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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG .
Case Number: 025959 -2025
In the matter between:
In the matter between:
COMMUNICATION GENETICS ( PTY) LTD Applicant
And
STEFAN SCHÖ NENBERGER First Respondent
OPIA TECH (PTY) LTD Second Respondent
JUDGMENT
NOKO J
Introduction (1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED : NO
SIGNATURE DATE: 02 April 2025
2
[1] The applicant instituted urgent proceedings for an int erdict restraining the
first respondent taking up employment with , be connected with and being
interest ed personally or finan cially in any trade, business, company or
undertaking (“collectively referred in this judgment a s employment ”) competitive
with any of the business conducted by the applicant as at the time of termination
of employment with the applicant . The relief sought i nclude that the first
respondent should also be restrained from taking up such employment with
second respondent . The restraint should apply for a period of one year after
termination of employment anywhere in the R epublic of S outh Africa.
[2] The application is opposed only by Mr Stefan Schöenen berger , first
respondent who, inter alia , disputed urgency. Reference in this lis to the
respondent would mean Mr Stefan Schöene nberger .
The parties .
[3] The applicant is Communication Genetics (Pty) Ltd, (“CG”)(previously Mail
Genetics (Pty) Ltd) a private company duly incorporated in terms of the company
laws of the Republic of South Africa, with its principal place of business situated
at The Block, Units G […] and G […], L[…] L[…] E[…], T[…] Avenue, Beverly,
Fourways Ext 27, Gauteng.
[4] The first respondent is Stefan Schöenen berger an adult male resident at
1[…] G[…] Street, J […] Park, Gauteng.
[5] The second respondent is Opia Tech (Pty) Ltd a private company duly
incorporated in terms of the company laws of the Republic of South Africa, with its registered address situated at A […] D[…] B[…], m[…] Drive, Tableview,
Western Cape. This registered address is the address of its sole director, M r
Colin Branson (“Mr Branson”) .
3
[6] The respondent and Mr Branson are both former employees and directors
of the applicant.
History of the applicant.
[7] The applicant’s shareholders at the beginning were, inter alia , Sirus Trust
and Taweca Family Trust.
1 The respondent was a trustee and a beneficiary of
the Sirus Trust whereas Mr Branson was the Trustee and beneficiary of the
Taweca Trust. The shareholders and Alphatech Holdings (Pty) Ltd (“Alphatech”)
entered into shares of shares and claims agreement in terms of which Alphatech
purchased 100% of the issued share capital in CG for the amount of
R70 000 000.00 (Seventy Million Rand) on 25 November 2020.
[8] CG is in the business of selling and distributing software products supplied
by international technology companies, namely, FIS Payments LLC f/k /a
Metavante Corporate (FIS) , Rocket, Compart GmbH (“Compart”) and Kiteworks .
To this end the applicant entered into a Master Distribution Agreement with FIS. The service provider included, Customer Communication Management (CCM),
Enterprise Content Management and Archiving, Data Conversion- Output
Management/ date Processing, Secure Date Communication and Mainframe Modernisation Technology
2.
[9] The applicant’s main clients included ABSA Bank, Standard B ank of South
Africa (SBSA), First National Bank (FNB) and Momentum Metropolitan Investment Holdings (MMI) . The contracts with the applicant’s clients end on
different dates set out as follows: Absa - end of 2025, MMI - ends on 31 July
2026 and SBSA ends on 31 March 2027.
1 Other parties in the agreement included Taweca Property Trust and Hertzog Guillaume
Oberholzer.
2 Other services included consulting, implementation, training, maintenance & support, managed
services and resourcing.
4
[10] The initial contracts of employment for both Mr Branson and the
respondent came to end at the same time with the sale of the shareholding in the
applicant. They both entered into new contract s of employment in different
capacities. Mr Branson was appointed as a joint managing director in terms of the contract of employment concluded on 7 December 2020. The said contract contained a clause on restraint of trade. He resigned on 30 September 2021 and entered into a consultancy agreement with the applicant . He continued to provide
business development and strategic advice to the applicant thr ough his company
called Opia Investment (Pty) Ltd. The consultancy agreement was terminated on 31 December 2022. He subsequently registered another company on 22 April 2024 called Opia Tech (Pty) Ltd ( “the second respondent ”).
