Rocbit Drilling Equipment (PTY) Ltd v Peters and Others (J1344/21) [2022] ZALCJHB 174 (6 July 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J1344/21

In the matter between:

ROCBIT DRILLING EQUIPMENT (PTY) LTD Applicant

and

LE PETERS

First Respondent

BLC MINING SOLUTIONS GENERAL

TRADING (PTY) LTD

Second Respondent

REFINERY MINING AND DRILLING SUPPLIES Third Respondent

Heard: 3 December 2021

Delivered: 06 July 2022

JUDGMENT

TULK AJ

Introduction

[1] This is an application for the enforcement of two agreements in restraint of trade. The first agreement was concluded on 16 March 2004 (the first agreement) and the second on 31 July 2017 (the second agreement).

[2] The applicant, Rocbit Drilling (Pty) Ltd (Rocbit) seeks an order enforcing the first and second agreements in restraint of trade against the first respondent, Ms Peters (Ms Peters). In 1990 the applicant employed Ms Peters as a junior office worker. In 2007 she was appointed as a director, and was removed in 2016 after the applicant was restructured.

[3] Ms Peters concedes that she is bound by the second agreement, but not the first, whilst as recorded above, the applicant contends that both agreements are enforceable and constitute the restraint of trade. It is her case that the second agreement novated the first. In oral submissions before me, Mr Vorster for the first respondent contended that Ms Peters would consent to an order for the enforcement of the second restraint, except insofar as it relates to Smith Capital Equipment (SCE), one of the companies listed in the second restraint, because enforcing the agreement in respect of this company would be unreasonable.

[4] The concession does not absolve this Court from determining first, which restraint governs the relationship between the parties, and second whether it is enforceable. The latter consideration means that even where a restraint is invoked, or, as in this case, its binding nature conceded, this Court must still determine whether it has been breached in order to issue an enforcement order.

Material Facts

[5] The applicant has been in business for some 30 years, and employs approximately 19 employees. Its business is to supply consumable mining and earthworks equipment. There is no dispute that this market is small and highly competitive. Its specialised offerings include what it refers to as down the hole (DTH) bits; DTH hammers; Raiseboring cutters; casing steel and PVC drill pipes; friction welding; adaptors; non-return valves and stabilisers.

[6] In addition to its product offering, the applicant offers a number of specialised services. It coordinates exploration programmes, feasibility studies and evaluates data. It establishes the logistical aspects of an operation and provides complete turnkey projects and establishes join ventures. No detail is provided on the nature and extent of these services and how they constitute a protectable interest that can properly form the subject matter of an agreement in restraint of trade. Nevertheless, I did not understand these services to form the subject matter of the application before me.

[7] Rather, the protectable interests pleaded by Rocbit relates to its trade secrets, confidential information and goodwill in its consumable mining equipment, in particular its DTH offerings. These are set out in the second agreement as follows:

7.1 Products and equipment, including DTH equipment;

7.2 Manufacturing of Raiseboring Cutters;

7.3 Reconditioning of Raiseboring Cutters; DTH equipment and Button Bits;

7.4 Recovery of Tungsten Carbide from redundant drilling equipment;

7.5 Operating procedures, sales and marketing methods and policies peculiar to the company;

7.6 Financial records, policies and remuneration packages;

7.7 Copyrights, patents and intellectual property rights; and

7.8 General information of a confidential nature, not readily available in the ordinary course of business to a third party.

[8] Clause 3 goes on to define Rocbit’s goodwill, which Ms Peters has acquired knowledge of and access to through her employment with Rocbit as follows:

8.1 Customers and suppliers;

8.2 Business connections and relationships with its customers and suppliers;

8.3 Employees, agents and other appointed representatives, including the contractual and financial arrangements between the company and its employees, agents and representatives.

[9] The first agreement records in broad terms that Ms Peters will have access to Rocbit’s customers, clients and suppliers and will have the opportunity to forge personal links with them. Similar to the first, it records that she will acquire knowledge of its present and future trade secrets, business connections and other confidential information, pertaining to its business.

[10] Both agreements restrain Ms Peters from not competing with the company during the tenure of her employment and for three years after its termination. They do so in different, but not necessarily conflicting respects.

