IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
In the matter between:
TECHNOSERVE MEDIUM VOLTAGE (PTY) LTD
and
TECHNICAL RETICULATION SERVICES (PTY) LTD
JOHAN PETZER
THOMAS LOUW DE WET
DAVID EDWARD STOUT
JOHANNES FREDERICK VISSER
CARL BOTHA
FISTON KONGOLO Reportable
Case number: 20127/23
Applicant
First Respondent
Second Respondent
Third Responde nt
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
HERMANUS GROENEWALD
JOHANNES VAN BRAKEL
RANDALL WILLIAMS
TREVOR DE BRUIN
Heard
Delivered 23, 30 August 2024 and 13 September 2024
15 April 2025
JUDGMENT
SIDAKIAJ
Introduction 2
Eighth Respondent
Ninth Respondent
Tenth Respondent
Eleventh Respondent
[1] The applicant launched an urgent application on 10 November 2023 seeking
the following relief:
'(1) That the applicant's non-compliance with the Rules relating to forms, time periods and
service be condoned and permitting this application to be brought by way of urgency in
terms of Rule 6(12)(a).
(2) That a rule nisi be issued calling upon the respondents to show cause on Wednesday the
(;lh of December 2023 why an order in the following terms should not be made final:
(2. 1) That the respondents are interdicted and restrained for a period of eighteen months,
from 16 October 2023 and ending on 16April 2025, from:
(2.1.1) Soliciting any existing or previous client of the applicant for the purposes of
conducting or providing any Medium Voltage installations, services or
business operations ;
3
(2. 1.2) Soliciting or employing any existing employee of the applicant for the purposes
of conducting or providing any Medium Voltage installations , seNices or
business operations;
(2.1.3) Utilising the applicant's confidential information (which includes the applicant's
safety file accreditation , identity as a safety accredited entity, trade secrets,
prices, pricing structures , customer lists and customer contact information) in
any manner whatsoever;
(2. 1.4) Providing any Medium Voltage installation, service or maintenance services
as an in-house service, utilising its own employees or those of its related
subsidiary or holding company entities; and
(2. 1. 5) Interfering with the applicant's business operations in any manner whatsoever.
(2.2) That the respondents are ordered to pay, jointly and severally, the costs of this
application including the costs of two counsel, the one paying the other to be
absolved.
(2.3) Furlher and/or alternative relief.
(3) That pending the return date the rule nisi and Orders contained in paragraph 2 and its
subparagraphs inclusive shall act as an interim interdict and order.
(4) That the applicant shall institute an action ("the action'; within thirty days of the granting of
the rule nisi for orders against the respondents , which may include prayers extending the
operation of the interim interdictory relief for an appropriate period of time, and/or for
damages .
(5) That the action shall proceed in accordance with an expedited timetable to be agreed
between the parlies at the hearing of this application , and failing such agreement in
accordance with a directive from the court.
(6) That the respondents shall pay the costs of this application , jointly and severally, the one
paying the other to be absolved, and that such costs include the costs of two counsel.
(7) Furlher and/or alternative relief.'
4
[2] The application was set down for hearing on 21 November 2023, and the
respondents were afforded until 17 November 2023 to file answering papers. The
respondents opposed the application and filed answering affidavits in which, inter alia,
they contested urgency. By agreement between the parties, the matter was postponed
to 6 December 2023 for hearing. On that date, the parties agreed to an order
postponing the hearing to 8 May 2024, and provided a timetable for the first and
second respondents to produce WhatsApp messages referred to in the answering
papers.
[3] On the hearing date, the parties again agreed to postpone the matter to 23
August 2024, and to permit the exchange of further pleadings :
a) On 23 May 2024, the applicant filed a supplemen tary replying affidavit;
b) On 14 June 2024, the respondents filed a response thereto.
[4] This swelled the pleadings bundle to some 947 pages.
[5] Oral argument was heard over a period of three days, on 23, 30 August and
13 September 2024.
Background
The parties
[6] The applicant, Technoserve Medium Voltage (PTY) LTD) ("Technoserve ")
carries on business as an electrical engineering firm specialising in installation and
maintenanc e services for medium voltage industrial electrical equipment and systems.
[7] The first respondent, Technical Reticulation Services (PTY) LTD ("TRS"), was
previously known as Technosales Boland (Pty) Ltd (Technosales ). In 2020, it and
Technoserve changed the composition of their shareholders in the course of a division
5
of the Technoserve Group of companies, which had until then specialised in providing
various services in the electrical engineering industry.
[8] The division of the Technoserve Group was underpinned by a share-swap
agreement between three individuals: one Mr Veldhuizen, Mr R Botha and the second
respondent, Mr Petzer. As a consequence of the division on 26 May 2023,
Technosales changed its name to TRS and became a company specialising in sales
of industrial electrical equipment and systems. Mr Petzer was its director and
shareholder . On the other hand, Technoserve became a company providing
installation and maintenance services for industrial electrical equipment and systems.
It was controlled by Mr R Botha and Mr Veldhuizen.
[9] The third to eleventh respondents are persons who were previously associated
with Technoserve either as its directors, shareholders or employees.
Factual matrix
[1 O] During September 2020, Messrs Petzer, Veldhuizen and R Botha concluded
what they termed a 'gentlemen's agreement', including a so-called 'non-compete
agreement', which was due to expire on 8 September 2023. This formed a part of the
share swap agreement which divided the Technoserve Group. The non-compete
agreement included the following clauses:
'f)
i). For a period of 3 years, the group Technoserve Electrical and Electronic Engineering
and Technoserve MV will not establish new businesses that will compete with
Technosales , Ned!og and Sa/lab.
ii) The reverse of (i) will also apply.
6
g) The respective businesses will not remove staff from each other for a period of 3 years.
During this 3-year period if an employee resigns from one group, the other group will not
employ him/her for 6 months. '1
[11] In the founding affidavit, Mr R Botha stated that there was, generally, apparent
compliance with the terms of the non-compete agreement , in that the companies
worked independently, albeit that they subcontracted work between each other.
Technoserve , however, first picked up signs of what it considered to be non­
compliance only after the expiry of the non-compete agreement. This was when a
number of Technoserve's employees , described as its 'entire operational team',
suddenly resigned en masse:
a) Mr Kongolo, Mr Groenewald and Mr De Bruin tendered their respective letters of
resignation on 18 September 2023, stipulating 16 October 2023 to be their last
working day;
b) Mr Van Brake! gave notice of retirement on 18 September 2023;
c) Mr Williams tendered his resignation letter on 15 September 2023, stipulating his
last working day to be 31 October 2023; and
d) Mr C Botha gave notice of his intention to retire on 12 September 2023, stipulating
his last working day to be 31 October 2023, but left employment on 16 October
2023.
[12) Faced with this situation, Technoserve inspected these employees' company­
issued cellular phones and recovered from the SIM cards a mass of data messages
which it transcribed and provided as part of the record. An additional tranche of
transcribed WhatsApp messages was introduced into the record during discovery , as
indicated above. I deal with a synopsis of these messages .
1 The written agreement was concluded in the Afrikaans language. This English translation is provided
and accepted by the parties.
7
WhatsApp messages
[13] Mr Petzer stated that he created a WhatsApp group, named 'Technosales MV
groupie', in about May 2022. Its members included employees of the applicant, 'due to
the fact that the applicant did approximately 90% of Technosales subcontracting work'. Mr
Petzer explained that, 'As Technosales are the responsible party to the client I needed to
communicate efficiently with my subcontractor (especially the employees of the applicant
doing the work), on jobs for obvious reasons. Before that we would just call and message each
other individually' ... 'The participants on the group were the team leaders of the applicant,
Visser their manager and me' . . . 'During April 2023, I started a new WhatsApp group, with
the same purpose in mind as explained above. Originally, only Carl Brakkies and Visser was
on the group with me. Harry and Trevor joiner in August 2023 and Fiston and Randall in
September 2023'. (sic)
[14] On 14 April 2023, Mr Petzer posted a message which read as follows:
'No pressure, but we need to alient (sic) and plan by the time I get back
We also need a name for the new venture
Start putting on the thinking caps.'
