THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025-096036
In the matter between:
CGIS REFRIGERATION GROUP (PTY) LTD Applicant
and
ROBERT-ARMAND BOCHNIG First Respondent
CONCORD REFRIGERATION (A DIVISION OF
SOUTHEY HOLDINGS PROPRIETARY LIMITED) Second Respondent
Heard: 14 August 2025
Delivered: 27 August 2025
JUDGMENT
ERASMUS, AJ
Introduction
2
[1] The Applicant (CGIS) seeks to enforce restraint of trade provisions against
the First Respondent (Bochnig) by way of an application in terms of Rule 39 of the
Labour Court Rules1. Bochnig opposed the application.
[2] Although no relief was sought against the Second Respondent (Concord)
unless it opposed the application, Concord opposed the application by submitting its
own affidavit s, in addition to supporting Bochnig’s affidavits insofar as it had
referenced Concord and in doing so, confirmed that CGIS and Concord have been
competitors for many years, albeit limited to refrigeration cabinets only.
[3] As a result of two opposing affidavits having been filed, CGIS filed two
replying affidavits. This , in turn, resulted in a further two affidavits by Bochnig and
Concord being filed as the customary fourth set of affidavits in restraint of trade
applications. Due to Bochnig referencing a Court order granted on 1 August 2025 by
this Court in another matter for the first time in his fourth affidavit, CGIS sought leave
to file a fifth affidavit dealing with that specific paragraph onl y, which leave is
granted.
[4] In addition to the above affidavits, CGIS filed a confidential affidavit wherein it
dealt with the confidential information which it contended supports it s claim for
enforcement of the restraint of trade, in addition to the trade connections which it
sought to protect. This, in turn, resulted in an answering affidavit being filed by
Bochnig, followed by a replying affidavit on behalf of CGIS.
[5] Furthermore, and as required by the R ules, CGIS and the respondents filed
heads of argument.
Factual background
[6] Bochnig commenced employment with Insulated Structures (1989) (Pty) Ltd
(Insulated Structures) on 1 August 2016. He furnished certain restraint of trade and
confidentiality undertakings in their favour . Through restructuring of the group,
1 GN 4775 of 2024: Rules Regulating the Conduct of the Proceedings of the Labour Court (effective
17 July 2024).
3
Bochnig’s employment was transferred to Glacier Doors , which had its name
changed to that of CGIS. CGIS had two divisions within its operations, namely
Insulated Structures and Glacier Doors . On 1 July 2019, Bochnig gave specific
confidentiality and restraint of trade undertakings in favour of CGIS as well, which
undertakings superseded the previous undertakings.
[7] These undertakings include, in an abbreviated format, amongst others:
7.1 To solely use the confidential information he would have been exposed
to, for the purpose of performing his duties as an employee of CGIS.
7.2 Not to disclose, publish, uti lise, exploit or otherwise use such
confidential information except where expressly authorised in writing by CGIS.
7.3 To return all confidential information in his possession to CGIS upon
termination of his employment.
7.4 For a period of three years and within South Africa and the other SADC
regions within which CGIS have done business in the 12 months prior to
Bochnig leaving their employ, be restrained from:
7.4.1 Being involved in a business that competes with CGIS;
7.4.2 Using or divulging the confidential information of CGIS for his benefit or
the benefit of a competitor;
7.4.3 Causing a senior employee of CGIS to leave their employment with
CGIS;
7.4.4 Soliciting business from anyone who was a customer of CGIS during
the 12 months prior to Bochnig leaving their employ; and
7.4.5 Engaging with any suppliers who were suppliers of CGIS during the 12
months prior to Bochnig leaving their employ.
[8] Bochnig commenced his employment in the position of Turnkey Solutions
Specialist: Africa, reporting to the then Export Sales Manager . On 28 January 2020,
Bochnig was appointed as the Sales and Marketing Director of CGIS, responsible for
overseeing the entire Insulated Structures team (both export and inland) . As Sales
and Marketing Direc tor, he reported di rectly to the Chief Executive Officer. Bochnig
and Marketing Direc tor, he reported di rectly to the Chief Executive Officer. Bochnig
still held this position at the time of termination of his employment.
