IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 18748/2024
In the matter between:
SWAGGERS HOUSE OF BEAUTY (PTY) LTD
t/a ATLANTIC BOUTIQUE Applicant
and
VANESSA DORFLING Respondent
JUDGMENT DELIVERED ON 26 NOVEMBER 2024
VAN ZYL AJ:
Introduction
1. This is an urgent 1 application for an interdict restraining the respondent from
working in competition with the applicant within a 10km radius of the applicant’s
1 Although the issue of urgency was originally in dispute (this application having been instituted
two months after the applicant had discovered that the respondent was working within the
area of the restraint), both parties had, as a result of a postponement previously granted, had
ample opportunity for the del ivery of answering and replying papers , as well as
comprehensive heads of argument, by the time that the application was argued. I indicated
during the hearing that I was not inclined to strike the matter from the roll for want of urgency,
and the parties therefore made submissions on the merits of the application with the view to
obtaining an order based on the merits.
OFF ICE OF THE C HIEF JUSTI CE
REPUBLJ C OF SOUTH AFR lCA
premises at the Atlantic Golf Estate in Melkbosstrand. The restraint is to endure
for a period of 12 months from the date of the re spondent’s resignation from the
applicant’s employ on 30 April 2024.
2. At the time of her resignation, the respondent was employed with the applicant as
a senior hairstylist. She had been working as a hairstylist for over 20 years, and
was in the applicant’s employ for about 18 months, from September 2022 to , as I
have indicated, 30 April 2024.
3. The respondent admits the existence of the restraint clause . She also admits
that she is rendering services as a hairstylist in Melkbosstrand within the area of
the restraint , at another salon located about 1,16km from the applicant’s
premises. She contends, however, that the clause serves no protectable interest,
and that it would be unreasonable to enforce the restraint in the circumstances.
4. The applicant seeks final relief on motion, and the principles enunciated in
Plascon Evans 2 as to the resolution of disputes of fact therefore apply. The
Plascon-Evans principle and the courts' robust approach thereto was
summarised as follows in Cape Town City v South African National Roads
Agency Ltd and others:3
"[165] ... In the absence of oral evidence, any genuine dispute of fact on the
papers is resolved, for purposes of determining the case, on the basis of an
acceptance of the respondent's version, unless the respondent's evidence is
so far -fetched and untena ble as to defy belief. The test for finding such
untenability has been described as 'a stringent one'. The probabilities are
plainly a relevant consideration in this regard. While a mere balance of
probabilities on the papers is not enough, the untenabilit y or far -fetchedness
of a version may be established if the improbability of the evidence is towards
the extremity of the negative end of the continuum of the measure of
probability.”
2 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E -
635C.
635C.
3 2015 (6) SA 535 (WCC) at para [165].
5. On the papers and in the course of argument there were many accusations to
and fro about inconsistencies in the parties’ respective cases, and thus as to
whose version should be accepted. It is not necessary to list all of these
complaints. In my view, none of the perceived inconsistenci es pointed out by the
applicant in relation to the respondent’s affidavits render the respondent’s
evidence so blatantly implausible as to be rejected on the papers. I consider the
respondent’s evidence in this context.
6. The main factual disputes on the papers are whether the respondent has solicited
the applicant's previous clients by approaching them and inducing them to leave
the applicant and follow her to the new salon; had access to the applicant's
computer and thus had access to confidential in formation, including client lists,
client records, clients' contact details and client cards; and has caused the
applicant to suffer financial loss as a result of her work as a hairstylist within 10
km of the salon.
7. Since final relief is sought, 4 it is t rite that the applicant has to show a clear right ,
the absence of an alternative remedy and, if the interdict should not be granted,
that it will suffer irreparable harm. As regards a clear right, the Court has to
consider whether there is an interest deserving of protection, and thereafter
consider the issue of reasonableness at the hand of the factors proposed
in Basson v Chilwan and others,5 namely: (1) Does the one party have an interest
that deserves protecti on at the termination of the employment? (2) If so, is that
interest threatened or prejudiced by the other party? (3) Does such interest weigh
qualitatively and quantitatively against the interest of the other party not to be
economically inactive and unpr oductive? (4) Is there an aspect of public policy
having nothing to do with the relationship between the parties, which requires that
the restraint either be maintained or rejected?
the restraint either be maintained or rejected?
8. Fundamentally, t he purpose of enforcing restraints of trade is to protect an
4 See Crazy Splash Swim School (Pty) Ltd v Nortje and others (2023) 44 ILJ 2538 (WCC) at
para [39].
