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FLYNOTES: LABOUR – Restraint – Confidential information – Employment with direct competitor – Employee had access to confidential information and trade connections during 25-year tenure – Possession of valuable trade connections – Unlawfully retained confidential information – 24-month restraint period and restriction to South Africa reasonable – Validity and enforceability of restraint of trade agreements confirmed – Prohibited from disclosing confidential information – Final interdict granted.

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not Reportable

Case no: 125713/24

 

In the matter between:

 

RAND AIR SOUTH AFRICA PROPRIETARY LIMITED              Applicant

 

and

 

LINDA JAGER                                                                            First Respondent

 

ELIAS MPHIKELELI MHLAMBI                                                 Second Respondent

 

BAOFN COMPRESSOR SOUTH AFRICA

PROPRIETARY LIMITED                                                            Third Respondent

 

Heard:          6 December 2024

Delivered:    24 December 2024

JUDGMENT

 

BALOYI, AJ

 

Introduction

 

[1]  The applicant brings this application on an urgent basis for a final interdict to enforce restraint of trade agreements entered into with the first and second respondents, and an order that the first respondent delete and destroy its documents in her possession and control. The dispute with the second respondent had become resolved when the matter was called and the applicant did not persist with the relief against him, the second respondent having filed a notice to abide. No relief is claimed against the third respondent and it has played no role in these proceedings. Accordingly, this judgment is concerned only with the claim against the first respondent whose counsel, Mr Maphutha, placed on record that she was no longer in the employ of the second respondent and I accept the word of counsel as I must. The applicant has nonetheless persisted with the relief against the second respondent and the matter was argued on that basis.

 

[2]  The applicant, Rand Air South Africa Proprietary Limited (Rand Air) supplies industrial air compressors to its customers on a long-term rental arrangement, some up to 20 years. It is common cause that the second respondent, Ms Jager, was employed by Rand Air from 15 February 1999 to 19 September 2024 when her employment was terminated by agreement in terms of a ‘mutual separation agreement’ whereafter she became employed by the third respondent, Baofn South Africa Proprietary Limited (Baofn), according to her, as Operations Manager: Human Resources, Finance, Safety and Sales.

 

[3]  The following is common cause.

 

[4]  Upon her employment with Rand Air, then a division of Atlas Copco SA (Pty) Ltd, Ms Jager signed a Confidentiality Undertaking contained in her letter of appointment and concluded a written ‘Restraint Undertaking and Acknowledgment’ agreement (the restraint agreement) on the same day, 15 February 1999. On 4 August 1999, Rand Air, Ms Jager and Atlas Copco SA (Pty) Ltd signed a Cession of Confidentiality and Restraint of Trade Agreement in terms of which Rand Air, as cedent, ceded and transferred to Atlas Copco, the cessionary, and to whom it had sold its business, all its rights, title and interest in terms of the Confidentiality and Restraint of Trade Agreement between Ms Jager and Rand Air. During 2017, Atlas Copco transferred the Rand Air Business Division (business) to Rand Air as a going concern and Ms Jager's Restraint of Trade Agreement transferred, in terms of section 197 of the Labour Relations Act[1] (LRA), from Atlas Copco to Rand Air. Upon termination of employment with Rand Air, Ms Jager and Rand Air signed a “Mutual Separation Agreement” in which she agreed that she continues to be bound by the restraint obligations – clauses 1.1 and 4.

 

[5]  Accordingly, the existence and validity of the restraint agreement is not in dispute.

 

Urgency

 

[6]  Ms Jager disputes that the matter is urgent. Having read the papers, I ruled that I was satisfied that the matter is urgent. These are my reasons.

 

[7]  It is settled law that restraint of trade litigation is inherently urgent. That said, as with every application in which urgency is asserted by an applicant, a party who seeks to be heard on an urgent basis must come to court expeditiously and must account for the period when it first became aware of the alleged breach of the restraint agreement and when it came to court for urgent relief. A delay in seeking enforcement of the agreement and the absence of a satisfactory explanation for the delay may well defeat a case for urgency.

