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[2026] ZAGPJHC 135
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Office Automation Solutions (Pty) Ltd v White (022415/2022) [2026] ZAGPJHC 135 (18 February 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 022415/2022
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
18
FEBRUARY 2026
FHD VAN OOSTEN
In
the matter between
24/7
OFFICE AUTOMATION SOLUTIONS (PTY) LTD
PLAINTIFF
and
DONOVAN RICHARD
WHITE
DEFENDANT
JUDGMENT
VAN
OOSTEN J:
Introduction
[1]
This is an action for the payment of contractual damages, premised on
a written confidentiality and restraint agreement, concluded
between
the plaintiff, as employer, and the defendant, as employee, in June
2019.
Parties
[2]
The plaintiff is 24/7 Office Automation Solutions (Pty) Ltd, a
registered and incorporated company with principal place of business
in Bryanston, Johannesburg (interchangeably 24/7 or plaintiff). It
trades as a franchisee and operates as a sales component of
the Daisy
Business Solutions Group, carrying on business as a supplier of
office automation equipment, telecommunications, security
and
information technology equipment and products, which are supplied in
terms of rental and service contracts concluded with its
customers,
throughout Gauteng. The defendant is Mr Donovan Richard White, a
sales representative, residing in Roodepoort.
Background
[3]
The defendant commenced employment with 24/7, as a sales
representative, on 14 March 2011. In June 2019 24/7 and the defendant
concluded a written employment agreement in terms of which the
defendant was employed by 24/7 in the capacity of director of its
sales department, effective from 1 May 2019. In addition, the parties
concluded the confidentiality and restraint agreement I have
referred
to (the restraint agreemen
t
).
[4]
The following restraint undertakings are set out in the restraint
agreement:
The
defendant:
‘
2.1…
undertakes and warrants that he would not during the restraint period
(defined in the agreement to be 24 months calculated
from the
termination date) in any capacity whatsoever and whether directly or
indirectly:
2.1.1 be associated or
concerned with or engaged in any similar business or any entity
carrying on any similar business, in the
territory (Gauteng) or any
part thereof, whether for reward or not; nor
2.1.2 persuade, induce,
solicit, encourage or communicate with or furnish any information or
advice to any business employee or
any prospective employer of such
business employee for the direct or indirect purpose of inducing or
causing a business employee
to leave the employ of the company [24/7]
and/or become employed by or in any way directly or indirectly
interested in, or associated
with any similar business; employ, offer
employment to, or cause employment to be offered to any business
employee; or attempt
to do any of the aforegoing.
2.2.1 communicate with or
furnish any information or advice to or solicit or interfere with any
business customer or business supplier
for the direct or indirect
purpose of inducing or causing a business customer or business
supplier to cease being a customer or
supplier of the company and/or
become a customer of a similar business;
2.2.2 solicit orders or
canvass business from any business customer for or in respect of the
business products or any similar products
and/or business services or
any similar services, or sell or otherwise supply any business
products or any similar products to
any business customer or render
any business services to any business customer.’
[5]
On 11 June 2021, the defendant by way of a written notice, resigned,
which resulted in the effective termination of his employment
with
24/7, on 18 June 2021.
[6]
On 9 July 2021, the plaintiff launched an application in the Labour
Court, Johannesburg, scheduled for hearing on 30 July 2021,
for an
interdict to enforce the provisions of the restraint agreement,
against the defendant, which was premised on several alleged
breaches
of the restraint agreement by the defendant, to which I shall revert.
The defendant having been served with the application
on 14 July
2021, instructed and consulted his attorneys of record, who on 22
July 2021, filed a notice of intention to oppose the
application on
behalf of the defendant, thereafter followed by the defendant’s
answering affidavit.
[7]
Prior to the hearing of the motion proceedings, the attorneys on
behalf of both parties engaged in discussions, by way of email
correspondence, which eventually culminated into an agreed draft
order, which the Labour Court issued on 30 July 2021 (the order).
The
correspondence and resultant order form part of the court bundle
before this court and will be dealt with later.