5 1993 (3) SA 742 (A) at 767G-H.
employer's protectable proprietary interests. 6 The fact that an ex-employee has
taken up employment with a competitor does not necessarily in itself entitle the
applicant to any relief, if all that the ex -employee would be doing is to apply he r
skills and knowledge , even if acquired whil st in the applicant ’s employ . An
applicant must show that the restriction on the ex -employee's activities serves to
protect a recognisable proprietary interest.7
9. Interests sought to be protected can generally be divided into two categories. The
first is confidential information or trade secrets which are useful for the carrying
on of the business and which could be used by a competitor, if it were to be
disclosed to that competitor, to gain a relative competi tive advantage. The
second is relationships or trade connections built with customers, potential
customers, suppliers and others, all of which form part of a business’s incorporeal
property known as goodwill. 8 In Hirt & Carter (Pty) Ltd v Mansfield and another9
the Court stated:
"In my view, for an employer to succeed in establishing that trade secrets and
confidential information are an interest justifying protection by the restraint, it
should demonstrate in reasonably clear terms that the information, know-how,
technology or method, as the case may be, is something which is unique and
peculiar to the employer and which is not public property or public knowledge,
and is more than just trivial."
10. The existence of these interests requires a factual enquiry, as it is not sufficient
for an applicant to lay claim to them based on the mere existence of a restraint of
trade agreement or the alleged breach thereof. A case needs to be made out that
there indeed exist proprietary interests worthy of protection . T he respondent, in
turn, must demonstrate that the agreement is unenforceable for some or other
reason.10
6 Sibex Engineering Services (Pty) Ltd v Van Wyk and another 1991 (2) SA 482 (T).
6 Sibex Engineering Services (Pty) Ltd v Van Wyk and another 1991 (2) SA 482 (T).
7 P B Hairdressing Organization (Pty) Ltd v Kruger and another [2018] ZALCJHB 308 (6 June
2018) at para [24].
8 Massmart Holdings Ltd and others v Vieira and others [2015] ZALCJHB 451 (3 November
2015) at para [6].
9 2008 (3) SA 512 (D) at para [57].
10 See Massmart supra at para [4].
11. To be enforceable, a restraint of trade must be reasonable. 11 The enquiry into
the reasonableness of the restraint is essentially a value judgment that
encompasses a consideration of two policies, namely the duty on parties to
comply with their contractual obligations , and the right to freely choose and
practice a trade, occupation or profession.12
The restraint clause
12. The clause in the present matter reads as follows:
“Upon termination of this contract for whatever reason or in the event of an
(sic) dismissal. (sic) The Employee agrees that they will not perform services
same as per schedule 4.3 of this agreement for a period of 12 months from
date of termination in a ra dius of 10km from Atlantic Links (1 Fairview drive
(sic), Atlantic Beach Golf Estate, Melkbosstrand) in their own capacity nor
accept any employment from any business similar in nature.”
13. There was no “schedule 4.3” as referred to in the restraint clause attached to the
papers. Upon enquiry, counsel for the applicant informed the Court that the
reference was in fact to clause 4.3 of the employment agreement. This clause
reads as follows:
“4.3 JOB DESCRIPTION
4.3.1 To perform all hair care services offered at Atlantic Boutique and
act in the best interest of the company regarding improving
business.
4.3.2 To perform a high -quality service and to always act
professionally.
11 Crazy Splash Swim School (Pty) Ltd v Nortje supra at para [59].
12 Sunshine Records (Pty) Ltd v Frohling and others 1990 (4) SA 782 (A) at 794C -E; MPU
Communications (Pty) Ltd v Griffiths and others [2024] ZALCJHB 29 (7 February 2024) at
para [17].
4.3.3 To advise clients on all services and products available at
Atlantic Boutique.
4.3.4 To assist with reception duties/such related duties.
4.3.5 To keep all client information up to date on a daily basis (client
cards).
4.3.6 To ensure sanitization protocols is (sic) strictly follow (sic) in
according (sic) with COVID-19 regulations.
4.3.7 To ensure the workstation is clean at all times.”
14. The clause clearly does not describe the nature of the services that are subject to
the restraint, but rather the manner in which the respondent, as employee, should
conduct herself. The applicant refers to the respondent as a “hairstylist”, and the
respondent does the same. Neither party relies on the performance by the
respondent of any par ticular services . In these circumstances, the restraint
purports to cover all of the s ervices generally rendered by a hairstylist in the
course of a normal workday.
