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[2019] ZALCJHB 358
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Pecsser (Pty) Ltd v Boshoff and Others (J2277/19) [2019] ZALCJHB 358 (5 December 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: J 2277 / 19
In
the matter between:
PECSSER
(PTY) LTD
Applicant
and
MARIO
BOSHOFF
First Respondent
GRW
ENGINEERING (PTY) LTD
Second Respondent
GRW
COMMERCIALS (PTY) LTD
Third Respondent
GRW
HOLDINGS (PTY) LTD
Fourth Respondent
Heard:
26 November 2019
Delivered:
5 December 2019
Summary:
Restraint of trade
–
principles stated – application of principles to matter –
issue of protectable interest considered
Restraint
of trade – nature of confidential information – no
evidence of employee having confidential information –
no
protectable interest with regard to confidential information shown
Restraint
of trade – nature of customer connections – no
protectable interest with regard to customer connections shown
Restraint
of trade – nature of positions of employee considered –
no threat to protectable interest of employer –
particular
skill and expertise accruing to employee – does not form part
of protectable interest of employer.
Restraint
of trade – no reason for enforcing restraint other than
stifling competition – impermissible purpose for enforcing
restraint
Interdict
– no clear right shown for final relief – interdict
refused
Costs
– no real basis for bringing application – costs order
justified
REASONS
SNYMAN,
AJ
Introduction
[1]
The applicant, in the current application,
seeks to enforce a restraint of trade against the first respondent,
so as to prevent
him from taking up employment with the second to
fourth respondents. The second to fourth respondents have been joined
in the application
only on the basis of having an interest in the
matter, as a result of the contemplated employment of the first
respondent with
them, at the time this application was brought. I
will, for the sake of convenience, refer to the second to fourth
respondents
jointly as ‘GRW’. The first respondent has
opposed the application, whilst GRW did not engage in the
application.
[2]
Even
though the first respondent did grumble about urgency in the
answering affidavit, urgency was in reality not strenuously opposed
when the matter was argued. Considering that the first respondent was
due to start work with GRW on 2 December 2019, and the application
was of a preventative nature, I accept that the applicant satisfied
all the requirements of urgency,
[1]
in that it first tried to resolve the matter with the first
respondent and tried to convince him to withdraw his resignation, and
when this failed it brought this application expeditiously so as to
ensure that was heard before the eventuality of the actual
employment
of the first respondent with GRW occurred. Also, and being
preventative, there is no other form of substantial redress
available
to the applicant in due course.
[2]
I also consider that restraint of trade applications have an inherent
quality of urgency.
[3]
The
application is in my view urgent, and I am therefore willing to
entertain the application on the merits thereof.
[3]
The application came before me on 27
November 2018. After hearing argument from the applicant and first
respondent, I made an order
in the following terms:
1.
The application is dismissed with costs.
2.
Written reasons for this order will be
handed down on 5 December 2019.
This
judgment now constitutes the written reasons as contemplated by
paragraph 2 of my order, above.
[4]
When
this matter was argued, an issue arose concerning the
onus
in restraint applications, and also how factual disputes that arose
in the course of restraint of trade applications fell to be
resolved.
Dealing first with the issue of the
onus
,
it is true that the issue is somewhat controversial. One the one
hand, it has been held that the correct position in law is that
the
respondent party seeking to defeat the application of the restraint
of trade had the
onus
to prove the restraint of trade is unreasonable and not
enforceable.
[4]
On the other
hand, recent developments in the jurisprudence however steer away
from the existence of an
onus
as traditionally understood. In
Reddy
v Siemens Telecommunications (Pty) Ltd
[5]
the Court said that:
‘…
.
If the facts disclosed in the affidavits, … disclose that the
restraint is reasonable, then Siemens must succeed: if, on
the other
hand, those facts disclose that the restraint is unreasonable then
Reddy must succeed. What that calls for is a value
judgment, rather
than a determination of what facts have been proved ….
’
.
[5]
However,
and irrespective of where the
onus
may or may not lie, this simply does not change the manner in which
factual disputes are to be resolved, considering that restraint
proceedings are motion proceedings in which final relief is
sought.
[6]
In
Reddy
supra
[7]
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.
’
[6]
It
follows that even in restraint applications, factual disputes must
resolved by way of the application of the well-known principles
established in the judgment of
Plascon
Evans Paints v Van Riebeeck Paints.
[8]
These principles are, in short, that it is the facts as stated by the
respondent together with the admitted or undenied facts in
the
applicant’s' founding affidavit which provide the factual basis
for the determination, unless: (1) the factual dispute
raised by the
respondent is not real or genuine; (2) denials presented are bald or
uncreditworthy; (3) the respondent's version
raises obviously
fictitious disputes of fact; or (4) the respondent’s version is
palpably implausible or far-fetched or so
clearly untenable that the
court is justified in rejecting it.
[9]
[7]
Because
the applicant seeks final relief, the applicant must satisfy three
essential requisites in order to succeed, being (a) the
existence of
a clear right; (b) an injury actually committed or reasonably
apprehended; and (c) the absence of any other satisfactory
remedy.