[8]
On 5 September 2022, the plaintiff instituted the present action, in
which it claims from the defendant the sum of R10 000 000,
interest
thereon at the rate of 9% per annum from date of judgment to date of
payment and costs of suit. The claim is once again
premised on the
defendant’s alleged breaches of the restraint agreement and the
amount claimed is in accordance with clause
2.4 of the restraint
agreement, which reads as follows:
‘
Without derogating
in any way from the company’s [24/7’s] right to seek and
obtain an interdict to enforce the provisions
of the agreement,
whether on an interim or final basis, [the defendant] agrees that in
the event that he should breach any of the
restraint and
non-solicitation obligations undertaken by him, he shall become
liable forthwith to pay to the company an amount
equal to R 10 000
000.00 which amount he agrees is a genuine pre estimate of the
damages which the company will suffer as a result
of such breach and
which, but for the provisions of this clause, would otherwise be
incapable of ascertainment at this time.’
[9]
The defendant defends the action and filed a plea to the plaintiff’s
summons and particulars of claim. Thereafter, the
plaintiff twice
amended its particulars of claim to which the defendant in respect of
each thereof, filed a plea, in essence denying
any breach of the
restraint provisions or unlawful possession of confidential
information. It is further pleaded that the negotiations
prior to the
issuing of the order, as well as the order itself, ‘moderated’
the restraint agreement, resulting in a
recreated restraint regime
replacing the restraint agreement regime, to which
res judicata
and or estoppel apply, and lastly, that clause 2.4 of the restraint
agreement constitutes a penalty provision the quantum of which
is
inequitable and falls to be reduced.
[10]
Lastly, the plaintiff filed a replication to certain paragraphs of
the defendant’s plea, specifically denying that the
restraint
agreement was moderated, or that an agreement between the parties to
vary the terms of the restraint agreement was concluded.
[11]
As to the merits of this matter, the joint practice note filed of
record, reflects that the following issues are not in dispute:
the
conclusion of the restraint agreement, the terms thereof, save for
the restraint period, and the termination of the defendant’s
employment with 24/7, on 18 June 2021.
[12]
The issues set out in the joint practice note, are in summary, first,
whether the restraint agreement was ‘moderated
and varied’
by the Labour Court order, and in regard thereto the opposing
contentions of the parties, and second, whether
clause 2.4 of the
restraint agreement constitutes a penalty, and whether it falls to be
reduced in terms of the Conventional Penalties
Act, 15 of 1962.
The
trial
[13]
The plaintiff assumed bearing the onus to prove the defendant’s
breaches of the restraint agreement relied upon by the
plaintiff, and
accordingly commenced by calling two witnesses to testify, first, Mr
Gareth Brett Thorpe, and second, Mr Angelo
Klein, who were both
former employees of 24/7 and later joined Maximize. The defendant was
the only witness called to testify by
counsel for the defendant. It
was rightly acknowledged by counsel that the onus rests on the
defendant, to prove the defences raised
in relation to the breaches
relied upon by the plaintiff, and regarding the plaintiff’s
reliance on clause 2.4 of the restraint
agreement, that the clause
contains a penalty clause in terms of s3 of the Conventional
Penalties Act, 15 of 1962, and further
that the penalty of R10m is
disproportionate to the prejudice suffered by the plaintiff
(
Steinberg v Lazard
2006 (5) SA 42
(SCA) para 7).
The
breaches relied on by plaintiff
[14]
The plaintiff alleges in its amended particulars of claim, that the
defendant breached the restraint agreement in the following
respects:
14.1
First, the defendant
during or about October 2021 took up employment with Maximize Office
Solutions (Pty) Ltd (Maximize), a competitor
of 24/7 and carrying on
a similar business to that of 24/7 (clause 2.1.1 of the restraint
agreement).
14.2
Second, during October
2021 and November 2021, the defendant disclosed information
pertaining to business customers to Angelo Klein
and Brett Thorpe,
who were employees of Maximize at the time, with the purpose of
soliciting them away from 24/7 for the benefit
of Maximize (clause
2.2.1 of the restraint agreement).