15. It is in this context that the question arises as to what the applicant’s protectable
interest is.
A protectable interest?
16. It is common cause that when the respondent took up employment with the
applicant in September 2022, she was already regarded as a senior stylist.
There is no evidence that the respondent learnt her craft, or any particular aspect
thereof, whilst in the a pplicant’s employ – on the papers she attended one
training session for which the applicant footed the bill. It is accepted, therefore,
that she had entered, and later left, the applicant’s employ with certain skills
already part of her skills and capacity arsenal.
17. The respondent has placed heavy reliance on the matter of P B Hairdressing
Organization (Pty) Ltd v Kruger and another .13 The applicant submitted that P B
Hairdressing is distinguishable from the present matter and that it therefore does
not assist the respondent. Although there are certain distinctions, they are not
material in all respects, and I do regard the case as helpful for present purposes .
This is particularly so in relation to the question of whether the applicant has
demonstrated a protectable interest.
18. In P B Hairdressing, the respondent, one Kruger, had taken up new employment
1,7km from the applicant’s premises. 14 In considering whether to enforce a
restraint of trade, the Court emphasised that the hairdressing industry is unique
and does not entail the mere provision of services or goods, nor does it ordinarily
involve the selling, buying or delivery of specialised products. While salons
provide an avenue for the forging of relationships with clients, the nature of the
service provided to clients ordinarily involves an application of the stylist's own
personal skills, expertise, and know-how:
“It is accepted in the hairdressing industry that despite some form of training,
mentoring and investment into a stylist, the latter, in any event ultimately will
apply his or her own skills, knowledge, experience and personality in
attending to the individual and personal needs of clients. Any claim by a salon
owner that there is a specific formula applied by stylists in attending to the
needs of each customers would be fallacious, in that each individual client
invariably has specific if not unique needs, even if he or she is a repeat
client.”15
19. To some extent, it can even be argued that there is an element of a human touch
involved in the provision of services in such an industry. The Court accordingly
held that Kruger was correct in his assertions that the very nature of the product
held that Kruger was correct in his assertions that the very nature of the product
serviced in the light of these considerations cannot by all accounts be construed
13 [2018] ZALCJHB 308 (6 June 2018).
14 See para [16] of the judgment.
15 See para [28] of the judgment.
to be the product of the employer or its proprietary interests. 16 The Court
indicated:
“[34] Applying the above principles to the facts of this case, the starting point
is to accept that the very nature of establishments such as hairdressing is that
the hairstylists invariably develops personal contacts or attachment with
regular clients that they attend to. This is so in that clients ordinar ily have
individual specific needs and tastes, and seek to be attended to by specific
stylists of their choice. A rapport is built between the stylist and the client as a
result of the personal nature of the service provided, and invariably, clients
want stylists they are comfortable with, know and trust, and who understand
and appreciates their own personal (styling) needs. That relationship can for
all intents and purposes be described as unique.
[35] It can also be accepted that stylists through their ow n personalities or
skills, endear themselves to those clients, hence the latter’s need to be
attended to by them. In effect, it cannot be said in such an industry that there
is a one size fits all formula in the procurement and retention of clients. Clients
come and go to salons depending on whether their hairdressing needs and
requirements are met, and it cannot be said that they are necessarily attached
to the salon itself. It is not far -fetched to conclude that clients tend to be
attached to stylists ins tead. The salon merely provides an avenue for the
expression of a relationship between the stylist and the client. This is the trend
in all professions where clients require intimate contact and attention.”
20. The Court considered that clients in the industr y ordinarily get attached to the
stylist rather than the salon. To equate the skills, know -how and experience of a
hairdresser or hairstylist, inclusive of his or her personality, to that of a product
capable of accruing to the employer as proprietary inte rests would be reverting to
capable of accruing to the employer as proprietary inte rests would be reverting to
