IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
In the matter between:
NU ANGLE AESTHETICS (PTY) LTD
and
Reportable / Not Reportable
Case number no: 2026-053366
Applicant
LEE-ANN TAYLOR First Respondent
DERMAFRICA (PTY) LTD Second Respondent
Neutral citation Nu Angle Aesthetics (Pty) Ltd v LA Taylor & another
(Case no 2026-053366) [2026] ZAWCHC (15/04/2026)
Coram Nziweni, J
Heard 20 March 2026
Delivered 15 April 2026
Summary Interdict - Restraint of trade - Enforcement against
former employee. Direct competition must not be interpreted literally or restrictively -
but inter alia, by whether products are displaceable in the same market.
Reasonableness-where the respondent acknowledged the restraint was in exchange
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for remuneration and benefits, a plea of financial strain-without more-is insufficient
to trump the principle of pacta sunt servanda.
ORDER
1. The first respondent is interdicted and restrained from being directly or indirectly
concerned, engaged, interested in or employed by the second respondent
(whether as employee, agent, consultant, director, shareholder, partner or
otherwise) for 12 months upon the date upon which this order is granted;
2. The second respondent is interdicted and restrained from employing the first
respondent or mandating her to act as agent or consultant of the second
respondent for 12 months from the date upon which this order is granted;
3. The first respondent is interdicted and restrained from directly or indirectly being
concerned, engaged, interested or employed in any business which directly
competes with the applicant in the field of aesthetics within the Republic of
South Africa for 12 months from the date upon which this order is granted;
4. The first respondent is interdicted and restrained from soliciting or attempting
to induce any employee of the applicant to leave the applicant's employment or
to take up employment or to take up employment with a different employer for
12 months from the date upon which this order is granted;
5. The first respondent is directed to delete and destroy all copies of any
confidential information belonging to the applicant which information is in the
possession of the first respondent or stored on any device in her possession;
6. The information to be deleted in accordance with this paragraph shall include
any copies of the applicant's business plan, sales strategies, robot reports,
marketing strategies or social media strategies;
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7. The first respondent is directed to file an affidavit under oath, within 10 days of
this order confirming that she has complied with paragraph 5 above;
8. The first respondent shall pay the costs on Scale C.
JUDGMENT DELIVERED ELECTRONICALLY
Nziweni, J
Introduction
[1] This dispute between the parties involves a restraint of trade agreement that was
entered into between an ex-employer [the applicant] and an ex-employee ("the first
respondent"}. In this opposed application, the applicant seeks to enforce the restraint
of trade agreement.
[2] On 05 March 2019, the first respondent was employed by the applicant ("Nu Angle
Aesthetics Aesthetics"} as a Sales Consultant for the Aesthetics Department for the
Western Cape Region. In the founding affidavit, Nu Angle Aesthetics describes itself
as an aesthetic medical supplies company. It asserts that its business involves
supplying aesthetic medical products and equipment to doctors and clinics for use in
aesthetic procedures.
[3] In December 2021, the first respondent was promoted to the position of Regional
Manager for the Sales Territories of KwaZulu Natal, Western Cape, Eastern Cape and
Mauritius.
[4] It is not disputed that on or about August 2025, the first respondent informed Nu
Angle Aesthetics about an offer she received from Dermafrica. It is also not in dispute
that Nu Angle Aesthetics refused to waive the restraint of trade agreement.
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[5] It is also common cause between the parties that, on 28 August 2025, Nu Angle
Aesthetics communicated to the first respondent that should she accept the
Dermafrica's offer, it would have no choice but to enforce the restraint of trade
agreement.
[6] It is further not in dispute that the first respondent, in response to Nu Angle
Aesthetics' letter, the first respondent sent an email to Nu Angle Aesthetics confirming
that she would not accept the Dermafrica offer and had decided to stay with Nu Angle
Aesthetics.
(7) It is further undisputed in the answering affidavit that the first respondent tendered
her resignation from Nu Angle Aesthetics on 30 December 2025, shortly after receiving
her annual bonus.
[8] On 16 January 2026, Nu Angle Aesthetics enquired from the first respondent as to
the name of the company that the first respondent would be joining.
[9] Again, on 19 January 2026, Nu Angle Aesthetics sent the first respondent an email
amongst others, imploring her to provide the name of the. company that she would be
joining and the role she had accepted.
