Ocean Agriculture (Pty) Ltd v Holtzhausen (13890/03) [2003] ZAGPHC 6 (12 June 2003)

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO:13890/03

DATE:2003.06.12

In the matter between

OCEAN AGRICULTURE (PTY) LTD.............................................................................Applicant

and

YULANDI HOLTZHAUSEN...................................................................................... Respondent

JUDGMENT

WILLIS J:The applicant has approached the court by way of urgency seeking the following relief: an order:

1. interdicting and restraining the first respondent for a period of one year from 1 5 March 2003 until 30 March 2004 and in the whole of Gauteng Province and portions of North West, Northern Mpumalanga and Free State Provinces, as delineated in the map marked "AF6" to the founding affidavit being the territories in which the first respondent worked on behalf of the applicant ("the territory"), from -

1.1 representing, canvassing or accepting orders for or on behalf of any person, firm or company for products of goods of alike or similar kind to or designed to perform functions like or similar to those of the products or goods sold by the applicant;

1.2 engaging or being interested, either as principal, owner, agent, representative or employee, in any business competing with that of the applicant within the territories;

1.3 using whether directly or indirectly for her own benefit or the benefit of any other person in keeping confidential and not

disclosing any trade secret or confidential information of the applicant or any principal, client, customer or potential principal

or client of the applicant which may have come to the knowledge of the first respondent either directly or indirectly or whether in the course and scope of her employment with the applicant or not;

2. interdicting and restraining the first respondent from being employed by the second and/or third respondent during the period and in the territories referred to in paragraph 1 above;

3. interdicting and restraining the second and/or third respondents from employing the first respondent during the period referred to in paragraph 2 above;

4. directing the first respondent to pay the costs occasioned by this application on the attorney and own client scale;

5. directing that there shall be no order for costs against the second and/or third respondent unless either or both of them approaches the relief sought therein.

The second and third respondents initially filed a notice of intention to oppose but withdrew the opposition on 9 June 2003.

As this judgment is being delivered ex tempore and in a busy urgent court, I trust that I may be forgiven for delivering a judgment than is less complete than I would have desired.

It is common cause that the first respondent had been employed by the applicant initially as a sales representative. Her employment

commenced on 16 August 1999. In January 2002 the first respondent was promoted to the position of regional sales manager for the Gauteng Province and portions of the Provinces of the North West, Free State, Northern Province and Mpumalanga.

The applicant alleges that its main business is that of manufacturing, blending,formulating, selling anddistributing speciality agricultural fertilisers and chemicals in the Republic of South Africa. It alleges that the second and/or third respondents are offering similar products to those produced and sold by the applicant and to customers of the applicant as well as other members of the public. It also alleges that some of these products perform an identical function to those products produced and sold by the applicant.

It alleges that brand names used by the second and/or third respondents include Metalomax for amino acid, chelated, micro nutrient and the charge range of carbohydrate based trace elements. Similar products, alleges the applicant, are also sold by it.

The first respondent does not seriously dispute these allegations of the applicant and I believe that the essential thrust of the applicant's allegations with regard to the nature of its business and that of the second and third respondents, must be accepted.

The applicant alleges that the first respondent signed a restraint of trade at the commencement of her employment with it in 1999. The original document which was signed, has gone missing in very mysterious circumstances, It is clear that the first respondent did indeed have access to her personal file in which this document would have been contained and that it thereafter disappeared. The first respondent's explanation for why she did not have a copy of this document, why she only had a copy of the annexures and how a certain Mr Cohen, with whom she had dealings and who wished to see this document, somehow also lost a copy thereof, I may say is entirely unconvincing. On the probabilities I believe that despite protestations by the first respondent that she would not have signed the document that contained any restraint, that she did in fact do so.

I am strengthen in this conviction by the fact that it is clear that other employees employed in a similar positions to that of the first respondent, also signed documents containing similar restraint.

There is in my view merit in the submission of Mr Lamont who appears for the first respondent, that one cannot be sure at this stage as to the precise terms of that particular restraint by reason of the fact that certain of the restraint clauses that had been put before me, differ from others. Nevertheless for reasons that I shall develop later, I do not think that anything turns on this.

It is the applicant's case that at the time when the first respondent was leaving the employment of the applicant, she signed a further document that essentially was a recreation of the original document which she signed and which contained a restraint in the terms which it now seeks to enforce.

The first respondent has given, what seems to me, an entirely unconvincing explanation for why she happened to sign the second document which incidentally was backdated to the date when she originally was employed.