the archaic master and servant system, where the salon owner not only owns the
property, but also the inherent skills, expertise, know -how and persona of the
stylists. The Court concluded that doing so would not be consistent with the
16 At para [38].
tenets and values enshrined in the Constitution.17
21. The Court accordingly held that the restraint of trade was unenforceable since all
Kruger was doing at the competitor salon was applying his skills, knowledge and
know how. To deprive Kruger of the benefit of utilising the only skills and
knowledge he has, would be inimical his constitutional rights to be employed and
to trade freely. Finally, the Court found that such a restriction would not serve to
protect any discernible or recogni sable proprietary interest, and would equally be
unreasonable, contrary to public policy and unenforceable:
"It is worth repeating that any attempt in enforcing a restraint of trade in
circumstances where a proprietary interest has not been demonstrated
is purely an attempt at eliminating competition, and this cannot be
countenanced. In my view, the facts of this case point to this application
being intended to eliminate competition, especially near or around the
prime area of Nelson Mandela Square in Sandton."18
22. These comments are, in my view, equally apposite in the present matter – and
perhaps even more so given the particular circumstances pertaining to the
respondent. Notably, in P B Hairdressing the respondent had worked for the
applicant for about 18 years, and had entered its employ as a trainee hairdresser.
The respondent in that case therefore acquired much of his skill while he was in
the applicant’s employ, and within the applicant’s suppo rt system. In the present
matter, as I have indicated, the respondent worked for the applicant for a period
of less than two years, and she was already a capable and experienced stylist at
the time she entered the applicant’s employ.
23. It is of course so t hat the fact that a risk exists as to the use of confidential
information or trade secrets is sufficient19 to satisfy the harm requirement under
the prevailing test for the enforcement of restraints. In IIR South Africa BV
the prevailing test for the enforcement of restraints. In IIR South Africa BV
(Incorporated in the Netherlands) t/a Institute for International Research v Hall
17 At paras [39]-[40].
18 At para [45].
19 Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA) at para [20].
(aka Baghas) and another20 it was held:
“Where the ex -employer seeks to enforce against his ex -employee a
protectable interest recorded in a restraint, the ex-employer does not have to
show that the ex -employee has in fact utilised information confidential to it -
merely that the ex -employee could do so. … the ex -employer 'has
endeavoured to safeguard itself against the unpoliceable danger of the [ex -
employee] communicating its trade secrets to a rival concern after entering
their employ. The risk that the [ex -employee] will do so is one which the [ex -
employer] does not have to run, and neither is it incumbent upon the [ex -
employer] to inquire into the bona fides of the [ex -employee] and
demonstrate that [he or she] is mala fide before being allowed to enforce its
contractually agreed right to restrain the [ex -employee] from entering the
employ of a direct competitor.'’
24. I agree, however, with the submissions made on the respondent’s behal f that the
applicant has failed to identify any specific information which it considers to be
confidential and justifying the enforcement of the restraint clause . On the
respondent’s evidence, she was not in a position to gain access to any such
confidential information – this is dealt with in some more detail later in this
judgment. According to the respondent she had no knowledge of the applicant's
costing, sales, suppliers, or business strategies. As I have indicated, it is not
disputed that at the time that the respondent commenced employment with the
applicant she was already an experienced hair stylist. It follows that the
respondent is using her own skill and training to practice her profession. The
respondent cannot be prevented from using her general knowledge, skill, and
experience to earn a living . E nforcing a restraint of trade to do so would be
unreasonable.21
25. In the absence of a protectable interest o r proof of any harm or threat of harm to
25. In the absence of a protectable interest o r proof of any harm or threat of harm to
a protectable interest, the applicant's attempt to enforce the restraint clause
against the respondent amounts to an attempt to stifle competition. A restraint of
20 2004 (4) SA 174 (W) at para [13.4.1].
21 Bonnet & another v Schofield 1989 (2) SA 156 (D) at 160A-B.
trade provision with the sole aim of stifling competition is against public policy and
is unenforceable.22
26. In the premises, it would be unreasonable to enforce the restraint against the
respondent. In the words of P B Hairdressing:
“[47] In the light of no protectable interests having been demonstrated, the
enquiry into weighing up of the interest of the parties qualitatively and
quantitatively becomes moot. Even if for some reason the facts of this case
had disclosed something of a protectable interest, (which is not the case), it is
my vie w that those interests, both qualitatively and quantitatively, do not
outweigh Kruger’s interest to remain economically active and to apply his
skills, knowledge and know-how in the industry of his choice. Thus, in regards
to the relief sought, it should b e concluded that even if it is appreciated that
the applicant’s alternative remedies are limited if not non -existent, I am
satisfied that the other elements of the relief have not been satisfied, and thus
the application ought to be dismissed.”
27. I am of the view that the position in the present matter is the same. I
nevertheless deal briefly with the applicant’s allegations as to the respondent’s
access to confidential information, her alleged inducement of the applicant’s
customers, and the financial harm allegedly suffered by the applicant as a result.
