Wrongfulness of trade secret misappropriation; and trade secrets as objects of subjective rights

• Jurisdiction: South Africa
• Pages: 196-212
• Date: 29 May 2019
• Citation: 2000 Acta Juridica 196
• Author: Johann Knobel
• Published date: 29 May 2019

Wrongfulness of trade secret misappropriation; and trade

secrets as objects of subjective rights

2000 Acta Juridica 196

Johann Knobel *

University of South Africa, Pretoria

I Introduction

The basi c norm of delictual wrongfulness is the boni mores-the legal convictions of the

community. The open- endedness of this basic norm — its suppleness and lack of rigidity

— enables the South African l aw of delict to adapt to novel situations, to keep pace with

changing socio-logical and economi c conditions. 1 However, the very same qualities that

make the boni mores such an extraordinarily useful general criterion for delictual

wrongfulness, may limit its usefulness in specific instances. Its vagueness makes it

difficult to apply with predictability and consistency to specific factual situations. 2 Thus,

more, concrete norms tend to develop from the ground-norm of the boni mores, by

which the delimitation of wrongfulness may be performed. According to current dogma,

these norms are either formulated with reference to sub jective righ ts, the infringement

of which constitutes wrongfulness; or they are expressed directly in the form of legal

duties, the breach of which constitutes wrongfulness. 3

This contribution investigates the application of the above-stated principles to a

particular species o f delict, namel y the misappropriati on of trade secrets. In parti cular, I

shall argue th at Sout h African case law offers sufficient authority for the recognition of

an independent subjective right to trade secrets. I shall further discuss a more recent

trend in the case law, namely to restrict trade secret protection to situations where

plaintiff and defendant stood in a fiduciary relationship, and I shall argue that this view is

too restrictive.

* BLC LLB (Pret) LLD (Unisa); Associate Professor of Private Law, University of South Africa, Pretoria.

2000 Acta Juridica 197

For the purpose of this contri bution, a trade secret is defi ned as secret 4 information

which is capable of commercial or industrial application, in respect of which the owner

has the will to keep it secret, which has economic value, and which can l ead a separate

existence from its owner. 5 Trade secret misappropriati on is the unauthorized acquisition,

use, or disclosure of trade secrets. 6

II A subjective right to trade secrets in South African case

law

1 Cf in general P Q R Boberg The Law of Delict, Vol 1: Aquilian Liability (1984) 33; J Burchell Principles of Delict

(1993) 24ff; J Neethling, J M Potgieter and P J Visser Law of Delict 3 ed (1999) 37ff; J C Van der Walt and J R

Midgley Delict: Principles and Cases Vol 1 2ed (1997) 55ff; H J O van Heerden and J Neethling Unlawful

Competition (1995) 120ff.

2 Neethling, Potgieter and Visser (n 1) 45ff; Van der Walt and Midgley (n 1) 55; Van Heerden and Neethling (n

1) 127.

3 Cf Boberg (n 1) 30ff; Burchell (n 1) 28, 39ff; Neethling, Potgieter and Visser (n 1) 46; Van der Walt and

Midgley (n 1) 55. See further N J van der Merwe and P J J Olivier Die Onregmatige Daad in die Suid-Afrikaanse

Reg 6ed (1989) 49ff.

4 'Secret' meaning 'not in the public domain' or 'not public property or public knowledge' — cf J C Knobel The

Right to the Trade Secret (1996) 283-4 and the authority cited there.

5 id at 282-9 and the authority cited there; Van Heerden and Neethling (n 1) 223-4.

6 Cf Knobel (n 4) 236-7 and the authority cited there; Van Heerden and Neethling (n 1) 228.

2000 Acta Juridica 196

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