THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025 -009793
In the matter between:
EAZI AC CESS RENTAL (PTY) LTD Applicant
and
WAHYEED SULEMAN First Respondent
BISEDGE SOUTH AFRICA (PTY) LTD Second Respondent
Heard: 20 March 2025
Delivered: 12 May 2025
JUDGMENT
___________________________________________________________________
MAFA -CHALI , AJ
Introduction
[1] This is an application to enforce a restraint of trade brought on an urgent
basis by Eazi Access Rental (Pty) Ltd, the Applicant , and it is opposed by the
First Respondent, Wahyeed Suleman. The application was filed digitally on
CaseLines.
[2] The Applicant seeks the following order :
‘1. For the 12 months from 01 December 2024 and th roughout
South Africa, the First Respondent is interdicted and restrained
from being interested or engaged in any capacity whatsoever,
including a trustee, proprietor ,shareholder, member, manager,
director, consultant, partner, employe e, financier or agent in or
for any company, closed corporation, partnership, business
concern, firm, undertaking, individual enterprise or entity other
than the applicant which is directly or indirectly engaged,
interested or concerned in the rental, repa ir and sale of access
platforms , telehandlers and accessories , or any other method o f
assisting people to gain access to work at heights, to all facts of
the construction, industrial, transport, entertainment and mining
industries, or any other industry in which the applicant operates
and any other services rendered, work performed or produ cts
offered by the A pplicant in the ordi nary course of business of the
Applicant during the First R espondent’s employment with the
applicant; and
2. From being employed by the Second R espondent .
3. The First R espondent is to be ordered to pay costs of the
Applicant including costs of two counsels .’
[3] In keeping with the provisions of Rule 39 of the Labour Cour t’s Rules1, which
makes allowance for the filling of a supplemen tary (fourth) affidavit by the
Respondent in restraint applications, four affidavits were filed.
[4] No relief is soug ht against the Third R espondent , Bisedge South Africa (Pty)
Ltd cited herein by virtue of the interest it may have in the relief sought in
1 GN 4775 of 2024: Rules Regulating the Conduct of the Proceedings of the Labour Court (effective,
17 July 2024).
these proceedings, save in the event the Third Respondent opposes this
application, in which case the A pplicant will seek costs against the Third
Respondent as well.
[5] The Third Respondent has not opposed the application but has delivered an
affidavit on 10 March 2025.
[6] The application was brought in terms of Rule 39 of the Labour Court Rules .
[7] This Court has the necessary jurisdiction to adjudicate this application in
terms of section 77 of the Basic Conditions of Employmen t2 (BCEA).
Background
[8] The First Respondent was previously employed by the Applicant on 3
February 2020 as a Field Service Technician at the Applicant’s branch i n
Richards Bay. Subsequently , the First Respondent entered into a
confidentiality and restraint of trade agreement with the Applicant for a period
of 12 months. Clause 15 of the First Respondent’s contract required him to
sign the confidentiality and restraint of trade agreement forming part of the
terms and conditions o f employment , which would survive the termination of
the contract of employment, which agreement was signed on 24 February
2020. In terms of the restraint agreement , the Third Respondent would not be
interested or engaged in any capacity of any person which is directly or
indirectly engaged , interested or concerned in a competitive a ctivity in the
territory; and disclose any trade secrets and/or confidential informati on of the
Applicant other than to persons concerned with the Applicant and who are
required to know such secrets or to have such confidential information.
[9] The First Respondent was later promoted to T echnical Special ist from 1
October 2021 in Midrand, Gaute ng. The First Respondent then entered into
an addendum to the employment contract with the Applicant. This agreement
2 Act 75 of 1997 , as amended
is an extension of the first contract , and all the other aspects , including the
restraint of trade and non-disclosure agreements , remained.
[10] The restraint agreement has restraints on activity and person , for a period of
12 months , from the date on which the restrainee ceases to be employed or
engaged in the company for whatsoever reason as well as the territory being
South Africa, Zimbabwe, Za mbia, Mozambique and many other countries in
Africa in which the company operates.
[11] The First Respondent resigned from the Applicant effective November 2024
and had taken up work with the Third Respondent. It is common cause that
the Third Respondent is a direct competitor of the Applicant as it offers the
same services and products offered by the A pplicant.
[12] The Applicant has its head office in Annandale , Germiston an d other
branches across the country in various towns and cities in all the provinces of
South Africa , and in the countries of Mozambique , Zambia, Zimbabwe ,
Namibia and other African countries.
[13] The A pplicant specialises in work -at-height and material handling solutions
and rents, sells, services and train s people to use two types of machines : the
access machines (for working at heights) and material handling machine s
(forklifts, pallet trucks and pallet jacks). It also supplies material handli ng
solutions to the agricultural, construction, energy, entertainment, mining,
retail, heavy industrial and industrial sectors. However, the application
concerns the material handling side of the business, Linde forklifts, pa llet
trucks and pallet jacks.
