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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2025 -/071413
In the matter between:
TMA EXPRESS ROAD (PTY) LTD First Applicant
TMA LOGISTICS (PTY) LTD Second Applicant
and
HENRICO JOHN SCHOLTZ First Respondent
4PL AFRICA LTD Second Respondent
JUDGMENT
(1) REPORTABLE : NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________ ______ ______________
DATE SIGNATURE
25 June 2025
2
Smit, AJ
Introduction
[1] This urgent application concerns three issues:
a. Did the first respondent, Mr Scholtz, breach a restraint of trade and
confidentiality undertaking he gave to the applicants by taking up
employment with the second respondent, 4PL Africa, and by contacting the
applicants’ clients upon taking up his new employment with the apparent
purpose of soliciting their business?
b. How should the restraint of trade be interpret ed and is it enforceable?
c. What relief should the Court award in these circumstances?
[2] The applicants employed Mr Scholtz in various capacities between 1 January
2018 and 30 April 2025.1 He was first employed by the first applicant, TMA
Express Road , as an “Operations Assistant”, later promoted to “Operations
Manager” and finally served as the “General Manager” of the second applicant,
TMA Logistics.
[3] TMA Express Road is engaged in the business of commercial freight and
logistics between South Africa, Zimbabwe and Zambia. The second applicant,
TMA Logistics , is also engaged in the business of commercial freight and
logistics, domestically between Johannesburg and Cape Town.
[4] 4PL Africa employed Mr Scholtz from 1 May 2025. 4PL Africa operates in the
same industry as TMA Express Road , i.e. between South Africa, Zimbabwe and
Zambia. 4PL Cape is a sister company of 4PL Africa and is engaged in the same
industry as both TMA Express Road and TMA Logistics (i.e. both the international
and domestic routes) .
1 For the first part of this period, he was employed by the first applicant (“TMA Express Road”)
while for the second part, he was employed by the second applicant (“TMA Logistics”) while still
rendering some services for TMA Express Road. Since they are companies in the same group,
and operate in the same industry, nothing turns on this.
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[5] Although now employed by 4PL Africa, Mr Scholtz is based at 4PL Cape’s office
in Kempton Park.
[6] Very shortly after becoming employed by 4PL Africa , Mr Scholtz contacted
erstwhile customers of the applicants. The applicants say this was to persuade
them to shift their allegations to the 4PL group of companies. After a brief
exchange of correspondence, this contact triggered an urgent application,
launched on 19 May 2025 and heard on 5 June 2025.
[7] It is common cause that the application is urgent, and I find that it is.
The restraint of trade and confidentiality undertakings
[8] Although at different times, Mr Scholtz signed employment agreements with both
TMA Express Road and TMA Logistics. Their relevant provisions are identical.
[9] The restraint of trade reads as follows:
“13. It is clearly stated and understood by the employee that
acceptance of this offer of employment shall be subject to a Restraint
of Trade that will apply for a period of 24 (twenty four) months after
resignation from this Company, inside the geographic bord ers of the
Republic of South Africa. This implies that the employee after
termination of his / her service with the Company, for whatever
reason, shall not enter into competition with this Company or any of
its subsidiaries using or marketing any of i ts products or similar
products that may be available on the market for the said period of 24
months.”
[10] In argument before me, it was common cause that this clause – although clumsily
worded – prohibited Mr Scholtz inter alia from being employed during the restraint
period and in the restraint area by any competitor of the applicants . The restraint
period is 24 months and the restraint area is within South Africa. It was not
seriously disputed that 4PL Africa is a direct competitor of TMA Express Road
and 4 PL Cape of both applicants.
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[11] Counsel for the applicants contended that the words “ using or marketing any of
its products or similar products that may be available on the market ” specifies (in
the context of this case) when a new employer would be regarded as a
competitor. In the context of this case, it would be – so it was contended – if the
competitor engaged in commercial freight and logistics by operating on the same
routes as the applicants.
