In what The Herald calls a classic David-and-Goliath courtroom battle, lawyer Lizette Ferns – a sole practitioner from Gqeberha – has successfully defeated Kaplan Blumberg Attorneys’ (KBA) attempt to enforce a restraint of trade clause against her.

Eastern Cape High Court (Gqeberha) Judge Nozuko Mjali dismissed an application by KBA which sought to prevent her from engaging clients who approached her after she left the firm.

However, the legal battle may be far from over, as KBA partner Chris Unwin said the firm would probably appeal against the court’s judgment.

The matter dates back to 2012 when Ferns was appointed at KBA and signed her initial employment contract, which contained a restraint of trade clause.

The next year she was promoted to head up KBA’s Family Law Department. In 2017, while still running the department, she was promoted to salaried partner and the firm presented her with a new contract.

However, Ferns refused to sign the contract, mainly because she disagreed with the inclusion of a restraint of trade provision.

Despite not signing the contract, her duties as a salaried partner within the Family Law Department continued.

Further contracts, detailing the terms and responsibilities of employment, followed in 2021 and 2024. However, Ferns still contested the inclusion of a restraint of trade clause.

Over time, the relationship between employer and employee soured, and in March, Ferns resigned with immediate effect.

In the application, KBA wanted the court to declare the restraint provisions of Ferns’ 2012 contract as binding, interdict her for 12 months from inducing KBA employees to terminate their employment, and interdict her from soliciting, canvassing or conducting business with KBA clients.

Mjali said at the heart of the matter was the determination of the existence or otherwise of a restraint of trade provision, notes the report in The Herald.

‘On the facts of this matter certainty is essential to both applicant and the respondent so that they can carry on with their businesses,’ she said.

While the judge agreed that the matter was urgent, she said with it being an application for a final interdict, the next hurdle for KBA was to prove the existence of the real right that it sought to protect.

‘This approach is also in line with the one that is followed in restraint of trade cases, namely that the employer who seeks to enforce a restraint against an employee must prove the existence of the restraint obligation against the employee.’ 

Mjali said it was not in dispute that when Ferns was promoted from candidate attorney up the ranks to salaried partner, she did not sign the new contract.

She said the contract KBA relied on in its application no longer regulated the employment relationship with Ferns.

‘Thus, there is no basis for the application. The application falls to be dismissed.’

Mjali further ordered KBA to pay the costs of the court action.

Full report in The Herald