Access to the applicant’s confidential information
28. The applicant argues that the respondent had access to its c ustomers’ contact
details in the course of her employment , and that she must have used such
information to lure the applicant's customers away to her new salon.
29. There is, however, no reason evident from the papers to reject the respondent’s
evidence that she had not in the course of her employment with the applican t
obtained confidential information that would enable her to gain an advantage over
22 See Aston International College Ballito (Pty) Ltd v Erasmus and another [2023] ZAKZDHC
22 See Aston International College Ballito (Pty) Ltd v Erasmus and another [2023] ZAKZDHC
1 (24 January 2023) at para [16].
the applicant in her (the respondent’s) new employment milieu.
30. The respondent’s involvement with the online booking system wa s limited to the
making of bookings – she had no access to customer details . Managing her
bookings is not to be equated to managing the client information system. A
receptionist who was in the applicant’s employ prior to and at the time of the
respondent’s resignation, confirms under oath that she (the receptionist) was the
only one who had handled the reception area and thus the interface with
customers. She was the one who was responsible for updating client information
kept on the electronic system known as SalonBridge. The receptionist confirms
that the respondent did not have access to the relevant computer.
31. In fact, the IT specialist who examined (at the applicant’s beh est for the
purposes of this application) the relevant logs on the applicant’s booking system
indicated as follows: “ She logged in with her individual profile, made bookings,
updated bookings, etc. But nothing more than that .” The IT specialist confirmed
that the respondent “ had access to SalonBridge as a therapist/individual, where
she could manage her own bookings. Sometime after, her access was updated
to reception, where she could manage bookings for all the therapists”.
32. According to the receptionist, the applicant’s manager was however adamant that
staff members were not allowed to work at the reception desk or use the
computer under any circumstances . T he only pe rsons allowed in the reception
area and who had access to the computer and work phone were the receptionist,
the manager, and an assistant . They were the only people allowed to handle
customer payments. N o other staff members or employees (including the
respondent) were allowed to deal with payments or customer information5
33. According to the receptionist the clie nt cards used at the applicant’s salon
contained no contact information for customers, other than their names and
contained no contact information for customers, other than their names and
surnames. In any event, to the receptionist’s knowledge, the respondent never
contacted any of the applicant's customers when she resigned from the salon.
34. All of this is supported by the fact that the respondent’s employment contract
itself expressly provides that an employee such as the respondent “ agrees that
no customers will be contacted directly for any reason whatsoever, including
moving appointments, cancelling appointments and that all communication will be
channelled through Swaggers House of Beauty or by approval in writing ”. It is
accepted, on the papers, that the respondent adhered to this provision.
Inducing the applicant’s customers, and causing the applicant financial harm
35. The applicant argues that the respondent induced its (the applicant’s) customers
to follow her to her new place of work. The applicant contends that, given the fact
that the respondent is rendering services to some of the applicant's erstwhile
customers (who the respondent had dealt with as a hairstylist in the employ of the
applicant) the only conclusion to be drawn is that the respondent solicited these
customers.
36. This is not borne out by the evidence viewed in its totality. The respondent
denies ever contacting or approac hing the applicant's customers, and explains
that some of her previous customers approached her themselves after they had
found out that she had left the applicant’s employ. The respondent's version is
consistent with the evidence on record , including con firmatory affidavits from
three of the customers she had assisted while she was still employed by the
applicant.
37. These customers testified that the respondent never informed them that she was
leaving the applicant's salon, and never contacted them to advi se that she was
working elsewhere. One of these customers had been told by a friend that the
respondent had left, and the other personally sought out the respondent at her
new location because of her exceptional skills and professionalism. This
customer also explains that the respondent's new salon is a very small set -up
with only two seats on a rent-a-chair model. It could never be considered a threat
with only two seats on a rent-a-chair model. It could never be considered a threat
to a large, well -established salon like the applicant’s , which is located in a
residential estate next to a golf course and which has access to a steady stream
of potential clients.
38. The applicant complains, in its affidavits, that there was a marked decrease in
sales over the period August 2023 to August 2024. According to the applicant,
the only change over that period was the respondent’s resignation. Therefore, it
says, the respondent’s conduct must have been t he cause of the loss. The
applicant argues that the respondent’s clear intention was to rely on the
applicant’s good name and established clientele to build up her own customer
base, so that she could open her own salon and ho pe that the applicant’s
customers would follow her.
