Distinctive Choice 780 CC t/a Multi Security v Preston and Others (1368/2011) [2011] ZAECGHC 53 (7 October 2011)

Distinctive Choice 780 CC t/a Multi Security v Preston and Others (1368/2011) [2011] ZAECGHC 53 (7 October 2011)

The court found that the restraint of trade clauses in both the sale and employment agreements were valid and enforceable, as they were not shown to be unreasonable or contrary to public policy. Preston was bound by the restraint in the sale agreement, which he signed, and Joubert by the employment contract. The respondents' denials were not bona fide and were contradicted by evidence of their involvement in competing business, poaching staff, and direct contact with the applicant's customers. The applicant demonstrated a clear contractual right, a protectable interest, and ongoing interference by the respondents. The sub-contractor agreement did not constitute a waiver of the applicant's...

Citation
[2011] ZAECGHC 53
Parties
Applicant: Distinctive Choice 780 CC t/a Multi Security; Respondent: Edward Joseph Preston; Respondent: Josua Hermanus Joubert; Respondent: Copper Eagle Trading 295 CC t/a Copper Eagle
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
7 October 2011
Case Number
1368/2011
Procedural Posture
Urgent Application / Application for Final Interdict
Outcome
Interdict granted against the first and second respondents restraining them from engaging in competing business and using confidential information within specified areas and periods. Costs awarded against the first and second respondents.
Judges
E Revelas
Legal Topics
Restraint of Trade, Confidential Information, Interdict, Employment Contract, Protectable Interest
Commercial and Corporate Civil Procedure Restraint of Trade Confidential Information Interdict Employment Contract Protectable Interest

Case Brief

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Parties

Distinctive Choice 780 CC t/a Multi Security

Applicant

Edward Joseph Preston

Respondent

Josua Hermanus Joubert

Respondent

Copper Eagle Trading 295 CC t/a Copper Eagle

Respondent

Procedural Posture

Urgent Application / Application for Final Interdict

Legal Issues

  1. 1 Whether the restraint of trade clauses in the employment and sale agreements are valid and enforceable against the first and second respondents.
  2. 2 Whether the first and second respondents breached the restraint of trade and confidentiality clauses by engaging in competing business and using confidential information.
  3. 3 Whether the applicant has established a clear right, interference, and absence of alternative remedy to justify the interdict.

Ratio Decidendi

The court found that the restraint of trade clauses in both the sale and employment agreements were valid and enforceable, as they were not shown to be unreasonable or contrary to public policy. Preston was bound by the restraint in the sale agreement, which he signed, and Joubert by the employment contract. The respondents' denials were not bona fide and were contradicted by evidence of their involvement in competing business, poaching staff, and direct contact with the applicant's customers. The applicant demonstrated a clear contractual right, a protectable interest, and ongoing interference by the respondents. The sub-contractor agreement did not constitute a waiver of the applicant's...

Court Disposition

Interdict granted against the first and second respondents restraining them from engaging in competing business and using confidential information within specified areas and periods. Costs awarded against the first and second respondents.

Orders

  • The first respondent is interdicted and restrained, as from 16 July 2010, for five years, from engaging in any business similar to the applicant's within a 60 kilometre radius from Port Alfred.
  • The first respondent is further interdicted and restrained, as from 1 October 2010, for two years, within the Ndlambe municipal area, from opening, being involved in, working for, or consulting in a similar business, and from using any trade secrets or confidential information of the applicant.