 

[8]  Rand Air states that it became aware of Ms Jager’s employment with Baofn on 15 October 2024 and it has provided a full explanation of the steps it took after it became aware of her employment with Baofn. This includes a request for undertakings, including that Ms Jager would resign from Baofn, which undertakings were obviously not conceded as is apparent with this application. This application was instituted 4 days after Ms Jager’s attorneys advised that she was would not give the undertakings demanded by Rand Air. Rand Air cannot be criticised for first seeking a resolution with Ms Jager before it resorted to the Court. It is my view that on the facts, there was no unreasonable delay in bringing this application and I am satisfied that a case for urgency has been made out.

 

[9]  Ms Jager further complains that the founding affidavit is unnecessarily long and is not concise, however she did not seek any remedy relating thereto. Suffice only to say that the Rules of this Court do not prescribe a set limit for the length of affidavits filed by the parties. Of course, where a party’s affidavit is unnecessarily prolix without adding much of assistance to the Court, it falls within the discretion of the Court to express its displeasure with an appropriate cost order. The present is not such a case.

 

Restraint principles

 

[10]  The principles of law that apply to restraint of trade agreements have received extensive attention from our courts and there was no controversy between the parties in this regard. To start off, restraint of trade agreements are valid, binding, enforceable and, as accepted in Reddy v Siemens Telecommunications (Pty) Ltd,[2] constitutionally permitted, unless the enforcement thereof is considered to be unreasonable.[3]

 

[11]  Whether the enforcement of a restraint agreement is reasonable is dependent on answers to the following questions set out in Basson v Chilwan and Others:[4]  (i) does the one party have an interest that deserves protection; (ii) if so, is that interest threatened by the other party; (iii) does such interest weigh qualitatively and quantitatively against the interest of the other party not to be economically inactive and unproductive; and (iv) is there an aspect of public policy having nothing to do with the relationship between the parties that requires that the restraint be maintained or rejected. Kwik Kopy (SA) (Pty) Ltd v Van Haarlem and Another has added a further question to the list, namely, whether the restraint goes further than necessary to protect the relevant interest.[5]

 

[12]  In Labournet,[6] the Labour Court said that a reasonable restraint must serve to protect an interest, which, in terms of the law, requires and deserves protection. It is accepted that a protectable interest includes confidential information (also referred to trade secrets) and customer or trade connections.

 

[13]  Confidential information is accepted to include information[7] - (i) about business opportunities available to an employer; (ii) that is useful or potentially useful to a competitor; (iii) relating to proposals, marketing or submissions made to procure business; (iv) pricing information not generally available to third parties; (v) that has actual economic value to the person seeking to protect it; (vi) customer information, details and particulars; (vii) the employee is contractually, regulatory or statutory required to keep confidential; (viii) relating to the specifications of a product, or a process of manufacture, either of which has been arrived at by the expenditure of skill and industry which is kept confidential; and (ix) information relating to know-how, technology or method that is unique and peculiar to a business.

 

[14]  According to Rawlins and another v Caravantruck (Pty) Ltd,[8] trade connections as an interest worthy of protection would be where the employee has access to customers and is in a position to build up a particular relationship with the customers so that when he or she becomes employed by a competitor, the employee could easily or readily induce the customers to follow the employee to the new business. Whether the employee can be seen to have the ability to exert this kind of influence, is dependent upon: the duties of the employee; the employee’s particular personality and skill; the frequency, duration of contact and nature of the relationship between the employee and customers; the between the employee and the customer, and in particular, whether the relationship carried with it a notion of trust and confidence; the knowledge of the employee concerning the particular requirements of the customer and the nature of its business; how competitive the rival businesses are, and the nature of the product or services at stake.[9] The seniority of the employee, including length of service, position, influence, knowledge, expertise, nature of duties, and personality of the employee, is accepted as an important considerations in the evaluation of the existence of a protectable interest,[10] recognising that the more senior the employee, the more likely they would be entrenched with trade secrets and or trade connections.[11]

 

[15]  I now turn to consider the facts.

 

The Relevant Facts

 

[16]  Ms Jager disputes that (i) Rand Air and Baofn are competitors; (ii) that Rand Air has a protectable interest; and (iii) that enforcement of the restraint agreement is reasonable. The first and second are factual inquiries, and the last is a value judgment which requires a weighing of competing interests. Ms Jager did not file a fourth affidavit to deal with matters arising from Rand Air’s replying affidavit, as she had a right to do in terms of rule 39,[12] and accordingly her answering affidavit contains the complete answer to Rand Air’s case.