[10]
Applying the value
judgment referred to in
Reddy
supra
,
and utilizing the
Plascon
Evans
principles,
I
shall now set out the proper background facts that would be pertinent
in deciding whether the applicant has satisfied these requirements.
The
relevant facts
[8]
The applicant is in the business of
installing and maintaining refrigeration units in trucks, delivery
vehicles and truck trailers,
and in particular, installing the
Carrier Transicold brand of units. The applicant does not manufacture
such units, but act as
a distributor, installer and servicing agent.
The applicant also installs and services Eberspacher bus air
conditioning and BAR
cargo lifts.
[9]
The first respondent was first employed by
an international organization called Carrier Transicold in South
Africa, commencing employment
with it on 1 October 2010. Carrier
Transicold, as stated above, is the brand currently distributed and
maintained by the applicant.
The first respondent received all his
essential training, experience and expertise at Carrier Transicold.
He progressed to become
the national technical and training manager
of Carrier Transicold.
[10]
In 2013, Carrier Transicold decided to
withdraw its local presence within the entire SADC region. That meant
that going forward,
Carrier Transicold would only operate through
local representatives distributing and maintaining its products. That
is how the
applicant came into the picture, and by virtue of a
commercial agreement with Carrier Transicold, it became the local
distributor
of the Carrier Transicold products.
[11]
Pursuant to the agreement between Carrier
Transicold and the applicant, the employees of Carrier Transicold,
which included the
first respondent, would move across to the
applicant. It is unclear from the affidavits on what basis this
transfer happened, but
what is indeed clear is the first respondent
was required to sign a new contract of employment with the applicant.
[12]
The first respondent’s new contract
of employment with the applicant was signed by him on 24 January
2014. In terms of this
contract of employment, his effective date of
employment with the applicant was agreed to be 14 December 2013. He
was employed
as manager technical, quality and training. His defined
responsibilities in terms of the contract was ‘
to
manage all aspects of Engineering and Technical issues with Carrier
Transicold, Design of new Installations, Quality control,
training
and development of technicians and managing contracts and expenses
from agents
’ (sic).
[13]
The employment contract also contained a
restraint of trade provision. The sum total of it read:
‘
Please
note that should you leave the company, it is a specific condition of
service that you will not be allowed to join one of
the Company’s
competitors/operate in the same business as the Company for your own
account or indirectly for anyone else’s
account within six of
the termination of your employment with the Company, within a range
of 200km
’
It
is not indicated in the employment contract what the basis of the
interest was that the applicant sought to protect by way of
this
provision, which one normally finds in restraint of trade covenants.
The provision is, generally speaking, rather bare.
[14]
In June 2016, the first respondent sought
to resign from the employment of the applicant. He explained in the
answering affidavit
that he had received an offer of employment from
HFR Schaefer Vervoer, which was the cause for his resignation. He
also stated
that he decided to consider being employed elsewhere, not
for an increase in remuneration, but because he was dissatisfied with
his working conditions at the applicant. His issue was that his
workload was too high and he did not receive enough assistance
in the
carrying out of his duties.
[15]
In an attempt to retain the services of the
first respondent, the applicant, in effect, threw money at him.
According to the first
respondent, the applicant also agreed to
resolve the difficulties with his working conditions. The first
respondent then agreed
to stay, and on 1 July 2016, the parties
signed an addendum to the first respondent’s contract of
employment in which his
increased salary was recorded, and also his
restraint of trade was updated. The restraint clause in this addendum
was identical
to the restraint in his original contract of
employment, save for the fact that 200km radius was removed.
[16]
On 2 September 2019, the first respondent
again resigned. He explained that the applicant did not come to the
party with the promised
assistance, and that his workload in the
period between January 2019 and July 2019 had increased to the extent
that he was struggling
to cope. When he received an offer employment
from GRW on 31 August 2019, the first respondent decided to accept
it. In terms of
the addendum to his contract of employment, he was
required to give three months’ notice, meaning that his
employment with
the applicant would finally terminate on 30 November
2019. The first respondent was required by the applicant to work out
his notice.
[17]
The applicant again tried to convince the
first respondent to stay. The founding affidavit contains some detail
about discussions
in this regard, which is not relevant for the
purposes of deciding this application. Suffice it to say, this time
the first respondent
was not willing to reconsider. Hence the current
application.
[18]
It is at this juncture appropriate to set
out what GRW does. It is in the business of the manufacture of truck
bodies and trailers.
It is not in the business of the distribution
and maintenance of refrigeration units. Customers come to GRW to
order and purchase
a truck trailer. That trailer is then manufactured
by GRW according to the specifications the customer requires. This
may include
a refrigerated trailer. GRW also manufactures a variety
of other trailers that are not refrigerated, which includes tanker
trailers.
[19]
In the past, and where a customer required
a refrigerated trailer, GRW would utilize the services of third party
service providers
to provide and install a refrigeration unit in a
trailer. These service providers would include the applicant as well.
Other products
used by GRW is Thermo King and Transfrig, existing
competitors of the applicant. GRW was never in the business of
providing and
selling refrigeration units to third parties and other
trailer manufacturers, which was what the applicant did. The
applicant also
never manufactured and supplied trailers to customers.
