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[2020] ZALCJHB 62
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African Independent Brokers (Pty) Ltd v Coetzee and Others (J 2012/19) [2020] ZALCJHB 62 (13 March 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J 2012/19
In
the matter between:
AFRICAN
INDEPENDENT BROKERS (PTY) LTD Applicant
and
GRANT
COETZEE First
Respondent
LEEANN
COETZEE (NEE BARRY)
Second
Respondent
B-SURE
AFRICA INSURANCE BROKERS
(PTY)
LTD
Third
Respondent
WE
SURE WORLD WIDE INSURANCE
BROKERS
(PTY) LTD
Fourth
Respondent
Heard: 10- 12 February
2020
Delivered: 13
March 2020
JUDGMENT
NIEUWOUDT,
AJ
Introduction
[1]
The applicant seeks to enforce a restraint of trade against the first
and second respondents. The matter came before Court on 8 November
2019 as an opposed motion. By agreement between the parties,
it was
ordered on that date that the matter be postponed for oral hearing on
specific issues, namely:
1.1
whether the applicant had a protectable proprietary interest in its
confidential
information or customer connections;
1.2
the exposure of the first and second respondents to the applicant’s
proprietary interests
while in its employ;
1.3
whether the employment of the first and second respondents by
respectively the third and
fourth respondents would infringe such
proprietary interests, if any;
1.4
whether (although it was probably intended to mean “how”)
such interests
weighed up qualitatively and quantitatively against
the interest of the first and second respondents not to be
economically inactive
and unproductive;
1.5
whether the restraint went further than was necessary to protect the
applicant’s proprietary
interests, if any.
[2]
The matter came before me from 10 to 12 February 2020 when the first
and
second respondents testified on their behalf and Ms Maponyana,
the CEO of the applicant, testified on behalf of the applicant.
[3]
The
dramatis personae
in this matter are:
3.1
The applicant, which conducts business as an insurance broker in the
short-term
insurance industry; for the purpose of this application,
focused mainly on motor business.
3.2
The first respondent (Grant) to whom I refer to by his first name in
order to distinguish
him from his wife, who had commenced employment
in the group of which the applicant forms part, during June 2007, and
who was employed
by the applicant from January 2016 to the end of
August 2019 as manager of the Optimum sub-division of its Key
Accounts division.
3.3
The second respondent (Leeann), who has been employed by the
applicant since July 2000 and,
from December 2015, as a team leader
in the Schemes sub-division of its Key Accounts division.
3.4
The third and fourth respondents are both insurance brokers, in whose
respective
employment Grant and Leeann are as dealer sales managers.
(No relief is sought against them and, unless it is necessary to
specifically
refer to them, I shall refer to Grant and Leeann as the
individual respondents.)
Background
[4]
As stated, the applicant and the third and fourth respondents all
conduct
business as brokers in the short-term insurance industry.
They are engaged by insurance companies to procure applications for
insurance
when motor vehicles are sold by motor dealers. They do not
necessarily place such business with a specific insurance company and
may do business with a number of insurance companies. The range of
services that brokers render to insurance companies differs.
[5]
Motor dealerships employ finance and insurance managers. Generally,
when
a vehicle is sold, the salesperson would refer the purchaser to
the finance and insurance manager of the dealership. The latter
would
enquire from the purchaser whether the purchaser requires finance or
insurance. If the purchaser requires insurance, the
finance and
insurance manager would contact an insurance broker. Often this
happens electronically but the finance and insurance
manager may also
contact an employee of the insurance broker telephonically. An
employee of the insurance broker would then contact
the purchaser in
order to offer the purchaser different cover options available at
different insurers and to complete an insurance
application form,
which would then be submitted to the insurer.
[6]
The applicant has two divisions, namely a Key Accounts division,
which
comprise of a sub-division called Optimum that exclusively
dealt with Barloworld Motors Retail (Barloworld) and a Schemes
sub-division
that dealt with motor groups such as CMH, Key Group and
Squad Cars (which are called “partners”), and a Dealer
Sales
division that dealt with individual dealerships.