 

[17]  Insofar as factual disputes legitimately emerge from a consideration of Ms Jager’s answering affidavit, I have determined these in line with the principles established in Plascon-Evans Paints v Van Riebeeck Paints (Pty) Ltd.[13]

 

[18]  It is common cause that Rand Air provides the same products as Baofn and that both do so on short and long-term rental agreements. In her answering affidavit, Ms Jager admits what she refers to as an ‘overlap’ in the products supplied by Rand Air and Baofn and she does not deny that both companies  service the same customers with the products they provide. These facts are accordingly common cause and therefore proven.

 

[19]  Ms Jager however contends that Rand Air and Baofn are not competitors because, so she says, the core business of Baofn is sales and maintenance of its products, and services for clients who purchased its products. She also contends that long-term rentals are not the core business of Baofn. The allegation that Baofn’s core business is sales and not long-terms rentals, and that therefore it does not compete with Rand Air stands in contrast to Rand Air’s evidence of the following which appears on Baofn’s website about its service offering, “… [its] extensive product range includes industrial air compressors, diesel compressors, and portable electric compressors. All are available for hire on short-term or long-term agreement”. Neither Ms Jager nor Baofn has disavowed this description of Baofn’s business and the uncontested evidence of Rand Air that Baofn is a direct competitor must be accepted as proof of the fact, which I do.

 

[20]  I am satisfied from this evidence that Rand Air has established that Baofn is a direct competitor. The existence of a restraint agreement being common cause, it follows that Ms Jager’s employment at Baofn is a breach of the restraint agreement.   

 

[21]  In her answering affidavit, Ms Jager states that in her position at Baofn she is not involved with sales, and therefore is not in breach of the restraint agreement. This answer is of no assistance to whether or not she has breached the restraint agreement which precludes her from employment with a competitor. The answer, even if it were true, overlooks that her employment at Baofn creates the risk apprehended by Rand Air and this is all Rand Air is required to show to establish a breach of the restraint agreement. Rand Air is not required to demonstrate that the risk it apprehended has realised before it seeks enforcement of the agreement and Ms Jager is mistaken in her view.

 

[22]  The Confidentiality Undertaking signed by Ms Jager lists proprietary information which she accepts in that document as constituting confidential information and trade secrets of Rand Air. This accords with the information Rand Air details as information to which she was exposed in the different positions she held during her employment.

 

[23]  The various positions Ms Jager held at different times during her employment with Rand Air are common cause and they are: Sales Consultant (1999-2020) and from 2004, the position changed to Customer Relations Consultant; in 2014 she was appointed Business Development Manager, Free State Region and from March 2020 to December 2023, Systems Supervisor. She was appointed Digital Marketing and Systems Manager from December 2023 until termination of employment in September 2024. The only dispute Ms Jager raises concerns what these various positions entailed, specifically, that in these positions she did not have access to confidential information and trade connections. In fact, she describes her roles and functions of Internal Sales Consultant as no different to a cashier at a supermarket.

 

[24]  In the founding and the replying affidavits, Rand Air sets out in minute detail Ms Jager’s various roles, responsibilities and functions in the different positions entailed. It suffices to include to refer to only a few: attending meetings with customers to build relationships; lead generation, managing and providing training on product knowledge; training, supporting and guiding Internal Sales Consultants within Sub-Sahara Africa Region; face-to-face sales to existing and potential customers; marketing products and managing and overseeing customer relationships on a managerial level thereby further entrenching existing personal relationships with various customers; reporting to the Sales Manager on all market analysis reports; managing the customer database of active and inactive accounts; managing costs and cash accounts which involved continuous engagement with customers; visiting Depots to ensure the sales function and processes were running optimally. As Digital Marketing and Systems Manager, her functions included developing the  marketing strategy and customer service management.

