IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
In the matter between:
SO RECRUITMENT (PTY) LTD
Registration number: 2011 /114952/07
and
SIMONE WAGNER
THE COMPLIANCE BUREAU (PTY) LTD
Registration number: 2016/364420/08
IMMPLOY RECRUITMENT AGENCY CC
Registration number: 2009/088597/23
JUDGMENT
PARKER , AJ:
Introduction CASE NO: 20987/2024
Applicant
First Respondent
Second Respondent
Third Respondent
[1 J In this urgent Application issued on 30 September 2024 which was set down
for hearing on 24 October 2024, and postponed to the 13 November 2024, Applicant
seeks an order requiring the First Respondent (Wagner) to comply with her restraint
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obligations for a period of 24 months from the date of this order, alternatively from 13
September 2024. This it contends is in keeping with the provisions of the Employment
Contract (EC) which holds the restraint and confidentiality clauses whilst the Non
disclosure Agreement (NDA) is on its own. Applicant seeks to enforce the
confidentiality undertakings made by Wagner.
[2] All three Respondents opposed the application . The Second and Third
Respondents are cited as they may have an interest in the outcome of the matter.
Although not cited as a party, Applicant mentions Solutions for Africa (Pty) Ltd
(hereinafter referred to as "Solutions") in the founding affidavit. A Mr Tian Liebenberg
deposed to a confirmatory affidavit on behalf of Second and Third Respondents as
well as Solutions in his capacity as Chief Executive Officer with Solutions. He
exercises control over all the companies within the group controlling the Second
Respondent and the Third Respondent.
The Applicant
[3] The Applicant carries on business where it provides innovative medical
recruitment solutions to more than one industry including the hospitality industry. Its
main focus is to provide innovative medical recruitment solutions to the public and
private health sectors throughout South Africa.
[4] It professes to have an established track record in professional medical
recruitment by delivering quality medical recruitment solutions to help clients fulfil their
recruitment needs and reduce the cost and time to recruit. According to Applicant, the
medical recruitment industry in South Africa is a niche market and very small.
3
[5] Relative to this matter, the services it renders are by providing contract locum
staffing and the bulk of its medical recruitment relates to the public sector. In efforts to
secure work in the public sector, the Applicant has to tender and/or respond to
requests for quotations and in this regard it alleges that its margins, are of critical
importance, and thereby a trade secret. Secondly, in the private sector, the Applicant
contends it had built up a relationship with clients over years and as such its customer
connections are of critical importance to it.
Issues for determination
[6] The issues are whether:
6.1 The matter is {a) urgent (b) the Applicant would not be able to seek
substantial redress in the ordinary course; (c) the Applicant did not
delay in bringing its application;
6.2 The validity of the restraint of trade agreement;
6.3 The Applicant was entitled to enforce the confidentiality and restraint of
trade undertakings because the First Respondent has breached her
confidentiality and restraint undertakings;
6.4 The Applicant has established the existence of a protectable interest. if
it is found that the restraint is applicable;
6.5 The Respondents have harmed or prejudiced that interest;
Employment
[7] It is common cause that Wagner was employed as the Applicant's Tender
Administrator since 28 July 2023. Her primary responsibility was for sourcing new
business through tenders and compliance processes. Her last day of employment with
the Applicant was 13 September 2024.
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[8] It was argued by the Applicant that Wagner has intimate knowledge of the
information used by the Applicant in tendering. More specifically, she knows exactly
the margins Applicant is using and this knowledge she will be able to use to the benefit
of a competitor of the Applicant -and to the detriment of the Applicant.
The restraint of trade clauses
[9] The relevant clauses of restraint of trade agreement are as following:
"2. RESTRAINT
2.2 It is recorded that:
2.2. 1 the Employee has been employed by the Company and will continue to be so
employed for an indefinite period; and
2.2.2 in the course offulfilling his duties to the Company, the Employee:
a. Has become and will continue to become intimately concerned with
the business and affairs of the Company; and/or
b. Has had and will continue to have access to the Company's trade
secrets; and/or
c. Has acquired and will continue to acquire considerable knowledge and
know-how relating to the Company and its business matters.
