9 May 2018)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable/Not
Reportable
Case
No: J 961/18
In
the matter between:
WNS
GLOBAL SERVICES SA (PTY)
LTD

Applicant
and
CHRISTOPHER
HAYES

Respondent
Heard
on:
25 April 2018
Delivered
on:           09
May 2018
JUDGMENT
MAHOSI.
J
Introduction:
[1]
This is an urgent application for a final order to enforce a
restraint of trade and certain confidentiality provisions embodied
in
the written Restraint and Confidentiality Agreement (Agreement)
concluded between the applicant and the respondent on 16 February

2015.
[2]
This application was prompted by the respondent’s resignation
from his employment on 30 January 2018. On the same date
the
respondent had a discussion with Mr. Edward Maughan (Maughan), the
applicant’s General Manager: Business Development,
during which
he (the respondent) communicated his intention to take up employment
with Accenture South Africa (Accenture) after
his employment with the
applicant terminates on 30 April 2018.
[3]
It was then agreed that the respondent’s employment would
terminate on 30 April 2018. The respondent was therefore placed
on
‘garden leave’ by the applicant until 30 April 2018.
[4]
On or about 15 February 2018, the applicant served the respondent
with a letter of demand wherein,
inter
alia
,
various written undertakings were sought from the respondent in
relation to him abiding by the terms of the restraint of trade

provisions. According to the applicant, Accenture is the applicant’s
competitor and in taking up employment with Accenture,
the respondent
is acting in breach of the restraint of trade provisions as contained
in the agreement. During the period between
21 February 2018 and 13
March 2018, there was an exchange of correspondences between the
parties with a view to negotiate the settlement
of this dispute.
[5]
It is common cause that during the negotiations, the respondent made
an undertaking that he will comply with the agreement and
that the
applicant should not fear as he would not be employed in a position
where he would compete with it because Accenture does
not provide
BPM/BPO services.
[6] Subsequently, it
became apparent that the dispute could not be settled. The applicant
then launched this application on 23 March
2018. The respondent
opposed the application and raised a preliminary point relating to
non-joinder of Accenture.
[7]
According to the notice of motion, the applicant sought relief in the
following terms:
‘
1.
That the application be heard as a matter of urgency in terms of

uniform rule of  court 6 (12) and rules ordinarily
applicable to form and time periods be dispensed with.
2.
That the respondent is interdicted and restrained for a period of 365
(three
hundred and sixty-five) days with effect from 30 April 2018
and in the Republic of South Africa, in any capacity whatsoever,
directly
or indirectly, from:
2.1
carrying on or being interested or engaged in or concerned with or
employed by Accenture
Africa (Pty) Ltd or Accenture South Africa
(Pty) Ltd (“Accenture”) in South Africa or any of the
Applicant’s
competitors, either directly or indirectly; and/or
2.2
soliciting any order from any customers or prospective customer of
the applicant for any
Goods or competing Goods and/or for any
services or competing services; and/or
2.3
canvassing business from any customers or prospective customer of the
applicant in respect
of any Goods and/or for any services or
competing services; and/or
2.4
selling or otherwise supplying to any customers or prospective
customer of the applicant
any Goods or competing Goods; and/or
2.5
rendering to any customers or
prospective customer of the applicant for any Goods or competing