[10) In a reply dated 19 January 2026, the first respondent informed Nu Angle
Aesthetics that she had accepted a position as a Medical Sales Representative but
stated she was unable to disclose her new employer's identity at that stage. When Nu
Angle Aesthetics requested reasons for this non-disclosure, the first respondent
replied that she was not sure why she was not permitted to provide the company's
name.
[11) On 25 February 2026, Nu Angle Aesthetics fortuitously discovered that the first
respondent had been employed by Dermafrica.
[12] On 26 February 2026, Nu Angle Aesthetics received official confirmation that the
first respondent was employed by Dermafrica. This confinnation then triggered the
current litigation.
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[13] It is not in dispute that the first respondent never revealed the name of her new
employer.
[14) The fundamental reliefs sought in this application are that the first respondent be
interdicted and restrained from, inter alia, doing the following:
(a) being directly or indirectly concerned, engaged, interested in or employed by the
second respondent (whether as employee, agent, consultant, director
shareholder, partner or otherwise) for twelve months from the date upon which
this order is granted;
(b) from directly or indirectly concerned, engaged, interested or employed in any
business which competes with the applicant in the field of aesthetics until for
twelve months from the date upon which this order is granted.
(c) From soliciting or attempting to induce any employee of the applicant to leave
the applicant's employment or take up employment with a different employer.
[15] Additionally, Nu Angle Aesthetics seeks an order interdicting Dermafrica from
employing the first respondent, or otherwise engaging her as a consultant or agent,
for a twelve-month period effective from the date the order is granted.
a. The issues
[16] I characterise the central issues involved in this case as follows:
(a) Whether Nu Angle Aesthetics Aesthetics and Derrnafrica are in direct
competition; and
(b) Whether the restraint of trade agreement is reasonable.
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b. The agreement between the parties
[17] Much may depend on the terms on which the Nu Angle Aesthetics Aesthetics and
the first respondent agreed upon. In the circumstances, I propose that before
summarising the submissions made by the parties, reference should first be made to
certain terms and provisions contained in the restraint of trade agreement between the
parties.
[18] The following relevant and material clauses of the restraint of trade agreement
are expressed in these following words:
1. "During the course of the Employee's employment with the Company, the
Employee will:
1.1 acquire knowledge of technical information and know-how of the Company
relating to its activities;
1.2 become acquainted with the needs of such customers and clients of the
Company; and
1.3 become acquainted with the prospective customers and clients whose business
the Company might be in the process of seeking; and
1.4 derive considerable benefit from the experience which she has obtained from
the Company;
1.5 become acquainted with and exposed to the Company's sale strategies across
all sale territories within the Republic of South Africa by virtue of regular sales
meetings, congresses and training opportunities; and
1.6 will derive considerable knowledge and influence over the operation of the
company's business and clientele and customers of the Company's business
and clientele and customers of the company.
2. The employee accordingly hereby undertakes in return for renumeration and
benefits she will receive arising out of this Agreement. in favour of the Company
and its successors-in-title with effect from the termination date of her
relationship as an Employee with the Company, that for a period referred to in
paragraph 2.5 below and in the area referred to in 2.6, she shall not either as
principal, agent, partner, representative, shareholder, consultant, advisor,
financier, demonstrator, employer, or any other lik~ capacity whether alone or
jointly with or as agent for any other person:
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2.1 be associated, engage, interested or concerned with any firm business,
company, enterprise or other association of persons, in the business of which
consists of any of the fields of activities referred to in 2.7 below;
2.2 in connection with any business, company, enterprise or other association of
persons who or which carries on any business in the field of activity referred to
in clause 2.7, for whatsoever reason directly or indirectly solicit the custom of
or transact any business with or deal with any person, firm or body corporate
or incorporate which was a client of the business carried on by the Company at
any time during the twelve (12) months immediately preceding the termination
date; and
2.3 after the termination date offer employment to or employ or cause employment
to be offered to or cause to be employed by any person who is employed in
connection with the business carried on by the Company at the termination date
or at any time within the (12) months immediately preceding the termination
date; and
2.4
2.5 the period to which the restraint in 2 above relates shall apply for the duration
of this Agreement and thereafter for twelve (12) months from the date of
termination of the Employee's employment with the Company;
2.6 the area to which the restraint in clause 2 above applies are the sales territories
in the Republic of South Africa, in which the Company conducts business as at
the date of the termination of the employee's employment with the Company
including but not limited to the Employee's specific sales region;
2.7 the fields of activity which the restraint in clause 2 above applies to in any
business activity in direct competition t the Company in the field of Aesthetics;
2.8
2.9
2.10 the Employee agrees that:
2.10.1 the restraint set out above are reasonable as to the subject matter, are and
duration and are absolutely necessary to protect the Company's proprietary
interests:
duration and are absolutely necessary to protect the Company's proprietary
interests:
2.10.2 They have been provided for in return for the renumeration and benefits to the
Employee's employment with the Company; and
2.10.3 She enters into the restraints herein provided freely and voluntarily.
3.