2.3 The Employee acknowledges that if he is not restricted from competing with the
Company as provided for herein, the Company will potentially suffer considerable
economic prejudice including loss of custom and goodwill. The Employee further
acknowledges that it is essential for the Company to protect its interests. As such, the
Employee agrees to restraint of trade undertakings which preclude the Employee from
carrying on certain activities that would be harmful to the Company's interests.
2.4 The Employee undertakes and warrants in favour of the Company and its successors
in-title or assigns that, for as long as he is employed by the Company and for a period
of 24 months from the terminate date ('the restraint periodJ, he will not anywhere in the
prescribed area, whether directly or indirectly:
2.4.1 Render, or attempt to render, any prescribed services to or for the benefit of
any prescribed Client; 5
2.4.2 Solicit, interfere with, entice or othe,wise attempt to draw away from the
Company any prescribed Client;
2.4.3 Solicit, interfere with, entice or otherwise attempt to draw away from the
Company any prescribed staff.
2. 5 The Employee further undertakes and warrants in favour of the Company and its
successors-in-title or assigns that, for the restraint period, he will not anywhere in the
prescribed area be directly or indirectly interested, engaged, concerned, associated
with or employed whether as proprietor, partner, director, shareholder, employee,
consultant, contractor, financier, principal, agent, representative, assistant, adviser,
administrator or otherwise and whether for reward or not in any company, firm,
business undertaking, concern or other association of any nature which furnishes or
renders, directly or indirectly, any form of prescribed services.
2.6 The Employee acknowledges that:
2.6.1 The restraints imposed upon him in terms hereof are fair and reasonable as to
the subject matter, area and duration and are reasonably necessary to protect
the proprietary interests of the Company, to maintain the goodwill of the
Company, and are within the context of the benefits to be derived by the
Employee under this agreement;
2.6.2 The provisions hereof shall be construed as imposing a separate and an
independent restrain, severable from the rest of them, in respect of:
a. Each month of the periods referred to;
b. Every locality falling within the prescribed area;
c. The categories and identities of persons falling within the definition of
prescribed Client;
d. The categories of and specific services falling within the definition of
prescribed services;
e. The categories and identities of persons failing within the definition of
prescribed staff.
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2. 7 The Employee acknowledges and agrees that the restraints contained in this clause
are stipulations for the benefit of the Company, of whom any authorized person shall
be entitled to elect whether to exercise its rights hereunder or not. It is specmca/ly noted
that a decision not to act on such entitlement shall not alter the Company's right to do
so at a later stage."
The Non-Disclosure Agreement
[10] Under the rubric of confidentiality, the restraint agreement provides as follows:
"1. CONFIDENTIALITY
1. 1 The Individual acknowledges that in the course of their work with and/or for the
Company , the Individual will be exposed to valuable confidential and/or trade secret
information of the Company. The Individual agrees to treat all such information as
confidential and to take all necessary precautions against the disclosure of such
information to third parties during and after the term of this Agreement.
1.2 The Individual acknowledges that trade secrets of the Company will consist of, but will
not be necessarily limited to:
1.2.1 Technical information: Methods, processes , formulas, compositions , systems,
techniques, inventions , machines, computer programs and research projects,
1.2.2 Business information: Customer lists, pricing data, sources of supply, financial
data and marketing production, or merchandising systems or plans, client
database.
1.3 The individual understands that this Agreement does not and will not prevent them from
working for any other entity subsequent to the termination of their contract with the
Company , but only prohibits the individual from using or disclosing any of the
Company's confidential and/or trade secret information."
