Ndlovu and Others v Liberty Properties (Pty) Ltd and Another (21564/01) [2002] ZAGPHC 19 (16 April 2002)

Ndlovu and Others v Liberty Properties (Pty) Ltd and Another (21564/01) [2002] ZAGPHC 19 (16 April 2002)

The court held that a confidentiality clause, in itself, is not contrary to public policy or unconstitutional. The plaintiffs conceded that at common law, there is no basis for such a clause to be regarded as contra bonos mores per se. The court found that the clause does not deny the plaintiffs the right to consult with their attorneys or to be advised of their rights. As the particulars of claim failed to disclose a cause of action on the grounds advanced, the exception was upheld. The court granted the plaintiffs leave to amend their particulars of claim within 21 days.

Citation
[2002] ZAGPHC 19
Parties
Plaintiff: Ndlovu, N N and Others; Defendant: Liberty Properties (Pty) Ltd; Defendant: South African Commercial Catering and Allied Workers Union
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
16 April 2002
Case Number
21564/01
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exception upheld; particulars of claim set aside with costs; leave to amend granted.
Judges
Willis
Legal Topics
Exception Procedure, Confidentiality Clause, Contra Bonos Mores, Constitutional Right of Access to Court
Civil Procedure Commercial and Corporate Exception Procedure Confidentiality Clause Contra Bonos Mores Constitutional Right of Access to Court

Case Brief

Summary, issues, holding and outcome

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Parties

Ndlovu, N N and Others

Plaintiff

Liberty Properties (Pty) Ltd

Defendant

South African Commercial Catering and Allied Workers Union

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the confidentiality clause in the agreement is contra bonos mores and unconstitutional.
  2. 2 Whether the particulars of claim disclose a cause of action.
  3. 3 Whether the plaintiffs have locus standi to challenge the agreement on behalf of others.

Ratio Decidendi

The court held that a confidentiality clause, in itself, is not contrary to public policy or unconstitutional. The plaintiffs conceded that at common law, there is no basis for such a clause to be regarded as contra bonos mores per se. The court found that the clause does not deny the plaintiffs the right to consult with their attorneys or to be advised of their rights. As the particulars of claim failed to disclose a cause of action on the grounds advanced, the exception was upheld. The court granted the plaintiffs leave to amend their particulars of claim within 21 days.

Court Disposition

Exception upheld; particulars of claim set aside with costs; leave to amend granted.

Orders

  • The exception is upheld with costs and the plaintiffs' particulars of claim are set aside with costs.
  • The plaintiffs are given leave to amend their particulars of claim within 21 days of this order.