[14] The A pplicant import s Linde forklifts from the Linde company and attracts a
premium price , and require s premium service and skills. The A pplicant has a
model that offers service level agreements an d staff technicians who service
and repair customer s’ machines and are trained to work on the machines. The
technicians w ho work on Linde machines had to undergo o nline training and
submit a portfolio of evidence and complete several modules over a period of
6 years until they get accreditation fro m the Linde company.
[15] Linde Germany used to have Linde South Africa, which ceased operating in
2019. Linde German y entered into a written import agreement in terms of
which the A pplicant will be the sole importer of Linde forklifts, pal let trucks and
pallet jacks to South Africa.
[16] The Third Respondent offers electric container handling equipment and
material handling solutions , and then pa rtnered with the Linde company. T he
applicant was no longer the sol e importer into South Africa of the Linde
handling equipment , and the Applicant and the Third Respondent became
direct competitors. The First Respondent became employed by th e Third
Resp ondent after his resignation from the Applicant.
Submissions
[17] The A pplicant ar gued that during his time as a Fiel d Service Technician at the
Applicant, the F irst Re spondent was one of the most skilled Linde specialist i n
South Africa, and was tasked to service and repair Linde handling material
equipment on site , at the premises of customers and also condu cted
inspec tions of forklifts, at the customers within estimated number of hours ,
prepare d necessary information to the branch administrators in o rder to
prepare quotations, carried out the repair of service and assist ed workshop to
provide advice and guidance.
[18] The A pplicant also submitted that the First Respondent acquired knowledge
of its suppliers and still has that knowledge , and the training he attended at
Linde company in 2023 , and the Applicant’s costs assisted the First
Respondent to be qualified to train ot her people to be qualified and certified.
The First Respondent knew the sites in the country with L inde forklifts, pallet
trucks and pallet jacks are supplied by the Applicant. He knew what
equipment was at the customers ’ sites and what repairs they needed. He also
has access to a list of technicians employed by the A pplicant to assist him
with p erformance evaluation , using his close relationship with cust omers.
[19] Given that relationship, there is a very high likelihood that the A pplicant’s
customers might cease doing business with it , but instead do business with
the Second Respondent. The First Respondent has stated that he has
previously induced customers a way from the Applicant, as he was part of a
division of Technical Specialist s that took care of all technical issues in the
entire Eazi A ccess business. Given that the First Respondent left for the
Second Respondent, the competitor could gain an unfair advantage over the
Applicant with confidential information , so was argued by the Applicant .
Furthermore, the First Respondent acknowledge d that he has knowledge of
Eazi Access’ service agreements , which are tied to long -term maintenance
agreements and the terms thereof.
[20] The A pplicant contended that it has a clear right , and it was entitled to enforce
the restraint of trade which is part of the First R espondent’s contract of
employment , given the protect able interests of the Applicant. T he Applicant
has invoked the restraint an d proved the breach as it is required to do so. It
was also reasonable for the Applicant to enforce the restraint in the light that
the First Respondent has not placed in issue the reasonableness of the
duration or geographical area of the restraint or that he will suffer prejudice ,
nor did he raise public policy considerations.
[21] It was argued that the A pplicant has no other suitable remedies available as it
would be difficult to compute damages to b e suffered subsequent to the Fi rst
Respondent inciti ng the customers away from the Applicant to the Second
Respondent ; and the damages claim would take time to be heard as opposed
to an immediate interdict.
[22] It was also argued that the restraint should be enforced for the duration of 12
months throughout South Africa, which period would allow the A pplicant to
employ someone to replace the First R espondent. The A pplican t did not seek
to restrict the First R espondent from his employment , but to protect its
proprietary rights, which is it s confidential information - the First R espondent
has knowledge of and customers’ connections.
[23] The First R espondent was at liberty to be employed by another employer or
render his services to a third party as long as the employer is not a co mpetitor
to the A pplicant. The Applicant’s qualifications, skill s and experience would
allow him to secure alternative employment as a mechanic technician in the
mining or industrial equipment industries.
[24] The First Respondent opposed the application on the basis tha t the A pplicant
seeks to sterilise him from utilising his specialist skills for the benefit of the
Second Respondent , and thereby stifles his ability to earn a living in the
specialist field.
[25] It wa s argued and submitted by the First R espondent that the Applicant
operates a wider scope of operations than the Second Respondent , dealing
with three brands : JLG, Manitou and Linde, and that Linde account s for a
small percentage of the A pplicant’s business , whereas the Second
Respondent deals only with Linde machinery.
