THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: 2025-144680
In the matter between:
G4S DEPOSITA (RF) (PTY) LTD Applicant
and
CELESTE HARMSE Respondent
Heard: 22 October 2025
Delivered: 5 November 2025
This judgment was handed down electronically by circulation to the parties by
email. The date and time for hand-down is deemed to be 5 November 2025
Summary: Confidentiality obligation – fiduciary duty of employee relating to
confidential information of employer considered – conduct of employee upon
resigning breaching fiduciary duty relating to confidential information –
employee having no reasonable / acceptable explanation for her conduct –
employee attributing information when joining competitor – employer entitled
to relief protecting confidential information
Costs – principles considered – exercise of discretion – conduct of employee
considered – employee faced with indefensible conduct offering false
explanation – employee failing to provide unequivocal undertaking – cost order
between party and party scale C justified
2
JUDGMENT
SNYMAN, AJ
Introduction
[1] The current application came before me at the conclusion of a course of
litigation embarked upon by the applicant against the respondent, when the
respondent sought to resign from her employment with the applicant and then
appropriate a substantial amount of the applicant’s confidential information.
Contrary to what is mostly the case in such situations, what we have in this
case is not the enforcement of a pertinent restraint of trade obligation. Rather,
it relates to the fiduciary duty owed by the respondent to the applicant as
employee, by virtue of her contract of employment with the applicant. The
application has been brought in terms of section 77(3) of the Basic Conditions
of Employment Act (BCEA)
1.
[2] The matter started, in terms of the applicant’s notice of motion, with an ex
parte Anton Piller order and interim interdict under part A , pending the final
relief sought under part B of the application. The application was originally
brought on 22 August 2025, and in an order gran ted on 26 August 2025, the
respondent was interdicted and restrained from using, distributing, copying,
publishing or implementing the applicant’s data, intellectual property,
documentation and / or confidential information. A further order was also
granted in terms of which the respondent was o rdered to disclose and point
out to the sheriff: (1) documents belonging to or emanating from the applicant ;
and (2) any electronic storage device, which would include any personal
computer, cell phone, storage discs, hard disc drives, solid state drives, USB
flash drives and any tablet . The sheriff was then authoris ed to seize, attach
and remove all these items and to keep them in safe custody . A digital expert
examination by computer experts, including any experts appointed by the
respondent, of any documents and/or storage devices pointed out and seized
in the s earch, was authorised. And lastly, the computer forensic expert (s)
in the s earch, was authorised. And lastly, the computer forensic expert (s)
1 Act 75 of 1997 (as amended).
3
would be required to make a detailed inventory of the items and fil e an
affidavit with the court setting out their actions and what documents, data or
information was retrieved from the devices . The return date for all these
interim orders was 22 October 2025.
[3] Where it came to the final relief sought under part B of the notice of motion,
the application was opposed by the respondent, who filed an answering
affidavit on 1 October 2025. However, and when the matter came before me
on 22 October 2025 on the return date, the parties appeared to have achieved
consensus that the applicant would in principle be entitled to the substantive
relief sought in part B of the application, effectively meaning that the interim
interdict against the respondent protecting the applicant’s confidential
information be made final. Urgency was not in issue between the parties,
having been disposed of in the order of 26 August 2025. But what remained
hotly contested was the issue of costs. The applicant persisted with a request
for punitive costs against the respondent . The respondent argued that no
costs order was appropriate.
[4] After hearing argument by both parties, having considered all the pleadings
and heads of argument filed, and on 22 October 2025, I granted the following
order:
1. The respondent is interdicted and restrained from using, distributing,
copying, publishing or implementing the applicant’s (or the applicant’s
clients) data, intellectual property, documentation and / or confidential
information in any form or manner whatsoever.
2. The respondent is ordered to pay the costs of the application, which
shall include the costs of part A of the application, on the party and
party scale C.
3. Written reasons for this order will be provided on 5 November 2025.
[5] This judgment now constitutes the written reasons as contemplated by
paragraph 3 of the order, above. I will commence by setting out the relevant
background facts.
The relevant background
4
[6] In this instance, much of what the applicant complained of the respondent had
done, was not really in dispute. What was in issue is whet her the respondent,
even on her own version, had a proper explanation for what she did, which
conduct on face value appeared entirely irregular, inappropriate and highly
questionable, especially considering the seniority of her position at the
applicant and the fact that she was out to join a competitor upon leaving.