[12] Thus, the subsequent employment of Mr Scholtz (for the restraint period and
area) by an entity such as 4PL Africa (or 4PL Cape) would be prohibited, but not
such employment by a freight and logistics company that, for example, operates
routes from Johannesburg to Du rban or from Cape Town to Windhoek.
[13] While this position adopted in argument represented a shift from a more
absolutist position the applicants articulated in the founding affidavit, counsel for
Mr Scholtz did not take issue with the interpretation as such (although, he did
with the shift in stance ).
[14] It follows that it was essentially common cause that Mr Scholtz breached the
restraint of trade undertaking, and that relief could follow if the undertaking is
enforceable.
[15] The confidentiality clause reads as follows:
“17.1 The employee is required to keep confidential and not disclose
any of the company’s trade secrets, confidential documentation,
technical know -how and data, drawings, systems, chemical formulae,
methods, software, processes, client lists, programmes, marke ting
and/or financial information to any person other than to persons
employed and/or authorised by the company or associated company
(where applicable) who are required to know such secrets or
information for the purpose of their employment and/or as sociation
with the company, both during the continuance of his/her employment
hereunder or thereafter.
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17.2 The company and the employee hereby acknowledge that the
confidential and/or information represents a substantial monetary
value to the company.
17.3 The employee shall adhere to the above obligation not to
disclose any confidential information to any undertaking, firm,
company or person with which the company may at any time be in
technical and/or competition, co -operation or association.
17.4 The employee acknowledges that the aforesaid obligation shall
remain in force indefinitely and notwithstanding termination of his/her
contract for any reason whatsoever.”
[16] Counsel for Mr Scholtz fairly conceded during argument that Mr Scholtz had
accessed confidential information while in the employ of the applicants. While
this did not form part of the ambit of the concession, i t seems to me that this
confidential information included, at least, the names and contact details of the
applicants’ customers with whom Mr Scholtz dealt as well as information
regarding the services provided to them, including the pricing of such services.
[17] It also seems incontrovertible, on the strength of the evidence contained in
founding and replying affidavits, that Mr Scholtz breached the confidentiality
undertakings by using such access to contact certain customers of the applicants
and to solicit their business on behalf of 4PL Africa. The only dispute of fact in
this regard seems to be whether he did so of his own volition or on the instructions
of his new employer – a matter which is irre levant to whether Mr Scholtz
breached his confidentiality under takings.
[18] I therefore find that Mr Scholtz breached his confidentiality undertakings by, at
least, using the customer and contact details to which he had access at the
applicants to solicit the business of those same customers (as specified in the
founding and replying affidavits) on behalf of his new employer during the first
half of May 2025 .
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The enforceability of the restraint of trade
[19] Counsel for Mr Scholtz did not contend that the confidentiality undertaking was
unenforceable. He contended , however, that the restraint of trade was
unenforceable on several bases:
a. First, the restraint of trade clause is too generic and did not specify the
protectable interest of the applicants.
b. Second, the restraint of trade clause is so broad as to be unreasonable.
c. Third, the restraint period of 24 months was unreasonably long. (Mr Scholtz
did not take issue with the geographic reach of the restraint.)
[20] The law to be applied to the question whether a restraint of trade clause is
unenforceable, is well -settled.2 The onus is on the party seeking to avoid the
restraint to show that it is unenforceable.
[21] A court must consider the following five questions in reaching a conclusion:
a. First, is there an interest of the one party which is deserving of protection
at the determination of the agreement?
b. Second, is such interest being prejudiced by the other party?
c. Third, if so, does such interest so weigh up qualitatively and quantitatively
against the interest of the latter party that the latter should not be
economically inactive and unproductive?
d. Fourth, is there another facet of public policy having nothing to do with the
relationship between the parties, but which requires that the restraint should
either be maintained or rejected?
e. Fifth, does the restraint go further than is necessary to protect the interest?