[20]
In the replying affidavit, the applicant in
fact establishes why GRW would later come to have an interest in the
employment of an
employee such as the first respondent. The applicant
sets out, in some detail, the existence of a competing product to
Carrier
Transicold and Thermo King, the primary products supplied
locally, in the European market place. This competing product is
manufactured
and supplied by an organization called Schmitz
Cargobuild AG (‘Schmitz’). Schmitz decided, as from about
2012, to enter
the market of manufactuting and supplying
refrigeration units for truck bodies and trailers, and thus compete
directly with Carrier
Transicold and Thermo King. According to the
applicant, Schmitz invested in GRW, to the extent of acquiring 33% of
the shares of
GRW, effective 1 August 2017. I accept that on the
evidence, it appears that GRW and Schmitz are now operating in a
joint venture,
locally.
[21]
This new joint venture, which is a purely
business transaction, obviously has negative implications for the
business of the applicant.
This clearly, in my view, left it with a
distinct case of sour grapes. With Schmitz being a manufacturer of
refrigeration units
for truck bodies and trailers, it is patently
obvious that going forward, those units would be installed into the
truck bodies
and trailers manufactured by GRW for customers that
require these units, without GRW having the need to contract with a
third party
service provider such as the applicant to supply and
install the same. It followed that the applicant would lose this
business
where it comes to trailers supplied by GRW to customers, as
a result of this commercial transaction. That, unfortunately for the
applicant, is life in the open and competing market.
[22]
But this commercial reality did not stop
the applicant from nonetheless complaining. In its replying
affidavit, it stated that in
July 2018, it had a purchase order from
Unitrans (a road freight transport service provider) to install 10
refrigeration units
into 10 new trailers ordered by Unitrans from
GRW. The value of the order was just short of R3.8 million. However,
Unitrans then
cancelled the order, before it could be carried out.
The applicant met with Unitrans about this, and was told that
Unitrans would,
going forward, in effect acquire complete trailers
from GRW with the Schmitz refrigeration unit already installed. What
is however
significant is that the applicant lost this business long
before the first respondent resigned, and obviously not due to any
violation
of the restraint of trade by the first respondent.
[23]
The simple commercial reality that faced
the applicant was that customers that ordered refrigerated trailers
or truck bodies from
GRW, now did not need the applicant. They could
get a complete ‘in house’ service, so to speak, from GRW,
because of
its joint venture with Schmitz. That had been the case at
least since the latter part of 2017. However, and unlike the
applicant,
GRW does not distribute Schmitz refrigeration units to
other manufacturers or end users. It installs Schmitz refrigeration
units
only in the trailers and truck bodies made by it. Ms Davies,
representing the first respondent, gave what I believe to be quite
an
illustrative analogy. One does not build a house for the air
conditioner. The fact that the builder may have his own air
conditioner
supplier, does not mean that the builder deals in air
conditioners.
[24]
GRW, now installing its own refrigeration
units, so to speak, would need personnel to do so. It would also need
personnel to maintain
these units. After all, it provides a
maintenance service to its customers, just like any other motor
industry manufacturer (trailer
manufacture resorts under MIBCO). This
is where the first respondent comes in, and why GRW would be
interested in employing him.
This then leads the crisp question to be
answered in this application, being whether this employment in this
context constitutes
a violation of the restraint of trade. This is
the question I will answer below.
Restraint
principles
[25]
I will commence deciding this matter by
first setting out the pertinent restraint principles, which lie at
the heart of deciding
any restraint of trade case. It is the
application of these principles that establish the existence of a
clear right, as the first
requirement for the applicant obtaining the
relief it seeks.
[26]
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]
The
general principles applicable to the enforcement of restraints of
trade as set out in
Basson
v Chilwan and Others
[13]
are consistently applied, and are now trite.
[14]
These principles entails answering the following questions:
(a)
Does
the applicant 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? More recent developments of these restraint
enforcement principles includes answering a further question,
being
whether the restraint goes further than necessary to protect the
relevant interest?
[15]
This
approach of answering these five questions in total, 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.
[16]
Answering these five questions involves a determination on the facts
of that particular case, applying, as held in
Ball
v Bambalela Bolts (Pty) Ltd and Another
[17]
,
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'
[27]
A
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.
[18]
In
Labournet
(Pty) Ltd v Jankielsohn and Another
[19]
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. …’
[28]
Considering
first what constitutes confidential information, it can be summarized
as follows:
[20]
(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.
[29]
Next,
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.
[21]
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.
[22]
[30]
The
seniority of the employee concerned is also a relevant factor when
deciding if a protectable interest exists.
[23]
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.
[24]
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.
[31]
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.
[25]
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, and all that must be shown 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?
[26]
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.
[27]
[32]
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.
[28]
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.
[29]
The nature of the industry is also an important consideration, in
that the more specialized the industry, 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.
[33]
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.
[30]
[34]
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.
[31]
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.
[32]
[35]
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.
[33]
That which
is unlawful cannot be protected.
Analysis
[36]
In next applying the aforesaid principles,
I will first consider whether the applicant has a protectable
interest. The applicant
has sought to rely on both aspects, being
confidential information and trade connections, to seek to establish
the existence of
a protectable interest.
