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[2018] ZALCJHB 335
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Vumatel (Pty) Ltd v Majra and Others (J2400/18) [2018] ZALCJHB 335; (2018) 39 ILJ 2771 (LC) (9 October 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no. J 2400 / 18
In the matter between:
VUMATEL (PTY)
LTD
Applicant
and
MOHAMMED SALMAAN
MAJRA
First
Respondent
MOTHEO CONSTRUCTION GROUP (PTY)
LTD
Second
Respondent
MOTHEO TELECOMS (PTY)
LTD
Third
Respondent
SA DIGITAL VILLAGES (PTY)
LTD
Fourth
Respondent
Heard: 19 September 2018
Delivered:
9 October 2018
Summary:
Restraint of
trade
–
principles
stated – application of principles to matter – issue of
protectable interest and infringement of such interest
considered
Restraint
of trade – requirement to make out proper case in founding
affidavit considered – issue of determining factual
disputes in
restraint applications considered – issue of onus considered
Restraint
of trade – nature of confidential information considered –
protectable interest on the basis of confidential
information shown
Restraint
of trade – issue of trade connections – principles
considered – protectable interest based on trade
connections
not shown
Restraint
of trade – infringement (breach) of protectable interest
considered – no infringement shown in this instance
–
diminishing value of confidential information considered –
impact of delay in proceedings considered
Urgency
– principles relating to urgency in restraint applications
considered – urgency not shown – but matter
dismissed and
not struck from roll in the interest of finality
Interdict
– final relief sought – principles considered –
issue of clear right – whether enforcement of
restraint
unreasonable – enforcement of the restraint of trade in the
circumstances unreasonable – no clear right shown
Interdict
– clear right to relief not shown – interdict refused –
application dismissed
JUDGMENT
SNYMAN, AJ
Introduction
[1]
This
matter came before me as an urgent application brought by the
applicant in terms of which the applicant sought to enforce a
restraint of trade covenant against the first respondent. The other
respondents have been joined in the application only on the
basis of
having an interest in the matter, as a result of being associated
with the first respondent, but no relief is sought against
them. None
of these other respondents have in any event opposed the application
which was only opposed by the first respondent.
For the sake of
convenience, I will refer to the second and third respondents jointly
as ‘Motheo’, and the fourth respondent
as ‘SADV’,
in this judgment.
[2]
Initially,
the application did not involve SADV. It was brought into the matter
as the fourth respondent because of what was ultimately
said by the
first respondent in his answering affidavit. The first respondent
stated that he had terminated his contract with Motheo,
and has
joined SADV, in August 2018. As a result, and in a joinder
application brought on 4 September 2018, the applicant then
sought to
join SADV to this matter. The joinder was not opposed by the first
respondent. I am satisfied that SADV will have a material
interest in
the outcome of this matter, and the applicant thus properly sought to
join it. I thus granted the joinder of SADV as
fourth respondent to
these proceedings.
[3]
Preliminaries
now being disposed of, and as said, the application was brought as an
urgent application. The issue of urgency was
very much in dispute,
and the applicant would thus have to satisfy the requirements of
urgency so as to convince this Court to
entertain the matter outside
the ordinary course. Further, the applicant seeks final relief, and
thus the applicant must satisfy
three essential requisites to
succeed, being (a) a clear right; (b) an injury actually committed or
reasonably apprehended; and
(c) the absence of any other satisfactory
remedy.
[1]
Urgency
[4]
It is
best in this case to start with the issue of urgency. As stated, it
was very much in dispute. Before considering the facts
relating to
urgency in this matter, some general statements must be made with
regard to urgency in restraint of trade applications.
I accept that
restraints of trade have an inherent quality of urgency. This
position comes from the following
dictum
in
Mozart
Ice Cream Classic Franchises (Pty) Ltd v Davidoff and Another
[2]
where the Court held:
‘…
.
I accept that breaches of
restraints
of trade have an inherent quality of urgency
….
‘(emphasis added)
[5]
The
concern I have is that this inherent quality of urgency is often
abused as a basis for jumping the queue, so to speak, without
satisfying the ordinary requirements of urgency. To adopt this kind
of approach is ill conceived. An urgent restraint of trade
application is still nothing else but an urgent application, just
like any other urgent application where final relief is sought.
The
ordinary requirements applicable to such urgent applications must
still find application. The fact that one is dealing with
a restraint
of trade is not some kind of license that in itself establishes
urgency, to the exclusion of all other considerations.
This was
recognized by the Court in
Ecolab
(Pty) Ltd v Thoabala and Another
[3]
where the Court said the following, with which I agree:
‘
To
summarise then, 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 a 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. 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.
’
[6]
I
venture to suggest that the inherent quality of urgency in restraint
applications would only save the day where it comes to urgency
in
those borderline cases where a matter teeters on the edge of being
considered urgent, or not urgent. This would of course be
in the
discretion of the presiding Judge to decide.
[7]
Where
it comes to the general principles applicable in establishing
urgency, this is dealt with in Rule 8 of the Rules of the Labour
Court. In applying Rule 8, the Court in
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
[4]
held:
‘
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and why urgent relief
is
necessary. It is trite law that there are degrees of urgency, and the
degree to which the ordinarily applicable rules should
be relaxed is
dependent on the degree of urgency. It is equally trite that an
applicant is not entitled to rely on urgency that
is self created
when seeking a deviation from the rules.’
[8]
The
Court in
Association
of Mineworkers and Construction Union and Others v
Northam
Platinum
Ltd and Another
[5]
succinctly summarized the requirements that have to be met to satisfy
this Court that the matter may be entertained as one of urgency.
These are: (a) the applicant has to set out explicitly the
circumstances which renders the matter urgent with full and proper
particularity; (b) the applicant must set out the reasons why the
applicant cannot be afforded substantial redress at a hearing
in due
course; (c) where an applicant seeks final relief, the court must be
even more circumspect when deciding whether or not
urgency has been
established; (d) urgency must not be self-created by an applicant, as
a consequence of the applicant not having
brought the application at
the first available opportunity; (e) the possible prejudice the
respondent might suffer as a result
of the abridgement of the
prescribed time periods and an early hearing must be considered; and
(f) the more immediate the reaction
by the litigant to remedy the
situation by way of instituting litigation, the better it is for
establishing urgency.
[9]
The
above summary considered, this now brings me to the facts of this
matter relating to urgency. I must confess that I have many
concerns
in this regard, and I do consider the applicant’s case on
urgency to be severely lacking, for the reasons to follow.
[10]
It
was undisputed that by December 2017, the applicant was aware that
the first respondent had joined Motheo. On 12 January 2018,
the
applicant’s attorneys sent a letter of demand to the first
respondent’s attorneys, indicating that the applicant
was aware
that the first respondent had joined Motheo, and this was in breach
of the restraint of trade covenant. It was demanded
that the first
respondent terminate his relationship with Motheo, by 16 January
2018, or face an urgent application. The applicant
even went so far
as directing a letter to Vodacom, a customer of Motheo, urging it to
engage with Motheo to ensure that the first
respondent be removed
from any projects Motheo was conducting for Vodacom.
