The Supreme Court of Appeal (SCA) today dismissed an appeal by Automotive Tooling Systems (Pty) Ltd (ATS) against an order by the Pretoria High Court dismissing an application for interdictory relief against two of its ex-employees, Sarel Johannes Wilkens and David Schalk Rothmann, who had taken up employment with a competitor, apparently in breach of restraint of trade agreement.

ATS’s business is in a specialised technological field relating to the design, manufacture and/or customisation of special purpose machines and tooling. It produces pressed tools and ‘marking machines’ used predominantly to manufacture automotive parts. These machines comprise a ‘marking head’ (which functions using a laser beam, pin stamping or scribing) and numerous other components. Wilkens and Rothmann had been employed in the business as tradesmen for several years. They are skilled toolmakers.

ATS’s case was that Wilkens and Rothmann would be doing the same work for its competitors that they had done for it. In so doing, ATS complained that they would use the technological know-how which is confidential and that was learnt during their employment with it. ATS contended that it had a legally recognisable interest in such know-how and consequently was entitled to prevent its ex-employees from utilising such know-how with any other business.

Wilkens and Rothmann denied that the relevant know-how was confidential or specific to the appellant’s business. They asserted that it is no more than what is commonly available to all artisans and technicians. As such, they contended, it constituted part of the their stock of general knowledge, skill and experience with which they are entitled to earn their living in any other business, including with AMS Manufacturing.

In dismissing the contention advanced by ATS, the SCA said the following: ‘the facts establish that the know-how for which the appellant seeks protection is nothing other than skills in manufacturing machines albeit it that they are specialised skills. These skills have been acquired by the first and second respondents (Wilkens and Rothmann) in the course of developing their trade and do not belong to the employer – they do not constitute a proprietary interest vesting in the employer – but accrue to the first and second respondents (Wilkens and Rothmann) as part of their general stock of skill and knowledge which they may not be prevented from exploiting. As such the appellant has no proprietary interest that might legitimately be protected. The restraint is therefore inimical to public policy and unenforceable.’

ATS was ordered to pay the costs of the appeal.