[26] It wa s denied that t he First R espondent acquired some of the relationship with
customers during his employment with the A pplicant but rather that he got to
know some of the customers before he joined the A pplicant whilst working for
Linde South Africa South32 , and as such , he was a proficient and skilled
Linde specialist when he joined the A pplicant . Further that his job description
displays that his role was technical in nature and had no insight into
protectable interest s in confidential information or customer connections. He
submitted that the loss of his specialist skills is the one that caused the
Applicant to bring the application rather than a susta inable concern as to the
misuse of confidential information or propr ietary cu stomer’s connections as
the Applicant’s business remained intac t and therefore there was no
contractual or public policy for interfering with hi s position at the Second
Respondent.
Urgency
[27] Rule 8 of the Labour Court Rules provides for urgent applications. An
applicant that approaches the Court on an urgent basis essentially seeks an
indulgence and to be afforded preference, in order to prevent the prejudice
and harm that may materialise or persist if the conduct complained of
conti nues. Central to a determination of whether a matter is urgent is whether
the applicant has, in the founding affidavit, set forth explicitly the
circumstances which render the matter urgent and the reason why substantial
relief cannot be attained at a hear ing in due course. Thus, it is required of an
applicant to set out adequately in his or her founding affidavit the reasons for
urgency and to give cogent reasons why urgent relief is necessary. In general,
urgent applications are justified when the right a n applicant is entitled to
enforce cannot be effectively realised if it follows the normal timetable for
initiating and prosecuting a claim in the ordinary course of motion or trial
proceedings.
[28] In the case of restraint applications, the right an applican t normally wishes to
enforce is the right to compel the respondent to comply with the terms of the
restraint, which amounts to an order for specific performance. Suing for
damages flowing from a breach in due course by means of an action is a
cumbersome and invariably more costly way of obtaining some recompense ,
but it is not a direct or effective way of realising the employer’s contractual
right to enforce the terms of the agreement and halt the unlawful action from
continuing. Waiting for an application for enforcement to be enrolled in the
ordinary course is normally considered inappropriate because the restraint is
likely to be near its expiry date by the time the application is heard.
[29] The inability of obtaining substantial relief in due course is a we ighty factor in
favour of granting urgent relief, because to deny it effectively bars an
Applicant from accessing th eir primary remedy. This is one reason why it is
recognised that applications to enforce restraint of trade agreements are
considered inhere ntly urgent in nature3. Another reason is possibly their
limited duration .4
[30] Factors which might nonetheless preclude the success of an urgent
application include whether the urgency is self -created, whether respondents
might suffer any procedural prejudice or whether the administration of justice
may be prejudiced.
[31] In Jiba v Mini ster: Department of Justice and Constitutional Development and
Others5, the Court applied R ule 8 of the then-Labour Court Rules6 as follows:
‘Rule 8 of the rules of this court requires a party seeking urgent relief to
set out the reasons for urgency, and why urgent relief is necessary. It is
trite law that there are degrees of urgency, and the degree to which the
ordinarily applicable rules shou ld be relaxed is dependent on the
degree of urgency. It is equally trite that an applicant is not entitled to
rely on urgency that is self created when seeking a deviation from the
rules.’
[32] It was succinctly described by the Court in Maqubela v SA Graduates
Development Association and others7 that:
‘Whether a matter is urgent involves two considerations. The first is
whether the reasons that make the matter urgent have been set out
and secondly whether the applicant seeking relief will not obtain
substantial relief at a later stage. In all instances where urgency is
alleged, the applicant must satisfy the court that indeed the application
is urgent. Thus, it is required of the applic ant adequately to set out in
3 See: Mozart Ice Cream Classic Franchises (Pty) Ltd v Davidoff and Another (2009) 30 ILJ 1750 (C)
at 1761.
4 See: Vumatel (Pty) Ltd v Majra and O thers (2018) 39 ILJ 2771 (LC) at para 21.
5 (2010) 31 ILJ 112 (LC) at para 18.
6 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court (repealed, effective 17
July 2024).
7 (2014) 35 ILJ 2479 (LC) at para 32.