4
[9] Bochnig’s employment terminated after financial improprieties came to CGIS’s
attention in August 2024. More specifically, upon a representative of CGIS following
up with a retail client on the unpaid balance in respect of products and services
rendered to the client, the client provided proof that payment in respect of such
services had been made directly into a private bank account owned by Bochnig.
Bochnig resigned in the face of a disciplinary hearing and after discussions, it was
agreed that CGIS would not continue with the disciplinary hearing on the basis that
Bochnig’s resignation would take immediate effect, that he would forthwith resign as
a Director of CGIS, that he would repay the monies he had received from the client
to CGIS and Bochnig would give a renewed undertaking to abide by his restraint of
trade undertakings as set out in his employment contract and agreed that any breach
thereof would be actionable immediately and that the filching of confidential
information would result in civil and criminal action against Bochnig. An agreement
was signed by the parties to that effect on 3 September 2024.
[10] Bochnig stated that he assisted a client who could not afford to purchase only
new cabinets from CGIS by personally providing the client with cabinets which did
not belong to CGIS and which Bochnig had refurbished in his own time and sold to
the client. He does not deal with how such a transaction would come to be on the
books of CGIS , though. This is , however, not im portant. What is important is that
Bochnig once again gave a renewed undertaking to abide by his restraint of trade
provisions.
[11] Bochnig complied with the restraint of trade provisions for almost nine
months.
[12] On 15 May 2025, Concord contacted CGIS and enquired about Bochnig’s
restraint of trade with CGIS, as Concord was considering the employment of
Bochnig. CGIS made it clear in no uncertain terms that it would enforce the restraint
Bochnig. CGIS made it clear in no uncertain terms that it would enforce the restraint
provisions. It came to the attention of CGIS on 28 May 2025 that Concord had
nonetheless employed Bochnig. Bochnig, however, states that he commenced
employment with Concord on 1 June 2025.
5
[13] The business models of both CGIS and Concord include the design,
manufacture, installation and servicing of energy -efficient refrigeration systems for
the supermarket and retail sectors. It is common cause that w hilst CGIS offers a
wider range of products and services compared to Concord, there is an overlap
between the two businesses insofar as the manufacture and supply of refrigerated
display cabinets are concerned. These include, for example, upright chillers, freezer
cabinets and energy-efficient display systems, to name but a few, which are used in
retail stores to keep products cold or heated whilst displaying the products for sale to
retail customers.
[14] Not only is it common cause that CGIS and Concord are competitors, but they
compete in a very narrow market which has very few clients, being predominantly
the big five retailers in South Africa and the SADC region, namely Pick ‘n Pay
Corporate, Pick ‘n Pay Franchise, Spar Group, Shoprite, Checkers and OK Foods.
Woolworths and Makro exclusively use CGIS. Both CGIS and Concord have been
operating in this market , in which there have been only a handful of competitors for
many years . Concord confirmed that it shares many of the same or similar
customers with CGIS and that they both compete in respect of national and regional
tenders.
[15] A party seeking to enforce a restraint of trade is required to invoke the
restraint agreement and prove a breach thereof. The party who seeks to avoid the
restraint bears the onus to demonstrate, on a balance of probabilities, that the
restraint agreement is unenforceable because it is unreasonable.
2
[16] This court in Esquire System Technology (Pty) Ltd t/a Esquire Technologies v
Cronjé and another
3, summarised the position regarding restraints of trade in our law
as follows:
‘1. Covenants in restraint of trade are valid. Like all other contractual
stipulations, however, they are unenforceable when, and to the extent that,
stipulations, however, they are unenforceable when, and to the extent that,
2 Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A); Basson v Chilwan and
Others 1993 (3) SA 742 (A) (Basson) at 776I-J; Reddy v Siemens Telecommunications (Pty) Ltd 2007
(2) SA 486 (SCA); Den Braven SA (Pty) Ltd v Pillay and Another 2008 (6) SA 229 (D); Experian South
Africa (Pty) Ltd v Haynes and Another 2013 (1) SA 135 (GSJ).
