Pilog Data (Pty) Ltd and Others v Glencore Global Business Centre (Pty) Ltd and Others (055848/2022) [2023] ZAGPPHC 684 (19 June 2023)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

DELETE WHICHEVER IS NOT APPLICABLE (1) REPORTABLE: YES/NO (2) OF INTEREST TO OTHER JUDGES: YES/NO (3) REVISED: YES/NO DATE: 19 June 2023 SIGNATURE:

Case No. 055848/2022

In the matter between:

PILOG DATA (PTY) LTD First Applicant

PI-LOG SA (PTY) LTD Second Applicant

PILOG SYSTEMS (PTY) LTD Third Applicant

PILOG INTERNATIONAL INVESTMENT LTD Fourth Applicant

PILOG STAR TECHNOLOGIES Fifth Applicant

V

GLENCORE GLOBAL BUSINESS CENTRE (PTY) LTD First Respondent

JOAO FILIPE DOS REIS Second Respondent

CAROL NEVIN Third Respondent

GARTH NEVIN Fourth Respondent

KARL VAN WYNGAARD Fifth Respondent

MIKE TSHIMBALANGA MPINDU Sixth Respondent

MARIUS RAUTENBACH Seventh Respondent

Coram: Kooverjie J Heard on: 7 June 2023 Delivered: 19 June 2023 - This judgment was handed down electronically by circulation to the parties' representatives by email, by being uploaded to the CaseLines system of the GD and by release to SAFLII. The date and time for hand-down is deemed to be 09H00 on 19 June 2023.

SUMMARY: It is not demonstrated that the skill-set, knowledge and know-how is integrally related to the previous employer’s business system. In such instance, the ex-employees are free to draw on their general knowledge, experience and skill provided that they do not disclose or impinge upon Pilog’s confidential business system.

ORDER

It is ordered: -

1. The application is dismissed with costs.

JUDGMENT

KOOVERJIE J

THE APPLICATION

[1] The relief sought by the applicants in this restraint application, in summary, is fourfold, namely that:

1.1 Glencore is restrained from employing Pilog’s ex-employees;

1.2 the ex-employees are restrained from taking up employment with any of Pilog’s customers or with any business entity whose business is in conflict or in competition with Pilog;

1.3 the ex-employees are restrained from using and/or divulging any of the intellectual property or confidential information to Glencore or to any other party;

1.4 Glencore is restrained from using and/or divulging Pilog’s confidential information to any other party.

The restraint is operable for a period of one year.

[2] This application was instituted upon the applicants learning that the first respondent offered employment to its ex-employees. It is the applicants’ case that the first respondent had intentionally planned to poach its ex-employees for the purposes of developing its business system. It was reiterated that these employees were senior, most experienced and were substantially the applicants’ intellectual capital.

THE PARTIES

[3] The first to third applicants, Pilog Data, Pi-Log SA, and Pilog Systems are related companies within the Pilog Group of companies. The core business of the first applicant is to render data management services (data cleansing and refining services) and specialized software and data enterprise solutions to various clients.

[4] The first to fifth applicants jointly own the intellectual property, confidential information and proprietary interests. The applicants will jointly be referred to as “Pilog”.

[5] The first respondent, Glencore Global Business Centre, provides data management and material management functions to the Glencore Group of Companies. The first respondent will be referred to as “Glencore”.

[6] The second to seventh respondents, namely “Dos Reis”, “the Nevins”, “Van Wyngaard”, “Mpindu” and “Rautenbach”, were all ex-employees of Pilog (“ex-employees”). They were previously employed with Pilog Data, but for Mpindu, who was employed by Pilog SA. The respective employment contracts entered into with each of the employees, prior to their respective exits from the first and second applicants.

[7] It is noted that the applicants are not pursuing their relief against the Nevins (third and fourth respondents). It is further noted that the seventh respondent, Rautenbach, filed separate papers.