14.3
Third, during June 2022
the defendant solicited 24/7’s business customer NSA Global
away from 24/7 for the benefit of Maximize
(clause 2.2.2 of the
restraint agreement).
14.4
Fourth, during July 2022
to October 2022, the defendant solicited the custom of 24/7’s
business customers,
inter alia
NSA Global, Tiny Town Crèche,
Platchem, EPDR and Redbrick away from 24/7 for the benefit of
Maximize (clause 2.2.2 of the
restraint agreement).
14.5
Fifth, immediately prior
to his resignation, the defendant misappropriated confidential
information of 24/7 by taking possession
thereof, and thereafter
remaining in possession thereof notwithstanding the defendant’s
affirmation under oath to the contrary
in the Labour Court
proceedings (clause 2.3 of the restraint agreement and paragraph 1 of
the order).
The
Labour Court Order
[15]
The order reads as follows:
‘
1. The [defendant]
shall return and to such extent as is necessary destroy all
confidential information, which the [defendant] has
in his
possession, including but not necessarily limited to, the
confidential information contained in emails directed to the
[defendant] on 20 May 2021, and 18 June 2021 respectively, within 5
days from the date of this order, affirming that he is no longer
in
possession of any of [24/7’s] confidential information and that
he has not disseminated the confidential information nor
distributed
the confidential information to any other person and that he has
deleted the emails addressed to the [defendant] by
the [defendant] on
20 May 2021 and 18 June 2021.
2. The [defendant] is
interdicted and restrained until 30 June 2022 from:
2.1 persuading inducing,
soliciting, encouraging, or communicating with or furnishing
information or advice to any business employee
of [24/7] or any
prospective employer of such business employee for the direct or
indirect purpose of inducing or causing a business
employee to leave
the employ of [24/7] and/or becoming employed with any similar
business;
2.2 Employing, offering
employment to or causing employment to be offered to any business
employee.
3. The [defendant] is
interdict (sic) and restrained until 30 June 2022, from in any
capacity whatsoever, in any part of the province
of Gauteng and
whether for reward or not, from (sic) directly or indirectly:
3.1 communicating with or
furnishing any information or advice to or soliciting or interfering
with any business customer of [24/7]
for the direct or indirect
purpose of inducing or causing such business customer or business
supplier to cease being a customer
or supplier of [24/7] and/or
becoming a customer of a similar business;
3.2 soliciting orders or
canvassing from any business customer for or in respect of the
business customer or business supplier of
[24/7] for the direct or
indirect purpose of inducing or causing such business customer or
business supplier to cease being a customer
or supplier of [24/7]
and/or becoming a customer of similar business;
3.3 for the avoidance of
doubt, the business customers contemplated in 3.1 and 3.2 above, are
listed in Annexure ‘A’
hereto.’
[16]
Annexure ‘A’ contains the names of 402 business customers
of 24/7, which, save for 2 names removed from the list
at the request
of the defendant, was agreed upon by the parties.
[17]
The plaintiff in the pleadings, during the trial and in counsel’s
heads of argument, contested that the order in any
way ‘moderated’
or amended the restraint agreement. In argument before me, counsel
for the plaintiff readily, and in
my view correctly, conceded that
the totality of correspondence and consent order indeed did amend the
restraint agreement, specifically
in reducing the restraint period of
24 months to 12 months, and moreover, in the plaintiff’s
abandonment of the restraint
against the defendant’s employment
at a competitor, which then was Maximize. This restraint was premised
on clause 2.1.1
of the restraint agreement, and enforcement thereof
was sought in prayer 1 of the notice of motion in the Labour Court
proceedings,
which was not persisted with. As a result of the
concession, counsel confirmed that the third and fourth breaches
referred to above,
would no longer be pursued by the plaintiff, as
the dates of the breached indicated, fell outside the amended period
of the restraint.
The concession further obviates the need to deal
any further with the correspondence between the attorneys prior to
the issuing
of the order, and the arguments relating thereto.
