IN THE HIGH COURT O F SOUTH AFRICA
KWAZULU-NATAL LOCA L DIVISION, DURBAN
CASE NUMBER: D3438/2024
In the matter between: UMHLANGA REHABILITATION CENTRE APPLICANT
and BHAVNA SEWRAM RESPONDENT
ORDER
The following order is made:
1. The late delivery of the Res pondent’s heads of argument is c ondoned,
with no order as to costs.
2. The application is dismissed wi th costs, such to be taxed on Scale A.
JUDGMENT
BOND AJ
2
[1] At the outset, I must thank both counsel for their thorough heads of argument.
Although the Respondent’s heads w ere late, both sets were clear ly well researched
and of great assistance in this matter. [2] The current matter concerns itself with the enforcement of a ‘restraint clause’ in
an employment contract. The App licant is a Close Corporation wh ich carries on
business providing physiotherapy s ervices in two major hospital s in the Umhlanga
area of KwaZulu-Natal. The Applicant cites itself as a well-est ablished physiotherapy
practice with further specialisa tion into rehabi litative physio therapy.
[3] The contract of employment concluded between the parties in a n d d u r i n g
November 2022, is common cause. Its terms are as may be express ly provided for in
the contract. There are no ave rments relating to any amendment, rectification or
variation of the agreement. [4] It is further common cause that the Respondent, a senior ph ysiotherapist was
in the employ of the Applicant from 7 January 2023 until she re signed on or about 28
September 2023. Her term of emplo yment was therefore approximat ely eight full
months prior to her resignation.
[5] There are three issues which need to be addressed in this m atter and were,
with gratitude of the court, succi nctly canvased in oral argume nt. These are:
(a) the relief being sought; (b) the interpretation of the ‘restraint clause’; and (c) whether or not a protectable interest has been established and is worthy of
protection.
[6] In oral argument I had raised with the Applicant’s counsel, elements pertaining
to reasonableness of the restraint. Rightfully so, it was highl ighted that the Respondent
did not lay any factual opposit ion on the grounds of reasonable ness.
3
Condonation
[7] The Respondent’s heads of ar gument were delivered out of ti me, only reaching
the court at about 13h00 on Monday 09 December with the matter set down for hearing
on 10 December 2024. A substant ive application for condonation was delivered. The
Applicant’s counsel correctly i ndicated that he did not oppose the later delivery of the
heads and would rather proceed wit h the matter. The Applicant’s counsel also
indicated that he did not persis t with the late delivery of the answering affidavit.
[8] Accordingly, the late delivery of the Respondent’s heads of argument falls to be
condoned, with no order as to costs. Relief sought [9] One of the first aspects addressed by counsel for the Appli cant was in relation
to the order sought in t he notice of motion.
[10] Relevant here, is that the Applicant seeks, at paragraph o ne of the notice of
motion, the enforcement of a restraint for a period of two year s from the date of the
order.
[11] When questioned, counsel for the Applicant was unable to s uggest what may
support the order directing a restraint, from the date which th e order was made as
opposed to it commencing from t he date of the termination of th e agreement.
[12] I was not given authority fo r the proposition. Logic dicta tes, that if the ‘restraint
clause’ is to be upheld, the commencement date for the restrain would be the date of
termination of the Respondent’s employment. [13] Further, the Applicant seeks sizable relief in paragraph t wo of the notice of
motion, which also appears to have no origin in the papers. In argument, the
Applicant’s counsel submitted t hat the relief sought in paragra ph two of the notice of
motion was incidental to that sought in paragraph one. I cannot agree with this
submission.
4
The ‘restraint clause’
[14] The starting point of any c ontractual dispute is an examin ation of the clause
giving rise to the right or remedy. In the current case the ‘re straint clause’ is found at
paragraph 15 of the employment agreement and reads as follows:
‘15. Trade Restriction
2 year 8km restriction in event of termination / expiry of Cont ract’
[15] It appears plain to me that this clause is lacking in subs tance. There is no
indication as to, at least: (a) a definite date as to when t he two-year period commences;
(b) what ‘8km restriction’ refers to; (c) what is restricted for whic h ever period ma y be applicable;
(d) what interests are sought to be protected; or (e) any suggestion in wording t hat the Respondent cannot practi se her trade at
Gateway or Umhlanga private hospitals.
[16] When I asked the Applicant’s counsel to address me on how the provisions of
the ‘restraint clause’ can equate to the relief being sought, t he suggestion was that I
had the power to read into the cl ause that which was contended for by the Applicant.
[17] While I accept that this is true, the clause itself is so scant for detail, that I would
be required to read in detail to such a degree that I may be ac cused of contracting for
the parties. In the well-known decision of Natal Joint Municipal Pension Fund v
Endumeni Municipality
1 it was held that:
‘…Judges must be alert to, and guard against, the temptation to substitute what they regard
as reasonable, sensible or businesslike for the words actually used. To do so in regard to a
statute or statutory instrument is to cross the divide between interpretation and legislation; in
a contractual context it is to make a contract for the parties other than the one they in fact
made…’
[18] In my view the Applicant bears the onus to prove the contr actual terms upon
which it bases its relief. Another aspect worth mentioning, is that in its papers, the
1 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18.
