After leaving the Applicant's employ the first respondent took up an appointment as Chief Executive Officer of the second respondent who's company, a competitor of the Applicant was established at approximately the same time as first respondent's resignation from the Applicant's company. The Applicant had not sought to bar the respondent entirely from a further line of work. The honourable Judge, on a notice of motion* was tasked with determining interdictory relief and confidentiality in terms of - restraint in lieu of approaching, canvassing, soliciting customers or people and from divulging, disclosing, confidential information to any third party. Both companies [and a list of local parallel companies including international Pharma companies] manufactured similar Pharma products, operated pharmaceutical outlet chains and owned health shops specialising in similar alternative medicine products who in addition had numerous medical practitioners prescribing, to whom they supplied products.
Confidentiality Specifications not on the Pleadings
On all two comprehensive points the respondent managed to lay a convincing case before the honourable Judge^ - i) the product ranges were comparable; ii) the products were manufactured by a number of producers both locally and abroad; iii) the products were sold by stores and chain stores throughout the Republic via primary businesses and multiple producers; iv) this gave shoppers a choice; v) not a single customer was lost from the Applicant, barring a close friend of the respondent who followed him to his new adventure; vi) the compound composition of remedies were commonly known and in the result a variety of refinements of many generic products were available to the public; vii) the principle method by which a manufacturer distinguished its products from its competitors was through price and specific branding.
The confidentiality undertakings were furnished by the Applicant's company in order to strategically protect a legitimate business and avoid financial loss to the company. An intricate set of confidentiality clauses were originally set up and after a commissioned salary review [set up by an independant consultant] the directors of the company belonging to the Applicant were notified and acquiesced to the increase of salary. A new contract was signed without the detailed original clauses of confidentiality i.e. sans the 'non-competition and non-solicitation clauses'. The learned Judge remarked on the fact that the directors were lulled into understanding that the only material change being effected to the respondent's terms of employment was his remuneration, with shareholder approval. The learned Judge, at para  and  cited Amler^ where confidentiality was explained as - a) useful; b) known to a restricted number of persons; c) of economic value to the plaintiff. In conclusion, the honourable court found there had been no breach on any of the points in the pleadings which in addition did not specify which confidentiality clause the Applicant required protection.
* Vide Coyne Healthcare (Pty) Ltd vs K G Coyne  ZAWCHC 54; Amler's Precedents of Pleadings 9th ed [Lexis Nexis 2018] sets forth a five point information base; ^ Briefly enumerated by Company Law Today. Company Law Today comments - The shareholders had not done their homework and checked the original agreement - which by the way, was set up in such a way as to protect the shareholders - and now it was immaterial if the Applicant was estopped or not from his assertion for the original agreement. As an aside, we buy our computer paper from Pic 'n Pay because that particular outlet's branding and pricing appeals to us over the others.