Confidential
information
[37]
As to confidential information,
the
applicant contends in the founding affidavit that the first
respondent is possessed of confidential information, worthy of
establishing a protectable interest. According to the applicant, the
first respondent participated in and was privy to management
meetings
of the applicant. In those meetings, according to the applicant, the
first respondent was privy to the applicant’s
strategies and
trade secrets, which included developing the applicant’s
refurbishment business, conducting training at the
facilities of the
applicant’s suppliers, the weaknesses and strengths of the
applicant’s products, and the marketing
and sales and pricing
of the applicant’s products. The applicant also states that the
first respondent was exposed to the
applicant’s business
strategies which included plans to grow the business, its financial
results, and profit margins. Lastly,
the applicant stated that the
first respondent knew the identity of the applicant’s customers
and their needs.
[38]
The first respondent states in his
answering affidavit that he was not party to strategic management
meetings. According to the
first respondent, his role which was
primarily focussed on technical assistance and training, and did not
involve strategic issues
at all. He also states that he was not in
any way involved in the sales divisions which had the connections
with customers. He
added that because the applicant was not in any
manner involved in the manufacture of the units, he was not privy to
any technical
information or manufacturing process relating to the
manufacture of the units. The first respondent was adamant that
strategic
and financial decision making vested solely with Daniel
Coetser, the CEO of the applicant, and that he was not privy to it.
The
difficulty the applicant therefore has, from the outset, is that
this version of the first respondent is not a mere bald denial,
or so
unlikely or uncreditworthy that it falls to be rejected. The
application of
Plascon Evans
must mean that the version of the first respondent in this regard
prevail, and this does serious harm to the applicant’s
case.
[39]
The further problem I have with the applicant’s case of the
first respondent having access to confidential information,
is the
unfortunate lack of sufficient particularity in the founding
affidavit. Overall, the statements made by the applicant in
this
regard are merely bold and general in nature. The applicant has to
take the Court into its confidence and at least supply
the Court with
sufficient detail so as to assess that the contentions have
substance. For example, and if it said that the first
respondent had
access to confidential pricing, it must at least be explained why
that pricing would be confidential, and what makes
it so.
[40]
But what does the evidence actually show in this regard? The actual
job of the first respondent provides part of the answer.
The first
respondent was in effect responsible for the installation and
maintenance of the applicant’s refrigeration units
and to train
technicians. The applicant, as said, does not manufacture these
units. It is simply a distributor. The first respondent
can thus have
no confidential information about design, manufacture, product
development and proprietary information in this regard.
That is
simply not part of his job, nor would he be required to know this.
[41]
There is no evidence that the first respondent was involved in any
kind of marketing. Again, and considering his position,
it is
unlikely that he would be. The first respondent was not responsible
for securing orders. He becomes involved once the order
is obtained,
for the purposes of executing it. He manages the technicians to
ensure they execute their duties properly. He also
trains them.
Undoubtedly, he is a valuable resource to the applicant. But his
value and his knowledge are operational in nature,
and there is
nothing confidential in it. It certainly does not involve marketing
and sales.
[42]
There is nothing unique in the applicant’s products, or in the
installation and maintenance methodology relating to the
same. I am
satisfied that on the evidence, there is little difference between
the refrigeration units manufactured by Carrier Transicold,
Thermo
King or Schmitz for that matter. Also, installing such a unit on a
trailer can hardly be unique only to the business of
the applicant.
No case has been made out of any specialized or proprietary
installation technique or methodology unique to the
applicant which
is not used by any other competitor. The applicant’s case is
actually defeating. If what the first respondent
knows about the
installation and maintenance of the applicant’s products can be
used as is on the Schmitz unit, then surely
there can hardly be any
difference between the products. A refrigeration unit is then a
refrigeration unit, no matter who makes
it. There is accordingly no
confidential information to protect in this regard.
[43]
Any technical information the first respondent may have about the
applicant’s products is of little value to GRW. There
are a
number of reason for this. Firstly, the applicant has been installing
the Carrier Transicold units in trailers manufactured
by GRW for
years, so it hardly be said that GRW would not be aware of all its
technical specifications. Secondly, GRW does not
manufacture
refrigeration units. It gets those from Schmitz in Europe. All GRW
does is to get the unit, and install it in a trailer.
It then
maintains the unit. What the first respondent may do where it came to
Carrier Transicold products cannot be useful where
it comes to
Schmitz products, unless the products are very similar, in which
events there is nothing unique with regard to the
applicant’s
products that justifies its insolation from competitors.
[44]
This then brings me neatly to the first respondent’s version.
According to the first respondent, he would in fact be
starting a new
career at GRW. He indicated that he would be able to use very little
of what he knows about the applicant’s
products at GRW, and
would undergo complete new training on Schmitz products at GRW. Added
to the aforesaid, GRW is not in any
way involved in bus air
conditioning, cargo lifts, telematics and climate control systems,
the other aspects of the applicant’s
business, and therefore
none of the knowledge the first respondent has in this regard is in
any manner relevant.
[45]
In
Esquire
System Technology (Pty) Ltd t/a Esquire Technologies v Cronjé
and Another
[34]
the Court held as follows where it comes to confidential information
worthy of protection:
Information
is confidential if it meets the following requirements:
(a)
It must be capable of application in a trade or industry.