his or her founding affidavit the reasons for urgency, and to give cogent
reasons why urgent r elief is necessary…’
[33] The factors the Applicant must show are set out in Mojaki v Ngaka Modiri
Molema Municipality and Others8, in wh ich the court referred with approval to
the following dictum from East Rock Trading 7 (Pty) Ltd and Another v Eagle
Valley Granite (Pty) Ltd and Others9:
‘… An applicant has to set forth explicitly the circumstances which he
avers render the matter urgent. More importantly, the Applicant must
state the reasons why he claims that he cannot be afforded substantial
redress at a hearing in due course. The question of whether a matter is
sufficiently urgent to be enrolled and heard as an urgent application is
underpinned by the issue of absence of substantial redress in an
application in due course. The rules allow the court to come to the
assistance of a litigant b ecause if the latter were to wait for the normal
course laid down by the rules it will not obtain substantial redress. ’
[34] In National Union of Metalworkers of SA and Others v Bumatech Calcium
Aluminates10, the Court held:
‘Urgency must not be self -created by an applicant, as a consequence
of the applicant not having brought the application at the first available
opportunity. In other words, the more immediate the reaction by the
litigant to remedy the situation by way of ins tituting litigation, the better
it is for establishing urgency. But the longer it takes from the date of the
event giving rise to the proceedings, the more urgency is diminished. In
short, the applicant must come to court immediately, or risk failing on
urgency. In Collins t/a Waterkloof Farm v Bernickow NO and Another
the court held that —
8 (2015) 26 ILJ 1331 (LC) at para 17.
9 [2011] ZAGPJHC 19 at para 6.
10 (2016) 37 ILJ 2862 (LC) at para 26.
“if the applicants seek s this court to come to its assistance it
must come to the court at the very first opportunity, it cannot
stand back and do nothing and some days later seek the court's
assistance as a matter of urgency. ”’11
[35] The C ourt must also further consider the interests of the respondent party,
and in particular , the prejudice the respondent s may suffer if the matter is
urgently disposed of.
[36] In Association of Mineworkers and Construction Union and Others v Northam
Platinum Ltd and Another12 (Northam Platinum) , the Court held as follows:
‘But it is not just about the a pplicant. Another consideration is possible
prejudice the respondent might suffer as a result of the abridgement of
the prescribed time periods and an early hearing. ’
[37] Finally, urgency must not be self -created by an applicant as a consequence of
the applicant not having brought the applic ation at the first available
opportunity , as the C ourt said in Northam Platinum13:
‘… the more immediate the reaction by the litigant to remedy the
situation by way of instituting litigation, the better it is for establishing
urgency. But the longer it tak es from the date of the event giving rise to
the proceedings, the more urgency is diminished. In short, the
applicant must come to court immediately, or risk failing on urgency . …’
[38] In Sihlali and Others v City of Tshwane Metropolitan Municipality and
Another14, the Court dealt with an urgent application to interdict and restrain ed
the City from taking further steps in recruiting, interviewing and appointing
candidates to the advertised posts, pending the final determination of another
11 Cited with approval i n Radebe and Others v Aurum Institute (2024) 45 ILJ 876 (LC) at para 17.
12 (2016) 37 ILJ 2840 (LC) at para 24.
13 Ibid at para 26.
14 (2017) 38 ILJ 1692 (LC) at para 21.
dispute between the parties. The Court refused to entertain the application
and held that:
‘There is what is termed self -created urgency. The situation herein is a
classic case of such. By the time the advertisements arose, the
applicants had a gripe already, which gripe they expressed in no
uncertain terms to the mayor on 8 November 2016. The applican ts
should have, if there was any urgency, approached this court then.
Why they did not do so, is not explained. Instead what is apparent is
that they sat back, took their time until they obtained a legal opinion
after almost three months.’
[39] Emanating from t he provisions of Rule s 37 and 38 of the Labour Curt Rules
and the principles set out in the authorities above, it is evident that urgency is
not there for taking and an applicant seeking an urgent relief must adequately
and in details set out in the foundi ng affidavit the reasons why the matter
before the Court should be treated with urgency.
[40] In casu, the question is whether the Applicant has made out a case for
urgency. For any argument to be sustained, the a pplicant must have acted
with due haste when knowledge of the respondents’ prejudicial behaviour or
actions is gained, as it is trite that an applicant is not entitled to rely on
urgency that is self -created.
[41] In applying the principles relating to urgency to the facts of this matter, I find
no reason why this application can not be entertained on an urgent basis . The
restraint of trade is for the next 12 months and therefore approaching this
Court in terms of the ordinary applications will not be a useful route under the
circumstances , as the matter will most likely be heard far after the lapse of the
12 months , bearing in mind the length of time before the matter can be
enrolled for a hearing in court. I therefore find that the A pplicant did approach
this Court when it was necessary to do so, and is entitled to be heard on an
urgent basis.
Analysis
[42] In South Africa, restraint of trade clauses are presumed to be enforceable, but
an employee can challenge them in court if they are unreasonable or unlawful
and against public policy . The employer must demonstrate that the restraint is
necessary to protect a legitimate business interest by invoking the contract.
Then the respondent who avoids the restraint bears the onus to demonstrate
on a balance of probabilities that the restraint agreement is unenforceable
because it is unreasonable and/or contrary to public policy .
[43] South African courts consider four key factors when determining whether a
restraint is enforceable , which are a protectable interest , reasonableness of
duration and scope , geographical limits and public interest.