[11]
The
first respondent’s attorneys answered on 16 January 2018,
making all kind of untoward statements and threats, but it can
be
clearly gathered from the answer that there was no way the first
respondent was going to terminate his relationship with Motheo.
As to
the letter to Vodacom, it answered also on 16 January 2018 to the
effect that it would not become involved in this matter.
A similar
approach by the applicant to Motheo itself also bore no fruit.
[12]
What
then follows as to actual further action by the applicant, is in
essence nothing. No urgent application is launched by the
applicant
as threatened. The entire period from 16 January 2018 to end May 2018
is explained on the basis that the applicant was
in negotiations with
Vodacom for the acquisition of its business by Vodacom. According to
the applicant, and as a result of these
negotiations, Vodacom ceased
deploying fibre and the ‘threat’ to the applicant’s
business caused by the first
respondent’s association with
Motheo ‘disappeared’.
[13]
I
have difficulty following the logic of this explanation, which has
all the hallmarks of being a contrived attempt to justify a
lengthy
period of inaction where there is no such justification. The
situation is compounded by the complete lack of any particularity
where it comes to this explanation, and in particular whether the
situation the applicant had with the first respondent even formed
part of these discussions (considering that the applicant initially
did seek to involve Vodacom).
[6]
[14]
In
any event, it appeared from the evidence that Vodacom was indeed a
customer of Motheo as well, throughout, and I thus find it
difficult
to understand how negotiations with the applicant can ‘neutralize’
the threat of the first respondent remaining
associated with a direct
competitor such as Motheo. Surely it would be in the interest of both
the applicant and Vodacom to immediately
deal with the first
respondent in urgent proceedings. Using the applicant’s own
case to illustrate, it contended that by
being associated with
Motheo, the first respondent would impart all the highly confidential
information he had access to at the
applicant, to Motheo, and that
would seriously prejudice its business. If Vodacom indeed later
bought the business of the applicant,
it would thus buy a prejudiced
business still being diminished by the alleged unlawful conduct of
the first respondent who is,
day by day, strengthening the direct
competitor of the very business Vodacom is trying to buy. If
anything, the possibility that
Vodacom may buy the business should
have strengthened the resolve of the applicant to immediately protect
its interest by enforcing
the restraint. Truth be told, the more
plausible inference is rather that because the applicant could
possibly sell its business,
the first respondent and his shenanigans
would not be its problem going forward, and that is why it did
nothing at this time. Such
a course of action would of course be
entirely destructive of urgency.
[15]
But
the difficulties with this explanation do not end there. Surely, and
if the first respondent’s association with Motheo
is such a
threat to the applicant as articulated in its letter of demand of 12
January 2018, that continued association will on
the same basis and
for the same reason remain the same threat, no matter what the
applicant’s dealing with third parties
may be. I simply do not
understand how mere negotiations with Vodacom, which is but one ISP
customer of the applicant, can cause
the ‘threat’ to
vanish.
[16]
The
next part of the applicant’s explanation where it comes to
urgency is equally unsatisfactory. It explains that in June
2018 it
gained knowledge that the first respondent, on behalf of Motheo, was
directly conducting competing activities in the areas
of Ashley,
Pinetown and Westville, and one of the applicant’s managers was
even informed by the first respondent that the
applicant would ‘lose’
these areas. Despite this, there was still no urgent application
forthcoming. Rather, the applicant’s
attorneys sent another
letter of demand to the first respondent’s attorneys on 26 June
2018. Other than containing more detail
regarding the actual terms of
the first respondent’s restraint, the real demand made in this
letter is actually the same
as in the letter of 12 January 2018. This
time, an undertaking to comply with the restraint within 48 hours was
demanded, or legal
action would follow. Needless to say, this letter
solicited the same reaction as before, contained in a letter from the
first respondent’s
attorneys on 29 June 2018.
[17]
The
urgent application followed on 17 July 2018. Why it was justified
that the applicant took just short of three weeks to bring
the
application, after receiving the response to the letter of demand on
29 June 2018, remains entirely unexplained. This in itself
is a
further undue delay, and needed to be explained.
[18]
All
considered, the above falls dismally short of providing an acceptable
explanation establishing urgency, so as to convince this
Court to
entertain the application as one urgency. Even using 12 January 2018
as a commencement date, the period of more than 7
(seven) months it
took to ultimately bring this application is grossly excessive, and
poorly explained. This is in my view clearly
a case of self-created
urgency.
[7]
[19]
Clearly
appreciating this to be the case, Adv Whitcutt, representing the
applicant, did some fancy footwork. He argued that in the
answering
affidavit filed on 30 July 2018, the first respondent indicated that
he had ended his contract with Motheo, and as from
1 August 2018, he
would be contracting with SADV. According to Adv Whitcutt, this
constituted some sort of novation, for the want
of a better
description, of urgency. I cannot agree. At best, this may justify
considering the application on an urgent basis only
insofar as it
concerns the first respondent’s association vis-à-vis
SADV, and the joinder application that followed.
But it cannot serve
to remedy the significant failure to establish urgency where it comes
to the first respondent’s association
with Motheo. To describe
it simply, and considering urgency as sought to be made out in the
founding affidavit at the time when
the application was filed, I
believe that the applicant would fail on urgency, and what may have
developed after that would have
no effect on this.
[8]
In short, the fortuitous occurrence of the first respondent’s
own movements cannot save the applicant’s case on urgency.
[20]
In
sum, there was an inordinate delay in the applicant bringing the
application. It procrastinated for months, and provided little
in the
way of a proper explanation for its failure to act expeditiously. The
urgency was in the end nothing more than self-created.
[21]
This
leaves the requirement of the applicant’s ability to obtain
proper substantive redress in due course, for consideration.
Obviously, and where a matter is struck from the roll for want of
urgency, then the merits of the application remains undetermined.
It
follows that the application can still be considered and granted by a
Court in the ordinary course. But I understand that in
the case of a
restraint of trade, there is a unique consideration. Usually,
restraints are for a limited period, and considering
the undeniable
realities of litigating in the ordinary course, by the time a hearing
date is available, the restraint may well
have long since expired. On
face value, this may appear to provide justification for the
restraint being heard urgently, as long
as the restraint period has
not expired, as substantive redress would not be able to be obtained
in the ordinary course.
[22]
But
what appears on face value to be justified, is in my view an
oversimplification of the enquiry. If this kind of argument is
accepted to hold true as is, then, and of course appreciating this is
an extreme example, an applicant in a restraint of trade
application
despite knowing the employee left employment to join a competitor,
can wait until 1 (one) month before the restraint
expires, have no
explanation for the delay, but convince the Court to hear the
application just because the period is about to
expire and
substantial redress in due course would not be possible. That cannot
be. It must always be considered whether the inability
to obtain
substantial redress in due course is attributable to the applicant’s
own failures.
