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.
Personally, I find these obser-vations inappropriate. faried chilwan first respondent. Although it appears in the replying affidavit, it is, as I have indicated, to a large extent common cause, or it is.. In these circumstances it seems to me that it has not been shown that it would be contrary to public policy to hold Basson to the terms of his agreement with the Chilwans and to enforce compliance with those terms.
Respondent, who is not an unsophisticated Die rede daarvoor is dat die produksie van die busse was aan my oorgelaat, en in elk geval was hy voor September baie selde daar om geraad-pleeg te word.
They were bus body build- -ers in Port Elizabeth. Although in Mason v Provident Clothing and Supply Co Ltd supra and Herbert Morris Ltd v Saxelby supra the Court seemed to hold that the onus of proving reasonableness inter partes rested on the party seeking to enforce the restraint clause while the onus of proving that the clause was contrary to public policy rested on the party alleging it, the decision in Esso Petroleum Co Ltd v Harper's Ga-rage. In die lig van bostaande is enkele opmerk-ings aangewese.
Weereens is ek bereid om, soos Eksteen AR, ten gunste van die Chilwans te aanvaar dat daar nie 'n numerus clausus van beskermingswaardige belange bestaan nie en dat die begrip "redelikheid" in ons reg soepel genoeg is om ook ander gevalle te behels waar 'n andersoortige belang van die een party swaarder mag weeg as die ooreenstemmende beletsel van die ander. There can be no justification, therefore, in the.. Although it appears in the replying affidavit, it is, as I have indicated, to a large extent common cause, or it is.
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. Ardiel Chilwan informed of his daily activities and the way in which he assigned duties to his workmen.
All that was required would be to make an order in terms. Presies wat daaronder verstaan moet. This brochure reflects that Coach-Tech undertakes to build three types.. Applying these principles in the pre-sent matter I shall not have regard to those allegations to which I have referred and which were raised for the first time in the replying affidavits.
sedick chilwan second. 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. Dit gaan hier, soos in die Maqna Alloys -saak, passim , herhaaldelik beklemtoon word, om die afdwingbaarheid van 'n bepaling in 'n ooreenkoms wat andersins geldig is.
Van oudsher is aanvaar dat die blote uitskakeling van mededinging as sodanig nie die soort belang is wat, in ' n geval soos hierdie, deur ' n bekamping van handelsvryheid na afloop van die ooreenkoms beskerm kan word nie; oftewel, dat dit nie opweeg teen die nadeel wat die ander party ly as hy sy beroep nie vryelik kan beoefen nie vgl.
In essence, the Chilwans are seeking. A New Breeze, het jongerenkunstproject van JOC Ieper pakt dit najaar uit met ‘I Think I Might Be Lost’. There can be no justification, therefore, in the.
Basson het sy vakleerlingskap as 'n plaatmetaal-werker in voltooi. Die uitspraak van Eksteen AR het ek ter insae gehad.
In the result I would grant the condonation requested by Basson and order him to pay the costs incurred by that application. This close corporation "Coach-Tech".
Die partye se eie beskouing, soos in die ooreenkoms verwoord, oor wat redelik is, kan nooit deurslaggewend wees nie.
It is not contested that between the From the agreement itself it appears that du-ring the negotiations it was contemplated by the parties that the proposed business would be conducted as a close corporation in which the four Chilwans and Basson would have an equal interest. It is grounded therefore not only in law but also in morality.
The restraint clause which gives rise to the cen-tral issue in this case is Clause 11 which reads as follows: Earlier decisions in our own Courts tended by and large to follow the English law in this respect to a greater or lesser extent.
The negotiations between Basson and the Chilwans aimed at the establishment of a joint venture to construct buses on a large scale would seem to have commenced late in and to have been concluded early in Where parties to an agreement in restraint of trade contract on a basis of equality of bargaining power, without one party being inhibited by what might be regarded as a position of inferiority as against the other party, Courts,it has been held, will be less inclined to find that a clause, which may be considered to work unreasonably inter partes , is contrary to public policy and.
But in any event the facts in the example differ in one crucially important respect from the facts in the present case.
In an answering affidavit Rust concedes that this was not the truth; that his firm was conducting a feasibi-lity study for the building of luxury buses for tour operators in South Africa, and that he..
Coach-Tech is 2 gestig om daaraan gestalte te gee.
To seek to protect the firm which as I have indicated was in the nature of a partnership, from competition by him in all the circumstances was therefore a legitimate and reasonable claim for the Chilwans to pursue.
Die hof a quo bevind dat Basson se ontkenning dat Neulux met Coach-Tech sou meeding, nie 'n egte geskil geskep het nie - 'n bevinding wat nie werklik in betoog voor hierdie hof aangeveg is nie, en wat vir doeleindes van die beoordeling van die vraagstukke in hierdie saak geredelik aanvaar kan word.
Twaalf nuwe busse is mettertyd vervaardig, ander is herstel en opgeknap en nog ' n paar was in aanbou. De voorstelling is gemaakt door vijf jonge meisjes uit de. Maar daar eindig dit. This only lasted for a year.in the supreme court of south africa (appellate division) in the matter between: willem basson appellant. It was held that in our law such agreements were prima facie enforceable and that an onus rested on the party seeking to avoid the restraint clause to prove that its enforcement would be contrary to the public interest.
The restraints imposed upon Willem in terms of this clause 11 shall be deemed in respect of each part thereof to be separate and separa-tely enforceable in the widest sense from the other parts thereof and the invalidity or unenforce-ability of any clause or part there-of shall not in any way affect the validity or enforceability of any other part of the clause or the agreement.
The covenantor is not so bound, however, if the restraint is unreasonable, because public policy discountenances unreasonable restrictions on people's freedom of trade.
The skills required for the comparatively "simple" methods of constructing busses, the making of moulds for casting glass-. and. It is not necessary to consider the pros and cons of this dispute They rather tend to show that Basson was given a pretty free hand in running the business, and that he was very much the production manager and a "director" of the firm, not only in name but also in deed.
Where the parties contract on an equal footing, as was the case in the New United Yeast Distributors case, supra the restraint has, in the past, normally been upheld. They are simply bent on putting Basson's superior skills out of action.
The Court a quo found that in arguing the matter before it the Chilwans did not "seek to rely on the protection of any trade secrets. Die aangewese wyse waarop so 'n belang ten beste beskerm kan word, is stellig om die ander party kontraktueel vir 'n bepaalde termyn te bind - in welke. Tradisioneel word dit beskou as die twee tipes belang wat by uitstek in 'n geval soos die huidige beskermingswaardig is vgl.