Goods; and/or
2.6
purchasing from any supplier of the
applicant any Goods or accept from any supplier of the applicant
the
rendering of any services from it; and/or
2.7
soliciting the appointment as a distrbutor, lincesee, agent or
representative of any supplier
of the applicant in respect of any
Goods and/or services.
3.
that the respondent is interdicted and restrained from directly and
indirectly
using or disclosing to Accenture in South Africa or any
third party, the confidential information and/or proprietary
interests
of the applicant, in any manner or for any reason or
purpose whatsover, without the prior written consent of the
applicant.
4.
that the respondent pays the applicant’s costs on a scale as
between attorney
and client and vat.
5.
that the applicant be afforded such further or alternative relief as
this Court
may deem fit.
6.
that, the provisions of paragraphs 2, 2.1 to 2.7 and 3 operate as an
interim
interdict, pending the final determination of this matter.’
[8] I am of the
view that the matter ought to be dealt with as one of urgency.
Non-Joinder
[9] The respondent has
raised a preliminary point in that the applicant failed to join
Accenture to this application. According
to the respondent, Accenture
has a direct and substantial interest in the outcome of the matter.
[10]
The
applicant submitted that
Accenture
did not consider itself to have a direct and substantial interest
which
may be affected prejudicially by the judgment of the Court
in
this dispute in that on or about 19 February 2018, the applicant sent
an email to Accenture in terms of which the latter was
informed that
the respondent is subject to a restraint of trade agreement which
prohibits him from taking up employment with it.
[11] The email further
stated that in the event that the respondent does take up employment
with Accenture, such conduct will be
in material breach of his
restraint of trade undertakings. The applicant further provided
Accenture with a copy of the letter of
demand addressed to the
respondent that specifically states that if he does not adhere to the
applicant’s demands, the latter
will approach this Court for
relief as sought herein.
[12] Accenture
acknowledged receipt of the email but did not respond to the contents
of the email. The applicant submitted further
that if Accenture
considered itself to have a direct and substantial interest in this
matter, it would have taken steps to participate
in the dispute or
intervene in the application. At the hearing, the applicant handed in
a letter from Accenture‘s attorneys
addressed to the
applicant’s attorneys which stated the following:
‘
1.
We act on behalf of our client Accenture (South Africa) (Pty) Ltd.
2.
We have been instructed that your client, WNS Global, seeks to
enforce a Restraint
and Confidentiality Agreement, by way of
instituting legal proceedings, against Mr Hayes who has been offered
employment by our
client.
3.
Our client will not oppose any legal proceedings that your client may
institute
against Hayes and abide by the court, to the extent that no
legal costs are sought against our client.’
[13]
In the light of the abovementioned letter from Accenture, I cannot
find any merit in the respondent’s objection.
Relevant
factual background
[14]
The applicant has been operating in South Africa since 2003. It
operates as
inter
alia,
a
provider of Business Process Outsourcing (BPO) and Business Process
Management (BPM) services that includes consulting services
in
various industries throughout South Africa. The applicant delivers
the entire spectrum of BPO and BPM products and services
in,
inter
alia
,
customer interaction services, finance and accounting, human
resources, research and analytics, technology solutions and
industry-specific
processes.
[15]
The respondent’s employment with the applicant commenced on or
about 4 January 2016 in the capacity as Associate Vice
President
Sales. On the 11 January 2016, the parties concluded the Restrained
and Confidentiality Agreement that is quite extensive.
Clause 3
thereof deals with the protectable interests of the applicant which
are captured as follows:
‘
3.
Protectable
interest of the group
3.1
The Employee acknowledges and accepts that in the course of his
employment by the Company
(and/or other person in the group) the
Employee:
has
acquired and/or will acquire considerable know-how in relation to the
respective Businesses, interests and affairs of the Group
and has
learned and/or will learn of and become acquainted with some or all
Confidential Information;
3.1.1
has had and/or will have access to the names, requirements and needs
of customers, licensors, suppliers
and/or other persons who of which
have business or trade connections with any of the businesses,
whether embodied and written forms
or otherwise, all or any of whom
are or could be drawn from all or any of the territories;
3.1.2
has had and/or will have opportunity of forging personal
relationships with and developing the ability to influence
customers,
licensors, suppliers, other persons who of which have business on
trade connections with any of the businesses and/or
other employees
and businesses; and
3.1.3
generally has had and/or will have the opportunity of directly or
indirectly acquiring and/or learning and
becoming acquainted with the
trade secrets, trade connections, business secretes, business
connections and other confidential information
relevant to the
respective businesses, all or any of which, if disclosed to or used
directly or indirectly by or for the benefit
of any competitor of any
of businesses, would possibly or is reasonably likely to allow such
competitor to gain an unfair advantage
over and severely prejudice
and cause substantial harm to all or any of the persons in the group.
3.2
the employee, having carefully considered each restraint and
confidentiality undertaking
imposed on him under this agreement,
acknowledges and accepts that:
3.2.1
the only effective and reasonable manner in which the respective
rights of any person in the group in respect
of its trade secrets,
trade connections, business secrets, business connections and other
Confidential information can be protected
is by way of the restraints
and confidentiality undertakings imposed upon the employee in terms
of this agreement, and
3.2.2
each such undertaking is reasonable in its duration, area and scope
of operation is necessary for the protection
of the proprietary
interest of the company and each person in the Group, respectively;
and
3.2.3
any choice by the employee of any trade, occupation or profession
after the termination date will be limited
by and will be subject to
all or any of the restraints and confidentiality undertakings imposed
upon the employee in terms of the
agreement.’
[16]
The parties agreed that the area to which the restraint applies was
“each magisterial district in the Republic of South
Africa.”
The restraint period was defined as the period while the respondent
is employed by the applicant and the period
of 365 days immediately
following the termination period.
[17]
It is common cause that during his employment with the applicant, the
respondent’s duties and functions included
inter
alia
:
enabling new business opportunities in the Contact Centre, Shared
Services, Finance and Accounting, Human Resource Solutions and