2 E.g. Basson v Chilwan 1993 (3) SA 742 (A) ; Kwik Kopy (SA) (Pty) Ltd v Van Haarlem 1999 (1)
SA 472 (W) at 484E ; Experian S outh Africa (Pty) Ltd v Haynes 2013 (1) SA 135 paras 13 -17.
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[22] In regard to the issue of protectable interest, counsel for Mr Scholtz fairly
conceded that there are trade connections between the applicants and their
customers. It seems to me that, at the very least, these trade connections
represent a protectable interest that was worthy of protection by the restraint of
trade clause when the employment of M r Scholtz with the applicants ended.
[23] Concerning the contention that the restraint of trade clause was required to
specify this protectable interest to be enforceable, counsel could not point me to
any authority containing such a requirement and I am not aware of any . The
contention in seems contrary to principle: no law requires a contractual clause to
specify its reason for existing in order to be enforceable. Its enforceability
depends on whether there is an acceptable reason for it to exist; not whether it
articulates such reason.
[24] In regard to whether the employment of Mr Scholtz by 4PL Africa prejudices the
applicants’ protectable interest in their trade connections, that seems self -
evidently to be the case. The prejudice is illustrated by his actions in contacting
the applicants’ customers immediately upon his new employment.
[25] It is not irrelevant that Mr Scholtz was caught in three untruths regarding his new
employment:
a. First, when asked during his notice period by representatives of the
applicants what he would do after his resignation, he stated that he would
work as a project manager for a government department or a training
facility .
b. Second, he stated in his answering affidavit that he has n o access to the
phone numbers of the applicants’ customers’ representatives. The replying
affidavit illustrated that he had, all times, formed part of a WhatsApp group
with certain of these representatives whose numbers he was in a position
to retain.
c. Third, Mr Scholtz stated in his answering affidavit that he was not involved
in invoicing customers in his various capacities at the applicants. The
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replying affidavit illustrated, with reference to documentary evidence, that
this was also untrue.
[26] Thus, the continued employment of Mr Scholtz by 4PL Africa presents at least
the potential for prejudice of the applicants’ protectable interests , as illustrated
by his disregard for the truth regarding these matters .
[27] There was no argument before me a bout the third issue: whether the interest of
Mr Scholtz in remaining economically active and productive is outweighed by the
applicants’ protectable interest. It seems to me that this is not really an issue,
given that the proper interpretation of the restrai nt clause – as described above
– does not prohibit Mr Scholtz from working in the commercial freight and
logistics sector per se. It only prevents him from working for or in an entity that
competes with the applicants on the two particular routes identified above: Cape
Town to Johannesburg; and South Africa to Zimbabwe and Zambia. Thus, the
restraint on Mr Scholtz is minimal and does not outweigh the applicants’
protectable interest.
[28] As to the fourth issue, it does not seem that there is in the circumstances of this
case another facet of public policy which requires that the restraint should either
be maintained or rejected .
[29] In regard to the fift h issue, whether the restraint is broader than is required by
the protectable interest, I find that – properly interpreted – it only prevents
involvement in or employment by an entity that operates in the same industry
and on the same routes as the applicants. Its geographical reach is limited to
South Africa which, in the context of the long -distance f reight indus try, is modest.
For example, it was common cause at the h earing that the restraint clause would
not prevent Mr Scholtz from being employ ed by 4PL Africa in Zambia (as
opposed to his current base in Kempton Park) .
[30] For these reasons, I do not think that the restraint is too broad or too generic, as
contended by Mr Scholtz, save per haps for its duration of 24 months.
[31] There was little evidence on affidavit as to the reasonableness of a restraint
period of 24 months (or shorter) . In argument, counsel for the applicants took the
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view – with little elaboration – that 12 months would be su fficient, while counsel
for Mr Scholtz contended that a period of only one month wou ld be appropriate.
