Henrico Scholtz and 4PL Africa (Pty) Ltd v TMA Express Road (Pty) Ltd and TMA Logistics (Pty) Ltd – Judgment on Application for Leave to Appeal, High Court of South Africa (Western Cape Division), 4 August 2025
This ruling is reportable because it confirms and elaborates upon the principles governing the enforcement of restraint-of-trade and confidentiality clauses at the leave-to-appeal stage. The judgment provides a succinct restatement of the court’s discretion to refuse leave where no reasonable prospect of success exists, while clarifying the evidentiary threshold for interdictory relief aimed at protecting confidential information and customer connections. The case is also significant for its reliance on, and endorsement of, earlier leading authorities, thereby adding persuasive weight to the developing jurisprudence in this area of labour-competition crossover law.
Experian South Africa (Pty) Ltd v Haynes 2013 (1) SA 135 (GSJ)
Den Braven South Africa (Pty) Ltd v Pillay 2008 (6) SA 229 (D)
No specific statutory provisions were referred to in the judgment.
No particular rule of court was cited in the reasons given.
The applicants, Mr Henrico Scholtz and his new employer 4PL Africa, sought leave to appeal against an urgent order granted on 25 June 2025 enforcing a twelve-month, Western Cape-wide restraint of trade and associated confidentiality undertakings in favour of Scholtz’s former employers, TMA Express Road and TMA Logistics. They argued that the order was overly broad, effectively created a new contract, and was granted despite factual disputes regarding any misuse of confidential information.
The court (DJ Smit AJ) dismissed the application, holding that no reasonable prospect existed of a successful appeal. The restraint’s breadth was justified by its purpose of preventing the exploitation of customer connections, the order did not exceed the wording of the contract, and a final interdict can issue on a well-grounded apprehension of harm even absent proof of actual misuse.
Whether the restraint order impermissibly extended beyond customer connections to non-related customers.
Whether the court “made a new contract” for the parties by crafting the interdict.
Whether factual disputes regarding alleged use of confidential information precluded final relief under the Plascon-Evans rule.
The court refused leave to appeal. It held that the restraint legitimately prohibited employment with a competitor in its entirety for the limited period and geography; the interdict’s wording tracked the contractual clause; and the evidence established a reasonable apprehension of harm sufficient for final interdictory relief notwithstanding contested allegations of actual misuse.
Mr Scholtz, formerly employed in sales and logistics by TMA Express Road and TMA Logistics, had signed restraint-of-trade and confidentiality undertakings. Shortly after resigning, he joined their competitor, 4PL Africa. The former employers launched urgent proceedings, contending that Scholtz’s new role enabled him to leverage the customer relationships and confidential databases acquired while at TMA.
On 25 June 2025 DJ Smit AJ granted a final order enforcing the restraint for twelve months within the Western Cape and restraining dissemination of confidential information. Scholtz and 4PL Africa, maintaining that the order was overly expansive and unsupported by uncontested facts, filed an application for leave to appeal.
The application was argued on 4 August 2025. Counsel for the applicants emphasised the alleged overbreadth of the interdict and the existence of factual disputes regarding any actual breach. Counsel for the respondents relied on the contractual wording, the risk-based rationale for restraints and the uncontroverted evidence of Scholtz’s possession of, and contact with, former customers.
The court had to decide whether an appeal would enjoy reasonable prospects of success. That inquiry required it to examine: first, the permissible scope of a restraint aimed at protecting customer connections; second, whether the court’s order altered rather than enforced the contract; and third, whether factual disputes on alleged misuse of information foreclosed final relief under the Plascon-Evans approach to motion proceedings.
DJ Smit AJ reasoned that the ratio of restraint clauses is to bar competitive employment that enables exploitation of customer goodwill developed at the former employer’s expense. An inevitable collateral consequence is the exclusion of the employee from dealing with customers unconnected to his former employer; such collateral impact does not render the clause unenforceable or the order overly broad.
The court adopted and aligned itself with Experian South Africa (Pty) Ltd v Haynes, which explains that narrowly tailoring a restraint to “old customers only” is impracticable and undermines the protective purpose. It further relied on Den Braven SA (Pty) Ltd v Pillay for the principle that a court may confine enforcement to what facts justify without transgressing the contractual boundary, observing that its own order did no more than mirror the extant restraint.
Turning to confidentiality, the judge emphasised that the former employer need not prove actual breach; a demonstrable, reasonable apprehension of harm suffices. Scholtz’s undisputed possession of confidential customer data and his immediate outreach to those contacts provided that evidentiary foundation, overcoming any Plascon-Evans disputes about what he actually divulged.
Leave to appeal was refused with costs, thereby maintaining the operative restraint and confidentiality interdicts granted on 25 June 2025 for the remainder of their temporal and geographic scope.
A restraint of trade is enforceable when reasonably necessary to protect a legitimate proprietary interest such as customer connections.
A court may grant final relief on affidavit despite factual disputes where the respondent’s version does not create a real, genuine or bona fide dispute, or where a reasonable apprehension of harm suffices for an interdict protecting confidential information.
In determining prospects of success for leave to appeal, the test is whether another court could reasonably arrive at a different conclusion; absent such prospects, leave must be refused.