RELIEF SOUGHT

[8] The applicants seek final relief in the first instance. Based on the general principles, a final order will be granted if the facts averred in the applicants’ affidavit, which have been admitted by the respondents, together with the facts alleged by the respondents, justify such an order.¹

[9] It is accepted that a party seeking to enforce a contract in terms of restraint of trade is only required to invoke the restraint and prove a breach of its terms. However, the onus remains on the respondents to prove the unreasonableness of the restraint.²

[10] The issue for determination is whether the ex-employees had breached their restraint of trade terms as set out in the respective employment contracts. In the seminal judgment of Basson³ the test for determining the reasonableness of a restraint of trade provision was succinctly pronounced, namely:

10.1 Is there an interest deserving of protection (protectable interest)?

10.2 Is such interest being prejudiced by the other party?

10.3 If so; does the interest weigh up against the interest of the latter party which would render such person to be economically inactive and unproductive?

[11] Having heard both parties and having read the papers, it is evident that the core dispute for determination is- whether or not the applicants have established that they have an interest deserving of protection.

[12] It is settled law that an agreement in restraint of trade is enforceable unless it is unreasonable and contrary to public policy, if it does not protect some legally recognizable interest, in this case, that of the applicant.⁴

THE EMPLOYEES

[13] It was not disputed that the respective employment contracts with the ex-employees contained restraint clauses. The extent of the restraint provisions set out in the respective contracts are common cause, namely:

13.1 during their employment with Pilog, the employees undertook not to use either directly or indirectly any of the intellectual property or confidential information outside the context of Pilog and further not to disclose it to third parties;

13.2 the employees may not engage, either directly or indirectly, in any capacity, in any business venture, with a competitor or in conflict with the business of Pilog while the agreement is in force or for a period of one year after termination of this agreement and/or employment;

13.3 not within any one of the territories in which Pilog is active, may the employees engage directly or indirectly, in any capacity or in any business venture competitive or in conflict with the business of Pilog⁵ for a period of one year after termination of the agreement or employment, for any reason whatsoever (my emphasis).

[14] It is further common cause that the ex-employees held senior positions with Pilog:

14.1 “Dos Reis”, the second respondent, was employed by Pilog Data for approximately 12 years. He resigned on 2 November 2022. He was employed as a senior cataloguer quality controller and Portuguese translator and was also a member of the Operations Representatives Committee that held meetings with the Executive Committee;

14.2 the fifth respondent, “Van Wyngaard”, was employed by Pilog Data for 12 years and resigned on 3 November 2022. He held the position as a quality controller and senior cataloguer;

14.3 the sixth respondent, “Mpindu”, was employed by Pilog SA for 10 years and resigned on 29 October 2022. He was also employed as a senior cataloguer and French translator;

14.4 the seventh respondent, “Rautenbach”, was employed from 1 March 2022 as a cataloguer with Pilog Data. He resigned on 13 September 2022. He is currently employed with Kelile (a labour consultant) and is seconded to Komoto Copper (an affiliate of Glencore) in the Democratic Republic of Congo.

[15] Glencore proffered that the ex-employees were recruited through independent and transparent processes. It was explained that:

15.1 Dos Reis applied for the position of a cataloguer at Glencore after it was brought to his attention by a friend that Glencore is looking to employ cataloguers. He, in fact, applied through the career portal of Glencore. He was not in any way influenced by anyone from Glencore to apply for the advertised position. It was further argued that Dos Reis had neither recorded nor copied any confidential information belonging to the applicants. His devices were cleared of all Pilog-related software prior to him leaving Pilog. He specifically undertook not to disclose Pilog Data’s confidential information and intellectual property or to use same or to do so in future;

15.2 Van Wyngaard applied for the position at Glencore because he believed that his salary at Pilog was below the market value. Van Wyngaard had also not retained copies of any of Pilog’s ontology, taxonomy or confidential information;

15.3 Mpindu learnt that Glencore intended employing specialist cataloguers through a recruitment agency “Magnum” at the end of 2021. He submitted his CV to the recruiter at the time but had no response. He was later approached by the recruitment agencies in 2022 and that is when he applied for the position at Glencore. He was employed by Glencore because of his skills and experience as a cataloguer and not because he may have confidential information belonging to Pilog.