5
Applicant seems to indicate the im portance of the ‘restraint cl ause’. If this is so, it begs
the question why so little effort was put into drafting this cl ause.
[19] Regard must also be had to t he types of individuals who ma y enter into such
restraints. As Wallis AJ stated in Den Braven SA (Pty) Ltd v Pillay and Another :
2
‘…spanning the spectrum from the hugely successful businesspers on who sells the business
that he or she has built up for massive amounts of money and is required to sign a restraint of
trade agreement in order that the purchaser may protect its inv estment, to relatively humble
employees who may be required to sign such an agreement as a ma tter of rote and possibly
in terrorem to deter them from seeking a more advantageous position …’
[20] The Respondent in the curren t instance clearly falls into the latter category.
[21] I find a strong par allel with Daffue J in Correia Spares CC t/a Omega Motor
Spares v Croucamp
3 where he stated:
‘…I am not prepared to read into the contract a term that the a pplicant failed to put in writing.
The applicant insisted on the agreement and either drafted the document or instructed
someone to draft it. In the event that the agreement - particul arly clause 28 - is incurably
ambiguous or lacking certainty …’
[22] While I accept the Applican t’s submission that I am able b oth to read into the
clause to a certain limited degree and to restrict certain of i ts terms (should they be
proven, such as duration of a res traint), if the full extent of such terms conflict with the
demands of public policy, I find myself in agreement with what was stated by
Sutherland DJP:4
‘… the legal principles, as I understand them, do not confer on me the powers of Father
Christmas. I cannot rescue the un-rescuable.’
[23] It is common that SMME businesses are reluctant to seek ad vice from
attorneys, and less so to employ attorneys to prepare important legal agreements.
This pattern, fuelled undoubtedly by the rising cost of legal c harges, often results in
2 Den Braven SA (Pty) Ltd v Pillay and Another 2008 (6) SA 229 (D) para 35.
3 Correia Spares CC t/a Omega Motor Spares v Croucamp [2021] ZAFSHC 99 para 19 .
4 Robert v MEC for Public Transport and Road Infrastructure of the Gauteng Department 2023 JDR
2878 (GJ) para 25.
6
unforeseen circumstances by the time the matter reaches a litig ious stage. That being
said, once the matter has reached a litigious stage, it is then too late to cure the
challenges which have arisen, and the court cannot then, at tha t late stage, return to
the contractual drawing board.
[24] I find that clause 15 of t he employment agreement is so va gue and lacking of
definition that it cannot support th e Applicant’s relief as cla imed.
[25] For the purposes of this judgment, I will still consider t he other aspects of the
matter as was dealt with during the oral address and in both pa rties’ insightful heads
of argument. Approach to be taken [26] A court adjudicating a dispute relating to restraint of tr ade should follow the
approach adopted in Basson v Chilwan
5 where the following four questions were
identified in determi ning the reasonableness of restraint of tr ade agreements:
(a) Does the one party have an interest that deserves protectio n after termination
of the agreement?
(b) If so, is that interest th reatened by the other party?
(c) In that case, does such interest weigh qualitatively and qu antitatively against
the interest of the other party not to be economically inactive and unproductive?
(d) Is there an aspect of public policy having nothing to do wi th the relationship
between the parties that requires the restraint to be maintaine d or rejected?
[27] The balancing act is requi red where although the public in terest requires parties
to comply with their contractual undertakings, it is also in th e public interest that all
persons shall be granted an opportuni ty to remain economically productive to enable
them to earn a living and to support their families.
[28] In Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd
6 the Constitutional Court
quoted with approval, the dictum of Automotive Tooling Systems (Pty) Ltd v Wilkins7
5 Basson v Chilwan and Others 1993 (3) SA 742 (A) at 767F-H.
6 Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) para 35.
7 Automotive Tooling Systems (Pty) Ltd v Wilkins 2007 (2) SA 271 (SCA) para 8.
7
where it was held that a res traint will be considered unreasona ble, contrary to the
public interest and unenforceable “i f it does not protect some legally recognisable
interest of the employer, but m erely seeks to exclude or elimin ate competition.”
[29] There can be no ju stifiable submission that any particular industry or trade has
an inherently protectable interest. A court must analyse each c ase on its presented
facts to determine whether a pro tectable interest has been esta blished.
[30] In the current instance, in argument it was submitted that the doctors which
refer patients to the Applicant ’s practice are trade connection s, which constitute a
protectable interest. Trade conne ctions are, in many cases foun d to be protectable
interests, but as stated above, no particular trade connection is inherently protectable.
A case must be made out in the founding affidavit as to why any e l e m e n t o f t h e
Applicant’s business may constitute a protectable interest. Whe ther the necessary
criteria are satisfied is a question of fact in each case, and in many, one of degree.
[31] As was submitted in argument, the Applicant relies on the provisions of
paragraphs 11.3, 11.4 and 12.2 of the founding affidavit. These provisions however
set out very few facts upon whic h I am able to make any finding .