[11] The first agreement limits the restraint to South Africa only and restrains Ms Peters from engaging in two acts. First, she cannot divulge trade secrets to any person. This is set out in clause 4.1. Trade secrets are described in the first agreement as being information relating to the business of the company, its finances, affairs, training products, computer software, income, financial reporting, accounting and administrative systems, financial structure and operating results, financial and contractual relationships with its employees, marketing and promotion strategy and security methods”.

[12] Second, Ms Peters is restrained by clause 4.7 from participating “in the manufacture and/or distribution of DTH hammers and/or bits for the duration of the period of restraint as aforesaid”. The restraint covers the subject matter of the agreement, which is defined in Clause 2.6 as client and customer lists, all training programmes, artistic and/or literary works, computer programmes, memoranda, surveys, reports and “all material of a technical nature, data compilation of whatsoever nature or kind. In particular the manufacture and distribution of DTH hammers and DTH bits”.

[13] The second agreement goes on to extend the geographical application of the restraint from South Africa to six other countries, namely Namibia, Botswana, Zambia, the Democratic Republic of Congo, Lesotho and Swaziland. It goes on however to limit the application of the restraint to nine companies, namely Atlas Copco, Sandvik, Spes Machines, PG Drilling, DDS-SA, Technodrill, SCE, Sourcit and Borehole Casing. As is clear, the list includes SCE and Ms Peters cannot engage with it, or solicit it and the other eight entities in a number of capacities such as proprietor, partner, director, shareholder, member, employee, consultant, agent or representative. The broad range of capacities is clearly intended to prevent solicitation of the listed entities in a manner that would compete with the applicant.

[14] It is not in dispute that over the years the first respondent’s role in Rocbit Drilling changed, until eventually she was appointed as its Internal Sales Manager. In this role she was responsible for invoicing; providing quotations to prospective and current clients with access to the full price list; having access to the applicant’s bank account and financial statements; coordinating sales activities with sales representatives; being responsible for all sales activities from head office and reporting thereof; and dealing with main line supplies locally and internationally.

The Breach

[15] The applicant says that in the course of 2018 and 2019, Ms Peters became involved in the second respondent, BLC Mining Solutions, thereby breaching the 2004 restraint of trade agreement. The second respondent, according to the applicant is a newly registered company that conducts the same business as the applicant. The applicant argued that on the breach of the first agreement in restraint of trade, through the first respondent’s involvement with BLC, a further restraint was concluded in 2017, the

second restraint. It is therefore the applicant’s case that since the breach of the first agreement led to the conclusion of the second, both agreements are binding on Ms Peters.

[16] The applicant relies on an email dated 27 May 2021 in support of its assertion that Ms Peters was involved in the business of the second respondent. Mr Cabanac, Rocbit’s Chief Executive Officer, who deposed to the affidavit on its behalf, says that on 27 and 28 May 2021, when Ms Peters was on leave, Ms Botha, another staff member, received an email from a company called

Anvil Mawson West (AMW) requesting a refund for a payment that had been made. Mr Cabanac, contended that it was subsequently discovered

that the payment in question was not made by the applicant, but by the second respondent, BLC.

[17] Mr Cabanac then approached Ms Peters who acknowledged that the payment related to a deal for chemical products concluded by her son, but according to Mr Cabanac, Ms Peters refused to provide any further detail. He asked her about this matter again on 10 June 2021 and she summarily resigned. Mr Cabanac alleges that it was then that the applicant became aware that the first respondent was involved in the business of BLC, which at the time was being operated by her son. It was disconcerting because BLC competes directly with the applicant.

[18] Ms Peters admits the email from AMW, but she says that it was sent to her in error. She says that until 27 May 2021, she did not receive any mails from this entity. Referring to the email trail she argues that the emails commenced with Leslie Thompson who sent an email to Anvil Mining with the subject “BCL Mining”. Nora Iye, from AMW responded by sending a request for ‘Company Identification Details, demonstrating that the latter understood BLC to be a new supplier. A few emails were then exchanged between Lance Peters from BLC and Nora Iye relating to the quotation, payment methods and shipment. What the emails show is that after 11 January 2021, communication stops until May 2021. She reasoned that on 26 May 2021, Iye sent a request for a refund to info@miningequisa and the next day to sales@rocbit, but the problem was that she was corresponding with sales@miningchem,, and inadvertently sent it to Ms Peters email, which is similar. She goes on that at the time of the mail Iye was not aware that she and Lance were related and the email was sent to her in error.