[15] Mr de Wet proposed 'RECtech' as the company name and Mr Visser sent a
proposed logo for the company.
[16] It's common cause that the new WhatsApp group, formed in April 2023, was
named 'TRS'.
[17] On 18 April 2023, Mr Visser wrote, 'Johan Venter se ju/le gaan hom nou direk
kwoteer vir maintenance' and Technoserve's deponent (Mr R Botha)
suggested that this meant that Mr C Botha was working on a direct TRS
quotation for the mentioned maintenance work.
[18] In the period between 25 and 28 April 2023, the group held further discussions
regarding a new company name, which included the following:
8
a) Mr van Brake! proposed 'MV -Tech' and Mr Petzer proposed 'Medium Voltage
Technical Services'.
b) Mr Stout wrote, 'My feeling is that there should be no reference to TS or Tech in
anyway. There must be no way that the customers can think that the new company is
associated with technoserve' .
c) Mr van Brakel wrote, 'gebruik die naam Medium of High Voltage Technical Services
voluit, MVTS of HVTS is maar net n afkorling'.
d) Mr Petzer wrote, 'Specialised technical services' ... 'the reason is that we should not
only focus on MV work and spread our wings'.
[19) There were further discussions concerning a meeting which was to be held by
those in the WhatsApp group. That meeting took place on 29 May 2023. Following the
meeting, Mr Petzer sent several messages . One read, '@ technical rs'. Mr R Botha
interpreted this to be a suggestion for a company e-mail domain name.
[20] On 26 June 2023, Mr Petzer shared what seemed to be a weekly itinerary for
a job to be performed between 30 June and 8 September 2023. He wrote, 'Alles sal so
week 12 klaar wees onhou altyd 1 week vir oplaai met jou beplaning na manufacturing ons
het n tight schedule' .
(21) On 27 June 2023, Mr Petzer wrote, 'Ordering the KIA 2500 now for us and we can
discuss other vehicles and tools on Thursday' ... 'pushing the buy button now'. Mr C Botha
responded, 'Mooi Mnr Petzer ... die begin', to which Mr Petzer responded , 'The beginning
has just begun'.
[22) On 13 July 2023, Mr Petzer wrote, 'Worcester SASKO bakery'. Mr R Botha
interpreted this as a request for a quotation. Elsewhere, there were other posts
referencing companies such as 'Sea Harvesf, 'Aquila Safari, 'PenBev', 'Vendata', 'KWV,
'SASKO', 'Cape Lime', 'Belko' and others.
(23] On 8 August 2023, Mr Petzer wrote, 'wat gaan aan manne' and Mr Stout wrote
thereafter :
9
'Hi all, so far we have paid the deposit for the premises and we have a vehicle that's been fully
paid for. Is there anything else we need to do? As per Johan's question above what's
happening? What are you all waiting for?'
Mr van Brakel followed up by writing, 'Ons wag vir Petzer en Visser wat om te doen en
wanneer ek wil 1 ste Sept bedank as hulle so se'.
[24] On 21 August 2023, Mr C Botha posted something which is not discernible from
the record, but which seemed to have sparked the following series of responses,
interspersed by other posts:
a) Mr Petzer: 'WTF';
b) Mr de Wet: 'Maybe it's time to resign';
c) Mr C Botha depicting 'thumbs up and clapping emojis';
d) Mr Petzer: 'With immediate effect';
e) Mr Stout: 'Agreed. Is there a restraint of trade on your existing contract?' ... Mr C
Botha 'No restraint . just while working for TMV'.
[25] On 17 September 2023, Mr Visser wrote, 'a/ma/ moet nie enige vrae of met Evans
praat voor ons ne eers gesels het nie ... Brakkies/Carl moet ook nie datums met hom praat
nie'.
[26] On 18 September 2023, Mr Petzer wrote, 'Well done guys!!! Welkom offisiee! by
TRS'.
[27] On 19 September 2023, Mr van Brake( wrote, 'Baise k%k vandag hulle is op my
spoor (sic).
[28] On 15 October 2023, Mr Petzer wrote, 'Lekkermanne one more day'.
10
[29] On 16 October 2023, the employee respondents served their last day of work
with the applicant.
[30] On 17 and 19 October 2023, the employee respondents were removed from
the WhatsApp group and then re-added with their new TRS telephone numbers.
Demand
[31] On 20 October 2023, Technoserve 's attorneys dispatched letters with a similar
content to each of the employee respondents , stating, inter alia, that:
a) Technoserve did not view each termination of employment as being an isolated
incident, but in a context in which they constituted the majority of the staff of the
medium voltage division;
b) The said employees acted with a common purpose, under the direction of Mr
Petzer, to take up employment with TRS, a competitor;
c) The said employees , acting together with TRS and Mr Petzer, intended to take
away Technoserve's intellectual property and to use its confidential contact list
to solicit its customers;
d) While still employed by Technoserve , these employees had done work for TRS,
including preparing quotations aimed at soliciting Technoserve 's customers (as
reported by certain of those customers);
e) Technoserve considered this as unlawful competition and a breach of the
employees ' duties;
f) Technoserve sought to protect its intellectual property. It accused the
employees of 'stealing' its customer base and taking over Technoserve's
medium voltage work;
g) Technoserve considered these actions as being aimed at crippling its business
and, thus, unlawfully to 'transplant it to TRS; and
11
h) Technoserve claimed prejudice both financially and in terms of its ability to
provide service to its customers.
[32] The letter concluded by making a demand that the said employees should
immediately make a written undertaking to not take up or continue employment with
TRS for a period of at least 12 months. In the absence of compliance , Technoserve
indicated it would bring legal proceedings. The undertaking sought was not
forthcoming , and so this application was instituted, on the terms and in the manner as
I have set out above.
[33] It is apparent in this demand, which was presented just before the launch of the
application, that the applicant initially contemplated a springboard restraint period of
12 months, and not 18 months prayed for in the notice of motion.
Discussion
Evolution of the remedy sought
(34] In the notice of motion, the applicant sought a rule nisi calling upon the
respondents to show cause, on 6 December 2023, why an order interdicting the
respondents for a period of 18 months, from 16 October 2023 to 16 April 2025, should
not be made final. Prayer 3 sought an order that, pending the return date, the rule nisi
and interdicting orders would act as an interim interdict and orders.
[35] On 6 December 2023, and on subsequent occasions, the applicant agreed to
a postponement of the hearing, without addressing the structure and content of its
notice of motion. By the time of the hearing, some nine months after the application
was instituted, urgency was no longer a live issue and the prayer for a rule nisi to be
issued, returnable on 6 December 2023, had become obsolete.
[36) During argument, it was stated that Technoserve no longer sought interim relief
'pending the return day and/or outcome of an expedited action', but instead sought a final
interdict, which would 'prevent the respondents from enjoying the fruits of their unlawful
12
conduct for a specific period. The applicant's counsel handed up from the bar a draft
order seeking relief in the following terms:
'(1) The first to sixth respondents , and the eighth respondent, ninth respondent and eleventh
respondent, be interdicted and restrained for a period of 18 months from the date of this
order (from):
(1. 1) soliciting or employing any existing employee of the applicant for the purposes of
conducting or providing Medium Voltage installations, services or business
operations;
(1.2) providing any Medium Voltage installation, service or maintenance services as an in­
house service, utilising its own employees or those of its related subsidiary or holding
company entities.
(2) The aforesaid respondents are ordered to pay, jointly and severally, the costs of this
application on a scale as between attorney and client.'
[37] The draft order effectively sought an amendment of the notice of motion without
launching a formal application to amend. A key change effected by the draft order was
that the 18-month springboard period was to have effect only from the date of the final
order, thus deviating from the original notice of motion in which, despite a return day
of 6 December 2023, the period of springboard restraint sought was to run from 16
October 2023 (presumably when the last of the employee respondents departed
Technoserve) to 16 April 2025.