[11] The respondent who was employed since 2012 was initially appointed as
a Technical Manager and later as a D irector of the applicant signed a new
contract of employment on 7 December 2020. He was then appointed as the
Head of T echnical and O perations. The contract of employment signed contained
a restraint of trade clause in terms of which the respondent , inter alia ,
acknowledged that he will keep applicant’s information and trade secrets confidential
3. The respondent agreed that by virtue of his employment he
possessed of knowl edge relating to, inter alia , business secrets , goodwill and
personal knowledge of customers and he accepted that he w ill not, either directly
or indirectly , be employed by and/or be connected, have interest in, or interest
himself in (either personally or financially) any trade, business , company or
undertaking competitive with any business conducted by the company for a
period of 12 months from the date of termination of employment.4
[12] The respondent tendered his resignation on 30 September 2024 and gave
three months’ notice with his last working day being 31 December 2024.
3 In terms of clause 14 of the standard Conditions of Employment at CL 02- 176.
4 Id, clause 17 at CL 02- 177.
5
[13] On 20 September 2024 FIS gave the applicant termination notice of the
Master Software Distribution Agreement which was effective on 31 December
2024. FIS made it known of its intention to the applicant on 17 October 2024 to
appoint Opia Tech as its new distributor.
Background.
[14] The background in this lis was set out as follows by the applicant. During
October 2024 the applicant was tipped by one of its vendors that the respondent
intends joining the second respondent once his notice with the applicant comes to an end. The applicant then penned a letter on 6 November 2024 to FIS, Mr
Branson and the respondent making them aware that there is a restraint of trade
agreement with its employees. Further that there was a suspicion that the
respondent is planning to breach the restraint of trade by joining the second
respondent and propos ed that this issue be referred to mediation. The
suggestion for mediation was rejected by the attorney for the respondent
Lanham -Love Galbraith- van Reenen Inc (“LLG VR”) (also representing Mr
Branson) who stated on 13 December 2024 that allegations relating to the breach
of restraint clause w ere speculative, premature and hypothetical and as such
threats to approach court are not actionable.
[15] The employees of the applicant conducted an internet search on 18
December 2024 and discovered email address es of s[…] and s […] The applicant
also brought to the attention of LLGVR that there was no denial in their letter of
13 December 2024 that the respondent is not acting in breach of the clause and
requested written undertaking that he would not act in contravention of the
restraint of trade clause. In ret ort the attorneys repl ied in writing in a letter dated
29 January 2024 and refused to provide the undertaking requested.
[16] On 18 Febr uary 2025 an email was received by the applicant from FIS
which was addressed to both Mr Branson and S […] relating to a PDF control
feature for SBSA . This related to an issue which CG and FIS discussed before
FIS terminated its contract with CG. On the same date the respondent was seen
6
attending a conference arranged by Rocket at the offices of Axiz at the
International Business Gateway Park, Midrand. Heitmuller , who attended the
conference on behalf of the applicant took photographs of the respondent’s name
tag which showed that the respondent was attending the conference as a
representative from Opia Tech.
[17] The applicant conveyed the information of the email received from FIS and
the attendance of the conference by the respondent on 19 January 2025 to
LLGVR and further inquired if they held the mandate to receive of the court
process es on behalf of the respondent s. In turn the attorneys replied on 20
February 2025 and stated that they held instructions to receive service court
processes on behalf of both the respondent and Opia Tech. The applicant then
instituted the urgent proceedings against both respondents . The papers were
issued and accordingly served on the attorneys.
Parties ’ submissions.
Urgency .
[18] The applicant contends , in support of the application for urgency, that the
lis relating to restraint of trade disputes is generally construed as urgent as they
are time barred. In this instance the restraint of trade is only for a period of 12
months. If the legal process is launched on a normal basis the lis may be
adjudicated after a period of 12 months and as such t here would not be any
substantial redress. And t here is a significant risk of the respondent exploiting the
information for as long as he is in the employ of Opia Tech. The applicant’s
attempts were first made to communicate directly with the respondent so as to
obviate the need to institute court proceedings but the request s for mediation and
undertaking w ere spurned by the respondent .
[19] The respondent contends that the applicant had a suspicion as early as
October 2024 that the respondent was allegedly involved with Opia Tech hence
the applicant penned a letter to him making his aware of the restraint of trade
clause and f urther stated that the applicant may pursue legal action for an
7
interdict restraining the respondent from breaching the restraint of trade
agreement . Further that the respondent adopted a supine posture and not
proceed to court with the requisite urgency.