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1.4 The lndMdual agrees that if they commit a breach of any of the provisions of this
Agreement, the Company shall have the right to enforce this Agreement in any court
having equity jurisdiction. The Individual acknowledges and agrees that any such
breach of this Agreement will cause irreparable injury to the Company and that
monetary damages will not provide an adequate remedy to the Company. In addition,
the Company shall have any other rights and remedies available at law or in equity.
1.5 The Individual agrees to pay liquidated damages in the amount of R100 000.00
for any violation of the covenant not to disclose confldentlal and/or trade secret
information , whether contained in this Agreement or any other agreement with
the Company.
(my emphasis)
A PROTECTABLE INTEREST
[11] It is argued that Wagner, in the course of her employment with the Applicant
had substantial ongoing exposure to highly confidential information pertaining to the
Applicant's business, including the costing, the candidate database, client information,
and the margins which is acknowledged by Wagner.
[12] Therefore the Applicant argues, based on the protectable interest, it has a clear
right to protect its proprietary interests especially in respect of the margins which
knowledge she would be able to undermine the Applicant when she submits tenders
in competition with it. It obtained the restraint undertakings from the First Respondent
so as to protect it from the unpoliceable danger of her using or communicating its trade
secrets and confidential business information to a competitor in breach of the restraint
agreement, as she is currently providing her services to a company in control of a
direct competitor.
[13] The competitiveness of the industry and the nature of the confidential
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information concerning the Applicant's business to which the First Respondent was
exposed to, are the reasons why the Applicant secured the undertakings contained in
the restraint agreement from her.
[14] In addressing the alternative remedy available to Applicant, in so far as the
penalty provisions contained in clause 1.5 are concemed, even if Applicant was able
to quantify its damages flowing from the breach of the restraint, there are no realistic
prospects that the First Respondent would have the means to satisfy a damages claim.
The Respondents
[15] First Respondent acknowledges and reaffirms her commitments under Clause
15.3.1 (Employment Agreement) and Clause 1.3 (NOA) to maintain confidentiality and
protect the company's trade secrets and confidential information, which is expressed
in a detailed letter addressed to Applicants Attorneys dated 26th September 2024.
Wagner says she has never breached, and commits to never breaching, the
confidentiality undertakings, past, present, or future. Regarding the operation of the
'prescribed area' the restraint of trade clause excessively restricts Wagner's
employment opportunities, covering the entire Republic of South Africa, which she
believes is unconstitutional. There is no clear justification or legitimate interest to
warrant such a broad restraint, rendering it unreasonable and overly restrictive.
Furthermore, the 'prescribed client' pertains to her position as Compliance Manager
employed by The Compliance Bureau. The (TCB) prescribed services' pertain to her
current role in the Audit Department, which is distinct from her previous responsibilities
with Applicant.
[16] The thrust of the argument by Wagner is that the restraint of trade clauses lacks:
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16.1 Reasonableness: The clause must be reasonable in terms of duration,
geographical scope, and restricted activities.
16.2 Protectable Interest: Employers must demonstrate a legitimate
protectable interest to justify the restraint.
16.3 Constitutional Compliance: These clauses must comply with the South
African Constitution, specifically section 22. which protects the right to
choose a trade, occupation, or profession freely.
16.4 Balancing Interests: Courts balance the public interest in enforcing
agreements against the societal benefit of allowing individuals the
freedom to trade and pursue profession.
[17] Wagner concedes her exposure to confidential affairs of the Applicant however,
does not justify the overly broad restraint of trade, which disproportionately restricts
her future employment opportunities.
[18] The restraint of trade is unreasonable and the constitutionality of the restraint,
particularly considering that geographical scope (entire Republic of South Africa), lack
of clear protectable interests and the unbalanced restriction on her right to choose
her profession.