[38) It is trite law that a court is vested with a discretion as to whether to grant or
refuse an amendment.2 In this case, there was no objection when the draft order was
handed up. The essence of the relief sought in the draft order remains similar to that
in the notice of motion. I can see no prejudice or procedural disadvantage to the
respondents by allowing the amendment.
2 Oevonia Shipping Limited v MV Luis (Yeoman Shipping Company Limited) 1994 (2) SA 363 (C), at
369F -1.
13
[39] It is common cause that by the time this matter was heard, Technoserve had
not instituted the action which is foreshadowed in its notice of motion. I could not get
a clear explanation as to why the action had not been pursued.
Requirements of an Interdict
[40] An interdict requires someone to refrain from performing a particular act
(prohibitory) or perform a particular act (mandatory). It affords an applicant protection
against unlawful interference or threatened interference with their rights. 3
[41] It is trite that a court should look at the substance rather than form of the relief
sought, in classifying an interdict as final or interim.4 A final interdict finally determines
the rights of the respective parties to a dispute or litigation.5 An interdict, even for a
fixed period, may be final in effect. 6
[42] It is settled that an applicant for a final interdict must show a clear right; an injury
or infringement of a right, actually committed or reasonably apprehended; and the
absence of similar or adequate protection by any other ordinary remedy. 7
Ad a clear right
[43] Whether the applicant has a clear right is a matter of substantive law. 8 The onus
is on the applicant applying for a final interdict to establish, on a balance of probability ,
the facts and evidence which prove that they have a clear or definite right in terms of
substantive law. 9
3 Godongwana v Mpisana 1982 ( 4) SA 814 (Tl<SC) at 817C-D.
4 BHT Water Treatment (Pty) Ltd v Leslie and Another 1993 (1) SA 47 (W) at 55A-F; Oasis Group
Holdings (Pty) Ltd and Another v Bray (2006] 4 All SA 183 (C) ("Oasis Group") para 13.
5 Minister of Law and Order, Bophuthatswana and Another v Committee of the Church Summit of
Bophuthatswana and Others 1994 (3) SA 89 (BG) ("Committee of the Church Summit') at 97G.
6 Zuurbekom Ltd v Union Corporation Ltd [1947) 1 All SA 319 (A) at 341-342. Oasis Group, para 13.
7 Setlogelo v Setlogelo 1914AD 221 at 227
8 Committee of the Church Summit at 980.
9 Id. See also: LAWSA Vol. 11, 2nd Ed. 397.
14
Ad an injury actually committed or reasonably apprehended
(44] For an interdict to be granted, it must be shown (taking into account the
Plascon-Evans rule, 10 where final relief is sought on motion) that unless restrained by
an interdict, the respondent (i) will continue committing an injury against the applicant
or (ii) that it is reasonably apprehended that the respondent will cause such an injury
to applicant.11 'Injury' means an action which infringes, interferes with or is prejudicial
to the right which has been shown or demonstrated.12 Physical harm or pecuniary
harm (damages) is not required to constitute an injury, although it might cause the
rights breach or result from it.13
[45] In order to obtain a final interdict, in cases other than an ongoing injury, an
applicant need not establish that injury will arise or ensue, but needs to prove a
reasonable apprehension of injury of such a nature which a reasonable person might
consider and conceive of, on being confronted by the relevant facts.14 This well-
10 Plascon-Evans Paint Ltd v Van Riebeck Paints (Pty) Ltd (1984} ZASCA 51; 1984 (3) SA 623 (A)
(Plascon Evans) at 634E-635C.
11 Commercial Stevedoring Agricultural and Allied Workers' Union and Others v Oak Valley Estates
(Pfy) Ltd and Another (CCT 301120) (2022] ZACC 7; [2022) 6 BLLR 487 (CC); 2022 (7) BCLR 787
(CC); 2022 (5) SA 18 (CC) (1 March 2022) para 19; National Council of Societies for the Prevention
of Cruelty to Animals v Openshaw (2008} ZASCA 78; 2008 (5) SA 339 (SCA) at para 20.
12 V & A Waterfront Properties (Ply) Ltd and another v Helicopter & Marine Services (Pty) Ltd and Others
(2006] 3All SA 523 (SCA)(" V & A Waterfronf), at para 21; Exxaro Coal Mpumalanga (Pty) Ltd v TDS
Projects Construction and Newrak Mining JV (Pty) Ltd and Another [2022) JOL 53514 (SCA) , at paras
13-14; Reddy v Siemens Telecommunications (Pty) Ltd [2006) JOL 18829 (SCA) (" Reddy"), para 22;
Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2017 (2) BCLR 152 (CC), para 8 and 101-103;
Oasis Group Holdings, para 36 -37; National Commissioner Of The South African Police Services
and Another v Forensic Data Analysts (Pty) Ltd and Another (24570/2018) [2019} ZAGPPHC 6; 2019
SIP 215 (GP) (30 January 2019) ("Forensic Data Analysts"), paras 61 -64; Harmony Golf Mining
(Pty) Ltd and Others v Lejweleputswa Community Engagement Structure and Others (502/2023)
(2023] ZAFSHC 193 (18 May 2023) ("Harmony Golf Mining"), para 19; Khumalo v Master of High
Court Johannesburg and Another (2023/095270) [2023] ZAGP JHC 1158 (9 October 2023), paras 16
-19. Boardwalk Trading 175 CC v City of Ekurhuleni Metropolitan Municipality and Another
(2023/101032) [2023] ZAGPJHC 1163 (16 October 2023), paras 25 -26; Eastern Produce Estates
SA (Pty) Ltd v Wales Communal Property Association and Others (LCC 201/2015) [2018) ZALCC 4;
2018 (4) SA 220 (LCC); (2018] 3All SA 123 (LCC) (4April 2018), para 71.
13 v & A Waterfront, paras 20 -22; Oasis Group Holdings, paras 36 -37; Forensic Data Analysts, paras
62-64; Harmony Golf Mining, paras 18-19.
14 Free State Gold Areas Ltd v Merriespruit (Orange Free State) Gold Mining Co Ltd and Another 1961
(2) SA 505 at 518; Committee of the Church Summit, at 99A; Minister of Law and Order and Others
v Nordien and Another (1987] 2 All SA 164 (A) (Nordien), at page 165.
15
grounded apprehens ion of irreparable loss or infringemen t of rights must be proved as
an objective fact, based on substantial grounds. 15 The test is objective. 16
[46] The court must decide, on the basis of the facts established , whether there are
grounds for the entertainment of a reasonabl e apprehension of loss/injury by the
applicant.17
Ad alternative remedy
[4 7) The courts have determined that an alternative remedy must be:
a) adequate in the circumstances ;
b) ordinary;
c) reasonable;
d) be a legal remedy; and
e) grant similar protection to a party.18
[48] Generally , an applicant will not obtain an interdict if they can be awarded
adequate compensation or amends by way of damages.19 The enquiry on this leg is
whether an interdict is the only relief or remedy which will assist the applicant, or
whether there is a satisfactory alternative remedy. 20
[49] In sum, an interdict is meant to be a practical remedy, which a court will hesitate
to grant if it appears that, in the form in which it is cast, it will not afford the applicant
the protection sought. 21
15 Committee of the Church Summit, at 99B.
1s Id, at 99C; Nordien, at page 165.
111d.
1s Committee of the Church Summit., at 99F.
19 Id, at 99G.
20 Id, at 99H.
21 South Atlantic Islands Development Corporation Ltd v Buchan 1971 (1) SA 234 (C) at 239G.
16
Springboard interdict
[50] Technoserve described its application in the founding affidavit. as one for a
'springboard interdicf, 'pending the return day and/or outcome of an expedited action, to put
an end to a conspiracy by the respondents to damage the applicant's business whilst gaining
an unfair and unlawful competitive advantage of their own at the expense of the applicanr. I
have mentioned above, that the application was also characterised as aimed at
preventing the respondents from enjoying the fruits of their unlawful conduct. for a
specific period.