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c. Nu Angle Aesthetics [applicant's] further submissions
[19] According to the Nu Angle Aesthetics, the method of conducting business is
typical in the industry. Nu Angle Aesthetics further asserts that Dermafrica conducts its
business in the same way. Nu Angle Aesthetics further maintains that Dermafrica is
also a supplier of aesthetics medical products. According to Nu Angle Aesthetics,
Dermafrica supplies the same type of products as them. It is important, however, to
recognise that Nu Agle Aesthetics admits that Dermafrica does not supply the same
brands as them but supplies competing brands.
[20) To the extent Nu Angle Aesthetics further argues that prior to the first respondent
becoming employed by the applicant, she did not have any experience in the aesthetic
medical industry and the applicant trained the first respondent and taught her
everything she knows about the industry. Nu Angle Aesthetics further contends that it
trained the first respondent so that she can be an expert in the aesthetic medical
products they offer. According to Nu Angle Aesthetics, the first respondent received
ongoing and regular training in respect of Nu Angle Aesthetics' products and was
required to master what she learnt so that she could train her sales team and the
applicant's customers.
[21] The founding affidavit outlined the first respondent's duties as Sales Consultant
as follows:
(a) Developing and maintaining relationships with the applicant's customers for the
purposes of making sales;
(b) Making regular visits to Nu Angle Aesthetics customers' aesthetic medical
practices;
(c) Manage, mentor and lead the sales team in the field;
(d) Was directly responsible for Nu Angle Aesthetics' relationships with customers
referred to as Key Opinion Leaders, who have influence in the market and
highest value client;
( e) Intimately involved in business and marketing strategy, as a result, she had
access to confidential information in the form of Nu Angle Aesthetics' business
access to confidential information in the form of Nu Angle Aesthetics' business
plan, sales strategies, marketing strategies, and social media strategies;
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(f) Required to attend Nu Angle Aesthetics' monthly management meeting, at
which all matters pertaining to the strategic development of Nu Angle
Aesthetics' business are discussed;
(g) She assisted the aesthetic medical practitioner to identify product gaps at their
clinics and provided advice in relation to suitable product offerings the clinic
could provide to patients to fill the gap; and
(h) Identifying high-potential team members and to provide them with mentorship
for growth.
(22) Nu Angle Aesthetics asserts that on or about August 2025, the first respondent
informed an employee of Nu Angle Aesthetics that she [the first respondent] had
received an offer from Dermafrica. According to Nu Angle Aesthetics, when they
realised that Dermafrica are their direct competitor they refused to waive the restraint
of trade. Nu Angle Aesthetics communicated to the first respondent that if the first
respondent were to accept the offer from Dermafrica, Nu Angle Aesthetics would have
no choice but to enforce the restraint of trade agreement.
[23] Nu Angle Aesthetics contends that the first respondent deliberately concealed her
new employer's identity to keep them in the dark. They argue this is evidenced by her
false claims that she would be a Medical Sales Representative and that her new
employer was not a competitor.
[24] Nu Angle Aesthetics further alleges that, beyond breaching the restraint of trade,
the first respondent is actively seeking to induce its staff to take up employment at
Dermafrica.
d. First respondent's submissions
[25] The first respondent maintains that the specific reasons for her resignation need
not be canvassed, save to say that her financial situation left her with little choice but
to terminate her employment with Nu Angle Aesthetics.
[26] The first respondent further contends that her reluctance to reveal her new
employer was not prompted by a fear of breaching the restraint agreement, but rather
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by a fear of the applicant's potential reaction, as evinced by the treatment of other
colleagues who had resigned to join entities in the broader aesthetic industry.
According to the first respondent, the applicant set out to ruin those who resigned,
either financially or by destroying their careers through litigation. It is her contention
that she had heard through the grapevine that the applicant intended to make an
example of her; a rumour she claims justified her unwillingness to reveal her future
employment.
