IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
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CASE NO: 2024/132565
1. Reportable: No
2. O f interest to other judges: No
3. Revised
/ - __/-6 December 20 2 4 ____........_
S ignature
SURGICAL INNOVATIONS (PTY) LTD
and
RIAAN BOUWER
DIVAN BOUWER
Applicant
1 sr Respondent
2N o Re spondent
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LANOY MEDICAL CC 3RD Respondent
JUDGMENT
WRIGHT J
1. In this application, brought as one of urgency, the applicant, SI seeks to enforce
restraint of trade agreements.
2. The papers are long and complex. Given the urgency, I shall be brief. There is a
sharp difference between the reasons for an order and reasoning, manufactured
after an order to justify the order. Litigants and their lawyers are entitled to the
reasons for the order. Manufacturing reasoning for an order after the order has
been made carries the danger that the judicial officer concerned might feel the
need to force the reasoning to fit the order. What is a judicial officer to do if it is
thought, on reflection, that the order granted should not have been granted?
3. In short, SI sells medical equipment. The first and second respondents, the
Bouwer brothers used to work for SI. The third respondent, Lanoy is a competitor
of SI. The Bouwers recently took up employment with Lanoy.
4. During their employment with SI the Bouwers learned about the business of SI
and about customers of SI and pricing.
5. On 30 September 2024, the Bouwers resigned from SI. SI seeks to restrain the
Bouwers until 30 September 2025.
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6. On 30 September 2024, Divan Bouwer, in an exit interview with SI, in answer to
a question from SI “ Who is your new employer ? “ stated that “ I am doing my
own thing. “
7. On the same day, Riaan Bouwer, in his exit interview, in answer to the same
question stated “Going to work for myself and a friend of mine with a logistics
company. “
8. The Bouwers had serviced one of SI’s clients, ARC. ARC had years ago
appointed SI as distributor of its products.
9. On 21 October 2024, SI received a letter from ARC. ARC stated that it was
terminating the current distribution agreement with SI with immediate effect and
that as from 1 January 2025, ARC would be using Lanoy and that SI would no
longer be allowed to service and sell ARC products.
10. On 22 October 2024, SI sent letters of demand to the Bouwers that they desist
from breaching their restraints.
11. On 23 October 2024, SI wrote to ARC informing ARC that the Bouwers, who had
dealt with ARC, had shortly before left SI and joined SI’s competitor, Lanoy.
12. On 30 October 2024, Lanoy’s attorneys wrote to SI saying that discussions
between ARC and Lanoy had commenced in August 2023. The letter went on to
state that ARC had appointed Lanoy as a distributor from 13 August 2024 and as
sole distributor from 1 January 2025. The letter alleges that Lanoy did not
engage in discussions with the Bouwers, about the Bouwers possibly coming to
work for Lanoy, prior to Lanoy’s appointment by ARC. The statement is made
that Lanoy was unaware, when it offered employment to the Bouwers, that the
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Bouwers had restraint agreements with SI. The letter includes an undertaking by
Lanoy that it will not use the confidential information of SI nor will it solicit any SI
employees during a restraint period.
13. On 6 November 2024, ARC wrote to SI. ARC alluded to previous better times
between the two but complained that ARC had been unable to get a signature
from SI to a certain agreement. ARC also complained of lack of interest by SI.
The letter says that in July 2023, Mr Furbank of Lanoy approached ARC, offering
to replace SI as distributor of ARC products.
14. It needs underlining that the Bouwers serviced the ARC account when they were
with SI and when they moved to Lanoy.
15. On 15 November 2024 the present application was launched, set down for
Tuesday 3 December 2024. Due to a shortage of judges, the matter was
allocated to me on Thursday 5 December 2024 for hearing on Friday 6
December 2024.
16. In the answering affidavits by the Bouwers they say that SI has no interest to
protect. They say that the loss by SI of the right to distribute ARC products
means that the application is just brought to stifle the Bouwers from working.
They say that the information they have is in the public domain. They tender
search of their laptops and other electronic devices.
17. On 28 November 2024, Mr Furbank, the COO of Lanoy deposed to an affidavit.
He says that he knew the Bouwers as sales representatives of SI. He confirms
that SI and Lanoy are competitors. He says that he personally interviewed the
Bouwers for their jobs with Lanoy. He asked them twice if they had restraints with
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SI. He was told no by both Bouwers. On that basis, the Bouwers were employed
by Lanoy. When Lanoy realised that the Bouwers had breached their restraints
and that they had materially misrepresented the facts Lanoy initiated proceedings
against the Bouwers, seeking their dismissal.
18. On 2 December 2024, Lanoy dismissed the Bouwers from their employment with
Lanoy. The Bouwers say now that the application is moot, especially when
considered in the light of the undertakings given by Lanoy.
19. The dismissal of the Bouwers from the employ of Lanoy gives SI impetus on the
question of urgency, which urgency is conceded by the Bouwers, and on the
merits of the application. The Bouwers now have an added motive to carry on
with efforts to seek other employment or otherwise to compete with SI.
20. I shall assume, in favour of the Bouwers but without deciding the point, that ARC
changed from SI to Lanoy only because of ARC’s unhappiness with SI, rather
than at the behest of the Bouwers. The fact remains that the Bouwers serviced
the ARC account when they were at SI and then again when they were at Lanoy.
21. The manner in which the Bouwers left SI and the timing of the events as set out
above are against the Bouwers. This leads to the conclusion that the Bouwers
left the employ of SI with the intention of competing with SI.
22. The Bouwers suggest that their agreements contain, in addendums thereto, an
arbitration clause and that the present application is accordingly premature. I
disagree. I have a discretion to enforce the arbitration clause or not. The manner
in which the Bouwers left SI and then sought to compete with SI, and clearly
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intend trying to do so in the future, ma kes it inappropriate for me to refrain from
dealing w ith the case now .
23. The relief sought in the notice of motion is now trimmed some w hat in relation to
Laney and it caters generally for w ater w hich has flow ed under the bridge since
the application w as launched. A draft order has been prepared by S i's lawyers.
Laney consents to the order in relation to it. Costs are not sought against Laney.
The draft seeks that the Bouw ers jointly and severally pay the costs of S I. There
is no reference to a scale of costs, nor to more than one counsel, nor to senior
counsel, nor should there be. One counsel is sufficient and the low er scale A is
suitable.
24. The draft order is not a model of consumma te syntax but it suffices.
ORDER
1 . A n order is made ito the draft order at 21 -9 to 21 -16 of easel ines.
GC Wright
Judge of the High Court
Gauteng Division, Johannesburg
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HEARD : 6 December 2024
DELIVERED : 6 December 2024
APPEARANCES :
Applicant Adv J Blou SC
082 600 5434
jblou@group621.co.za
Adv P Lourens
072 979 8908
plourens@rsabar.com
Instructed by Werksmans Attorneys
011 538 8445/8137
jgobetz@werksmans.com
tdlamini@werksmans.com
Respondents 1 and 2 Adv D Groenewald
082 781 4155
dirk@clubadvocates.co.za
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Instructed by Serfontein Viljoen & Swart Attorneys
073 295 3826
leroux@svslaw.co.za