Kerbyn 154 (Pty) Ltd t/a Nashua East Rand v Van Den Heever (07/04/01) [2004] ZAGPHC 31 (22 September 2004)

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: 8307/04

DATE:2004-09-22

In the matter between

KERBYN 154 (PTY) LTD t/a NASHUA EAST RAND...................................................... Plaintiff

and

VAN DEN HEEVER, JOHAN & OTHERS................................................................ Respondent

JUDGMENT

WILLIS, J: The applicant seeks a restraint of trade order against the first and second respondents for a period of two years from an effective date in each instance in 2003 which is to read as follows: "Not to be engaged directly or indirectly in any capacity in any

business venture which is in competition or in conflict with the applicant's business in any one of the territories in which the

applicant is active." The restraint agreement upon which the applicant relies provides for a restraint for a period of five years after termination of the

employees' relationship with the applicant "for any reason whatsoever" and that the respective employee agrees that he or she will:

(a) "not within anyone of the territories in which Nashua is active,

(b) engage directly or indirectly in any capacity in any business venture competitive or in conflict with the business of Nashua.

(ii) Not to employ any representative or employees or formal employees or representatives of Nashua for any purpose whatsoever."

The applicant has sought final relief. The case bristles with disputes of fact. The respondents have opposed the application on the basis that the restraint is not justifiable or reasonably necessary to protect the applicant's proprietary interest, that the area is unreasonably wide, alternatively void for vagueness, that the restraint is contrary to public interest and public policy and therefore unenforceable, alternatively void for vagueness and that the business of the sixth respondent is distinguishable and separate from the applicant's business.

The applicant has alleged in its founding papers that it is a "supplier of office equipment being copiers, computers, facsimile machines, multi functional products, ie. combinations of copiers, facsimile machines, printers and scanners. The applicant is also a supplier of consumables for the said office equipment which consumables consist inter alia of toners, inks and paper for the office equipment. The applicant also conducts the business of servicing and maintenance of all products itself. The business of the applicant can generally be described as office automation, supplier and maintenance." In other words, without putting to fine a point on it, the applicant is seeking to retrain the respondents even from selling ink or paper in their new employ. Significantly the applicant has not sought to obtain lesser relief in the form of restricting the ambit of the competition and justifying it in its founding affidavit. I do not think I need refer to the innumerable points that have been raised on behalf of the respondents. In my view it is sufficient simply to refer to the case of Rawlins & Another v Caravantruck (Pty) Ltd 1

993 {11 SA 537 (A) at 541 D:

"The need of an employer to protect his trade connections arises where the employee has access to customers and is in a position to build up a particular relationship with the customers so that when he leaves the employer's service he could easily induce the customers to follow him to a new business (Joubert Genera/ Principles of the Law of Contract at 149]. Heydon The Restraintof Trade Doctrine (1971; at 108, quoting an American case, says that the 'customer contact' doctrine depends on the notion that

'the employee, by contact with the customer, gets the customer so strongly attached to him that when the employee quits and joins a rival he automatically carries the customer with him in his pocket'. In Morris (Herbert) Ltd v Saxefby [1916] 1 AC 688 (HL) at 709 it was said that the relationship must be such that the employee acquires

'such personal knowledge of and influence over the customers of his employer... as would enable him (the servant or apprentice), if competition were allowed, to take advantage of his employer's trade connection..'" In my view, quite apart from the allegations

contained in the respondent's answering affidavit, and to which I obviously must have regard, it seems to me obvious that the business

of the applicant is not such that customers are likely to become so attached to its former employees, that when those former employees

quit and join a rival they automatically carry the customer with them in their pocket.

I also do not think that it can be said that the business of the applicant is such that the employees of the applicant would acquire

such influence over customers of their former employer has to be able unfairly to take advantage of the employers connection. For these reasons I am satisfied that the following order be made: The application is dismissed with costs.

COUNSEL FOR THE APPLICANT: ADV A P BRUWER

ATTORNEYS FOR THE APPLICANT: DU PLESSIS, DE HEUS & VAN WYK

COUNSEL FOR THE RESPONDENTS: ADV E WESSELS

ATTORNEYS FOR THE RESPONDENTS:MARSHALLATTORNEYS