A Worcester swimming school has been unsuccessful in the Western Cape High Court in its bid to stop a former employee from rendering swimming services within a radius of 50km for two years.
Crazy Splash Swim School wanted an interdict against its former employee Talitha Nortje, from rendering swimming services within the Worcester area for two years, arguing that a restraint of trade was agreed orally in the employment contract.
The school further wanted an order that Nortje refrain from advertising her swim school, or any other swim coaching by herself, on social media, including WhatsApp, Facebook, or Instagram. Nortje opposed the relief arguing that there was no restraint of trade applicable to her employment.
According to court papers, Nortje had been working at the school since 2016 under a different owner.
In 2020 another employee bought 100% of the shares in the swimming school. Following discussions over new employee contracts, which needed to be signed to include the restraint clause, Nortje maintained she was only willing to sign without a restraint of trade. After they could not reach an agreement around her refusal, she resigned on November 8, 2022.
According to the school, Norje sent the contents of her written resignation by WhatsApp to the clients /parents of the database of the school, adding that she would now continue to coach swimming privately on her own.
The school then approached an attorney who addressed a letter of demand asking her to refrain from breaching the terms of the employment contract, and to remove all the advertisement posted on social media.
Judge James Dumisai Lekhuleni found: “Her (Nortje) alleged failure to object to the inclusion of the restraint of trade provision during the alleged meetings or gatherings with employees present who did have written contracts of employment and may have agreed to the restraint of trade provisions, cannot be equated to her acceptance of such a term in her contract of employment.
“The first respondent (Nortje) admitted sending the termination notice to the applicant and to another employee and only to three parents that had swimming lessons scheduled with her for that day. The first respondent denied ever enticing the applicant’s clients to cancel their contracts with the applicant. I am of the view that the applicant (Crazy Splash) does not have a protectable interest worthy of protection. The first respondent is using her skill and training to practise her profession. The first respondent cannot be prevented from using her stock of general knowledge, skill, and experience to earn a living. A restraint of trade provision with the sole aim of stifling competition is against public policy and is unenforceable.”
Crazy Splash did not respond to requests for comment while Nortje said: “I’m ecstatic about the outcomes.
My lawyer and advocate are the best. The judge ordered that this court report must be published. That public must understand that this implied ‘restraint of trade’ cannot exist.”
Cape Times