[51] Mr R Botha elaborated on Technoserve's position in the founding affidavit, as
follows:
'(TechnoseNe) require a period of 18 months of interdicted competition in order for us to
recover our employee team and to protect our business from the unlawful acts of the
respondents. The unlawful advantage achieved by the respondents is clearly one that allowed
them to commence trading at the level that they have at least 18 months before they would
otherwise have been able to do. The 'springboard' achieved provided them with an
advantage of at least 18 months.'
[52] In argument, Mr Seale SC, appearing with Mr Fuller, referred largely to English
law authorities , when explaining the concept of 'springboarding' and the 'springboard
interdicf by which the applicant sought to restrain such springboa rding. He argued that
the respondents had garnered for themselves an unlawful competitive advantage over
the applicant, referred to as a 'springboard '. This springboard, he contended , was an
instance of unlawful competition and should, accordingly, be interdicted . He explained
the concept, its rationale and, crucially, how he considered that it should be applied,
in this particular matter, as follows:
'The period of the interdict in a springboard interdict application is calculated on the basis of
the advantage derived by the respondents. The advantage consists of the saving of time and
resources for the preparation phase of a new business, and this was conducted while
preparations were prohibited. The principal advantage achieved by the respondents consists
of the resources , time and effort saved in establishing an effective Medium Voltage services
unff, which ff achieved without having to follow the usual and lawful recruitment process.' ..
17
'Had the respondents conducted themselves lawfully, TRS would not have been abfe to
commence trading in October with a fully formed and competent Medium Voltage services
team. A period of at least 18 months after October 2023 would have been required for ft to
achieve, in a lawful and fair manner, what it was able to do by unlawful means through the
respondents' conspiracy by October.' ...
'In order to place the parties in a position of parity and to achieve the objects of a springboard
interdict, the exclusionary time period should commence from the date upon which judgment
is granted. Insofar as it may be argued that the term of the interdict should run from the
termination of employment date, this would be wrong. The aim of a springboard interdict is not
to prevent competition during a restraint period, as in a restraint of trade matter which concerns
a finite contractual term, but to remove and to negate the unfair competitive advantage of a
specific period of time gained as a consequence of the unlawful competition .'
[53] The applicant put significant stock in certain English case law and principfes,
which are evidently premised upon the specific English law tort of conspiracy. 22 The
applicant appears to maintain that the respondents engaged in an unlawful means
form of conspiracy, which was described in British Midland Tool Ltd v Midland
International Tooling Ltd & Ors,23 as follows:
'[77] The claim is primarily put as an unlawful means conspiracy The requirements of that tort
are that the claimant proves that it has suffered loss or damage as a result of unlawful action
taken pursuant to a combination or agreement between the defendant and another person or
persons to injure him by unlawful means, whether or not it is the predominant intention of the
defendant to do so'
see Kuwait Oil Tankers v Al Bader 2000 EWCA Civ 160, [2000]2 All ER Comm 271 at para
108 (Nourse Potter and Clarke LJJ). The three essential ingredients for present purposes are
(1) unlawful means taken pursuant to an agreement, (2) loss suffered as a result of that, and
(3) the intention to injure by the unlawful means. ,24
22 Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1941) UKHL 2, [1942) AC 435. Kuwait Oil Tanker
Company SAK & Anor v Al Bader & Ors [2000) EWCA Civ 160 (18 May 2000).
23 British Midland Tool Ltd v Midland International Tooling Ltd & Ors [2003] EWHC 466 (Ch) (12 March
2003) (Midland).
24 Midland, at para 77
18
[54] On its own case, articulated in regard to the English tort of an 'unlawful means
conspiracy'25, it behoves the applicant, then, to establish the necessary elements: a)
to indicate a combination or agreement between the relevant respondents; (b) to
intentionally c) cause damage to the applicant's business; d) by unlawful means and
(e) which is then executed, in such an unlawful fashion, and does, in fact, cause such
unlawful damage. 26 Inter a/fa, the applicant would need to:27
a) Show that each respondent agreed to or acted in a concerted fashion to
harm the applicant, intentionally , and, by unlawful means;
b) Identify the unlawful acts inflicting damage to the applicant's goodwill and
that they were carried out pursuant to the conspiracy; and
c) establish that there was unlawfully inflicted (and in the case of an interdict,
the ongoing or anticipated) damage to the goodwill of the applicant's
business, with due reference to the springboard concept and period.
[551 This would involve a factual enquiry.
Common cause facts
[56] It is common cause that a WhatsApp group named TRS', was set up by Mr
Pelzer on 12 April 2023. The members of the group included Mr Pelzer, Mr De Wet
(third respondent), Mr Stout (fourth respondent), Mr Visser (fifth respondent) , Mr Botha
(sixth respondent), Mr Groenewald (eighth respondent) and Mr Van Brake! (ninth
respondent). Furthermore, it is not disputed that upon resigning from their respective
employment at Technoserve, some of the implicated employees took up employment
with TRS, during October 2023.
25 Rather than a conspiracy to injure by lawful means. See Kuwait Oil Tanker Company SAK & Anor v
Al Bader & Ors [2000] EWCA Civ 160 (18 May 2000) (Kuwait), at paras 107-108, where the distinction
is described.
26 Midland, para 77; Kuwait, paras 108-110.
27 Cf. Kuwait, para 132.
19
The non-compete agreement
[57] The non-compete agreement was described as part of a 'gentleman's
agreement' between Mr Petzer, Mr Veldhuizen and Mr R Botha. It is unclear as to
whether this was regarded as legally binding by the parties to it.
[581 It is however not immediately apparent to me whether TRS and Technoserve
were party to the non-compete agreement. Neither Mr Veldhuizen nor Mr R Botha, as
the parties entitled to enforce that agreement against Mr Pelzer, are cited as parties
to this litigation. Given this, Technoserve 's entitlement to a cause of action against any
of the respondents by reference to the non-compete relationship it has alleged with
TRS is unclear. I however, do not decide the matter on this point.
Factual disputes
[59] Whilst there is no serious quibble as to the content of the WhatsApp messages
found on the employees' SIM cards, the controversy concerns the full context in which
the messages were posted and, therefore, the proper interpretation and meaning
which is to be attached to those messages.
[60] The applicant contends that the respondent employees, acting together and in
concert with its corporate competitor , conspired, unlawfully, to harm its business
interests and goodwill by, inter alia, causing its specialised operational team to resign
en masse, and to take up employment with the first respondent, taking with them the
applicant's confidential information and clients.
[61] Mr R Botha, the director of Technoserve explained the situation, as he saw it,
as follows in the founding affidavit:
'Not only did the first respondent steal our employees, but our clients too. The first respondent
utilised the applicant's team to carry out work for it during the currency of their employment
with the applicant. In a clandestine manner these employees provided services on behalf of
the respondent to the applicant's clients and subsequently pennitted the first respondent to
take over those clients from the applicant, which it has done. ' . . . 'The existing working
relationships between our employees and our clients were used to transfer those clients to the
20
first respondent at the same time as the employees were being taken over by the first
respondent. The first respondent has acquired our workforce which it needs to service our
erstwhile clients and so has been able to take over the clients too. In so doing the first
respondent has derived a significant although unlawful advantage, which could only have
been achieved by our erstwhile employees acting in breach of their contractual and fiduciary
obligations.'
[62] Technoserve drew the following conclusions from the facts available (consisting
mainly of the recovered WhatsApp messages) and it is on this factual basis that it
founded its application:
a) The employees had been conspiring with each other to springboard TRS and
compete unlawfully with Technoserve since at least March 2023;
b) The employee respondents had encouraged one another to resign en masse,
in violation of their service contracts and/or fiduciary duties to their employer,
Technoserve;
c) Mr Visser was doing work for TRS while still a director and in the employ of
Technoserve ;
d) The resigning employees had already been working for TRS for some time
before their formal resignations or retirement from Technoserve ;
e} TRS had, with the help of the resigning employees , poached and serviced
Technoserve's clients during the TRS non-compete period;
f) Accordingly, TRS together with the employees had intentionally inflicted harm
on Technoserve 's proprietary interests and client goodwill. Mr R Botha
perceived these as acts of sabotage perpetrated by the resigning employees
against Technoserve; and
g) Finally, that the conduct of the resigning employees has deprived Technoserve
of its immediate capacity to fulfil its contractua l obligations. In this regard,
21
Technoserve alleges that TRS is rendering identical services to those that
Technoserve had provided to those of its clients poached by TRS.
