Salon Body Therapy CC v Mbaxa (86343/14) [2014] ZAGPPHC 993 (19 December 2014)

Salon Body Therapy CC v Mbaxa (86343/14) [2014] ZAGPPHC 993 (19 December 2014)

The court held that the respondent was bound by the terms of the employment contract, including the restraint of trade, despite the absence of written confirmation of the successful probationary period. However, the restraint could not be enforced in its full rigour, as the applicant failed to show a protectable interest justifying such enforcement and had tacitly consented to the respondent operating her business, provided she did not solicit the applicant's customers. The court found that only a limited restraint, preventing solicitation of customers previously served by the respondent for a reasonable period, was justified. The applicant's delay in seeking relief was considered but did...

Citation
[2014] ZAGPPHC 993
Parties
Applicant: Salon Body Therapy CC; Respondent: Nqabisa Mbaxa
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 December 2014
Case Number
86343/14
Procedural Posture
Urgent Application / Final Interdict Application
Outcome
Interdict partially granted; respondent prohibited from soliciting applicant's customers until 30 April 2015. No order as to costs.
Judges
Tuchten
Legal Topics
Restraint of Trade, Employment Contract, Interdict, Customer Connection
Labour Law Commercial and Corporate Restraint of Trade Employment Contract Interdict Customer Connection

Case Brief

Summary, issues, holding and outcome

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Parties

Salon Body Therapy CC

Applicant

Nqabisa Mbaxa

Respondent

Procedural Posture

Urgent Application / Final Interdict Application

Legal Issues

  1. 1 Whether the respondent is bound by the restraint of trade clause in the employment contract after the probationary period.
  2. 2 Whether the restraint of trade is enforceable in its full rigour or only partially.
  3. 3 Whether the applicant delayed unreasonably in bringing the application and if urgency is self-created.

Ratio Decidendi

The court held that the respondent was bound by the terms of the employment contract, including the restraint of trade, despite the absence of written confirmation of the successful probationary period. However, the restraint could not be enforced in its full rigour, as the applicant failed to show a protectable interest justifying such enforcement and had tacitly consented to the respondent operating her business, provided she did not solicit the applicant's customers. The court found that only a limited restraint, preventing solicitation of customers previously served by the respondent for a reasonable period, was justified. The applicant's delay in seeking relief was considered but did...

Court Disposition

Interdict partially granted; respondent prohibited from soliciting applicant's customers until 30 April 2015. No order as to costs.

Orders

  • The respondent is interdicted, until 30 April 2015, from soliciting the custom of any person to whom she rendered services while she was employed by the applicant.
  • There will be no order as to costs.