 

[25]  Ms Jager has further not meaningfully (if at all) answered or denied the specific allegations that she had access to (and I list only a few):

25.1     confidential technical know-how and methodology because of her responsibility to regularly update standard operating procedures;

25.2     pricing strategies for the period 2025 – 2027 with different strategies for each region, each product range, and key customer projects;

25.3     monthly projection of rental income for the entire financial year; access to each sales consultant’s ongoing projects at customers or potential projects segmented per project line and attended the last monthly sales meeting in September 2024 where ongoing and potential projects were discussed, information which enables her to identify customer interest, the potential revenue and the nature of the potential project”;

25.4     every database and related software that contains the details of all customers, rental contracts and revenue received from customers, and ongoing projects with customers; access to a database which includes pricing, projections, equipment, assets and revenue information, and knows the identity of the 14 customers who make up 50% of the applicant’s revenue.

25.5     the customer needs and methodology database, which contained information about each customer that does not rent a product from that product line from the applicant, a tool developed over many years, and whose purpose is to identify which other products Rand Air can rent to an existing customer and then target such customer to rent to it such identified products. As recently as September 2024 she worked on significant projects for different customers and is also aware of several ongoing projects and knows exactly the direction in which the company plans to take its business in respect of its sales and pricing and knows exactly what it is planning in each region and in respect of each customer and had access to quotes for customers and planned projects.

 

[26]  Ms Jager has provided no meaningful answer to the detailed allegations on her roles, responsibilities and functions. Her ‘challenge’ in the answering affidavit (paragraph 69) that Rand Air must tell the Court what this confidential information that it is concerned about is does not constitute denial of the roles, responsibilities and functions attributed to her and the value of that information to a competitor, and her denials in paragraphs 62 to 68 of the answering affidavit are general and vague, when the detailed allegations of Rand Air called for a clear answer to each and every alleged role, function and responsibility which she has failed to do. I accordingly accept Rand Air’s summation of what the undisputed facts show – that Ms Jager had a close involvement in the business and between 1999 and 2020 was exposed to its customers and connections throughout South Africa and that cultivated deep and long-term relationships with the customers. I also accept the evidence that she developed an extensive understanding of Rand Air’s customers and their business needs and developed and maintained customer relationships.

 

[27]  Ms Jager’s trivialising of her role as akin to that of a cashier in a supermarket is disingenuous and I have no difficulty in rejecting it because it is not difficult to comprehend that in her various positions, she would have been exposed to the kind of information listed in the Confidentiality Undertaking and would have closely interacted and built business relationship with customers of Rand Air. She bore the onus, which she failed to discharge, to show that she had no access to confidential information and that she never acquired any significant personal knowledge of, or influence over, Rand Air’s customers whilst in its employ – see Hard Hat Equipment Hire Pty Ltd v Mclean and Another[14].

 

[28]  Ms Jager further contends in her answering affidavit that Rand Air’s attempt to enforce the restraint agreement is premature because, so she contends, “… unless a clear breach of the confidentiality undertakings is clearly established, the restraint clause is unenforceable, against public policy and it unjustifiably interferes with my constitutional rights … “. There is no requirement in our law that Rand Air must first await and must establish a disclosure of its confidential information before it seeks enforcement of the restraint agreement. As the Court in Hard Hat Equipment said,

“It suffices if it is shown that trade connections through customer contact exist and that they can be exploited if the former employee were employed by a competitor. Once that conclusion has been reached and it is demonstrated that the prospective new employer is a competitor of the applicant, the risk of harm to the applicant, if its former employee were to take up employment, becomes apparent. …’[15].

 

[29]  The Court in Den Braven accepted as a principle of our law that:

‘[t]he need of an employer to protect his trade connections arises where the employee has access to customers and is in a position to build up a particular relationship with the customers so that when he leaves the employer's service he could easily induce the customers to follow him to a new business.’[16]

 

[30]  The unanswered, or poorly answered, detailed allegations in paragraphs [24] and [25] above, (and similar others that I have not reproduced in this judgment), in my view squarely meet the criteria for confidential information and trade connections.

 

[31]  I am satisfied that Rand Air has demonstrated Ms Jager’s access to its trade secrets and trade connections in the various positions she occupied.