[23]
In
the case of restraints of trade, to what extent the applicant’s
failure contributes to the inability to obtain substantial
redress in
due course is an especially important consideration where it comes to
urgency. This is because the clock starts ticking
as soon as the
employee leaves employment. It follows that as soon as the employer
realises that there is a possible violation
of the restraint, it must
act promptly. If the employer does so, it would be able to
successfully argue that the possibility of
the restraint period
expiring before the matter can be heard in the ordinary course is not
due to its own doing. This kind of consideration
would be why this
requirement is inextricably linked with the other requirements of
urgency in the case of restraints.
[24]
The
Court is not saying that when an employer realises there is a
violation of the restraint of trade, an application must be launched
yesterday. This Court has said that it is advisable to first try and
avoid litigation by demanding compliance and seeking an undertaking
to comply.
[9]
But at best, this kind of pre-emptive approach can account for a
period of a week or two in the whole scheme of things. I do not
attach a specific time period to this, as it would naturally depend
on the interaction between the parties, and the particular
facts of
the case. But even this consideration certainly cannot account for
the kind of delay occasioned in this case now before
me.
[25]
Therefore,
and even if it can be said that because of the period of only about 6
(six) months’ left on the restraint means
that the applicant
cannot obtain substantial redress in due course, this simply cannot
save its case on urgency. The applicant
could, and should, have
brought this application shortly after 16 January 2018, when it
received all the negative responses to
its letters of demand of 12
January 2018. It is the applicant’s own fault that it is now in
the predicament that it is. Its
own failures cannot serve as
justification for this Court to accept that the requisite urgency
exists in relying on the inability
of the applicant to obtain
substantial redress in the ordinary course.
[26]
Therefore,
the applicant must fail on urgency. Ordinarily, this means that the
application be struck from the roll. But it is possible,
in
appropriate circumstances, to even dispose of the matter on the
merits, where a matter is regarded as not being urgent, instead
of
striking the matter from the roll. The Court in
February
v Envirochem CC and Another
[10]
dealt with this kind of consideration, and even though the Court
accepted that urgency was not established, the Court nonetheless
proceeded to dismiss the matter in the interest of
finality
and so the matter should be dealt with once and for all.
For
the reasons to follow, I believe this is such a case and should be
dealt within in the same fashion.
The
issue of a clear right
[27]
As
touched on above, and in order for the applicant to obtain the relief
it seeks, it needs to illustrate the existence of a clear
right.
Considering this is a restraint of trade, it has been my experience
in hearing many of these applications that the same
principles are
argued in detail over and over again. I will thus now attempt to
summarize all the considerations where it comes
to establishing
whether a clear right exists, in the context of a restraint of trade,
below.
[28]
Restraints
of trade are valid and binding, and as a matter of principle
enforceable, unless the enforcement thereof is considered
to be
unreasonable.
[11]
A restraint of trade does not infringe on the constitutional right to
free economic activity.
[12]
[29]
The
issue of the
onus
of who must prove that the enforcement of a restraint of trade is
reasonable plays little role in deciding the issue. The practical
reality is that an applicant seeking to enforce a restraint of trade
must make out a proper case in the founding affidavit, able
to
sustain a conclusion that enforcement the restraint of trade would be
reasonable. If that application is opposed by the respondent,
a
factual dispute arises, and considering final relief is sought in
motion proceedings, that factual dispute is resolved in line
with the
normal principles established in
Plascon
Evans Paints v Van Riebeeck Paints
[13]
.
In summary, these principles entail that the facts as stated by the
respondent together with the admitted or facts that are not
denied in
the applicant’s founding affidavit constitute the factual basis
for making a determination, unless the dispute
of fact is not real or
genuine or the denials in the respondent's version are bald or not
creditworthy, or the respondent's version
raises such obviously
fictitious disputes of fact, or is palpably implausible, or
far-fetched or so clearly untenable, that the
court is justified in
rejecting that version on the basis that it obviously stands to be
rejected.
[14]
Admitted facts include facts that, though not formally admitted,
simply cannot be denied.
[15]
In the end, I refer to
Hudson
and Another v SA Airways SOC Ltd
[16]
,
where the Court referred with approval to the following
dictum
from the judgment in
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[17]
:
‘
As
was noted in
Wightman
:
'A
real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise
the dispute
has in his affidavit seriously and unambiguously addressed the fact
said to be disputed.
’’
[30]
The
Plascon
Evans
principle as summarized above will apply irrespective of where the
onus may lie.
[18]
As stated in
Ball
v Bambalela Bolts (Pty) Ltd and Another
[19]
:
‘
In
Reddy
v Siemens Telecommunications (Pty) Ltd
,
it was held that the reasonableness of a restraint could be
determined without becoming embroiled in the issue of onus. This
could be done if the facts regarding reasonableness have been
adequately explored in the evidence and if any disputes of fact are
resolved in favour of the party sought to be restrained. If the
facts, assessed as aforementioned, disclose that the restraint
is reasonable then the party, seeking the restraint order, must
succeed, but if those facts show that the restraint is unreasonable,
then the party, sought to be restrained, must succeed.
Resolving the disputes of fact in favour of the party sought to be
restrained involves an application of the
Plascon-Evans
rule ….
’
[31]
Whether
the enforcement of the restraint of trade would be reasonable is
dependent upon deciding the following questions set out
in
Basson
v Chilwan and Others
[20]
:
(a)
Does
the one party have an interest that deserves protection after
termination of the agreement?;
(b)
If
so, is that interest threatened by the other party?;
(c)
In
that case, does such interest weigh qualitatively and quantitatively
against the interest of the other party not to be economically
inactive and unproductive?; and
(d)
Is
there an aspect of public policy having nothing to do with the
relationship between the parties that requires that the restraint
be
maintained or rejected? Following the judgment in
Basson
,
a further enquiry has been added, which can be called a question (e),
being whether the restraint goes further than necessary
to protect
the relevant interest?
[21]
The above approach of answering these five questions in deciding
whether the enforcement of a restraint of trade would be reasonable
is now trite and has been consistently applied in this Court and the
Labour Appeal Court.
[22]
Answering each of these questions is a determination on the facts of
that particular case, applying, as held in
Ball
[23]
,
the following approach:
‘…
the
determination of reasonableness is, essentially, a balancing of
interests that is to be undertaken at the time of enforcement
and
includes a consideration of 'the nature, extent and duration of the
restraint and factors peculiar to the parties and their respective
bargaining powers and interests'
[32]
The
protectable interest of the applicant in a restraint of trade can
mostly be found in one or both of two considerations, being
confidential information (trade secrets), or trade connections.
