Browsing: customer connections

Sa A Johannesburg beauty salon obtained a court order preventing a former beauty therapist from working within 20km of the business until June 2027. The therapist claimed the restraint was signed under duress, was oppressive, and threatened her ability to earn a living. Acting Judge Nxumalo found the salon had a protectable interest in its customer relationships, but reduced the restraint from 50km to 20km. A beauty therapist who left her job and started offering similar services from a competing salon has been ordered to stop operating within 20km of her former employer’s Sandton premises until June 2027. Acting Judge NS Nxumalo, sitting in the High Court in Johannesburg, found that Esther’s Secret Garden Beauty and Salon had a legitimate and protectable interest in its customer connections and confidential business information. The judge, however, rejected the salon’s attempt to enforce a 50km restraint of trade, finding that the radius was too wide. The restraint was instead reduced to 20km. Therapist left salon and opened competing business Nokuphila Nkala had been employed by Esther’s Secret Garden Beauty and Salon as a beauty therapist and nail technician under an employment contract concluded on 16 November 2023. The contract contained a restraint of trade clause preventing her, for 12 months after the termination of her employment, from directly or indirectly being involved in a competing business or soliciting the salon’s customers within a 50km radius. It also contained confidentiality provisions covering information relating to the salon’s business. Nkala resigned on 2 June 2026 and her employment ended on 25 June. Shortly afterwards, the salon discovered that she was operating a beauty and nail treatment business from the premises of X-clusive Image Face and Body Studio, approximately 5.7km from the salon. The salon approached Nkala and demanded that she comply with the restraint and confidentiality provisions, but she refused. The salon then approached the High Court, which found that the matter was urgent because breaches of restraint agreements generally require swift intervention. Therapist challenged the restraint Nkala opposed the application, arguing that the restraint had been concluded under duress and against the backdrop of a significant inequality in bargaining power. She also argued that she had been economically dependent on the salon to support herself and her two minor sons and that the salon had no protectable interest justifying the restraint. Her case was that enforcing the restraint would be contrary to public policy and, alternatively, that the 50km restriction was wider than necessary. Judge Nxumalo rejected the duress argument, finding that there was no evidence showing that the employment contract had been signed under duress. The judge said economic dependence did not, by itself, amount to a threat of considerable harm required to establish duress. “Hard bargaining is therefore not the equivalent of duress,” the judgment states, noting that the employment contract had been signed in November 2023 but Nkala had not raised concerns about duress when she resigned or in correspondence from her attorneys. The judge also noted that the salon had previously suffered when two former employees left and established a competing business only 3.8km away. Salon proved its customers were a protectable interest The central dispute concerned whether the salon had an interest that justified restraining Nkala from competing with it. The salon argued that Nkala had acquired detailed knowledge of its customers, including their identities and contact details, while also developing relationships with them during her employment. Nkala acknowledged that some of the customers she serviced had been introduced to her through her employment, although she disputed having developed close relationships with them. She also admitted having access to the salon’s Fresha booking system and knowledge of its booking methods, including information about customers and their preferred treatments. Judge Nxumalo found that this information was acquired during Nkala’s employment and included knowledge of customer booking patterns and treatment preferences. “I am satisfied, having regard to the industry in which the applicant trades and the facts of this matter, that the trade connections and customer information … constitutes a protectable interest,” the judge found. The judgment recognised that beauty therapists and nail technicians often develop close relationships with customers and that customers may follow a particular therapist when that therapist moves to another business. The judge found that this risk was particularly significant because Nkala had started operating only a short distance from the salon. Former clients remained the salon’s clients Nkala argued that some of the customers she serviced had been her clients before she joined the salon and that she should therefore be entitled to continue servicing them. Judge Nxumalo rejected that argument. The judge found that even customers who had previously known Nkala could become part of the employer’s customer goodwill through the relationship developed during her employment. The salon’s premises, equipment and products had also contributed to the retention of customers, including some whom Nkala regarded as pre-existing clients. “It was the first respondent’s employment with the applicant that allowed her to consolidate or even strengthen the prior rapport which she had with her clients,” Judge Nxumalo found. The judge added that customers who moved to the salon with Nkala, or who were sourced by her during her employment, remained the salon’s customers. “There is no basis either in law or fact entitling the first respondent to claim such clients as her clients,” the judgment states. The judge consequently found that Nkala had failed to establish that the restraint was unreasonable or unduly oppressive. Fifty kilometres was too wide Although the salon succeeded in establishing a protectable interest, it did not secure the full restraint contained in the employment contract. Judge Nxumalo found that the 50km radius was unreasonable in the circumstances. The contract allowed the restraint to be enforced in separate components, making it possible for the judge to reduce the geographical restriction rather than reject the restraint altogether. The salon had asked the court to enforce a minimum 20km radius if the 50km restriction was found to be too wide. Judge Nxumalo accepted that proposal, finding that 20km would adequately protect the salon while still allowing Nkala to earn an income elsewhere. The judge stressed that Nkala was not being prevented from pursuing her career as a beauty therapist or nail technician. “She is merely restricted from doing so within the radius that the applicant operates in and this is for a limited period,” the judgment states. The court also noted that Nkala had qualifications in the field, obtained in 2014, and had worked as a beauty therapist and nail technician since 2015. Restraint runs until June 2027 The court ordered that Nkala remain restrained from competing with Esther’s Secret Garden Beauty and Salon within 20km of its business premises for the remainder of the restraint period, ending on 25 June 2027. The order prevents her from being directly or indirectly involved in a competing business within that radius, including the business operated by X-clusive Image Face and Body Studio. She is also prohibited from canvassing, soliciting, interfering with or enticing away the salon’s clients, customers or contractors. The order further prohibits her from supplying or making available material, services or information forming part of the salon’s business, including confidential information, trade secrets, customer lists, customer information and pricing information. Nkala was ordered to hand over any customer lists, records or confidential information belonging to the salon within five days of being served with the order and to destroy copies of those records. She was also ordered to pay the salon’s costs on the party-and-party scale. Judge Nxumalo declined to award punitive costs, finding that the matter had proceeded in an “undramatic” and collegial manner between the parties. Conviction.co.za Get your news on the go. Click here to follow the Conviction WhatsApp channel.

What's Hot

Can an adjudicator decide a dispute that was never referred to him?

Pretoria court registrar who issued fraudulent court orders struck off legal roll

Ekurhuleni ordered to restore N12 settlement residents even as appeal continues

Browsing: customer connections

Beauty therapist may not treat former salon clients within 20km until June 2027

Making sectional title rules that work: A practical guide

Protection order among the consequences of trespassing in an ‘Exclusive Use Area’

Between a rock and a foul-smelling place

Irregular levy increases, mismanagement, and legal threats in a sectional title scheme

Can an adjudicator decide a dispute that was never referred to him?

Pretoria court registrar who issued fraudulent court orders struck off legal roll

Ekurhuleni ordered to restore N12 settlement residents even as appeal continues

Wife accuses husband of 50 acts of sexual misconduct, including request for another man

Latest posts

Making sectional title rules that work: A practical guide

Protection order among the consequences of trespassing in an ‘Exclusive Use Area’

Between a rock and a foul-smelling place

OUR PICKS

Eskom ordered to tackle Kusile pollution with urgent 30-day environmental action plan

Can a housing estate legally scan your driving licence in South Africa?

Full Court overturns removal of Kempton Park Chief Magistrate Judith van Schalkwyk

Subscribe to Updates

What's Hot

Browsing: customer connections