[7]
The applicant is the exclusive insurance broker of Barloworld.
Despite
this exclusivity, there is a low conversion rate of the sales
concluded by Barloworld to the insurance policies brokered by the
applicant. This conversion rate is a lot higher where the finance and
insurance manager referred the purchaser directly to the
applicant,
rather than just populating the electronic form. (For confidentiality
reasons these figures are not quoted.) This shows
that the finance
and insurance manager has a strong influence on which broker is used.
[8]
The applicant does not have an exclusive relationship with the
partners
with whom they have service level agreements. There could be
up to 8 insurance brokers on the panels of such groups. There is no
information before the Court of the conversion rate in respect of
these groups. However, on the probabilities, the conversion rate
would be lower than the rate at Barloworld where the applicant has an
exclusive agreement. It follows that the finance and insurance
manager has an even bigger influence on where the insurance would be
placed.
[9]
In the Dealer Sales division, the applicant has no service level
agreements
with the dealerships. It is accordingly dependent on the
finance and insurance managers of the different dealerships to
generate
business. There are approximately 14,000 dealerships in
South Africa.
[10]
The point of contact that the finance and insurance managers have
with
the applicant is at the level of dealer sales consultant. Ms
Mponyana stated that the finance and insurance manager ultimately has
the relationship with the individual dealer sales consultant employed
by the applicant. This is corroborated by a statement that
a
dealership would often follow a dealer sales consultant when he or
she leaves the applicant’s employment.
[11]
Grant’s duties and responsibilities, according to him, were to:
11.1
communicate with Barloworld management to ascertain its sales
requirements;
11.2
communicate with his superiors to ascertain the applicant’s
sales targets;
11.3
communicate those requirements and targets to his team and determine
how they should meet them;
11.4
ensure that sales consultants contact Barloworld dealerships on a
regular basis to promote increased sales;
11.5
oversee and track the activities and performance of the sales
consultants;
11.6
motivate and guide sales consultants to ensure an effective and
cohesive team;
11.7
counsel, support and discipline underperforming sales consultants;
11.8
ascertain from sales consultants whether they have heard from
dealerships or finance and insurance
managers of anything of note
that competitors have been doing;
11.9
report to his superiors and to Barloworld and to provide feedback on
sales made, targets met, and requirements
achieved;
11.10 represent the
applicant at marketing events to promote its business and brand.
[12]
There is a dispute about whether Grant was responsible for developing
relationships with finance and insurance managers. If one looks at
his admitted functions, it is overwhelmingly probable that he
had
responsibilities in this regard.
[13]
According to Leeann, her roles duties and responsibilities were to:
13.1
provide encouragement to sales consultants;
13.2
answer sales consultants’ questions and help them with their
problems;
13.3
supervise the work of sales consultants and to ensure that they keep
to the sales scripts;
13.4
ensure that sales consultants meet their targets;
13.5
assist the human resources department with interviewing potential
sales consultants and identifying underperforming
sales consultants;
13.6
report to her superiors on sales consultants’ productivity,
performance and challenges.
[14]
Further Grant submitted that:
14.1
He attended group manager conferences but, according to him nothing
of a strategic value was
discussed at these meetings. This was
disputed by the applicant and, on the probabilities, it would seem
likely that strategic
matters were in fact discussed at these
meetings. It is not clear what purpose they would otherwise serve.
14.2
Attended monthly meetings at which he presented on past performance
and dealt with action plans to improve
performance. The monthly
performance figures changed but the action plans are of a more
enduring nature. At these meetings, the
performance of partners and
independent dealers was discussed and plans were devised on how the
applicant would meet challenges.
14.3
Attended meetings with partners, for example with the regional
managers of Barloworld. Those meetings had
the goal of assisting
Grant to “
get things going
”.