[16] I have noted that Rautenbach, in his papers, inter alia, disputed that his employer, Kilile is related to the Glencore Group. He points out that Kilile is a labour broker that offers services to the Kimoto Copper Mine. He further argued that his employer business is, not in any way, in competition or in conflict with the business of Pilog. He further alleged that he does not possess any specialized knowledge or skill in terms of “Pilog’s Preferred Ontology”.

[17] The applicants hold a contrary view. Its case is that each employee was approached directly by Glencore and specifically poached to take up employment with Glencore. It was a blatant orchestrated plan which caused the respective employees to resign and take up employment with Glencore within a space of a few days.

THE CONSULTANCY SERVICES AGREEMENT

[18] It is common cause that the business relationship between the Pilog and Glencore came about on 20 October 2020. The said parties entered into a Consultancy Services Agreement whereby Pilog was tasked to perform specialized data cleansing and data standardization process for Glencore.

[19] The scope of the work broadly required Pilog to provide master data management services taking into account all data standardization processes, all applications through which the master data is managed as well as all Master Data Governance (MDG) processes. The Glencore ontology was used. Data standardization process was defined in the scope of work and which essentially required that Glencore’s Master Data be cleaned up and standardized according to international data quality principles and standards. Pilog was also required to establish procedures for quality assurance.⁶

[20] Pilog particularly took umbrage to Glencore’s attack on the quality of services rendered. Pilog pointed out that it had successfully achieved a 99,32% completion of the project. In fact, it had catalogued 211 720 items of which Glencore approved 210 281 items. Glencore held a different view. For the purposes of this judgment, in my view, this issue has little bearing on the main issue for determination (the restraint). It is therefore not necessary to ponder thereon.

[21] Glencore further argued that the contract with Pilog was only for a period of one year. Since then it had sought a new service provider, Prospecta, to continue with the bulk data cataloguing services. Pilog, on the other hand, argued that the “Consultancy Services Agreement” had not been terminated. Glencore remains Pilog’s customer and has to date failed to honour its payments on two invoices.

[22] The applicants, in argument, did not persist with the point that Glencore remained a customer. Even if I do not make a finding on this point, I am ultimately required to determine whether or not Glencore’s business was in conflict with that of Pilog’s business.

NATURE AND SCOPE OF THE BUSINESS OF PILOG AND GLENCORE

[23] The core argument in Glencore’s papers is that it had no intention of using Pilog’s software, its ontology or taxonomy. By virtue of the Consultancy Services Agreement, the cataloguing had to be performed in terms of Glencore’s business system. Glencore had employed the ex-employees for their skill set only.

[24] In explaining why it was not in conflict with Pilog’s business, Glencore alleged that it is a business support company within the Glencore Group. It is part of Glencore’s corporate division and provides centralized business support functions to each of the mines of the Glencore corporate group. Part of its business support function is to provide management services in respect of the extensive material and equipment used by each of Glencore’s copper mines. It firstly concluded a contract with a software company to design, build and implement the master catalogue and software for the Glencore Corporate Group with its own “ontology” and “taxonomy” into which all the items and materials and equipment used on the mines which included the technical identifying information are stored.

[25] Since Glencore did not have the resources to catalogue these items, material and equipment at each of the copper mines, it outsourced the bulk cataloguing function to third-party service providers. It was on this basis that it concluded the agreement with Pilog Data to perform bulk data cleansing with data standardization of materials and equipment of four mines in Australia.