[27] The first respondent further contends that Nu Angle Aesthetics is pursuing this
litigation solely based on concerns about several resignations and as such, the senior
management of Nu Angle Aesthetics wants to use the first respondent as an example.
[28] The first respondent asserts that it would have been unwise for her to sign a
restraint of trade which would prevent her from being in aesthetic industry as this would
have meant that she would forever be beholden to Nu Angle Aesthetics. she took
comfort in signing the restraint given the words 'direct competition'.
[29] The first respondent vehemently submits that the phrase 'in direct competition with
the Company in the field of Aesthetics', as found in clause 2.7 of the restraint
agreement must be distinguished from the broader term 'in competition'. It was
strongly asserted on her behalf that the facts of this matter are distinguishable from
Truworths Limited v Nxasana, Mr Price Group Limited and Another (2025/176724)
[2025] ZAWCHC 580 (10 December 2025), a matter previously decided by this Court.
[30] It is the first respondent's contention that there is a material difference in the
threshold requirements between being 'in direct competition' as opposed to merely
being 'in competition'.
[31] According to the first respondent, the founding affidavit fails to establish a direct
rivalry between the two entities. So, the argument ran, at most, Nu Angle Aesthetics
rivalry between the two entities. So, the argument ran, at most, Nu Angle Aesthetics
and Dermafrica are participants in a similar market: however, being competitors in a
broad sense does not equate to the direct competition as contemplated by the restraint
of trade agreement.
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[32] Quite apart, however, from any technical distinction [between direct competition
and competition], drawing on her firsthand experience with both entities, the first
respondent asserts that they operate in distinct, non-competitive spheres. According
to the first respondent, the fact that the two entities do not sell the same products
supports her assertion that they are not direct competitors.
c. Did the first respondent have justification in her not revealing the identity
of her prospective employer?
[33] This issue inevitably involves a degree of judgment. First and foremost, the first
respondent as an employee who entered a restraint of trade agreement, she had a
legal obligation to reveal her prospective employer. Conversely, Nu Angle Aesthetics
[the employer] had a reciprocal contractual right to be informed. By that I mean, of
course, that these duties arise from the implied obligation of good faith inherent in such
agreements [ restraint of trade agreement]. The first respondent asserts, however, that
under the specific circumstances of her employment with Nu Angle Aesthetics, her
non-disclosure was a justifiable measure to protect herself against the Nu Angle
Aesthetics' alleged abuse of power. The reasons the first respondent puts forward are
rather subjective.
[34] It is however significant to note that this version of events is not in line with the
first respondent's earlier correspondence. When Nu Angle Aesthetics requested the
details of her new employer through an email, she failed to provide the company's
name, stating instead that she was not allowed to disclose that information.
(35] To elucidate the contents of the email exchange further, it is necessary to recite
them.
[36] On 16 January 2026, the national manager of Nu Angle wrote the following to the
first respondent:
" . .. to ensure that all contractual obligations and business interests are appropriately
protected, could you please confirm the name of the company you will be joining?
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We assure you that this information will be treated confidentially."
[37) In response to the email, addressed to her, the first respondent wrote the following
email on 19 January 2026:
" ... Thank you very much, I will be a Medical Sales Representative. As discussed with
Jackie. I am unable to disclose the company, at this time, as soon as I am aloud (sic)
to, I will let you know."
(38) On the same day, the director of Nu Angle respondent as follows to the first
respondent's communique:
" .. . Why are you not allowed to tell us?"
[39] In response to later letter from Nu Angle, the first respondent. stated the following :
"I'm not sure. It was request that was given to me.
Please note I am not selling ANYTHING that nuangle distributes.
Please understand that this decision has not been an easy one from me. I am still Lee
Ann, the same woman who has proudly called NuAngle home for the past nine years.
This company has shaped me both personally and professionally, and I carry with me
the values of loyalty, integrity, and my strong work ethic . .. I would never do anything
that could jeopardise the relationships, trust or respect built over the years between
myself and NuAngle."
[40] There are several significant difficulties with the first respondent's shifting
explanations for her failure to disclose her new employer's identity. These inconsistent
versions suggest a deliberate attempt to evade her contractual obligations.
[41] It is crucial to understand at the outset that in order to justify a breach of contract
or a failure to disclose, a party must prove a reasonable apprehension of harm based
on verifiable facts. Subjective fears fuelled by the grapevine are typically dismissed by
the courts as speculative, especially when weighed against a clear, written contractual
obligation of good faith.