[44] It is trite that if an employer fails to prove substantial harm from an employee
joining a competitor, the restraint may be declared unenforceable. A restraint
of trade can be found to be unenforceable if it overly broadens restrictions and
tries to block an employee from w orking in an entire industry, has excessive
duration preventing an employee from working for more than two years and
fails to show how the employee’s actions could damage the business or
cause harm.
[45] There is no doubt that whilst in the Applicant’s employ, the First Respondent
formed close relationships with th e customers and third parties with whom the
Applicant conducted business. However, the First Respondent denied that he
was also privy to the Applicant’s confidential information and had access to
confidential documents. The First Respondent denied that he had access to
confide ntial information in any protectable sense, as he was not a sales man
at the Applicant but rather a specialist technician applying his skills and
experience to Linde handling e quipment.
[46] It must also be borne in mind that courts should always give effect to
contracts entered into freely. That is an established principle of our law of
contract. It creates certainty in the commercial world. However, every person
should, as far as p ossible, be able to operate freely in the commercial and
professional world .
[47] Magna Alloys and Research (SA) (Pty) Ltd v Ellis15 (Magna Alloys ) stated the
position in our law with regard to agreements in restraint of trade, and the
principles enunciated therein have been applied. The approach laid down by
the court was suc cinctly captured as follows in the headnote to the judgment :
‘The approach, followed in many South African judgments, that a
covenant in restraint of trade is prima facie invalid or unenforceable
stems from English law and not our common law, which contains no
rule to that effect. The position in our law is that each agreement
should be examined with regard to its own circumstances to ascertain
whether the enforcement of the agreement would be contrary to public
policy, in which case it would be unenforceable. Although public policy
requires that agreements freely ent ered into should be honoured, it
also requires, generally, that everyone should be free to seek fulfilment
in the business and professional world. An unreasonable restriction of
a person's freedom of trade would probably also be contrary to public
policy, should it be enforced.
Acceptance of public policy as the criterion means that, when a party
alleges that he is not bound by a restrictive condition to which he had
agreed, he bears the onus of proving that the enforcement of the
condition would be contrar y to public policy. The Court would have to
have regard to the circumstances obtaining at the time when it is asked
to enforce the restriction. In addition, the Court would not be limited to
a finding in regard to the agreement as a whole, but would be ent itled
to declare the agreement partially enforceable or unenforceable. ’
15 1984 (4) SA 874 (A) .
[48] The principles set out in Magna Alloys were compreh ensively re -stated in
Sibex Engineering Services (Pty) Ltd v Van Wyk and Another16 (Sibex ) as
follows:
‘A contractual restraint curtailing the freedom of a former employee to
do the work for which he is qualified will be held to be unreasonable,
contrary to the public interest and therefore unenforceable on grounds
of public policy if the ex -employee (the co venantor) proves that at the
time enforcement is sought, the restraint is directed solely to the
restriction of fair competition with the ex -employer (the covenantee);
and that the restraint is not at that time reasonably necessary for the
legitimate prote ction of the covenantee's protectable proprietary
interests , being his goodwill in the form of trade connection, and his
trade secrets. If it appears that such a protectable interest then exists
and that the restraint is in terms wider than is then reasonably
necessary for the protection thereof, the Court may enf orce any part of
the restraint that nevertheless appears to remain reasonably necessary
for that purpose. '
[49] With regard to protectable interests, the court in Sibex17 defined proprietary
interests, in the context of a protectable interest, thus:
‘The proprietary interests that could be protected by such a restraint
were essentially of two kinds. The first kind consisted of the
relationships with customers, potential customers, suppliers and ot hers
that go to make up what is compendiously referred to as the "trade
connection" of the business, being an important aspect of its
incorporeal property known as goodwill. The second kind consisted of
all confidential matter which is useful for the carrying on of the business
and which could therefore be used by a competitor, if disclosed to him,
16 1991 (2) SA 482 (T) at 502J – 503B.
17 Ibid at 502D -
to gain a relative competitive advantage. Such confidential material is
sometimes compendiously referred to as "trade secrets" . …’18
[50] It is a fact that the Applicant and the Third Respondent are two competitors in
the hiri ng, selling, service , repair and maintenance of Linde machines , and
consequently, their businesses are comparable as they both import Linde
forklifts , pallet truck s and pallet jacks. It must be established if t he First
Respondent taking up work with the Second Respondent is in breach of his
restraint of trade undertakings , and there is a rea sonable apprehension of
harm which will affect the competitiveness with its only competitor in the
distribution and supply of Linde equipment .
[51] It is common cause that the First Respondent has around seven years of
experience working as a mechanic and is highly skilled in the technical field.
He has gene ral mechanical skills that are also marketable in the industries of
light and heavy material .
