Absa Insurance and Financial Advisors (Pty) Ltd v Jonker and Another, Absa Insurance and Financial Advisors (Pty) Ltd v Jonker and Another (C741/17, C742/17) [2017] ZALCCT 57 (17 November 2017)

Absa Insurance and Financial Advisors (Pty) Ltd v Jonker and Another, Absa Insurance and Financial Advisors (Pty) Ltd v Jonker and Another (C741/17, C742/17) [2017] ZALCCT 57 (17 November 2017)

The court found that the applicant failed to establish a clear right to restrain the respondents from taking up employment with a competitor in the absence of a restraint of trade clause. The respondents had destroyed all confidential information in their possession, and there was no evidence of active solicitation of clients or unlawful competition. The contractual provisions did not amount to an implied restraint of trade, and the extraordinary remedy of an interdict was not justified. The applicant retained alternative remedies, such as a claim for damages if unlawful competition could be proven in future. The application for final relief was therefore dismissed.

Citation
[2017] ZALCCT 57
Parties
Applicant: Absa Insurance and Financial Advisors (Pty) Ltd; Respondent: Johan Leon Jonker; Respondent: Teresa Jonker; Respondent: Momentum Consult (Pty) Ltd
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
17 November 2017
Case Number
C741/17, C742/17
Procedural Posture
Urgent Application / Final Judgment on Urgent Application
Outcome
Applications dismissed with costs.
Judges
A J Steenkamp
Legal Topics
Unlawful Competition, Confidential Information, Restraint of Trade, Employment Contracts
Labour Law Commercial and Corporate Unlawful Competition Confidential Information Restraint of Trade Employment Contracts

Case Brief

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Parties

Absa Insurance and Financial Advisors (Pty) Ltd

Applicant

Johan Leon Jonker

Respondent

Teresa Jonker

Respondent

Momentum Consult (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Final Judgment on Urgent Application

Legal Issues

  1. 1 Can an employer interdict former employees from taking up employment with a competitor in the absence of a restraint of trade clause?
  2. 2 Is the use or retention of confidential information by former employees unlawful competition?
  3. 3 Has the applicant established a clear right to final interdictory relief against the respondents?

Ratio Decidendi

The court found that the applicant failed to establish a clear right to restrain the respondents from taking up employment with a competitor in the absence of a restraint of trade clause. The respondents had destroyed all confidential information in their possession, and there was no evidence of active solicitation of clients or unlawful competition. The contractual provisions did not amount to an implied restraint of trade, and the extraordinary remedy of an interdict was not justified. The applicant retained alternative remedies, such as a claim for damages if unlawful competition could be proven in future. The application for final relief was therefore dismissed.

Court Disposition

Applications dismissed with costs.

Orders

  • The applications in case numbers 741/2017 and 742/17 are dismissed with costs.