[19] She also argues that she was never involved with the second respondent. BLC was established by her children but only engaged in two transactions before it was deregistered, because the venture was not successful. She says that it stopped trading in February 2021.

[20] The applicant denies that the email of 27 May 2021 was inadvertently sent to Ms Peters. It contends that she received the mail because she was involved with BCL while she was still employed by the applicant.

[21] On 15 June 2021, the applicant’s attorneys addressed a letter to Ms Peters confirming her resignation. Three months later and on 8 September 2021, the applicant’s attorneys addressed a further letter to Ms Peters. The letter stated that she participated in an investigation regarding her involvement in BLC, and that the purpose of the investigation was to determine whether she was involved in the affairs of BLC. The letter goes on that after her resignation, she continued to participate in the affairs of BLC, in breach of the restraint. It demands information from Ms Peters whether she is involved with BLC and if so, in which capacity; that she undertakes to refrain from being involved with BLC for the duration of the restraint; and

finally that she return certain items, failing which legal proceedings will be brought against her.

[22] A few letters were exchanged between the parties and on 5 October 2021, Ms Peter’s attorney addressed a letter to the applicant’s attorney, in which Ms Peters denied having breached the restraint of trade agreement. The applicant alleges that after it received the letter of 5 October 2021, it received further information that Ms Peters was involved with the third respondent, Refinery Mining and Drilling Supplies, a company that provided the same service as the applicant and was in direct competition with it. The letter of 5 October 2021 was followed by a letter from the applicant to Ms Peters on 14 October 2021 demanding that she not transgress the restraint of trade agreement and let them have her views by 21 October 2021.

[23] In respect of her engagement with the third applicant, Ms Peters states that it does business in the same field as the applicant, but sources its products from different suppliers. However, similar to the applicant the third respondent trades with SCE and her engagement with the third respondent was to train it on how to do the work and liaise with SCE.

[24] She states furthermore that as far back as June 2021 she thought BCL was deregistered, and communicated as much to the applicant in her correspondence of 8 September 2021. She thus did not understand why they wanted an undertaking from her that she would not engage with BCL.

[25] The applicant says that Ms Peters concedes the relief being sought against her, only opposing a portion thereof, i.e. that the restraint does not apply to SCE. It contends also that Ms Peters is incorrect in her assertion that she is bound only by the first and not the second restraint. Rather, both agreement find application, and that the second agreement supplements the first, with the aim of providing the applicant with additional protection. The applicant argues that the first agreement restrains Ms Peters from participating in the manufacture and/or distribution of DTH hammers and bits, whereas the second provides for non-solicitation. The applicant contends that it demonstrated the breach of the agreements, and even if this is not the case, the first respondent concedes the breach by admitting to contracting with SCE and being employed by the third respondent, which operates in direct competition with the applicant.

[26] Finally, it contends that the terms of the restraint are fair and reasonable and argues that there is no basis to the assertion that the restraint is far reaching. This is demonstrated by the fact that Ms Peters consents to the order being taken. There is also no basis to the exemption sought in respect of SCE because, it is a company covered by the restraint. It goes on record that on average it did business with SCE in an amount of R1 500 000. 00 per annum.

[27] The applicant denies that the first respondent will be prejudiced on the enforcement of the restraint. She enjoyed all the benefits arising from her appointment, which included:

27.1 A bonus in the amount of R500 000.00 in 2015;

27.2 A bonus in the amount of R300 000.00 in 2018; and

27.3 Prepayment of her 2021 salary in an amount of R164 000.00, despite the impact of the pandemic on the business.

[28] It concludes that the second agreement did not novate the first, as argued by Ms Peters, since the agreements in question deal with different subject matter and simultaneously bind the first respondent.

[29] In respect of the first respondent’s assertion that she cannot find alternative employment, the applicant contends that no such proof has been furnished. Moreover, the first respondent left voluntarily to compete with it, in breach of the restraint of trade agreement. The first respondent has not demonstrated how the restraints have become unreasonable.

[30] The applicant contends further that even if it is proven that SCE contacted the first respondent, this is immaterial because she is constrained from doing business with it. This is the very purpose of the restraint of trade agreement.

