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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)
CASE NO: 2022/4054
In the matter between: -
BUJINI PROJECTS (PTY) LTD APPLICANT
And
AMITH JADOONANDON RESPONDENT
(Identity Number: 8[...])
Coram: Lucas van Tonder AJ
Heard: 11 November 2023
Delivered (electronically): 10 December 2024
JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED. NO
…………..………….............
SIGNATURE DATE 10 December 2024
LUCAS VAN TONDER AJ:
Introduction:
[1] The Applicant company (Bujini) seeks a final interdict against Mr
Jadoonandon in the form of a restraint of trade through opposed motion
proceedings.
[2] The relief sought reads:
“Interdicting and restraining the Respondent from:
a. Using the Applicant’s property namely the Felix the Fire Bunny suit, the
speaker, and the microphones;
b. Approaching any of the Applicant’s clients and offering them training
programs similar to the training programs offered by the Applicant; and
c. Operating, and or advertising, and or mascaraing (sic) and or giving the
impression that he is an employee of the Ap plicant, and offering services
on behalf of the Applicant.
d. To compel the Respondent to forthwith return movable property belonging
to the Applicant, namely the Felix the Fire Bunny suit (“the suit”), the
speaker, and the microphones (“the equipment”).
[3] Evidently the complaint and relief sought relies to a large extent on alleged
possession of Bujini’s property, namely “ the Fire Bunny suit, the speaker, and
the microphones”.
[4] Mr Jadoonandon was an employee of Bujini until 30 December 2020.
[5] The application was issued during February 2022, more than two years later.
[6] Bujini complains that Mr Jadoonandon was the last person to use Felix the
Fire Fighting Bunny suit, the speaker and microphones , during November
2020.
[7] Bujini alleges Mr Jadoonandon has been ap proaching its customers and
offering services to them as if he is still involved with Bujini.
[8] Bujini relies on a two confirmatory affidavit s by one Ms Kock and one Ms
Richards relating to two events, one in March, another in May 2021 , when
allegedly Mr Jadoonandon used the Felix the Fire Bunny suit.
[9] The founding papers are at best vague about the lapse of time between the
last date of employment and the launch of the application. It is not clear on
what basis a restraint more than two years later would still be justified.
[10] In response to the allegation by Ms Kock and Ms Richards, Mr Jadoonandon
disputes that he used the bunny suit, but alleged that instead he presented an
Easter egg hunt with an easter bunny suit ordered by his wife. The absence of
a confirmatory affidavit does not water down the patent dispute of fact , more
so when Bujini’s confirmatory affidavits appear to be irregular.
[11] The confirmatory affidavits appeare d to have been deposed to in January
2021, but only date-stamped in 2022. The confirmatory affidavits are arguably
null and void due to non -compliance with the formalities applicable to the
oath. They were purportedly deposed to before the founding affidav it existed
or had been deposed to.
[12] Even if the manuscript dates on the confirmatory affidavits are wrong , then
such confirmatory affidavits pre-date the founding affidavit which they purport
to confirm.
[13] In Wingaardt and Others V Grobler AND Another 2010 ( 6) SA 148 (ECG) the
court held at:
Para [8] - “An affidavit is a written statement sworn to before a commissioner
of oaths. An oath is administered in terms of the regulations made in terms
of s 10 of the Justices of the Peace and Commissioners of Oaths A ct 16 of
1963. In terms of rule 6(1) of the rules of this court, a notice of motion must
be supported by an affidavit as to the facts upon which the applicant relies
for relief. As such, an affidavit constitutes the factual evidence before a
court, upon wh ich the matter is to be adjudicated... It follows that, if there is
no affidavit before a court in application proceedings in support of the relief
claimed, there is no evidence upon which the relief can be granted.”; and
Para [9] - “It is trite that in certain circumstances a court has the discretion to
condone strict compliance with the regulations prescribing the administration
of oaths, but, where no oath was administered, there is no evidence before
the court and the unattested statement is pro non sc ripto and incapable of
condonation. The second and third appellants are accordingly not before this
court, and they were also not before the court a quo.”
[14] In Hano Trading CC v J R 209 Investments (Pty) Ltd (650/11) [2012] ZASCA
127 (21 September 2012) the court held at Para [10]:
“A litigant in civil proceedings has the option of approaching a court for relief
on application as opposed to an action. Should a litigant decide to proceed by
way of application, rule 6 of the Uniform Rules of Court applies . This rule sets
out the sequence and timing for the filing of the affidavits by the respective
parties. An advantage inherent to application proceedings, even if opposed, is
that it can lead to a speedy and efficient adjudication and resolution of the
disputes between parties. Unlike actions, in application proceedings the
affidavits take the place not only of the pleadings, but also of the essential
evidence which would be led at a trial… It follows thus that great care must be
taken to fully set out the case of a party on whose behalf an affidavit is filed.”