Procurement Solutions areas across multiple industries; selling large
end to end business process outsourcing solutions to prospective

clients (this entails the applicant, on its client’s behalf,
managing a process contracted for, such as the client’s
Finance
and Accounting function, or the client’s Customer Service
function); giving critical support and input to the applicant’s

Solutions Team in developing and presenting tailored deals (products,
services and solutions) to clients; owning and driving customer

relationships to facilitate retention of existing clients as well as
“farming” opportunities, in other words offering
and
selling to existing clients of the applicant; using management
information (such as information from conversations with targeted

opportunities) and business analytics (such as information researched
on the targeted opportunity such as industry benchmarks and
investor
analysis) to drive sales opportunities and value in new and existing
clients; obtaining customer insight (information
discussed with a
customer/client which results in an agreement to propose a solution
for their ‘challenge’, or more
information which enables
the applicant to craft a unique proposal for its clients based on the
insight from said client) and reporting
to the business (such as in
the applicant’s weekly sales meeting); prospecting for new
sales opportunities through the existing
network of the applicant’s
clients, building a new network of clients; marketing and selling
through cold calling, social
media, and events as key sales channels;
building solid client and prospective relationships, in other words
“customer-connections”;
preparing, developing,
maintaining and updating a sales plan in conjunction with other
members of the applicant’s sales team;
working with other
members of the applicant’s Business Development team and larger
organization to develop client–specific
proposals, attending
industry functions, associations and events.
[18]
It is the applicant’s case that the respondent, by taking up
employment with Accenture, a direct competitor of the applicant,
is
acting in material breach of the restraint of trade undertakings as
contained in the Agreement. The applicant is essentially
relying on
two kinds of protectable interests to justify the enforcement of the
restraint, namely, confidential information or
trade secrets and the
customer connections.
[19]
The respondent argues that Accenture is not a direct competitor of
the applicant and he will therefore not be in breach of
his restraint
of trade undertakings. The basis of the respondent’s argument
is essentially that Accenture does not provide
BPM or BPO services in
South Africa. The respondent submitted that the applicant has no
protectable interest in the products and
services it provides, as
they are freely available on the website. Furthermore, the respondent
submitted that the solutions and
the pricing of the products provided
by the applicant are compiled in India and therefore unknown to him.
[20]
The respondent further argued that this application was unnecessary
and unwarranted because he provided the applicant with
an
unconditional undertaking that he would comply with the
confidentiality clause by not contacting any of its clients, not
using
any of the contacts introduced to him by the applicant and not
divulging any confidential information to any person or institution.