[24]
In
Labournet
(Pty) Ltd v Jankielsohn and Another
[25]
the Court held:
‘…
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. …’
[33]
Described
as simply as possible, confidential information would be:
[26]
(a)
Information received
by an employee about business opportunities available to an employer;
(b) the information is useful or potentially
useful to a competitor,
who would find value in it; (c) Information relating to proposals,
marketing to submissions made to procure
business; (d) information
relating to price and/or pricing arrangements, not generally
available to third parties; (e) the information
has actual economic
value to the person seeking to protect it; (f) customer information,
details and particulars; (g) information
the employee is
contractually, regulatory or statutory required to keep confidential;
(h) Information relating to the specifications
of a product, or a
process of manufacture, either of which has been arrived at by the
expenditure of skill and industry which is
kept confidential; and (i)
information relating to know-how, technology or method that is unique
and peculiar to a business. Importantly,
the information summarized
above must not be public knowledge or public property or in the
public domain. In short, the confidential
information must be
objectively worthy of protection and have value.
[34]
On
the other hand, trade connections is where the employee has access to
customers and is in a position to build up a particular
relationship
with the customers so that when he leaves employment and becomes
employed by a competitor, the employee could easily
or readily induce
the customers to follow the employee to the new business.
[27]
Whether the employee can be seen to have the ability to exert this
kind of influence, is dependent upon
the
duties of the employee, the employee’s particular personality
and skill, the frequency and duration of contact between
the employee
and the customer, the nature of the relationship between the employee
and the customer and in particular whether the
relationship carried
with it a notion of trust and confidence, the knowledge of the
employee of the particular requirements of
the customer and the
nature of its business, how competitive the rival businesses are, and
the nature of the product or services
at stake.
[28]
[35]
A
more recent development in the consideration of the issue of a
protectable interest is having regard to the seniority of the
employee concerned.
[29]
The more senior the employee, the more likely it is that the employee
would be entrenched with what can legitimately be considered
to be a
protectable interest based on the above two considerations.
[30]
Seniority is not just the level of the employee in the organization
of the erstwhile employer, but also includes factors such as
the
influence, knowledge, expertise, nature of duties, relationships and
even the particular person of the employee.
[36]
In
deciding whether a protectable interest has been infringed upon, it
is not necessary to show that there has been actual harm
to the
employer. It is about the risk created to the employer.
[31]
For example, it is not necessary to show that the employee had
actually solicited the custom of the customers he or she dealt with
whilst employed at the employer (even though this would of course
leave little doubt that there is breach). All that must be shown
for
example is that the employee indeed had a close working relationship
with customers, and that it is likely that the employee
is in a
position to convince these customers to take their business
elsewhere. In sum, is the employee in a position to act to
the
detriment of the erstwhile employer?
[32]
[37]
The
same risk consideration applies to confidential information, the only
consideration being whether it could harm the employer
or lead to an
unfair advantage to the competitor if disclosed.
[33]
In order to defeat this, the employee party would have to show, as
described in
SPP
Pumps
[34]
:
‘ …
The
respondent must establish that he or she had no access to that
information or that he or she never acquired any significant
personal
knowledge of, for instance, the applicant's customers while in the
applicant's employ. …’
[38]
There
is another nuance to considering the question of the infringement of
the protectable interest. This is the lapse of time.
The
reasonableness of the enforcement of the restraint must be assessed
at the time when the restraint is sought to be enforced.
[35]
In the case of trade connections, the longer the employee has no
contact with erstwhile customers, the more his or her influence
over
them diminishes. In the case of confidential information, there may
well be some instances where confidential information
does not
diminish through a lapse of time. This would be where the employer,
for example, had a unique and secret manufacturing
method that would
always be of great value to a competitor. However, where it comes to
confidential information relating to general
operations, marketing,
planning, finances, customer details and business plans, these
clearly become less and less relevant as
time progresses.
[36]
After all, nature of business is that it must change to remain
relevant and competitive.
[39]
Where
it comes to the quantitative and qualitative weigh off to be
conducted, the scope and period of the restraint is relevant.
A
shorter restraint and properly limited geographical area (if
applicable) would mitigate in favour of enforcement, whilst an unduly
long and broad restraint would mitigate against it.
[37]
It must also be considered whether the employee was possessed of the
skills, expertise, qualifications and experience before joining
the
employer, as it could be seen as unfair in the weigh off to prevent
the employee from earning a living under such circumstances.
[38]
For example, where the employer employed the employee as an already
qualified and experienced engineer, it would be unreasonable
to seek
to prevent the employee from pursuing the chosen occupation of an
engineer. The nature of the industry is also an important
consideration. The more specialized the industry is, the more the
weigh off will favour the employer, as it limits the scope of
the
restraint and leaves much more avenues open to the employee to
procure gainful employment in other industries. Whether the
employee
is wholly or partly remunerated for the restraint period is also a
consideration in favour of enforcement, but this is
not a
requirement.
[40]
It
does not matter whether the employee, where employment with a
competitor can be seen to be a violation of the restraint, gives
an
undertaking that the employee will not exploit trade connections or
disclose confidential information, as this is not a consideration
that can be applied in favour of the employee and simply does not
serve as a defence.
[39]
[41]
As to
whether the restraint goes further than needed to protect a
protectable interest, the essence of the enquiry is to establish
whether restraint only serves to stifle competition.
[40]
In other words, enforcing the restraint does nothing more than
spiting the employee and the competitor for whom the employee intends
to work, and does nothing to protect the business or interests of the
erstwhile employer.
[42]
Finally,
and where it comes to public interest, this consideration would arise
where the enforcement of the restraint may be
contra
bones mores
,
or seek to support some kind of device or illegality or prohibited
business model.
[41]
That which is unlawful cannot be protected.
[43]
Considering
all the above, I now turn to the facts at hand. These facts as set
out in this judgment are gathered from the respective
affidavits
filed by the parties, and applying the
Plascon
Evans
principles discussed above.
[44]
The
first respondent was employed by the applicant as implementation
programme manager in terms of a written contract of employment
signed
on 4 February 2015. The first respondent commenced services on 1
March 2015, and upon commencing employment, actually headed
up the
newly established project management office at the applicant. The
first respondent was also a shareholder of the applicant,
sat on the
executive committee of the applicant, and had about 200 employees of
the applicant reporting to him.
[45]
The
applicant conducts business as a ‘fibre-to-the-home’
(‘FTTH’) network operator. This FTTH industry is
succinctly described by the first respondent as having three separate
layers. The first layer is the construction of the physical
network,
which, in simple terms, is laying the fibre lines. Once the lines are
in place, layer two then entails connecting the
fibre lines to metro
hubs that provide internet access, though the use of computers and
other technology. The third and final layer
is then providing
internet access to end users, such as the residents in the suburbs,
who pay a monthly service fee. The applicant’s
business is
conducted in layers one and two. The applicant does not conduct
business in level three, which businesses are in essence
what is
commonly known as internet service providers, or “ISPs”.