(b)
It must not be public knowledge or public property (in other words,
it must be known only to a restricted number or closed circle
of
people).
(c)
It must, objectively, be of economic value to the person seeking to
protect it.’
Considering
what has been summarized above, the information the first respondent
has about the applicant’s products tick none
of these boxes.
It is not capable of application in GRW, it is not just knowledge
limited to a select group of persons, and
most certainly is of no
economic value.
[46]
The information on product offerings, specifications and pricing of
the applicant’s products are not confidential. It
is readily
available in the open market, and published on the applicant’s
website. There is no evidence that the first respondent
was privy to
any particular pricing arrangements or discount / rebate structures
that may be in place where it comes to the applicant’s
larger
and repeat customers. There is equally no evidence that the first
respondent was aware of the costing that goes into the
manufacture of
the applicant’s products, and in any event, he would not have
that knowledge, as the applicant does not manufacture
the products
but is a distributor. Finally, and because GRW does not distribute
and sell refrigeration units to third parties and
only installs it as
part of its own trailer manufacturing process, it would have no
interest in or use for the pricing of the applicant.
[47]
I also accept that the first respondent had no information concerning
the applicant’s customer base, other than knowing
the names of
the customers he installed the refrigeration units for. This
information however had no value to either the applicant,
or GRW for
that matter, and cannot be confidential. The first respondent is not
the custodian of the customer relationship. As
such, he is not in any
position to provide information on what the customer buys, pays, or
who the contact person at the customer
may be. The above being said,
this kind of information would in any event be useless to GRW, as it
does not sell and supply the
Schmitz refrigeration units into the
open market, and only installs the same on its own trailers. Thus, a
customer that buys a
trailer is not a customer that is looking to buy
a refrigeration unit.
[48]
Therefore,
and on the facts, the first respondent had no knowledge of
information relating to business opportunities, or any kind
of
information in respect of which skill, industry and labour have been
expended in order to make it valuable. The first respondent
was not
privy to marketing strategies, pricing, costing or any unique
manufacturing or installation process (which has not even
been shown
to exist). The applicant has failed to make out any case that the
refrigeration products supplied by it are special
and unique, to the
extent of distinguishing it from other competing products. The
applicant has also completely failed to make
out a case that the
manner of installation it applies is in any manner exceptional,
special and unique, so as to distinguish it
from any other
installations process applied by competitors in respect of competing
products in the marketplace. In this regard,
the
Court
in
Automotive
Tooling Systems (Pty) Ltd v Wilkens and Others
[35]
held:
‘
There
are, I think, a number of difficulties that confront the appellant.
First, the mere assertion by the appellant that the processes
and
methodologies in the design, manufacture and commissioning of
customized marking machines are confidential does not make it
so. The
appellant does not identify any part of the process or method which
is unique nor point to any other reason why such process
or method is
deserving of protection. There is no indication on the papers that
the first and second respondents were placed in
possession of any
formulae, or designs or special methods of manufacturing relating to
the processes and methodologies which, if
done on a confidential
basis, would have amounted to an interest worthy of protection.
’
[49]
Insofar
as it can be argued that because the first respondent obtained his
skills, experience and expertise whist working at the
applicant, it
is in some way confidential, this contention simply has no merit.
This knowledge that accrued to the first respondent
in this regard
does not form part of the categories of confidential information
worthy of protection as set out above. In
David
Crouch Marketing v Du Plessis
[36]
the
Court held that if the confidential information did not resort under
the categories referred to above, then: ‘
it
forms part of the employee's general knowledge and skill, which he is
free to use for his own benefit or for the benefit of others
after
the termination of the contract of employment …’.
[50]
Therefore, and in my view, the applicant has failed to establish the
existence of a protectable interest where it comes to
the issue of
confidential information. The first respondent was simply not privy
to the kind of confidential information worthy
of protection, in
terms of the authorities discussed above.
Trade
connections
[51]
The
applicant has made out no proper case of trade connections in the
founding affidavit. Undoubtedly, the first respondent did
not deal
with customers and did not cultivate a relationship with them, as
this was simply not his job. There is no evidence that
the first
respondent was in a position to convince customers to take their
business elsewhere. Even the job description in the
first
respondent’s employment contract shows that he does not deal
with customers, but principally with the technicians in
order to
ensure proper standards on the jobs. In
Rawlins
and another v Caravantruck (Pty) Ltd
[37]
the
Court said the following:
'The
need of an employer to protect his trade connections arises 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 the
employer's service he could easily induce the
customers to follow him
to a new business (Joubert General Principles of the Law of Contract
at 149). Heydon The Restraint of Trade
Doctrine (1971) at 108,
quoting an American case, says that the ''customer contact' depends
on the notion that –
''the
employee, by contact with the customer, gets the customer so strongly
attached to him that when the employee quits and joins
a rival he
automatically carries the customer with him in his pocket'.
In
Morris (Herbert) Ltd v Saxelby
[1916] 1 AC 688
(HL) at 709 it
was said that the relationship must be such that the employee
acquires
'such
personal knowledge of and influence over the customers of his
employer . . . as would enable him (the servant or apprentice),
if
competition were allowed, to take advantage of his employer's trade
connection . . .'.