Furthermore, the respondent submitted that he will be employed as a
sales capture manager and that his task will not be to sell
any form
of outsourcing.
The
applicable legal principles
[21]
The legal principles applicable to restraint of trade have been set
out in detail in a number of decisions of this court and
recently by
the Labour Appeal Court (LAC) in
Labournet
(Pty) Ltd v Jankielsohn and Others
as follows:
[1]
‘
[39]
According to the decision in
Magna
Alloys and Research SA (Pty) Ltd v Ellis,
(“
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
,
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.
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.
[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.
[42]
According to the Appellate Division in
Basson
v Chilwan and Others,
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. 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.
[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.’
[22]
Two categories of proprietary rights that a restraint of trade may
protect are recognised in our law. The first one relates
to the
relationship one might have or have developed with existing or
potential customers, a business or its suppliers. This is
commonly
referred to as “trade connections”. The second one
relates to confidential information useful for the wellbeing
of the
business commonly known as “trade secrets”
[2]
[23]
In this case, despite his aforementioned undertakings, the respondent
denies that the applicant has proprietary interests worthy
of
protection. The respondent further contends that his new employer is
not a competitor of the applicant and thus he will not
be in breach
of his restraint of trade undertakings by taking up employment with
Accenture.
Is
Accenture South Africa the applicant’s direct competitor?
[24]
In support of the aforesaid contention, the respondent throughout his
answering affidavit attempts to draw a distinction between
the
applicant and Accenture. Essentially, the respondent argues that the
applicant’s business is focused on outsourcing services
whilst
Accenture is focused on consulting services.
[25]
In its replying affidavit, the applicant placed before this Court,
copies of pages taken from Accenture’s own website
to prove
that Accenture and the applicant are direct competitors in that they
both provide outsourcing and consulting services
in the same
industries and compete for the same clients.
[26]
On the one hand, the applicant’s webpage states that its
portfolio of services comprises industry-specific processes
that are
tailored to address its client’s specific and industry needs.
These services include customer interaction services;
enterprise
analytics; enterprise information technology; finance and accounting;
governance, risk and compliance; human resources,
legal services;
procurement and research. The industries to which the applicant
provides services to are: banking and financial
services; consulting
and professional services; consumer packaged goods; healthcare;
insurance; manufacturing; media and entertainment;
retail; shipping
and logistics; telecommunications; travel and leisure; utilities and
energy.
[27]
On the other hand, Accenture’s webpage states that: “Accenture
is reinventing business operations through industrialised
business
process expertise, technology, applied intelligence and data to boost
the intelligence engine of our client’s business.”
The
services it offered under its Business Process Services (BPS) are
business and accounting; marketing; procurement; supply chain;
talent
and human resources; health; insurance; network and utilities. It is
apparent that these are similar services provided by
the applicant.
[28]
At the hearing, Advocate E Coleman argued that it is Accenture
International that is the applicant’s competitor but not