[19] Regarding the alleged theft of confidential information, Wagner denied any
wrongdoing, as there is no evidence that she stole or misused any confidential
information, including client lists, contact details, or financial information, nor has she
unauthorizedly taken or shared confidential information. Furthermore, Applicant has
failed to make out a case of what the confidentiality nature of the information is that
was breached. Alternatively, she contends that the Applicant has not disclosed the
information in its founding papers, and to the extent that any confidentiality that may
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have existed has been eroded is now post the application , in the public domain, since
Applicant did not seek protection when it shared the confidential matter as it simply
proceeded to identify and disclose the nature of the confidential information in its
papers.
[20] Of critical importance is, even if Applicant could establish a contravention of the
breach of the confidentiality clause the Applicant is met with a hurdle -the parties
have agreed that the damages Applicant may suffer, is limited to an amount of R100
000,00. This means Applicant has to establish that in fact Wagner breached the
confidentiality clauses of the employment agreement and if it can do that, claim R100
000,00 from her. Applicant has therefore essentially waived the right to obtain an
interdict as it has circumscribed its harm in the form of agreed damages.
Urgency
[21] It is common cause that the NOA and EC exists and that Wagner was exposed
to highly confidential information. However, Wagner contends that the inappropriate
route of urgency was followed in circumstances that does not render it urgent because
of the provisions of a penalty clause in the restraint of trade agreement which therefore
limits the agreed R100 000 liquidated damages in the event there is a violation of the
covenant not to disclose confidential information and/ or trade secret information.
Therefore, Wagner argues, Applicant have limited that harm; they have identified what
it will cost and therefore the Applicant's remedy lies elsewhere. Applicant should
institute proceedings for the sum of R100 000.00 if they believe that she has breached
the restraint, and as such they have alternative remedies to obtain substantial redress
in due course.
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[22] On the contrary Applicant argues that by virtue of the competitiveness of the
industry in which it operates, the Applicant had no alternative way to protect itself and
its proprietary interest against unlawful competition. According to Applicant it learnt
on 16 September 2024 that Wagner took up employment with Second Respondent
who is a company closely associated with a direct competitor of the Applicant, namely
the Third Respondent. On 19 September 2024 Applicant's attorneys addressed a letter
of demand to Wagner. This was met with opposition by First Respondent attorneys in
a correspondence dated 26 September 2024 denying impropriety. The application
was issued four days later and was set down for three weeks from the date it knew of
Wagner's employment.
[23] Wagner argues that Applicant has not explained the delay since the date it
bore knowledge of her new employment. Her further reasons as to why the matter is
not urgent is that Applicant has not shown that she is employed by a direct competitor,
it has failed to join her current employer (TCB) or Solutions which Applicant identified
as the true competitor. In the absence of such prime facie evidence that Wagner have
contravened the restraint, the application is not urgent.
[24] Regarding the non-soliciting -there is no evidence that she has contacted any
of Applicant's clients.
[25] In respect of the breach of confidentiality , in terms of clause 7 of the NDA
Wagner, agreed to the indemnification for any contravention of the confidentiality
clause to a maximum of a R100 000, 00 which indemnification constitutes substantial
redress. Applicant has decided to agree and limit its claim for a contravention of the
confidentiality clause to this amount. There is no need for relief on an urgent basis to
enforce the alleged contravention of the non-disclosure agreement.
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[26] According to clause 2.1 .2 of the restraint clause in the employment agreement,
it is only effective against her if she should be employed by a client of Applicant. TCB
has never been a client of Applicant. Applicant has not established that she has even
attempted to commit the conduct listed in clauses 2.4.1 -2.4.3 of the employment
agreement. These clauses prohibit Wagner from rendering services, solicit Applicant's
clients or attempt to draw away Applicant's staff. In terms of clause 2.5 of the
employment agreement Applicant has not shown that Wagner is currently employed
in a position that is direct or even indirectly in competition with Applicant's business.
Lastly, in respect of the confidential information, Applicant has failed to make out a
case that she has used or disclosed any of Applicant's confidential and/or trade
information. In any event Wagner denies that there is anything confidential and/or
secret or unique about Applicant's business, whether it is technical or business
information. Even if there was, Applicant has disclosed such information with the
launching of the application and in so doing no confidentiality attaches to the
information as it is now in the public domain.