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[42] Nu Angle Aesthetics alleges that the failure on the part of the first respondent to
disclose was an attempt to avoid the enforceability and the consequences of the
restraint of trade agreement.
[43] From the afore going, it is clearly an abuse of power assertion must be supported
by concrete evidence showing that the restraint is being used punitively rather than to
protect a legitimate proprietary interest. Unfortunately, for the first respondent, rumours
and gossip do not meet the evidentiary threshold of objective reasonableness.
Obviously, it would be a slippery slope to base court decisions on office rumours and
gossip. It would certainly create bad precedent.
[44] In the context of this matter, the first respondent's failure to disclose her
prospective employer cannot be viewed as innocent. Particularly, as this omission
persisted despite a formal request for such disclosure. Moreover, in terms of the
Labour Relations Act, an employer is required to treat its employees fairly. An
employer's failure to do so does not entitle an employee to remedy the situation by
simply breaching the duty of good faith inherent in a restraint of trade agreement. An
employee bound by such an agreement, who feels aggrieved by the unfair conduct of
an employer, must instead seek recourse through the mechanisms provided by the
Labour Relations Act.
[45] Consequently, this Court is not persuaded by the first respondent's assertion that
the Nu Angle Aesthetics's litigation is not a bona fide attempt to address a breach of
contract or protect a legitimate interest. Furthermore, there is no evidence to support
the claim that the Nu Angle Aesthetics is primarily driven by a desire to intimidate
current employees into remaining with the firm.
d. Is Dermafrica a direct competitor of Nu Angle Aesthetics?
[46] The first respondent argues that a lack of product synergy and a minimal overlap
in specific brands proves that the entities operate in distinct market segments. On this
in specific brands proves that the entities operate in distinct market segments. On this
basis, she contends it is inaccurate to label the businesses as direct rivals.
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[4 7] As a manager rather than a junior employee, the first respondent, as correctly
asserted by Nu Angle Aesthetics, acquired deep insight into the company's supplier
relationships, key clients, and proprietary trade terms. Her strong association wi1h the
brand, coupled with this specific expertise, creates a risk that customers would
naturally follow her to a new employer, thereby compromising the Nu Angle Aesthetics'
protectable interests.
[48] Competition is a normal business risk. The law does not protect an employer's
monopoly; it only protects their proprietary assets. However, the restraint of trade
agreement serves to protect the company's most sensitive assets, eliminating the risk
of them being handed directly to a rival.
[49] An employer's protectable interests extend to both intellectual property and
goodwill. This includes the right to safeguard secret trading or manufacturing methods
from exploitation and the right to ensure that former employees do not systematically
divert the company's established clientele.
[50] The first respondent argues that the lack of product synergy serves as evidence
that the entities operate in distinct market segments, thereby falling outside the scope
of direct competition.
[51] Both Nu Angle Aesthetics and Dermafrica supply aesthetics medical products
involved in the same kind of business. Nu Angle Aesthetics and Dermafriaca are
indeed in direct competition despite not sharing the same product brands. Surely it is
not too farfetched to imagine a scenario wherein a doctor or clinic struggling to obtain
a specific brand from Nu Angle Aesthetics, they can satisfy the same clinical need by
then sourcing a competing brand from Dermafrica to satisfy the same clinical need.
[52] As previously mentioned, that in paragraph 24 of the founding affidavit, the
deponent to the founding affidavit concedes that the two entities do not supply the
same brands.
[53] I cannot rid myself of the feeling that Nu Angle Aesthetics' admission regarding
[53] I cannot rid myself of the feeling that Nu Angle Aesthetics' admission regarding
different brands is actually an acknowledgement that their products are functional
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substitutes. In essence, they target the same customer needs and perform the same
therapeutic functions, albeit through different brand names or formulation.
[54] The first respondent failed to meaningfully dispute this, offering only a general
denial of the founding affidavit except where it aligned with her own answering affidavit.
This type of blanket denial, absent any specific facts to the contrary, fails to create a
genuine dispute of fact regarding the competitive nature of the two entities.
[55] The first respondent argues that the product ranges barely overlap, as such , it is
inaccurate to label these two businesses as direct rivals. So, the argument continues,
the similarities are too minor to support a claim of direct competition.
[56) The first respondent in her assertion, .maintains that she did not sign a non
compete for the entire aesthetics industry. According to her, she only agreed not to
work for a direct rival. The authorities are clear that the term direct competition is not
to be interpreted literally and restrictively. If both Nu Angle Aesthetics and the second
respondent [the new employer] provide aesthetic treatments ( even if one is "luxury"
and the other "standard"), it is not difficult to find them in direct competition because a
client would choose one over the other for the same fundamental need.
