Hirt & Carter (Pty) Ltd v Mansfield and Another

• Jurisdiction: South Africa
• Judge: Naidu AJ
• Judgment Date: 26 September 2007
• Citation: 2008 (3) SA 512 (D)
• Docket Number: 8548/2007
• Hearing Date: 10 September 2007
• Counsel: DJ Shaw QC (with MDC Smithers) for the applicant. KJ Kemp SC (with SM Alberts) for the respondent.
• Court: Durban and Coast Local Division

Naidu AJ: F

[1] The first and second respondents were employed by the applicant. In November 2005 and March 2005 the first and second respondents, respectively, entered into restraint of trade agreements with the applicant. The first respondent ceased employment at the end of March 2007 G and the second respondent at the end of February 2007.

[2] This is an application for an interdict to prevent the respondents from continuing with activities which the applicant contends are in breach of these agreements. The agreements entered into with the first and second respondents are attached to the founding affidavit as H annexures A and B, respectively.

[3] The respondents admit the agreements but deny the breach.

[4] The application was launched at the beginning of August 2007. The restraint in the case of the first respondent is for a period terminating on 31 March 2008 and, in the case of the second respondent, 28 February I 2009. Although the relief sought is in the form of an interim interdict, in substance the relief is for an interdict to endure for the entire unexpired period of the restraint. I must therefore treat this as being substantially an application for final relief: BHT Water Treatment (Pty) Ltd v Leslie and Another 1993 (1) SA 47 (W) at 55A - E. J

Naidu J

A [5] Consequently, and irrespective of the incidence of the onus, I can only grant the applicant the relief it seeks if the facts stated by the respondents together with the admitted facts in the applicant's affidavits justify the order. Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H - 635B; Ngqumba en 'n Ander v B Staatspresident en Andere; Damons NO en Andere v Staatspresident en Andere; Jooste v Staatspresident en Andere 1988 (4) SA 224 (A) at 261F - 262B; Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398 (A) at 430G - 431A; BHT Water Treatment (Pty) Ltd v Leslie and Another (supra) at 55I - 56A.

[6] Part of the business conducted by the applicant involves an operation C in the advertising industry and in print advertising, in particular.

[7] Amongst the activities of the applicant in connection with the advertising industry is the production of advertisements involving the use of photographic material, almost invariably in conjunction with other material consisting either of words or pictures produced or adapted for D use with the photographic material.

[8] One of the applicant's departments is the photographic department which, as the name suggests, produces the photographs for the advertising material. The first respondent was the manager of this department E and the second respondent was employed in that department.

[9] The first respondent was employed by the applicant on 1 December 1998. His employment, prior thereto, in the advertising industry resulted in his developing some personal connections. In recognition of his previous connection with certain clients, these were excluded from the F restrictions imposed upon the first respondent in annexure A. The second respondent was employed by the applicant in February 2004 and, having no such personal connection before he commenced employment with the applicant, there is no similar exclusion in annexure B.

[10] Save for the exclusions referred to in the preceding paragraph G hereof, and the periods of the restraint after termination of employment, annexures A and B are similar. In the case of the first respondent, the restraint is for a period of 12 months after termination and 24 months in the case of the second respondent.

[11] The respondents presently conduct a business as photographers H under the name of Pure Photographic Studio which it seems they had started shortly after they left the employ of the applicant.

[12] The applicant seeks an order interdicting the respondents -

1.

From competing with the Applicant in relation to the performance of photographic work in connection with advertising.

2.

I From soliciting or assisting in the soliciting of business in connection with any such photographic work from any person who is a customer of the Applicant or was a customer of the Applicant during the twelve-month period preceding the date of termination of that Respondent's employment by the Applicant. The said date being in the case of the First Respondent 31st March 2007 and in J the case of the Second Respondent 28th February 2007.

Naidu AJ

3.