[15] This judgment does not hinge on the failure to have complied with the
provisions applicable to affidavits, albeit that it could arguably be a ground in
support of dismissal.
[16] On the critical underlying facts, Mr Jadoonandon disputes that he took
ownership or possession of the bunny suit and equipment and disputes that
he uses it in the manner alleged by Bujini, which disputes, if absent cross -
examination cannot be resolved on t he papers, the relief related thereto must
fail.1 The ownership and use of the bunny suit and equipment appear to be
linked to the alleged breach of the restraint, at least to some extent, if only
relevant to credibility in the context of Mr Jadoonandon a lleging and arguing
that the application is malicious after such a long time since his involvement
with Bujini.
[17] In Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA
1155 (T) -At 202-203 this principle is dealt with as follows:
“His lordship said it was obvious that a claimant, who elected to proceed by
motion, ran the risk that a dispute of fact might be shown to exist, in which
event the court had a discretion as to the future course of proceedings; and
that it was improper for an applicant to commence proceedings by motion with
a knowledge of the probability of a protracted enquiry into disputed facts not
capable of easy ascertainment, but in the hope of inducing the court to apply
rule 9 to what was essentially the subject of an ordinary trial.”
…
“While it may well be, once a genuine dispute of fact has been shown to exist,
that a respondent should not be compelled to set out his full evidence in his
replying affidavits, a bare denial of applicant’s material averments cannot be
regarded as sufficient to defeat applicant’s right to secure relief by motioin
proceedings in appropriate cases. Enough must be stated by a respondent to
enable the court to conduct a preliminary examination of the position and
ascertain whether the denials are not fictitious, intended merely to delay the
1 Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) p202-203.
hearing. The respondent’s affidavits must at least disclose that there are
material issues in which there is a bona fide dispute of fact capable of being
decided only after viva voce evidence has been heard.”
[18] An additional challenge for Bujini is the fact that contract relied on by Bujini
did not stipulate a duration for the in tended restraint and stipulate s
applicability to the entire Republic of South Africa.
[19] The relief sought by Bujini did not seek to limit the time period or geographic
extent of the restraint, assuming it would have been allowed, nor did it present
any detailed facts that Bujini conducts business throughout the entire
Republic. To succeed with an interdict, a clear right in relation to those
features had to be established.
[20] In Nampesca (SA) Products (Pty) Ltd and another v Zaderer and others
1999 (1) SA 886 (C) the Court held at 898G-H:
“Is the restraint wider and what is necessary to protect the specific interest?
The third restraint is unlimited as regards duration. Paragraph 1.4 of the
rule nisi interdicts first, second and third respondents, with immediate effect
and up to and including 3 November 1998, from in any way, directly or
indirectly, soliciting the custom of any customer or supplier of the applicants.
Without any restrictions as regards duration the third restraint is clearly
too wide as it is unl ikely that the first applicant's customers and
suppliers would remain static.” (emphasis added)
[21] Absent allegations substantiating the geographic scope for the intended
restraint, even if merely applicable to the entire Republic of South Africa , it
presents a serious obstacle to a final interdict.
[22] The court in Labournet (Pty) Ltd v Jankielsohn and Another [2017] 5 BLLR
466 (LAC); (2017) 38 ILJ 1302 (LAC) (10 January 2017) succinctly stated the
law on restraint of trade in par 42 to 45:
“[42] According to the Appellate Division in Basson v Chilwan and Others, the
following questions require investigation, namely, whether the party who
seeks to restrain has a protectable interest, and whether it is being preju diced
by the party sought to be restrained. Further, if there is such an interest – to
determine how that interest weighs up, qualitatively and quantitatively, against
the interest of the other party to be economically active and productive.
Fourthly, to ascertain whether there are any other public policy considerations
which require that the restraint be enforced. If the interest of the party to be
restrained outweighs the interest of the restrainer – the restraint is
unreasonable and unenforceable.