3 (2011) 32 ILJ 601 (LC) at para 37.
6
their enforcement would be contrary to public policy. It is against public policy
to enforce a covenant which is unreasonable, one which unreasonably
restricts the covenantor’s freedom to trade or to work.
2. Insofar as it has that effect, the covenant will not therefore be enforced.
Whether it is indeed unreasonable must be determined with reference to the
circumstances of the case.
3. Such circumstances are not limited to those that existed when the
parties entered into the covenant. Account must also be taken of what has
happened since then and, in particular, of the situation prevailing at the time
the enforcement is sought.
4. Where the onus lies in a particular case is a consequence of the
substantive law on the issue.
5. What that calls for is a value judgment, rather than a determination of
what facts have been proved, and the incidence of the onus accordingly plays
no role.
6. A court must make a value judgment with two principal policy
considerations in mind in determining the reasonableness of a restraint:
6.1 The first is that the public interest required that parties should comply
with their contractual obligations, a notion expressed by the maxim pacta
servanda sunt.
6.2 The second is that all persons should in the interests of society be
productive and be permitted to engage in trade and commerce or the
professions. Both considerations reflect not only common- law but also
constitutional values. Contractual autonomy is part of freedom informing the
constitutional value of dignity, and it is by entering into contracts that an
individual takes part in economic life. In this sense, freedom to contract is an
integral part of the fundamental right referred to in s 22.’
[17] It is common cause that the restraint of trade undertakings were given in
favour of CGIS and that Bochnig has breached same by taking up employment with
a competitor within nine months. Concord confirmed that it had employed Bochnig as
a competitor within nine months. Concord confirmed that it had employed Bochnig as
Inland Sales Manager to focus on sales, and particularly so, in the inland regions.
7
[18] CGIS claims enforcement of the restraint of trade on the basis of both
customer relations and confidential information.
[19] As the Sales and Marketing Director, CGIS stated that Bochnig had access to
its most sensitive commercial information, including proprietary pricing models,
supplier terms, margin anal yses, strategic forecasts , tender strategies , confidential
client development plans and structuring of service -level agreements . His role
extended to group- wide strategic planning, forecasting and margin analysis and
contributions to commercial strateg y across multiple business units , and he was
regularly involved in board- level discussions. He maintained direct relationships with
key clients, representing the leadership of CGIS rather than acting as a mere sales
representative, and these relationships were built solely on the authority vested in
him by virtue of his position.
[20] It is common cause that Bochnig attended the following meetings whilst in the
employ of CGIS:
20.1 Directors’ meetings every second month;
20.2 Weekly EXCO meetings;
20.3 Weekly MANCO sessions;
20.4 Weekly sales meetings;
20.5 Weekly debtors’ meetings;
20.6 Weekly procurement meetings;
20.7 Weekly production meetings;
20.8 Weekly project meetings; and
20.9 Insulated structures Management Meetings every two months.
[21] In addition to the above, he also attended the group’s annual Bosberaad in
January 2024 and the follow-up Culture and Strategy Session, also in January 2024.
[22] CGIS stated that the Bosberaad served as a high- level platform for
collaborative planning where industry developments, operational priorities and long-
term strategic objectives were discussed in depth and where Bochnig was not just
merely present, but actively participated by contributing to presentations and
8
discussions on customer segmentation, product development and regional growth
strategies.
[23] Bochnig also attended CGIS’s culture and strategy session in January 2024 ,
where CGIS’s five-year strategy was discussed in detail. A copy of the presentation
was presented to the Court by means of a confidential affidavit . It showed not only
what had been achieved by 2024, but also the goals until 2028 and the strategies on
how to achieve those goals, as well as the five-year financial plan.
[24] In opposing the application, Bochnig downplayed his access and exposure to
confidential information, stating that it was generalised and mundane information that
is of no use or that he did not commit the information to memory and could not recall
it or had forgotten about it and only recalled some of it when he saw the attachments
to the confidential affidavit submitted by CGIS . He also stated that he was not a
‘numbers person’ and that his focus was sales.