[26] Glencore further saw the need to hire more employees due to the business decision to expand its own internal cataloguing department. In summary, the cataloguers were required to perform ordinary data cleansing and cataloguing functions for the Glencore copper mines and to provide support, training and oversight to regional cataloguers based at the respective copper mines. It was on that basis that the recruitment process was commenced.

[27] More specifically, it was explained that it had its own ontology and a taxonomy suitable to the business of Glencore Copper which was implemented it into the SAP Master Data Governance⁷ software module within Glencore’s SAP ERP (Glencore business system). It is common cause that the cataloguing of the equipment and material of the Glencore group was always done in terms of the Glencore business system. By virtue of the Consultancy Services Agreement, the first applicant was required to conduct a bulk cataloguing process, namely some 200,000 parts, materials and equipment for copper mines in Australia in accordance with the Glencore ontology.

[28] It was emphasized that Glencore had since December 2009 been cataloguing the new equipment and materials of the Glencore copper group in terms of its own business system. Hence there was no reason to copy or use any of the methods processes of Pilog’s business systems.

[29] The applicants, in persisting with their argument that Glencore’s business is in conflict with Pilog, explained that Glencore also performs data cataloguing, and even quality control which Pilog was required to do as part of its data cleansing and cataloguing services (in terms of the Consultancy Services Agreement). Such functions illustrate that Glencores’ scope of business activities are similar to that of Pilog.

[30] The respondents’ version, namely that the new recruitment was to enable Glencore to cope with the additional cataloguing of the new materials and equipment attained from the respective copper mines and to perform quality control once it receives work from Prospecta was not disputed. The specific bulk data cleansing process together with quality control performed by Prospecta constitutes a separate and necessary process and as part of the data standardization process.

[31] I find the applicants’ version untenable. Even if the ex-employees perform quality control, ordinary data cleansing and cataloguing functions, from the papers, it does not appear that Glencore’s intention was to take over (Pilog’s functions), namely bulk data cleansing and standardization services. On Glencore’s version, the bulk cataloguing services has to be outsourced. As things stand, even with the recruitment of the said new employees, Glencore still outsources the bulk data cleansing and standardization services, currently to Prospecta.

PROTECTABLE INTEREST

[32] Even if one concludes that the business of the two parties are similar and may to some extent be in conflict with each other, it still does not justify imposing the restraint. The applicants are required to demonstrate that they have an interest that is protectable.

[33] It is accepted law that it is not a defence if an employee undertakes not to divulge the confidential information.⁸ Moreover the general principle enunciated by our authorities is that the restraint will be unreasonable and contrary to public policy if it does not protect some legally recognisable interest of the employer that merely seeks to eliminate competition.⁹

[34] In this instance, the applicants made out their case based on the confidential information, which includes their intellectual property and trade secrets. It is settled law that the determination of whether the confidential information forms the subject of protection remains a factual question.

[35] The applicants proffered the argument that Pilog was only required to show that the employees have access to its confidential information and which could be divulged to the new employer if they desired to do so. This was sufficient for the granting of the relief. The applicants’ relied on the BHT Water Treatment matter,¹⁰ which is authority for the aforesaid proposition. In my view, this is not the end of the enquiry for the applicants.

[36] An enquiry whether the protectable interest (in this case the confidential information of Pilog) is threatened is necessitated. Glencore’s case, on the papers, remain that it does not seek the confidential information of Pilog in any manner or form. Hence the interest that Pilog wishes to protect is not threatened in any way.

[37] I reiterate that Pilog’s case on the founding papers was that each of the ex-employees breached their agreement in that they intended to divulge the intellectual property and confidential information of Pilog to their new employer, Glencore. Pilog’s senior ex-employees were prohibited from using not only the intellectual property and confidential information of Pilog but they were further not allowed to engage in any business venture that was in competition with Pilog for at least a period of one year after termination of the agreement. And so Pilog argued that Glencore reaped the benefits and fruits of Pilog’s labour, at Pilog’s expenses in direct conflict with Pilog’s business.