[7] The applicant is a cash and payments solutions enterprise which specialises in
providing advanced automated cash management solutions to optimise the
handling of cash and payments for its customers’ businesses of all sizes. Its
customer offerings are tailored to the requirements of each individual customer
so as to reduce the risks, costs and inefficiencies associated with manual cash
handling. The business of cash management services requires a very high
degree of good faith and confidentiality between the applicant, its employees
and its customers. The applicant’s employees have access to confidential
information relating to inter alia customer list s, client financial information,
pricing and business strategies, as well as intellectual property and proprietary
information relating to security features of devices, and the pricing for the
material costs on in house developed devices and internal processes.
[8] The bulk of the confidential information of the applicant is contained in
electronic files, folders, and shared drives used in the ordinary course of the
applicant’s business and which are housed in Google Drive for Business,
which is the enterprise component of Google Workspace. This is a secure,
business-grade Google Workspace service subscribed to and managed by the
applicant. This repository of co nfidential information is only accessible to
employees of the applicant. No third parties or the public have any access to
this information. All this information is proprietary, highly confidential, and is
this information. All this information is proprietary, highly confidential, and is
owned and retained by the applicant.
[9] The respondent was employed by the applicant as the Head: Retail Cash
Solutions, which is a high level and senior position. She had unfettered access
to all of the applicant’s confidential information on its systems. She
commenced employment on 4 January 2010, in terms of a written contract of
employment. This contract of employment , in clause 8, contained a
5
confidentiality undertaking. In terms of this undertaking, she undertook that
during the course of her employment and upon termination thereof, n ot to use,
for any purpose whatsoever, any material , manual, document or publication
which is or has been used by the applicant in the performance of its business.
Also, and upon termination of employment, she was required to return all
documents, drawings, reports, manual, correspondence, customer lists,
computer programmes and all other material and copies acquired by her
during the course of her employment. The respondent was also bound by the
applicant’s business ethics policy which provided that employees should not
make use of confidential information obtained through their employment, nor
disclose it.
[10] On Monday, 4 August 2025, the respondent tendered her resignation. This
resignation was however preceded by a number of pertinent actions on her
part, which on face value smacked of impropriety. This is especially so
considering that upon the termination of her employment with the applicant,
she would immediately commence employment with Fidelity, a direct
competitor of the applicant in the cash and payment solutions industry. These
events are set out below.
[11] First, and two days earlier, on Saturday, 2 August 2025, the respondent
entered the applicant’s offices, together with an unidentified man and woman.
They were observed on the applicant’s closed-circuit television (CCTV)
removing various items from her office, including a box of hardcopy files and
documents. Next, and on Sunday, 3 August 2025, the respondent began
downloading documents from the applicant’s Google Drive repository of
company information, starting from approximately 10h57 and until about
19h00. She resumed downloading files at approximately 06h00 on Monday, 4
August 2025. Approximately 1 083 documents were downloaded by her in this
period.
[12] When the respondent then handed in her letter of resignation on 4 August
period.
[12] When the respondent then handed in her letter of resignation on 4 August
2025, the applicant sought to discuss this with her , asking her to reconsider it.
During this discussion, she mentioned that she thought that the applicant
would offer her the vacant sales director role, for which the applicant did
consider her to be a strong candidate for appointment. She also mentioned
6
that she had cleared out her office as she thought she was not going to be
permitted to tender her services during her notice period. But she did not
explain what she had removed.
[13] The respondent was indeed placed on garden leave having submitted her
letter of resignation, however this only happened some two weeks later , on 19
August 2025. In this two weeks ’ period preceding being placed on garden
leave, the respondent did not once seek to do a handover to any relevant
personnel of the applicant using any of the information / documents she had
taken / downloaded. She did not even disclose to the applicant that she had
downloaded all of t his information. She also never offered to return the
documents / information or to delete the same.
[14] The respondent was placed on garden leave on 19 August 2025 when the
respondent learned she would be taking up employment with Fidelity. The
applicant learned this when it proceeded to offer the respondent the vacant
position of sales director, which it believed she would accept. However, and on
14 August 2025, the respondent rejected the sales director position and
expressed a clear and final intention to leave the applicant’s employ and join
Fidelity. It is then that the applicant was prompted to investigate the
respondent’s movements, and it then discovered all the conduct on her part
set out above.
[15] In the light of the reasonable belief held by the applicant that the respondent,
having downloaded the information / documents , would retain these
documents on personal devices or in digital storage, for her o wn personal use
or use by third parties, especially a competitor like Fidelity where the
respondent would take up employment , the applicant decided to take urgent
action. This prompted the applicant to bring the urgent ex parte application on
26 August 2025 as referred to above. The order obtained on that date was
executed on 27 August 2025. The execution of the order was carried out by
executed on 27 August 2025. The execution of the order was carried out by
the sheriff and was recorded by an independent observer . The observer’s
affidavit confirms th at the sheriff located and seized a number of items
including: (1) approximately 17 workbooks; (2) worksheets including SOP
contracts; (3) co mmission policies ; (4) national sales meetings, notes and
7
competition prize worksheets; (5) customer member list files; and (6) several
flash drives and three CDs containing digital information.