[25] These contentions by B ochnig beg the question: what was he doing as the
Sales and Marketing Director of CGIS ? Especially considering that the title of
Director was not just a title in name, and that he was indeed a registered director
with fiduciary duties as provided for in the Companies Act
4. How did he lead his
sales team without having access to or being exposed to highly confidential
information?
[26] On 31 January 2024, Bochnig signed a document entitling him to incentives
based on goals and objectives to be achi eved during 2024. From the document, it is
clear that Bochnig was placed at the centre of CGIS’s commercial strategy and
operational execution. The document reflects both his seniority and the extent of his
strategic responsibilities , which in turn confirms his expos ure to confidential
information and which can be summarised as follows:
26.1 Organisational Design and Accountability in that he was tas ked with
developing a sustainable sales structure , including role clarification, K PI
developing a sustainable sales structure , including role clarification, K PI
4 Act 71 of 2008.
9
definition and team accountability. He was thus involved in shaping the
internal architecture of the sales function and driving culture alignment.
26.2 Strategic Planning and Execution: Bochni g was responsible for
ensuring a clear, well -communicated sales strategy which aligned with the
broader business objective. This included leading structured weekly sales
meetings and engaging in period strategy reviews with the EXCO,
underscoring his role in high-level planning and cross-functional coordination.
26.3 Financial Stewardship: He was accountable for margin control across
projects, services and products , in collaboration with the finance department .
Non-profitable businesses also had to be identified and evaluated periodically.
This shows his direct influence over profitability and commercial decision -
making.
26.4 Leadership Development: He was expected to oversee the
development of the sales manager and team , aligning their capabilities with
project execution and technical delivery.
26.5 Operational Cost Management: He had to align the overheads and
costs of his Insulated Structures division to defined business margins and
profitability.
[27] Bochnig states that he does not recall the information, or that the information
that he does recall or was exposed to is outdated. Information regarding what special
discounts were given to which clients over the years , or the terms and conditions of
service level agreement s for different clients over the years , is still relevant and of
use to a competitor in circumstances where Bochnig joined the competitor nine
months after termination of his employment. The same goes for all the strategic and
confidential information that was shared in respect of the five -year plan. Bochnig’s
denials in this regard are disingenuous.
[28] In BHT Water Treatment (Pty) Ltd v Leslie and Another
5, the court remarked
as follows:
‘In my view, all that the applicant can do is to show that there is secret
as follows:
‘In my view, all that the applicant can do is to show that there is secret
information to which the [ employee] had access, and which in theory the
5 1993 (1) SA 47 (W) at 57I – 58B.
10
[employee] could transmit to the second respondent should he desire to do
so. The very purpose of the restraint agreement was that the applicant did not
wish to have to rely on the bona fides or lack of retained knowledge on the
part of the [employee]... In my view, it cannot be unreasonable for the
applicant in these circumstances to enforce the bargain it has exacted to
protect itself. Indeed, the very ratio underlying the bargain was that the
applicant should not have to content itself with crossing its fingers and hoping
that the employee would act honourably or abide by the undertakings that he
has given.’
[29] Bochnig, at the outset and without admitting that the information constitutes
confidential information of the kind that may be protected, gave an undertaking not to
disclose or use any of CGIS’s information claimed to be confidential , whether for his
personal benefit or that of an entity with which he may be directly or indirectly
associated, including Concord.
[30] In Vox Telecommunications (Pty) Ltd v Steyn & another
6, this court reaffirmed
the difficulties of attaching weight to undertakings such as the one given by Bochnig
in this case:
‘… It is for the respondent to establish that he or she had no access to
that information or that he or she had never acquired any significant personal
knowledge of, for example, the applicant’s customer basis while in its employ.
All that the applicant need show is that there is secret information to which the
respondent had access and which in theory the respondent could transmit to
the new employer if he or she was inclined to do so. In order to enforce
the restraint, the applicant does not have to show that the respondent has in
fact utilised information confidential to it, it is sufficient to show that the
respondent could do so…’ (Own emphasis)
[31] Insofar as customer relations are concerned, it is common cause that Bochnig
has customer relations. Bochnig, however, states that the relations had been forged
has customer relations. Bochnig, however, states that the relations had been forged
6 (2016) 37 ILJ 1255 (LC) at para 31.