[31] The applicant argues that the adjudication of this application is underpinned also by the fact that the first respondent is employed by the third respondent. On her own version she and her family now intend to enter into the industry; she works for the third respondent in direct competition with the applicant; and provides training to the third respondent’s employees. Moreover, the applicant admits that the same persons and family members involved in the operation of the second respondent, manage the third respondent.

[32] For her part, Ms Peters contends that the only extant agreement is the second restraint, and that she is not in breach of the agreement. She was never involved with the second respondent. BLC was established by her children but only engaged in two transactions before it was deregistered, because the venture was not successful. She admits that she was involved with the third respondent and contends that she has returned everything that belongs to the applicant since having resigned. She undertook however to return any specific item requested by the applicant and states that she returned the cell phone on 15 June 2021.

[33] Ms Peters submits that the applicant cannot interdict her from manufacturing and/or distributing DTH hammers or bits because it relies on the first and not the second restraint. This argument does not avail itself to Ms Peters because it is her

case, in essence that the first and not the second restraint applies to the dispute. She argues on this score that the first

agreement was not concluded as a response to her alleged breach of the first restraint because BLC was only registered in October 2018, whereas she signed the second restraint on 31 January 2017.

[34] Thus, the second restraint preceded the allegation that she breached the first by engaging with BLC, so it could not have been motivated by this alleged breach, as the applicant contends. Rather, the second restraint was concluded in recognition of the fact that the first restraint was unreasonable because it placed a bar on her seeking any gainful employment in the industry, The second restraint was concluded to cure this defect. It was more limited in scope and novated the first.

[35] Other than the averments contained in the answer there is also no other evidence that the mail was sent to her in error or that that Mr Mdanda stated that his company no longer wanted to do business with the applicant. Lastly, she contends that the mail from AMW to BLC cannot constitute a breach of the restraint because AMW is not one of the nine entities listed in the second agreement.

[36] She argues that she has spent 30 years working for the applicant and that this is the only industry she knows. She resigned in June 2021, at the height of the Covid-19 pandemic with no pension and severance pay. At her age it is not possible for her to find employment in a different sector and she cannot survive without a pension and without an income. She stated further that at her age, she cannot stop working for three years, and on this basis will argue that the restraint should not be upheld.

[37] She has built a relationship with the applicant’s customers and denies that she was involved in the transaction between BCL and Anvil. Save for Smith Capital Equipment, who contacted her to inform her that it wanted to do business with her, she has not had contact with any of the applicant’s clients or any person employed by them.

[38] In respect of her engagement with the third respondent, Ms Peters states that it does business in the same field as the applicant, but sources its products from different suppliers. However, similar to the applicant the third respondent trades with SCE and her employment there was simply to train them on how to do the work and liaise with SCE.

[39] She contends that in the light of her personal circumstances and the fact that Smith Capital approached her and has indicated that they want to do business with the third respondent, it would be unreasonable to enforce the restraint against Smith Capital. She states furthermore that as far back as June 2021 she thought BCL was deregistered, and communicated as much to the applicant in her correspondence of 8 September 2021. She thus did not understand why they wanted an undertaking from her that she would not engage with BCL. She seeks a reformulated order that the restraint does not apply to Smith Capital.

The Law on Restraints

[40] It is well-established that a party seeking to enforce an agreement in restraint of trade need only invoke the contract and prove a breach of its terms. Thereafter, as held in Basson v Chilwan[1] the respondent who seeks to avoid the restraint bears an onus to demonstrate, on a balance of probabilities, that the restraint

agreement is unenforceable because it is unreasonable. In Profibre Products (Pty) Ltd v Govindsami[2] Van Niekerk J confirmed, the dicta of the Labour Appeal Court in Labournet (Pty) Ltd v Jankielson[3] that a restraint is unreasonable where it does not protect a legally recognisable interest, and its purpose is only to exclude or

eliminate competition.[4] Van Niekerk went on to affirm, that:

“[9] …it is generally accepted that a restraint will be considered to be unreasonable (and thus contrary to public policy and unenforceable), if it does not protect some legally recognisable interest of the employer but merely seeks to exclude or eliminate competition. Ordinarily, a restraint will be unenforceable if it does not protect a trade connection and/or confidential information to which the ex-employee was exposed.”