[43] It is now clear from, inter alia, Basson and Reddy that the
reasonableness and enforceability of a restraint depend on the nature of the
activity sought to be restrained, the rationale (purpose) for the restraint, the
duration of the restraint, the area of the restraint, as well as the parties’
respective bargaining positions. The reasonableness of the restraint is
determined with reference to the circumstances at the time the restraint is
sought to be enforced. With reference particularly to the facts of t his matter, it
is an established principle of law that the employee cannot be interdicted or
restrained from taking away his or her experience, skills or knowledge, even if
those were acquired as a result of the training which the employer provided to
the employee.
[44] Even though it is acknowledged that it is difficult to distinguish between
the employee’s use of his or her own knowledge, skill and experience, and the
use of his or her employer’s trade secrets, it is accepted that an employee
cannot be prevented from using what is in his, or her, head.
[45] Also relevant to this matter are the principles relating to the
reasonableness of the duration of the restraint. This aspect is generally
assessed as part and parcel of assessing the reason ableness of the
restraint, but it bears mentioning that the duration must the rational and
reasonable. It cannot be reasonable if it is not rational.
…
[57] There is also, inter alia, a dispute concerning the reasonableness of the
area and duration of the restraint. The period of the restraint is three (3) years.
Labournet contended on the papers and in the court a quo that the area and
duration of the restraint was reasonable. However, at the hearing before us
Mr Snyman, for Labournet, conceded that given Jankielsohn’s level and
experience, the three -year period was probably too long and sought to
persuade us that a restraint period of about 12 months (or a year) was
justifiable. Even though the concession was, in my view correctly made, no
particular reason was furnished why 12 months would be reasonable, or why
a lesser period than that would not be reasonable. In any event, the
reasonableness of the duration of a restraint is a value judgment to be
arrived at upon a consideration of all the relevant facts .” (emphasis
added)
[23] The founding papers are not very helpful to assist the Court to reach the
requisite value judgment.
[24] In Sibex Engineering Services (Pty) Ltd v Van Wyk and Another Page
487-488 of 1991 (2) SA 482 (T), Spoelstra and Harms JJ held:
“It fol lows from the aforegoing that the restraint clause can therefore not
protect any interest of the appellant in either its trade secrets or its confidential
information. To enforce the restraint clause under such circumstances would
be contrary to public policy.
It was, however, argued that the restraint clause as formulated does not only
protect trade secrets or confidential information, but that it also contains a
general prohibition against competition . Therefore, it was said, it also
protects the appellant's interests in its trade connections and that first
respondent has failed to allege and prove that the clause is
unreasonable in that respect.
Appellant, in its founding affidavit, made some vague allusions to its trade
connections with Sasol. It stated that Sasol no longer awards its contracts to
any particular tenderer but that work is carried out on the basis of 'first come
first served' when the services are required and that Sasol then takes into
account the price structures. He said that the first respondent had also
previously worked at Sasol and consequently had a good relationship with a
number of its engineers. It is then said that the relationship with the engineers
and his proximity to Sasol will ensure that the second respondent would be
able to secure the majority of the leak-sealing services with Sasol.
Although most of these allegations are in dispute, they can be accepted as
correct for purposes of establishing a prima facie case. I shall assume for
purposes of this judgment that th e appellant had a protectable interest in its
trade relations. First respondent is, however, a technician and not, say, a
salesman. He was employed as a technician. The ratio of the restraint clause
was the fact that the first respondent in his capacity as technician would come
into contact with specialised knowledge of a confidential or secret nature. It
was not contemplated by the parties that the clause had to perform the
function of protecting the appellant's trade relations. The clause can therefore
not be applied to protect interests which it was not intended to protect. In any
event, as indicated, the first respondent has established that the restraint
clause is unreasonable to the extent that it attempts to protect confidential
information or trade s ecrets. As was said in Sunshine Records (supra at
795 - 6) it would have been encumbent upon the appellant, if it had
wished to rely on less than the complete contract, to raise this issue
pertinently and to deal with it in evidence. That it has not done .”
(emphasis added)
[25] Apart from geographical extent and duration, t he founding papers failed to
assist the Court to understand whether any fixed relationship comes into
being with clients or customers, and if so whether long term agreements came
into being, if not why not, at least as an easy measure to protect existing o r
continuing business relationships. It would appear that once a show had been
presented it is not difficult to replicate.
