REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
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DATE
In the matter between:
EKM EXPORTS (PTY) LTD
EKM EXPORTS AFRICA (PTY) LTD
and
ALLAN DE OLIVIERA
PACU MARKETING (PTY) LTD
JUDGMENT
VAN DER WESTHUIZ EN, J
CASE NO.: 2026-080689
First Applicant
Second Applicant
First Respondent
Second Respondent
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[1] The applicants launched an urgent application for an interdict against
the respondents, inter alia, to prohibit the use of alleged confidential
information of the applicants and from competing unlawfully or unfairly
with the applicants.
[2] The first applicant is a long-established fresh-fruit exporter with
operations centred on a packhouse between Marble Hall and
Groblersdal in the Limpopo Province. The first applicant was a well
established entity primarily doing business on the international markets.
It subsequently established and maintained a local market in the fresh
fruit industry. Once that market was growing, the second applicant was
established through which the local market business would be
conducted. The first respondent became a director and shareholder of
the second applicant.
[3] The first respondent was an erstwhile employee of the first applicant and
an erstwhile director of the second applicant. The second respondent is
a private company of which the first respondent is a director and the
alleged driving force of the second respondent. The first respondent is
also a shareholder of the second respondent. The conduct complained
of is alleged to be carried on through the second respondent.
[4] The relief sought is primarily a final interdict against the respondents
and, in the alternative, an interim interdict pending the institution and
finalisation of an action within a specific period. Failing the timeous
institution of the action, the interim interdict would lapse.
[5] The applicants contend that when the first respondent joined the first
applicant in 2019, the latter was already an established business in the
relevant market. It was further contended on behalf of the applicants that
during the first two years of joining the first applicant, the first respondent
was exposed to the producer relationships of the first applicant. He
exploited these relationships and developed them further at the first
applicant's expense.
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[61 In this regard, the first respondent submitted that he had already had
contact and dealings with some of the applicants' clients and that he in
fact, brought some of them into the first applicant's fold. However, the
first respondent admitted to be made privy to the citrus and grape
farming and how the Go Go packhouse operated and packed for
customers. The first respondent submitted that when he joined the first
applicant, the latter had no local customers and was primarily active in
the international market. Furthermore, the first respondent submitted
that due to a restraint of trade agreement to which he was bound, he
could not be involved with local retailers such as Pick n Pay, Freshmark,
Spar or Woolworths. Nevertheless, the first applicant obtained a deal in
terms of which it was allowed to supply to Pick n Pay and Spar.
[7] However, the applicants submitted that if, and should, the first
respondent have brought his prior contacts into the first applicant's fold,
those became the customers of the first applicant, and he did not and
could not retain such customers as his own, exclusively to him. On his
subsequent departure from the applicants, he did not have those
customers as his own to trade with separately from the applicants. By
soliciting such customers to rather deal with the second respondent, the
applicants submitted that a breach was committed in respect of their
confidential information relating to at least those customers and he was
accordingly trading unlawfully vis-a-vis the applicants.
[8] In the main, the first respondent raised three defences. The first related
to the fact that he was a legitimately experienced participant in the fresh
fruit industry who had brought his own contacts into the first applicant's
fold. He subsequently merely joined a venture organised by producers
who had already decided to leave the applicants.
[9] In this regard, there is no merit in that defence. As recorded above, he
[9] In this regard, there is no merit in that defence. As recorded above, he
did not retain such producers as his own after introducing them to the
applicants. Consequently, when he joined the venture, in the form of the
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second respondent, those customers were still the customers of the first
applicant. They had not yet left the applicant's company. Prior to leaving
the applicants, he is alleged to have systematically copied information of
the applicant that would assist him in continuing to deal with the
applicant's customers. He would not have to re-establish such
information, thereby effecting a clear springboard effect upon the
applicants. His denial of such conduct is gainsaid by deleting the e-mails,
from his laptop supplied to him by the applicants, for a period of at least
8 months prior to his departure.
[1 O] Further in this regard, the fist respondent did not deny the occurrence of
the alleged damned conduct in respect of the documentary evidence,
but only the legal characterisation of the documentary evidence.
[11] Secondly, the first respondent alleged that the second applicant was a
non-trading entity and thus owned no protectable interests. The first
respondent was appointed as a director of the second respondent while
he was still a director and shareholder of the second applicant and
employee of the first applicant. In an affidavit relating to his departure
from the applicants, he defined himself to be a director and an authorised
representative of the second applicant.
[12] The first respondent's third defence contained an interesting concession
that his actions at most amounted to a possible breach of a fiduciary duty
towards a dormant company falling short of unlawful competition. In my
view, such concession clearly constitutes an intention of improper
conduct, attempting to dilute the true character of the admitted unlawful
conduct.
[13] The attempted denial of the confidentiality of the property of the
applicants and the weak attempt to deny unlawful competition on the
part of the first respondent , does not absolve the first respondent from
his clear systematic approach to unlawfully compete with the applicants.
The first respondent's lamentation of not receiving any promised
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shareholding in the first applicant and his alleged frustration therewith,
is not adequately explained by him. In his new venture, he would still be
receiving his same salary structure with the first applicant and hold
shares in the second respondent, akin to the shareholding in the second
applicant. Consequently, he would not be in a better position than that
he held with the applicants .
[14] In my view, the conduct of the first respondent, assessed objectively and
cumulatively, constitutes unlawful competition. Further in this regard, I
am satisfied that the applicants have proven a prima facie right in
confidential property worthy of protection to warrant the issue of an
interim interdict as prayed for, pending the institution of an action to be
instituted within a specific period. The applicants have shown a clear
apprehension of harm and the balance of convenience warrants an order
protecting the applicants' prima facie rights.
[15] It was conceded on behalf of the applicants, that the area of restriction
is to be limited only to the areas of Groblersdal and Marble Hall in the
Limpopo province.
[16] Although the respondents contested the urgency of the matter, they did
not press that issue. Accordingly , I received and heard the matter as a
matter of urgency.
[17] In respect of costs , the parties were agreed to a costs order to be taxed
on Scale C of the Uniform Rules of Court, such costs to include the cost
of two counsel where so employed. However, it may be prudent to direct
that the costs of this application be reserved.
I grant the following order:
1. The matter is heard as one of urgency ;
2. The first and second respondents be interdicted and prohibited from:
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(a) Competing unlawfully or unfairly with the applicants;
(b) Soliciting any of the applicants' customers and clients,
specifically Freshmark and Pick n Pay;
(c) Soliciting any of the applicants' partner producers (farmers or
suppliers) in the geographical area of Groblersdal and Marble
Hall in the Limpopo province;
(d) Disclosing or using any of the applicants' confidential export
programme information, international client information and
confidential information which was retrieved from the
applicants' database;
3. The relief contained in and provided for in paragraph 2 above shall
operate as an interim interdict with immediate effect, pending the
institution and finalization of an action, provided for in paragraph 4
infra;
4. The applicants are directed to institute action against the first and
second respondents within 20 (twenty) days from the date of this
order, failing which the order referred to in paragraphs 2 and 3 above
will lapse irrevocably;
5. The cost of this application are reserved.
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WESTHUIZEN
HIGH COURT
PRETORIA
On behalf of Applicant:
Instructed by:
FW Bates SC
M Louw
VBH Incorporated Attorneys
On behalf of Respondent: J Vorster SC
JA Booyse
Instructed by: Jacobs Roos Fouche Inc.
Date of hearing:
Date of Judgment:
23 April 2026
05 May 2026
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