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with him after he was dismissed by Momentum . Mr.
Kloppers used it to compete for clients with Momentum, at
least in the provision of brokerage services . That this is the
core of Momentum's case is clear on any reasonable
construction of the papers. The fact that neither of the
respondents has any defence to the claim for the return of
the confidential information is equally clear.
When this matter was first called before me two days
ago, I made counsel aware that this was my prima facie
view and, since then, a draft order has been agreed 10
between the parties , which provides essentially for the
return of defined confidential information to which
Momentum is entitled . Now the only issue that the parties
disagree on is costs .
Mr H eher , who appeared for Momentum, sought costs
on the attorney and client scale, relying on a provision of
Mr. Kloppers’ employment agreement with Momentum and
as well as what he submitted was the second respondent's
participation in what Mr. Heher characterised as Mr.
Kloppers’ disreputable and dishonest conduct . A ttorney and
20
client costs orders are only really appropriate when there
has been some misconduct in the context of litigation . It is
important for a court not to make costs orders on the basis
that they consider the litigants before them to be good or
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CC99/ 2015_ 20161214 / cp
3
bad people. What matters is how the parties have behaved
during the litigation process .
I see nothing that the respondents have done during
that process that would rise to the kind of misconduct that
would justify an attorney and client costs order. N or , given
the parties’ obvious inequality of bargaining power, am I
generally inclined to enforce an agreement to pay costs
reached in the context of a n employment contract .
Moreover , I am not inclined to award an attorney and
client costs order because, in my view, the relief sought in 10
Momentum’s notice of motion ranges substantially wider
than the relief that is justified on the allegations and
evidence in the founding affidavit . This was perhaps the
only good point of substance Mr Goose n, who a ppeared for
Mr. Kl oppers, raised in his argument, but he sought to press
it much further than it can go . Even though the notice of
motion goes beyond what the founding affidavit supports,
the core of the relief sought, on any reasonable
interpretation, was the return of the confidential information
and an interdict against its use . That is what the applicant
20
has been successful in negotiating out of the respondents .
It is what I would have granted had the case been
committed to me on its merits .
Momentum was forced to approach the court . The
application was opposed fiercely right up until the beginning