WHAT IS CONSIDERED CONFIDENTIAL INFORMATION?
For legal purposes, confidential information is information which is:
- useful in trade or industry;
- not public knowledge i.e. known to a restricted number of persons; and
- of economic value.
South African Case law provides that:
“For the applicant to succeed in this case it must establish that it has trade secrets, confidential information and intellectual property worthy of protection and which is ‘proprietary‘ to it…[1]”
“The claim to confidentiality must be made on reliable facts. It is not sufficient for a party to merely state that it has ‘intellectual property’, ‘know-how’, ‘modus operandi’ or that certain aspects of its business are secret or confidential.[2] “
“The mere fact that a party chooses to call something secret does not per se make it so.[3] In Saltman Technicianing Co Ltd and Others v Campbell Technicianing Co Ltd[4], Lord Greene MR stated that, to be confidential, the information concerned must ‘have the necessary quality of confidence about it, namely it must not be something which is public property or public knowledge’.[5]”
HOW DOES ONE PROTECT CONFIDENTIAL INFORMATION?
It is best to conclude a written agreement which could be in the form of a non-disclosure agreement or in an agreement addressing other salient commercial terms of the relationship and incorporating a confidentiality clause with the recipient of the confidential information. However if there is no agreement in place, the claim would be based on delict.
WHAT ACTION CAN WE TAKE IF THERE HAS BEEN A BREACH OF CONFIDENTIAL INFORMATION?
The relief which would be sought would be by way of interdict and a claim for damages. In this regard, it is imperative that prompt and decisive action is taken particularly in regards to the enforcement of restraints of trade which are usually in place for a limited period of time.
In legal proceedings the following would need to be proved to successfully obtain an interdict and claim damages:
- A proprietary interest or legal interest in the confidential information;
- The information must have the above qualities of confidentiality;
- A relationship between the parties that imposes a duty to preserve the confidence, for example employee and employer;
- The recipient of the information must have knowledge of the information and its proprietary value;
- Improper use of the information;
- Damages if applicable. [6]
Should you require assistance in these and other matters addressing Confidentiality, Restraints of Trade and Contract Law generally, Boogaard Attorneys can service Clients throughout South Africa remotely and can accommodate on site visits at our practice in Fourways or attend to client in various areas in Johannesburg North including Bryanston, Dainfern, Morningside, Midrand, Rivonia and Sandton to name a few.
By L Boogaard
Boogaard Attorneys
27/05/2022
[1] Strike Productions (Pty) Ltd v Bon View Trading 131 (Pty) Ltd others (10/21704) [2011] ZAGPJHC 1
[2] Automative Tooling Systems (Pty) Ltd v Wilkens and Others 2007(2) SA 271 (SCA) at 281 B-D; Basson v Chilwan 1993 (3) SA 742 (A); Kwik Kopy (SA) (Pty) Ltd v Van Haarlem and Another 1999 (1) SA 472 (W).
[3] Telefund Raisers CC v Isaacs and Others 1998 (1) SA 521 at 528 E-G.
[4] [1948] 65RPC 203 (Ch), at 215.
[5] Coolair Ventilator Co (SA) (Pty) Ltd v Liebenberg and Another 1967(1) SA 686 (W) at 691B;Van Castricum v Theunissen and Another 1993(2) SA 726(T) at 731F-H.
[6] Harms, Amler’s Precedents and Pleadings (7th Edition, 2009, Lexis Nexis)