This
statement has been applied in our Courts (for example, by Eksteen J
in
Recycling
Industries (Pty) Ltd v Mohammed and Another
1981
(3) SA 250 (E)
at
256C-F). Whether the criteria referred to are satisfied is
essentially a question of fact in each case, and in many, one
of
degree. Much will depend on the duties of the employee; his
personality; the frequency and duration of contact between him and
the customers; where such contact takes place; what knowledge he
gains of their requirements and business; the general nature of
their
relationship (including whether an attachment is formed between them,
the extent to which customers rely on the employee
and how
personal their association is); how competitive the rival businesses
are; in the case of a salesman, the type of product
being sold; and
whether there is evidence that customers were lost after the employee
left
(Heydon
(op cit
at 108-120); and see also
Drewtons
(Pty) Ltd v Carlie
1981
(4) SA 305
(C)
at 307G-H and 314C and G).’
[52]
Considering the aforesaid, and in addition
to the fact that the duties of the first respondent do not lend
themselves to the establishment
and maintenance of trade connections,
there is no case made by the applicant of any particular personal
knowledge of and influence
over any customers of the applicant, by
the first respondent. Considering the nature of the applicant’s
products as well
as the nature of the customers of the applicant, it
is highly unlikely that someone like the first respondent would be
able to
convince a customer to take its business elsewhere. Having
regard to the applicant’s own replying affidavit, it appears
that
the real customer relationship lies at a much higher level than
the first respondent.
[53]
I will accept what is contained in the replying
affidavit to the effect that the applicant lost business. But
no
nexus
between the loss of this business and the first respondent seeking to
take up employment with GRW has been established by the applicant.
There is no evidence or even allegation that the first respondent
called on or dealt with Unitrans (the customer that was lost).
And
GRW stopped using the applicant because it procured its own product
from its own joint venture supplier. Added to the above,
the
applicant
lost Unitrans business to GRW’s in-house
product in 2018, long before the first respondent even contemplated
leaving the
employment of the applicant. It is therefore clear that
the risk to the applicant’s business has nothing to with the
first
respondent, what he knows, or what he may do. The applicant
lost the Unitrans business to GRW using the Schmitz units without any
information about the applicant’s product being passed along to
GRW or any trade connection being used. The risk to the applicant
is
purely commercial, in that GRW has decided to fit refrigeration units
in-house, instead of using third party suppliers such
as the
applicant.
[54]
The applicant and GRW are not competitors. GRW makes all kinds of
trailers and truck bodies. This includes some refrigerated
trailers.
GRW does not sell or supply Schmitz refrigeration units to third
parties or other trailer manufacturers. GRW is not in
the business of
the distribution of refrigeration units. In simple terms, a customer
comes to GRW to purchase a trailer. It does
not come to GW to
purchase a refrigeration unit. A customer comes to the applicant to
buy a refrigeration unit. It does not come
to the applicant to buy a
trailer. The businesses are simply not in the same market place, and
in reality do not compete.
[55]
Therefore, and for all the reasons as set out above, the applicant
has failed to establish the existence of a protectable interest
where
it comes to trade connections.
Position
of the first respondent
[56]
In
the end, the first respondent is simply a very good technical
manager. He acquired those skills and expertise of his own accord,
and whist he was employed with and trained at Carrier Transicold. He
obtaining no trailing or skills at the applicant. The applicant
in
took him into employment when Carrier Transicold pulled out, and in
effect received a competent technical manager as part of
the local
distributor deal. The first respondent developed his particular
skill, experience and knowledge through his own work.
As a result,
this particular skill, experience and knowledge accrued to the first
respondent himself, and not to the applicant
as his employer. I
n
Automotive
Tooling supra
[38]
the Court said:
‘…
.
the interest must be one that might properly be described as
belonging to the employer, rather than to the employee, and in that
sense 'proprietary to the employer'. The question in the present case
is whether the interest that is relied upon - the skill,
expertise
and 'know-how' that the employees undoubtedly acquired in the
techniques for manufacturing these machines - was one that
accrued to
the employer or to the employees themselves.
The
rationale for this policy was succinctly explained by Kroon J in
Aranda Textile Mills (Pty) Ltd v L D Hurn as follows:
'A
man's skills and abilities are a part of himself and he cannot
ordinarily be precluded from making use of them by a contract
in
restraint of trade. An employer who has been to the trouble and
expense of training a workman in an established field of work,
and
who has thereby provided the workman with knowledge and skills in the
public domain, which the workman might not otherwise
have gained, has
an obvious interest in retaining the services of the workman. In the
eye of the law, however, such an interest
is not in the nature of
property in the hands of the employer. It affords the employer no
proprietary interest in the workman,
his know-how or skills. Such
know-how and skills in the public domain become attributes of the
workman himself, do not belong in
any way to the employer and the use
thereof cannot be subjected to restriction by way of a restraint of
trade provision. Such a
restriction, impinging as it would on the
workman's ability to compete freely and fairly in the market place,
is unreasonable and
contrary to public policy.'