[41] In Labournet supra the LAC held that:

“[41] The enquiry into the reasonableness of a restraint is essentially a value judgment that encompasses a consideration of two policies, namely the duty on parties to comply with their contractual obligations and the right to freely choose and practice a trade, occupation or profession. A restraint is only reasonable and enforceable if it serves to protect an interest, which, in terms of the law, requires and deserves protection. The list of such interests is not closed, but confidential information (or trade secrets) and customer (or trade) connections are recognised as being such interests. To seek to enforce a restraint merely in order to prevent an employee from competing with an employer is not reasonable.

[42] According to Basson v Chilwan & Others the following questions require investigation, namely, whether the party who seeks to restrain has a protectable interest; and whether it is being prejudiced by the party sought to be restrained. Further, if there is such an interest – to determine how that interest weighs up, qualitatively and quantitatively, against the interest of the other party to be economically active and productive. Fourthly, to ascertain whether there are any other public policy considerations which require that the restraint to be enforced.”[5]

[42] In Profibre supra Van Niekerk held also that an applicant seeking to enforce a restraint need only show that there is confidential information to which the employee had access and which he or she could transmit if so inclined. It is not necessary to show that the employee has in fact used information confidential to the applicant. Similarly, in relation to customer connections, it is necessary to do no more than show that trade connections through customer connections exist, and that they could be exploited by the former employee if employed by a competitor. He went on that the question whether information constitutes a trade secret is a question of fact underpinned by whether it is capable of application in trade or industry, i.e. useful and not public knowledge, and property; known to a restricted number of people or a close circle; and of economic value to the person seeking to protect it.[6]

[43] The learned judge found that it is enough for the party seeking to enforce a restraint to show that trade connections through customer

or supplier contact exist, and that they can be exploited, and that an applicant seeking to enforce a restraint need not have to run the risk of the employee communicating its trade secrets or utilising its customer connections to the advantage of a competitor.[7]

Analysis

[44] The applicant has invoked both the 2004 and 2017 agreements in restraint of trade. It argues that the agreements cover separate issues. The first agreement restrains Ms Peters from participating in the manufacture and/or distribution of DTH hammers and bits, whereas the second provides for non-solicitation. The question whether both agreements apply must be determined first with reference to the terms of the agreements in question, and then also the surrounding facts underpinning the conclusion of each agreement.

[45] For her part Ms Peter’s contends that only the second agreement applies. She cites two reasons. First, the second agreement was concluded as an acknowledgement that the terms of the first agreement were too onerous and thus, unreasonable. Second, she contends that the second agreement novated the first. The well-established principles on novation are of course that when parties novate they intend to replace a valid contract by another valid contract.[8]

[46] On the facts before this court however, it does not appear that the second restraint replaced the first. On the contrary, both agreements are extant and capable of being interpreted harmoniously. Whilst Clause 8.1 of the first agreement provides that it is the sole record between the parties pertaining to the restraint of trade, clause 8.2 permits for its alteration, variation, addition, cancellation or consensual cancellation. The only requirement is that these steps are reduced to writing and signed by the parties. There is no evidence before me that the first agreement was ever cancelled in writing, as required by its express terms. Moreover, there are no express or implied provisions in the second agreement purporting to replace the obligations imposed by the first agreement with new obligations.

[47] Moreover, there is no contradiction between the first and second agreements. The obligations in the first agreement apply in South Africa, and preclude the employee from engaging in two acts. First, the employee is restrained from divulging trade secrets to any person. This is set out in clause 4.1. Trade secrets are described in the agreement as being information relating to the business of the company, its finances, affairs, training products, computer software, income, financial reporting, accounting and administrative systems, financial structure and operating results, financial and contractual relationships with its employees, marketing and promotion strategy and security methods”. Second, the employee is restrained by clause 4.7 from participating “in the manufacture and/or distribution of DTH hammers and/or bits for the duration of the period of restraint as aforesaid”. The restraint covers the subject matter of the agreement, which is defined in Clause 2.6 as client and customer lists, all training programmes, artistic and/or literary works, computer programmes, memoranda, surveys, reports and “all material of a technical nature, data compilation of whatsoever nature or kind. In particular the manufacture and distribution of DTH hammers and DTH bits”.