I do not believe that it is necessary to deal in any detail with the reasons which she advances for having signed this document save to observe the following: she says that there was a threat that she would be investigated for theft charges and that she may be arrested and prosecuted and also that she was afraid of being held a hostage against her will. She does not pertinently allege that there was a threat that she would be held hostage and in any event it is her case that she was in the presence of one Wendy at the time, who together with her, was sobbing uncontrollably in this difficult situation. It seems to me that these allegations of duress fall way short of the legal requirements for any consequences to attach to an allegation of duress and I would refer to the case of BoE Bank Beperk v Van Zyl 2002 5 SA 156 (C) which is the most recent reported case dealing with relevant authorities on this point.

The first respondent has, however, produced an affidavit prepared by a handwriting expert which comes to the conclusion that the initial on the relevant page of the document signed by the first respondent when she left the employment of the applicant, was forged. In other words page 5 of that document which refers to the restraint of trade, it would appear was not actually signed by the first respondent and that the initial was forged.

Accordingly, at this stage, I am unable to find that the first respondent did indeed sign the full document containing the restraint of trade upon which the applicant relies in the alternative to the original agreement.

As I have already indicated, it seems to me that on the probabilities the first respondent did indeed sign a restraint of trade agreement at the time when she was originally engaged by the applicant. I accept the submission of Mr Lamont that one cannot be sure as to the extent of the geographical area to which it extended. It is, however, to me obvious that the restraint would have contained some geographical area.

Nevertheless the first respondent protests not only that she is not acting in breach of the restraint but furthermore that she is engaged in the Northern Province only and therefore the areas sought to be included in the Notion of Motion by the applicant, fall outside of the area in which she presently is employed. The relevance of this will appear later.

It is clear on a balance of probabilities that the first respondent as a sales representative would have developed relationships with various customers of her former employer. It is also clear that she would have knowledge of what these different customers required. It is important to note that there is no dispute that when the first respondent was originally engaged in the employment of the applicant, that she had no particular expertise in the field of agricultural products and in particular agricultural fertilisers and chemicals. The restraint does not purport to restrain the first respondent from acting as a sales representative in any and every field but simply in the field in which the applicant is engaged and in which the first respondent inevitably and obviously would have developed contacts, knowledge and information.

In my view the applicant certainly has a protectable interest as recognised in the well-known cases of Rowland v Caravan Truck (Pty)

Ltd [1992] ZASCA 204; 1993 (1) SA 537 (A) and Paragon Business Forms v Du Preez 1994(1) SA 434 (SE).

It is clear to me that the court cannot at this stage make a final order as sought by the applicant. Nevertheless the probabilities indicate that she did indeed sign a restraint Df trade agreement along the lines which the applicant is seeking to enforce; that the restraint covers a protectable interest and is therefore reasonable.

In view of the fact that the first respondent protests that she is not acting in breach and that in any event she is employed in an area that falls outside of that sought to be covered in the interdict which the applicants seeks, the balance of convenience, it seems to me, favours the applicant being granted interim relief. After all I can see no real prejudice whatsoever to the first respondent if on her own version of events, she is restrained on a temporary basis from conducting business in competition with that of her former employer in areas where she is not engaged.

The applicant as in my view satisfied all the necessary requirements for an interim interdict.

The following order is made:

1. Pending the final resolution of the dispute between the parties, the following order is made:

1.1 The first respondent is interdicted and restrained for the period commencing 1 5 March 2003 until no later than 1 5 March 2004 and in the whole of Gauteng Province and portions of North West, Northern Mpumalanga and Free State Provinces, as delineated in the map marked "AF6" to the founding affidavit in this matter being the territories in which the first respondent worked on behalf of the applicant ("the territories"!, from:

1.1.1 representing, canvassing or accepting orders for or on behalf of any person, firm or company for products or goods of alike or similar kind to, or designed to perform functions like or similar to those of the products or goods sold by the applicant;

1.1.2 engaging or being interested, either as principal, owner, agent, representative or employee in any business competing with that of the applicant within the territories;

1.1.3 using, whether directly or indirectly, own benefit or the benefit of any other person in keeping confidential and not disclosing any trade secret or confidential information of the applicant and any principal client, customer or potential principal or client of the applicant which may have come to the knowledge of the first respondent, either directly or indirectly, or whether in the course and scope of her employment with the applicant or not;

1.2 the first respondent is interdicted and restrained from being employed by the second and/or third respondents in the territories

referred to in paragraph 1.1 above;

1.3 the second and/or third respondents are interdicted from employing the first respondent in the territories referred to in paragraph 1.1 above.

2. The disputes between the parties as to the terms of the restraint of trade agreement, if any, which apply as between the applicant and the first respondent, are referred to oral evidence.

3. The application for final relief is postponed sine die.

4. Pending the final resolution of the dispute between the parties, the first respondent may apply for a variation of the order given in paragraph 1 above upon 48 hours notice to the applicant.

5. The costs incurred thus far are reserved.