 

Reasonableness

 

[32]  Whether or not a restraint agreement is reasonable is a factual inquiry to be determined on the facts of each case

 

[33]  In Sunshine Records (Pty) Ltd v Frohling and Others,[17] the Court said

“In determining whether a restriction on the freedom to trade or to practise a profession is enforceable, a court shall have regard to two main considerations. The first is that the public interest requires, in general, that parties should comply with their contractual obligations even if these are unreasonable or unfair. The second consideration is that all persons should, in the interests of society, be permitted as far as possible to engage in commerce or the professions or, expressing this differently, that it is detrimental to society if an unreasonable fetter is placed on a person’s freedom of trade or to pursue a profession. In applying these two main considerations a court will obviously have regard to the circumstances of the case before it. In general, however, it will be contrary to the public interest to enforce an unreasonable restriction on a person’s freedom to trade.”

 

[34]  On where the burden lies, the Court in Basson said:

“… the covenantee seeking to enforce the restraint need do no more than to invoke the provisions of the contract and prove the breach; the covenantor seeking to avert enforcement is required to prove on a preponderance of probability that in all the circumstances of the particular case it will be unreasonable to enforce the restraint; if the Court is unable to make up its mind on the point, the restraint will be enforced. The covenantor is burdened with the onus because public policy requires that people should be bound by their contractual undertakings. The covenantor is not so bound, however, if the restraint is unreasonable, because public policy discountenances unreasonable restrictions on people's freedom of trade. In regard to these two opposing considerations of public policy, it seems to me that the operation of the former is exhausted by the placing of the onus on the covenantor; it has no further role to play thereafter, when the reasonableness or otherwise of the restraint is being enquired into.’[18]

 

[35]  Thus, once the party seeking to enforce a restraint of trade agreement has established an
interest worthy of protection and that the other party is threatening that interest, the
onus is on the party resisting the enforcement of the agreement to prove that it would be unreasonable to do so. The restraint agreement and its breach having been established, Ms Jager therefore bears the onus of proving that
the enforcement of the restraint will be unreasonable, both in respect of its territorial operation and duration.

 

[36]  The restraint agreement applies to the whole of South Africa, Lesotho, Botswana, Namibia and Swaziland and for a period of 24 months from the date of termination of employment but Rand Air seeks to a partial restraint limited to the whole of the territory of South Africa.

 

[37]  It is so that the decision whether it would be reasonable to enforce a restraint of trade is a value judgment, to be exercised mindful that public interest requires that parties should comply with their contractual obligations and all persons should, in the interests of society, be productive and permitted to
engage in trade and commerce of their profession. Finding a balance between the competing interest must be the aim – see Beedle v Slo-Jo Innovations Hub (Pty) Ltd[19] where the Labour Appeal Court said:

‘[34]    … Although the onus is upon the Appellant to show the unreasonableness of the restraint into which it has entered, the public policy enquiry which is central to such a dispute involves considering a balance between the restraint concluded by the parties and the consequence thereof, whereby the employee can be prevented from utilising her skill and knowledge in the pursuit of her chosen trade or profession; as guaranteed in s 22 of the Constitution, … .

[35]    … The exercise of determining the correct balance in such a case requires a Court to carefully examine the justification offered for the extent of the duration, notwithstanding that ultimately, it is the employee upon whom the onus rests.’

 

[38]  Ms Jager has had access to Rand Air’s pricing strategies for the period 2025 – 2027 with different strategies for each region, each product range, and key customer projects, an allegation not denied and which I have found established. She also has insight into the marketing strategy of Rand Air, having attended the last meeting in September 2024, shortly before her departure from Rand Air, and has insight into ongoing projects and knows exactly the direction in which the company plans to take its business in respect of its sales and pricing.   

 

[39]  It is not sufficient that Ms Jager states only that enforcing the restraint agreement “limits [her] ability to exercise [her] right to freedom of association, to choose [her] trade, and to fair labour practices” and that she should be free “to sell [her] skills and to practice [her] trade in the market to make a living”. She does not state that she is unable to do any other work, and does not allege that she will not be employable with a non-competitor of Rand Air. As Rand Air states, she is free to exercise her skills, expertise, and services to any other companies, other than the direct competitors of the applicant and she has not shown that she is unable to do so. On the contrary, her allegation that she is not involved with sales at Baofn demonstrates that she is employable in other capacities and presumably entities not in competition with Rand Air. In the circumstances, she has not shown that enforcement of the restraint agreement is unreasonable.

