A scrap between two IT companies has ended with the Johannesburg High Court finding that in cases where no enforceable restraint of trade agreement exists, it is against public policy for an employee’s working conditions to be altered to suit the wishes of their former employer.
This follows a battle between Sourcework and Datacentrix over the employment of manager Khumo Mosiane — a highly skilled and sought-after IT manager.
Mosiane was employed by Sourceworx as a manager at a time when the company entered into an agreement with competitor Datacentrix to provide IT maintenance services to Transnet.
Datacentrix had been contracted by Transnet to provide a range of IT services and had outsourced some of the work to Sourceworx. In their subcontract agreement, Datacentrix and Sourceworx undertook not to poach each other’s employees for the duration of the contract and a further 12 months after its termination.
Mosiane had, since 2008, been providing IT services to Transnet through its contractors and subcontractors, making his employment with Sourceworx the latest iteration of an underlying, ongoing relationship with Transnet.
The court heard that it was not disputed that Mosiane was valued by Transnet and they were keen to retain his services through whichever company employed him.
Mosiane became dissatisfied with his job at Sourceworx and resigned on November 9 2023. Sourceworx, realising Mosiane’s value to its subcontract agreement with Datacentrix, tried to persuade him not to leave, but Mosiane declined to withdraw his resignation.
The day before Mosiane resigned Datacentrix had advertised for a service integration manager. Mosiane applied for the position along with 72 other candidates and received the job offer on December 12 2023.
He accepted the offer and started working for Datacentrix on December 18.
Sourceworx responded by claiming that Datacentrix had poached Mosiane and was in breach of their agreement. Datacentrix denied the allegation and responded with an affidavit deposed by Mosiane in which he stated that he had been maltreated at Sourceworx and had resigned for that reason alone.
Sourceworx lodged an urgent court application to have Datacentrix interdicted for 12 months from 'directly or indirectly using the services or knowledge of Khumo Jacob Mosiane in any capacity whatsoever for purposes of the Transnet Project'
Datacentrix said the fact that it happened to advertise a post for which Mosiane was well-qualified for just a day before his resignation was a coincidence rather than a strategy to lure Mosiane away from Sourceworx.
Sourceworx then demanded an undertaking from Datacentrix that Mosiane would not be engaged on any of their Transnet work — some of which had been subcontracted to Sourceworx. But Datacentrix was not happy with this, as Mosiane was valuable to Transnet and, in their view, was important to their servicing of Transnet’s needs.
Sourceworx threatened to cancel their subcontract over what they deemed to be Datacentrix's breach of the clause barring them from poaching Sourceworx staff. In March 2024 Datacentrix agreed to settle the dispute by removing Mosiane from the Transnet project and asked that this removal be accepted as a full and final settlement of the dispute.
However, negotiations stalled when Sourceworx became aware of Mosiane's continued involvement in Datacentrix’s work for Transnet.
Datacentrix said Mosiane had been redeployed from his management position on the Transnet project to a position as a “solution architect”. While the post did not entail direct involvement with the Transnet project, Datacentrix admitted that from time to time Mosiane would be consulted by other Datacentrix employees on matters involving various clients — and that sometimes this included the Transnet network project.
Mosiane said that being unable to work on the Transnet project in any capacity whatsoever would mean he could not continue with his job at Datacentrix, and argued that he should be allowed to continue to work in a consultative role on the Transnet work.
Sourceworx took the admission that Mosiane continued to be involved with Transnet work as a breach of Datacentrix’s undertaking that they had removed him from the Transnet project team.
Sourceworx lodged an urgent court application to have Datacentrix interdicted for 12 months from “directly or indirectly using the services or knowledge of Khumo Jacob Mosiane in any capacity whatsoever for purposes of the Transnet Project”.
Last June the matter was removed from the urgent roll, and it came before Johannesburg High Court judge Stuart Wilson this month.
Wilson noted that he had to decide whether the undertaking by Datacentrix not to engage Mosiane on the Transnet project was enforceable, and if so, whether Sourceworx was entitled to have Mosiane removed from any involvement with Transnet work.
Datacentrix argued that the undertaking to remove Mosiane from the Transnet project was unenforceable because the undertaking had been a gratuitous effort to smooth things over with Sourceworx, that it was contrary to public policy, and that Sourceworx would not suffer irreparable harm if Mosiane continued to consult on the project.
Wilson agreed fully that the undertaking was not binding and that it was inconsistent with public policy. He said trading in an employee’s work condition transgressed the prohibition on forced labour and servitude through the proposition that an employee’s labour power is a commodity that may be traded independently of that employee’s consent.
“The undertaking Sourceworx seeks to enforce purports to take Mosiane’s labour power entirely out of his hands,” Wilson said, noting that working on Transnet’s network had defined Mosiane’s career for 17 years.
He dismissed Sourceworx’s application to have Mosiane banned from doing any Transnet work while working for Datacentrix.
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