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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

COURT A QUO CASE NUMBER : 17952/2016

Reportable: No

Of interest to other judges: No

Revised.

16 March 2017

In the matter between

MARK VAN ANTWERP and BERNADETTE VAN ANTWERP in their capacities as trustees of THE WISECRACKS TRUST (TM5850)	Applicants
and
ABEL CHIMUSARU	Respondent

JUDGMENT

ANDRÉ GAUTSCHI AJ

[1] This is an application to enforce a restraint of trade clause.

[2] The applicant, a trust, conducts business country wide as automotive glass repairers under the name and style of “Wisecracks”.  It repairs breaks, faults and chips in automotive glass, which involves not only windscreens but also automotive headlights, tail lights and lenses. 

[3] The respondent was employed by Wisecracks from 13 June 2012 until 31 March 2016 as a glass repair technician.  The respondent was given training at Wisecracks’ head office in Port Elizabeth for one to two weeks, after which he operated in the Boksburg, Kempton and Benoni areas.

[4] The respondent’s employment contract incorporated a restraint clause, the crux of which is contained in clause 20.3 and reads :

“Without derogating from the EMPLOYEE’s obligations herein, the EMPLOYEE shall not, for twelve (12) months from the termination date whether as proprietor, partner, director, shareholder, employee, consultant, contractor, financier, agent, representative, assistant or otherwise, directly or indirectly, carry on or be interested or engaged in or concerned with or employed by any company, firm, undertaking or concern carried  on in any of the prescribed areas which sells or renders the prescribed services in the course of its business; …”

The “prescribed areas” are defined in clause 1.1 to mean :

“an area within 150km radius of the geographical area or areas allocated to the EMPLOYEE during the time of his/her employment.”

The “prescribed services” are defined in clause 1.3 to mean :

“any services rendered by the TRUST in the ordinary course of business (which includes but is not limited to the repair of windscreens, headlamps, lenses and paint repair) carried on at :-

1.3.1 the date of this agreement; and/or

1.3.2 the termination date.”

The “termination date” means :

“the date upon which the EMPLOYEE’s employment by the TRUST ceases or is terminated for any reason whatsoever.”

[5] The respondent was not satisfied with his remuneration and, when his attempted negotiations for a higher remuneration failed, resigned and took up employment with FIAD Dent Removal and Chip Care Repairs (“FIAD”), as a manager with effect from 1 April 2016.

[6] It is not in dispute that there is a restraint clause operative against the respondent, that he is employed by FIAD, and that FIAD is a competitor of Wisecracks.  The onus is therefore upon the respondent to avoid, if that is possible, the impact of the restraint clause, or the full impact thereof, by showing that enforcement of the clause or a part thereof would be unreasonable and against public policy.

[7] The respondent’s skills as a glass repair technician are skills which cannot be unlearnt, and which public policy would demand that he be entitled to practise.  It is common cause that he has handed back all the specialised equipment used by Wisecracks in their method of repairing automotive glass.  Nor is the cost of training an employee a protectable interest in this case, since there was nothing to stop the respondent from leaving the applicants’ employ shortly after he commenced employment, and the applicant would have lost the cost of the training in any event.

[8] The problem lies with the trade or customer connection, and the debate before me narrowed down to this.  It is common cause that the respondent had access to the Wisecracks’ customer list for his areas, and that in the course of his work he had contact with those customers.  It was incumbent upon  him to set out facts which would discharge his onus that he did not have relationships with those customers of the nature that they would follow him to his next place of employment, or that he could not use his knowledge of the customers to the advantage of his present employer.  That was his onus, and he has done nothing to persuade me that he is not a risk to Wisecracks in this regard. 

[9] The applicant’s evidence of actual contact by the respondent with customers of Wisecracks, and that a long standing customer of Wisecracks had switched allegiance to FIAD, is largely hearsay and given in the replying affidavit.  Mr Moreno on behalf of the applicant submitted that it was incumbent upon the respondent to file a fourth affidavit if it disputed those allegations.  I do not agree, but it is nevertheless the respondent’s onus, which he had to discharge by way of the answering affidavit, and would thereafter allow him to rely on the Plascon-Evans rule[1].

[10] Mrs Friedman for the respondent submitted that it would be unreasonable to enforce the restraint where the respondent had learnt and been involved in this trade for almost four years, lived in the area of Boksburg and would now have to travel more than 300km per day in order to avoid the restraint, was the breadwinner in the family, and there were only six weeks left from the date of the hearing to the end of the restraint period.  I do not believe that any of those facts assist in discharging the onus or render the restraint unreasonable.  The fact that the restraint only has a short period to run cannot in my view turn an otherwise reasonable restraint into an unreasonable one.  The fact that the application is only heard at this stage is a function of the court process and the large number of matters to be heard.

[11] The geographical area of the restraint appears to me to be too wide.  I would have thought that the restraint could be limited to the areas in which the respondent worked, but cutting down the area would not assist the respondent.  He works for a company which operates in the Boksburg area.  He has also given me no facts to allow me to cut down the area of the restraint.  Nor does the relief become academic merely because the term of the restraint is nearly at an end.  The employment contract provided for Wisecracks to deduct some monies every month, to contribute equivalent monthly amounts itself, and to pay that out at the end of the restraint period if the restraint had been honoured.  My judgment will therefore determine whether those monies are payable or not, and the matter is therefore not of academic importance, even though the amount involved is not a large one (although I recognise that it may be of importance to the respondent.)  

[12] Notwithstanding the form of the order sought in the notice of motion, I believe that the appropriate order is the following, given that only a few weeks remain of the restraint and the respondent is unlikely to move to another competitor in the remaining period.  I also take into account that the respondent’s work whilst employed by Wisecracks was apparently limited to glass repair.  My order will allow the respondent to remain with FIAD for the remaining period of the restraint provided that his work is limited to dent removal type work.

1. The respondent is interdicted and restrained from being employed by FIAD Dent Removal and Chip Care Repairers (“FIAD”) in any capacity which relates to its business of repairing breaks, faults and chips in automotive glass, including windscreens, headlights, tail lights and lenses, within the areas of Boksburg, Kempton Park and Benoni, or within a 150km radius of those areas, until 31 March 2017.

2. The respondent is ordered to pay the costs of this application.

 

_______________________

ANDRÉ GAUTSCHI

ACTING JUDGE OF THE HIGH COURT

Date of hearing	:	13 February 2017
Date of judgment	:	16 March 2017
Counsel for the applicant	:	Mr CJ Moreno
Attorneys for the applicant	:	Liston, Brewis & Co Port Eliabeth (Mr Brewis)
Counsel for the respondent	:	Mrs A Friedman
Attorneys for the respondent	:	Diemieniet Attorneys Germiston (Mr Diemieniet)

 

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