REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, PRETORIA
Case Number: 2025 -077606
In the matter between:
AXON GROUP 222 (Pty) Ltd First Applicant
KILNERPARK SECURITY CC Second Applicant
and
ANSEHELISE VAN DER KOOI First Respondent
BRINANT GROUP MOOT BRANCH Second Respondent
JUDGMENT
RAJAB -BUDLENDER AJ
Introduction
[1] This matter came before me in the urgent court. The Applicants apply for urgent
final interdictory relief against both Respondents premised on a restraint of trade
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________
DATE SIGNATURE
clause in the contract of employment concluded between the Second Applicant
and the First Respondent. The First Respondent was an employee of the
Second Applicant from 1 May 2016 until her resignation on 18 March 2025. The
First Respondent began working for the Second Respondent on a full time basis
immediately after her resignation from the First Applicant. Both the Applicants
and the Second Respondent are secur ity companies situated in very close
proximity, in fact next door to each other. The Seco nd Applicant was bought by
the First Applicant as a going concern, on or about 10 March 2025.
The Relief Sought
[2] The Applicants seek to interdict the Second Respondent from acting in breach of
the restraint of trade provisions set out in her contract of employment with the
Second Applicant . Specifically, they seek an order interdicting her from:
a. directly or indirectly engaging with Brinant Group in business or activities
that competes directly or indirectly with Kilnerpark Security, be it as
shareholder, partner, member of a close corporation, director of a company
or in any other capacity within 3 years after the termination of the First
Respondent’s employment agreement (“the Restraint Period”) ;
b. directly or indirectly engaging with any other security services provider in
business or activities that compete directly or indirectly with the Second
Applicant, be it as shareholder, partner, member of a close corporaton,
director of a company or in any other capacity within the Restraint Period ;
c. during the Restraint Period having any interest, whether directly or indirectly
and whether financial or otherwise, in any corporate entity, company, close
corporation, partnership , proprietorship, person, trust entity, or other
business which competes o r is likely to compete with the Second
Applicant’s business within the Pretoria area ;
d. during the Restraint Period, working or being engaged in the Pretoria area
as an employee, independent contractor, agent, advisor, broker or
otherwise for remuneration or for free for any corporate entity, company,
close corporation, partnership, proprietorship, person, trust entity, or other
business which is directly or indirectly engaged or interested in competitive
activity with the Second Applicant ;
e. During the Restraint Period, imparting the knowledge acquired to the
Second Respondent ; and
f. During the Restraint Period, and for any reason whatsoever encourage or
entice or incite or persuade or induce any employee, client, or consultant of
the Second Applicant to terminate his/her employment, service level
agreement or consultancy with the Seco nd Respondent.
[3] The Applicants further seek to interdict the First and Second Respondents from
unlawfully competing with the Second Applicant by:
a. Misusing the Second Applicant’s Confidential Proprietary Information (as
set out in the application) to advance their own and the Second
Respondent’s business interests, at the Second Applicant’s expense ;
b. Unfairly utilising the Second Applicant’s existing and/or prospective
contractual relations through the unlawful utilisation of the Second
Applicant’s Confidential and Proprietary Information ;
c. Interfering with the Applicant’s existing and/or prospective contractual
relations through the unlawful utilisation of the Second Respondent’s
Confidential and Proprietary Information ;
d. Interfering with the 2nd Applicant’s employees and workforce by
approaching such employees and offering them employment and certain
benefits;
e. contacting the existing clients of the Second Applicant.
[4] A cursory review of the relief sought makes clear that the relief sought against
both Respondents, in particular, the First Respondent – is extensive and , as I set
out below, goes far further than the contractual clause on which the relief against
the First Respondent is premised.
The essential context
[5] The Second Respondent was employed as an administrative assistant on a half
day basis by the Second Applicant. She says that she born in Pretoria and has
lived there all her life. She is a divorced single mother and provides for her 2
children. Other than working in a bar before she was employed with the Second
Applicant, she has never been employed and has no experience in any other
industry. She was employed on a half day basis by the Second Applicant. In
order to make ends meet she operated a facia l salon in her free hours. She is
currently employed full time by the Second Respondent. She alleges that the
relief sought by the Applicants would unduly restrict her freedom to work in the
only industry she has any experience in and the restraint is unr easonable. She
and the Second Respondent both state they do not have any of the Applicant’s
confidential or proprietary information in their possession nor are they making
use thereof.