39. The list of customers on which the applicant relies, however, shows that many of
the persons who no longer make use of the applicant’s services failed to return to
the applicant long before the respondent left the applicant’s employ . There is no
point in speculating as to the reasons why those customers did not return. The
applicant’s salon offers all types of beauty treatments, apart from hairstyling
services, including nail and spa treatments. The drop in profits could relate to
any of the services.
40. The situation is equally opaque in respect of the customers who failed to return
after the respondent’s departure. It is of course so that a stylist like the
respondent has the opportunity (and an employer would probably call it a
responsibility) to forge and maintain personal relations with c ustomers. As such,
a “regular client” would almost without fail report to a specific stylist each time
they visited the salon for a hair treatment or styling. This by itself does not,
however, render an employee such as the respondent guilty of inducing such
customers to leave the applicant upon the employee’s resignation.
41. The respondent’s evidence suggests that the decrease in the applicant’s profits is
the result of the applicant's own mismanagement of the salon ra ther than the fact
that the respondent is working as a hairstylist within 10 km of the salon. In email
that the respondent is working as a hairstylist within 10 km of the salon. In email
correspondence to the applicant’s management, a representative of the Atlantic
Beach Homeowners' Association (the applicant’s salon is located within the
estate) expressed concern about the "situation in the salon, given … the high
staff turnover… and there is growing concern amongst residents and members".
The high staff turnover is likely to be a contributing factor to the applicant's loss of
business. When the respondent submitting her resignation, two other stylists also
resigned. The stylist who was appointed after the respondent’s resignation left
less than a month later.
42. The applicant had in fact notifie d the Homeowners’ Association during October
2024 of its intention to sell the salon. Whilst it is unclear when the applicant
made this decision, it is reasonable to assume that it was some months ago,
perhaps even prior to the commencement of this litiga tion. The respondent
contends that the fact that the applicant intends to sell the salon supports the
conclusion that the salon has been experiencing financial difficulties for some
time which cannot be attributed to a single employee – the respondent - resigning
and working as a hair stylist within a 10km radius of the salon.
43. The applicant’s director and manager , moreover, were both in hospital over the
period May 2024 to July 2024 at the time when they were responsible for running
the salon. This could explain the decrease in profits in August 2024. In the
circumstances, it is unlikely that the respondent’s departure and her rendering
services within 10km of the applicant’s salon could cause such a significant
decrease in profits in the four-month period between her resignation in April 2024
and August 2024.
44. The long and the short of the matter is that the decline in revenue could be a
result of various factors . In my view, it cannot be concluded that the applicant’s
financial loss was occasioned by the respondent’s conduct. On the papers, the
applicant has not made out a case to the effect that the respondent has lured
away its customers in order to establish herself at her new place of employment.
45. In all of these circumstances, the mere fact that the respondent now works within
the 10km radius stipulated in the restraint clause is not sufficient to enforce the
restraint of trade against her. I have already found that the applicant has failed to
restraint of trade against her. I have already found that the applicant has failed to
prove that any protectable interest has been harmed or threatened. On the
papers, it has not been established that the respondent has solicited clients or
used the client connections she established during her employment with the
applicant in manner that has harmed or will harm the applicant's interests. In the
absence of harm or threat of harm to a protectable interest the restraint clause
cannot be enforced.
Costs
46. There is no reason to depart from the general rule as to costs in the present
matter.23 In the circumstances, I am of the view that the general rule should be
adhered to, and that costs should follow the event. The parties were agreed that
such costs should include counsel’s fees on Scale B.
Order
47. In the circumstances, the following order is granted:
1. The application for the amendment of the notice of motion is granted.
2. The applicant shall pay the costs of the application for amendment
and the costs occasioned by the amendment, including counsel’s
costs on Scale B.
3. The main application is dismissed, with costs, including counsel’s
costs on Scale B.
___________________
P. S. VAN ZYL
Acting judge of the High Court
Appearances:
23 Prior to hearing argument on the merits I granted an order amending the notice of motion inter
alia to make provision for the grant of a costs order (which had been omitted when the
application was issued). I ruled that the costs of the amendment application ( which was
opposed) and any costs occasioned by the amendment were to be borne by the applicant,
including counsel’s costs on Scale B.
Counsel for the applicant: C. M. van der Merwe , instructed by
Craucamp Attorneys
Counsel for the respondent: J. Foster, instructed by Thomson Wilks Inc.