[20] The respondent stated further that the applicant demanded an undertaking
on 23 January 2025 and reserved the applicant’s rights. The request for the
undertaking was rejected in writing on 29 January 2025 by the respondent’ s
attorneys. The fact that the proceedings were only launched almost 4 months from 6 November 2024 to 25 February 2025 later meant that urgency was self -
created.
[21] In retort the applicant contended that there was no cogent evidence to
support the breach at the time of the exchanges until 18 February 2025 when an
email was received from FIS and the attendance of the respondent of the
conference representing Opia Tech that he was involved and/ or connected and/
or interested in Opi a Tech. W hat was communicated to the applicant’s employee
by a vendor was hearsay and could not be used to found a c ause of action. The
fact that the respondent clearly disputed the allegations of the suspicion of
breach made before 18 February 2025 as being speculative, hypothetical and
premature would have meant that there is a dispute and it would have been improper for the applicant to launch an application where there is a clear dispute of facts.
[22] I had regard to the submissions made by both parties and conclude that
the real time at which the applicant could launch the proceedings was after 18
February 2025 after the concrete evidence became available. The respondent
already raised a dispute regarding the information at the applicants disposal before 18 February 2025. This is repeated by the respondent who said on 4
March 2025 (which was long after the 18 February 2025) that “The entirety of the
applicant’s case, ex facie the founding affidavit, is based on incorrect facts and
on pure speculation and conjecture. ”
5 It was therefore prudent for the applicant to
5 See para 57 of the First Respondent ’s Answering Affidavit at CL 02- 348.
8
await concrete and persuasive evidence even though open to question or not
necessarily watertight. Proceeding to issue papers 7 days later is not inordinate
and cannot be construed as self -created urgency . It is also clear that no redress
will be obtained if proceedings we re instituted in the normal cause. I conclude
that th is matter deser ves of an audience of the urgent court .
Regulation 6(5)(e) application.
[23] The applicant delivered a supplementary affidavit after its replying affidavit
was already served hence the contents /information therein were not canvassed
in the affidavits before the court . The said information was received by the
applicant on 10 March 2025. The respondent has reacted to the contends of the
supplementary affidavit and it appears that no prejudice has visited the respondent and to this end I granted leave that a further affidavit be delivered and to be considered for the purposes of judgment in this matter. As I found that
the applicant provided satisfactory explanation.
6 In the alternative, same is
admitted in the interest of the administration of justice.7
[24] The applicant has delivered a further supplementary affidavit relating to
further communication received after the first supplementary affidavit and the respondent has not reacted to it except to state that this may o pen a flood gates
of further and more documentation being filed. I agree with the submission by the
respondent and therefore would not accept the second supplementary affidavit to
be considered for the purposes of this matter.
Merits
Applicant’s versions and submissions
[25] The applicant avers that the respondent had by virtue of his position as a
senior employee remained a key employee who had strong relationships with
6 Ndlebe v Budget Insurance Limited 2019 ZAGPJHC 320.
7 James Brown & Hamer (Pty) Ltd v Simmons No 1993(4) SA 65 (A).
9
CG’s clients and technology providers . Further that he became one of the most
skilled technical and support specialists in S outh Africa. The respondent acquired
and retained knowledge in the employ of the applicant since at least 2012 until
date of termination on 31 December 2024. The clients of CG who dealt with the
responden t were customer s of CG even before the sale of shares agreement.
[26] In addition to the email received from FIS on 10 March 2025
8 which lend
credence to the breach based on communication with the applicant’s clients .
Another email was received from Compart , (another company which supplies the
applicant with software) which was copied to s[…] . This email also support s the
conclusion that the respondent is employed by the second respondent . The said
email was copied to MMI , being a client to the applicant. If there was an error the
email should have been forwarded to the respondent’s email address which he
used whilst he was still with the applicant and not the email of the second
respondent created for the respondent .
[27] The applicant argued further that, he has a clear right to enforce
obligations emanating from the restraint of trade clause as he took up
employment or being involved with Opia Tech, a direct competitor of the applicant.
[28] There are no suitable alternative remedies available and it would be
difficult to compute damages once clients are enticed and respond ent may not be
able to satisfy a claim for damages . The applicant re- iterated that restraint in
enforceable throughout the Republic of South Africa as its client s operat e
throughout the Republic. Further that t he restraint is only for a reasonable period
of 12 months . Under the circumstances the applicant is entitled to an order for
specific perfor mance.
[29] The applicant contends further that for as long as the respondent is
employed and or connected with Opia Tech there would be harm being
8 Which was attached the Applicant’s S upplementary Affidavit at CL 02-505.
10
committed which is irreparable alternatively there is also a reasonable
apprehension of harm. The damages suffered would not b e assuaged by a claim
for damages.