[57) On this point, observations of direct competition in the matter of Nxasana, supra,
this Court in the determination of direct competitor looked past the physical products
to see if the business models or target customers are the same. Surely, as mentioned
previously, if the products are different but the problem they solve for the customer is
the same, it is not difficult for the court to still find them to be direct competitors.
[58] At the outset it should be pointed out that it is plain that the first respondent seeks
to restrict the meaning of direct competitors, with the hope to prove that her new
to restrict the meaning of direct competitors, with the hope to prove that her new
employer falls outside that circle , even if they are in the same general industry. The
fist respondent's counsel forcefully argued the present case is readily distinguishable
from Nxasana' s case in two important ways. Firstly, he firmly argued that the facts of
this matter are readily different for the Nxasana 's case, as Nu Angle Aesthetics and
Dermafrica are not targeting the same thing. Secondly, unlike in the Nxasana's case ,
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the CEO of Dermafrica deposed to a confirmatory affidavit wherein she specifically
mentions that Dermafrica is not in direct competition with Nu Angle Aesthetics.
[59) As held, in the Nxasana's case, substance prevails over form. And as one would
expect, in competition law, this principle ensures that the court looks at the economic
reality of the market rather than the technical labels or branding used by the parties. It
is undisputed that both Nu Angle Aesthetics and Dermafrica provide aesthetic services
to the same client pool. The first respondent's failure to dispute this demonstrates that,
in this context, the word 'direct' is a distinction without a difference.
[60] It is, I think, worthwhile pausing at this point in order to examine the Nxasana
case. It seems to me that in Nxasana, this Court shed considerable light, when it
stated the following: from paragraph 58-63:
"[58] Truworths and Mr Price have maintained operations within the retail industry
for a significant period. Both companies are well-established entities in the
merchandising sector, demonstrating long-standing engagement in the business of
selling goods directly to consumers. The argument presented by the first respondent
is unsustainable. It depends on an unduly narrow interpretation of "competitors" that is
completely unsupportable when considering the core business activities of both
companies. Both operate in the same market, offering wearing apparel, household
equipment, and accessories and competing for consumers.
[59] I do not understand the averment made by the first respondent, when he says that
the differentiation in target market, product offering and store design philosophy,
means that the two companies are not direct competitors. Surely, this averment is
incorrect. Differentiation strategies (target market, product, design) do not eliminate
competition; they are simply different ways of competing within the same general
market landscape. These are simply strategies to gain competitive edge.
market landscape. These are simply strategies to gain competitive edge.
[60] Companies employ various strategies such as focusing on specific customer
groups or creating unique products, as methods to compete within the same market
and achieve a leading position. These approaches are not ways to avoid competition ;
rather, they are the very tactics used to actively fight against direct competitors. Surely,
companies will always use different approaches, like targeting unique demograph ics
or developing specialised products, to strive for dominance.
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[61] This makes sense, particularly given the fact that both companies are powerful,
rapidly expanding retail companies that have enjoyed significant success, making
them aggressive competitors. Although Truworths and Mr Price may target slightly
different customer segments, this does not mean they are not competitors. In fact, for
the majority of their products, they compete directly for the same customers.
[62] Thus, it is not correct to contend in the context of Truworths and Mr Price, that
differences in target demographics, design philosophy, and brand strategy mean that
the two companies are not direct competitors in the strict sense.
[63] Furthermore, the fact that one company may be larger or pricier than the other
does not negate their competitive relationship. A consumer might be deciding whether
to spend R1000 on a high-end item from a pricey retailer (Truworths) or buy several
essential items for the same total price at a value retailer (Mr Price). However. both
companies are competing for that consumer's discretionary income. Businesses
compete for a customer's discretionary income regardless of their vastly different price
points or market segments. As long as they are targeting the same pool of optional
spending money, they are direct rivals."
[61) In paragraph 17 of the founding affidavit the Nu Angle Aesthetics as an aesthetic
medical supplies company. Nu Angle Aesthetics further asserts that its business is in
the supply of aesthetic medical products and equipment to doctors and clinics for use
in aesthetic medical procedures. On the other hand, the founding affidavit describes
Dermafrica as supplier of aesthetics medical products and that it supplies these
products to doctors and clinics for use in aesthetic medical procedures described as
an entity that conducts its business through sales representatives who maintain
relationships with the applicant's customers. The founding affidavit then goes further
relationships with the applicant's customers. The founding affidavit then goes further
to explain that though Dermafrica supplies the same or similar products produced by
a different manufacturer (and marketed under a different brand) which products
compete with the products of the applicant for market share.