Accenture South Africa. He further argued that the web page relied on
by the applicant was of Accenture International. However,
this
argument was baseless and unsubstantiated as the web address revealed
that the address was that of South Africa. Besides,
his argument was
not foreshadowed by submissions in any of the respondent’s
affidavit.
[29]
The applicant further placed as evidence before this Court e-mails by
the respondent where he, on his own version, refers to
the consulting
services which the applicant offers. In an email dated 10 July 2017
by the respondent to Mr. V van Niekerk of USA
BCO (a potential client
of the applicant at the time) the respondent refers to and lists
various consulting services which the
applicant offers. In another
e-mail dated 11 October 2017 by the respondent to Mr. Stephanus
Burger of Alexander Forbes (a client
of the applicant) the respondent
in no uncertain terms stated that the applicant is:
‘…
not
just outsourcers, and in fact most cases outsourcing is the last
option. We partner with large organisations to assist them
with their
process alignment and projects whereby we help to reduce the time
spent on a process or reengineering the process, reducing
costs
associated with those processes and a whole lot more.’
[30]
In another e-mail dated 3 November 2017 by the respondent to Mr.
Jason Norton of Edcon, a potential client of the applicant
at the
time, to which the respondent was offering and trying to sell the
applicant’s products and services, following an
exchange of
e-mails, the respondent once again and in no uncertain terms stated
that:
[the
applicant has] ... a very strong and well-established consulting arm
within the business. Generally speaking, we assist businesses
from
the conceptual phase to the implementation and management.’
[31]
In an e-mail dated 7 November 2017 by the respondent to Mr Edward
Maughan, the respondent addresses, amongst other aspects,
consulting
services to be provided by the applicant in respect of Edcon’s
Operational Overhaul and Transformation Strategy
Alignment. It is
apparent from the above that the applicant also provides consulting
services. Consequently, I agree with the applicant’s
submission
that there is no merit whatsoever in the respondent’s defence
that Accenture is not the applicant’s direct
competitor.
Confidential
information
[32]
The applicant seeks enforcement of the restraint of trade
undertakings that the respondent afforded the applicant on the
premise
that the respondent had access to the applicant’s
confidential information. The respondent contends that the
information
which the applicant seeks to protect is in the public
domain.
[33]
In
Experian
SA (Pty) Ltd v Haynes and Another
[3]
the Court had the
following to say in relation to trade secrets:
‘
[19]
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…’
[20]
As I have pointed out above, the
onus
is
on the respondent to prove the unreasonableness of the restraint. He
must establish that he had no access to confidential
information and
that he never acquired any significant personal knowledge of, or
influence over, the applicant’s customers
whilst in the
applicant’s employ. It suffices if it is shown that trade
connections through customer contact exist and that
they can be
exploited if the former employee were employed by a competitor. Once
that conclusion has been reached and it is demonstrated
that the
prospective new employer is a competitor of the applicant, the risk
of harm to the applicant, if its former employee were
to take up
employment, becomes apparent. See
Den
Braven SA (Pty) Limited v Pillay and Anothe
r
[2008]
3 All SA 518
(
D)
at paragraphs [17] to [18].
[21]
Where an applicant as employer, has endeavoured to safeguard itself
against the unpoliceable
danger of the respondent communicating its
trade secrets to, or utilising its customer connection on behalf of a
rival concern
after entering that rival concern’s employ by
obtaining a restraint preventing the respondent from being employed
by a competitor,
the risk that the respondent will do so is one which
the applicant does not have to run and neither is it incumbent upon
the applicant
to enquire into the
bona
fides
of
the respondent, and demonstrate that he is
mala
fides
before
being allowed to enforce its contractually agreed right to restrain
the respondent from entering the employ of a direct
competitor
(see
IIR
South Africa BV (Incorporated in the Netherlands) t/a Institute for
International Research v Tarita and Others
2004
(4) SA 156
(W)
at 166I to 167C). In such circumstances, all that the applicant
needs to do is to show that there is secret information
to which the
respondent had access, and which, in theory, the respondent could
transmit to the new employer should he desire to
do so.
[22]
The ex-employer seeking to enforce against his ex-employee a
protectable interest recorded in
a restraint, does not have to show
that the ex-employee has in fact utilised information confidential to
it: it need merely show
that the ex-employee could do so. The very
purpose of the restraint agreement is to relieve the applicant from
having to show
bona
fides
or
lack of retained knowledge on the part of the respondent concerning
the confidential information. In these circumstances,
it is
reasonable for the applicant to enforce the bargain it has exacted to
protect itself. Indeed, the very
ratio
underlying
the bargain is that the applicant should not have to contend itself
with crossing his fingers and hoping that the
respondent would act
honourably or abide by the undertakings that he has given. It does
not lie in the mouth of the ex-employee,
who has breached a restraint
agreement by taking up employment with a competitor to say to the
ex-employer “
Trust
me: I will not breach the restraint further than I have already been
proved to have done
”.
[34]
Mr Maughan, who deposed to the applicant’s founding affidavit,
avers that by virtue of his position and through the performance
of
his functions and responsibilities, the respondent had access to the
applicant’s costing and pricing. In this regard,
the respondent
was allegedly trained to have an in-depth understanding of the unique
differentiators, solutions and pricing strategies.
Mr Maughan avers
that because of the highly competitive nature of BPO/BPM industry,
the applicant has invested a significant amount
of time, money and
effort in developing its unique value proposition to its current and
prospective clients.
[35]
The respondent conceded that the industry is highly competitive but
denied that he was involved in pricing and that he had
access to any
proprietary technologies, data analytics or tools unique to the
applicant. He submitted that he was a member of the
sales team who
understood how to sell the product to client.
[36]
Mr Maughan further avers that the respondent had access to the
applicant’s operational model in building customer solutions
in
order to obtain new business and maintain existing business. The
respondent denied having had access to the applicant’s

operational model. However, he admitted having being part of a
meeting in which key points of the applicant’s customer
analytics
capabilities/solutions and business process re-engineering
analytics were discussed, along with some high level business cases,

tangible outputs and savings, future sales capabilities and
opportunities.
[37]
It is common cause that the respondent
had
access to and was privy to regular sales update meetings concerning
current and future sales capabilities and opportunities;
confidential
Powerpoint Presentations concerning the applicant’s Retail
Analytics Capabilities; internal Web meetings during
which issues
such as the applicant’s methodology were discussed; cost and
efficiency improvements; as well as solutions specific
to various
clients. In addition to the aforesaid, the respondent attended
regular Bid Committee meetings during which the applicant’s