Thus
the mere fact that the first and second respondents have taken up
employment with AMS Manufacturing, assuming that it is in
competition
with the appellant, does not in itself entitle the appellant to any
relief if all they will be doing is applying their
skills and
knowledge acquired whilst in the employ of the appellant. It is only
if the restriction on their activities serves to
protect a
proprietary interest relied on by the appellant that they would be in
breach of their contractual obligations. ….’
The
Court concluded:
[39]
‘
In
my view, the facts establish that the know-how for which the
appellant seeks protection is nothing other than skills in
manufacturing
machines albeit it that they are specialised skills.
These skills have been acquired by the first and second respondents
in the
course of developing their trade and do not belong to the
employer - they do not constitute a proprietary interest vesting in
the
employer - but accrue to the first and second respondents as part
of their general stock of skill and knowledge which they may not
be
prevented from exploiting. As such the appellant has no proprietary
interest that might legitimately be protected.’
[57]
I am satisfied that the quoted
ratio
in
Automotive
Tooling
directly applies
in
casu
. Whatever skills, expertise
and experience the first respondent has, accrues to him. It is not a
protectable interest belonging
to the applicant. In seeking to
prevent the first respondent from taking up employment with GRW, the
applicant, in my view, is
doing no more than seeking to stifle
competition, which cannot be done by way of a restraint of trade.
[58]
The
applicant’s true motives in fact became apparent in the course
of argument, when the applicant’s counsel, advocate
Campanella,
made a rather astounding submission. He stated that with GRW now
installing its own Schmitz refrigeration units in
its trailers, it
would need someone competent to oversee such installation and
maintenance thereof. This part of the statement
would in my view be
correct, and is uncontroversial. However, counsel then added that if
GRW is deprived of someone like the first
respondent, there may well
be difficulties experienced by GRW in the installation and
maintenance of its own units, which should
then convince customers to
come back to the applicant. This part of the submission, brings the
true motive to the fore, and is
in essence unacceptable and nothing
more than abusing the restraint to eliminate competition. As held in
Jonsson
supra
[40]
:
‘
In
this matter, there is in my view a strong inclination that all that
the applicant is trying to do is to stifle competition from
one of
its principal competitors. I am inclined to accept that the applicant
actually realizes the value of the first respondent
and wishes to
deprive the second respondent as its competitor of such value. This
is not what is envisaged as a protectable
interest in a restraint of
trade.’
[59]
Therefore, the position of the first
respondent, and the knowledge, experience and skill accruing to the
first respondent by virtue
of that position, is such that it cannot
serve to establish a protectable interest that accrues to the
applicant. It belongs to
the first respondent.
Conclusion
[60]
Because
I am of the view that the applicant has failed to establish the
existence of a protectable interest, that must be the end
of the
matter. The applicant has thus failed to make out a clear right to
the relief sought.
As
said in
Jonsson
supra
:
[41]
‘
In
my view, the applicant has thus failed to demonstrate a clear right
in this matter. I conclude that the applicant has no protectable
interest …. To enforce the restraint of trade in these
circumstances would be unreasonable. As the applicant has not
demonstrated a clear right, this is where the enquiry stops. The
applicant has thus not discharged the onus on it to obtain the
relief
sought.’
[61]
It is consequently unnecessary to consider
the other restraint principles set out in the judgment of
Basson
,
or the other interdict requirements. The applicant’s
application falls to be dismissed.
Costs
[62]
This
then only leaves the issue of costs. There is no reason why
costs should not follow the result, for the reasons to follow.
Firstly, both parties suggested that costs follow the result.
However, and despite this position of the parties, I must nonetheless
exercise the wide discretion I have in terms of section 162(1) where
it comes to costs.
[42]
In this
case, I consider the fact that the applicant’s application was
severely lacking in the requisite particularity. I
also consider that
as far as I am concerned, the real reason for the application was to
stifle competition, and not really to protect
a legitimate
protectable interest. Another factor is that the applicant sought to
substantially supplement its case on reply, which
is deserving of
some censure. In the end, and in my view, the applicant was
dissatisfied with the first respondent, because it
gave him more
money to stay, and despite this he still left. Overall considered,
this is a case where fairness dictates that the
first respondent
should have his costs.
[63]
It is for all the reasons as set out above
that I made the order that I did in paragraph 3 of this judgment,
supra
.
_____________________
S
Snyman
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Adv J Campanella
Instructed
by: Moss Cohen & Partners Attorneys
For
the First Respondent: Ms A Davies of Johanette Rheeder
Attorneys
[1]
For the requirements of urgency see
Association
of Mineworkers and Construction Union and Others v Northam Platinum
Ltd and Another
(2016)
37 ILJ 2840 (LC) at paras 20 – 26, and in particular where it
comes to restraint of trade applications:-
Vumatel
(Pty) Ltd v Majra and Others
(2018)
39 ILJ 2771 (LC) at paras 4 – 5;
Ecolab
(Pty) Ltd v Thoabala and Another
(2017)
38 ILJ 2741 (LC) at para 20.
[2]
See
Maqubela
v SA Graduates Development Association and Others
(2014)
35 ILJ 2479 (LC) at para 32;
Transport
and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others
(2015) 36
ILJ
2148 (LC) at para 11.
[3]
In
Mozart
Ice Cream Classic Franchises (Pty) Ltd v Davidoff and Another
(2009) 30 ILJ 1750 (C) at 1761the Court held: ‘…
.