[62] I venture to say that, in the context of the aesthetics industry, it is not far-fetched
to say that Nu Angle Aesthetics and Dermafrica compete for the discretionary income
of a shared consumer base. Because these treatments are typically elective and non-
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essential, both companies are effectively vying for the same luxury spend within the
same market sector, targeting the same practitioners, medical spas, and clinics.
(63] This bolsters the view that the two entities are in competition. Remarkably, Nu
Angle Aesthetics identifies Dermafrica as a fellow supplier of similar products, a
submission that the first respondent has not specifically denied. Consequently, both
entities are prominent distributors operating within the same competitive space,
rendering any distinction between them effectively meaningless.
[64] It is not difficult to infer from the facts that the competition [between the two
entities] extends beyond services rendered to the specialised labour pool. As
evidenced by the confirmatory affidavit of Antonette Snyman, that the first respondent
has actively sought to recruit a former colleague to join her at Dermafrica. This
solicitation demonstrates that the entities rely on the same specialised skills; it is a
clear attempt to gain a market advantage by leveraging Nu Angle Aesthetics's human
capital. It bears commenting upon that if the employees' skills are transferable and
valuable to both companies, it confirms they operate in the same competitive space.
(65) In restraint of trade matters, courts often view competition not just as doing the
exact same task, but as any business activity that directly or indirectly targets the same
market or protects the same proprietary interests. By vying for the same discretionary
spend and the same professional talent, these companies are inextricably linked as
rivals. To hold otherwise, it would be inconsistent with what is stated in Nxasana's
case, as it [Nxasana case] is a strikingly similar case to the present one. As such, it is
not difficult to see how such a case could not be authority here.
[66] It seems hardly consistent to hold that there is no direct competition merely
because the wording of the restraint of trade provision in Nxasana differs from the
because the wording of the restraint of trade provision in Nxasana differs from the
present matter. Mr Steenkamp argued that because the agreement in Nxasana used
the phrase direct competitor; it was formulated in a broader term than the current
provision, viz any competitor. However, even if the Nxasana's wording were wider, the
legal principle it established [that you look at what is actually happening in the market,
not just the labels] still applies. I thus, do not accept the argument proffered on first
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respondent's behalf; and I am unconvinced that this matter can be successfully
distinguished from Nxasana.
[67] On the facts of the instant case, however, I am in no doubt whatsoever that the
submissions of Mr Bruinders, counsel for the Nu Angle Aesthetics are to be preferred.
[68] Accordingly, the narrow distinction the first respondent seeks to draw between
competition and direct competition is a distinction without a difference. The difficulty
with the first respondent's argument is twofold. First, it amounts to splitting of hairs,
and as such it is legally artificial that fails to account for the commercial reality of the
aesthetics industry.
[69] Having established that Nu Angle Aesthetics and Dermafrica are direct rivals in a
specialised market, the first respondent's access to the Nu Angle Aesthetics' trade
secrets makes her employment at Dermafrica an inherent risk. The law does not
require the applicant to wait for actual prejudice to occur; the potential for the first
respondent to exploit her knowledge of the applicant's business models and client
connections to the benefit of a competitor is sufficient to justify the enforcement of the
restraint. Both entities provide services and products that are similar, serve as viable
alternatives to one another, or are capable of displacing each other in a common target
market. It is to my mind legally impossible not to interweave these above-mentioned
factors so as to see the complete picture of 'direct' competition.
[70) In the result this Court finds, on the basis of all the evidence, that the two entities
are in direct competition with each other.
e. Restraint unreasonable
[71) I am not convinced that it can be successfully argued in this case that the restraint
agreement is unreasonable. An important consideration which the court should have
in mind when determining as to whether the restraint of trade agreement is reasonable
is to look at the terms of the agreement.
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[72] Interestingly, the first respondent asserts that the restraint is unreasonable.
However, in terms of the agreement, she expressly agreed that the terms were
reasonable regarding subject matter, geographical area, and duration, and were
essential for the protection of the company's proprietary interests.