[46]
In
his contract of employment, the first respondent agreed to a
restraint period of 6 (six) months following the termination of
his
employment, applying to the geographical area comprising of the
entire country. The restraint itself prohibited the first respondent
from being associated with a competing business, with the association
being broadly described as including employment and otherwise
contracting. The restraint further prohibited the first respondent
from soliciting the customers of or dealing with the applicant’s
customers or potential customers. Finally the restraint prohibited
the first respondent from soliciting the employment of the
applicant’s employees with a competitor, and enticing the
suppliers of the applicant to stop doing business with it.
[47]
Motheo
and SADV are indeed direct competitors of the applicant, in either
level one or two or both. It however appears that the
applicant and
all these other operators share the same basic customers, which are
the ISPs. The customer base of the applicant
(and the mentioned
competitors) are not the individual residential home owners that
ultimately connect to the fibre network and
pay a subscription /
usage fee for it. The customer base of the applicant is the ISPs that
utilize the fibre infrastructure provided
by the applicant, who in
turn, sell on individual services to the individual residence owners
in the suburb. These ISPs are not
dedicated to any one infrastructure
provider. Certainly, both the applicant and Motheo share Vodacom as a
customer.
[48]
Turning
then back to the first respondent, he was involved in the roll out
strategy of the applicant in deploying fibre lines in
the various
suburbs. The first respondent assisted building the applicant’s
processes and contract capacity in this regard.
He had access to and
was in control of all the budgeting, planning, operations and then
handover of the network, relating to all
the activities that resorted
under his office. In his capacity as exco member, the first
respondent not only attended exco meetings,
but also board meetings,
where he was privy to the kind of confidential and sensitive
information and strategy normally discussed
at these kind of high
level meetings. In short, where it came to the construction of the
fibre network, the first respondent knew
everything about the
applicant’s operations, transactions and strategies. As he says
in his answering affidavit, things were
done because ‘Mo says’
(the first respondent’s nickname).
[49]
The
first respondent’s employment with the applicant terminated on
1 March 2017 by way of agreement. In this agreement, the
first
respondent undertook to fully adhere to the restraint of trade
covenant as contained in his employment contract, and the
restraint
period was extended to 24 (twenty four) months. Both parties had
issues as to whether the other breached the termination
agreement,
and devoted a fairly large part of what is contained in the
affidavits to this, but in my view and for the purposes
of this
judgment, and even accepting that the applicant may have contravened
some of the terms of this agreement, nothing turns
on this.
[42]
I will simply accept, for the purposes of argument, that the
restraint period was extended to 24 (twenty four) months by
agreement,
which is in any event consistent with the simple wording
of the termination agreement.
[50]
Having
left the applicant, the first respondent in fact did not work in the
industry for a period of 7 (seven) months, in which
time his
activities at the applicant must surely have been attended to by
someone else, without encountering any interference from
the first
respondent at a competitor. The first respondent only contracted with
Motheo as from 1 October 2017. It however does
appear that at Motheo,
the first respondent did much the same as that which he did at the
applicant, especially where it came to
the rolling out of fibre
networks in targeted suburbs.
[51]
The
first respondent remained contracted with Motheo until 1 August 2018,
which was after the current application was brought. He
then
terminated his contract with Motheo and took up contracting with
SADV. SADV is not in the business of installing fibre networks,
and
SADV only operated in what was described as the level two sphere,
being to connect fibre networks to the hubs giving access
to the
internet. SADV works with Motheo which is primarily focussed on fibre
network installation (level one).
[52]
Considering
the above factual matrix, I am satisfied that the applicant has a
proper protectable interest where it comes to confidential
information. The applicant’s summary of the kind of
confidential information it seeks to protect, and that this can
properly
be considered as confidential information worthy of
protection, was not pertinently or effectively challenged by the
first respondent,
and I accept it qualifies as the kind of
confidential information worthy of protection. Considering the first
respondent’s
level of seniority, the fact that he was
effectively in change of the business unit doing installations, that
he had access to
the applicant’s information infrastructure,
and that he sat on the executive committee and board, I accept that
the first
respondent had full access to, and was aware of, this kind
of information, and I simply do not believe his feeble attempts at
denying
this.
[43]
No doubt, and at the time the first respondent left the applicant,
this information would be of value to a competitor such as Motheo
and
having access to it,
via
association
with the first respondent, would give Motheo an undue advantage it
would never have had, in competing with the applicant.
[53]
But
where it comes to trade connections, the situation is somewhat
different. I do not believe the applicant has made out a proper
case
of trade connections worthy of protection. There is no proper
evidence of the first respondent having any kind of close or
influential relationship with the customers of the applicant, which
as stated are only the ISPs. Not itself being an ISP, the applicant
does not do business with individual residents in a suburb. It is
clear that the ISPs do not exclusively deal with the applicant,
and
already have existing relationships with the various infrastructure
providers, such as the applicant. I accept the first respondent’s
assertions that in the areas where the infrastructure providers
compete, the business will go the provider with whom the ISP can
negotiate the best deal. The first respondent will have little or no
influence in this regard, and has said he did not even deal
with the
ISPs. This is evidenced by the fact that despite the first respondent
having spent more than 9 (nine) months with Motheo
by the time the
application was brought, there is no indication of the applicant
having lost any business to Motheo.
[44]
[54]
Advocate
Whitcutt attempted to counter this difficulty by referring to the
fact that the first respondent had a unique relationship
with
contractors that did installations, and this could also be considered
to be trade connections. This argument is however defeated
by the
provisions of the restraint itself. It draws a distinction between
customers and suppliers, and only seeks to prohibit the
first
respondent from enticing suppliers to stop doing business with the
applicant. There is no prohibition of, for example, the
first
respondent getting a contractor of the applicant to do installations
for Motheo, provided of course that that contractor
does not as a
result stop doing business with the applicant. No case was made out
that any contractor stopped doing business with
the applicant, after
the first respondent went to Motheo.
[45]
[55]
Therefore,
the applicant has failed to establish the existence of a protectable
interest where it comes to trade connections.
[56]
But
where the applicant’s application completely falls down is when
it comes to the consideration of the principle of breach
of the
protectable interest. There are a number of reasons for this, which I
will deal with hereunder. But importantly, many of
these reasons are
directly linked to the excessive delay occasioned by the applicant in
bringing this application. It is for this
reason that I intimated
earlier in this judgment that the lack of urgency spills into the
merits of the matter resulting in it
being dismissed, rather than
just stuck from the roll.