[63] Mr McClarty SC, appearing with Mr M Aggenbach , for the respondents,
criticised the applicant for its generalised approach to the transcripts of the WhatsApp
messages. The respondents did not, however, object to the authenticity and
admissibility of those messages. A full transcript of the WhatsApp messages was
attached to the affidavits and thereby incorporated into the evidence. The
respondents , for their part, managed, in large measure, to deal with the accusations
levelled against them.
[64] The respondents took issue with all of the material facts alleged by Mr R Botha.
They:
a) asserted that the terms of the non-compete agreement did not apply to TRS or
to each of them as individuals, except for Mr Petzer;
b) contested the applicant's understanding of the non-compete agreement ;
c) challenged the applicant's interpretation of the WhatsApp messages. They
denied the accusation of carrying out work on behalf of TRS and in competition
with their employer, Technoserve , in relation to various Technoserve clients
(including Corobrick, Betko, Sea Harvest, Aquila, etc). They explained that the
Whatsapp references to these entities related to legitimate ongoing
Technoserverrechnosales subcontracting work in relation to those entities;
d) denied that the employee respondents had been issued with TRS e-mail
addresses while in the employ of Technoserve (except for Mr Visser who was
issued one only after his suspension by Technoserve);
e) denied approaching the various Technoserve clients named in the Whatsapp
messages for the purpose of soliciting their business for TRS, while still
employed by Technoserve . In that regard, it is noteworthy that Technoserve did
not file any affidavits by clients confirming this solicitation;
22
f) denied conspiring with one another or TRS or soliciting Technoserve
employees; and
g) denied that the employee respondents constituted the applicant's operationa l
team or that all of them took up employment at TRS.
[65] The respondents maintained that the applicant did not have the proprietary
interest and/or confidential information and/or skills which would attract legal
protection. They contended that:
a) The applicant had failed to specify from which companies the respondents were
to be interdicted from soliciting business;
b) Any price structure for services rendered by the applicant was publicly
available;
c) In this industry, competing companies often worked together on sites, such that
there were no trade secrets and/or material confidential information . They
pointed out that the applicant has failed to specify and describe these. Indeed,
it should be noted that, legally, the applicant must set down the facts necessary
to prove all the requirements to establish the confidentiality of any information
(and has not done so)28; and
d) Applicant could not restrain the sixth to eleventh respondents from applying
their respective skills, knowledge and experience, after departure from
Technoserve, in the absence of any contractual restraint of trade agreement
with them.
28 Strike Productions (Pty) Ltd v Bon View Trading 131 (Pty) Ltd & Others [2011) JOL 26664 (GSJ)
("Strike Productions"), at paras 17, 22-24, 34-35. Hirt & Carter (Pty) Ltd v Mansfield and another
(2007] 4 All SA 1423 (D), at paras 56-58; Petre & Madco (Pty) Ltd tla T-Chem v Sanderson-Kesner
and Others [1984) 4AII SA 171 0N), at page 178. In the English case of QBE Management Services
(UK) Ltd v Dymoke & Ors [2012) EWHC 80 (QB) (27 January 2012), at paras 200-201, the court
indicated that an applicant must particularize the confidential information in order to allow the court to
determine that there is indeed a protectable interest.
23
[66] It was held in Strike Productions that:29
'[22] For the applicant to succeed in this case it must establish that it has trade secrets,
confidential information and intellectual property worthy of protection and which is "proprietary ''
to it, which Jacobs is allegedly using. The claim to confidentiality must be made on reliable
facts. It is not sufficient for a party to merely state that it has "intellectual property", "know­
how", "modus operandi" or that certain aspects of its business are secret or confidential .
[23] The mere fact that a party chooses to call something secret does not per se make ft so.
In Saltman Technicianing Co Ltd & others v Campbell Technicianing Co Ltd [[1948] 65RPC
203 (Ch), at 215], Lord Greene MR stated that, to be confidential , the information concerned
must "have the necessary quality of confidence about it, namely it must not be something
which is public property or public knowledge".'
[67] When expounding on the matters which he placed in dispute, Mr Petzer
specifically averred that the non-compete agreement envisaged that the various
companies could compete for installation and maintenance work and that this was
consistently done. He gave various examples of this. I ploughed through the replying
affidavit in search of a response to this particular point, without success. The deponent
to the reply does say that there was no time to respond ad seriatim to the allegations
in each of the respondents' affidavits, although he did address other specific
allegations. Nevertheless , one would have expected that the deponent would have
addressed any false allegation of this importance in its response, had it indeed been
false.
[68] The situation is that all the material facts upon which the applicant seeks to rely,
to establish a cause of action against the respondents , are soundly disputed and are
incapable of resolution on the papers. Given the attendant disputes of fact, it is not
feasible to come to a definitive factual finding on various crucial aspects, such as:
whether any of the respondents unlawfully interfered in the contractual affairs of the
applicant; breached any restrictive covenants or fiduciary duties binding them to the
applicant; embarked on an intentional, concerted or agreed conspiracy to damage the
29 Strike Productions, at paras 22 -23.
24
applicant, by unlawful means; actually caused unlawful damage to the subjective right
to goodwill belonging to Technoserve.
Factual link between an individual respondent and the actual or threatened
unlawful conduct must be shown
[69] The employee respondents maintained that they, at all material times, were
working on behalf of and for the benefit of Technoserve . In Commercial Stevedoring , 30
the Constitutional Court held that the law requires, for interdictory relief to be
competently granted, that a factual link between an individual respondent and the
actual or threatened unlawful conduct must be shown. In that case, which dealt with
an application for interdictory relief in the context of a labour strike action, the court
found that mere participation in a strike, protest, or assembly, in which there is unlawful
conduct, is insufficient to link the impugned respondent to the unlawful conduct in the
manner required for interdictory relief to be granted.31
[70] What would constitute the requisite direct link to the unlawful conduct (rights
breach) would depend on the anterior question of what conduct is considered to be
delictual or otherwise unlawful, and, therefore, can be interdicted.
[71) The English tort of 'conspiracy ' appears to deviate from the South African law
approach in regard to this enquiry, in that a person/ party to the relevant
agreement/combination:
a) may attract liability merely from being party to the agreement or combination
with the object of intentionally and unlawfully damaging the defendant , without
the need for any participation in the unlawful acts that implement that
conspiracy ;32 and
30 Commercial Stevedoring Agricultural and Allied Workers' Union and Others v Oak Valley Estates
(Pty) Ltd and Another (CCT 301/20) (2022] Z.ACC 7; (2022) 6 BLLR 487 (CC); 2022 (7) BCLR 787
(CC); 2022 (5) SA 18 (CC) (1 March 2022), at para 39.
31 Id, para 42.
32 Barclay Pharmaceuticals Ltd & Ors v Waypharm LP & Ors [2012] EWHC 306 (Comm) (28 February
2012), at para 222; Kuwait, at para 110 and 133; Roche Diagnostics Ltd against Greater Glasgow
Health Board and Another[2024] ScotCS CSOH_55 (05 June 2024), at paras 95-97.
25
b) is liable for all acts that are performed by other persons/ party to and
implementing the conspiracy , even where the person does not participate in
those acts, provided only they are party to the relevant agreement or
combination. 33
[72] By contrast, in respect to interdicts grounded properly in South African law of
delict, the applicant would, at minimum, need to link each respondent to the
commission of each act of unlawful competition , even if only as a joint wrongdoer .34
This link might entail no more than the instigating, aiding or abetting of any delict, but
this would still require some measure of active involvement.35
[73] Thus, mere participation in the relevant WhatsApp group would also not,
without more, be enough to link the employee responden ts into a delict against
Technoserve, even if there may be suspicion of some unlawful activity by one or other
of the participants .