Respondent’s version and submissions.
[30] The respondent also provided the background of how the applicant was
formed and agreed in principle with the historical background as mosaicked by
the applicant . He confirmed that he was involved in the birth of the applicant and
that he has been in the employ of the applicant in the capacities as indicated by the applicant.
[31] He stated that his personal matrimonial circumstances and stressful work
environment had an impact on his mental health hence he decided to terminate
his employment with the applicant.
[32] He has a personal relationship with Mr Branson and did contact him after
he learned that FIS would enter into contract with Opia Tech. That
notwithstanding, the latest information at his disposal is that Opia Tech is not yet
in business but was only used by FIS to provide support to its current customers .
He denied any involvement with Opia Tech and since he resigned, he never took
up employment directly or indirectly with any company including Opia Tech . He
has not received any financial benefit or remuneration from Opia Tech or any other competitor of the applicant. To this end there is no breach of the restraint of
trade and there is no reasonable apprehension of harm as alleged by the applicant.
[33] The email address es of s[…] and S[…] referred to by the applicant were
created without his knowledge. Mr Branson conv eyed to hi m that they were
created by him thinking that the respondent would assist him with setting up of the internal technical processes as the respondent has expertise in IT. Even if he
could have been assisting Mr Branson as alleged, he is not employed, or has
interest or received any financ ial or personal reward from Opia Tech.
11
[34] The respondent confirms that he was a director prior to his resignation in
2020 and his subsequent job profile was purely operational and his employment
beyond December 2020 “was to ensure that operations continued in a smooth
fashion …had expertise to give and which the applicant required”.9 Though the
job description was no t amended in his new role certain aspect s of the original
job description no longer applied after the signing of the new contract .10
[35] He was “ responsible for managing the technical team on the suite of CCM
products provided by the applicant. This included sale and presales of CCM solutions, business development, professional services and product
management .”
11 Besides this w as not involved in the negotiations of contracts
with the applicant’s clients which was done by Mr Branson together with Janse
van Vuuren till his resignation.
[36] It would not be correct to contend that the mere access to the applicant’s
systems meant he used the information beyond employment, respondent contends. He had access to the applicant IT infrastructure as a function of his responsibilities to oversee IT operations. Any interactions, so he contended, with customers during his employment and his knowledge of the client is technical
and not confidential or proprietary information belonging to the applicant.
12
[37] He has not contacted any of the applicant’ s clients to solicit business and
that it is not his intention to do so. He has n ever been involved with the
negotiations of contracts with any of the clients of the applicant , including the
main clients, being SBSA, Absa Bank , MMI. He believed that the applicant’s real
gripe is with Mr Br anson with whom the restraint of trade contract has come to an
end. The attempt is now to restrain Mr B ranson through the respondent.
9 See para 88 of the Respondent’s Answering Affidavit at CL02- 354.
10 Id, para 137 at CL 02 -363.
11 Id, para 46 at CL 02- 367.
12 Id at para 158 at CL 02-348.
12
[38] The respondent further states that he is not in possession of the
applicant’s alleged confidential information though he had access to the IT
infrastructure and was not accessing same for personal use. He also had access
to customers in the ordinary course of his duties but did not built relationship
which he could exploit to induce them to move to a competitor.
[39] In any event because of the nature and duration of the contracts with its
main client the respondent would not, so he contends, be able to influence them to leave the applicant. [40] In this regard, he submits, that the requirements of the interdi ct have not
been met as there is n o evidence of breach of the restraint clause and there is no
reasonable apprehension of the harm .
[41] With regard to the enforceability of the restraint the respondent contends
that the restraint is unreasonable and therefore not enforceable. In all his life he
has exclusively sharpened his skills in CCM products and finding work outside
the CCM market would not possible. Other jobs he could find would be low paying jobs from which he would not be able to sustain his living standard and maintain his children. As such enforcing the restraint clause would make hi m
destitute. Therefore, the restraint is contrary to public policy, unreasonable and
unenforceable.
[42] He is not planning on not taking employment in the 12 months as he has
obligations to meet including those he was ordered to comply with in terms of the
decree of divorce. He would enter the market now that he has recovered. The restraint for 12 months would be unreasonable and it is found to be enforceable then 6 months would be reasonable. It would be unfair , so he continued, that the
applicant be entitled to restrict the respondent from working for the whole of the Republic of South Africa.
