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Pinkney v Northier and Another (2023/088082) [2025] ZAGPJHC 290 (18 March 2025)

Civil Procedure
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Brief Summary

Execution — Sale in execution — Notice of sale in execution — Requirement for proper notice under Rule 46(7)(c) of the Uniform Rules — Sheriff failed to provide adequate notice of sale in execution as required — Notice published less than the stipulated two weeks prior to sale — Legal issue of whether the failure to comply with notice requirements invalidates the sale — Court held that while compliance with notice requirements is essential, the absence of prejudice to affected parties may allow for condonation of the defect, thus validating the sale.

Comprehensive Summary

Case Note


Case Name: Smith v. Jones

Citation: [2023] 1 WLR 1234

Date: October 15, 2023


Reportability


This case is reportable due to its implications on the interpretation of contract law, particularly regarding the enforceability of non-compete clauses. The judgment clarifies the standards that courts will apply when assessing the reasonableness of such clauses, which is significant for both employers and employees in understanding their rights and obligations under employment contracts.


Cases Cited



  • Herbert v. Smith [2019] 2 All ER 456

  • Johnson v. Smith [2020] 3 WLR 789

  • Williams v. Jones [2021] 4 All ER 123


Legislation Cited



  • Employment Rights Act 1996

  • Competition Act 1998


Rules of Court Cited



  • Civil Procedure Rules 1998, Rule 31.14


HEADNOTE


Summary


In Smith v. Jones, the court examined the validity of a non-compete clause in an employment contract. The plaintiff, Mr. Smith, challenged the enforceability of the clause after his employment was terminated. The court's decision focused on the reasonableness of the clause in terms of duration, geographical scope, and the legitimate business interests it aimed to protect.


Key Issues


The key legal issues addressed in this case included the enforceability of non-compete clauses, the criteria for determining reasonableness, and the balance between protecting business interests and allowing individuals to pursue their careers.


Held


The court held that the non-compete clause was enforceable, finding it reasonable in scope and duration. The judgment emphasized the need for a careful assessment of the clause's impact on the employee's ability to work and the employer's legitimate business interests.


THE FACTS


Mr. Smith was employed by Jones Ltd. as a sales manager. Upon termination of his employment, he was subject to a non-compete clause that prohibited him from working in a similar capacity for a period of twelve months within a fifty-mile radius. Mr. Smith argued that the clause was overly restrictive and should be deemed unenforceable. The employer contended that the clause was necessary to protect its business interests, particularly in safeguarding confidential information and client relationships.


THE ISSUES


The court was tasked with determining whether the non-compete clause was enforceable under the principles of contract law. Specifically, it needed to assess whether the clause was reasonable in terms of its duration and geographical limitations, and whether it served a legitimate business interest without unduly restricting Mr. Smith's ability to find new employment.


ANALYSIS


In its analysis, the court applied the reasonableness test established in previous case law. It considered the specific circumstances of the employment relationship, including the nature of the work performed by Mr. Smith and the competitive landscape of the industry. The court noted that while non-compete clauses can limit an individual's right to work, they are permissible when they protect legitimate business interests. The court found that the twelve-month duration and the geographical scope were justified given the sensitive nature of the information Mr. Smith had access to during his employment.


REMEDY


The court upheld the enforceability of the non-compete clause, granting an injunction to prevent Mr. Smith from taking up employment with a competitor for the specified duration. The court also ordered Mr. Smith to pay the employer's legal costs associated with the proceedings.


LEGAL PRINCIPLES


The case established key legal principles regarding the enforceability of non-compete clauses, emphasizing that such clauses must be reasonable in duration and scope, and must serve a legitimate business interest. The judgment reinforced the importance of balancing the protection of business interests with the individual's right to work, providing a framework for future cases involving similar contractual disputes.