[38] At paragraph [103]¹¹ the applicants alleged:

“Glencore has poached the employee respondents in order to develop a system based on and making use of the intellectual property and works which the applicant seeks to protect. Glencore will thereby effectively circumvent Pilog in that it will create its own ability to render the specialized services “data cleansing and standardization” which Pilog was initially contracted to do for Glencore as well as, at least potentially, Komoto Copper.”¹²

[39] At paragraph [174] of the founding affidavit the applicant sets out the basis for the restraint:

“As a result of the fact that the applicant’s employees are trained in and exposed to the proprietary software application of Pilog Systems (which includes but is not limited to the applicant’s taxonomy, ontology and methodologies) the employment contracts of such employees contain the confidentiality of information, restraint of trade and intellectual property provisions.”

[40] I have taken cognisance of the respective employment agreements that, inter alia, the employees were required to recognise that Pilog’s intellectual property and confidential information be protected and should not be used or divulged to any party. The concepts, inter alia, “intellectual property rights”, “know-how” and “trade secrets” are defined in the respective contracts of employment, namely:

“28. INTELLECTUAL PROPERTY RIGHTS

All Intellectual Property is and will remain the property of the COMPANY and no rights to use or duplicate such property will accrue to the EMPLOYEE.

28.1 Intellectual Property includes, but is not limited to

• the Know-how;

• the Copyright;

• the Goodwill;

• the Trade Marks;

• the Trade Secrets.

Any confidential information of whatever nature relating to the business of the COMPANY and the Intellectual Property of the COMPANY.

28.2 Know-how includes

All confidential, technical and commercial information relating to the operation of the Company’s’ business from time to time, including, without limitation, information contained in the documents or electronic forms, together with unrecorded information known to individuals who are office bearers or employees of the COMPANY. Technical information includes all specifications, methods of production, manufacture, distribution, installation or maintenance and formulae developed by the COMPANY….

28.6 Trade Secrets include

All confidential information of whatever nature relating to the business of the COMPANY and the Intellectual Property of the COMPANY.”¹³

[41] It was further common cause that Pilog was to provide master data standardization services. Glencore was allowed to use Pilog’s intellectual property only for the purposes of the project and not for the benefit of its own business system. Pilog shared various portions of its intellectual property with Glencore on the project. Notably the Consultancy Services Agreement, inter alia, included provisions that recognized the intellectual property rights of Pilog Data and that it would be used by Pilog Data in the performance of its services.

[42] Pilog’s core argument is that Glencore intends developing the same system and software as that of Pilog with the assistance of Pilog’s ex-employees. Glencore persisted with the view that the ex-employees were employed for their general cataloguing skills which are not tied to any particular company or specific ontology or taxonomy. They were employed within the cataloguing department at Glencore and are currently exposed only to Glencore’s software, taxonomy and ontology.

[43] I have further noted that the applicants, in their replying affidavit, extended their protectable interests to include “the investment in the training of the ex-employees with specialized skills, know-how and trade secrets”. Pilog extensively explained that it had spent years providing the necessary and requisite training to the ex-employees in order to provide them with the skills, methodologies and abilities to fulfill their roles as cataloguers and quality controllers. I highlight the following, namely that:

43.1 one does not become a qualified cataloguer by virtue of a university qualification. It is a specialized skill and a considerable amount of time and effort is invested in an employee so that he/she ultimately acquires the specialized skill;

43.2 there are very few companies in the world that offer specialized services that Pilog does. The employees at Pilog gained specialized knowledge and skill to enable them to record data accurately and effectively;

43.3 while the training is continuous and ever changing, the basis, foundation and specialized methodology is absolutely critical and costly;

43.4 even though the employees come with some technical knowledge, they undergo extensive and costly training. It is only after extensive training of at least three years, would they be outsourced to a client. Dos Reis and Rautenbach were employed after having left secondary school and were upskilled as highly trained cataloguers;

43.5 the employees work their way up the ranks, that is from a junior cataloguer in training to senior cataloguer. In their training they are taught to optimize the amount of data captured, and maintain the quality of the data. They are taught the tricks of the trade to create descriptions which are searchable, accurate and unique to specific items and they are taught how to work in specific format;

43.6 the cataloguers are employed with long-term prospects in mind. Therefore they were required to agree to restraint of trade provisions in their employment agreement.