entire current client base as well as future and prospective clients
were identified and discussed, in particular their specific
needs and
requirements, costing and pricing and the relevant decision-makers or
contact person at each one of these clients.
[38]
However, he submitted that no information in the e-mail is of any
proprietary value. In this regard, he argued that he did
not compile
the power point presentation and had no access to it. Furthermore, he
submitted that the said power point presentation
is not unique to the
applicant and is a common business tool that is used by many
companies.
[39]
It is not in dispute that during the business development meetings
which he attended along with other senior executives and
members of
the sales team, highly confidential information was shared by each
participant during his or her time slot concerning
his or her sales
performance. The confidential information shared amongst participants
included,
inter
alia,
feedback on overall sales; international sales and farming
performance; sales and marketing strategies; customer relationship
management sales; academy sales, prospective sales and sales
performance; each members report in respect of his or her clients and

potential clients that he or she is busy working on; deal values;
sales and marketing strategies; opportunity plans and competitors
in
the market. It is also common cause that all the information was made
available to and was accessed by each participant, including
the
respondent, on the applicant’s Information Server kept in
different folders.
[40]
Mr Maughan further avers that the respondent had access to the
current ‘carve-out’ deals which were being negotiated

with prospective clients where the applicant would take an entire
part or portion of a client’s business and render services
at
either cost or purely output based; the unique solution of the
customers to use its service called ‘process discovery.’

This is a process that is allegedly not currently performed by any of
the applicant’s competitors, including Accenture South
Africa.
It is alleged that the respondent has an in-depth knowledge of this
unique process and positioning to the applicant’s
clients. The
respondent submitted, in his answering affidavit, that the process is
an analysis of the clients’ business to
determine what can be
outsourced to save the costs or improve the process. He further
submitted that he was not involved in any
carve-out deal.
[41]
The applicant submitted that the aforesaid information included
regular written reports in the format of a spreadsheet and
contained
columns and rows of detailed information concerning: the
identity/name of each client; the maturity of the deals/opportunities

which the respondent was marketing, offering or providing to each
specific client; the specific nature of the product or service;
the
type of deal, the name and surname of the member of the sales team
that would be assisting him; the name and surname of the
senior
operations person of the sales team that would be overseeing the
deal, the primary and secondary Line of Business (LOB)
,
the status of each deal, whether the deal has been approved, To Be
Understood (TBU), current action and the action to be taken
or not,
the respondent’s note in respect of each deal, the Annual
Contract Value (ACV) and Total Contract Value (TCV), value
of each
deal and the name and surname of each contact person or
decision-maker at each one of the clients. According to the
applicant,
this information is confidential.
[42]
It is the applicant’s submission that having regard to those
duties and functions that the respondent performed while
employed by
the applicant he was privy to and had access to the applicant’s
confidential information that includes client
lists, costing,
pricing, marketing strategies, discount structures, research and
development regarding new products. The applicant
further submitted
that there can be no doubt that the information it seeks to protect
is not in the public domain, is of value
to the applicant and useful
in the industry. For that reason, the applicant argued that such
information qualifies as confidential
information and is worthy of
protection.
[43]
The respondent
must
establish that he had no access to confidential information of the
applicant. The applicant has shown that the respondent,
in his
capacity as an
Associate
Vice President
Sales,
had access to the applicant’s client’s lists, costing,
pricing, marketing strategies, discount structures, research
and
development regarding new products. However, he has downplayed his
role by
bluntly
denying access to the applicant’s confidential information. His
submission that the applicant’s information
was available in
the public domain was not substantiated as he has not made an attempt
to identify where and how this information
may be found, let alone
attach any documentary proof to support his statement. There is merit
to the applicant’s submission
that the type of information it
seeks to protect does not exclusively fall within the respondent’s
skills and knowledge.
It is indeed proprietary to the applicant.
Customer-connections
[44]
It is trite that the need of an employer to protect its trade
connections would arise where the employee has access to its

customers, or is in a position to build up a particular relationship
with those customers, and could easily induce those customers
to
follow him or her to a new business.
[45]
It is common cause
that
by virtue of his position and through the performance of his
functions and responsibilities, the respondent did not only have