[52] The First Respondent though disputed the Applicant’s allegations that he was
privy to confidential information because he was involved in preparing quotes
for service or repair, provided information to customers’ departments to assist
in drawing up service contracts and assisting in tender b ids; but rather that he
gave technical input that was used by separate department who were tasked
to prepare quotes , draw up contracts or prepare tender bids. He submitted
that his input was limi ted to t echnical advice , and he was not privy to the
calculations involved in g enerating quotes, contracts or tender bids , nor did he
see the final quotes , contracts or tender bids .
[53] In the present matter, it must also be determined if the First Respondent’s
right to practice his trade and skill and earn a living would be negatively
impacted , as it would severely prejudice the freedom to be gainfully
employed .
18 See also Experian South Africa v Haynes and Another 2013 (1) SA 135 (GSJ) at para 17 .
[54] In this case , most of the important facts relied on by the Applicant to show the
existen ce of its protectable interests and the breach of restraint of trade by the
First Respondent were either undisputed or admitted. There is no doubt that
the industry in which the Applicant and its competitor operate is highly and
technically specialised and require s service and relationship with customers.
[55] The First Re spondent has acquired knowledge of the Applicant’s customers,
the on -site and off -site requirements, he has also visited some customers at
their premises for machine requirements. As a contact person at the
Applicant, the First respondent had a close relationship with the Applicant’s
customers. He has also acquired an in -depth knowledge and relationship with
the customers he serviced, and was familiar with the confidential information
relating t o customers , impacting on the competitiveness of Linde material
handling equipment and related services.
[56] It is undisputed that the First R espondent advised customers on their
equipment and service and parts need, pricing, products , and operational
activities of the Applicant. He assisted with quotes or furnished information to
the a dministrator who initiate d a quote for services. He furthermore has
knowledge of the Applicant’s serv ice agreements and th eir terms.
[57] It can be concluded on that basis that the Applicant has protectable interest
worthy of protection in the form of trade connections (relationship with
customers, potential customers, suppliers) , an important aspect of the
Applicant’s property of goodwill, as well as trade secret in the forms of
confidential information which is useful for commercial operations of business
which can potentially be used by a competitor if disclosed by the First
Respondent for gaining of a competitive advantage. Because of the position
occupied by the First Respondent and his duties in the business, he was
required in terms of Clause 15 of his employment contract to conclude and
abide by a restraint of trade and confidentiality undertaking for a period of 12
months i n the specific geographical area.
[58] It is evident that on 20 November 2024 , the Applicant sent the First
Respondent a notice reminding him of the terms of the restraint agreement
and warning him not to act in breach of the restraint agreement, and further
not to use the confidential information he was exposed to or familiar with.
There is no question that the First Respondent has bound himself to a
restrain t of trade agreement and confidentiality undertaking in favour of the
Applicant.
[59] This Court and the Labo ur Appeal Court have be en consistent in applying the
considerations in determining whether the enforcement of restraint of trade
undertakings is reasonable. These considerations are set out in Basson v
Chilwan and Others19:
(a) Does the one party have an interest that deserves protection;
(b) If so, is that interest threatened;
(c) Does such interest weigh qualitatively and quantitatively against
the interest of the other party not to be economically inactive
and unproductive;
(d) Is there an aspect of public policy having nothing to do with the
relationship between the parties that requires that the restraint
be maintained or rejected;
(e) Whether the restraint goes further than necessary to protect the
relevant interest.20
[60] Deciding each of the above considerations is a determination on the facts of
each particular case, applying the following approach as held in Ball v
Bamb alela Bolts (Pty) Ltd and Another21:
‘…the determination of reasonableness is, essentially, a balanc ing of
interest s that is to be undertaken at the time of enforcement and
includes a consideration of “the nature, extent and duration of the
19 1993 (3) SA 742 (A) at 767G -H.
20 See: Jonsson Workwear (Pty) Ltd v Williamson and Another (2014) 35 ILJ 712 (LC) at para 44 .
21 (2013) 34 ILJ 28 21 (LAC) at para 17.
restraint and factors peculiar to the parties and their respective
bargaining powers and interest ”.’
[61] The seniority of the employee is also an important consideration for evaluating
the existence of a protectable interest. If the employee is more senior, it is
more likely that the employee would be entrenched in a protectable interest ,
based on those considerations. The seniority involves the level of employee in
the organisation, influence, knowledge, expertise and the nature of duties
involved.
Protectable interest
[62] In considering the issue of protectable interest in casu , the First Respondent’ s
employment with the Second Respondent must be dealt with, and the
determination must also be made whether this employment infringes on the
Applicant’s protectable interests. The restraint of trade agreement prohibit s
the employment of the First Responden t with a competitor in the Republic of
South Africa, Zimbabwe, Zambia, Mozambique, Namibia and other countries
in Africa in which the company operates or conducts business ; and therefore ,
such employment would be a violation of the restraint of trade. It must,
however , still be determined if, despite the restraint of the terms, it would
actually infringe on the protectable interest of the Applicant.