(a) Paragraph 11.3, indicates, a t a high level, that the Respon dent had access to
‘relevant internal systems’, but t here is no actual indication as to what internal
systems a physiotherapist’s pract ice may have, which are ‘confi dential’ as
averred by the deponent earlie r in the same paragraph.
(b) Paragraph 11.3 does mention t he word trade connections, but also does not go
any further to suggest what those actually are.
(c) Paragraph 11.4 suggests that the Respondent ‘acquired knowl edge of
confidential strategy and prici ng processes belong to the appli cant’. I struggle
to accept that any pricing process can reasonably be held to be a protectable
interest in a service industry open to the public at large, whe re objectively any
member of the public can call the Applicant’s offices and enqui re as to the costs
of treatment.
8
(d) The remainder of paragraph 11 contains generic allegations which ask for
inferences to be drawn from the averments discussed above, whic h also
contain no primary fa cts of their own.
(e) Paragraph 12 continues along a similar fashion of calling o n the court to draw
inferences, without disclosing any primary facts from which suc h inferences can
be drawn. Interestingly, at par agraph 12.3 the Applicant’s depo nent avers that
‘The period of restrain is necessary allow (sic) the applicant to appoint a new
employee, train them in the relevant processes, and to enable t he employee to
become acquainted to the applicant’s clientele to such an exten t that it becomes
plain to the applicant’s clientel e that the new person is the o ne with whom they
must interact.’
(f) To my mind, this is demonstrat ive that no protectable inter est has been
established. The Applicant’s own averments suggest that the per iod is required
to train a new staff member. That is nothing more than an inter nal procedure
and a course of conduct which flows naturally from an existing staff member
leaving the Applicant’s employ.
(g) For the avoidance of any doubt, I have considered the other allegations set out
in the founding affidavit and find no other primary facts upon which I can make
a finding that a protectable in terest has been established.
[32] In its heads of argument, t he Applicant relied heavily on the case of Van
Veijeren v Kruger ,
8 a decision of Seegobin J in the Pietermaritzburg High Court. T his
case is however distinguishable on the facts. I say this becaus e in Van Veijeren :
(a) the employee had been employed for nine years, whereas in t he current
instance the Respondent was emp loyed during January and resigne d during
September of the same year. This period of approximately 9 mont hs is therefore
far shorter in comparison;
(b) the Applicant’s business wa s situated in three small centre s, being Dundee,
Newcastle and Vryheid, whereas in the current instance, the pla ces of trade of
8 Van Veijeren v Kruger 2016 JDR 1346 (KZP).
9
the Applicant are major private hospitals in KwaZulu-Natal’s bu sy commercial
district of Umhlanga; and
(c) the employee was the practice manager, and as found by Seeg obin J, ‘the face
of the practice’. In the current matter, the Respondent does no t hold such
positions and can never have been said to be the ‘face of the p ractice’ after
being employed for approx imately 9 months.
[33] In Rawlins and Another v Ca ravantruck (Pty) Ltd ,
9 Nestadt JA quoted from an
earlier decision, with approval, stating:10
‘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 a dvantage of his
employer’s trade connection…’
[34] Being guided by the Appellant Division in this matter, I w as unable to determine
any primary facts set out which would lead me to the draw an in ference that the
Respondent had such ‘such pers onal knowledge of and influence o ver the customers
of his employer’ as was restated in Rawlins .
[35] I am supported in this view given that the Applicant makes the averment at
paragraph 12.3 of its founding affidavit that a ‘two year restr aint period’ is required to
‘enable the employee to become acquainted to the Applicant’s cl ientele…’. It then
follows that the Respondent had not even made it halfway throug h the period required
to become acquainted with t he Applicant’s clientele.
[36] I therefore cannot find that the Respondent has the suffic iency of personal
knowledge of and influence over t he customers of the Applicant which would be
required to establish a protect able interest in this case.
Order [37] In the result, the order which I make is as follows:
1. The late delivery of the Res pondent’s heads of argument is c ondoned,
with no order as to costs.
9 Rawlins and Another v Caravantruck (Pty) Ltd 1993 (1) SA 537 (A).
10 Ibid at 541F-G.
10
2. The application is dismissed wit h costs, such to be taxed on Scale A.
______________________
BOND AJ
11
Case information
Date of Hearing: 10 December 2024 Date of Judgment: 14 January 2025 F o r A p p l i c a n t : K R E L L I O T T I n s t r u c t e d b y : E l l i o tt Attorneys INC.
Applicant’s attorneys Garsfontein Office Park 645 Jacqueline Drive Pretoria keegan@elliottattornyes.co.za
Ref: KRE/IB/KS0100
C\O Thorp and Hands DURBAN caitlin@thorpeandhands.co.za
For Respondent: Z PLOOS VAN AMSTEL I n s t r u c t e d b y : M o o l l a A t t o r n e y s I n c
Respondent’s Attorney
Suite 323 Richefond Circle Umhlanga asanda@legal-leaders.co.za