CIM Chemicals (Pty) Ltd v Roodt and Another (14162/2011) [2013] ZAKZDHC 58 (24 October 2013)

CIM Chemicals (Pty) Ltd v Roodt and Another (14162/2011) [2013] ZAKZDHC 58 (24 October 2013)

The court found that the first respondent failed to establish that the applicant had waived its right to enforce the restraint of trade clause. The evidence did not support an express waiver, and the conduct relied upon by the first respondent amounted at best to a tacit waiver, which was insufficient in light of the non-variation and non-waiver clause in the contract. The court accepted Mulder's explanation that his statement about not standing in the respondent's way referred to the past history between the parties, not to waiving the restraint clause. The respondent did not discharge the onus of proving waiver, and the applicant was entitled to enforce the restraint provision.

Citation
[2013] ZAKZDHC 58
Parties
Applicant: CIM Chemicals (Pty) Ltd; Respondent: Mike Roodt; Respondent: Bragan Chemicals (Pty) Ltd
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
24 October 2013
Case Number
14162/2011
Procedural Posture
Urgent Application / Judgment After Referral for Oral Evidence
Outcome
Application to enforce the restraint of trade clause granted.
Judges
Mokgohloa
Legal Topics
Restraint of Trade, Waiver of Contractual Rights, Non Variation Clause
Commercial and Corporate Restraint of Trade Waiver of Contractual Rights Non Variation Clause

Case Brief

Summary, issues, holding and outcome

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Parties

CIM Chemicals (Pty) Ltd

Applicant

Mike Roodt

Respondent

Bragan Chemicals (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Judgment After Referral for Oral Evidence

Legal Issues

  1. 1 Whether the applicant waived its right to enforce the restraint of trade clause against the first respondent.
  2. 2 Whether the conduct of the applicant's representative constituted an express or tacit waiver of the restraint clause.
  3. 3 Whether the non-variation and non-waiver clause in the employment contract precludes reliance on alleged waiver.

Ratio Decidendi

The court found that the first respondent failed to establish that the applicant had waived its right to enforce the restraint of trade clause. The evidence did not support an express waiver, and the conduct relied upon by the first respondent amounted at best to a tacit waiver, which was insufficient in light of the non-variation and non-waiver clause in the contract. The court accepted Mulder's explanation that his statement about not standing in the respondent's way referred to the past history between the parties, not to waiving the restraint clause. The respondent did not discharge the onus of proving waiver, and the applicant was entitled to enforce the restraint provision.

Court Disposition

Application to enforce the restraint of trade clause granted.

Orders

  • The rule is confirmed with costs.
  • Such costs to include all costs previously reserved.