[43] The respondent further contends that he does not know why FIS sent an
email to him and has never seen the said email until the application was served.
13
Further that it was not the first time that an email was sent to the applicant in
error as they previously sent a renewal invoice email in error to the applicant. He
however noted that the email pertained to the functionality of Adope’s PDF
solution rather than CSF func tionality.
[44] He further states that he does not have any knowledge as to why Compart
may have wanted to send him an emai l. This must have been done in error and it
is likely that Compart i ntended to send the email to me at my erstwhile
Communication Genetics email address . There would be no reason for Compart
to send me the details of a licence that has nothing to do with me or Opia Tech. Put it differently, the licence is of no use to me or Opia Tech.”
13
[45] He accept that he attended the Rocket ’s conference with Mr Branson, (his
personal associates and business associate) to keep up with development and
trends in the industry. He denies any personal or business interest in attending
the conference.
[46] It is noted that the applicant is seeking an order for specific performance
this is within the discretion of the court to grant and he implore s the court to
exercise the discretion against granting the order .
[47] In reply the applicant stated that it is incorrect that Opia Tech has no
customers as this was admitted by FIS which appointed Opia Tech as its new
distributor.
14 Furthermore t he job description clearly state that he is in a senior
management position which is of a strategic nature as it is critical to the success of the company. H e was doing more than just to manage IT infrastructure as set
out in the job description. He negotiated contracts and discussed pricing, renewal
and concluding contracts with clients though may have not signed them.
Legal principles
13 See paras 5 and 6 of the Respondent’s Answering Affidavit at CL 02-521.
14 See para 11 of the Applicant’s Replyi ng affidavit.
14
Restraint of trade.
[48] It is settled in our jurisprudence that in order to protect the proprietary
interests15 of the employer parties may enter into a restraint of trade agreements
restraining the employee from exploiting such interest once he leaves the employment. Protectible interests would ordinarily includes client base, list of
clients and trade secrets.
16
[49] The agreements in the main have two aspects namely, “… a non- compete
clause prohibiting an employee from having an interest in being employed by, or
as, a competitor for a certain period, and a non- solicitation clause, preventing an
employee from taking clients away from the employer.”
17 This would also include
restraining the ex -employee from exploiting the confidential information he had
access to during his employment.
Reasonability of the restraint of trade.
[50] It is also trite that restraint of trade agreement would only be enforceable
provided they are not contrary to public policy
18 or would unreasonably restrict
the ex -employee’s freedom to trade or work.19
[51] The restraint of trade would be unreasonable if it unfairly restrict s the
employee to benefit from his own skills and applicable over an extended
15 This will be proprietary interest of the business, geographical area and period of the restraint.
16 Emlink Pty Ltd and Others v Mathee and Others [2023] JOL 61571 (GJ). See also Micros SA
and 2 others v Kleynhans and 2 Others (074606/2023[2023] ZAGP PHC (01 September 2023),
where it was held that “… the applicants do indeed have protectable interests in the form of
customer connections and confidential information. As was stated by this Court in Experian SA v
Haynes and Sibex Engineering services (Pty) Ltd v Van Wyk , there are two kinds of proprietary
interests that can be protected by a restraint of trade undertaking. The first is ‘the relationship with
customers, potential customers, suppliers and others that go to make up what is compendiously
referred to as the trade connections of the business, being an important aspect of its incorporeal
property known as goodwill. And the second is confidential matter which is useful for the carrying on a business and which could therefore be used by a competitor, if disclosed to him, to gain a
competitive advantage”.
16
17 See Arteflex (Pty) Ltd v Pieters and Ano (2023/024313) [2023] ZAGPPHC (11 April 2023).
18 Magna Alloys & Research Pty Ltd v Ellis 1984 (4) SA 874 at 891, Basson v Chilwan 1993(3)
SA 742 (A) at 767.
19 Basson v Chilwan 1993(3) SA 742 (A) at 767.
15
geographical area. It was held in Seboko20 that the fact that the restraint is
effective throughout the Republic of South Africa is not itself unreasonable. In
Kleynhans21 a restriction throughout SADC region was consider ed not to be
unreasonable.