[6] The Second Applicant is a well -known security company in the Moot area of
Pretoria and is the Second Respondent’s biggest competitor in the area. In short
the Applicant’s case is that the provision of security services is a price sensitive
business and that the First Respondent had access to the clients of the Second
Applicant and had built up a relationship with them over the course of her
employment. She also had knowledge of the pricing structure and other
unspecified confidential information of the Se cond Applicant. She used this
information and knowledge to seek to lure away staff and clients from the
Applicants to the Second Respondent’s business. This, the Applicants contend,
is in conflict with the terms of her Employment Contract.
[7] The relevant clause of the First Respondent’s employment contract reads as
follows:
“Employee agrees that any and all knowledge or information that may
be obtained in the course of the employment with respect to the secret
processes, formulas, machinery etc used by the employer in
manufacturing and distribution of its product will be forever held
inviolate and be concealed from any competitor and all other persons
and that he or she will not engage as employer, employee, principle,
agent or otherwise, directly or indirectly at any t ime in a similar
business and that he or she will not impart the knowledge acquired to
anybody and that should he or she at any time leave the employ of
the employer he or she agrees not to enter into the employ or service
or otherwise act in aid of the bu siness of any rival company or concern
or individual engaged in the same or similar lines of business for the
period of 3 years.”
[8] In relation to the Second Respondent, the Applicants’ case is less clear and
certainly not pleaded with any measure of clarity or substantiation on the papers.
However, it would appear that the case against the Second Respondent is that
in contacting clie nts of the Applicants, it’s conduct constituted an unfair business
practice which was conducted according to the founding affidavit “ with the
knowledge and information they obtained from the First Respondent and which
was in breach of the previous employment details of the First Respondent .”
[9] The Applicant further alleges in one sentence in the founding affidavit that the
actions of the First Respondent are attributable to the Second Respondent on
the basis of her employment by the Second Respondent. That is the extent of
the case made out aga inst the Second Respondent.
Self-created u rgency
[10] It is common cause that the Applicants were aware that the First Respondent
had become employed by the Second Respondent virtually as soon as she
started working there on or about 19 March 2025 .
[11] This raises an immediate difficulty for the Applicants: Why did they wait until 30
May 2025 (some 10 weeks later) to approach the urgent court?
[12] Counsel for the Applicants indicated that :
a. Although his clients were aware of th e First Respondent becoming
employed by the Second Respondent shortly after 19 March 2025, they
chose not to enforce the restraint of trade against the First Respondent for
a period of approximately two months because they felt sorry for her that
she was a single mother.
b. However, when it became clear to them that she was involved in calling
clients of theirs and that the Second Respondent was trying to poach staff
members, they investigated and then decided to bring the present
application.
[13] There are a number of difficulties with these contentions.
[14] First, whatever the motivations of the Applicants, it is not entitled to “blow hot and
cold”. It cannot know that the Second Respondent is employed by the First
Respondent, do nothing about this (not even via a written warning drawing
attention to the rest raint clause or seeking any undertakings) and then suddenly
approach the urgent court some 10 weeks later.
[15] Second, if the Applicants wished to change their stance and seek to justify this,
they needed to place detailed facts before the Court to explain this change of
stance in respect of the First Respondent .
a. Yet, t he Founding Affidavit is notably short of dates on which the Applicants
became aware of what they say triggered their concerns , and when they
conducted an investigation into the First and Second Respondent s’
conduct. The only date of assistance in the founding affidavit is that of 22
May 2025 when the deponent states that his attorney spoke to one of the
Applicants’ clients and convinced him to assist them.
b. Moreover, w hat is clear from the annexures to the founding affidavit is that
certain of the Applicants employees had been contacted on 15 and 28 April
2025 by the Second Respondent. All the statements from employees
attached to the founding affidavit are dated 20 May 2025 so it is reasonably
accepted that the Applicant s were aware before this that their employees
had been contacted. The statement by Mr Partridge who is the CEO of the
First Applicant indicates that he was notified of concerning conduct by the
Respondents on 19 May 2025.
c. Yet, t his Application was launched on 30 May 2025.