I accept that breaches of restraints of trade have an inherent
quality of urgency….
‘.
See also
Vumatel
(
supra
)
at para 4.
[4]
See
Magna
Alloys and Research (SA) (Pty) Ltd v Ellis
[1984] ZASCA 116
;
1984
(4) SA 874
(A) at 875H-I;
Dickinson
Holdings Group (Pty) Ltd and Others v Du Plessis and Another
(2008)
29 ILJ 1665 (N) para 89;
Bridgestone
Firestone Maxiprest Ltd v Taylor
[2003]
1 All SA 299
(N) at 302J-303B;
Jonsson
Workwear (Pty) Ltd v Williamson and Another
(2014) 35 ILJ 712 (LC) at para 8.
[5]
(2007)
28 ILJ 317 (SCA) at para 14. This approach was applied by the LAC in
Labournet
(Pty) Ltd v Jankielsohn and Another
(2017) 38 ILJ 1302 (LAC) at para 40;
Ball
v Bambalela Bolts (Pty) Ltd and Another
(2013) 34 ILJ 2821 (LAC) at para 14.
[6]
Jonsson
(
supra
)
at para 9.
[7]
Id
at para 4. See also
Labournet
(
supra
)
at para 40;
Ball
(
supra
)
at para 14;
Vumatel
(
supra
)
at para 29;
New
Justfun Group (Pty) Ltd v Turner and Others
(2018) 39 ILJ 2721 (LC) at para 10.
[8]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E 635C; See also
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)
at
paras 26 – 27;
Molapo
Technology (Pty) Ltd v Schreuder and Others
(2002) 23 ILJ 2031 (LAC) at para 38.
[9]
See the summaries in
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
2005
(2) SA 359 (CC)
at
para 53 and
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.
[10]
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
(
supra
)
at para 54;
FMW
Admin Services CC v Stander and Others
(2015) 36 ILJ 1051 (LC) at para 1.
[11]
Magna
Alloys
(
supra
)
at 891B-C;
Reddy
(
supra
)
at
para 14;
Labournet
(
supra
)
at para 39;
Ball
(
supra
)
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]
[1993] ZASCA 61
;
1993
(3) SA 742
(A) at 767G-H.
[14]
See
Jonsson
(
supra
)
at para 44;
SPP
Pumps
(
supra
)
at para 26;
Medtronic
(Africa) (Pty) Ltd v Van Wyk and Another
(2016) 37 ILJ 1165 (LC) at para 15;
Esquire
(
supra
)
at para 16;
Henred
Freuhauf (Pty) Ltd v Davel and Another
(2011)
32 ILJ 618 (LC) at para 15.
[15]
Jonsson
(
supra
)
at para 44;
Medtronic
(
supra
)
at para 15;
Esquire
(
supra
)
at paras 50 – 51.
[16]
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.
[17]
(2013)
34 ILJ 2821 (LAC) at para 17. See also
Labournet
(
supra
)
at para 40.
[18]
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.
[19]
(2017)
38 ILJ 1302 (LAC) at para 41.
[20]
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.
[21]
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.
[22]
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.
[23]
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.
[24]
See
David
Crouch
(
supra
)
at para 21.
[25]
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;
SPP
Pumps (supra)
at
paras 30 and 37;
Esquire
(supra)
at
para 27;
Continuous
Oxygen (supra)
at
para 34.
[26]
Continuous
Oxygen (supra)
at para 42;
Medtronic
(
supra
)
at para 30;
Vox
(
supra
)
at para 31.
[27]
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
(
supra
)
at para 12;
SPP
Pumps
(
supra
)
at para 30;
Vumatel
(
supra
)
at para 37.
[28]
Labournet
(
supra
)
at para 43;
Continuous
Oxygen
(
supra
)
at para 47
[29]
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;
Vumatel
(
supra
)
at para 39.
[30]
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;
New
Justfun
(
supra
)
at para 21;
Vumatel
(
supra
)
at para 40.
[31]
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.
[32]
Vumatel
(
supra
)
at para 41.
[33]
FMW
(
supra
)
at paras 62 – 63.
[34]
(2011)
32 ILJ 601 (LC)
at para 29. See also
Experian
(
supra
)
at para 19.
[35]
(2007)
28 ILJ 145 (SCA) para 20. See also
David
Crouch Marketing
(
supra
)
at para 31.
[36]
(2009)
30 ILJ 1828 (LC) at para 21.
[37]
[1992] ZASCA 204
;
1993
(1) SA 537
(A) at 541D-I. See also
Esquire
(
supra
)
at
paras 31 – 32;
Continuous
Oxygen
(supra)
at paras 34 – 36;
Medtronic
(Africa) (Pty) Ltd v Kleynhans and Another
(2016) 37 ILJ 1154 (LC) at paras 37 – 38.
[38]
Id
para 8 – 9.
[39]
Id at para 20.
[40]
Id
at para 61.
[41]
Id
at
para 64. See also
Henred
Fruehauf
(
supra
)
at para 24.
[42]
See
Long
v SA Breweries (Pty) Ltd and Others
(2019)
40 ILJ 965 (CC) at paras 28 – 29.