[18]
Finally, it is necessary to add that the order further amended the
restraint agreement, in limiting and identifying 24/7’s
business customers to which the restraint applied.
[19]
In the view I take of this matter, I do not consider it necessary to
deal with the
res judicata
or estoppel defences raised by the
defendant, and I propose to consider the issues before me, without
having regard thereto.
Misappropriation
and retaining of confidential information
[20]
I turn now to consider and decide the 5
th
breach which it
will be recalled, concerns the defendant’s alleged
misappropriation of 24/7’s confidential information
prior to
his resignation,
and
remaining in possession thereof
notwithstanding the defendant’s affirmation in an affidavit
attested to in pursuance of and
compliance with the Labour Court
order.
[21]
The confidential information it is alleged, was contained in the
attachments to emails which the defendant sent to himself.
The
defendant admits in the answering affidavit in the Labour Court
application, which he repeated in his evidence before this
court,
that he sent several emails to himself in the period between 20 May
20121 and 18 June 2021, and that the annexures to the
emails,
contained ‘customer and transaction particulars’. Copies
of four emails from the defendant to himself, during
that period, are
annexed to the plaintiff’s founding affidavit. Three thereof
are dated 20 May 2021, and reflect in the attachment
columns, ‘2006
Wishlist’ and several ‘prospect lists’ with dates
2006, 2007, 2015 and 2016. The fourth
email, with attachments, was
sent by the defendant to Alan Pereira (24/7’s chief operating
officer and sole director) on
18 June 2021, and some three hours
later to himself. The attachments to this email are reflected as,
‘Copy of Donovan White
Client base Area Vertical Market, Area
and Contacts, Donovan White Billing Base April 2021, Airlink Cross
Border Service Partners
and Donovan Deals (in the system as well as
collecting June 21)’. Notably, none of these annexures have
been disclosed to
this court.
[22]
In terms of the order, as can be gleaned from its reproduction in
para [15] above, the defendant was ordered to destroy all
confidential material, including the emails I have referred to, and
within 5 days from the date of the order, affirm that he is
no longer
in possession of any of the confidential information, that he has not
disseminated the confidential information to any
other person, and
that he has deleted the said emails. It is not in dispute that the
defendant has complied with the order in this
respect, although a
copy of the affidavit has not been produced.
[23]
In his evidence the defendant admitted that the emails he had sent to
himself, contained confidential information, which as
I have
indicated, was contained in the attached Excel spreadsheets, and that
it constituted a breach of the restraint agreement.
He attributed his
conduct to ‘an error in judgment’. In the answering
affidavit he sets out the reason for his conduct,
which he stated
arose from an issue he had with 24/7’s unilateral change of his
commission structure, which remained unsolved.
He further stated that
he believed that those would be required for calculating the actual
commission due to him, and serve as
evidence for the purpose of
instituting a claim based on breach of contract against 24/7.
[24]
The defendant then continues in the answering affidavit to explain
further:
‘
5.12 The
respondent [the defendant] has since been advised by his current
attorneys, after taking legal advice when served with
the restraint
of trade application, that no matter what his motivation, he should
not have copied what could be seen as confidential
company
information and documents to himself. It was explained to him that if
he wanted information in litigation with the applicant
[24/7], he
would need to use discovery process under the Court Rules. The
respondent was advised to immediately delete/destroy
all such
documents and information, which he did. The respondent no longer has
any confidential all information concerning the
applicant, and in the
end, he never used it for anything.’
[25]
The defendant testified that in the week after he had left the employ
of 24/7, in middle June 2021, he was requested to and
did hand in his
personal computer at 24/7’s IT department, together with all
passwords and codes required to enable opening
of all programmes and
files. Upon collection of his personal computer a few days later, he
was given the assurance that all confidential
information and data
had been deleted and erased. Shortly after service on him of the
Labour Court application, on 9 July 2021,
he got ‘such a
fright’ that that he immediately proceeded to delete anything
remotely connected to his employment with
24/7, such as calendar
entries, from his computer.