[63] I do not believe that, in this case , the First Respondent’s employment with the
Second Respondent would infringe on any protectable interest of the
Applicant. Firstly , the Applicant has indicated that the First Respondent
informed it when resigning on 25 October 2024, and even gave written notice
with effect from 25 November 2024. Although it is a disputed fact whether the
First Respondent disclosed to the Applicant whether he was going to join a
competitor, according to the Applicant, the First Respondent indicated that the
was going to join a Nigerian forklift company and would be working in the rest
of Africa and not operating in South Africa, but it was later established that the
First Respondent was actually working for the Second Respondent, who
deposed of the affidavit to confirm such employment relationship and the
letter to the Applicant’s attorneys . On the other hand, the First Respondent
submitted that he told the Applicant that he was joining another Linde dealer
and specifically mentioned the Second Respondent by name , Bisedge; and
further indicated that he was going to work for them in Nigeria as Bisedge was
not yet operating in South Africa , but he spent the first week of his
employment in Nigeria.
[64] The Applicant has established that the First Respondent’s employment with
the Secon d Respondent is evidence of the breach of the restraint
undertakings, thereby establishing a clear right to enforce it to protect its
interest s and confidential information with the First Respondent’s knowledge
and customer connections. It seems that the Applicant is much more
concerned about the knowledge, experience and skills acquired by the First
Respondent in the course of his employment with the Applicant and that he
will use the skill and knowledge at the Second Respondent as he learnt about
Linde forklifts, pallet trucks and pallet jacks and the repairs thereof. Such
knowledge could be used as an advantage for the Second Respondent to
penetrate the market and become more competitive.
[65] It is also so that the core of the application is the protectable interest , its most
valuable interest being the Applicant’s client base, which may b e anywhere in
the country or outside the country, which is in terms of the restraint
agreement. I therefore find that the Applicant’s prayer for an interdict
prohibit ing the First Respondent from being employed with the Second
Respondent is bound to fail in this regard as the Applicant has failed to show
a breach of its protectable interes t in this respect.
[66] Regarding the Applicant’s client base and confidential information, that’s
where the Applicant’s real protect able interest lies. It is most critical that what
would distinguish the Applicant and Second Respondent and other
competitors wo uld be sensitive and confidential. The Applicant would
legitimately be entitled to protect its client base from being solicited,
encouraged, persuaded or induced by First Respondent to terminate their
business agreements with the Applicant and move to the Second
Respondent. I find that this is the very purpose of enforcing the restraint of
trade in casu , as held in Bonfiglioli SA (Pty) Ltd v Panaino22:
‘…The restraint agreement is theref ore geared at protecting the
employer’s proprietary interest after the employee has left the
employe r’s employment. In Reeves and Another v Marfield Insurance
Brokers CC and Another , the object o f a restraint of trade term was
described as follows:
“The legitimate object of a restraint of trade is to protect the
employer ’s goodwill and customer connections (or trade secrets)
and the restraint accordingly remains effective for a specified
period (which must be reasonable ) after the employment
relationship has come to an end .”’
[67] In TWK Agriculture Ltd v Wa gher and Another23, the Court held:
‘…The applicant’s interest in those connections is an important aspect
of the applicant’s incorporeal property in the form of goodwill and it is
trite that it is entitled to protect that interest. When the respondents
dealt with th ose clients, they did so on behalf of the applicant’s
business and not for their own account. Whether those clients were
ones that they had originally brought into the applicant’s business
through the sale agreement, or whether those with clients they
acquired in the course of working for the applicant, the insurance
business and the relationship developed with those clients and was
that of their employer and not theirs to exploit for their own personal
gain, even if they had been responsible for obtaining such bu siness or
sustaining it through their personal relationship with those clients .’
[68] I am satisfied that the Applicant has succeeded in establishing the existence
of the protectable interest. It is undeniable that the Second Respondent had
access to some kind of information that would clearly qualify as confidential
22 (2015) 36 ILJ 947 (LAC) at para 24 .
23 (C633/15) [2015] ZALCCT 50 (12 August 2015) at para 8 .
information and also quality as confidential information which would be
classified as sensitive concerning the clients and business strategies of
Applicant which the Applicant may not want to be dis closed to competitors
such as the Second Respondent who is also in the same comparable
business to import Linde forklifts, pallet trucks and pallet jacks, both sell, hire
out, services and repairs.