Vendetta
(27] Wagner states, the motivation forthe application lies in a personal vendetta and
it seems to be driven by Applicant's broader belief that Solutions or the
shareholder of the company harbours a personal vendetta against Applicant,
particularly due to past conflicts involving the CEO of Applicant. Mr Moosa for
Applicant, acknowledged to Wagner at her exit interview that Applicant does
not typically enforce the restraint of trade clause unless circumstances warrant
it, and the primary concern in this instance is the competitor's targeting of
Applicant, rather than any misconduct on her part. To her this suggests that
Applicant's focus is less on Wagner's actions and more on an adversarial
relationship with the competitor.
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[28) Applicant has not provided substantive grounds for doing so. It is not sufficient
to act based on extraneous motivations, such as a belief in a vendetta or personal
conflict with a competitor. The law requires that the party seeking enforcement
demonstrate a legitimate basis, showing that she has in fact contravened or is likely
to contravene the relevant contractual terms. Without evidence of an actual or
imminent breach of confidentiality or restraint, she argued that the court cannot be
expected to grant relief simply to address broader business or personal concerns.
Judicial intervention must be based on genuine and justifiable concerns, not merely
speculative fears or ulterior motivations.
Unreasonableness
[29] Wagner states in her opposing affidavit that, her new role at TCB is vastly
different from the work she performed at Applicant. Her current position focuses on
governance, risk, and compliance, which does not overlap with the core business or
operations of Applicant and is distinct from the type of business Applicant conducts.
[30] The nature of her responsibilities at TCB is removed from any sensitive
information she may have had access to during Wagner's time at Applicant. TCB's
focus on helping businesses enhance efficiency through sound governance
frameworks does not directly compete with Applicant's services.
[31] Given the significant divergence in the nature of her role, the enforcement of
the restraint would not serve any justifiable purpose and would merely act as an
unwarranted limitation on her ability to exercise her constitutional right to choose a
trade or profession under section 22. Thus, enforcing the restraint in this context would
be contrary to public policy and should not be upheld.
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Evaluation
[32] As a general rule, agreements in restraint of trade are generally enforceable,
unless they are unreasonable or unlawful and against public policy. It must also be
borne in mind that courts should always give effect to contracts entered into freely.
That is an established principle of our law of contract. It creates certainty in the
commercial world. However, every person should, as far as possible, be able to
operate freely in the commercial and professional world. The Respondents in this
matter therefore bear the onus of showing that the restraint of trade clause is
unreasonable, unenforceable and/or contrary to public policy.
[33] Ordinarily a restraint will be unenforceable if it does not protect a trade
connection and/or confidential information to which the ex-employee was exposed.
What the Applicant needs to show is that there is confidential information to which the
employee had access to and which she could transmit, if so inclined. It is not necessary
to show that the employee has in fact used information confidential to the Applicant.1
[34} Generally, a party seeking to enforce a contract in restraint of trade need only
invoke the contract and prove a breach of its terms. A Respondent who seeks to avoid
the restraint then bears an onus to demonstrate , on a balance of probabilities, that the
restraint agreement is unenforceable, because it is unreasonable.2 In Sasson 3 the
Court set out the criteria for reasonableness.
1 Oen Braven SA (Pty) Ltd v Pillay & Another 2008 (6) SA 229(0) This judgment was dealt with in Mozart Ice
Cream Franchises {Pty) Ltd v Davidoff and Another 2009(3) SA 78(C) 83D-858
2 Sasson v Chilwan & Others 1993 (3) SA 742 (A)
3 (i) Is there an interest of the one party deserving of protection at termination of the agreement?
(ii) Is such interest being prejudiced by the other party?
(iii) If so, does such interest so weigh up qualitatively and quantitively against the interest of the latter that
the latter should not be economically inactive and unproductive?