[16] It is therefore clear that t he Applicants did nothing for two months after becoming
aware that the First Respondent was employed by a competitor , in
circumstances where their cause of action against her is premised on the
contention that such employment breached the restraint of trade. In fact on the
Applicants’ own version, they were aware that she was employed by the Second
Respondent and chose not to enforce the restraint of trade.
[17] There is no evidence on the papers that the Applicants wrote to the First
Respondent and placed her on notice that she was contravening her contract or
gave her any other indication that she was in breach of her contract with them or
sought undertakings to avoid prejudice .
[18] In my view, therefore, any urgency in this application has been self -created. On
this basis alone, the matter is not deserving of being dealt with on the urgent roll.
[19] Moreover, and in any event, there are considerable doubts about whether the
applicants have shown any urgent risk of harm justifying a final interdict. No
evidence has been placed before me to suggest that the offending conduct
alleged against the First Respondent is ongoing. Only one statement of a client
(not under oath) who says he was contacted on 5 May 2025 by the First
Respondent is attached to the papers. That is not sufficient :
“[T]he procedure set out in rule 6(12) is not there for taking. 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 affor ded 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
because if the latter were to wait for the normal course laid down by the
rules it will not obtain substantial redress.”1
[20] In relation to the Applicants’ case against the Second Respondent , similar
difficulties apply. That case is premised on the Second Respondent’s
employment of the First Respondent . But, as indicated, the Applicants on their
own version knew of this ten weeks before launching this application.
[21] I am therefore of the view that the application does not meet the well -trodden
requirements for being dealt with on the urgent court roll. It must therefore be
struck from the roll.
Substantive difficulties
[22] In light of this conclusion, it is not strictly necessary for me to comment on the
merits. However, given the benefit of having had argument on this score and
without making any final finding, I point out that the Applicants’ case also faces
significant substantive obstacles.
a. Most notably, it is by no means clear that the restraint of trade clause in the
employment contract is applicable to the First Respondent or to the
business of the Second Applicant.
b. Counsel for the Applicants correctly accepted in argument that the clause
was clearly copied from a contract used for a different industry.
c. The clause provides that the employee will not use “ knowledge obtained in
the course of employment with respect to the secret processes, formulas,
machinery etc used by the employer in manufacturing and distribution of its
product. . . and that he or she will not engage as employer, employee,
principle, agent or otherwise, directly or indirectly at any time in a similar
business and that he or she will not impart the knowledge acquired to
anybody ” (my emphasis )
1 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and
Others [2011] ZAGPJHC 196 at para 6, cited in In re: Several matters on the
urgent court roll 2013 (1) SA 549 (GSJ) at para 7.
d. The Applicants do not use “secret processes, formulas, machinery etc in
the manufacturing and distribution of its product.” The Respondents
foreshadowed this disconnect between the restraint clause and facts of the
Applicants’ business in their answering affidavit – this is not addressed in
the Replying Affidavit.
e. The Applicants do not manufacture products but rather provide a service to
customers through the provision of security. At most they install equipment
as part of a security system which they have not manufactured. No
evidence was placed before me to the contrary. Counsel for the Applicant
attempted to argue that “secret processes” could refer to the process of
determining pricing structures. The flaw in this argument is that the clause
must be read as a whole . Therefore “secret processes” must be read i n the
context of the sentence in which it is located. Therefore at issue is
knowledge“ with respect to the secret processes, formulas, machinery etc
used by the employer in manufacturing and distribution of its prod uct.”
f. Given all of the above, it is by no means clear to me that the clause
concerned – which is the foundation of the case for the applicants - even
applies in the present context. But, as mentioned, it is not necessary for me
to reach a final decision in this regard.
Order
[23] In the circumstances, I make the following order:
a. The application is struck from the urgent roll.
b. The Applicants are ordered to pay the Respondents’ costs on Scale C.
N. Rajab -Budlender
Acting Judge of the High Court, Pretoria
20 June 2025
For the Applicant:
For the Respondent: Adv E. Janse Van Rensburg
Baartman Du Plessis Attorneys
Adv S. Nel instructed by Weavind &
Weavind Inc.