14.4
Attended meetings with finance and insurance managers once every 4 to
6 months.
14.5
Attended the year end function of scheme partners.
14.6
Prepared the script that finance and insurance managers could use to
channel business to the applicant.
14.7
Had knowledge of the content of service level agreements with
partners but was not involved in
negotiating them.
14.8
Was in possession of the contact list and details of finance and
insurance managers at Barloworld.
14.9
Went on roadshows to meet with finance and insurance managers in each
region.
14.10 Stated
that it might have ruined the applicant if it was announced that he
and Leeann were leaving.
14.11 Called Ms
Rudolph because he was concerned that she was exposed to negativity
at the applicant and wanted to hear how
she was doing. He denied that
he had asked her to procure scripts.
14.12 Was called by
Khubeka who was looking for a job at the third respondent, but
referred her to human resources.
[15] Further,
Leeann submitted that:
15.1
She continued to do some sales herself while she was a team leader.
This was at the instance
of finance and insurance managers who had
requested to deal with her.
15.2
Did not attend group management meetings but did attend monthly
meetings.
15.3
Was involved when a particular finance and insurance manager wished
to increase her commission.
15.4
Was not involved in sales at the fourth respondent.
[16]
On 4 September 2019, which was before the individual respondents were
put to terms by the applicant, the individual respondents concluded
agreements amending their contracts of employment with their
respective employers. These amendments are in the form of an
undertaking to the third and fourth respondents, to not do the
following:
16.1
elicit business from a list of clients and potential clients provided
by the applicant to them;
16.2
utilise any information or knowledge specifically related to the
business or affairs of the applicant to
which they had access as a
result of their employment with the applicant; but excludes clients
or potential clients of respectively
the third and fourth
respondents.
The
legal principles
[17]
A party
seeking to enforce a restraint of trade agreement is required only to
prove the existence of the restraint and a breach
of its terms. Once
this has been done, the onus is on the respondent to prove on a
balance of probabilities that the restraint
agreement is
unenforceable because it would be unreasonable to enforce it
[1]
.
[18]
The question of the resolution of disputes of fact, which may be
complicated
when final relief is sought in motion proceedings, does
not apply in this matter due to the fact that evidence was led on the
issues
on which the individual respondents bore the onus and that the
issues on which the applicant bore the onus were not disputed.
[19]
Both
parties relied on
Basson
v Chilwan and Others
[2]
where the majority of the then Appellate Division held that the
reasonableness or otherwise of a restraint is determined with
reference to the following four considerations:
19.1
Is there an interest deserving of protection at the termination of
the agreement?
19.2 Is
that interest being prejudiced?
19.3 If
so, how does that interest weigh up qualitatively and quantitatively
against the interest of the other
party not to be economically
inactive and unproductive?
19.4
Is there another facet of public policy not having anything to do
with the relationship between
the parties which requires that the
restraint should either be enforced or disallowed?
[20]
To this an
additional ground was added in
KwikKopy
(SA) (Pty) Ltd v Van Haarlem and another
[3]
,
namely whether, as between the parties, the restraint goes further
than is necessary to protect the interest. I have previously
indicated
[4]
that I would prefer
to deal with this ground, not as a separate ground, but when
considering the weighing up of the respective
interests of the
parties.
[21]
It is well established that the proprietary interests that may be
protected
by a restraint agreement, are essentially of two kinds,
namely:
'The
first kind consists of the relationships with customers, potential
customers, suppliers and others that go to make up what
is
compendiously referred to as the "trade connection" of the
business, being an important aspect of its incorporeal
property known
as goodwill. The second kind consists of all confidential matter
which is useful for the carrying on of the business
and which could
therefore be used by a competitor, if disclosed to him, to gain a
relative competitive advantage. Such confidential
material is
sometimes compendiously referred to as "trade secrets".'
