Pexmart CC v H. Mocke Construction (Pty) Ltd and Another

H. Mocke Construction (Pty) Ltd, controlled by Mr Hein Mocke, specialised in lining steel pipes with HDPE plastic liners using the Polymeric/Sureline Process, for which Mr Mocke held an exclusive African licence from Polymeric Pipe Technology Corporation. Mr Marius Henn, a close associate and employee of Mocke Construction, was deeply involved in developing and refining the process in South Africa, including a novel method of deforming the liner outside the steel pipe before insertion. After Mr Henn’s employment was terminated in 2013, he joined Pexmart CC, which began competing for the same mining contracts using a similar deforming process and machinery. Mocke Construction alleged that Pexmart CC and Mr Henn unlawfully used its confidential information and trade secrets obtained through Mr Henn’s former position of trust. The appellants denied this, claiming independent development and reliance on publicly available methods. The High Court found for Mocke Construction, and the appellants appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel, and the High Court’s interdict restraining the appellants from using the respondents’ confidential information and trade secrets was upheld.

The case is a leading Supreme Court of Appeal authority on unlawful competition through misuse of confidential information and trade secrets, particularly in technical and industrial contexts. It restates the principles governing protection of unpatented processes and know-how, the obligations of employees who acquire confidential information in positions of trust, and the drawing of adverse inferences from a party’s failure to present material evidence.