Bruniquel and Associates (Pty) Ltd v Manje General Suppliers (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Ploos van Amstel J
• Judgment Date: 17 February 2022
• Docket Number: D7091/2021
• Hearing Date: 15 February 2022
• Court: KwaZulu-Natal Local Division, Durban
• Citation: 2022 JDR 0733 (KZD)

Ploos van Amstel J:

[1]

The applicant in this matter is Bruniquel and Associates (Pty) Ltd. Its business is training and consulting in what it describes as 'Diversity, Transformation, HR, Shop Steward, Leadership, Conflict Resolution and Labour Relations'. In the application before me it seeks orders interdicting the respondents from making use of its confidential information, soliciting business from its clients, making use of its training material and client lists, and so forth. As against the third respondent it also seeks an interdict restraining him from competing with it for a period of one year.

[2]

The first and second respondents are Manje General Suppliers (Pty) Ltd and Manje Compliance and Consulting (Pty) Ltd respectively. The third respondent, Muvashan Naguran, is the sole shareholder and director of each of them. He was previously employed by the applicant, and it claims that he uses these companies to compete with it.

[3]

The applicant relies on a restraint of trade clause in the employment contract which existed between it and the third respondent, and also on the law relating to unfair competition.

[4]

The applicant's principal place of business and head office is in Roodepoort, Gauteng. It has a branch office in Durban, which is where the third respondent was employed.

[5]

The applicant and the third respondent entered into a contract of employment on 24 April 2012, in terms of which he was appointed as a senior sales consultant. Clause 16.3 of the contract deals with the restraints of trade. The clause is extensive

2022 JDR 0733 p3

Ploos van Amstel J

and I will refer to its provisions in more detail when it becomes necessary to do so. Suffice it to say at this stage that the third respondent undertook not to use for his own benefit or the benefit of any other person any trade secrets or confidential information; and for a period of one year after ceasing to be employed, not to compete with the applicant, or to solicit or induce others to solicit any clients or customers of the applicant for the purpose of inducing them to cease doing business with the applicant.

[6]

The applicant says that on or about 3 August 2021 it became aware that the third respondent, through the first and second respondents, was using its confidential information and client lists for his own personal benefit. The deponent says the third respondent had access to the applicant's training material and confidential information stored on its shared drive, as well as 'hard copy material' in the office. He says the first and second respondents advertised and held themselves out to be training specialists in the fields of sales training, project management, employment equity compliance, harassment GBV, bullying, chairing disciplinary (sic), POPI, diversity, transformation and BBBEE, competed with the applicant and actively sought the business of some of its clients.

[7]

The deponent says the third respondent removed all data stored on the applicant's server 'and created under his name which appears to be an external hard drive'. Presumably the allegation is intended to be that he copied the data to an external hard drive. The deponent says this was the applicant's confidential and proprietary information, without any explanation as to what it was. I should add that the third respondent denies that he removed or copied any data for an unlawful purpose, and whatever he copied was to enable him to do his work.

[8]

The third respondent was summoned to a disciplinary hearing which was scheduled to take place on 13 August 2021, but he resigned on 12 August and the hearing did not take place.

[9]

The first issue relates to the enforceability of the restraint clause.

[10]

In terms of clause 16.3.1 the third respondent undertook not to compete with the applicant or any of the companies in the group, while he was employed by it and for a period of one year thereafter, in any business which sells...