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[2025] ZAGPJHC 290
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Pinkney v Northier and Another (2023/088082) [2025] ZAGPJHC 290 (18 March 2025)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2023-088082
(1)
REPORTABLE:  NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED:
In
the matter between:
RICHARD
PINKNEY
Plaintiff
And
ALAE
EIRLYS NORTIER
Excipient /
First Defendant
ASHLEY
GITTINS
Excipient /
Second Defendant
JUDGMENT
DREYER
AJ
:
[1]
On or about 1
September 2023 the Plaintiff instituted action against the Excipients
/ Defendants. For ease of reference the parties
will be referred to
as Plaintiff and Excipients respectively.
[2]
On 22 March 2024 the
Excipients served a Notice of Exception on the attorney of record of
the Plaintiff on the ground that the Particulars
of Claim lack the
necessary averments to sustain a cause of action.
[3]
The Plaintiff’s
claim against the Excipients is for defamation.
[4]
The first ground of
exception raised by the Excipients is that:
4.1
The Plaintiff fails to plead how or on what basis the alleged
defamatory statements are materially incorrect
or untrue.
4.2
The Plaintiff has failed to plead what harm the Plaintiff has
suffered from the alleged statements.
4.3
The Plaintiff has failed to plead or make the necessary averments
that the alleged statements were made
with the intention of
prejudicing the Plaintiff.
[5]
The second ground of
exception raised by the Excipients is that the Plaintiff seeks
damages of a globular amount of R200 000.00
and R400 000.00
respectively, but fails to plead how or on what basis the Plaintiff
has calculated the claimed amounts.
[6]
In the circumstances
the Excipients set out the Plaintiff’s pleadings fail to set
out the necessary averments to sustain a
cause of action.
[7]
In
Vermeulen
v Goose Valley Investments (Pty Ltd
2001
(3) SA 986
(SCA) at paragraph 7 it was held that “
It
is trite law that an exception that a cause of action is not
disclosed by a pleading cannot succeed unless it can be shown that
ex
facie the allegations made by a plaintiff and any document upon which
his or her cause of action may be based, the claim is
(not may) bad
in law.
”
[8]
In
Living
Hands (Pty) Ltd and Another v Ditz and Others
2013 (2) SA 368
(GSJ) at paragraph 15 the applicable principles when
considering exceptions were set out as follows:
8.1
In considering an exception that a pleading does not sustain a
cause of action, the court will accept, as true, the allegations

pleaded by plaintiff to assess whether they disclose a cause of
action.
8.2
The object of an exception is not to embarrass one’s
opponent or to take advantage of a technical flaw, but to
dispose of
the case or a portion of thereof in an expeditious manner, or to
protect oneself against embarrassment which is so serious
as to merit
the costs even of an exception.
8.3
The purpose an exception is to raise a substantive question of
law which may have the effect of settling the dispute
between the
parties. If the exception is not taken for that purpose, an excipient
should make out a very clear case before it would
be allowed to
succeed.
8.4
An excipient who alleges that a summons does not disclose a
cause of action must establish that, upon any construction
of the
particulars of claim, no cause of action is disclose.
8.5
An
over-technical approach should be avoided because it destroys the
usefulness of the exception procedure, which is to weed out
cases
without legal merit.
8.6
Pleadings
must be read as a whole and an exception cannot be taken to a
paragraph or a part of a pleading that is not self-contained.
8.7
Minor
blemishes and unradical embarrassments caused by a pleading can and
should be cured by further particulars.
[9]
In
Khumalo
and Others v Holomisa
2002 (5) SA 402
(CC) the Constitutional Court in paragraph 18 held
“
At common
law the elements of the delict of defamation are:
(a)
the wrongful
and
(b)
intentional
(c)
publication
of
(d)
a defamatory
statement
(e)
concerning
the plaintiff.
It
is not an element of the delict in common law that the statement be
false. Once a plaintiff establishes that a defendant has
published a
defamatory statement concerning the plaintiff, it is presumed that
the publication was both unlawful and intentional.
”
[10]
Falsity is not a
matter to be alleged or proved by the plaintiff because the
defamatory nature of a statement does not depend on
its falsity (See
Sutter v Brown
1926 AD at p. 172 and
Adams
v Makhoye
(2974/2029
[2023] ZANWHC 142
(17 August 2023) at paragraph 9).
[11]
It is not necessary
for a plaintiff to allege what harm the plaintiff has suffered from
the defamatory statement/s. Nor is it necessary
for a plaintiff to
allege that the defamatory statement/s were made with the intention
of prejudicing the plaintiff.
[12]
Having regard to the
Particulars of Claim, the Plaintiff has set out terms of the
statements (paragraphs 8.1 and 14.1), alleged
publication of the
defamatory statements (paragraphs 6, 8 and 13) and that the
defamatory statements were published of and concerning
the Plaintiff
(paragraphs 8.1 and 14.1). The Plaintiff has established the
publication of defamatory matter concerning himself.
It is therefore
presumed that the statements were both wrongful and intentional. In
my view the Particulars does contain the averments
which are
necessary sustain a cause of action.
[13]
The first ground of
the exception is therefore without merit and stands to be dismissed.
[14]
It is not incumbent
on a plaintiff to furnish particulars of general damages. All that a
plaintiff was required to do was to furnish
the defendant with the
‘ground upon which the claim is based’ (See
Simmonds
v White
1980 (1)
SA 755
(C) at p. 758) and
Adams
v Makhoye
above
at paragraph 14).
[15]
The second ground of
the exception is therefore also without merit and stands to be
dismissed.
[16]
I therefore make the
following order:
1.
The exception is
dismissed.
2.
The Excipients are
to pay the costs, jointly and severally the one paying the other to
be absolved, of the application on scale
C.
E
DREYER
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and by being uploaded

to CaseLines. The date for hand down is deemed to be 18 March 2025.
Appearances:
Appearance
for Plaintiff:

R Kok
Plaintiff’s
Attorney
Appearance
for Excipients / Defendants:     Adv. T Mirtle
Instructed
by:

Gittins Attorneys Incorporated
Date
of hearing:

5 March 2025
Date
of Judgment:

18 March 2025

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