Discussion
[26]
Paragraph 5.12 was fiercely questioned in the cross-examination of
the defendant by counsel for the plaintiff. The concluding
proposition counsel put to the defendant, in essence, concerned the
apparent irreconcilability of his version as reflected in para
5.1,
juxtaposed to the defendant’s earlier evidence that his
personal computer was, as counsel coined the word, sanitised
by
24/7’s IT department already in middle June 2021, and
thereafter once again, by him after 9 July 2021. The defendant,
although experiencing difficulty in understanding some of the
questions posed, eventually conceded that he had given three versions
on this aspect, which led counsel for the plaintiff to submit that
the defendant was an untruthful witness.
[27]
The defendant’s explanation at times was undoubtedly less than
satisfactory, and it is difficult to reconcile his actions
in middle
June when his personal computer was cleared by 24/7’s IT
department, with the allegations in the answering affidavit
concerning the advice given to him by his attorneys, with the
emphasis on his confirmation that he had adhered thereto. On a
conspectus
of the totality of his evidence, I am however not
satisfied that his evidence was dishonest. A crucial consideration,
militating
against dishonesty, is to be derived from an examination
and considering in context, the defendant’s explanation for
sending
the confidential information to himself, to which I have
referred, which in the absence of any challenge thereof either by way
of cross-examination or adducing evidence to rebut the version, I am
unable to reject as false. Further of significance, is his
forthright
admission both in the Labour Court proceedings and in this Court, as
to the misappropriation of the confidential information
and that it
constituted a breach of the restraint agreement, as well as his
willingness expressed in the answering affidavit to
consent to the
granting of most of the orders sought, subject to certain amendments,
which were all accepted by 24/7, and eventually
resulted in an agreed
order and the affidavit submitted in compliance with the order.
[28]
The defendant’s possession of the confidential information has
accordingly become common cause. However, to prove this
breach, as
pleaded, the plaintiff bears the onus of also proving that the
defendant remained in possession thereof. The breach
obviously is
premised on both the restraint agreement and the order. The only time
relevant to the second leg of the enquiry, will
be after the issuing
of the order and the filing of the affidavit. Put differently, the
plaintiff in addition, is required to prove
that the defendant was
still in possession of the information, after expiry of the five-day
compliance period provided for in the
order.
[29]
In the absence of any evidence or other proof that the defendant was
in possession of the information after that date, this
part of the
plaintiff’s claim cannot succeed.
The
evidence of the plaintiff’s witnesses: the remaining breaches
Gareth
Brett Thorpe
[30]
Mr Thorpe testified that he was employed at 24/7 until December 2020.
In February/March 2021 he commenced employment, as the
sales manager,
at Maximize, a direct competitor of 24/7, until he resigned in March
2022. While employed by Maximize, the defendant
joined their ranks,
during mid/late 2021. With reference to the common cause fact on the
pleadings, that in October/November 2022
a list was shown to him by
the defendant, Mr Thorpe was requested whether he agreed with the
defendant that the list, annexure
‘A’ to the order, to
which he turned for the purpose of identification, was indeed the one
shown to him, he answered
in the negative and then said that the list
shown to him by the defendant, was, what he referred to, a customer
base list (in the
form of an Excel spreadsheet), containing
information such as customer names, contact details, the equipment
and the duration of
the contract, thus containing more information
than annexure ‘A’. The purpose of the list, the defendant
explained
to him, was that there were a few customers on the list he
had a long relationship with, who he wished to keep in contact with.