[73] First and foremost, the first respondent, having freely signed the restraint of trade
agreement, she cannot now seek to renege on its terms. Her current attempt to
distance herself from her own contractual undertakings, specifically her agreement not
to compete or solicit, is belied by her recent actions. I bear very much in mind that the
fact that she had already attempted to solicit a Nu Angle Aesthetics employee provide~
clear evidence of a breach in progress. For that matter, this conduct directly contradicts
her assertion that her new role does not compete with the applicant's business and
confirms that she is actively leveraging her insider knowledge to gain a market
advantage for a rival.
[74] In an apparent last-ditch argument, the first respondent argues that her financial
ruin far outweighs Nu Angle Aesthetics protectable interest. There is also a flipside
point to the first respondent's financial ruin argument. Surely, it is commercially and
legally unsound to suggest that Nu Angle Aesthetics' legitimate protectable interests
are limited or far outweighed by the first respondent's claims of financial ruin. I do not
say that this factor is necessarily determinative, but it is a relevant consideration.
[75] The irony is that the whole context necessarily includes the fact that the first
respondent entered into this agreement with full knowledge of its implications.
Consequently, the potential for irreparable harm to the applicant's proprietary interests,
specifically through the exploitation of trade secrets and the solicitation of its
workforce, is a concrete risk that justifies enforcement. It is, of course, the position that
workforce, is a concrete risk that justifies enforcement. It is, of course, the position that
the law does not require an employer to sacrifice its established goodwill and
confidential assets simply because an employee seeks to join a direct competitor in
breach of their contractual undertakings.
[76] Unfortunately, it follows as a matter of logic that a party who commits a breach of
a restraint agreement must bear the legal and commercial consequences of that
breach. To that end, a court cannot countenance a breach of contract based on mere
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sympathy for an employee. To do so would undermine the sanctity of contract and
render legitimate restraint agreements unenforceable whenever a respondent claims
personal hardship. If it were, otherwise, a party could effectively nullify any restraint of
trade agreement simply by pleading financial inconvenience. And the protection
afforded by such agreements would be illusory.
[77] Notably, the agreement records that the first respondent accepted these
restrictions as a condition of and in return for the remuneration and benefits provided
to her throughout her tenure. The first respondent cannot now seek to escape the
contractual obligations she voluntarily undertook in exchange for those very benefits.
Moreover, her plea of financial hardship does not override the principle of pacta sunt
seNanda, particularly where she has already received the 'price' for her agreement to
be restrained.
[78] In conclusion, having regard to the expressed terms of the restraint of trade
agreement, I am not persuaded that the restrictions manifest any unreasonableness.
To the contrary, they appear to be a proportionate means of protecting the applicant's
proprietary interests.
[79) Lastly, another potential significant issue is that of costs. I simply cannot see why
the costs should not follow the results. Scale C is warranted for this matter.
[80) In the result, I make the following order:
80.1 The first respondent is interdicted and restrained from being directly or indirectly
concerned, engaged, interested in or employed by the second respondent
(whether as employee, agent, consultant, director, shareholder, partner or
otherwise) for 12 months upon the date upon which this order is granted;
80.2 The second respondent is interdicted and restrained from employing the first
respondent or mandating her to act as agent or consultant of the second
respondent for 12 months from the date upon which this order is granted;
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80.3 The first respondent is interdicted and restrained from directly or indirectly being
concerned, engaged, interested or employed in any business which directly
competes with the applicant in the field of aesthetics within the Republic of
South Africa for 12 months from the date upon which this order is granted;
80.4 The first respondent is interdicted and restrained from soliciting or attempting
to induce any employee of the applicant to leave the applicant's employment or
to take up employment or to take up employment with a different employer for
12 months from the date upon which this order is granted;
80.5 The first respondent is directed to delete and destroy all copies of any
confidential information belonging to the applicant which information is in the
possession of the first respondent or stored on any device in her possession;
80.6 The information to be deleted in accordance with this paragraph shall include
any copies of the applicant's business plan, sales strategies, robot reports,
marketing strategies or social media strategies;
80.7 The first respondent is directed to file an affidavit under oath, within 10 days of
this order confirming that she has complied with paragraph 80.5 above;
80.8 The first respondent shall pay the costs on Scale C.
CN NZIWENI
JUDGE OF THE HIGH COURT
Appearances:
Counsel for Applicant
Instructed by
Counsel for First Respondent
Instructed by
Advocate V Bruinders
Telfer Incorporated
J Weinbe rg
Advo cate Steenkamp
BOP Attorneys
GD de Beer
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