From utilising in connection with photographic work any knowledge A acquired by such Respondent while employed by the Applicant in connection with the utilisation of technology or any business contacts or knowledge of clients' requirements acquired during the said periods in connection with any such photographic work.

4.

From acting otherwise in any manner in breach of the agreements entered into by the Respondents, Annexures 'A' and 'B' to the B affidavit of Adam John Curtis sworn herein.

[13] The period for which the interdict is sought in respect of the first respondent is that terminating on 31 March 2008, and 28 February 2009, in the case of the second respondent.

[14] The conduct which the applicant seeks to prohibit by the interdict C relates to the performance of photographic work in connection with advertising.

[15] It is not disputed that an important aspect of photographic work is the actual taking of photographs at what is known as a photographic D shoot. The usual procedure is that arrangements are made through the studio coordinator in the applicant's photographic department for a photographic shoot. The arrangements for the shoot may be initiated by the agent of the client or the client who wishes to have photographs produced for its use.

[16] Discussions follow between the client, the individual photographer E and, where an agent is concerned, the agent, culminating in the arrangements for the shoot. The photographs may themselves be taken either in the studio or on a location outside the applicant's studio. The nature of the material to be photographed and its arrangement for the F purpose of the photography is a matter for discussion by all those concerned, with the photographer making the largest contribution to technical matters. These technical matters, according to the first respondent, relate mainly to the photographer's requirements for producing the type of attractive photograph the client wants. G

[17] The founding papers do not state in explicit terms what the respondents' roles in these photographic shoots were. All indications are, however, that these were as photographers engaged in the actual taking of photographs.

[18] The nature of the interest which the applicant seeks to protect by H the interdict is specified in clauses 2.1 - 2.7 of the agreement, which reads:

2.

The employee acknowledges:

2.1

that the employer has been for years and is continuously at the forefront of technology and development in the use of technological I equipment and in unconventional methods of achieving a product of given quality at lowest cost;

2.2

that he has been and will continue to be privy to specialised methods which the employer has developed through the expenditure of money, effort and time and which the employer uses to be competitive in the market and that were those J

Naidu AJ

A methods to come into the possession of their employer's competitors it would lose the competitive benefit of those methods;

2.3

that he is and will be privy to their employer's confidential information;

2.4

that he is and will be privy to the employer's business plan and B development ideas and intentions and to the methods it employs in competing for work and for performing work in the most efficient and cost effective manner in order to render it competitive in the market;

2.5

that it is in the unconventional ways in which the employer manages and conducts its business and employs innovative C technology which enables it to enjoy a competitive advantage in the market;

2.6

that the employer's confidential information is vital to its success and so keeping it secret is necessary and legitimate for the conduct and future of the employer's business;

2.7

that by his employment he will acquire influence of the D employer's customers.

[19] Clause 2.8 records the further acknowledgment

that having regard for the aforegoing it is fair, reasonable and necessary for the employer to have the employees undertaking not to use confidential information against or to the detriment of the employer E and whether directly or indirectly and that to safeguard the confidential information the restraint in 3 is necessary.

[20] Clause 3 records the restraint.

[21] 'Confidential information' is defined in the agreement as

F information developed by or secret to the employer which is private and confidential including without limitation know-how, technology, use and unusual use of technology, training methods, management methods, marketing methods, business models, business plans, business structures, business secrets, research and development, methods and results, technological improvement, technological innovation, production G methods, methods of responding to competitors' initiatives, sources of supply, business contacts, knowledge of clients' requirements, decision making procedures, strategic plans, price and pricing, turnover and profit.

[22] The deponent to the founding affidavit, Adam John Curtis (Curtis) H is the managing director of the applicant.

[23] According to Curtis the association with the client and knowledge of the client's requirements and its approach and of persons employed by agents and clients is of the utmost importance. It forms an essential and integral part of the applicant's trade connections.

I [24] The first respondent takes issue with the aforesaid...