[16] When the order was executed and the search conducted, the respondent was
less than forthcoming with the information that she had in her possession . It
was only belatedly, in the course of the search , that the respondent produced
an external drive labelled ‘ WD Elements’, which the applicant established had
been plugged into her laptop to copy information. This drive was found to
contain a vast amount of the applicant’s information. If the respondent always
intended to return any information she had, it is unclear why she did not
present this drive to the applicant at the commencement of the search.
Instead, she attempted to disguise her possession of this information.
[17] To put matters into proper perspective, o ver the two days prior to the
respondent’s resignation, the respondent made 1 083 downloads of
documents. This is opposed to her normal downloads which was usually about
150 downloads per month. This is clearly a massive and extraordinary
increase in downloads. And to compound the issue, these downloads were all
made over the weekend immediately preceding her resignation. The
respondent does not dispute having made all these downloads in these two
days.
[18] It further appeared that the respondent proceeded to download all this
information on external storage devices. There would be absolutely no need
for her to do so in the ordinary course of her duties, as all information she
would ever need was stored and readily accessible on the Google Storage
Drive. There could also be no reason for her to store the information privately.
As touched on above, it was established that the respondent downloaded the
bulk of the information to a private devic e, being the external USB device
labelled “WD Elements ” which was connected to her laptop at 17h46 on 3
August 2025.
labelled “WD Elements ” which was connected to her laptop at 17h46 on 3
August 2025.
[19] Further anomalies bear mention. First, the respondent’s company cell phone,
upon it being returned by her, had been reset to factory settings a nd as a
result, was wiped of its data when she returned it . Also, and between 20 and
21 August 2025, when initial checks were conducted on the respondent’s
laptop to verify her downloads and browser histories , it was discovered that
8
through checks of her 'Downloads' folder on her C -drive and her browser
history in her 'Google Chrome' application, that her logs had been deleted for
the relevant periods in question. Lastly, the respondent had logged in to the
Google Drive using a Microsoft browser (not the usual Google browser) when
she conducted the downloads, apparently to avoid her online activity being
tracked.
[20] In defending the matter, and as touched on earlier, the respondent never
effectively challenged the above facts. She admitted having made the
downloads. She also admitted that she made more downloads than would
normally be the case. But she sought to offer a number of explanations why
she did this.
[21] But before dealing with these explanations, the respondent sought to contend
that after the Anton Piller order and the interim relief had been granted, there
was simply no need to have pursued this matter further, because she had
provided an undertaking to the applicant that would dispose of the relief it
sought, and that all the information she may have had , had been taken away
and / or destroyed. Or as the respondent says, w hat is done is done and
cannot be undone, but things need not continue.
[22] The problem however is that the purported undertaking the respondent said
she provided, is in reality no undertaking at all. According to the respondent,
the undertaking is contained in a with prejudice letter dated 19 September
2025 sent by her attorneys to the applicant’s attorneys. However, and properly
considered, this letter does not contain an undertaking in the true sense, but
rather an offer in full and final settlement. The undertaking forming the subject
matter of the offer is also not the relief sought by the applicant in part B of the
notice of motion, but is linked to two caveats. The letter records that the
respondent undertakes not to, from her side, unreasonably use, distribute,
copy, publish or otherwise exploit any data, intellectual property or confidential
copy, publish or otherwise exploit any data, intellectual property or confidential
information belonging to the applicant , in any form or manner that may
constitute unlawful competition. It is also proposed as a component of the
whole settlement offer that each party its own costs. The nature of this
undertaking will be dealt with later in this judgment.
9
[23] The respondent says that she never intended to retain or use any confidential
information of the a pplicant and would have conveyed this to the applicant
during an exit interview and handover, had such an opportunity been afforded
to her. She contends that m ere possession of the documents by her does not
equate to any wrongdoing, and there exists no evidence that these documents
were or would be used for any other reason than the r espondent finalizing her
work and doing a proper handover. According to the respondent, she would
immediately have destroyed or concealed any alleged incriminating material if
her intended modus operandi was mala fide. And finally, she explains that her
access to company documents, and even the downloads she made as set out
above, was authorised and consistent with her duties , took place whilst s he
was still employed, and related to her working from home, as she routinely did.