[48] The second agreement supplements the first. It extends the geographical regions in which the restraint finds application from the Republic to six other countries. It also lists the companies with whom the employee may not engage. The list sets out the specific companies or competitors with whom the employee cannot engage or solicit in a number of capacities such as proprietor, partner, director, shareholder, member, employee, consultant, agent or representative. The broad range of capacities is clearly intended to prevent solicitation of the listed entities in a manner that would compete with the applicant.

[49] Whilst clause 10.5 of the second agreement records that it constitutes the whole agreement between the parties, in the absence of the written termination of the first restraint, that agreement is extant and must be read harmoniously with the second agreement. On an ordinary interpretation of both agreements they are not in conflict with each other. Rather, the second agreement simply supplements the geographical reach of the restraint, restricting its application to the nine listed companies.

[50] On this score, neither BLC nor AMW are listed as entities to whom the restraint applies. There is no evidence also that they are holding, subsidiary or associated companies or close corporations of the listed companies. Thus, the employee had no contractual obligation under the combined agreements not to engage with these entities. The applicant therefore cannot rely on the mail from AMW on 27 May 2021 as a ground that Ms Peters breached the restraint of trade agreements. The same reasoning applies to the third respondent, Refinery Mining and Drilling Supplies (Pty) Ltd. Thus, Ms Peters concession that she is engaged with this entity and the nature and extent of that engagement are of no moment to this application. She did not agree to, and neither was she restrained from doing business with the third respondent.

[51] The same however cannot be said of SCE, with whom Ms Peters concedes she had contact with. The extent of the engagement, on Ms Peter’s own version is that Mr Mdanda from SCE contacted her expressing that he wants to do business with her, and not the applicant. Ms Peters is also, again on her own version, peripherally engaged with SCE through the third respondent. She trains the third respondent’s employees on how to among others, do SCE’s work and how to liaise with it. Thus, she is serving SCE, in some capacity in breach of clause 4.1.2 of the second agreement in restraint of trade.

[52] Therefore, the breach of the agreement has been demonstrated. Finally, as held by this court in Profibre, all that an application such as the present must show is that the employee had access to confidential information, which she could

transmit if so inclined, and that there are indeed trade connections which exist, which can be exploited by the former employee. It is not necessary to show that the applicant has utilised the confidential information or exploited the trade connections.

The applicant has indeed succeeded in establishing its trade secrets and customer relations on a balance of probabilities.

[53] What is more, Ms Peters concedes, at least in relation to SCE that she has used this information and, in her discussions with Mr Mdanda, and embarked on a process to exploit the applicant’s trade connections. She argues that this is of no moment since Mr Mdanda contacted her. However, it is indeed significant because it does not matter who contacted who, because the very nature of the discussions between Ms Peters and Mr Mdanda is what the restraints seek to guard against. i.e. to bar Ms Peters from continuing such engagement in the light of her contractual undertaking on two separate occasions not to do so.

[54] Moreover, the applicant’s interest to protect its trade secrets and goodwill reasonably limits Ms Peters’ entitlement to engage in a trade and occupation of her choice. The restraint protects a lawful interest; it applies to an employee who has acquired access to confidential trade secrets and who holds extensive knowledge of the applicant’s goodwill, i.e. its customers, potential customers, and suppliers. Whilst the restraint extends over the RSA, Namibia, Botswana, Zambia, the DRC, Lesotho and Swaziland, this must be measured against the fact that it applies for a three-year period only and then only in respect of the nine entities listed in the restraint.

[55] There is no evidence before me that the market is so small that it is limited to these nine entities only. Indeed, on Ms Peters’ version there are other players in the sector. This much is apparent from her assertion that SCE is in the same sector as the applicant, but that it uses different suppliers. Whomsoever these different suppliers may be Ms Peters restraint does not extend to them.

[56] The duration of the restraint, the limited nature of its application and the protectable interest it seeks to advance makes it reasonable. It is therefore enforceable against Ms Peters in respect of all the listed companies as a contractual obligation undertaken by her. On this latter score, as observed by Van Niekerk J:

“… public policy requires that parties should comply with contractual obligations that have been freely and voluntarily undertaken (often referred to as the freedom of contract doctrine or expressed by the maxim pacta sunt servanda). Essential to this doctrine is the idea that individuals should be left free to conclude contracts and that the role of the courts is merely to enforce contracts and that judicial intervention should be kept to a minimum.”[9]

[57] Although Ms Peters asserts that there was an element of duress that led to her signing the agreements in restraint of trade, this is a bald allegation. She neither took the submission further nor did she place any evidence before this court on the nature of the duress and how it induced her to sign the agreements.