[5]
[22]
In
Rawlins
and Another v Caravantruck (Pty) Ltd
[6]
the then Appellate Division set out a very useful test to be utilised
when deciding whether a protectable trade connection existed:
‘
[If 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'.
and
‘
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.
[23]
In
Den
Braven SA (Pty) Ltd v Pillay and Another
,
[7]
the Court set out further principles which are important with regard
to trade connections:
‘
It
is not in my view necessary for an applicant in this situation to
winnow the wheat of trade connections and customer contact
from the
chaff of other factors that may influence purchasing decisions. It
suffices for the applicant to show that trade connections
through
customer contact exist and can be exploited by the former employee if
employed by a competitor.’
[8]
but
‘
In considering the
facts of a particular case it must always be borne in mind that a
protectable interest in the form of customer
connections does not
come into being simply because the former employee had contact with
the employer's customers in the course
of their work. The connection
between the former employee and the customer must be such that it
will probably enable the former
employee to induce the customer to
follow him or her to a new business”
[9]
[24]
The
facts in
Reddy
v Siemens Telecommunications (Pty) Ltd
[10]
are
of some assistance in deciding the issue of confidential information:
‘
[19]
Reddy will during the period of the restraint have no contact with
Vodacom, nor will he be able to
solicit Vodacom to move its business
to Ericsson. He will, however, provide services to MTN in South
Africa and to Celtel and Safricom
in Kenya where Siemens does not
operate. The restraint against being employed by a competitor, in
addition, applies to Gauteng
only despite Siemens being active
throughout South Africa. It was submitted on behalf of the appellant
that in these circumstances
the restraint is unreasonable.
[20]
However, all the facts must be considered. Siemens and Ericsson are
competitors providing services
to telecommunication network
operators. Although Vodacom and Cell C are customers of Siemens,
Ericsson does some business with
them. Siemens still has to acquire
any of MTN's business. Reddy is in possession of trade secrets and
confidential information
of Siemens. Moreover, shortly before his
resignation from Siemens, he attended a training course updating his
knowledge of the
processes, methodologies and systems architecture
developed by Siemens. Information of this kind, if disclosed, could
be used to
the disadvantage of Siemens. …………………….
Reddy is in possession of confidential
information in respect of
which the risk of disclosure by his employment with a competitor,
assessed objectively, is obvious. ………………………………….
His loyalty will be to his new employers and the opportunity to
disclose confidential information at his disposal, whether
deliberately
or not, will exist. The restraint was intended to
relieve Siemens precisely of this risk of disclosure. In these
circumstances
the restraint is neither unreasonable nor contrary to
public policy.’
[25]
In
Coolair
Ventilator Co SA (Pty) Ltd v Liebenberg and Another
[11]
the Court dealt with the requirement that information had to be
useful to a competitor in order to qualify as confidential
information,
and stated:
'If it is objectively
established that a particular item of information could reasonably be
useful to a competitor as such, i.e.
to gain an advantage over the
plaintiff, it would seem that such knowledge is prima facie
confidential as between an employee and
third parties.’
The
tender
[26]
Grant and Leeann made a tender without any admission of wrongdoing or
liability and it does not include an undertaking not to be employed
by the third and fourth respondents nor any undertaking by
the third
and fourth respondents. The interim order that was handed down by
agreement on 8 November 2019, essentially captures
the tender. The
applicant did not accept it.
[27]
Mr Nel, for the individual respondents, submitted that the
undertaking
was sufficient to protect such proprietary interests as
the applicant might prove to have. He advanced a separate submission
on
the impact of the interim order that was granted by agreement and
the sharing of confidential information with the legal team of
the
individual respondents in a confidential affidavit. This will be
addressed later.