[69] I furthermore find that the Applicant has clearly established the existence of
trade connections, and the nature of the relationship between First
Respondent and the Applicant’ clients is of such that he developed a close
relationship with th em, which the First Respondent has conceded to in his
answering affidavit as he stated that customers followed him from Linde SA to
the Applicant as they were very happy with the service he gave them; and as
such , the data he presented showed that customers were not happy at the
Applicant’s business and the potentially that they could again follow him to the
Second Respondent is not far -fetched.
[70] The Applicant’s protectable interest has been breached as evidence d by the
First Respondent taking up work with the Second Respondent, the Applicant’s
direct competit or. In his position during the course of employment wit h the
Applicant , he dealt with customers and developed a relationship of trust with
them as he serviced them. I w ould not expect the Applicant to trust the bona
fides of the First Respondent that he wi ll pass all those trade connections and
knowledge of confidential information of the Applicant to the Second
Respondent, especially considering that the two b usinesses are competitors
and with similar services.
[71] I accordingly find that the Applicant has suc ceeded in establishing a
protectable interest in relation to both trade connections and confidential
information, and also in establishing the existence of the breach or the
infringement of those protectable interests by the First Respondent, which
justifies the enforcement of the restraint of trade.
[72] The scope of the restraint must be considered in the sense that if it is shorter
and on a limited geographical area, it may mitigate in favour of the
enforcement, whereas if it is longer and with a broader restraint, it would
mitigate against it. Another consideration is whether the Applicant had
possession of the skills, expertise, qualification and experience before joining
the Applicant, because it would be unfair to prevent the First Respondent from
earning a living under such circumstances.
[73] In casu , it can be concluded that the continued employment of the First
Respondent with the Second Responden t has been found to be prohibited
and he can continue his employment using his skills, expertise and
experience he accumulated over the years, even before his employment with
the Applicant; but he must find his own customers and not exploit the
confidentia l information and client base of the Applicant.
[74] The Applicant must be allowed to protect its interest in this regard , as trade
connections and confidential information are critical features of any
commercial business . The protection of the client base and confidential
information will also cure the issue of the restraint area.
[75] Regarding the issue of the restraint period, the First Respondent has not
discharged the onus to provide factual information that the restraint period
should be considered unreasonab le. I am therefore satisfi ed that the 12 -
month restraint period in this industry and the position held b y the First
Respondent and the relationship with the Applicant’s clients is reasonable.
[76] I furthermore find that the Applicant has no alternative remedy available in this
instance. An interdict is the only way the Applicant will mitigate the risk
associated with the employment of the First Respondent with a direct
competitor for the restrain t period , and also to give the Applicant an
opportunity to settle with its clients with an assurance that the confidentiality of
its information is secured with time.
[77] The Applicant has satisfied the requirements necessary for the final relief it
seeks against the F irst Respondent to be granted. A clear right has been
demonstrated. There is a legitimate restraint of trade and confidentiality
undertaking in place with the First Respondent , capable of enforcement in
relation to confidential information and trade connec tions , as the First
Respondent infringed such protectable rights. The restraint period is
reasonable , no alternative remedy is available , and the applicant will be
prejudiced if the relief is not granted , as it has been demonstrated that there is
a reasona ble apprehension of harm.
Costs
[78] This Court has a wide discretion on the issue of costs, in consideration of the
requirements of law and fairness and the terms of section 162 (1) of the
Labour R elations Act24 (LRA) , and the Applicant is successful in this
application. This is a contractual dispute and not an LRA dispute , where co sts
ordinarily do not follow the result.
[79] Under the circumstances , fairness dictates that the Applicant should be
entitled to costs.
[80] In my view, this is a case where the interest of justice will be best served by
making an order as to costs .
[81] In the premises , I make the following order:
Order
1. The forms and service provided for the Rules of this Court are
dispensed with, and the matter is dealt with as an urgent application.
24 Act 66 of 199 5, as amended
2. The First Respondent is interdicted and restrained from encouraging
and/or enticing any employee of the Applicant to terminate his or her
employment with the Applicant.
3. For 12 months from 1 December 2024 and t hroughout South Africa,
the First Respondent is interdicted and res trained from furnishing
advice or information or advise customers of the Applicant that he
intends to or will, directly or indirectly, be interested or engaged in or
concerned with and from divulging or using the confidential
information of the Applicant to any third parties including the Second
Respondent.
4. The First Respondent is interdicted and restrained from furnishing any
advice or information or advise customer or supplier or using any
other mans or taking any other action which is directly or indirectly
designed, or in the ordinary course of the events calculated, to result
in such customer or supplier terminating its association with the
Applicant or transferring its business to or purchasing any products or
services from any person other than the Applicant.
5. The First Respondent is to pay the costs of the Applicant.
______________
G. Mafa -Chali
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applic ant: Counsel L Hollander
Instructed by: LDA Incorporated A ttorneys
For the First & Second Respondent : SC C Whitcutt
Instructed by: Solomonholmes Attorneys Inc