[24] Finally, and according to the respondent, the true motive behind this
application is not the protection of confidential information, but retaliation for
her decision to resign and take up employment with Fidelity . The entire
proceedings, as far as the respondent is concerned, is bullying tactics to
prejudice the respondent . She explains that she was a mere salaried
employee, a single mother, and the primary caregiver to her daughter and
aging mother, without the financial means to oppose the applicant. She states
that the applicant has repeatedly asserted its commercial strength and
capacity to litigate this matter, simply to cause her as much harm as possible.
[25] The above being the pertinent facts in this matter, I must now decide whether,
on these facts, the applicant is justified in pursing relief under part B of the
notice of motion to finality, and further , to seek punitive costs against the
respondent in doing so. Answering these questions, I turn to next.
Analysis
respondent in doing so. Answering these questions, I turn to next.
Analysis
[26] I must confess that I find the conduct of the respondent immediately preceding
her resignation to be perplexing. Clearly, she knew well beforehand that she
would be leaving and joining a direct competitor , being Fidelity, which state of
affairs is inconsistent with any need on her part to then download the amount
of information that she did. I am also convinced that her position as Head:
Retail Cash Solutions at the applicant had something to do with her managing
to secure employment at Fidelity , and she certainly wanted to bolster her
10
employment there with useful confidential information in tow . She never took
the Court into her confidence to say exactly how she came to be employed at
Fidelity and what she would be doing there. All this considered, her bulk
copying of information over the weekend before she tender ed her resignation
in itself speaks volumes, and as a matter of common sense, points to the fac t
that she clearly intended to use this information in her employment at Fidelity.
[27] What must stand out is the sheer volume of the extracting of information
perpetrated by the respondent. As set out above, she extracted in excess of
1 000 documents in two days , where she would normally extract 150
documents per month. And all this happens over a weekend, with the bulk of it
being t hroughout the entire day on Sunday 3 August 2025, knowing her
resignation would come on Monday. On her own version, she believed she
would not be required by the applicant to work out her notice once she
resigned, and this situation would of course include blocking her access to the
applicant’s systems. So, the respondent sought to extract all she wanted and
needed before her access privileges were revoked in the normal course.
There can be nothing bona fide in this conduct, and despite her protestations
to the contrary , her intentions in doing so are in my view obvious and likely
pre-planned. I am quite satisfied that the respondent intended to extract all this
information so she could use it in her new employment at Fidelity.
[28] One must also consider that when the respondent then submitted her
resignation on 4 August 2025, the applicant sought to retain her services, by
offering her the vacant sales director position she had been interested in.
Surprisingly, she rejected this offer , which one would think showed her value
to the applicant . What this shows is that when she decided to resign, she
made up her mind to leave, which surely makes the bulk download of
made up her mind to leave, which surely makes the bulk download of
information immediately before pulling the trigger inexplicable.
[29] When the applicant was placed on garden leave on 19 August 2025, she
clearly knew that she would not be required to render any services from then
and up t o the point of her final termination of employment when her notice
expired. Yet she did not offer to do any handover, nor did she offer to return
any of the information she knew she still had in her possession. She in fact
suggested to the applicant she had no information. When the applicant
11
executed its Anton Piller order , the respondent was less than for thcoming in
disclosing what information she had in her possession. Her conduct in only
belatedly disclosing the WD Elements drive is particularly concerning. All said,
the respondent was simply not forthright, and considering what I have said
above, her lack of openness was in pursuit of her own interests.
[30] Considering what the applicant was confronted with when faced with all the
aforesaid undisputed conduct of the respondent, and knowing that the
respondent would be joining Fidelity, it is my view that it was entirely justified
in accepting that the respondent was conducting herself in an untoward
manner and acting in bad faith. As such, it was certainly justified in
approaching this Court, seeking the relief as set out in the notice of motion.
With the applicant having established what is a proper prima facie case, the
duty now shifted to the respondent to provide a plausible and acceptable
explanation for her conduct.
2
[31] However, t he explanations offered by the respondent for her conduct are
palpably implausible and inherently lacking in credibility. First and foremost,
there can be absolutely no plausible reason for her to download such a wealth
of information, as she had always unfettered access to all of it on the
applicant’s systems. In fact, all the information is kept on the secure system
and employees are given access to it, so that no downloading is needed.
Further, the respondent sought to access the system in a clandestine manner
(using a Microsoft account instead of the Google account ) to attempt to
conceal the download. Finally, she never disclosed to the applicant, even
when being finally placed on garden leave, that she downloaded the
information or offered to delete and / or return it. As a general proposition, her
explanations can comfortably be rejected, and the version of the applicant
explanations can comfortably be rejected, and the version of the applicant
2 In Federal Cold Storage Co Ltd v Angehrn and Piel 1910 TS 1347 at 1352 the Court held that: ‘… the
burden of proving to be honest what admittedly on its face looked dishonest rested upon the
respondents themselves, not upon the appellants. Once the appellants had proved a prima facie case
of misconduct on the part of the respondents in taking, in violation of their duty, a secret profit of the
kind described, the dismissal stood prima facie justified, the burden of proof was shifted, and it lay
upon the respondents, as it does upon all agents in a fiduciary position who deal with their principals,
to prove the righteousness of the transaction. If they failed to discharge that burden satisfactorily, then
the prima facie case against them must prevail and their guilt, justifying dismissal, must be taken to be
established. … ’. See also Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others (2011) 32 ILJ 2455 (LAC) at para 34; Aluminium City (Pty) Ltd v Metal and
Engineering Industries Bargaining Council and Others (2006) 27 ILJ 2567 (LC) at para 20.
12
accepted, on the basis of the following dictum in Rail Commuters Action Group
and Others v Transnet Ltd t/a Metrorail and Others3:
‘Ordinarily, the Court will consider those facts alleged by the applicant and
admitted by the respondent together with the facts as stated by the
respondent to consider whether relief should be granted. Where, however, a
denial by a respondent is not real, genuine or in good faith, the respondent
has not sought that the dispute be referred to evidence, and the Court is
persuaded of the inherent credibility of the facts asserted by an applicant, the
Court may adjudicate the matter on the basis of the facts asserted by the
applicant.
'
[32] The respondent explained she wanted to use the information to do a
handover. This explanation cannot be true, considering the fact that when it
became clear to her that there would be no handover done by her as a result
of all the events in the two weeks since her resignation and the fact that she
was placed on garden leave for the remainder of her notice, she never
disclosed the information that she had taken or offer to return or delete it , as
no handover was required. And as said , she was less than forthright about
what information she had, in the course of the execution of the Anton Piller
order. But l must say that as a matter of common sense and logic, I find it
difficult to understand how a mass download of information and copying the
same to external drives, over the weekend before resigning, could have
anything to do with a handover. I believe this contention to be palpably false.
[33] But worst of all, the respondent was unable to even explain any she
downloaded the volume of information she had done over the weekend
immediately preceding her resignation. Despite glibly conceding it was ‘more
than normal’, she offers no justification for it. All that the respondent offered
was a bald statement that there was nothing to indicate that she was acting
was a bald statement that there was nothing to indicate that she was acting
outside the scope of her duties or that she intended to use the information for
some ulterior purpose. This bald contradiction cannot serve to negate the case
made out by the applicant. As held in Thebe Ya Bophelo Healthcare
3 2005 (2) SA 359 (CC) at para 53.
13
Administrators (Pty) Ltd and Others v National Bargaining Council for the
Road Freight Industry and Another4:
‘… the dispute is not real or genuine or the denials in the respondent's version
are bald or uncreditworthy, or the respondent's version raises such obviously
fictitious disputes of fact, or is palpably implausible, or far -fetched or so clearly
untenable that the court is justified in rejecting that version on the basis that it
obviously stands to be rejected …’
[34] So, what information did the respondent take? On the common cause facts,
there can be no doubt that it is confidential information, proprietary to the
applicant, and not in the public domain. Taking a leaf out of the playbook
relating to restraints of trade, where confidential information of an employer is
considered to be a protectable interest, I refer to what this Court said Dot
Activ (Pty) Ltd v Daubinet and Another5, where the Court described
confidential information as being the following:
‘Confidential information would be: (a) Information received by an employee
about business opportunities available to an employer; (b) information that is
useful or potentially useful to a competitor, who would find value in it; (c)
Information relating to proposals, marketing or submissions made to procure
business; (d) information relating to price and/or pricing arrangements, not
generally available to third parties; (e) information that has actual economic
value to the person seeking to protect it; (f) customer information, details and
particulars; (g) information the employee is contractually, regulatory or
statutory required to keep confidential; (h) Information relating to the
specifications of a product, or a process of manufacture, either of which has
been arrived at by the expenditure of skill and industry which is kept
confidential; and (i) information relating to know -how, technology or method
that is unique and peculiar to a business. Importantly, the information
that is unique and peculiar to a business. Importantly, the information
summarized above must not be public knowledge or public property or in the
public domain. In short, the confidential information must be objectively worthy
of protection and have value.
’6
4 2009 (3) SA 187 (W) para 19.
5 (2023) 44 ILJ 785 (LC) at para 40.
6 See also Dickinson Holdings Group (Pty) Ltd and Others v Du Plessis and Another (2008) 29 ILJ
1665 (N) at para 33; Jonsson Workwear (Pty) Ltd v Williamson and Another (2014) 35 ILJ 712 (LC) at
paras 46 – 49; David Crouch Marketing CC v Du Plessis (2009) 30 ILJ 1828 (LC ) at para 21; Esquire
14
The information appropriated by the respondent in casu ticks m ost of the
aforesaid boxes. There can be no doubt that all the information she
appropriated was confidential to the extent that it must qualify for protection.
[35] Once it is so that the respondent had access to such confidential information,
can it be said it would be in breach of her obligations of good faith towards the
applicant in terms of her contract of employment, if she appropriated it,
considering she was not subject to a restraint of trade per se? In my view,
undoubtedly so. Despite what he respondent’s employment contract actually
contains in casu , the Court Sappi Novoboard (Pty) Ltd v Bolleurs
7 had the
following to say where it comes to the duty of good faith an employee has
towards an employer:
‘… It is an implied term of the contract of employment that the employee will
act with good faith towards his employer and that he will serve his employer
honestly and faithfully … The relationship between employer and employee
has been described as a confidential one … The duty which an employee
owes his employer is a fiduciary one 'which involves an obligation not to work
against his master's interests' …’
[36] Also applying these principles of good faith and fiduciary duties specifically to
the employment relationship, the Court in Ganes and Another v Telecom
Namibia Ltd8 held as follows:
‘As an employee of the respondent and in the absence of an agreement to the
contrary the first appellant owed the respondent a duty of good faith. This duty
entailed that he was obliged not to work against the respondent's interests; not
to place himself in a position where his interests conflicted with those of the
respondent … ‘
The Labour Appeal Court in Bonfiglioli SA (Pty) Ltd v Panaino 9 applied the
above ratio in Ganes supra as follows:
System Technology (Pty) Ltd t/a Esquire Technologies v Cronjé and Another (2011) 32 ILJ 601 (LC) at
para 29; Experian SA (Pty) Ltd v Haynes and Another (2013) 34 ILJ 529 (GSJ) at para 19.
7 (1998) 19 ILJ 784 (LAC) at para 7.
8 (2004) 25 ILJ 995 (SCA) at para 25. See also Volvo (Southern Africa) (Pty) Ltd v Yssel (2009) 30 ILJ
2333 (SCA) at paras 16 – 17; Stoop and Another v Rand Water (2014) 35 ILJ 1391 (LC) at para 99.
9 (2015) 36 ILJ 947 (LAC) at para 26.
15
‘… at common law, the employee owes the employer a duty of good faith. In
Ganes & another v Telecom Namibia Ltd, it was said that the duty of good
faith entails that an employee is obliged not to work against the interests of
his/her employer and not to place himself/herself in a position where his/her
interests conflict with those of the employer. In Council for Scientific &
Industrial Research v Fijen, it was stated that:
'It is well established that the relationship between employer and employee is
in essence one of trust and confidence and that, at common law, conduct
clearly inconsistent therewith entitled the "innocent party" to cancel the
agreement. …’
[37] A final apposite reference would be to the judgment in National Union of
Metalworkers of SA on Behalf of Nganezi and Others v Dunlop Mixing &
Technical Services (Pty) Ltd and Others (Casual Workers Advice Office as
Amicus Curiae)10, where the Court held as follows:
‘So despite the possibly confusing references to trust, confidence, loyalty and
good faith in our case law it is clear that where contracting parties ‘are bound
to promote the interest entrusted to their keeping ... [t]hey cannot take any
advantage to themselves out of the business for which they have been
appointed, nor derive any benefit therefrom, beyond such commission and
charges as the law allows in the particular instance’. This essentially amounts
to the duties that Idensohn identifies as distinctive of fiduciary duties: (a) that
fiduciary duties require a unilateral obligation to act in the beneficiaries’
interest; (b) the primary fiduciary obligations are only two — no profit and
no conflict of interest; and (c) fiduciary remedies are strict, with no intent
required …
’
[38] The respondent was, as said, employed by the applicant as Head: Retail Cash
Solutions. This is clearly a senior position which carries with it a high level of
trust and confidence. For her to have conducted herself as she did, when
trust and confidence. For her to have conducted herself as she did, when
finding new employment with a competitor, is an untenable proposition, and
simply unacceptable. It was in direct violation of a clear fiduciary duty she
owed to the applicant as her employer. It is not even necessary for the
applicant to establish a mala fide intention on her part.
10 (2019) 40 ILJ 1957 (CC) at para 61.
16
[39] Despite the aforesaid, the respondent had adopted the view that the
undertaking she sought to provide on 19 September 2025 made it
unnecessary for the applicant to continue to seek relief under part B of the
notice of motion. I simply cannot agree with this proposition, as the
undertaking the respondent seeks to rely upon is in reality no undertaking at
all. This is because the undertaking comes with two important caveats, as it is
linked to ‘reasonable’ and ‘unlawful competition’. What the respondent is thus
offering is that she will not utilize any confidential information of the applicant
unless she considers it unreasonable to do so or where she believes it is not in
unlawful competition to the applicant. This is entirely dependent on her good
faith or personal views , which the facts in this case have shown is at best
questionable. The undertaking, in order to have the effect the respondent
contended it should have, needed to be unconditional and in fact tantamount
to a tender of the relief sought in part B of the notice of motion. It was certainly
far from that.
[40] But even if there was an undertaking of sorts, I consider the applicant’s refusal
to accept it to be entirely reasonable. Considering what had already transpired
to the point when the undertaking was ultimately provided, the applicant simply
cannot be criticized for having no trust in any promise made by the respondent
at all and insisting that the matter rather proceed to Court. As held in Dot Activ
supra:
11
‘I appreciate and accept that there is no obligation on an employer such as the
applicant to have to accept undertakings provided by an already errant
employee that has acted in a manner which the applicant considers to be
breach of the restraint. These undertakings often ring hollow, are often made
after prejudice has already accrued, and are ordinarily unpoliceable. It has
been made clear that an employer cannot sit by and cross its fingers and hope
been made clear that an employer cannot sit by and cross its fingers and hope
that the employee would act honourably in complying with undertakings where
the employee has already shown he or she cannot be trusted. …’
[41] And lastly, the respondent suggested that because she is no longer employed,
the duty on her to keep the information of the applicant confidential has
somehow expired along with the termination of her employment. A definitive
11 Id at para 59.
17
answer to this can be found in Van Castricum v Theunissen and Another 12,
where it was said:
‘… The duty to preserve confidential information is not merely limited to the
existence of the contractual relationship of employer and employee, but
extends to the period after determination of such contractual relationship …’
[42] In summary, the applicant has shown that it has a clear right to the relief
sought in the notice of motion. The respondent has acted in direct and flagrant
violation of her confidentiality obligations and her duty of good faith under her
contract of employment. She simply has no plausible or acceptable
explanation for her conduct, and I am convinced it was for nefarious purposes.
It is also true that the applicant has no alternative remedy open to it in order to
prevent what would be obvious harm should its confidential information be
utilised by the respondent or any third party (such as her new employer) in the
course of conducting their business. The applicant has satisfied the
requirements for the interdict it seeks.
13 The following dictum in Telefund
Raisers CC v Isaacs and Others14 is apposite:
‘… As I have said, there can be no doubt that the applicant has at all material
times regarded what is recorded in its customer lists as confidential, and has
believed it to be so. In my view, that belief was not an unreasonable one in the
circumstances. The release of the contents of the lists to a trade rival such as
the fourth respondent would, in the applicant's belief, be injurious to the
applicant and advantageous to the rival. That belief, too, is, to my mind,
reasonable. The customer lists took time and effort to compile …’
Conclusion
[43] Therefore, based on all the reasons set out above, I conclude that the
applicant’s application for relief un der part B of the notice of motion must
succeed. The applicant has demonstrated a proper clear right to the relief
sought, and the considerations of prejudice clearly favour it, in the sense that it
sought, and the considerations of prejudice clearly favour it, in the sense that it
12 1993 (2) SA 726 (T) at 736B-C.
13 As the applicant is seeking final interdictory relief , the applicant must satisfy three essential
requirements, being: (a) the existence of a clear right; (b) an injury actually committed or reasonably
apprehended; and (c) the absence of any other satisfactory remedy – see Setlogelo v Setlogelo 1914
AD 221 at 227; V & A Waterfront Properties (Pty) Ltd and Another v Helicopter & Marine Services
(Pty) Ltd and Others 2006 (1) SA 252 (SCA) at para 20.
14 1998 (1) SA 521 (C) at 531G-H. See also Van Castricum (supra) at 731F-J.
18
could suffer irremediable prejudice should its confidential information not be
protected. And lastly, the applicant in reality has no alternative remedy
available to it to properly protect its interests.
Costs
[44] This then leaves only the issue of costs. In terms of the provisions of section
162(1) of the LRA, I have a wide discretion where it comes to the issue of
costs. Reference is made to what the Constitutional Court said with regard to
costs in employment disputes as expressed in Zungu v Premier of the
Province of Kwa-Zulu Natal and Others
15, namely that costs are not ordinarily
awarded in employment disputes . In exercising the judicial discretion in this
context, the same Court re-affirmed the principle set in Zungu supra and
stated that ‘ when making an adverse costs order in a labour matter, a
presiding officer is required to consider the principle of fairness and have due
regard to the conduct of the parties. ’16 And in Union for Police Security and
Corrections Organisation v SA Custodial Management (Pty) Ltd and Others 17
the Court held:
‘In the labour context, the judicial exercise of a court’s discretion to award
costs requires, at the very least, that the court must do two things. First, it
must give reasons for doing so and must account for its departure from the
ordinary rule that costs should not be ordered. Second, it must apply its mind
to the dictates of the fairness standard in s 162, and the constitutional and
statutory imperatives that underpin it …’
[45] What is clear is that it is not true that costs can never be awarded in
employment law disputes before this Court. What is required is proper
consideration of the dictates of fairness to both parties, followed by an
exposition of reasoning why, despite the general principle in employment law
disputes that costs do not follow the result, the Court has nonetheless decided
15 (2018) 39 ILJ 523 (CC) at para 25.
15 (2018) 39 ILJ 523 (CC) at para 25.
16 Long v South African Breweries (Pty) Ltd and Others (2019) 40 ILJ 965 (CC) at para 30.
17 (2021) 42 ILJ 2371 (CC) at para 35. See also Booi v Amathole District Municipality and Others
(2022) 43 ILJ 91 (CC) at para 60.
19
that it was appropriate to exercise its discretion in favour of making an award
of costs.18
[46] In my view, the case in casu is unfortunately one which I believe justifies a
departure from the any general principle that costs do not follow the result. All
said, when the common cause and undeniable facts in this case are
considered, as well as the palpably false explanations (or no explanations at
all) offer ed by the respondent for her conduct, her case was, truthfully
described, hopeless. Her attempted reliance on an undertaking which was in
reality no undertaking at all, exacerbates matters. Truth be told, and once the
Anton Piller order was executed, she should never have opposed this case, as
there was simply no proper legal basis to do so. In Children’s Resource Centre
Trust and Others v Pioneer Food (Pty) Ltd and Others 19 the Court had the
following to say:
‘Whether a case is hopeless has two aspects. It is hopeless if it is advanced
on a basis that is legally untenable. It is also hopeless if it is advanced in the
absence of any credible evidence to support it. These are categories that have
long been recognised in our law and practice. A case is legally hopeless if it
could be the subject of a successful exception. It is factually hopeless if the
evidence available and potentially available after discovery and other steps
directed at procuring evidence will not sustain the cause of action on which the
claim is based. …’
[47] The respondent’s conduct in this case in my view resorts comfortably within
the aforesaid parameters of being hopeless , for the want of a better
description. Her particular position of trust and confidence renders her conduct
inexcusable. If she simply resigned and left, there would be no issue. But she
resigned and deliberately sought to appropriate a substantial amount of the
applicant’s confidential information to take with her to use at her new
employer, which was a direct competitor of the applicant. She should have
employer, which was a direct competitor of the applicant. She should have
known better. All said, I believe the respondent’s opposition in this case was
18 As said in SA Custodial Management (supra) at para 34: ‘Do the principles I have enunciated dictate
that costs can never be ordered against a party in labour matters? I think it is clear from this court’s
jurisprudence that the answer to this question is a resounding ‘no’. This court has previously affirmed
the principle that costs are discretionary to the court adjudicating a matter. That applies no differently
to labour matters …’.
19 2013 (2) SA 213 (SCA) at para 35.
20
always contrived, without any hope of succeeding, and deserving of censure.
Hence a costs order against her, all considered, is justified and fair.
Considering the complexities that arose in this case, especially relating to the
execution of the Anton Piller order, a party and party costs order on scale C is
justified. But I do not believe a punitive costs order, as asked for the applicant,
is justified, and I will therefore not award punitive costs.
[48] It is for all the reasons as set out above that I made the order that I did, as
reflected in paragraph 4 of this judgment, supra.
____________________
S. Snyman
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate A Redding SC
Instructed by: ENS Inc Attorneys
For the Respondent: Advocate L G Curlewis
Instructed by: Clarke & Van Eck Attorneys