[52] That notwithstanding, it must still be acknowledged that there is a
disjuncture or tension between the restraint of trade clause and freedom to trade
as set out in section 22 of the C onstitution. In pursuit of the exercise of freedom
of trade in the face of a restraint of trade clause one should not seek to violate
the common law principle of pact sunt servanda in terms of which it is generally
expected that with the principle of sanctity and privity of contact parties would structure their agreement as they prefer and the Court cannot be invited to protect such parties from bad bargains. The Constitutional Court confirmed that this principle is still part of our law and stated that “This c ourt has emphasised
that the principle of pac t sunt servanda gives effect to the “central constitutional
values of freedom and dignity ”. It is further re cognized that in general public
policy requires that contracting parties honour obligations that have been freely
and voluntarily undertaken. Pact sunt servanda is thus not relic of our pre-
constitutional past and that in general public policy required contracting parties to honour obligations that have been freely and voluntarily undertaken”.
22
Specific performance.
[53] It is trite that a party claiming spe cific performance must prove the terms of
the contract , demonstrate hi s own compliance and failure to comply by the other
party and seek the order directing compliance by the other party.
23
20 Tax Consulting South Africa and Ano v Seboko and Another (A2022/055430) 2023 ZAGPJHB
(13 September 2023) .
21 Id n17.
22 Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others
[2020] ZACC 13.
23 LTC Harms, Amlers ’ Precedents of pleadings , 8th edition, LexisNexis, 2015 at 12 6.
16
[54] It is further noted that the court has discretion either to grant the order or
refuse same which shall be exercised judicially .24
Final Interdict
[55] The requirements for final interdict are settled in our jurisprudence and
were clearly delineated more than a century ago in Setlogelo
25. The applicant
has to present evidence of prima facie right; that there is imminent and
irreparable harm and that there is no alternative remedy.
[56] The application is for a final interdict and ‘… such an order can only be
granted in motion proceedings if the facts stated by the respondent together with the admitted facts in the applicant’s affidavits justify the order, and this applies
irrespective of where the onus lies”.
26 It was also stated in Seboko27 at para 12
that
“It is trite that where the material facts are in dispute and there is no
request for the hearing of oral evidence, a final order will only be granted
on notice of motion if the facts as stated by the respondent, together with
the facts alleged by the applicant that are admitted by the respondent,
justify such an order unless, of course, the court is satisfied that the
respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is so far -fetched or so clearly untenable or so
palpably implausible as to warrant its rejection merely on the papers”.
24 Ethekwini Municipality v Cooperative Muratori & Cementisti – CMC di Ra venna Societa
Cooperativa (Case no 181/2022) [2023] ZASCA 95 (12 June 2023).
25 Setlogelo v Setlogelo 1914 AD 221.
26 Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA) at para 4.
27 Tax Consulting South Africa and Ano v Seboko and Another (A2022/055430) 2023 ZAGPJHB
(13 September 2023) . See also Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty)
Ltd 1957 (4) SA 234 (C) at 235, Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd (53/84) [1984] ZASCA 51; 1984 (3) SA 623 (A) at 635C; National Director of Public
Prosecutions v Zuma (573/08) [2009] ZASCA 1; 2009 (2) SA 277 (SCA) at para 26; South African
Reserve Bank v Leathern NO 2021 (5) SA 543 (SCA) at para 24 n 12; Mtolo v Lombard (CCT
269/21) [2021] ZACC 39; 2022 (9) BCLR 1148 (CC) at para 38.
17
[57] It follows therefore that the matter will be decided on the respondent’s
version where the court finds his version plausible and not fictitious.
Analysis
[58] The respondent has categorised his grounds of opposition into three, first,
that the restraint clause has not been breached, secondly, that there are no
protectible interests infringed and thirdly, that the clause is unreasonable and
unenforceable.
[59] The evidence suggest that there was employment relationship between
the respondent and Opia Tech. First, the creation of the email address es
allegedly by Mr Branson lends credence to the allegation that there is
employment relationship and his version that he was not involved in the creation
is untenable and fictitious. The same email address was used by FIS and
Compart after the respondent ha d left the applicant. T he only inference that can
be drawn is that the respondent is employed to Opia Tech. H is explanation that
he does not know why FIS sent the email to him is also far -fetched. It is
understandable that the applicant could not obtain explanation from FIS with whom relations were terminated but Mr Branson was copied and could have told
the respondent, ( as his friend and close business associates ) why his supplier
(FIS) copied respondent in his email as he has also informed the respondent that
FIS had previously sent emails by mistake to the applicant.
28 The receipt of the
email from another client of the applicant , Compart also feed in the narrative of
an employment relationship with Opia Tech (even worse it was copied to MMI) ,
except that the applicant could have inquired from Compart why the respondent was copied. He attended a conference with his business ass ociates and f ound
nothing untoward in providing his friend support.