11
in the years prior to him joining CGIS. He makes mention of some of the relations
existing for over a decade, whilst he was in the employ of CGIS for eight years.
[32] Bochnig himself, however, refers to how he met clients daily very early in the
morning as well as after normal working hours to drink coffee with them and how he
went on hunting trips with them or stayed over at their places and had them over to
his home for a braai. All of this was done whilst Bochnig was in the employ of CGIS.
He continued to forge and strengthen those relations he had prior to joining CGIS for
a further eight years on account of CGIS and at their expense, by means of CGIS
covering some of the entertainment expenses and also paying Bochnig a salary
commensurate with his senior role, which role required him to forge and nurture
relations.
[33] His contention that the i ndustry is regulated by products, price and service
and that customer relations play no role in securing business , simply holds no water.
It begs the question of what the reason would have been for forging these relations if
it played no role. Furthermore, evidence was presented of Bochnig reporting back to
CGIS that business was to follow after one such engagement with clients.
[34] Bochnig alleged that CGIS had its own client list when he commenced
employment with it and that he did not use such list, but left it to the other sales
representatives to use. He further alleged that he did not establish any new customer
connections whilst in the employ of CGIS but rather maintained his existing customer
base.
[35] As Sales Director, it is highly improbable that he did not develop any new
customer relations over the years. It was also part of his duties to oversee all sales ,
which caused him to not only have relations with his own customers, but also those
of the other sales representatives.
[36] CGIS also clearly demonstrated that Bochnig started his employment at CGIS
[36] CGIS also clearly demonstrated that Bochnig started his employment at CGIS
with ten customers, which figure had doubled the following year and continued to
grow until it reached 68 customers for the year in 2021, whereafter it reduced to 48
12
and 49. At the time that he left in early September 2024, he had serviced 37 clients
for the year.
[37] Bochnig himself confirmed that he outperformed other sales representatives
to the extent that he was the top- performing salesperson. He confirms that he is a
well-liked person.
[38] As with confidential information, Bochnig downplayed his relations with
customers. He stated in his affidavit that Woolworths sources its refrigeration
cabinets exclusively from CGIS . He continued and stated that ‘As far as [he] is
aware, Woolworths has an exclusive agreement with CGIS. [He] say[s] “as far as [he
is] aware” because [he] was not involved with Woolworths while [he] worked at
CGIS’. Bochnig would, however, not have been able to perform his function as Sales
and Marketing Director in the absence of such fundamental information.
[39] In any event, Bochnig’s contention does not withstand scrutiny as CGIS
provided clear evidence of Bochnig liaising with the Engineering Manager of
Woolworths, amongst others . Further emails demonstrate that Bochnig had been
involved in engagements regarding Woolworths and had even been party to emails
exchanged regarding price increases for Woolworths.
[40] In Basson v Chilwan and others
7, Nienaber JA identified four questions that
should be asked when considering the reasonableness of a restraint: (a) Does the
one party have an interest that deserves protection after termination of the
agreement? (b) If so, is that interest threatened by the other party? (c) In that case,
does such interest weigh qualitatively and quantitatively against the interest of the
other party not to be economically inactive and unproductive? (d) Is there an aspect
of public policy having nothing to do with the relationship between the parties that
requires that the restraint be maintained or rejected? Where the interest of the party
sought to be restrained weighs more than the interest to be protected, the restraint is
sought to be restrained weighs more than the interest to be protected, the restraint is
unreasonable and consequently unenforceable.
7 Basson supra at 767G-H.
13
[41] In Kwik Kopy (SA) (Pty) Ltd v van Haarlem and Another 8, a further
consideration was added, namely, whether the restraint goes further than is
necessary to protect the interest.
[42] From what has been referred to hereinabove and as clearly and extensively
demonstrated by the papers, CGIS have interests worthy of protection, both in the
forms of confidential information and customer relations.