(iv) Is there any other facet of public policy having nothing to do with the relationship between the parties,
but which requires that the restraint should either be maintained or rejected.
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[35] The proprietary interest that can legitimately be protected by a restraint
generally speaking has been held to fall into two categories. The first is
confidential information and the second is the relationship with customers whilst
in the employ of Applicant.4 This is not denied by Wagner.
[36] Turning to case law Magna Alloys and Research (SA) (Pty) Ltd v Ellis5 stated
the position in our law with regard to agreements in restraint of trade, and the principles
enunciated therein have been applied in a long line of cases as succinctly captured in
the Headnote as follows:
"The position in our law is that each agreement should be examined with regard to its
own circumstances to ascertain whether the enforcement of the agreement would be
contrary to public policy, in which case it would be unenforceable . Although public
policy requires that agreements freely entered into should be honoured, it at so
requires, generally, that everyone should be free to seek fulfilment in the business and
professional world. An unreasonable restriction of a person's freedom of trade would
probably also be contrary to public policy, should it be enforced.
Acceptance of public policy as the criterion means that, when a party alleges that he
is not bound by a restrictive condition to which he had agreed, he bears the onus of
proving that the enforcement of the condition would be contrary to public policy. The
Court would have to have regard to the circumstances obtaining at the time when it is
asked to enforce the restriction. "
[37] The principles set out in Magna Alloys were comprehensively re-stated in Sibex
Engineering Services (Pty) Ltd v Van Wyk and Another6
"A contractual restraint curtailing the freedom of a former employee to do the work for
which he is qualified will be held to be unreasonable, contrary to the public interest and
4 Prinsloo and van Niekerk Labour Court Manuel 39 -40
5 1984(4) SA 874 {A)
6 1991 (2) SA 482 (T) at 502 J -503 B
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therefore unenforceable on grounds of public policy if the ex-employee (the
covenantor) proves that at the time enforcement is sought, the restraint is directed
solely to the restriction of fair competition with the ex-employer (the covenantee ); and
that the restraint is not at that time reasonably necessary for the legitimate protection
of the covenantee 's protect able proprietary interests, being his goodwill in the form of
trade connection, and his trade secrets. If it appears that such a protectable interest
then exists and that the restraint is in terms wider than is then reasonably necessary
for the protection thereof, the Court may enforce any part of the restraint that
nevertheless appears to remain reasonably necessary for that purpose."
[38] With regard to protectable interests, the court in Sibex Engineering7 defined
proprietary interests, in the context of a protectable interest consisted of the relationships
with customers, potential customers, suppliers and others that go to make up what is
compendiously referred to as the "trade connection" of the business, being an important
aspect of its incorporeal property known as goodwill. "The second kind consisted of all
confidential matter which is useful for the carrying on of the business and which could therefore
be used by a competitor, if disclosed to him, to gain a relative competitive advantage. Such
confidential material is sometimes compendious/y referred to as 'trade secrets".
[39] In looking at protectable interests, Nestadt JA in Rawlins and Another v
Caravantruck (Pty) Ltd [1992] ZASCA 204; 1993 (1} SA 537 (A), at 541 C-H remarked
that:
"The need of an employer to protect his trade connections arises where the employee
has access to customers and is in a position to build up a particular relationsh ip with
the customers so that when he leaves the employer's service he could easily induce
the customers to follow him to a new business (Joubert General Principles of the Law
of Contract at 149).".
7 Ibid at 502 D-E
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[40] In the present matter, Wagner acknowledge that she voluntarily entered into the
employment contract containing the restraint of trade clause. Apart from asserting
that the restraint of trade clause cannot be enforced because of her right to practice
her trade and earn a living would be negatively impacted as it would severely prejudice
her freedom to be gainfully employed.