[74] To establish a link between an individual respondent and the actual or
threatened unlawful conduct would involve a factual enquiry. I deal with the versions
presented by each of the respondents below, which controvert the allegations made
by the applicant.
[75] Mr Petzer acknowledged having a close relationship with Technoserve
employees , because he was previously the chief executive officer and shareholder of
the Technoserve Group before it split. He explained that a significant amount of work
done by Technoserve was subcontracted to it by Technosales and that, as such, the
Technoserve and TechnosalesffRS teams often interacted with each other.
[76] The third respondent , Mr De Wet, was a director of TRS, serving alongside Mr
Petzer, until his resignation on 29 September 2023. It was stated during argument that
an interdict against him was no longer being pursued.
33 Kuwait, at para 133.
34 Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd (2000] 4 All SA 393 (A}, at para
10, where this concept was described as, in contrast with concurrent wrongdoers : 'Joint wrongdoers
are persons who, acting in concert or in furtherance of a common design, jointly commit a delict.'
35 McKenzie v Van der Merwe 1917 AD 41 (AD), at page 45 and 47.
26
[77] Mr Stout, the fourth respondent, was also a director of TRS serving alongside
Mr De Wet and Mr Petzer, until his resignation on 29 September 2023. Both Mr De
Wet and Mr Stout stated the following in their respective affidavits:
~s part of the board of directors, we agreed to rename Technosales Boland to TRS to split
our projects that used to run through Technosales Western Cape (Pty) Ltd. in which I am a
shareholder and a director. Technosales Boland was dormant and TRS only commenced
trading in October 2023.'
[78] The fifth respondent , Mr Visser, was a director and 35% shareholder of
Technoserve , and had served for a period as its managing director. He was due to
retire from Technoserve in 2023 and had communicated his wish to the other directors
to sell his shares later that year. He acknowledged having been a member of the
WhatsApp group, but denied any involvement in the alleged conspiracy against
Technoserve or ever working for TRS. It was stated during argument that an interdict
was no longer sought against Mr Visser.
[79] The qualification, skill and experience of the sixth respondent (C Botha) is in
dispute. In the papers, Technoserve portrayed Mr C Botha as 'a highly skilled MV
electrical technician ' whose skills are in short supply in the industry. Mr C Botha denied
being a qualified electrician or technician or having any specific qualification as an
electrician , although he acknowledged having worked in the industry for some 40
years. He claimed to have been told by one Mr Coetzee, the new managing director
of Technoserve , that he was not being considered as part of future plans for
Technoserve. Having reached the age of 63 years, he opted to retire and refused a
fixed term contract to continue working for Technoserve. He had approached Mr
Petzer for a job at TRS, after his retirement from Technoserve, and commenced
employment on 17 October 2023. He maintained that his departure from Technoserve
and joining of TRS was not the result of a 'conspiracy ' with his fellow employees or
TRS. Whilst he admitted being part of the WhatsApp group, he denied that his activities
on that group amounted to a conspiracy to harm the applicant.
[80] The founding affidavit described Messrs Kongolo (the seventh respondent ) and
Williams (the tenth respondent) as assistant technicians . It was accepted in argument
27
that they were in fact general workers. Both of them professed that they did not see
any prospects of advancing their respective careers at Technoserve and decided to
join TRS. The applicant indicated during argument that it no longer pursued an interdict
against these gentlemen.
(81) The eighth respondent , Mr Groenewald , is a qualified electrician who was
employed by Technoserve from April 2022. He tendered his resignation on 18
September 2023. He denied being a technician and also denied that he possessed
rare skills, and, therefore, contended that it would be easy to find a replacement for
him. He attributed his resignation to a workplace falling-out with Mr Coetzee. He
commenced work for TRS on 17 October 2023. He denied knowing any trade secrets
or confidential information of the applicant. He was part of the TRS WhatsApp group.
He denied that the group conspired to harm the applicant and explained its purpose,
which was to communicate and coordinate logistics on the projects that his team were
performing for Technoserve , as a subcontractor for Technosales , and for social
interaction. Mr Groenewald averred that an interdict in these circumstances would
unduly interfere with his unrestrained right to ply his trade.36
[82] Mr Van Brake I, the ninth respondent , is a qualified electrician. He was employed
by Technoserve until his retirement at the mandatory retirement age of 60 years. He
submitted his retirement by letter dated 18 September 2023. He claimed to have had
poor workplace relations with Mr Coetzee. When he could not secure a work contract
beyond his retirement, he approached Mr Petzer, who offered him employment with
TRS, as from 17 October 2023. He stated that the discussions in the WhatsApp group
were not a conspiracy against the applicant , but concerned subcontracting work
between Technoserve and Technosales .
[83] Mr De Bruin, the eleventh respondent , was employed by Technoserve as a
qualified technician . He tendered his resignation on 17 September 2023. He had had
his own workplace conflict with Mr Coetzee, which he claimed was a major cause for
seeking employment with TRS. He denied conspiring with his fellow employees and
36 See: Motion Transfer & Precision Roll Grinding CC v Carsten and Another (1998J 4 All SA 168 (N)
("Motion Transfer'), at pages 176 -178. Aranda Textile Mills (Pty) Ltd v Hurn and Another (2000) 4 All
SA 183 (E), at paras 23 -33. Strike Productions paras 25-31; Knox D'Arcy Ltd and Others v Jamieson
and Others [1992) 4 All SA 275 0N) ("Knox D'Arcy"), at pages 279 -282.
28
TRS to leave Technoserve and join TRS. He denied participation in a conspiracy
against Technoserve and averred that his posts on the WhatsApp group were related
to the work which he was carrying out on behalf of Technoserve .
[84] The versions presented by the respective respondents suggest that the factual
disputes concerning the role of each respondent remain. At very least, an employee
would need to be shown to have instigated or solicited his fellow employees either to
resign, or, to commit any of the other unlawful acts (or aid and abet the relevant
unlawful acts). Neither this nor the direct commission of the relevant delicts has been
established , to the required legal standard, against each (or any) of the respondents.
Conclusions on conspiracy
[85) It does not appear as though the concept of 'conspiracy' has formed part of or
been definitively adopted as such into the South African law of delict. Accordingly, in
my assessment, applying the alien tort of 'conspiracy' from English case law, rather
than the ordinary principles of delict, to the South African law of interdicts, will produce
an erroneous result. Equally, reliance on English authorities and principles relating to
injunctions, in a case such as this, will likely distort the proper application of South
African law as it pertains to interdicts.
[86] During argument , I invited applicant's counsel to provide me with a note
explaining the applicability, in South African law, of the springboard principle, in the
context of the concept of 'conspiracy', in order to better understand the basis of the
applicant's case. The note stated that South African courts have frequently applied the
springboard doctrine in instances of the unlawful use of confidential information. The
note further stated that:
• In casu, the respondents' unlawful springboard subsists in unlawfully conspiring with the
applicant's then employees to establish a business that would compete with the respondent,
which entailed procuring the applicant's operational team to resign en masse and take up
employment with the first respondent. The procurement and the conspiracy breached
contractual and fiduciary obligations .'
29
(87] I have considered these submissions with reference to some of the relevant
South African authorities. Van Heerden & Neethling warn of the dangers of any
importatio n of the principles of this English tort of conspiracy in regard to the South
African delict of boycotts. 37 The Supreme Court of Appeal, when confronted with a
case assessed under the English tort of conspiracy , by the judge a quo (who, like me,
was unable to find South African authority for a delict of conspiracy) , 38 declined to
confirm the judge a quo's view that this tort was consistent with South African delictual
principles , and left the matter open. 39
Factual disputes were foreseeable
(88) There are clearly sharp disputes of fact which cannot be resolved on the
papers. In National Director of Public Prosecutions v Zuma,40 the Supreme Court of
Appeal held that:
'[26] Motion proceedings , unless concerned with interim relief, are all about the resolution of
legal issues based on common cause facts. Unless the circumstances are special they cannot
be used to resolve factual issues because they are not designed to determine probabilities . It
is well established under the Plascon-Evans rule that where in motion proceedings disputes
of fact arise on the affidavits, a final order can be granted only if the facts averred in the
applicant's ... affidavits, which have been admitted by the respondent.. . , together with the
facts alleged by the latter, justify such order. It may be different if the respondent's
version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably
implausible , far-fetched or so clearly untenable that the court is justified in rejecting them
merely on the papers.'