 

[40]  Indeed, it is in the public interest that Ms Jager should be required to abide by the restraint agreement which she admits she willingly signed and public policy demands this. She has not alleged that she lacked the ability to negotiate differently when she first entered into the restraint agreement and much later in 2024 when she recommitted to be bound by the restraint agreement. Importantly, she has not, in these proceedings, sought to excuse herself from the restraint and confidentiality obligations she reaffirmed in the mutual separation agreement.

 

[41]  I am satisfied with, and accept Rand Air’s explanation and justification for a restraint of 24 months. Rand Air seeks in its submissions that the restraint period should commence from the date of the Order of Court. In the exercise of my discretion as recognised in New Justfun Group (Pty) Ltd v Turner & Others,[20] I consider that there is no reason to depart from the intention of the parties in the restraint agreement that the restraint will apply from the date of termination of employment. Ms Jager’s employment terminated on 19 September 2024. Accordingly, the 24 months restraint period commenced to run from that date.  

 

[42]  Rand Air seeks that the restraint extend only to the territory of South Africa and not include the neighbouring territories of Lesotho, Botswana, Namibia and Swaziland. Mr Jager did not contest that her insight into the business of Rand Air, as it concerns its trade secrets and customer connections, stretches to the entire geographical territory of South Africa and nothing precludes Rand Air from asserting only a partial restraint.[21] I am satisfied that a restraint over the whole of the territory of South Africa is not unreasonable in the circumstances of the facts on this matter.

 

[43]  Earlier in the judgment I mentioned that Ms Jager is apparently no longer in the employ of Baofn. I do not consider that this in any way defeats the relief of a final interdict, which in any event was not suggested by Mr Maphatha. Ms Jager has shown herself to be wont to act in disregard of her obligations arising from the restraint agreement. Rand Air’s apprehension of harm is therefore not unreasonable and it is indisputable that there is no suitable alternative remedy for the harm it seeks to avert.

 

[44]  Accordingly, I find that the case for a final interdict has been made out. The restraint period (as moderated) and restraint area are reasonable, and there is no suitable alternative remedy available.

 

The claim to delete and destroy information unlawfully retained

 

[45]  This relates to information which the applicant alleges Ms Jager transferred to her personal iCloud account and to her personal mobile device from the mobile device issued to her by the applicant whilst she was still employed by the applicant. She could access confidential information on a mobile device issued to her by Rand Air because she received emails on the device, and accessed and downloaded Rand Air’s documents and information through Microsoft Teams.

 

[46]  Ms Jager does not deny that she was issued with the devices alleged by Rand Air and that through these devices, she had access to and could download Rand Air’s proprietary and confidential information in the course of her employment and duties. Neither does she deny that she has a private iCloud account. Accordingly, access to proprietary and confidential information of Rand Air is established.

 

[47]  Rand Air has alleged that Ms Jager informed its Human Resources and Payroll Manager on 19 September 2024 that she had previously uploaded all the data in the mobile device issued to her by Rand Air to her personal iCloud account and to her personal mobile device. Ms Jager has not denied the allegation and instead has perfunctorily responded thereto with the following “[i]f these allegations were true it will (sic) be easy for the applicant to prove them by taking [her] device and conducting a deep search of it to determine whether there has been any downloading on its servers of information which is allegedly related to confidential information belonging to it …”. This is plainly not a denial where one was called. In any event, it came to pass that Rand Air’s attorneys took the response as an offer to obtain the device from Ms Jager and invited her to make the device available for that purpose, which invitation was declined by Ms Jager’s attorneys. There is no explanation why this was not agreed.

 

[48]  I agree with Mr Whitcutt that there being no denial of the allegation, Rand Air’s version must be accepted as proof of the allegation.

 

Conclusion

 

[49]  Rand Air has demonstrated the existence of a clear right, namely, a legitimate and proper restraint of trade covenant with Ms Jager which is enforceable to protect its confidential information and trade connections. It has also established that Ms Jager has infringed on its protectable interest and the absence of a proper alternative remedy. It has met the requirements for a final interdict.

 

[50]  The weighing-off of interests favours Rand Air and there is no intervening issue of public interest.