Because of his restraint of trade, the defendant said he would keep
in contact with customers whose contracts were imminent for
renewal,
which he referred to as ‘low line fruits’. The defendant
further said that he intended distributing those
details to the sales
staff of Maximize, to enable them to approach those customers, and
conclude new contracts with the tempting
benefit of the outstanding
balance of the existing contract being factored into the price of the
new contract. On a seemingly leading
proposition put to him by
counsel for the plaintiff, he agreed that the purpose of this plan of
action was to poach customers away
from 24/7 to Maximize. Mr Thorpe
was requested to peruse annexure ‘A’ and indicate the
names of customers he was able
to recognise as 24/7’s
customers. He identified five such customers: ADD X Trading (number
10 on the list), which he added
was entrusted to Garth Upstone’s
sister-in-law, Airlink (number 18 on the list) which the defendant,
due to a very good relationship
existing between them, allotted to
himself, CADAC with offices in the West Rand (number 64 on the list),
SA Hunters and Game Conservation
Association (number 336 on the
list), and SA Hockey Association, based in Pretoria (number 365 on
the list). In concluding his
evidence in chief, he agreed with
counsel’s summary of the gist of the evidence, which included
the leading proposition that
the purpose of the defendant’s
conduct was to move plaintiff’s customers away to Maximize.
[31]
The cross-examination of Mr Thorpe reveals the following salient
aspects:
31.1 Mr Thorpe, at
variance with his denial in evidence in chief, and having been
referred to paragraph 5.10 of the defendant’s
plea, admitted
that annexure ‘A’ was shown to him by the defendant,
which he then elaborated on in adding that it was
shown to him
together with the customer base list.
31.2 Mr Thorpe for the
first time mentioned that the lists were both on the defendant’s
cell phone, and that the defendant
explained to him that they had
remained on his cell phone due to the incompetence of 24/7’
employees who had cleared his
personal computer but not his cell
phone.
31.3 The discussion
between him and the defendant occurred in the defendant’s
office while he was standing at his desk, which
lasted ‘not
even 2 to 3 minutes’.
31.4 Mr Thorpe conceded
that he could not remember all the names on the customer base list,
although the recognised the kind of
form, which he had become
accustomed to during his employment.
31.5 Mr Thorpe agreed
that some record of the defendant’s dissemination of
information to Maximize’s sales staff must
exist, but in the
same breath, stated that he had never come across any proof thereof.
31.6 Mr Thorpe testified
that he had had a personal involvement with the customers, CADAC, ADD
X, and SA Hockey, in that he accompanied
the Maximize sales people to
the meetings held with those customers to assist them. He was of the
view that it was ‘highly
unlikely’ that Maximize would
independently have made contact with those customers.
Angelo
Klein
[32]
Mr Klein testified that he left his employment at 24/7 at the end of
August 2021 and thereafter took up employment at Maximize,
from
September 2021 until his resignation in December 2021. While employed
by Maximize, and in September 2021, he was in a meeting,
attended by
Sian Upton, his spouse Garth Upton, the defendant, Brett Thorpe and
another member of the sales staff at Maximize whose
name he could not
recall. At the meeting everyone had access to an Excel spreadsheet
(which he testified, was emailed to him by
Thorpe, but which he
believed was the plaintiff’s customer list reflecting the
defendant’s customers at 24/7, while
conceding that it could
have been drafted by Mr Thorpe) which included 24/7’s customer
names, customer contact details, contract
details, contract start and
end dates, and equipment details. He described it as a base list. At
the meeting it was generally discussed
to contact certain customers,
especially those having contracts coming to an end, for the purpose
of moving them from 24/7 to Maximize
prior to renewal.
[33]
In his evidence and cross-examination Mr Klein pinned the date of the
meeting, to September 2021, and denied that it could
have been in
October/November 2021, as Mr Thorpe had testified. Except to recall
the purpose of the meeting and by way of general
description the
subject matter discussed, he was unable to recall the exact words
that were used and who said what. He agreed with
the proposition put
to him that the email trail concerning the circulation of the
customer base list, should still be available
at Maximize. Mr Klein
was unable to comment on Mr Thorpe’s version that an entirely
different kind of meeting, between himself
and the defendant, with no
one else present, had taken place. Neither was he familiar with nor
had he heard of the phrase ‘low
line fruit customers’. He
conceded that the plaintiff’s customers were known to both Mr
Thorpe and himself, as erstwhile
employees of the plaintiff, which
arguably would have enabled them to contact those customers without
any prior information having
been given by the defendant.