[89] I have canvassed above what I consider to be real and wide-ranging factual
issues which, in my view, cannot satisfactorily be resolved without the aid of oral
evidence and cross-examination of witnesses. These disputes relate to facts which
are central to the application and its determination. They were reasonably foreseeable .
37 Van Heerden& Neethling Unlawful Competition 2nd ed (2008), pages 296 -297.
:ia Unilever Bestfoods Roberlsons and Others v Soomar and Another 2007 (2) SA 347 (SCA) para 7.
39 Id, para 11.
40 National Director of Public Prosecutions v Zuma (573/08) (2009] ZASCA 1; 2009 (2) SA 277 {SCA);
2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) (12 January 2009)
para 26.
30
Nevertheless , the applicant was adamant that the application should proceed on the
papers for final relief.
[90] The applicant has neither managed to establish the key unlawful acts alleged,
nor, a conspiracy directed at the harming of the applicant by unlawful means. It is not
feasible, therefore, to engage in a determinative legal analysis where the underlying
factual basis of the application remains unresolved.
Interdict appropriate only when future injury is feared
[91] I nevertheless deal with the applicant's legal assertions. The applicant's
changed stance, seeking a springboard interdict of 18 months from the date of the
order as opposed to the dates stipulated in the notice of motion, reflected its argument
that a springboard interdict exists to reverse an unfair competitive advantage , as
opposed to addressing existing or ongoing rights violations (such as the ongoing
abuse of confidential information or otherwise). The applicant specifically highlights
that its case is, predominantly , focused on addressing the effects of alleged past
wrongs, which might have occurred during the period that the employee respondents
were employed and under contractual restraints or fiduciary duties to the applicant or
during the period that they allege TRS was subject to the non-compete agreement. It
is during this period that solicitation of and by employees and the diversion of project
work are alleged to have taken place and it is largely on the WhatsApp records of this
period that the applicant relies to prove its case.
[92] As I understand springboards , they are a measure of the transitory period for
which the protected right (including confidential information) remains in existence and,
therefore, can be protected from violation by interdict. I discuss, below, the basis upon
which I hold that interdicts are not available for past and completed breaches of rights,
even if an unfair competitive advantage continues to accrue or exist long after that
breach. Interdicts are to prevent ongoing or reasonably apprehended future breaches
of rights; they are not there to intrude on the domain of damages by addressing
ongoing or long-term damages or advantage s flowing from such past breaches of
rights.
31
[93] The Supreme Court of Appeal held in National Council of Societies for the
Prevention of Cruelty to Animals v Openshaw,41 as follows:
'[20] An interdict is not a remedy for past invasion of rights but is concerned with present or
future infringements. 42 It is appropriate only when future injury is feared. 43 Where a wrongful
act giving rise to the injury has already occurred, it must be of a continuing nature or there
must be a reasonable apprehension that ;t will be repeated.'
[94] The past invasion of rights should be addressed by an action for damages.44
Interdicts are not and should not be a substitute for a damages action.
[95] In S v Baloyi45 (albeit in the context of domestic violence interdicts), the
Constitutiona l Court held that the principal objective of granting an interdict is not to
punish past misdeeds, but to prevent future misconduct. 46
(96] In the context of an unlawful competition case relating to springboarding, the
above principle was reiterated in the case of Africa Parts Group Holdings (Pty) Ltd and
Others v Titan Auto Parts (Pty) Ltd and Others,47 where the court stated:
'There is a further reason the second applicant is not enUtled to interdictory relief, final or
interim. lnterdictory relief is not aimed at addressing past wrongs; but to prevent future harm
reasonably apprehended . Even if for the sake of argument I were to accept that the second
applicant has established an actual injury committed in the past, which I am prepared to do,
this does not entitle it to an interdict. The fact that the former employees in breach of their
contractual obligations divulged confidential information, or any or all of the respondents
misused the second applicant's confidential information giving rise to a claim in delict, is not
41 National Council of Societies for the Prevention of Cruelty to Animals v Openshaw (462107) (2008]
ZASCA 78; (2008] 4 All SA 225 (SCA); 2008 (5) SA 339 (SCA) (30 May 2008) at para 20.
42 See also: Tau v Mashaba and Others (2020] ZASCA 26; 2020 (5) SA 135 (SCA) at para 26; Stauffer
Chemicals Chemical Products Division of Chesebrough -Ponds (Pty) Ltd v Monsanto Company (1988)
3 All SA 279 (T), at page 282.
43 See also: Phillip Morris Inc v Marlboro Trust Co SA 1991 (2) SA 720 (A) at 7358.
44 United Democratic Movement and Another v Lebashe Investment Group (Pfy) Ltd and Others (CCT
39/21) (2022) ZACC 34; 2022 (12) BCLR 1521 (CC); 2023 (1) SA 353 (CC) (22 September 2022)
("United Democratic Movement"). at para 48.
45 S v Baloyi and Others (CCT29/99) [1999) ZACC 19; 2000 (1) BCLR 86; 2000 (2) SA 425 (CC) (3
December 1999).
46 Id, at para 17. See also: United Democratic Movement . at para 48.
47 Africa Parts Group Holdings {Pty) Ltd and Others v Titan Auto Parts (Pty) Ltd and Others (20/39009}
[2022] ZAGPJHC 8; 2022 BIP 554 (GJ)("Africa Parts Group').
32
proof that they will do so in the future; it is merely evidence from which to imply an intention to
continue doing so . '48 (citations omitted)
[97] The court in Knox D'Arcy,49 recognized that the effectiveness of information
(and, therefore, the confidentiality) which provides a springboard 'diminishes with the
passage of time and ultimately evaporates entirely'. If the legal right (confidentiality) which
the applicant seeks to protect has diminished or has evaporated , then an interdict,
interim or final, is not the appropriate remedy. I consider the following:
a) The fact that skill, time and effort are required to compile, assemble or
coordinate otherwise public objects or information in useful systems, forms or
to deduce information from public objects or information is the very
characteristic which qualifies these forms, systems or deductions to be
confidential information (provided they are also kept secret). 50 In such cases,
any confidentiality is transitory -for the springboard period it would take for
someone to deduce, compile, assemble or coordinate them independently. 51
Accordingly , as I see it, the springboard is and defines the period of
confidentiality for such information, as opposed to being merely the time period
of unfair advantage imposed to penalise the person filching such information .
Since it is not merely the latter, it cannot be imposed on the infringer at any time
(even when the confidentiality has long gone) in order to level the competitive
playing field;
b) A number of South African cases confirm that a springboard disappears when
the information protected by it is no longer confidential.52 When this happens,
48 Id, at para 68.
49 Knox D'Arcy, pages 282-283; See also: Africa Parts Group), at paras 66-67.
50 Meter Systems Holdings Ltd v Venter and Another [1993) 3 All SA 574 (W) ("Meter Systems") , at
pages 590 -593 (particularly paragraph 10.3); Packaging & Stapling CC v Fromm System Africa and
Others (966/2010) [2010) ZAECPEHC 80 (23 Novembe r 2010) ("Packaging & Stapling"), at paras 17-
18; Knox D'Arcy, at pages 226 -227; Cf. Harvey Tiling Co (Pty) Ud v Rodomac (Ply) Ltd and Another
[1977] 1 All SA 481 (T) ("Harvey Tiling"), at pages 486 -492.
