An attempt by Ashton International College Ballito to stop former principal Petrus ‘Joe’ Erasmus from joining a competing school was dismissed in the Durban High Court last month.

Ashton sought an interdict against Erasmus, who left the school in August 2021, to prevent him from taking a role as the head of primary school at Curro Salt Rock at the start of this year.

Erasmus had worked at Ashton for 11 years, joining as headmaster in 2010 and later becoming managing director in 2017.

He had also purchased shares of 6% in the school in May 2010.

Upon leaving in 2021, Erasmus and Ashton signed a ‘mutual separation agreement’, part of which would see the school buy back his shares over a 24-month period.

The agreement also precluded Erasmus from – for a period of two years – joining “any company which carries on business within a radius of 50km and renders competing services.”

For about 16 months after leaving the school, Erasmus was essentially retired, until Curro Salt Rock announced his appointment towards the end of last year.

Upon publication of the news, Ashton’s attorney contacted Erasmus, claiming he was in breach of ‘confidentiality and restraint undertakings’ contained in the separation agreement.

The letter also demanded that he sign an undertaking to honour those terms.

Erasmus refused to sign the letter, taking advice from his attorney that he was under no obligation to do so, after which Ashton sought the interdict on December 6.

It is important to note that the interdict was against Erasmus rather than Curro and that Curro’s only submission was to confirm that they would abide by the outcome of the interdict hearing.

When deliberating on the case, KwaZulu-Natal High Court, Durban judge, Ploos van Amstel, cited the separation agreement as poorly worded, describing some parts as a “cut and paste exercise”.

“Some of the clauses are so badly worded that it is not possible to work out what they were intended to say,” reads his judgment.

He said Ashton’s case rested on their opinion that Erasmus had breached a material term of the separation agreement, causing the agreement to become null and void.

Erasmus said the school had breached the agreement by cancelling the purchase of his shares and failing to pay the remainder of the purchase price, which would also cause the agreement to be null and void.

“This all appears non-sensical, but that is the result of the wording of the agreement,” wrote Ploos van Amstel.

When deciding whether Erasmus had breached the restraint clause, Van Amstel was similarly unconvinced.

“The founding affidavit deals with confidentiality, trade secrets and customer and supplier connections in general and unspecific terms.

“Mr Buys (on behalf of Ashton) refers to the applicant’s own unique and enhanced curriculum; trade secrets; relationships and tailor-made deals with longstanding customers; the relationships that Mr Erasmus has developed with strategic partners, including the applicant’s customers, suppliers, parents and connections with the communities in general; and access to the names of customers, students’ parents and suppliers,” he said.

But when deliberating, Van Amstel reached the conclusion that Erasmus was employed on the basis of his skills as an educator rather than for anything potentially confidential, particularly given that both schools share a publically available curriculum.

His decision, therefore, was that Ashton could not enforce a protectable interest in this case.

“It must be clearly understood that a school is not entitled to enforce a restraint of trade agreement to prevent an employee from moving to a competing school if its sole purpose is to retain, for example, a popular or particularly competent teacher or headmaster, or to prevent a competitor from acquiring his services.

“The agreement will be unenforceable unless there is a protectable interest as I have described,” he said.

The case was dismissed with costs on December 30, with Van Amstel publishing his reasons for the judgment on January 23.

When contacted by the Courier, Ashton said that they were “seeking restitution and the legal process will be followed.”

“We confirm that Mr Erasmus opted to breach the Mutual Separation Agreement that was concluded for a period of two years while he received monthly remuneration in this period,” the school said.

Click here to read the full judgment.

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