[28]
Mr Whitcutt
SC (who appeared for the applicant together with Mr Le Roux) referred
the Court to a number of decisions dealing with
the adequacy of a
tender in circumstances where a party is in breach of a restraint. In
New
Justfun Group (Pty) Ltd v Turner and others
[12]
this Court stated that the enforcement of a restraint, the purpose of
which is to protect confidential information, cannot be defeated
by
an undertaking that the employee will not divulge the information if
he or she is permitted, contrary to the restraint, to enter
into
employment with a competitor. The Court motivated this position as
follows
[13]
:
‘
This is not to
cast any aspersions on Turner’s bona fides or those of the
second respondent, but as the authorities make clear,
the very
purpose of a restraint agreement is to relieve the enforcing party
from the obligation to police undertakings such as
those given by
Turner and the second respondent.’
[29]
This
sentiment was endorsed in
Experian
SA (Pty) Ltd v Haynes and another
[14]
where the point was succinctly captured as follows:
“
Indeed, the very
ratio underlying the bargain is that the applicant should not have to
content itself with crossing its fingers
and hoping that the
respondent would act honourably or abide by the undertakings that he
has given. It does not lie in the mouth
of the ex-employee, who has
breached a restraint agreement by taking up employment with a
competitor, to say to the ex-employer,
'Trust me: I will not breach
the restraint further than I have already been proved to have done.”
[15]
[30]
The individual respondents were not forthright with the applicant
about
their future plans when they resigned. In fact, Grant was
untruthful by stating that he intended to join a carpentry business.
In addition, Grant underplayed the exposure that he had to the
confidential information of the applicant. The authorities are clear
and there is no reason to depart from them. In the result, the tender
does not preclude the applicant from seeking relief.
The
restraint agreements
[31]
The parties are in agreement that the restraint of trade agreements
attached
to the founding affidavit are binding on the individual
respondents and it is not contended that the relief sought by the
applicant
is not encompassed by the terms thereof.
Breach
[32]
It is common cause that the mere fact that the individual respondents
are in the employment of respectively the third and fourth
respondents constitutes a breach of the restraint of trade
agreements.
[33]
There is no evidence (distinct from suggestions) that shows that the
individual respondents have breached the restraint of trade
agreements in any other respect.
Interest
deserving of protection
Period
of assessment
[34]
Both the individual respondents were in their last positions with the
applicant for approximately 2 ½ years before they resigned. Mr
Whitcutt contended that the Court should have regard to the
information to which they had access in, and the responsibilities of,
their previous positions. I do not believe that trade connections
or
confidential information that were older than 2 years by the time
that the individual respondents had breached the restraint
of trade
agreements are deserving of any protection. This does not mean that
such access or responsibilities are irrelevant where
there was a
continuation thereof in the last positions.
Trade
connections
[35]
There was some debate about whether the requirement was that the
influence
over the trade connection should be so high so as to put
the connection in the proverbial “
pocket
” of the
individual respondents, but it is not the test as set out above in
Rawlins
and
Den Braven
.
[36]
Grant was a manager and Leeann was a team leader. Ms Maponyane stated
that the main responsibility of dealer sales consultants was to
introduce finance and insurance managers and dealerships to the
applicant, to advise them of the services that the applicant provided
and to build and maintain relationships with the financial
and
insurance managers and individual dealers.
[37]
She further stated that the relationship between the dealer sales
consultants
and finance and insurance managers is cardinal to the
success of the applicant’s Key Accounts strategy. It often
happened
that when a dealer sales consultant left its employment,
some dealerships would move with that consultant. Ultimately, the
finance
and insurance managers had the relationship with the
individual dealer sales consultants.
[38]
There is no evidence that any particular finance and insurance
manager
has ceased giving leads to the applicant or have followed the
individual respondents. In fact, Leeann testified that she was not
involved in sales at the fourth respondent.
[39]
I am mindful of the fact that Grant had some interaction with finance
and insurance managers and that some of them had specifically
preferred to continue to deal with Leeann when she became a team
leader.
[40]
However, in light of the above even if there is a trade connection
worthy
of protection it is not strong.