Conclusion

[58] In all of the above circumstances the agreements in restraint of trade are reasonable and Ms Peters is bound by their terms. Ms Peters breached the agreements by engaging with SCE and by rendering a service to it through her engagements with the third respondent.

[59] There is no other facet of public policy that militates against the enforcement of the agreements. Ms Peters remains able, for the period of the restraint, to seek employment with parties that are not listed as one of the nine companies in the restraint, provided that in so doing her engagement does not extend to the listed companies.

[60] She has the skills to do so, as appears from her engagement with the third respondent. She is bound only to ensure that her engagement with any other company does not breach the undertakings in the restraint agreements of 2004 and 2017.

[61] For the reasons set out in this judgment, the applicant has made out a case for the enforcement of the restraint and confidentiality

undertakings.

Costs

[62] In relation to costs, the court has a broad discretion in terms of section 162 of the Labour Relations Act[10] to make orders for costs according to the requirements of the law and fairness. Ms Peters has partially succeeded, at least to the extent that it has been demonstrated she did not breach the restraint in her engagement with the second respondent. In these circumstances, the interests of the law and fairness are best satisfied by each party bearing its own costs.

[63] Finally, insofar as the return of all company property is concerned, Ms Peters has undertaken to return anything that may be specifically requested by the company and has already returned its cell phone. There are insufficient facts before me to determine whether the return of the device was not in fact meaningful. As a result, in the light of the undertaking by Ms Peters, it is not necessary to issue an order compelling the return of any property. The applicant must specifically request outstanding property, and Ms Peters as undertaken must comply with the request to the extent that it is reasonable and she is able.

[64] In the circumstances the following order must issue:-

Order:-

1. The application for the enforcement of the first and second agreements in restraint of trade are successful.

2. The first respondent is interdicted and restrained for a period of 36 months calculated with effect from 10 June 2021:

2.1 From either directly or indirectly utilizing or divulging or disclosing any information concerning the trade secrets, the business, finances or affairs of the applicant;

2.2 From participating in the manufacture and/or distribution of DTH hammers and/or bit s;

2.3 Within the Republic of South Africa, Namibia, Botswana, Zambia, Democratic Republic of Congo (DRC), Swaziland and Lesetho, whether as proprietor, partner, director, shareholder, member, employee, consultant, agent, representative, or in any other capacity, and whether for award or not directly or indirectly, from carrying on or having an interest in or being engaged in or concerned with or employed by any of the following companies, close corporations, firms, undertakings or concerns of whatsoever nature, or any of their holdings, subsidiaries, or associated companies, close corporations,

firms, undertakings or concerns of whatsoever nature, namely:

2.4.1 Atlas Copco

2.4.2 Sandvik

2.4.3 Spes Machines

2.4.4 PG Drilling

2.4.5 DDS-SA

2.4.6 Technodrill

2.4.7 Smith Capital Equipment

2.4.8 Sourcit

2.4.9 Borehole Casing

2.4 From in any way whatsoever inducing or attempting to induce any person to leave the employ of the applicant or furnish any information obtained by the first respondent as a result of the first respondent’s employment with the applicant to anyone else which result in any employee of the applicant being employed or being approached for employment by another party.

3. Each party is to pay its own costs.

Tulk, AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant: Adv BC Bester

Instructed by:

Hurter Spies Attorneys

For the respondent: James Attorneys

[1] [1993] ZASCA 61; 1993 (3) SA 742 (AD) at 749H-I. See also: Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA) at para 10.

[2] [2019] JOL 43956 (LC).

[3] (2017) 38 ILJ 1302 (LAC) at para 41.

[4] Profibre supra at para 9.

[5] Labournet supra at at paras 41 and 42.

[6] Profibre supra at para 13.

[7] Id at para 15.

[8] SA Post Office Limited v Nowosenetz NO (2013) 34 ILJ 1604 at paras 24 and 25

[9] Id fn 2 at para 9

[10] No. 66 of 1995, as amended.