- Source: David Crouch Marketing v Du Plessis
David Crouch Marketing CC v Du Plessis is a decision in South African labour law, handed down on 17 June 2009. The case was heard on 21 May 2009 in the Labour Court of South Africa, sitting in Johannesburg, by Judge Annali Basson. It concerned the enforceability of agreements in restraint of trade.
Facts
On the return date of an interim order granted by the court to the applicant, the respondent, Mark du Plessis, opposed the confirmation of the order. In terms of the order, the respondent was interdicted
from revealing or disclosing any of the applicant's confidential information, technical know-how and/or financial information;
from competing with the business of the applicant for a period of three years; and
from directly and indirectly—alternatively from unlawfully—competing with the applicant in breach of the respondent's restraint of trade covenant.
Judgment
The court held that agreements in restraint of trade, voluntarily entered into pursuant to one's right to freedom to contract, are valid and enforceable unless the party seeking to escape this agreement can show that the agreement is unreasonable and therefore contrary to public policy. Whether or not the agreement is unreasonable should be evaluated taking into account all the circumstances of the case, including the relevant circumstances which exist at the time of the enforcement of the restraint of trade.
It will not be in the interest of public policy, the court found, to enforce a restraint of trade if it aims to prevent one party from participating in the commercial world after termination of their contractual relationship in the absence of a protectable interest of the erstwhile employer.
In casu, the court found that the applicant had failed to place evidence before the court to show that the information or business methods which it sought to protect were protectable. The interim order was therefore not confirmed.
See also
Labour law
References
= Books
=Colman The Law of Trade Secrets (Sweet & Maxwell, 1992).
= Case law
=Advtech Resourcing (Pty) Ltd t/a Communication Personnel Group v Kuhn & another 2008 (2) SA 375 (C); [2007] JOL 20680 (C).
Automotive Tooling Systems v Wilkens 2007 (2) SA 271 (SCA); [2006] JOL 18367 (SCA).
Basson v Chilwan & others 1993 (3) SA 742 (A).
Dickinson Holdings (Group) (Pty) Ltd & others v Du Plessis & another 2008 (4) SA 214 (N); [2008] JOL 21419 (N).
Faccenda Chicken v Fowler [1986] 1 All ER 617 (CA).
Hirt & Carter (Pty) Ltd v Mansfield & another 2008 (3) SA 512 (D); [2007] JOL 20733 (D).
Labournet Holdings (Pty) Ltd v McDermott and Another (2003) 24 ILJ 185 (LC).
Magna Alloys and Research v Ellis 1984 (4) SA 874 (A).
Plascon-Evans Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
Reddy v Siemens Telecommunications 2007 (2) SA 486 (SCA).
Sing v Adam (2006) 27 ILJ 385 (LC).
Sunshine Records (Pty) Ltd v Frohling & others 1990 (4) SA 782 (A).
= Statutes
=Basic Conditions of Employment Act 75 of 1997.
Constitution of the Republic of South Africa, 1996.
= Dissertations
=Mapiti Piet Ramaphoko. The Balance Between the Principle of Pacta Sunt Servanda and Section 22 of the Constitution in a Restraint of Trade Agreement. North-West University, South Africa. 2014.
Luyanda Nkwenkwe Dumisa. The Enforceability of the Restraint of Trade Agreement in the Context of Unlawful Termination of an Employment Agreement. University of Pretoria. 2015. Pages 4, 10, 12, 15, 16, 23, 24, 49 and 52.
Aamina Danka. A Discussion Surrounding Restraint of Trade in Employment Law. University of Kwa-Zulu Natal. 2017. Pages 14 and 63.
Musiiwa Mahangwahaya. A Critical Analysis of the Concurrent Enforceability of Restraint of Trade Agreements in South African Labour Law. University of Venda. 2018. Pages viii, 11, 12, 21, 33, 34, 54 and 80.