[57]
Accepting
that the applicant has a proper protectable interest worthy of
protection where it comes to confidential information,
and that the
contracting of the first respondent with Motheo on face value
infringes on this protectable interest, the simple answer
to this is
that when this application was finally moved in Court, the first
respondent had ceased contracting with Motheo. If the
application was
brought much earlier, this would clearly not have been the case. The
applicant in essence shot itself in the foot.
In the absence of any
existing relationship or association of any kind between the first
respondent and Motheo, which was indeed
the case as from 1 August
2018, there is simply no live controversy between the parties. The
matter is for all intents and purposes
moot. I accept that even if a
matter is moot can still be decided if justice demands it.
[46]
[58]
But
this would not be a case where justice demand that this Court
nonetheless consider the previous association between the first
respondent and Motheo as basis for deciding this matter. The simple
reason for this is that the applicant, principally, seeks an
interdict. If there is nothing to interdict, then all that remains is
giving advice to the parties without a real and underlying
lis
and no practical effect to granting relief.
[47]
Therefore, and where it comes to considering whether there is a
breach of the protectable interest of the applicant vis-à-vis
the first respondent’s association with Motheo, this must be
answered in the negative, because as matters now stand, it simply
does not exist.
[59]
I may
add that in the founding affidavit, the applicants lists no fewer
than 12 (twelve) of its former employees that are now employed
by
Motheo. Other than making a general allegation that these employees
were solicited for employment with Motheo by the first respondent
(which the first respondent denies), it is clear that the positions
of several of these employees at the applicant are of the nature
that
they would have access to the same kind of confidential information
the applicant complains the first respondent was possessed
of. One
then has to ask – did these employees have restraints
themselves, if so was this enforced, and if not, why? The applicant
has not taken this Court into its confidence by answering these
questions. The first respondent has rightly in his answering
affidavit
raised concerns about this, and even provided examples of
the contracts of employment signed by these employees with the
applicant,
which reflects that indeed there was a restraint of trade.
One is then left with the nagging question, especially considering
the
extreme delay in this case, whether the applicant is really just
trying to protect a breach of its genuine protectable interests,
or
whether the enforcement of the restraint is rather not act of
retribution and to simply stifle competition. The latter circumstance
certainly appears more likely.
[60]
This
then leaves the first respondent’s current association /
contract with SADV. Does this constitute a breach of the protectable
interest of the applicant where it comes to confidential information?
In my view, this is not the case. In this regard, the applicant
unfortunately shot itself in the other foot. The entire case of the
applicant in the founding affidavit was built around showing
a breach
of the protectable interest where it comes to Motheo. The only reason
why SADV came into the picture is because of what
the first
respondent said in his answering affidavit. Other than seeking to
then join SADV to the proceedings, very little effort
is expended by
the applicant in making out a similar case of breach of the
protectable interest where it comes to the first respondent’s
association / contract with SADV. The applicant could, and should,
have done a lot more in this regard.
[61]
However,
and even considering the merits of the matter as is stands, the
association of the first respondent with SADV only came
about on 1
August 2018, with him having left the applicant as far back as 1
March 2017, and being out of the industry entirely
for 7 (seven)
months. In my view, this has derogated the value of the confidential
information the first respondent has access
at the time when he left
the applicant to be virtually valueless.
[48]
As a matter of common sense and logic, information about projects,
installations, finances, marketing and the like in March 2017
is
simply not current in August 2018. As a simple example, it can hardly
be said that knowledge of pricing in March 2017 would
have any value
in August 2018. There is no evidence of any trade or business secret
or manufacturing methodology that is unique
to the applicant, and
would remain worthy of protection even as time goes by, and which a
competitor such as SADV would dearly
love to get its hands on. In
short, the kind of confidential information applicable here is
operational in nature, has a sell by
date, and that date has passed.
The first respondent has in fact said as much, with proper motivation
for this view, in the answering
affidavit, and there is no reason not
to accept this.
[62]
It is
clear from the evidence that the majority of the first respondent’s
duties at the applicant, and knowledge of operations,
were dedicated
to the installation of fibre infrastructure. SADV is not in that
business. It is only in the business of activating
the infrastructure
and then contracting with the ISPs. In this context, it would only be
possible trade connections the first respondent
may have had that
would be of value to SADV, but, as discussed above, the first
respondent simply had no such connections.
[63]
It
follows that when the first respondent contracted with SADV on 1
August 2018, this did not constitute a breach of the applicant’s
protectable interest relating to confidential information, as what
could have been confidential information had since expired.
[64]
In
the result, the applicant fails at the point of establishing a breach
of its protectable interest as contemplated by enquiry
(b) in
Basson
.
It is therefore not necessary to consider any of the other issues.
The consequence of this is that the applicant has failed to
establish
the existence of a clear right to the relief sought, and as such, is
not entitled to the interdict sought. It is not
necessary to then
consider any of the other requirements for final relief, as well.
[65]
It is
also clear that the procrastination of the applicant in bringing this
application is a large contributor to this failure,
and that is also
why this matter must be dismissed instead of just being struck from
the roll.
Conclusion
[66]
In
summary, the applicant has failed to satisfy the requirements
necessary for this matter to be considered urgent. But nonetheless,
this is an instance where this failure does not lead to the matter
simply being struck from the roll, but leads to it being actually
dismissed. The reason for this is that the applicant has failed to
establish the existence of a clear right to the relief sought,
and an
important contributor to its failure in this regard is equally the
delay occasioned in bringing the application. The applicant’s
application falls to be dismissed.
[67]
This
then leaves only the issue of costs. This Court has a wide discretion
where it comes to the issue of costs, considering the
provisions of
section 162 of the LRA. It must of course be considered that the
applicant was unsuccessful, and should have with
much more
circumspection considered whether it was still competent to bring
this application after such a long delay. If these
were the only
considerations, I may have been inclined to award costs against the
applicant. But some of the issues raised by the
first respondent also
leaves me concerned. I find the first respondent’s approach of
trying to distance himself from his
level of seniority and the clear
terms of the termination agreement he signed to be concerning. It
also appears that despite signing
an agreement extending the
restraint period to 24 months, the first respondent acts in flagrant
violation thereof after only 7
(seven) months. It cannot be said that
the first respondent did this because the applicant breached the
agreement by not paying
his last R 1 million instalment, because this
payment was only due shortly before the first respondent actually
contracted with
Motheo. It follows that he must have been negotiating
with Motheo, to join it, even before this. In any event, the first
respondent
never instituted breach proceedings as prescribed by the
agreement itself. Overall considered, and having regard to all that
it
set out above, I believe that this is a case where it would be
just and equitable to make no order as to costs.
[68]
In
the premises, I make the following order:
Order
1.
The
application is dismissed.
2.
There
is no order as to costs.