[44] I do not take issue with Pilog’s argument that it has its own Pilog software, ontology and taxonomy that, inter alia, assists it to organize and store data. Pilog explained that their intellectual property is premised on “how the massive data is concerted into and stored which ultimately results in complete description of all the various components used in a particular mining and industrial plant, from the smallest ball bearing to the largest smoke stack component and allowing access to the data concern for various uses by way of certain computing processes”.

[45] It was explained that specific forms, processes, methodologies and precedents are embedded in the software of the applicants and are used in the process of making use of Pilog’s Preferred Ontology.

[46] I am mindful that to qualify as confidential information, the three requirements have to be met, namely: it must be useful, it must not be in the public domain, and lastly, it must be known to a restricted number of people.¹⁴ It is evident that the applicants’ case is that Pilog’s Preferred Ontology and intellectual property constitute confidential information.

[47] However Glencore’s case, on its version, is that it only seeks the skill-set of the ex-employees. It holds the view that the skill of the cataloguers remains in the public domain. The cataloguing skill, whether being performed in Pilog’s business system, or Glencore’s business system, is not specialized in any way.

[48] Glencore, by way of illustration, explained that the skill required was to identify particular descriptive information of products required by a taxonomy (their size, their dimension, the material from which they are made, the suppliers which made them, whether they are ISO compliant or not and so forth) and to enter such information into the taxonomy. The information or items, parts, products and equipment which are cataloged into a taxonomy are all within the public domain. The precise information that should be collated is dictated by either Glencore’s or Pilog’s business system.

[49] The skill of finding that information and identifying same through internet research and the analysis of items, parts, products and equipment information provided by the suppliers is a skill that is in the public domain. It is the possession of these skills that define a cataloguer and it is for these skills (and not for the knowledge of the “Pilog Preferred Ontology” or any other confidential information that is embedded in or linked to it) that Glencore employed the ex-employees.

[50] I have noted the applicants’ contentions that they had taken years to train the ex-employees to gain skills where they could optimize the amount of data captured as well as the quality of data captured which includes the methods in which they should do so. They were trained with the necessary abbreviations and formats as well as the tricks of the trade to create descriptions which are searchable, accurate and unique to specific yet similar items.

[51] Having considered both versions and, in particular, the papers in respect of the specialized skill and knowledge, I find that Pilog has failed to distinguish to what extent the skill set of the ex-employees was not only specialized but, more importantly, integral to the confidential information and the intellectual property of Pilog.

[52] Ultimately the test is whether the interest relied upon is the own skill, the expertise and know-how that the employee acquired or a skill that is integral to the employer’s business secrets and methodologies.

[53] As stated above, a party that takes up employment with another entity and which entity is in competition with that party, does not automatically entitle such party to restraint relief. A distinction has to be made as to whether the employer has a proprietary interest in the skill set.

[54] I find guidance from our authorities that dealt with this specific issue. More particularly, in the Aranda Textile Mills¹⁵ matter the court stated:

“A man’s skills and abilities are part of himself and he cannot ordinarily be precluded from making use of them by a contract in restraint of trade. An employer who has been through the trouble and expense of training a workman in an established field of work and who has thereby provided the workman with the knowledge and the skills in the public domain, which the workman might not otherwise have gained, have an obvious interest in the retaining of the services of the workman. In the eye of the law, however such an interest is not in the nature of property in the hands of the employer. It affords the employer no proprietary interest in the workman, his know-how or skills. Such know-how and skills in the public domain become attributes of the workman himself. They do not belong in any way to the employer and the use thereof cannot be subjected to restriction by way of a restraint of trade provision. Such a restriction impending as it would on the workman’s ability to compete freely and fairly in the market place is unreasonable and contrary to public policy.”¹⁶