Constitutional rights
[41] Wagner's career is negatively impacted if the restraint of trade is operational
against her as it indicates a stifling of competition albeit that according to her, her
current employer is not a competitor. Limiting her occupation opportunities under
these circumstances cannot be justified. The methodology mandated bys 39(2) of
the Constitution must be implemented whenever a dispute about the validity of a
restraint of trade agreement is before Court. 8 With regard to freedom to choose a
trade, a restraint of trade clause being a contractual term is subject to constitutional
rights. Courts will invalidate and refuse to enforce agreements that are contrary to
public policy. Section 22 of the Republic of South Africa Constitution Act, 1996
provides:-
Conclusion "Every citizen has the right to choose their trade, occupation or profession freely. The
practice of a trade, occupation or profession may be regulated by law.
[42] The test for a final interdict is trite. An Applicant must establish a clear right, a
reasonable apprehension of immediate harm if the relief sought is not granted, and a
lack of a suitable alternate remedy. Whilst it is so that applications of restraint are
invariably urgent by their very nature.9 However, because of the prevailing penalty
clause, the application has a hurdle. In any event the argument of the prescribed area
8 Supra Mozart Ice Cream franchises (Pty) Ltd v Davidoff and Another 85G-H
9 Supra Prinsloo Manual 38
\ 18
as being overly broad and restrictive in applying to the whole of RSA with no clear
justification or legitimate interest to warrant its application. Nothing turns on the time
period occasioned by the delay in bringing the application earlier as Applicant
explained the delay. However, the application fails on the issue of obtaining substantial
redress in due course because of the penalty provision in the agreement.
[43] To sum up, firstly on the law and on the facts Wagner is working for a different
company in a different position as a general manager in Compliance. She is not
working for a competitor. The entire application is premised that Wagner used to do
tenders and she will come and do tenders now and then she will disclose the margins
and what profit Applicant made. Furthermore, her denial that the Applicant's business
was particularly innovative averring there is nothing innovative about canvassing
medical personnel to register on databases. Moreover, she denied that the "medical
recruitment industry in South Africa is a "niche market and very small" and states that
"it is in fact a very vibrant market and falls under the general umbrella of recruitment.
Almost all companies that focus on recruitment would be able to supply staff to medical
facilities. While I understand that there are certain nuances that are particular to
recruiting medical staff, there is nothing unique or sophisticated about it."
[44] Secondly, the damages that Applicant may suffer is limited to a sum of R100
000.00 and therefore its remedy lies elsewhere. Thirdly, Applicant has failed to
establish a breach of the confidentiality clause. Lastly the relief sought in terms of
prayer 2.2 of the Notice of Motion against Solutions cannot stand as Solutions was not
joined as a party. In the result Applicant has failed to make out a case for the relief it
seeks.
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Costs
[45] There are no reasons for the costs not to follow the result. Save for the wasted
costs of 24 October 2024, which was occasioned by the First Respondent, who did
not adhere to the time frames of the Notice of Motion to file her answering affidavit.
Neither was any condonation sought for the late filing of the answering affidavit to
adhere to the chosen dates and times 10. Such costs are therefore awarded against
the First Respondent on scale B.
Order
(46] Having heard counsel it is ordered
1) The application is dismissed;
2) The applicant is liable for the legal costs on a party and party scale;
3) First Respondent is liable for the wasted costs of the postponement to
24 October 2024, on scale B.
Appearances
Counsel for Applicant:
Instructed by:
Counsel for Respondents:
Instructed by: Ms Acting Justice of the High Co rt
Western Cape Divjs ion
Adv Marten Daling
Le Roux Sampson Inc. t/a S L Law
Adv Adrian Montzinger
E Rowan Inc.
10 Mamahule Traditional Authority v Mabyane & Others (2449/2021) [2021) ZALMPPHC 19 (14 May 2021)
Date of Hearing:
Date of J udgment: 13 November 2024
29 January 2025
This judgment was handed down electronically by circulation to the parties'
representatives by email. 20