28 As his friend Branson was able to tell the respondent that Opia Tech has no customers as yet .
He created email addresses as he hoped to get assistance with IT set up. This is implausible and
far-fetched.
18
[60] The respondent has refused to give an y undertaking that he would ab ide
by the clause and rebuffed same . He has in fact conceded that he will breach the
clause29 as he would seek employment as he has personal obligations to
discharge and may not take employment with lower income which will not sustain
his living standard. The above factors support employment relationship and the
denial that the respondent has not benefitted financially is of no moment. Otherwise , they demonstrate that the respondent is connected to Opia Tech and
/or being interested personally or financially in Opia Tech. The responden t furth er
appeared to be nonchalant about the fact that at least two applicant’s customers had the email address c reated for him by his friend and business associate . He
did not find it prudent to instruct the said friend not to distribute email addresses created for him especially to the applicant’s clients . It has been correctly
contended the respondent’s case is replete with factors to justify the inference
that his quiescence should be construed as acquiescence.
30
[61] The contention that there are no protectible interest s is hollow as authority
cited above clearly confirms that the list of client s is also a protectible interest.
The respondent conceded that he had access to the IT infrastructure and had
interactions with customers .31 In addition, customers do call him for support even
though he is not a central call person for all clients.32 It is clear that he was being
preferred by the applicant’s clients . It is also not disputed that he occupied a
senior pos ition and had customer connection .33
[62] In addition to the respondent having acknowledged in the agreement that
he has access to confidential information and client ’s contacts , the fact that he
29 See para 163 of the First Respondent’s Answering Affidavit at CL 02- 368 where he stated that
“I am actively exploring my options, and I will re -enter the technology … when I find a job that
interests me. I can afford to remain unemployed for much longer ”
30 See Applicant’s reference to McWilliam v First Consolidated Holdings (Pty) Ltd 1982 (2) SA 1
(A) where is was affirmed that when a correspondence requires a reply and none is forth coming
an inference can be drawn that an obligation set out therein is accepted.
31 See para 158 of the Respondent’s Answering Affidavit at CL 02-367.
32 See para 144 of the First Respondent’ s Answering Affidavit at CL 02-364.
33 It was held in Rawlins33 that to determine whether customer connection do necessarily
constitute a protectable interest would depend on, inter alia , “… on the duties of the employee,
his personality, frequency and duration of contact between the employee and customer… ”.
19
had access to the IT infrastructu re places him at the centre and had easy access
to the data base, strategies etc. He conceded that
“While I had access to the applicant’s systems in my capacity as Head of
Technical and Operations , this was solely due to my role in managing the
applicant’s IT infrastructure. M y access does not mean I actively
accessed, utilised or retained confidential information beyond what was
required for my responsibilities. Furthermore, whilst I had contact with
customers in the ordinary course of my duties, I have not built relationships with these customers, and I am unable to induce them to move with me to a competitor .”
34
[63] The applicant p laced evidence to demonstrate that the respondent
participated in the drafting of the contracts. His denial is therefore more
improbable and far -fetched. His further contention that his knowledge is limited to
CCM and that the information he acquired disappeared after 2020 is betrayed or
belied by his expertise as set out in his curriculum vitae attached to the
applicant ’s founding affidavit.
35
[64] Lastly the contention that the restraint is unreasonable is unsustainable as
authorities also confirmed that the restrai nts could apply throughout S outh Africa
or even throughout the SADC region. In any event the respondent conceded that
there are opportunities available except that they may not sustain his living
standard. The respondent has received amount of approximately 7 million from
the applicant for the value of the company which was his brain child. It would certainly be a tragedy to have one benefitting from selling his product and be
allowed to compete with the purchaser in the market of the same product. It is
almost like double dipping. This is the central mischief aimed to be arrested by
restraint of trade agreements.
34 See para 54 of the Respondent’s Answering Affidavit at CL 02-347.
35 Marked FA 27.
20
[65] The respondent has further f ailed to demonstrate the basis to contend that
12 months period is excessive. It has been concluded in some cases that 12
months is indeed reasonable.36
[66] The contracts with applicant ’s clients though for a period of a minimum of
12 months do have termination clauses and therefore the contention that such client cannot be wooed elsewhere is without merit . MMI has already received an
email from Compart copied to the respondent who now with a measure of comfort and conviction can just say he does not know why he was copied to an
email which was created for him by his friend and business associate. The
respondent further stated on behalf of Opia Tech that he does not know why the email could be sent to him and Opia Tech as both do not need it.
