- Posted On 20.01.2018
in the supreme court of south africa (appellate division) in the matter between: willem basson appellant. and. faried chilwan first respondent. sedick chilwan second. A New Breeze, het jongerenkunstproject van JOC Ieper pakt dit najaar uit met ‘I Think I Might Be Lost’. De voorstelling is gemaakt door vijf jonge meisjes uit de.
He then went to work for the Sentraal-Suid Kooperasie in Swellendam as their workshop manager. Basson apparently proffered no explanation for his conduct when confronted with these complaints on 4 September So gesien, dien die beperking ter beskerming van Coach-Tech se werfkrag oftewel die "goodwill" wat dit opgebou het.
The impact of that observation in the circumstances of the present case is not detracted from, I consider, by the fact that the Chilwans and Basson had equal bargaining power, nor by the fact that Basson's position in the venture was that of an equal partner, and not an employee.
Where parties contract on a basis of equality of bargaining power.. Where public interest is the touchstone, and where public interest may change from time to time, there can be no numerus clausus of the circumstances in which a Court would consider a restraint on the freedom to trade as being unreasonable.
But the Chilwans could not appropriate Basson's expertise to themselves or to Coach-Tech, as if it were a freely disposable commodity, by investing their money in the business. Equality of bargaining power cannot affect the nature of the onus; it is relevant only as one of the multitude of factors to be taken into account in the enquiry as to the reasonableness of the restraint.
Coach-Tech and he seems to imply that for this reason Neulux would not really be in competition with Coach- Tech. and. They look to protect a proprietary interest.
sedick chilwan second. Respondent is ordered to pay Applicants' costs, such costs to include the costs of two counsel.
He agreed, however, to remain on as production manager un-til he had completed two coaches which were under construction. He does proffer an explanation in his answering affidavit. Die redelikheid al dan nie van die. His wealth of experience and skill in the bus construction industry would be an important, if not an.
He alleges that he was not given a chance to explain. If however one has regard to the whole agreement it would seem that it may well be seen as an association agree-ment as provided for in section 44 of the Close Corporations Act No 69 of "the Act". faried chilwan first respondent. He finally left Coach-Tech's employ on 7 or 8 January Basson had no financial responsibility towards the business -even his R20 contribution required by clause 3.
Daar was geen versoek aan die hof a quo , of aan hierdie hof, om die beperking na sy omvang of tydperk in te kort nie.
The Chilwans complained of Basson using the firm's employees for "doing private work for his own account" more particu-larly for a Mr Johan Fourie, and for not liasing with Ardiel Chilwan in concluding business deals on behalf of Coach-Tech. With the public interest as the touchstone the Court will be called upon to decide whether in all the circumstances of the case it has been shown that the restraint clause should properly be regarded as unreasonable.
This seems to me to be a reasonable and legitimate consideration. So ook 'n fabriek met kapitaal wat deur die Chilwans voorgeskiet is.
Any unreasonable restriction on such freedom would generally be regarded as contrary to public policy. They also attach to their replying affidavits an affidavit by one Joubert who alleges that during or Basson work-ed for a firm called Gelding Investments in the Strand, and that thereafter he established a firm called Basson's Crafts in Mossel Bay where he built boats and made glass-fibre canopies.
The incidence of the onus in a case concerning the enforceability of a contractual provision in restraint of trade does not appear to me in principle to entail any greater or more significant consequences than in any other civil case in general.
Tradisioneel word dit beskou as die twee tipes belang wat by uitstek in 'n geval soos die huidige beskermingswaardig is vgl. Basson was nie 'n.
The difference relates to the area of the restraint, and it is a difference which serves to focus the attention on what I consider to be the single most important, and indeed decisive, feature pointing to the unreason-ableness of the restraint in the present case.
A New Breeze, het jongerenkunstproject van JOC Ieper pakt dit najaar uit met ‘I Think I Might Be Lost’.
Dowling R het die beding onderskei van een wat na afloop van 'n diensverhouding 'n beperking op 'n werknemer se, handelsvryheid plaas. Die vierde respondent was verantwoordelik vir die administrasie.
In relation to such cases it has often been said in the authorities that a man's skills and abilities are a part of himself and that he cannot ordinarily be precluded from making use of them by a contract in restraint of trade. Daarvoor het hy 'n salaris en die gebruik van 'n motor ontvang. De voorstelling is gemaakt door vijf jonge meisjes uit de.
They were bus body build- -ers in Port Elizabeth.
It is not contested that between the Op dieselfde wyse sou die Chilwans Basson se betrokkenheid by Coach-Tech -en sy onbetrokkenheid by enige mededinger - kon probeer bewerkstellig het "in building up a sound reputation for the fledgling firm in the early years of its existence", soos Eksteen AR dit stel.in the supreme court of south africa (appellate division) in the matter between: willem basson appellant.
Basson was to be the production manager responsible for the design and layout of the factory and for the design and construction of buses. In the case of a sale of a business, its goodwill is an existing asset which is part of the merx which passes from the seller to the buyer; the value of the goodwill is necessarily reflected in the price paid by the buyer and received by the seller.
In the present case there was no goodwill in existence when the restraint was imposed.
In these cases it was held that agreements in restraint of trade were not void ab initio but binding on the basis of pacta sunt servanda unless the party seeking to avoid them could show.. Basson's possible misuse of his knowledge of Coach-Tech's trade secrets, methods of production, pricing structures, and clientele to their detriment. Is daar 'n belang van die een party wat na afloop van die ooreenkoms beskerming verdien?
En dat Coach-Tech by Basson se uittrede reeds 'n aansienlike werfkrag opgebou het, ly geen twyfel nie. In my opinion, however, that situation is fundamentally and vitally different from the situation with which we are dealing in the present case.
The Chilwans alleged that shortly after Basson left Coach-Tech his brother Andries Basson, his son Leon Basson, and an auto-electrician called Hayman, all of whom had been employed by Coach-Tech, left and went to work for Engineering Agencies. The restraint clause provided i a that Basson would not, after termination of his association with Coach-Tech, "offer employment to or cause to be employed by any person who.