Analysis
of the evidence
[34]
At the heart of the plaintiff’s claim lies its customer data
list. The litigation commenced with the launching of the
Labour Court
proceedings, more than four years prior to the hearing of this
matter. Although a list of customers was compiled for
the purpose of
identifying the plaintiff’s customers in respect of which the
restraint would apply, there is no reference
in those proceedings to
the plaintiff’s customer data list. The defendant’s
employment at Maximize, and the dissemination
of 24/7’s
confidential information to employees of Maximize, ‘namely
Garrett Brett Thorpe and Angelo Klein’,
prominently featured in
the plaintiff’s particulars of claim. In the much-debated
paragraph 5.10 of the defendant’s
plea, the disclosure to
Thorpe and Klein was specifically restricted to presenting them and
discussing annexure ‘A’
to the order. In the plaintiff’s
replication this sub-paragraph is not dealt with. The plaintiff only
adduced the evidence
of Thorpe and Klein, although the names of
several other persons, obviously potential witnesses, featured
prominently in the evidence.
This is the first time, in this
litigation that reference was made to 24/7’s customer list, as
a separate and distinct document.
The existence of, and the
defendant’s possession or use of the customer data list was
hotly challenged in the evidence in
this court. The evidence of both
the plaintiff’s witnesses was that the document and even the
email trail, to which it was
attached, should still be available.
[35]
The customer data list, in my view, constitutes an essential document
which remains shrouded in uncertainty. No evidence as
to the
existence thereof was adduced. The absence thereof, considered
against the background circumstances I have referred to,
warrants an
adverse inference to be drawn against the plaintiff, which of course
will be considered, together with the other factors
I will presently
deal with, in determining the question whether the plaintiff has
discharged the onus resting on it.
[36]
In the assessment of the evidence of the plaintiff’s witnesses,
the difference in their evidence concerning the date
and
circumstances in which the defendant’s disclosure of
confidential information had occurred, is decisively important.
Klein
resolutely recalled the date September 2011 as the date of the
discussion, in saying he was ‘one hundred percent sure’
thereof, and dismissed the possibility put to him, of it having
occurred during October/November 2011, as pleaded by the plaintiff
and repeated in the evidence of Mr Thorpe. I am mindful of the human
fallibility of memory regarding exact dates, especially four
years
after the event. However, the discrepancy pertaining to the
circumstances in which the discussion took place remains, and
their
versions on this aspect, can hardly be reconciled. In addition to the
foregoing, Klein described a meeting which inter alia
Thorpe
attended, and disagreed with the version of Thorpe on this aspect,
when it was put to him.
[37]
The defendant’s version that he had only shown annexure ‘A’
to the witnesses to indicate to which customers
the order applied,
was corroborated by Mr Thorpe in cross-examination. Mr Klein’s
evidence that he had never seen annexure
‘A’ prior to
being referred to it during his evidence, carries little if any
weight, due to the unreliable aspects
I have referred to. The
defendant consistently denied having referred to a further list. The
absence of the second document, as
rightly argued by defendant’s
counsel, strongly indicates that it did not exist. My finding
accordingly is that the evidence
adduced on behalf of the plaintiff,
fails to present a full picture from which it can be found, on a
balance of probabilities,
that any other information than that
contained in annexure ‘A’, in the manner described by the
defendant, was disclosed.
Conclusion
[38]
In conclusion, I am not satisfied that the plaintiff has met the
minimum threshold required for discharging the onus resting
on it. It
follows that the plaintiffs claim falls to be dismissed. There is no
reason why the normal costs order should not follow.
Order
[39]
In the result the following order is made:
1.
The plaintiff’s claim is dismissed.
2.
The plaintiff shall pay the costs of the
action, to be taxed on scale D.
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR PLAINTIFF
ADV D WILLIAMS
PLAINTIFF’S
ATTORNEYS
QUINN ATTORNEYS
COUNSEL
FOR DEFENDANT
ADV R ORTON
DEFENDANT’S
ATTORNEYS
SNYMAN ATTORNEYS
DATES
OF HEARING
2, 3 & 4 FEBRUARY 2026
DATE
OF JUDGMENT
18 FEBRUARY 2026