Tax Consulting South Africa and another v Seboko and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mudau J |
| Judgment Date | 13 September 2023 |
| Citation | 2023 JDR 3442 (GJ) |
| Hearing Date | 23 August 2023 |
| Docket Number | A 2022-055430 |
| Court | Gauteng Local Division, Johannesburg |
Mudau J:
This is an appeal with the leave of the court a quo against a judgment and order of Yacoob J, following an application that was dismissed to interdict the first and second respondents from, inter alia, contacting, approaching and soliciting any of the appellants’ prescribed clients. The application was to enforce a restraint of trade agreement contained in the employment contract of the first respondent concluded between the first appellant and the first respondent on 28 June 2017. The application was launched as a matter of urgency in December 2022.
Since the restraint was for a limited period of twelve months from 30 September 2022 until 30 September 2023, the court a quo correctly treated the matter as being an application for final interdictory relief and therefore, urgent. This appeal turns on whether the first appellant, the first respondent’s employer, was part of a group of entities in respect of which the restraint of trade agreement was applicable.
Background facts
The facts are uncontroverted. The first respondent, Seboko, a former employee of the first appellant, Tax Consulting South Africa (TCSA), which is a sole proprietorship, worked for Xpatweb (Pty) Ltd (Xpatweb), the second appellant from 1 August 2017 until September 2022. He worked initially as an immigration
2023 JDR 3442 p3
Mudau J
manager and later as a director of, TCSAS Group Services (Pty) Ltd (TCSAS Group), when he resigned. Seboko, a work visa specialist, was employed to provide visa application and immigration consultancy services. He rendered these services to the second appellant as the entity within the group that deals specifically with visa application and immigration consultancy services. After his resignation, Seboko incorporated and established MS Immigration Advisory (Pty) Ltd (MSIA), the second respondent.
TCSA acted as the parent business for various legal entities within its group, which included Xpatweb. Marisa Jacobs (Ms Jacobs) the deponent to the appellants’ affidavits and Christoffel Botha (Mr Botha) the deponent to the confirmatory affidavits, are directors of and each holds a third of the issued shares in Xpatweb. TCSA is the employer of all employees in the group. Also, when the first appellant expanded, it formed groups of companies such as Xpatweb, which performs work visa services. Seboko as indicated, rendered these services to Xpatweb as the entity within the group that deals specifically with visa application services and immigration consultancy and advice. In sum, he provided specialist professional advisory and support to corporate clients of the group.
The material portions of Seboko’s employment contract in relation to the restraint clause provide as follows:
‘prescribed client/customer’ means any person:
who is or was a client/customer of the employer during, and prior to, any part of the employee’s employment; and/or
who is or was a prospective client/customer of the employer at the Termination Date whom the employee approached to do business with the employer within a period of 1 (one) year preceding the Termination Date; and/or
who purchased or acquired services from or through the employer within a period of 1 (one) year preceding the Termination Date; and/or
to whom services were rendered by the employer within a period of 1 (one) year preceding the Termination Date.”
2023 JDR 3442 p4
Mudau J
On the definition of “the group”, the agreement provided -
‘the group’ means the company and/or any of its current or future associated brands or entities for which the employee may be required to act on behalf of during the course of their employment”.
Clause 13.2 provides further -
“By signing this agreement, the employee acknowledges and agrees that these legitimate interests exist, and the employee agrees to abide by the obligations as set out below. In this regard, the employee irrevocably and unconditionally agrees and undertakes:
. . .
not to, for a period of 12 (twelve) months subsequent to the termination date and anywhere within the Republic of South Africa, either for the employee’s own account or as representative or agent for any third party:
. . .
contact or approach or furnish any information or advice (whether written or oral) to any prescribed client/customer (whether as proprietor, partner, director, shareholder, employee, consultant, contractor, financier, agent, representative or otherwise) directly or indirectly, for the purpose of or with the intention of persuading, soliciting or inducing such prescribed client/customers to terminate their mandate with the employer or to offer to such prescribed client/customers the rendering of any prescribed services”.
Clause 13.5 states that “the provisions of this clause 13 shall apply in respect of any employment...
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