51 Meter Systems at pages 590 -593 (particularly paragraph 10.3); Packaging & Stapling, paras 17 -
18. Knox O'Arcr, at pages 226 -227; Harvey Tiling, at pages 486 -492.
s2 Africa Parts Group at paras 65 -68; Multi Tube Systems (Pty) Ltd v Ponting and Others [1984] 3 All
SA 578 (D) (" Multi Tube Systems"), at pages 584 -586; Valunet Solutions Inc dba Dinkum USA &
another v e Tel Communicat ion Solutions (pty) Ltd [2005] JOL 13595 (W) (" Valunet Solutions") paras
15 -17; Big Catch Fishing Tackle proprietary Limited and Others v Kemp and Others (17281/18)
[2019) ZAWCHC 20 (5 March 2019) ("Big Catch") para 44; Meter Systems, at pgs 593 (para 10.3);
33
the right to an interdict also disappears.53 That is in line with the principle that
an interdict can only be granted for a continuing or reasonably apprehended
future violation of rights (such as continued or future unlawful use of confidential
information) and not for a past violation. In Spieth and another v Nagel,54 the
springboard principle was extended to an ex-director's ongoing exploitation of
corporate opportunities filched from the company of which he was a director.
The court emphasized that a springboard interdict could not be imposed as
punishment for past misconduct, but only for the ongoing breach of the ex­
director's continuing fiduciary duties to the company because of his ongoing
exploitation of this corporate opportunity. 55
c) I have canvassed above, the period of some nine months that it took from
launching the application to the hearing. A survey of various cases suggests
that a springboard may disappear in the course of a delay or lengthy legal
proceedings, long before any corrective interdict is given.56 This is because the
confidentiality, being the springboard period, has expired, even though any
lasting competitive advantage gained thereby may not have been redressed,
although this may then be addressed by way of damages; and
d) An interdict is permissible as a remedy for an ongoing or future breach of a
right, 57 and not merely for the ongoing or future suffering of physical or
Knox D'Arcy, at pages 281-282; SD Naorgat Trading Enterprise CC tla Powertrade Cash and Carry
(Focus Group) v Mahomed (1179/21P) (2022] ZAKZPHC 2 (28 January 2022) ("SD Noorgat"), at
paras 44-45, 56, 77 & 80.
53 Jd.
54 Spieth and another v Nagel (1998) JOL 1320 (W) (" Spieth").
55 Thus, at page 17, the court in Spieth states: ' ... I accordingly find that a director's fiduciary duty can
survive the termination of his directorship and that there is no reason in principle why in an appropriate
case a company should not, white such duty survives, be protected by way of an interdict from an
irreparable loss it may otherwise suffer if the director, folfowing his resignation, is allowed to continue
to exploit a commercial opportunity created in breach of his fiduciary duty. To afford such protection
must accord with public policy and the boni mores of the commercial community. To do so is not to
punish the delinquent director for his past misconduct but to secure the cessation of an unlawful
course of conduct which after all is the object of an interdict (see Press The Law of Interdicts page
42).'
56 Multi Tube Systems), at pages 582 -584; Valunet Solutions paras 9, 15 -17; Taskflow (Ply) Ltd v
Aluxium (Pty) Ltd and Others (2021/41676) [2021] ZAGPPHC 604 (21 September 2021), at para 25;
SO Noorgat, paras 9, 44-45, 56-57, 60, 65, 69, 77; Big Catch, para 46.
57 See: V & A Waterfront , at paras 19 -22; Exxaro Coal Mpumalanga , at para 13-14. ReddY, at para
22; Masstores, at paras 8 and 101-103; Oasis Group Holdings, paras 36-37; Forensic Data Analysts,
paras 61 -64; Harmony Golf Mining, para 19; Khumalo v Master of High Court Johannesburg and
Another (2023/095270) [2023) ZAGPJHC 1158 (9 October 2023), paras 16 -19; Boardwalk Trading
34
pecuniary harm or damage.58 Accordingly , no interdict is permissible where the
breach of rights occurs in the past, even if damages from it continue to accrue
into the future. In Reddy v Siemens Telecommunications (Pty) Ltd, 59 in the
context of enforcing a restraint agreement , the court confirmed that breaching
a contractual restraint by entering the employ of a competitor was sufficient for
an interdict, quite independently of whether any damage would flow from this. 60
Even in cases where the breach of rights is founded in a delict of unlawful
competition, a breach of that right occurs at the time the very first damage is
manifested (not as the damage thereafter accrues or for the period it persists). 61
[98) An applicant is required to prove, not merely allege, the following two integrally
linked material facts:
a) the confidentiality of any information claimed as such.62 The requisite
confidentiality has very specific legal requirements. 63
b) the length of its springboard .64
[99) In this case, the applicant has not put up the specific facts and, where
necessary, expert evidence to prove these material facts. It is not clear how the period
sought for the springboard was calculated.
175 CC v City Of Ekurhuleni Metropolitan Municipality and Another (2023/101032) (2023] ZAGPJ HC
1163 (16 October 2023), paras 25 -26; Eastern Produce Estates SA (Pty) Ltd v Wales Communal
Property Association and Others (LCC 201/2015) [2018] ZALCC 4; 2018 (4) SA 220 (LCC); [2018] 3
All SA 123 (LCC) (4 April 2018), para 71.
58 V & A Waterfront , at paras 19 -22: Oasis Group Holdings, para 36 -37. Forensic Data Analysts,
paras 62 -64. Harmony Golf Mining, paras 18-19.
59 Reddy, at para 22.
60 Cf. Oasis Group Holdings, para 35 -37.
61 Oslo Land Co Ltd v The Union Government 1938 A.O. 584 at 590 -593.
62 Strike Productions paras 17, 22-24, 34-35; Alum-Phos (Proprietary) Limited v Spatz and another
(1997] 1 All SA 616 (W) ("Afum-Phos ") at page 623; Hirt & Carter (Pty) Ltd v Mansfield and another
(2007] 4 All SA 1423 (0), at paras 56-58; Petre & Madco (Ply) Ltd t/a T-Chem v Sanderson -Kasner
and Others [1984) 4 All SA 171 (W), at page 178.
63 Motion Transfer, at page 175; Alum-Phos at page 623.
64 Triomed (Pty) Ltd v Beecham Group PLC and others {2001] 2 All SA 126 (T), at page 159; Valunet
Solutions , at para 17. In the English case of QBE Management Services (UK) Ltd v Dymoke & Ors
[2012] EWHC 80 (QB) (27 January 2012), at para 247, the court indicated that an applicant bears the
burden of spelling out the precise nature and period of its competitive advantage
35
[100] In contrast to the South African position sketched above, an English court in
Vestergaard Frandsen A/S & Ors v Bestnet Europe Ltd & Ors, 65 opined after a review
of contradictory English authorities , that it was unclear whether an springboard
injunction can be granted to prevent a defendant from benefiting from a past misuse
of confidential information 66
[101} The grant of an injunction to prevent a defendant from benefitting from a past
(and not continuing) misuse of confidential information or some other past unlawfu I act
is contrary to standard South African principles governing interdicts and renders any
English authorities, on this point, an unreliable guide to South African law.
[102] Insofar as the applicant sought to base its cause of action on an alleged
unlawful solicitation of employees (by one another or by TRS) occurring during the
period of employment , any such breaches of rights would lie in the past. This could
not be the subject of an interdict.
Order
[103] In the result the following orders are made:
a) The application is dismissed with costs. Such costs to include the costs of 21
November 2023, 6 December 2023 and 8 May 2024 and to include the costs of
two counsel on scales C and B of the High Court scale.
T.S. SIDAKI
Acting Judge of the High Court
65 Vestergaard Frandsen A/S & Ors v Bestnet Europe Ltd & Ors [2009) EWHC 1456 (Ch) (26 June
2009).
66 Id, at para 93.
36
Appearances:
Applicant Mr M Seale SC
Mr SG Fuller
Instructed by: Bernard Vukic Potash & Getz
Respondent: Mr R McClarty SC
Mr M Aggenbach
Instructed by: Heyns & Partners