 

Costs

 

[51]  In the restraint agreement, the parties agreed that should it become necessary for the applicant to take legal action to institute legal proceedings to enforce the agreement, Ms Jager would be liable for costs on the attorney and own client scale. As the current dispute is a contractual one and not an LRA dispute, the general rule or practice of this Court that ordinarily, costs do not follow the result, does not apply.

 

[52]  Ms Jager has not been frank in the manner she has litigated this matter. She opportunistically denies facts about her functions and roles and does so in without any reasonable basis in fact and in law. And yet, it was not necessary for her to rely on falsehood and seek to mislead the Court. An admission of her roles and functions had no bearing on whether the enforcement of the restraint was reasonable at this stage. When Rand Air showed her denials to be without merit with particularised details in the replying affidavit, she failed to deal with this, presumably in recognition that she has no answer or explanation to the alleged facts.  

 

[53]  Further, Ms Jager has kept for herself proprietary information of Rand Air and, as Rand Air demonstrated, outrightly refused it to audit her electronic devices to satisfy itself that she did not retain information that she was not authorised to have. It is fair to ask why would she adopt so uncooperative a posture if she has nothing to hide? This in my view is a factor relevant to the consideration of an appropriate cost order.

 

[54]  Ms Jager freely contracted that Rand Air would be entitled to recover costs on the attorney and own client scale should it have to take steps to enforce the restraint agreement. Whilst I may have sympathy that she will be out of employment, there is no facts before me of her financial circumstances and that she will remain out of employment for any meaningful period. There is therefore no reason, at least none that she has placed before me, that she should not be held to her covenant on costs. She is the author of her misery which she could have avoided by abiding the restraint agreement.

 

[55]  Rand Air has succeeded in the relief it seeks and there is no reason that it should not be awarded costs on the requested and contracted scale of attorney and own client as agreed by the parties. There is no reason that Rand Air should be out of pocket any more than its agreement with Ms Jager sought to avoid. A costs order on those terms is appropriate.

 

[56]  I accordingly make the following order:

 

Order

 

1.  The matter is heard as one of urgency and the provisions of the Rules Regulating the Conduct of the Proceedings of the Labour Court (the "Rules") relating to the times and manner of service provided for in the Rules are dispensed with.

2.  The first respondent is interdicted and restrained until 18 September 2026, and within the Republic of South Africa, from:

2.1  directly or indirectly, for the first respondent's own account or as a principal, agent, partner, representative, shareholder, member, consultant, advisor, financier, trustee of a trading trustor, or in any other capacity whatsoever in relation to any person, syndicate, partnership, joint venture, close corporation, company, and trading trust and whether for reward or otherwise and whether formally or otherwise –

2.1.1  being interested in, or concerned in, any business that is similar to, or competitive with, any of the business or business undertakings of the applicant.

2.1.2  canvassing, soliciting, interfering with, or enticing away any person, who, on 19 September 2024, was a customer, client, supplier, and/or distributor of any of the business of the applicant, or attempt to do so.

2.1.3  canvassing, soliciting, enticing, interfering with, employing, appointing, or procuring the employment or appointment of any person who was, on 19 September 2024, an employee, officer, or agent of the applicant.

2.1.4  supplying or making available or providing to any person any plant or equipment, service and/or information supply, manufacture, assembly, distribution or provision of which or parts of any business undertaken by the applicant.

3.  The first respondent is interdicted and restrained from disclosing any confidential information, including trade secrets, of the applicant in any manner whatsoever to any third party.

4.  The first respondent must, within five days of this court order, depose to an affidavit in which the first respondent must –

4.1 disclose a full and complete list of all documents unlawfully and intentionally retained after termination of the first respondent's employment by the applicant.

4.2 disclose all of the persons to whom the first respondent has disclosed the documents that the first respondent unlawfully and intentionally retained.

4.3 confirm that the first respondent has deleted and destroyed all documents unlawfully and intentionally retained.

5.  The first respondent is ordered to pay the applicant’s costs on the attorney and own client scale, including the costs of 2 counsel.

 

MS Baloyi

Acting Judge of the Labour Court of South Africa

 

Appearances:

For the Applicant:                Adv C Whitcutt SC; Adv AB Omar

Instructed by:                      Baker & Mackenzie Incorporated

 

For the First Respondent:   Adv MR Maphutha; Adv P Seloga

Instructed by:                      GM Tjiane Attorneys Inc.

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