Confidential
information
[41]
Grant had exposure to confidential information. The fact that he
underplayed
this aspect is of concern. The conversion rate of total
car sales to insurance deals concluded and the difference of that
rate
between direct leads and pooled leads must be crucial to the
applicant’s business. I accept that these figures are not
static
but it is certainly not something that the applicant wants to
publicise to its competitors. The fact that the finance and insurance
manager may disclose the information to a competitor does not cause
it not to be confidential. I have already stated that he was
privy to
strategic information. This is also not something which a competitor
ought to have access to.
[42]
Leeann had some access to confidential information shared at monthly
meetings. It is, however, clear that the main focus of her position
was to manage the dealer sales consultants in her team. I am
not
convinced that this is an interest worthy of protection.
Period
of protection
[43]
The restraint of trade agreements provide for a restraint for a
period
of twenty-four months. However, in the replying affidavit, the
applicant contended that its interests would be protected by a
restraint
of twelve months. Mr Whitcutt contended that the twelve
months should run from the date of the order but I do not read that
qualification
in the statements in the replying affidavit.
Prejudice
[44]
To the extent that the applicant has a protectable interest as far as
trade connections is concerned, I am of the view that that interest
is not prejudiced by the fact that the individual respondents
are
employed by the third and fourth respondents.
[45]
In
Justfun
[16]
the Court postulated a test regarding confidential information. It
held that all the applicant needed to show was that there was
secret
information to which the first respondent had access to and which
she, in theory, could transmit to the second respondent
if she should
wish to do so. Although the test was postulated in the context of
determining whether there is a protectable interest,
it is equally
applicable in determining whether there is potential prejudice. In
this regard the passage of
Experian
,
dealt with above
[17]
, is also
applicable.
[46]
In Grant’s case the confidential information that he has, if
disclosed
to the third and fourth respondents would prejudice the
applicant. I have already found that I am not convinced that Leeann
had
access to confidential information that is worthy of protection.
I am of the view that even if she had, the applicant would not
be
prejudiced by her employment by the fourth respondent.
Weighing
up of interests
[47]
The individual respondents effectively spent their whole working
careers
with the applicant and their expertise is in short-term
insurance broking. They state that they would be economically
inactive
if they are not able to work in that industry. I am inclined
to agree that it would not be easy for them to find employment at
their level of seniority outside the industry. However, Grant is
employed in a managerial position and Leeann in a junior managerial
position; they are not dependent on selling for an income.
[48]
Further there are insurance brokers who do not focus on the motor
trade
and the agreements do not preclude them from being employed by
such insurers in
o
ther industries. Thus,
their right not to be economically inactive did not play a
significant role in the decision in this matter.
[49]
This brings the Court to the contention, which Mr Nel vigorously
pursued,
that there was a less restrictive way in which the
applicant’s interests could be protected. He relied on the
undertaking
that was given, the fact that there was no complaint that
the interim court order was breached and the fact that the applicant
trusted the individual respondents to the extent that it had
disclosed confidential information to them for the purposes of the
litigation. The undertaking has been dealt with and need not be
revisited.
[50]
The fact that there is no complaint that the interim order has been
breached,
does not mean that it has not; at best, it means that the
applicant is not aware of the breach. The difficulty that an
applicant
in restraint proceedings would have in proving actual use
of confidential information has already been dealt with earlier in
this
judgment and need not be repeated.
[51]
Last, it would be hugely ironical if a complainant seeking to enforce
a restraint of trade would be defeated in its attempt because it was
compelled to disclose certain information in order to be successful
in its claim.
Other
facet of public policy
[52]
This issue was not raised by any of the parties.
Conclusion
[53]
The individual respondents tendered, in their answering affidavit,
that
they would not use any confidential information of the applicant
or disclose it to any third party, including the third and fourth
respondents; solicit any employees of the applicant until 31 August
2021; or solicit any business, leads or referral of customers
from
any partner serviced by the applicant’s Key accounts division
until 31 August 2021. They are bound to this tender.
