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"As a general rule, every person is entitled freely to carry on his trade or business in competition with his rivals. But
the competition must remain within lawful bounds. If it is carried on unlawfully in the sense that it involves a wrongful
interference with another's rights as a trader, that constitutes an injuria for which the Aquilian action lies if it has
directly resulted in loss. (See: Matthews and others v Young 1922 AD 492 at 507; Geary and Son (Pty) Ltd v Gove
1964 (1) SA 434 (A) at 440441.)"
In order to succeed in an action based on unfair competition, the plaintiff must establish all the requisites of Aquilian
liability, including proof that the defendant has committed a wrongful act. In such a case the unlawfulness which is a
requisite of Aquilian liability may fall into a category of clearly recognised illegality, as in the illustrations given by
Corbett J in Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968 (1) SA 209 (C)
at 216FH, namely trading in convention of an express statutory prohibition; the making of fraudulent
misrepresentations by the rival trader as to his own business; the passing off by a rival trader of his goods or
business as being that of his competitor; the publication by the rival trader of injurious falsehoods concerning his
competitor's business; and the employment of physical assaults and intimidation designed to prevent a competitor
from pursuing his trade. But it is not limited to unlawfulness of that kind. In the Dun and Bradstreet case (supra) at
218 Corbett J referred to the fact that in the cases of Geary and Son (Pty) Ltd v Gove (supra) and Combrinck v De Kock
(1887) 5 SC 405 emphasis was placed upon criteria such as fairness and honesty in competition and said:
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"Fairness and honesty are themselves somewhat vague and elastic terms but, while they may not provide a scientific
or indeed infallible guide in all cases to the limits of lawful competition, they are relevant criteria which have been
used in the past and which, in my view, may be used in the future in the development of the law relating to
competition in trade."
See also Stellenbosch Wine Trust Ltd and another v Oude Meester Group Ltd; Oude Meester Group Ltd v Stellenbosch
Wine Trust Ltd and another 1972 (3) SA 152 (C) at 161GH. In judging of fairness and honesty, regard is had to boni
mores and to the general sense of justice of the community (cf Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano
(Pty) Ltd and others 1981 (2) SA 173 (T) at 188189 and the cases there cited, and Lorimar Productions Inc and
others v Sterling Clothing Manufacturers (Pty) Ltd; Lorimar Productions Inc and others v Dallas Restaurant
1981 (3) SA 1129 (T) at 11521153). Van der Merwe and Olivier, Die Onregmatige Daad in die SuidAfrikaanse Reg 5 ed
at 58 note 95 rightly emphasise that
" 'die regsgevoel van die gemeenskap' opgevat moet word as die regsgevoel van die gemeenskap se
regsbeleidmakers, soos Wetgewer en Regter."
While fairness and honesty are relevant criteria in deciding whether competition is unfair, they are not the only
criteria. As pointed out in the Lorimar Productions case ubi cit, questions of public policy may be important in a
particular case, eg the importance of a free market and of competition in our economic system.
In the present case it is the case for the respondents that the applicant is competing unlawfully with it by
allegedly misusing confidential information in the form of a sales manual. This claim arises out of the fact that the
applicant came into possession of a copy of the third respondent's selling manual used by its representatives for
the purposes of and in connection with the promotion and sale of the Augmentin antibiotic.
It is incumbent on respondents, in my view, to identify with some particularity the nature of the trade secrets or
the confidential information relied upon. The respondents, however, are vague and general in
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their allegations and do not identify why particular items of information should be considered confidential or
constitute a trade secret.
In Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203; [1963] 3 All ER 413 at 414 Lord
Green MR described confidential information as follows:
"The information, to be confidential, must, I apprehend, apart from contract, have the necessary quality of confidence
about it, namely, it must be something which is not public property and public knowledge."
Coleman, The Legal Protection of Trade Secrets, Sweet and Maxwell 1992 at 7 suggests, with reference to Thomas
Marshall v Guinle [1978] 3 WLR 116, that there are four elements which may assist the court in identifying
confidential information in a trade setting:
"(1) the information must be information the release of which the owner believes would be injurious to him or of
advantage to his rivals or others; (2) the owner must believe the information is confidential or secret, that is, not
already in the public domain; (3) the owner's belief under the previous two heads must be reasonable; (4) the
information must be judged in the light of the usages and practices of the particular industry concerned."
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In the present matter where the manual came into the possession of the applicant through the third respondent's
former employee, the following passage from Coleman, The Legal Protection of Trade Secrets (supra) a t 6 0 i s
instructive in distinguishing information an exemployee may use after his or her employment is terminated from
that which he or she may not use:
"The latest attempt to draw the line between protectable and nonprotectable information in English law is to be found