believing this to be the case. See Roamer Watch Co SA Ltd and another v African Textile Distributors
1980 (2) SA 254 (W) at 2723.
15.3 The only way in which that document or thing can be preserved or irreparable harm prevented is by the
attachment thereof pendente lite, and that the court order would be defeated if notice thereof were to be
given to the respondent. See Cerebos Foods (supra) at 164E and Sun World (supra) at 173F.
[16] I am satisfied that the applicants have established prima facie that the second respondent has possession of
the Lotus Notes System, having regard in particular to the allegation that because the respondents are
soliciting and servicing the first applicant's customers (an allegation which I also find to have been established
prima facie), it is inevitable that they must have taken copies or backups of the Lotus Notes System with them
when they left the employ of the first applicant and started the new business of the second respondent.
[17] Mr MacWilliam contended, correctly in my view, that a court could infer a real or wellgrounded apprehension of
harm from unlawful conduct on the part of a respondent. Such unlawful conduct is, in my view, prima facie
established. See A Becker and Co (Pty) Ltd v Becker and others 1981 (3) SA 406 (A). See also Telefund Raisers CC
v Isaacs and others 1998 (1) SA 521 (C).
In the former case, Muller JA, at 414G415B, said:
"In my opinion the judgment in the English case of Trego v Hunt (supra) is correct. If a seller disposes of the
goodwill of a business he is not allowed thereafter to act contrary to the sale. In this regard I agree with what is
stated by VAN HEERDEN AJA in his separate judgment in these proceedings.
In Corbin on Contracts vol 6 A s 1386 the following is stated:
'When a business is sold with its goodwill, but without any express promise not to compete, the seller is
privileged to open up a new business in competition with the buyer; but he is under obligation not to solicit
his former customers or to conduct his business under such a name and in such a manner as to deprive the
buyer of the "goodwill" that he paid for.'
In support of this passage Corbin refers (note 26) to the case of Bergum v Weber 288 P 2d 623, 136 Cal App 2d
389 (1955), a judgment of the District Court of Appeal, Second District, Division 3, California, and restates the
facts of that case as follows:
'The defendant sold his business and goodwill to the plaintiff and promised not to open a competing business
within one year. After expiration of the year, the defendant opened a competing business and injured the
plaintiff by active solicitation of his former customers. The opening of the competing business was lawful;
but the solicitation of former customers was not. One who is paid for his "goodwill" is under a legal duty not
to steal it back by
Page 202 of [2001] 3 All SA 194 (C)
solicitation. The court said that there is an "implied promise" not to "deprive the other of the fruits of his
bargain", and that this is not negatived by or inconsistent with the express promise not to open a competing
business for one year. The decision and the reasoning are sound. This is true, whether we use the device of
an "implied promise" or not.' "
[18] In the Telefund case (supra) Thring J said at 523GJ:
"The applicant suspected that, when they left its service, the first, second and third respondents took with them to
the fourth respondent copies of certain socalled 'client lists', allegedly the property of the applicant. These are
lists on which the applicant's salespersons record certain information about the applicant's customers to whom
they have sold baskets. The information includes the name and telephone number of the customer concerned and,
very often, also the name of the 'contact person' on the customer's staff with whom the particular salesperson
usually deals. As I have said, it is alleged by the applicant that a large proportion of its business consists of repeat
orders. Also frequently recorded on the customer lists are the dates or months of previous sales to a particular
customer and when that customer is likely to require another basket in the future. The applicant had reason to
believe, which belief subsequently turned out to be wellfounded, that the information recorded on its customer
lists was being used by the first, second and third respondents to generate business for the fourth respondent."
[19] Accordingly, in my view, the applicants satisfied the requisites for an ex parte interim attachment order in
respect of the Lotus Notes system, in that I am satisfied, on a prima facie basis, that:
19.1 The first applicant has a real or personal interest in the said system;
19.2 The second respondent has such system in its possession, alternatively the applicants have good
grounds for believing this to be the case; and
19.3 Such system may be removed or deleted from the second respondent's computer system, if notice was
given.
[20] In the circumstances, I am not prepared to discharge the rule in regard to the attachment of the Lotus Notes
System, as requested by Mr Hodes.
[21] However, I am not satisfied that the applicants have made out a proper case for the interim attachment of any
of the other items reflected in Part A of the schedule of listed items. I say this because I am not satisfied, even
on a prima facie basis, that the applicants have established that any of the respondents are in possession of
such other documents or that there are good grounds for believing this to be the case.
[22] In the result, I intend to discharge the rule in regard to all of the documents reflected in Part A of the schedule
of listed items, other than the Lotus Notes System.
[23] This brings me to the relief which was obtained in Part B of the schedule of listed items. This was indeed true
Anton Piller relief.