37 This averment
was said without equivocation by the respondent without confirmat ion from the
Opia Tech whilst denying being employed by Opia Tech.
[67] The version presented by the respondent in resisting the applicant’s case
is implausible and far -fetched. Even if it was to be argued that the disputes he
raised had merits the version he presented support the conclusion which is at
odds with hi s case.
Conclusion
[68] From the aforegoing I am persuaded that the applicant has made out a
persuasive case for the relief sought. The creation email addresses could not
convinc ingly be accounted for. The emails sent after his departure from the
36 The court reduced a period of 2 years to one year in Sadan and Another v Workforce Staffing
(Pty) Ltd (JA38/23 /JA 88/23) ZALAC 17 August 2023) whereas the LAC Court Beedle v Slo- Jo
Innovations Hub (Pty) Ltd (J21/23/JA37/22) [2023] ZALAC (17 August 2023) it was found that a
period of two years is reasonable.
37 See para 5 of the First Respondent’s Supplement ary Affidavit at CL 02 -521 he stated that “I do
not know why Compart sent the applicant ’s Compart licence to the email address s[…]. This must
have been done in error, and it is likely that C ompart intended to send the email to me at my
erstwhile Communication genetics email address. And at para 6 that “There would be no reason
for Compart to send me the details of a licence that has nothing to do with me or Opia Tech. Put
differently, the licence is of no use to me or Opia Tech. ” also at para 9 that “ What I can say is that
neither me nor Opia Tech have or have had any involvement with or affiliation to either MMI or
Compart’s customer base.”
21
applicant cries for a proper explanation and none is provided. The exchange to
his new email address feed into the reasonable inference that the respondent is
with Opia Tec h. The said inference could not be displaced by the respondent.
The communication with the applicant’s supplier and Compart after his departure
could not be persuasively explained. He is determined to enter the market and
would not wait for 12 months or accept any other offer which does not fit his standard of living. He attended conference on behalf of a competitor and would not hesitate to provide support to such a competitor , his business associate. To
this end I find in favour of the appli cant.
Costs
[69] The question of costs is within the discretion of the court. It was held in
Bam
38 that “ [T]he general rule relating to the costs is that costs follow the result.
Re-imbursing a successful party of his or her out of pocket expenses is a settled
principle which brooks no further ventilation.” The applicant has asked for costs
at punitive scale. Ordinarily such order is warranted in exceptional circumstances
where conduct of the litigant attract the wrath of the court. The Constitutional Court held in Mkhatshwa
39 “… that the purposes of punitive costs, being an
extraordinarily rare award, are to minimise the extent to which the successful litigant is out of pocket and to indicate the court’s extreme opprobrium and disapproval of a party’s conduct.”
40 The opposition by the first respondent was
vexatious and frivolous. The costs at punitive scale is justified.
Order
[70] In the premises I make the following order.
1. The application is urgent and non- compliance with the Unfirm Rule of
Court is condoned in terms of Rule 6(12).
2. For a period of 12 months from 1 January 2025 and throughout South
Africa, the first respondent is interdicted and restrained from:
38 Bam v Holtzhausen and Others (2024/097438) [2025] ZAGPPHC (21 February 2025).
39 Mkhatshwa and Others v Mkhatshwa and Others [2021] ZACC 15.
40 Id at para 21.
22
1.1. Directly or indirectly, being employed by, connected with or
interested in, personally or financially , any trade, business, company or
undertaking competitive with any business conducted by the applicant at
the time of the termination of the first respondent’s employment with the
applicant on 31 December 2024.
1.2. directly or indirectly being in the employ , connected with, interested
in, personal ly or financially , the second respondent.
3. The first respondent is ordered to pay the cost of this application on the
attorney and client scale.
M V NOKO
Judge of the High Court
Gauteng Division, Johannesburg
DISCLAMER: This judgment was prepared and authored by Judge Noko and is
handed down electronically by circulation to the Parties /their legal representatives by email and by uploading it to the electronic file of this matter on Case Lines. The date for hand- down is deemed to be 02 March 2025 at 14:00.
Date s:
Hearing: 12 March 2025.
Judgment: 02 April 2025.
Appearances:
For the Applicant : L Hollander , instructed by
Shepstone & Wyli e Attorn eys.
For the First Respondent : N Cassim SC and K Naidoo, instructed by
Lanham -Love Galbraith- Van Reenen Attorneys.