[43] The questions of whether such interests are being threatened by B ochnig
attracts an affirmative answer. It is common cause that it is a small specialised
market with a very limited number of main clients who are shared between a limited
number of competitors . In addition thereto, CGIS has two exclusive clients with
which Concord does not have any dealings, or at least not yet. Business often goes
out on tender in circumstances where all vendo rs would sometimes be called to
tender, whilst on other occasions, selective companies would be afforded the
opportunity to tender. Bochnig, being in the employ of Concord, would provide
Concord with an unfair advantage, considering his exposure to confidential
information and relations forged or maintained whilst in the employ of CGIS.
[44] Bochnig would know what problems had been experienced by CGIS and
could use that to the advantage of Concord. One such example was Bochnig having
referred to a problem which Makro had experienced with the doors supplied by
CGIS.
[45] To make matters worse, Bochnig has been employed in a similar role by
Concord, namely Sales Manager , with a specific focus on inland business. His
loyalties now lie with Concord, where he would need to perform and make a success
of his role as Sales Manager at Concord.
[46] CGIS has shown that Concord has also been invited to quote on two sensitive
commercial projects involving retailers located in Upington and in the Lowveld. With
Bochnig’s extensive knowledge of CGIS , he could place Concord in a position to
8 1999 (1) SA 472 (W) at 484E.
14
undercut prices or capitalise on other information which he had been exposed to.
This is so, especially considering that Bochnig knows where CGIS will give
discounts, as well as the parameters of such discounts. Bochnig also has a close
relationship with the Regional Manager of the Lowveld project as a competitive
advantage. Bochnig had, on at least one occasion, spent the night in Nelspruit at the
expense of CGIS, visiting the Regional Manager and having dinner with him.
[47] The relationships which Bochnig forged and/or strengthened at the expense
of CGIS over eight years were built on trust, strategic collaboration and direct
engagements, and they stand to be unfairly leveraged to the benefit of Concord in
contravention of the restraint provisions.
[48] One therefore needs to weigh the interests of CGIS and Bochnig.
[49] CGIS has clear interests worthy of protection. Bochnig, on the other hand,
contends that he is experiencing financial difficulties after having exhausted his
savings during the nine months after having left CGIS and that, apart from Concord,
he was not able to find alternative employment. He has , however, not taken the
Court into his confidence by providing details of his attempts to find alternative
employment.
[50] Bochnig continuously stated that he has been unemployed for a year and that
he has been out of the industry for a year , but this is not true. It has not been
disputed, and in fact, clear evidence was presented showing that he had been in the
employ of Concord by 28 May 2025, leaving him unemployed for a period just shy of
nine months.
[51] Bochnig has experience and expertise in dry shelving without any refrigeration
aspect. He can be gainfully employed in such industries without infringing on his
restraint of trade with CGIS. CGIS has also shown that the National list of
Occupations in high demand for 2024 shows that the following positions are in high
Occupations in high demand for 2024 shows that the following positions are in high
demand: Sales Assistants (General), Industrial Products Sales Representatives and
Commercial Services Sales Agents. Bochnig prides himself as a well -liked person
who goes the extra mile in for ging relations and confirms that he is an excellent
15
salesperson. He also has managerial skills , as confirmed by his employment in
senior positions at both CGIS and Concord.
[52] Bochnig’s interests, therefore, do not outweigh the interests of CGIS. There
are also no factors of public policy that justif y the non-enforcement of the restraint of
trade in this matter.
[53] That brings this Court to the question of whether the restraint goes further
than is necessary to protect the interest.
[54] Bochnig contends that the nine months during which he did not work for
Concord were sufficient to dilute any protectable interest that CGIS may have had.
He stated that during that time, CGIS was able to continue servicing its customers
without any difficulty. The problem with this is that CGIS was able to do so due to no
interference by Bochnig.
[55] Albeit that the restraint provisions in favour of CGIS were given for a three-
year period, CGIS is asking this Court to enforce them for two years.
[56] CGIS has demonstrated the difficulties it has experienced in picking up the
ties after Bochnig had departed, which Bochnig said he could not be held liable for in
terms of the period of the restraint. Such contention, however, fails to take
cognisance of the fact that CGIS did not plan in advance for Bochnig to breach his
restraint. They continued doing business as usual, not expecting to have to reinvent
the wheel, so to speak , to avoid any damage being caused by Bochnig nine months
later. According to them, they would have had three years to bring about the required
changes, especially considering Bochnig’s repeated undertaking upon his
resignation to honour the restraint.