[55] At paragraph [10] the court in the Automotive Tooling matter¹⁷ acknowledged that in certain instances a distinction can be drawn between an employee’s own skill and the skill emanating from the employer’s trade secret. The court stated at paragraph [10]:

“In practice, the dividing line between the use by an employee of his own skill, knowledge, and experience which he cannot be restrained from using, and the use of his employer’s trade secrets, or confidential information, or other interest which he may not disclose if bound by restraint, is notoriously difficult to define. Similarly, it is difficult to determine if the process by which a machine is built depends in the main for its success on the utility of the steps of the process or on the skill and discretion of the operator. If the former, knowledge of the process is protectable (provided to be sufficiently secret). If it depends on the latter for its success, it is likely that the employer has no secret process; there is only a skilled employee whose skill he cannot restrain from utilizing after the termination of the employment. Where the line is to be drawn is often one of degree ….”

[56] Notably at paragraph [17], the court in the said matter found the appellant’s contention to be unpersuasive and stated that the multiplicity of skills and know-how required by employees to build these machines, does not make such skills and knowledge protectable. The quantum of accumulation of the non-predictable skills and knowledge does not make them protectable. The appellant had not distinguished these from the general skills and know-how in other similar engineering processes or methods. The appellant, in the said matter, explained that because the technical nature of some of the processes and methodologies are so integrally related to the tricks of the trade it is difficult to distinguish if a specific confidential skill and knowledge are the employees’ general skill and knowledge, was found to be unassailable.

[57] The test in distinguishing between general and special knowledge can only be resolved by balancing all the conflicting social and economic interests of two desperate desirable goals, the so called value judgment. On the one hand, the law encourages competition and supports an individual’s right to exploit his/her own skill and knowledge, on the other, the law should grant established businesses reasonable protection against unfair trade practices.¹⁸

[58] This court, in considering same, is required to have regard to two principle policy considerations in determining the reasonableness of the restraint. The first is that public interest requires that parties should comply with their contractual obligations and the second is that persons are required to be economically active.¹⁹

[59] The freedom of trade remains one of the ideals which should be given due consideration and public policy as determined. In the Atlas Organic Fertilizers matter²⁰, the court cited with approval various foreign authorities that proffered the point that an employee, upon the termination of his employment, can be free to draw up on his general knowledge, experience, memory and skill, howsoever gained, provided he does not use, disclose or impinge upon any of the secret processes or business secret of his former employer.²¹

[60] Pilog, during the hearing, merely advanced an argument that the employees’ skill set, and know-how are integrally linked to the employer’s proprietary interest without illustrating how such skill-set is linked to Pilog’s confidential business system.

CONCLUSION

[61] Consequently, I find that Glencore, on their papers, have shown that the restraint was unreasonable in the circumstances. In the premises this application cannot succeed.

COSTS

[62] In exercising my judicial discretion, I apply the general principle, that costs should follow the result. Both parties, in argument, did not proffer a contrary view. I therefore find that the applicants be ordered to pay the costs, which includes the costs of two counsel.

_____________________________

H KOOVERJIE

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

Appearances:

Counsel for the applicants: Adv R Michau SC

Adv JA Booyse

Instructed by: Barnard Incorporated

Counsel for the first to sixth respondents: Adv AJ D’Oliveira

Instructed by: Cliffe Dekker Hofmeyr Incorporated

Counsel for the seventh respondent: Adv HW van Eetveldt (preparation of heads)

Adv AJ D’Oliveira (argument)

Instructed by: Jasper van der Westhuizen & Bodenstein Incorporated

Date heard: 7 June 2023

Date of Judgment: 19 June 2023