in Faccenda Chicken v Fowler [1986] 1 All ER 617 (CA), where it will be remembered that Neill LJ said that, in order to
determine whether information could be classified as so confidential that an employee should not be allowed to use or
disclose it after termination of the contract of employment, it was necessary to consider all of the circumstances of
the particular case, but the following were among those to which particular attention should be paid:
(1)
the nature of the employment: employment in a capacity where confidential information is habitually handled
may impose a high obligation of confidentiality, because the employee could be expected to realise its sensitive
nature to a greater extent than if he were employed in a capacity where such material reached him only
occasionally;
(2)
the nature of the information itself: in order to be protected, the information must be of a highly confidential
character no other information could be protected even by a covenant in restraint of trade;
(3)
whether the employer impressed on the employee the confidentiality of the information;
(4)
whether the information can easily be isolated from other information which the employee is free to use or
disclose.
The result of this is that if information is not categorised as confidential under Neill LJ's criteria, then it forms part of
the employee's general knowledge and skill, which he is free to use for his own benefit or for the benefit of others
after the termination of the contract of employment . . ."
In the present matter there is, in my view, no evidence to indicate that the applicant obtained any socalled
springboard and to prove the nature of the alleged springboard or its duration. A springboard must be proved
View Parallel Citation
and cannot simply be alleged for it is an important part of respondents' case to satisfy the court as to the period for
which it should be entitled to prevent the respondent from competing with it. (See: Harvey Tiling Co (Pty) Ltd v
Rodomac (Pty) Ltd and another 1977 (1) SA 316 (T); Aercrete South Africa (Pty) Ltd and another v Skema Engineering Co
(Pty) Ltd and others 1984 (4) SA 814 (D)).
It is also accepted that a springboard is of very limited duration because its effectiveness will diminish with the
passage of time and ultimately vanish entirely. (See: Multi Tube Systems (Pty) Ltd v Pointing and others
1984 (3) SA 182 (D) at 189FI; Knox D'Arcy Ltd and others v Jamieson and others 1992 (3) SA 520 (W) at 528IJ).
In the present matter no evidence was called by respondents on the counterapplication pertaining to the
alleged misuse of confidential information. Where the papers reflect disputes of fact, which cannot be resolved by
assessing the inherent probabilities, the issues must be decided on the basis of those facts which are either
common cause or are not disputed by the present applicant, and where there are disputes of fact the facts as
deposed to by or on behalf of
Page 160 of [2001] 2 All SA 126 (T)
the present applicant (see: Plascon Evans Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd (supra) at 634635).
The respondents contend that the manual is a confidential document and seek to draw the inference that
applicant wishes to employ precisely the same selling strategy and direct its product at precisely the same market
as that addressed by the first respondent and its local distributors. Applicant denies these allegations.
Respondents furnish no evidence as to the respects in which the manual is a confidential document or in what
respects they consider the information contained in the document to be confidential information. Respondents also
do not indicate the selling strategy reflected in the document and from a perusal of the document no information is
contained pertaining to respondents' selling strategies. Respondents allege a springboard of six months but no
basis is given for the alleged springboard.
It appears that the manual was originally provided to Georgia Weinrich, presently applicant's Marketing Manager,
at a time when she was employed by third respondent. The manual was furnished without any indication that it
was to be kept confidential. The information contained in the manual is freely available and in the public domain.
The information contained in the manual was intended to be disseminated to persons interested in Augmentin and
in effect is a summary of information concerning Augmentin which has been disseminated in publications, at
symposia and in reference works. The publication is titled "Augmentin The Product" and contains information which
is already in the public domain.
Taking all these circumstances into consideration, in my view, the respondents failed to prove:
that the information in the selling manual was confidential;
that Weinrich was not entitled to take the manual with her when she left the employment of third respondent;
that Weinrich has used the information in the manual in any way which is detrimental to the interests of third
respondent; or
that the applicant has obtained any benefit or springboard from any of the information which is contained in the
View Parallel Citation
manual.
Consequently in my judgment respondents are not entitled to the relief pertaining to unlawful competition.
The order I therefore make is as follows: