The Gauteng Local Division partially enforced a restraint of trade, having particular regard to the scope of an employee’s work and knowledge and use of a customer list belonging to his former employer, rather than the geographical application and the duration of the restraint per se.
The Applicant runs a country-wide business of repairing breaks, faults and chips in automotive glass. Its business is not limited to repairing windscreens, as it includes tail lights, automotive headlights and lenses.
The Respondent was employed by the Applicant from 13 June 2012 to 31 March 2016 as a glass repair technician, and his employment contract included a restraint clause (“the Restraint”).
The Restraint was triggered when the Respondent resigned from the Applicant’s employ and, thereafter, took up employment as a manager of one of the Applicant’s competitors.
Accepting that the Respondent’s skills as a glass repair technician could not be unlearnt, and that public policy would demand that he be entitled to practise these skills, the Court held that the costs of training the Respondent in casu were not a protectable interest.
However, it was common cause that the Respondent had access to the Applicant’s customer list and that, in the course of his employment with the Applicant, he had contact with the customers thereon.
As regards the foregoing, in light of the Respondent’s onus to avoid the impact of the Restraint by showing that the enforcement thereof (or a portion thereof) would be unreasonable or against public policy, the Court held that, “it was incumbent upon [the Respondent] 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 new place of employment, or that he could not use his knowledge of the customers to the advantage of his present employer.”
Gautschi AJ also held that 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”. As such, evidence as regards the remaining length of restraints does not go towards discharging the foresaid onus, and enforcement of a restraint does not “become academic merely because the term of the restraint is nearly at an end”.
Albeit that the Gautschi AJ found the Restraint to be overbroad, in that the geographical area of its operation was too wide, it was held that a reduction of the geographical area of its operation would not have assisted the Respondent.
The Respondent failed to discharge his onus to show that the enforcement of the Restraint (or a portion thereof) was unreasonable or against public policy. However, as the Respondents work whilst employed by the Applicant was apparently limited to glass repair, Gautschi AJ’s order allowed the Respondent to remain in the competitor’s employ, provided that, for the remainder of the restraint period, his work was limited to dent removal type work (i.e. work which he did not do whilst employed by the Applicant).
When trying to enforce a restraint of trade against a former employee in Court, the former employee seeking to resist the enforcement bears the onus of showing that the enforcement thereof (or a portion thereof) is unreasonable or against public policy, and the fact that the relevant restraint period is nearly at its end will not, in and of itself, assist the former employee.
Restraints which are unreasonably overbroad in their area of operation won’t necessarily be rendered unenforceable where reducing the area of operation, to make it reasonable, would not assist the former employee.