_____________________
S. Snyman
Acting Judge of the Labour Court
Appearances:
For the Applicant: Advocate C Whitcutt
SC together with Advocate L M Maite
Instructed
by: Cliffe Dekker Hofmeyr Attorneys
For the First Respondent:
Advocate A Redding SC together with Advocate M Meyerowitz
Instructed by: Pandor Attorneys
[1]
Setlogelo v
Setlogelo
1914 AD 221
at 227;
V
& A Waterfront Properties (Pty) Ltd and Another v Helicopter &
Marine Services (Pty) Ltd and Others
2006 (1) SA 252
(SCA) para 20. In particular, and where it comes to
restraint applications, see
Esquire
System Technology (Pty) Ltd t/a Esquire Technologies v Cronjé
and Another
(2011) 32 ILJ 601 (LC) at para 38 – 40;
Continuous
Oxygen Suppliers (Pty) Ltd t/a Vital Aire v Meintjes and Another
(2012) 33 ILJ 629 (LC) at para 26;
Experian
SA (Pty) Ltd v Haynes and Another
(2013) 34 ILJ 529 (GSJ) at para 59;
Jonsson
Workwear (Pty) Ltd v Williamson and Another
(2014) 35 ILJ 712 (LC) at para 54;
FMW
Admin Services CC v Stander and Others
(2015) 36 ILJ 1051 (LC) at para 1.
[2]
(2009) 30 ILJ 1750
(C) at 1761.
[3]
(2017)
38 ILJ 2741 (LC) at para 20. See also paras 17 and 18 of the
judgment.
[4]
(2010) 31 ILJ 112
(LC) at para 18.
[5]
(2016)
37 ILJ 2840 (LC) at paras 20 – 26, and all the authorities
cited there.
[6]
Compare
National
Union of Metalworkers of SA and Others v Bumatech Calcium Aluminates
(2016)
37 ILJ 2862 (LC) at para 30.
[7]
Compare
Ecolab
(
supra
)
at paras 28 – 30.
[8]
As said in
Bumatech
(
supra
)
at para
32:
‘The applicants must make out a case for urgency in the
founding affidavit’. See also
Mashiya
v Sirkhot NO and Others
(2012)
33
ILJ
420 (LC)
at
para 17.
[9]
See
Continuous
Oxygen (supra)
at
paras 21 – 24;
L'Oreal
South Africa (Pty) Ltd v Kilpatrick and Another
[2014] ZALCJHB 353 (16 September 2014) at para 41.
[10]
(2013) 34 ILJ 135
(LC) at para 17. See also
Bumatech
(
supra
)
at para 33;
Bethape
v Public Servants Association and Others
[2016]
ZALCJHB 573 (9 September 2016) at para 53.
[11]
Magna Alloys
and Research (SA) (Pty) Ltd v Ellis
[1984] ZASCA 116
;
1984
(4) SA 874
(A)
at 891B-C;
Reddy
v Siemens Telecommunications
(2007)
28 ILJ 317 (SCA)
at
paras 14;
Labournet
(Pty) Ltd v Jankielsohn and Another
(2017)
38 ILJ 1302 (LAC) at para 39;
Ball
v Bambalela Bolts (Pty) Ltd and Another
(2013) 34 ILJ 2821 (LAC) at para 13;
Esquire
(
supra
)
at para 26;
SPP
Pumps (SA) (Pty) Ltd v Stoop and Another
(2015)
36 ILJ 1134 (LC) at para 26;
Shoprite
Checkers (Pty) Ltd v Jordaan and Another
(2013) 34 ILJ 2105 (LC) at para 20.
[12]
Reddy (supra)
at paras 15 – 16.
See also
Fidelity
Guards Holdings (Pty) Ltd t/a Fidelity Guards v Pearmain
2001
(2) SA 853
(SE) where the Court said:
‘
The
Constitution does not take such a meddlesome interest in the private
affairs of individuals that it would seek, as a matter
of policy, to
protect them against their own foolhardy or rash decisions’.
[13]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E 635C.
[14]
See
Jooste
v Staatspresident en Andere
1988
(4) SA 224
(A)
at 259C – 263D;
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
paras 26 – 27;
Thebe
Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National
Bargaining Council for the Road Freight Industry and
Another
2009
(3) SA 187
(W) para 19;
Molapo
Technology (Pty) Ltd v Schreuder and Others
(2002) 23 ILJ 2031 (LAC) para 38;
SA
Football Association v Mangope
(2013)
34
ILJ
311 (LAC)
at para 12.
[15]
Gbenga-Oluwatoye
v Reckitt Benckiser SA (Pty) Ltd and Another
(2016)
37 ILJ 902 (LAC) at para 16.
[16]
(2015) 36 ILJ 2574
(LAC) at paras 10 – 11.
[17]
[2008] ZASCA 6
;
[2008] 2 All SA
512
(SCA)
.
[18]
In
Reddy
(
supra
)
at
para
4 the Court said that ‘…. A final order can only be
granted in motion proceedings if the facts stated by the
respondent
together with the admitted facts in the applicant's affidavits
justify the order, and this applies irrespective of
where the onus
lies’ (see also para 14 of the judgment). I also refer to
L'Oreal
(
supra
)
at para 4 where this same approach was followed. See also
SPP
Pumps
(
supra
)
at para 20.
[19]
(2013) 34 ILJ 2821
(LAC) at para 14.
[20]
[1993] ZASCA 61
;
1993 (3) SA 742
(A) at 767G-H.
[21]
Jonsson
(
supra
)
at para 44;
Medtronic
(Africa) (Pty) Ltd v Van Wyk and Another
(2016)
37 ILJ 1165 (LC)
at
para 15;
Esquire
(
supra
)
at paras 50 – 51.
[22]
Labournet
(
supra
)
at para 42;
Jonsson
(supra
)
a
t
para 44;
Medtronic
(
supra
)
at paras 14 – 15;
Vox
Telecommunications (Pty) Ltd v Steyn and Another
(2016) 37 ILJ 1255 (LC) at paras 28 – 29;
Shoprite
Checkers
(
supra
)
at paras 23 – 24;
Benchmark
Signs Incorporated v Muller and another
[2016] JOL 36587
(LC) at para 15.
[23]
(
supra
)
at para 17. See also
Labournet
(
supra
)
at para 40.
[24]
Dickinson
Holdings Group (Pty) Ltd and Others v Du Plessis and Another
(2008)
29
ILJ
1665 (N)
at para 32;
Basson
(supra) at
769 G –
H;
Bonnet and Another v
Schofield
1989
(2) SA 156
(D) at 160B-C
;
Hirt and
Carter (Pty) Ltd v Mansfield and Another
(2008)
29 ILJ 1075 (D) at para 37;
Esquire
(
supra
)
at para 27;
Sibex
Engineering Services (Pty) Ltd v Van Wyk and Another
1991
(2) SA 482
(T)
at
502E-F;
Medtronic
(
supra
)
at para 16 – 17;
FMW
(supra)
at para 36;
Vox
(
supra
)
at para 30.
[25]
(2017) 38 ILJ 1302
(LAC) at para 41.