[54]
As far as Leeann is concerned, the applicant has not made out a case
for precluding her from being employed by the fourth respondent.
[55]
However, as far as Grant is concerned, the applicant has shown a
clear
right and an injury actually committed as far as the use of its
confidential information is concerned. The individual respondents’
submission that the tender constitutes a satisfactory alternative
remedy is rejected and the applicant is entitled to final relief.
[56]
The order sought by the applicant is unnecessarily wide and it should
be confined to entities that conduct business which directly or
indirectly compete with the business of the applicant. Therefore,
once read down the applicant is entitled to an order interdicting and
restraining the first respondent
as per the
restraint agreement.
Costs
[57]
The
applicant seeks costs. In
Justfun
[18]
it was held that this Court would follow its normal approach, namely
a consideration of law and fairness, in deciding costs. In
Medtronic
(Africa) (Pty) Ltd v Kleynhans and Another
[19]
this Court considered the fact that a party was an individual as a
factor against awarding costs. Further, the applicant and the
individual respondents each had some success.
[58]
Accordingly, a costs order is not warranted.
Order:
1.
The first and second respondents are interdicted and restrained
from:
1.1.
using any confidential information of the applicant or disclosing it
to any third
party, including the third and fourth respondents;
1.2.
soliciting any employees of the applicant until 31 August 2021;
1.3.
soliciting any business, leads or referral of customers from any
partner of the applicant
(being an entity with which the applicant
had a service level agreement on 31 August 2019 and which was
serviced by its Key Accounts
division) until 31 August 2021.
2.
The first respondent is interdicted and restrained from, until
31
August 2020 and in the Republic of South Africa, from being
interested or engaged, whether directly or indirectly, in any
capacity
whatsoever in:
2.1.
in the business of the third respondent;
2.2.
any entity which conducts a business that directly or indirectly
competes with the
business of the applicant.
3.
There is no order as to costs.
______________________
H.
Nieuwoudt
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant: Adv C Whitcutt SC
Instructed by: ENS Africa
For
the Respondents: Adv EJJ Nel
Instructed
by: Jansen and Jansen Inc
[1]
See:
Magna
Alloys and Research (SA) (Pty) Ltd v Ellis
1984 (4) SA 874 (A).
[2]
[1993] ZASCA 61
;
1993 (3) SA 742
(A) at 767G—H.
[3]
1999 (1) SA 472
(W) at 484E. See also:
Reddy
v Siemens Telecommunications (Pty) Ltd
2007
(2) SA 486
(SCA) at para 17.
[4]
In
Alcon
Laboratories (SA) Pty Ltd v Potgieter and others.
Unreported
decision (Case number J1039/19).
[5]
See:
Sibex
Engineering Services (Pty) Ltd v Van Wyk and another
1991 (2) SA 482
(T) at 502 D-F
[6]
[1992] ZASCA 204
;
1993 (1) SA 537
(A) at 540 I-J.
[7]
2008 (6) SA 229 (D).
[8]
Ibid a
t
para 17.
[9]
Id fn 7 at
para
6.
[10]
2007 (2) SA 486 (SCA).
[11]
1967
(1) SA 686
(W) at 689G.
[12]
(2018) 39 ILJ 2721 (LC).
[13]
Ibid at para 21.
[14]
(2013) 34 ILJ 529 (GSJ) at paras 21 and 22.
[15]
See:
International
Executive Communications Ltd ta Institute for International Research
v Turnley and Another
1996
(3) SA 1043
(W) at 1055E-1057B and
BHT
Water Treatment (Pty) Ltd v Leslie and Another
1993 (1) SA 47
(W) at 57D-H.
[16]
Id fn 12 a
t
para 14.
[17]
Id fn 14 a
t
para 30.
[18]
Id fn 12 at
para
23.
[19]
(2016) 37 ILJ 1154 (LC).