[57] Bochnig was in a very senior position for a fairly long period at CGIS , and
during that time, was exposed to vast amounts of confidential information, including
information regarding the five -year plan until 2028. By the time that this judgment is
delivered, almost one year will have passed since Bochnig left the employ at CGIS ,
delivered, almost one year will have passed since Bochnig left the employ at CGIS ,
albeit that the past three months have been spent in the employ of Concord.
16
Unfortunately, not even a further one- year restraint will place CGIS in the posi tion to
forge relations to the same level as those forged by Bochnig, who, by his own
admission, has by now converted some of these clients into personal fr iends. In
further weighing the interests of the parties and accommodating the circumstances
of both CGIS and Bochnig, the Court holds that a further six months would place
CGIS in the position to make whatever further changes they need to make to counter
the information that Bochnig had been exposed to and forge relations, whilst
preventing a too one rous restraint on Bochnig who has spent so many years in the
industry.
[58] Insofar as the area of the restraint is concerned, the areas within which both
CGIS and Concord operate are well known and established. To limit the area to
anything less would be nonsensical.
[59] This leave s the Court with the issue of costs. Both parties have asked for
costs. Unlike labour matters, restraints of trade are contractual matters. Furthermore,
Concord has also decided to enter the fray , seeking to protect what it viewed as its
right to employ whomever it wanted and felt would be beneficial to its company and
in doing so, filed its own separate affidavits. This caused CGIS , which is largely
successful with its claim, to incur even more expenses. Although restraints by their
very nature are complex matters, the Court intends to take the reduction in the relief
granted into account when ordering costs.
[60] As a result, the following order is made:
Order
1. The forms and services provided for in the Rules of this Honourable
Court are dispensed with, and this matter is disposed of in accordance with
Rule 38, read with Rule 39.
2. Leave to file a fifth affidavit is granted to the Applicant.
3. The First Respondent is ordered to keep the contents of the
Confidential Affidavit submitted during the proceedings confidential and to
Confidential Affidavit submitted during the proceedings confidential and to
disclose the contents thereof only to his legal representatives for the purposes
of taking instructions and delivering answers thereto.
17
4. The Confidential Affidavit will not form part of the record of these
proceedings. Any copies that may have been made or printed from
CourtOnline or Caselines are to be returned to the Applicant’s attorneys within
five court days of the conclusion of this application.
5. The First Respondent is interdict ed and restrained for a period of 18
months from 3 September 2024, from:
5.1 being involved, whether directly or indirectly and in any capacity
whatsoever, with the Second Respondent;
5.2 being involved, whether directly or indirectly and in any capacity
whatsoever, with any business or entity that competes with the business of
the Applicant;
5.3 soliciting business from any entity that was a customer or client of the
Applicant as at 3 September 2024 or within the 12 months preceding it,
whether for his own benefit or that of the Second Respondent or a third party,
in respect of services or business similar to those provided by the Applicant,
nor induce such customer or client to cease doing business with the Applicant;
5.4 engaging or attempting to engage, whether for his own benefit or that
of the Second Respondent or a third party, any person or entity who, as at 3
September 2024 or within the 12 months preceding it, acted as a supplier to
the Applicant, to conduct business with any entity that is conducting or intends
to conduct business in competition with that of the Applicant; and within the
SADC region including Namibia, eSwatini, Lesotho, Zimbabwe and Botswana.
6. The First Respondent is interdicted from utilising the Applicant’s
confidential information for his personal benefit or for the benefit of any entity
with which he is directly or indirectly associated, including the Second
Respondent or any third party.
7. The Respondents are to pay the Applicant ’s costs jointly and severally,
the one paying the other to be absolved, on Scale B.
L. Erasmus
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv C de Witt
18
Instructed by: Soldatos Cooper Inc. Attorneys
For the Respondents: Adv J Marais SC, with him C Gibson
Instructed by: Norton Rose Fullbright Attorneys