[26] In Basson v Chilwan [1993] 2 All SA 373 (A) , at para 28, Nienaber JA held
this:
“Klousule 11 van die ooreenkoms is 'n blatante poging om 'n monopolie oor
Basson se bekwaamheid, vaardigheid en kundigheid as busbakbouer te
verwerf deur Basson vir 5 jaar as busbakbouer buite aksie te stel. Daardie
belang, met daardie oogmerk, kan na my mening nie opweeg teen die nadeel
wat dit vir Basson i nhou indien hy verhinder word om sy gekose beroep vir 'n
periode van vyf jaar te beoefen nie. Na my oordeel het Basson daarin geslaag
om aan te toon dat die beperking onredelik en gevolglik onafdwingbaar is.
Daar was geen versoek aan die hof a quo , of aan hierdie hof, om die
beperking na sy omvang of tydperk in te kort nie . Gevolglik is dit
onnodig om verder aan die hipotese aandag te skenk dat 'n mindere
beperking dalk wel redelik sou wees (vgl. die Sunshine Records -
saak supra te 795-6).” (emphasis added)
[27] The application is fundamentally flawed in respect of one, more or each of the
principles articulated above.
Costs:
[28] Bujini sought costs on the “ attorney and own client ” scale, not even merely in
the event of the respondent opposing it. The approach was factually
unfounded and legally unjustified. It prompts a respondent to oppose the
matter on that basis alone , which it would be justified to do, even if the relief
sought on the merits was entirely justified.
[29] In Johannesburg City Council v Television & Electrical Distribution (Pty) Ltd ,2
the court held that “. . . in appropriate circumstances the conduct of a litigant
may be adjudged "vexatious" within the extended meaning that has been
placed on this term in a number of decisions, that is, when such conduct has
2 1997 (1) SA 157 (A) at 177 C – F.
resulted in "unnecessary trouble and expense which the other side ought not
to bear ”. See also In re: Alluvial Creek Ltd 1929 CPC 532 at 535, Phase
Electrical Co Ltd v Zinman's Electrical Sales (Pty) Ltd 1973 (3) SA 914 (W) at
918H – 919B, and Hyperchemicals International (Pty) Ltd v Maybaker
Agrichem (Pty) Ltd 1992 (1) SA 89 (W) at 101G – 102D.
[30] In Gois t/a Shakespear’s Pub v Van Zyl and Others,3 the court held as follows:
“…this court may make a punitive costs order such as costs on an attorney
and own client scale where it believes it (is) appropriate to do so. Factors to
consider whether or not to grant such punitive costs order include where the
conduct of the party is vexatious and amounts to an abuse of legal process,
even though there is no intention to be vexatious; evinces a lack of bona fide;
and is reckless, malicious and unreasonable.”
[31] In Brown v Papadatis and Another NNO ,4 what Davis J held at 545J -
546D is apposite here. The learned Judge said:
“Mr Khan submits that he was given instructions to so pursue this
course of action, but attorneys must surely apply a professional
standard in deciding to do this. See the dictum of Inne s CJ in
Vermaak’s Executor v Vermaak’s Heirs 1909 TS 679 at 691. Applicants
have rights, but the courts are not playthings, to be abused at the
convenience of litigants who raise spurious, reckless arguments which
jeopardize the integrity of the court, so as to postpone proceedings,
when they, as in this case, have clear rights, which can protect any
interest or rights which they may have.
In my view, this is a case where the court should say: Of course,
litigants have rights; of course, courts must fastidi ously respect these
rights; of energetically as he or she may be able, to protect these
rights. But when the boundary is overstepped so grossly in
3 (2003) 24 LJ 2302 (LC).
4 2009 (3) SA 542 (C).
circumstances where there is no legal basis, no precedent, no serious
evidential edifice on which to launch such an application (ie even on
these vague affidavits could a recusal application ever be brought?),
the court should say, you have overstepped the mark and have
crossed a bridge in circumstances where an order of costs de bonis
propriis must follow.”
[32] It should be discouraged to provoke an opposing party into litigation merely
because of a threat of a punitive costs order. The applicant’s approach is
vexatious in that regard because there was “ no legal basis, no precedent, no
serious evidential edifice” on which to seek such costs order.
Order:
[33] The following order is made:
a. The application is dismissed with costs;
b. The applicant shall pay the costs of the respondent on the attorney and
client scale;
c. The costs shall be taxed by on the initiative of the applicant within 90
days, from date of this order;
d. The costs shall be paid by the applicant within 10 days after taxation.
_________________________
LUCAS J VAN TONDER AJ
Heard: 14 November 2023
Judgment: 10 December 2024
Appearances:
For the Applicant: Adv Monique Arroyo
Instructed by: Kern Armstrong and Associates
For the Respondent: In person
Instructed by: In person