Van Antwerp and Another v Chimusaru (17952/2016) [2017] ZAGPJHC 87 (16 March 2017)

Van Antwerp and Another v Chimusaru (17952/2016) [2017] ZAGPJHC 87 (16 March 2017)

The court found that the respondent was subject to a restraint of trade clause that was valid and enforceable. The respondent failed to discharge the onus of proving that the restraint was unreasonable or contrary to public policy. The respondent had access to customer lists and relationships, which constituted a protectable interest for the applicant. Although the geographical scope of the restraint was broad, the respondent did not provide sufficient facts to justify narrowing it. The short remaining period of the restraint did not render enforcement unreasonable. The court tailored the order to allow the respondent to remain employed by FIAD, provided his work was limited to dent...

Citation
[2017] ZAGPJHC 87
Parties
Applicant: Mark Van Antwerp and Bernadette Van Antwerp in their capacities as trustees of The Wisecracks Trust (TM5850); Respondent: Abel Chimusaru
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 March 2017
Case Number
17952/2016
Procedural Posture
Urgent Application / Application to Enforce Restraint of Trade Clause
Outcome
Application granted in part; respondent interdicted from engaging in automotive glass repair within the restrained area until expiry of the restraint period.
Judges
André Gautschi
Legal Topics
Restraint of Trade, Employment Contract, Protectable Interest, Customer Connection
Commercial and Corporate Labour Law Restraint of Trade Employment Contract Protectable Interest Customer Connection

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Parties

Mark Van Antwerp and Bernadette Van Antwerp in their capacities as trustees of The Wisecracks Trust (TM5850)

Applicant

Abel Chimusaru

Respondent

Procedural Posture

Urgent Application / Application to Enforce Restraint of Trade Clause

Legal Issues

  1. 1 Whether the restraint of trade clause in the respondent's employment contract is enforceable against him.
  2. 2 Whether the geographical scope and duration of the restraint are reasonable and not contrary to public policy.
  3. 3 Whether the respondent poses a risk to the applicant's customer connections and business interests.

Ratio Decidendi

The court found that the respondent was subject to a restraint of trade clause that was valid and enforceable. The respondent failed to discharge the onus of proving that the restraint was unreasonable or contrary to public policy. The respondent had access to customer lists and relationships, which constituted a protectable interest for the applicant. Although the geographical scope of the restraint was broad, the respondent did not provide sufficient facts to justify narrowing it. The short remaining period of the restraint did not render enforcement unreasonable. The court tailored the order to allow the respondent to remain employed by FIAD, provided his work was limited to dent...

Court Disposition

Application granted in part; respondent interdicted from engaging in automotive glass repair within the restrained area until expiry of the restraint period.

Orders

  • The respondent is interdicted and restrained from being employed by FIAD Dent Removal and Chip Care Repairers in any capacity relating to the business of repairing breaks, faults and chips in automotive glass, including windscreens, headlights, tail lights and lenses, within Boksburg, Kempton Park and Benoni, or...
  • The respondent is ordered to pay the costs of this application.