[26]
See
Dickinson
(supra) at
para
33;
Jonsson
(
supra
)
at paras 46 – 49;
David
Crouch Marketing CC v Du Plessis
(2009)
30 ILJ 1828 (LC
)
at para 21;
Esquire
(supra)
at
para 29;
Experian
(
supra
)
at para 19;
Medtronic
(supra)
at
para 16.
[27]
See
Rawlins
and another v Caravantruck (Pty) Ltd
[1992] ZASCA 204
;
1993
(1) SA 537
(A) at 541D-F;
FMW
(
supra
)
at paras 46 – 48;
Esquire
(
supra
)
at paras 31 – 32;
Experian
(
supra
)
at para 18;
LR
Plastics (Pty) Ltd v Pelser
[2006]
JOL 17855
(D) at para 26.
[28]
Caravantruck
(
supra
)
at 541F-I;
FMW
(supra)
at
para 45;
Aquatan
(Pty) Ltd v Jansen van Vuuren and Another
(2017) 38 ILJ 2730 (LC) at para 24;
Medtronic
(
supra
)
at para 17.
[29]
See
Dickinson
(
supra
)
at para 38;
Stewart
Wrightson (Pty) Ltd v Minnitt
1979
(3) SA 399
(C)
at 404B-C;
Random
Logic (Pty) Ltd t/a Nashua
,
Cape
Town v Dempster
(2009) 30 ILJ 1762 (C) at para 32;
Experian
(
supra
)
at para 43;
Jonsson
(supra)
at
para 51.
[30]
See
David
Crouch
(
supra
)
at para 21;
[31]
See
Reddy
(
supra
)
at para 20;
Den
Braven SA (Pty) Ltd v Pillay and Another
2008 (6) SA 229
(D) at para 17;
Point
2 Point Same Day Express CC v Stewart and Another
2009 (2) SA 414
(W) at para 14;
L’Oreal
(
supra
)
at para 77;
SPP
Pumps (supra)
at
paras 30 and 37;
Esquire
(supra)
at
para 27;
Continuous
Oxygen (supra)
at
para 34
.
[32]
Continuous
Oxygen (supra)
at
para 42;
Medtronic
(
supra
)
at para 30;
Vox
(
supra
)
at para 31.
[33]
IIR South
Africa BV (Incorporated in the Netherlands) t/a Institute for
International Research v Hall (Aka Baghas) and Another
2004
(4) SA 174
(W) at para 13.4.1;
Medtronic
v Kleyhans and Another
(2016)
37 ILJ 1154 (LC) at para 40;
Medtronic
(
supra
)
at para 34;
New
Justfun
Group (Pty) Ltd v Turner and Others
[2014] ZALCJHB 177 at para 12.
[34]
(
supra
)
at para 30.
[35]
Labournet
(
supra
)
at para 43.
[36]
Tuv Sud SA
(Pty) Ltd v Branders and Another
(2015)
36 ILJ 2398 (LC) at para 12.
[37]
Labournet
(
supra
)
at para 43;
Continuous
Oxygen
(
supra
)
at para 47
[38]
Automotive
Tooling Systems (Pty) Ltd v Wilkens and Others
(2007) 28 ILJ 145 (SCA) at para 8;
Labournet
(
supra
)
at paras 43 - 44;
Jonsson
(supra)
at
para 51.
[39]
As said in
BHT
Water Treatment (Pty) Ltd v Leslie and Another
1993
(1) SA 47
(W)
at
57J-H: ‘… the applicant should not have to content
itself with crossing its fingers and hoping that the first
respondent would act honourably or abide by the undertakings he has
given....’. See also
Reddy
(
supra
)
at para 20;
Ball
(
supra
)
at para 22;
Shoprite
Checkers (supra)
at
para 43;
Vox
(supra)
at
para 32;
Medtronic
(
supra
)
at para 34.
[40]
North Safety
Products (Africa) (Pty) Ltd v Nicolay
(2007)
28
ILJ
350 (C)
at
353H-I;
Sibex
Engineering Services (Pty) Ltd v Van Wyk and Another
1991
(2) SA 482
(T)
at 507A-B;
Labournet
(
supra
)
at paras 41 and 62;
FMW
(
supra
)
at para 43.
[41]
FMW
(
supra
)
at paras 62 – 63.
[42]
See
Reeves
and Another v Marfield Insurance Brokers CC and Another
[1996] ZASCA 39
;
1996
(3) SA 766
(A) at 772F-G where it was held: 'The legitimate object
of a restraint is to protect the employer's goodwill and customer
connections
(or trade secrets) and the restraint accordingly remains
effective for a specified period (which must be reasonable) after
the employment
relationship has come to an end. The need for
the protection exists therefore independently of the manner in which
the contract
of employment is terminated and even if this occurs in
consequence of a breach by the employer'. See also
Bonfiglioli
SA
(Pty) Ltd v Panaino
(2015) 36 ILJ 947 (LAC) at para 2
4;
Benchmark Signs (supra)
at
para 17.
[43]
Compare
L’Oreal
(
supra
)
at paras 71 and 73.
[44]
Compare
Labournet
(
supra
)
at para 64.
[45]
Compare
Vox
(
supra
)
at paras 37, 49 – 50.
[46]
See
Police
and Prisons Civil Rights Union v South African Correctional Services
Workers' Union and Others
[2018]
ZACC 24
(23 August 2018) at paras 73 and 82;
MEC
for Education, KwaZulu-Natal and Others
v
Pillay
[2007] ZACC 21
;
2008
(1) SA 474
(CC)
at para 32;
Karoo
Hoogland Municipality v Nothnagel and Another
(2015) 36 ILJ 2021 (LAC) at para 4.
[47]
In
National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000
(2) SA 1
(CC)
at para 21 footnote 18 the Court said: 'A case is moot and therefore
not justiciable if it no longer presents an existing or
live
controversy which should exist if the Court is to avoid giving
advisory opinions on abstract propositions of law'. See also
City
of Cape Town v SA Municipal Workers Union on behalf of Abrahams and
Others
(2012) 33 ILJ 1393 (LAC) at para 11;
Multichoice
Africa (Pty) Ltd v Broadcasting Electronic Media & Allied
Workers Union and Others
(2012) 33 ILJ 177
(LAC)
at para 16;
SA
Transport and Allied Workers Union v ADT Security (Pty) Ltd
(2011) 32 ILJ 2112 (LAC) at paras 4 – 5. In
Sun
International Ltd v SA Commercial Catering and Allied Workers Union
(2017) 38 ILJ 1799 (LAC) at para 21 the Court described it as ‘The
appellant has in effect asked for an advisory opinion
as to future
conduct’.
[48]
Compare
Henred
Freuhauf (Pty) Ltd v Davel and A
nother
(2011)
32 ILJ 618 (LC) at para 20.