[32] Counsel for Mr Scholtz motivated for a period of one month with reference to a
dictum in Den Brave n.3 In that case , Wallis AJ (as he then was) found that two
years is the “outer limit ” in a case of this type and that “the period of the restraint
should not be any longer than is necessary to enable the applicant to place a
new salesperson in the field, enable them to become acquainted with the
products and the customers and to make it plain to the latter that they are now
the person with whom to deal on behalf of the applicant. ”4 In Den Brave n, on the
facts of that case, it was found that eight months would be a sufficient period for
these purposes.
[33] In this case, counsel for Mr Scholtz primar ily submitted that the Court would not
make a contract for the parties and therefore should not enforce the restraint if a
period of 24 months is found to be too long. I deal with th is submission below
when I consider the relief sought. In the alternative, counsel submitted that one
month would be sufficient for the applicants to train a replacement for Mr Scholtz.
Again, there was little elabor ation or evidence for this submission save that the
probation period in the industry tends to be three months .
[34] In this case, Mr Scholtz was the General Manager of TMA Logistics, at the time
of his resignation . He also had extensive duties at TMA Express Road, which
continued even when he became employed by the former. His combined tenure
at these companies was seven years and four months. His duties were far wider
than sales. During his employment, he was in a position to cultivate strong
customer connections and had access to the applicants ’ confidential information .
He immediately attempted to capitalise on those c onnections and that
information when he left the applicants ’ employ.
[35] In the circumstances of this case, and in the absence of persuasive evidence on
the length of time it would take for a new General Manager to build up sufficient
trade c onnections and for the confidential information to become stale, I find that
3 Den Braven SA (Pty) Ltd v Pillay 2008 (6) SA 229 (D) para 55. See also para 24.
4 Id.
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a period of 12 months from the date of the resignation of Mr Scholtz is reasonable
as a restraint period.
[36] In the circumsta nces, I find that the restraint is enfo rceable.
[37] I am strengthen ed in that conclusion by the fact that a sister company of 4PL
Africa sought to enforce a restrain t that was worded identically in litigation in the
Labour Court. In that litigation, the 4PL group maintained that the restraint was
reasonable and enforceable. The application was d ismissed, however, on the
basis that the first applicant in that matter, which empl oyed the relevant
respondents , had no protectable interest, while the second applicant, which had
the protectable interest, was not the employer and therefore could not enforce
the restraint.
[38] It follows that, in my view, the applicants made out a case for a final interdict to
restrain Mr Scholtz from working for 4PL Africa in South Africa and from utilising
of sharing any of the applicants ’ confidential information .5
The relief to be granted
[39] The applicants sought the follow ing substantive relief in the notice of motion (as
paraphrased):
a. Mr Schol tz is restrained f rom competing with the applicants and from being
employed by 4PL Africa , the 4PL group of companies and any direct
competitor of the applicants within South Africa for a restraint period. (First
prayer)
b. Mr Schol tz is restrained f rom disseminating confidential information of the
applicants within the restrain t area and for the restraint period. (Second
prayer)
c. Mr Schol tz is restrained f rom contacting or soliciting customers of the
applicants to terminate their business relationships with the appli cants or to
5 See Experian S outh Africa (Pty) Ltd v Haynes 2013 (1) SA 135 para 59. It was not contended
that there is any other satisfactory remedy for the breach of contract b y Mr Scholtz; and it seems
to me that the applicants are correct in asserting that a damages claim is speculative and difficult
to quantify.
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provide their business to 4PL Africa or any other third party wh ich competes
with the applica nts within the restrain t area and for the restraint period.
(Third prayer)
d. Mr Schol tz is restrained f rom contacting or soliciting employees of the
applicants to terminate their employment relationships with the applicants
or to provide their business to 4PL Africa or any other third party which
competes with the applicants, within the restrain t area and for the restraint
period. (Fourth prayer)
[40] It was common cause at the hearing that the fourth prayer should not be granted,
given that the contracts of employment in question did not contain an express
prohibition on soliciting employees.
