THE HIGH COURT OF SOUTH AFRICA
REPORTABLE DATE: 23 APRIL 2007
In the matter between:
EUGENE ELS FIRST
MIXING TECHNOLOGIES (PTY) LIMITED
applicant is SPX Technologies (Pty) t/a Lightnin Africa.
first respondent is Mr Eugene Els who, until 18 July 2006, was
employed by the applicant as an after sales manager.
second respondent is African Mixing Technologies (Pty) Ltd trading
first respondent is presently employed by the second respondent.
relief claimed in prayer 2 of the notice of motion is:
First Respondent be interdicted or restrained,
the whole of the Republic of South Africa from rendering services in
any capacity to AFROMIX (PTY)
or any other person, natural or corporate, that competes with
The reference to Afromix
(Pty) Ltd in prayer 2 must be accepted as a reference to the trade
name of the second respondent.
Beaton, who appeared for the applicant, only asked for an order that
the first respondent be interdicted from being employed
by the first
respondent until 18 June 2007 in the Republic of South Africa.
applicant relies on a restraint of trade clause contained in a
written employment agreement between the applicant and the first
respondent dated 10 January 2005. Clause 16.7 of that agreement
reads as follows:
For a period of 12 (twelve) months after termination of
employment agreement, the Employee will not, without prior written
approval of the Employee:
or attempt to solicit business from any existing customers of the
in any business, directly of indirectly,
related to the business of the
Employer in any of the countries or territories in which the
Organisation and its subsidiaries or
12 month restraint to which the first respondent was subject in
terms of this clause will expire on 18 July 2007.
case of the applicant is set out in paragraph 7 of the founding
affidavit which I shall quote in full:
7.1 Applicant has a legitimate
interest in the enforcement of
the above provisions. Applicant
has been active in SOUTH AFRICA, from where it services the rest of
Africa and has been manufacturing,
since late 2001. Until then it
permitted a local company to market its products under licences. In
the nature of things the equipment
supplied by Applicant is of a
specialized nature. During his tenure with Applicant as an
Aftersales Manager, First
Respondent acquired knowledge
of the identity of Applicant's customers in Africa and of their
needs and requirements.
He is also aware of the
products produced and marketed
by Applicant. This knowledge is most useful to any entity starting
up in competition with Applicant.
It is especially useful to an
entity such as Second Respondent, which appears to
an established relationship with EKATO, which has, to date, not
marketed in Africa;
object if this application is thus to protect Applicant's
confidential information and established customer relations. First
Respondent is wrongfully using such information to benefit Second
Respondent and EKATO. It is also apparent from Annexure "C"
that Second Respondent is intent upon competing directly with
Applicant. The description of the goods and services it provides
that Annexure coincides exactly with the business of Applicant;
Applicant was, prior to First Respondent's resignation, virtually
the only supplier of the agitators and mixers it supplies,
whole of the Republic, the restraint should cover that area as well.
reference to Ekato is a reference to the principal international
competitor of SPX Corporation, an American company of which
applicant alleges it is a subsidiary.
I have cited above is what I consider to be the high water mark of
the applicant's case in respect of the interest it seeks
In my view the allegations are vague and of a general nature. They
give no specific detail of the type of work done
by the first
respondent, the nature of the knowledge acquired by him, the
marketing methods of the applicant, and the nature and
of the applicant's customer base. It is not clear whether the
knowledge of the identity of the customers and their
only be acquired in the service of the applicant.
as appears form the papers, the applicant sells specialized products
to a limited market, one would expect that a competitor
first respondent, already in the field, would also have knowledge of
the identity of such customers and their needs.
mere allegation that the first respondent has knowledge of the
identity and needs of customers is in my view not enough to prove
protectable interest. See in a different context Automotive
Tooling Systems (Pty) Ltd v Wilkins & Others
271 SCA at 281 B-C.
The applicant, in its
replying affidavit gave some more information.
paragraph 18 the following is said:
The companies identified in
this paragraph compete with
Applicant in respect of certain
products it produces, with the exception of Jaguar mixers of which I
have never heard. The Applicant,
however, has a virtual monopoly on
the biological oxidation application of mixing and agitating
technology, which involves the
making of certain blades, in the
important allegation here is that the applicant has a virtual
monopoly in the biological oxidation application of mixing and
agitating technology, which involves the making of certain blades,
in the Republic.
allegation prompted the respondents to file further affidavits one
by the first respondent and one by Mr Warren Dale.
Beaton indicated that he had no objection against the affidavit of
Mr Dale. He objected against the further affidavit of the
respondent, mainly because it did not deal with the new matter. In
my view there is no reason why the further affidavit of
respondent should not be admitted to the extent that it deals with
the allegation that the applicant had a virtual monopoly
biological application of mixing and agitating technology. It is
enough to say that the allegation of a virtual monopoly
by both Mr Dale and the first respondent. According to Mr Dale the
applicant's market share in this field may be 10%.
He also says that
the first respondent was never involved with the biological
oxidation technology (called the BIOX process).
Mr Dale had a contract
as an independent contractor with the applicant until June 2006.
After he had terminated that contract he
began a business in
competition with the applicant, apparently the second respondent.
These allegations have
to be accepted in view of the final relief claimed by the applicant.
In my view the applicant
has not proved that it has a protectable interest which would
justify the court in restraining the first
continuing his employment with the second respondent.
the result the application is dismissed with costs.
OF THE HIGH COURT