access to the applicant’s prospective and current clients, he
had established a strong business relationship with some of
the
applicant’s clients.
[46]
As aforementioned, the respondent provided the applicant with an
unconditional undertaking that he will not: (a) contact any
of the
applicant’s clients; (b) use any of the contacts introduced to
him by the applicant; and (c) divulge any confidential
information
belonging to any person or institution. In this regard, the applicant
submitted that at the very least, the applicant
is entitled to an
order in these terms. This is a fair proposition.
[47]
The applicant has, in my view, succeeded in proving that it has an
interest, which is deserving of protection. Such an interest
is
clearly being prejudiced by the respondent through his association
with the applicant’s direct competitor, Accenture South
Africa.
The respondent should, therefore, be interdicted from using the
information that he obtained in confidential relationship
with the
applicant.
[48]
The question is whether the applicant’s interest weighed up
against those of the respondent would leave the latter economically

inactive and unproductive.
The
applicant submitted that the respondent will not be excluded from
being economically active and productive and that he will
just not be
entitled to use
the
applicant
as
a “
spring
board”
to unlawfully compete with it. It is further submitted that
the
respondent is equipped to be employed in various other sales and
consulting positions as he is well-qualified and experienced.
[49]
The respondent resigned from his employment with the applicant
voluntarily and he immediately entered into a new contract of

employment with Accenture South Africa. The respondent has not
demonstrated that he would be economically inactive should the
restraint be enforced. He is entitled to be employed elsewhere for as
long as he does not breach the provisions of the restraint
agreement.
Public policy requires that contracts concluded voluntarily be
enforced, and I am satisfied that on the facts and the
law, the
applicant demonstrated that it is entitled to the relief it seeks.
[50]
The only other issue for consideration is the period of the restraint
and geographical area it covers. The respondent submitted
that the
restraint covenant is too wide and thus unenforceable. As
aforementioned, the contract required the respondent to be restrained

for a period of 365 days after the termination of the employment
agreement within the whole of the Republic of South Africa. In
my
view, the period of the restraint as recorded in the employment
contract is reasonable. I am equally of the view that with regard
to
the geographical area, and given the nature of the applicant’s
client base, it would be reasonable for the restraint to
cover the
whole of the Republic of South Africa.
[51]
I have had regard to the issue of costs and I am of the view that the
requirements of law and fairness dictate that there should
be no
order as to costs.
[52] I accordingly
make an order as follows:
Order:
1.
The respondent is interdicted and restrained for a period of 365
(three hundred
and sixty-five) days with effect from 30 April 2018
and in the Republic of South Africa, in any capacity whatsoever,
directly or
indirectly, from:
2.1
carrying on or being interested or engaged in or concerned with or
employed by Accenture
Africa (Pty) Ltd or Accenture South Africa
(Pty) Ltd (Accenture) in South Africa or any of the applicant’s
competitors, either
directly or indirectly, and/or
2.2
soliciting any order from any customers or prospective customers of
the applicant for any
goods or competing goods and/or for any
services or competing services and/or
2.3
canvassing business from any customers or prospective customers of
the applicant in respect
of any goods and/or for any services or
competing services and/or
2.4
selling or otherwise supplying to any customers or prospective
customer of the applicant
any goods or competing goods; and/or
2.5
rendering to any customers or prospective customers of the applicant
for any goods or competing
goods and/or
2.6
puchasing from any supplier of the applicant any goods or accept from
any supplier of the
applicant the rendering of any services from it,
and/or
2.7
soliciting the appointment as a distrbutor, lincesee, agent or
representative of any supplier
of the applicant in respect of any
goods and/or services.
3.
The respondent is interdicted and restrained from directly and
indirectly using
or disclosing to Accenture in South Africa or any
third party, the confidential information and/or proprietary
interests of the
applicant, in any manner or for any reason or
purpose whatsover, without the prior written consent of the
applicant.
4.
There is no order as to costs.
__________________
D
Mahosi
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant
Advocate L. Malan
Instructed
by

Bowman Gilfillan Inc
For
Respondent
Advocate Coleman
Instructed
by

Strydom M & Associates
[1]
(2017) 38 ILJ 1302
(LAC).
[2]
Townsend
Productions (Pty) Ltd v Leech and Others
2001 (4) SA 33(C)
and
Mossgas
(Pty) Ltd v Sasol Technologies (Pty) Ltd
1999 3 ALL SA 321
(W) at 333f;
See
Kwik Kopy (SA) (Pty) Ltd v Van Harlem and Another
1999 (1) SA 472
(W) at 484E;
Rawlins
and Another v Caravan Truck
(Pty) Ltd 1993 (1) SA 537 (A).
[3]
(2013) 34 ILJ 529
(GSJ)