[41] Counsel for Mr Scholtz strenuously contended that the other prayers could not
be granted either, because they read differently from the provisions of the
contract itse lf. In particular, he contended that the Court could not cut down the
restraint period to be reasonable, because that would amount to making a new
contract for the parties.6
[42] On the facts of this case , these arguments do not have force :
a. First, I have found above that the ambit of the restraint i s reasonable , with
the possible exception of the restraint period. To contend in these
circumstances that the Court is limited to an order that parrots the words of
the restraint clause, is to put substance over form. It is the function of the
Court to particularise general provisions of the law (or of a contract) for
purposes of a specific case in its order .
b. Second, courts routinely enforce only such provisions of a restraint clause
as are found to be reasonable in the context of a specific case. There is no
problem in principle with that, as long as what is enforced is encompassed
by what is prohibited and there is no suggestion that the width of the ambit
of the restraint was for mulated for reasons other than the protection of
6 For this proposition, he relied on Laws v Rutherford 1924 AD 261 at 264 and Henred Freuhauf
(Pty) Ltd v Davel (2011) 32 ILJ 618 (LC) para 22 .
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legitimate interest s. This is borne out by the very clear and persuasive
exposition of Wallis AJ (as he was then) in Den Braven of the non-
applica tion of the doctrine of severance in the context of restraint clause s.7
The following pass age is of particular application:
“The proper approach in my view is for the court to ask itself
whether the conduct that the applicant seeks to restrain by way
of an interdict is conduct that falls within the terms of the restraint
agreement and from which the former employee agreed to
abstain. If the answer to that question is in the affirmative the
court then moves to an analysis of whether it should, in
accordance with the principles of public policy, enforce the
agreement to that extent by granting relief to the applicant. It has
no need in those circumstances to have regard to those portions
of the agreement that are more extensive than the relief actually
being sought. ”8
[43] The content s of prayers 1 to 3 as paraphrased above are in certain respects too
wide, in that they do not relate to the fa cts of this case. For example :
a. There is no evidence as to what the 4PL group of companies encompass es
or what each company in that group does. I will therefore not grant an order
in resp ect of the involv ement of Mr Scholtz with the entire group, but only
in respect of 4PL Africa and 4PL Cape.
b. It is unnecessary and undesirable on the facts of this case to e xtend the
order to any competitor of the applicants or to third parties involved in the
industry generally. Each case depends on its own facts.
[44] The partie s were agreed that costs should follow the event and th at costs on
scale C would be appropriate. I agree.
[45] In regard to the second respondent (the employer of Mr Scholtz), it did not appear
at the hearing , but it did enter notice of opposition ; and Mr Scholtz recorded in
7 See Den Braven SA (Pty) Ltd v Pillay 2008 (6) SA 229 (D) paras 36-54.
8 Id para 50.
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his answering affidav it that he was authorised to depose to it on behalf of the
second responde nt. Accordingly, the respondents will be ordered to pay the
applicants ’ costs jointly and severally.
[46] I thank counsel for their heads of argument and helpful submissions at the
hearing.
Order
[47] I make the following or der:
a. This matter is dealt with as urgen t.
b. Mr Henrico John Schol tz (“Mr Scholt z”) is interdicted and restrained f rom
competing with the applicants and from being employed by 4PL Africa Ltd
(“4PL Africa ”) or 4PL Cape (Pty) Ltd (“4PL Cape ”) within South Africa for a
period of 12 months starting on 1 May 2025 .
c. Mr Schol tz is interdicted and restrained f rom disseminating information
confidential to the applicants .
d. Mr Schol tz is interdicted and restrained f rom contacting or soliciting
customers of the applicants to terminate their business relationships with
the appli cants or to provide their business to 4PL Africa or to 4PL Cape
within South Africa for a period of 12 months starting on 1 May 2025 .
e. Mr Scholtz and 4PL Africa must pay the applicants ’ costs on scale C.
__________ _____________
DJ SMIT
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
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Date of hearing: 5 June 2025
Date of judgment: 25 June 2025
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For the applicant s:
For the first r espondent: M Lennox instructed by DH Hinrichsen
Attorneys Inc .
G Elliott SC instructed by Maurice
Phillips Wisenberg