THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
NOT REPORTABLE
Case no: 2025- 072452
In the matter between:
TWK AGRI (PTY) LTD Applicant
and
ROLINE HOLTZHAUSEN ( neé FERMOR) First R espondent
MRA INSURANCE BROKERS (PTY) LTD Second Respondent
Heard: 11 June 2025
Delivered: 23 June 2025 . Served on the parties by email , and case lines.
Summary: Urgent application re restraint of trade. Requirements established for
final order interdicting disclosure of confidential information and conducting business
contrary to restraint agreement .
JUDGMENT
DANIELS J
2
Introduction
[1] The applicant seeks a final interdictory relief against the first respondent, on
an urgent basis, in the following terms:
1.1 Soliciting the custom of or dealing with or in any manner transacting
with, in competition to the applicant, any business, company, firm,
undertaking, association or person which has been a customer or supplier of
the applicant in the territory (i.e. within the area of long – term insurance
including all categories and sub categories) short term insurance (including all
categories and sub categories) retail pension benefits, pension fund benefits,
participatory interests in collective scheme, investments and health service
benefits) for a period of twenty four months;
1.2 Offering employment to or in any way causing to be employed any
person who was employed by the applicant as at the termination of the employment of the first respondent with the applicant for a period of twenty four months.
[2] Although the applicant argued for an order interdicting the disclosure of
confidential information, such as clients and client information, this relief is not clear from its notice of motion. I deal with this matter later.
Urgency
[3] The applicant approached the court on an urgent basis , but allowed sufficient
time for the filing of opposing papers and full opposition by the first respondent . The
first respondent contended that the applicant was supine for approximately six weeks and there is little to be gained by bringing the application at such a late stage. It is
trite that, al though applications seeking orders in restraint of trade are said to have
the “inherent quality of urgency” the applicant must nevertheless show that the
application is urgent.
1 The applicant set out the grounds of urgency , in detail, in its
1 See Vumatel (Pty) Ltd v Majra & others (2018) 39 ILJ 2771 (LC) at par as [4] to [8]
3
founding papers , which I see no reason to repeat . I accept that the applicant
proceeded with expedition while taking appropriate steps to try to avoid litigation.
There can be no question that the applicant cannot achieve substantial redress in
the normal course, by which time its rights would likely have been extinguished by
the passage of time. Having considered the submissions , and the applicable
principles ,2 I am satisfied that the applicant has made out its case for urgency .
Factual matrix
[4] The applicant is a diversified group of entities providing services in the
agricultural, forestry, grain, mining, and financial sectors. One of its divisions falls in
the insurance industry . It is well known that the industry is a highly competitive, and
one in which the relationship of trust between the broker and the client is critical. [5] The first respondent was employed by the applicant as a short term insurance
broker, based at its head office, for about seven years . A significant proportion of her
remuneration derived from commission, 30% , payable from client premiums. During
this time, the first respondent held a portfolio of approximately R25 000 000, 00
which she described as an average portfolio when considered against the insurance business of the applicant as a whole. [6] It was common cause that brokers in the industry are encouraged to, and do
in fact, establish intimate bonds with their clients. Brokers are required to familiarise themselves with the needs of clients. It is common for clients to follow the brokers
when they leave the ir employer . The first respondent conceded that she had
established strong bonds with her clients during her time with the applicant, but she
also maintained that she had relationships with several clients before working at the
applicant .
2 See East Rock Trading 7 (Pty) Ltd & another v Eagle Valley Granite (Pty) Ltd & others [2011]
ZAGPJHC 196; [2012] JOL 28244 (GSJ) at para [6]; Jiba v Minister: Department of Justice
& B Constitutional Development & others (2010) 31 ILJ 112 (LC); AMCU & others v Northam
Platinum Ltd & another (2016) 37 ILJ 2840 (LC) paras [20] to [26]
4
[7] The first respondent was engaged by the applicant during March 2018, but
only asked to sign a restraint agreement two months later . She allege d, with no
proof, that the applicant had deliberately delayed presenting the agreement to her in
order to pressurize her into signing it.
[8] It is common cause that the applicant and the first respondent concluded a
restraint of trade agreement as well as a separate confidentiality agreement. The
confidentiality agreement records that certain information is confidential including the
benefits accruing to the first respondent by the applicant, business methods and
secrets, technology information, client lists and records, client’s financial information, contractual or financial arrangements between the applicant and any other entities it
deals with, sales expertise, data relating to clients and product suppliers. The confidentiality provisions are echoed in the restraint agreement.
[9] The terms of the restraint agreement are broader than the applicant seeks to
enforce in this matter . In essence, the restraint included an undertaking by the first
respondent that she would not be interested in, engaged in, or associated with
(whether as owner, employee, agent, consultant, or broker) any business in competition with the applicant for a period of twenty four months following the termination of her employment with the applicant. The applicant, however, seeks only to interdict the first respondent from soliciting the custom of the applicant ,
transacting with the clientele of the applicant , and disclosing confidential information.
[10] The first respondent alleges that, had she known of the wide terms of the
restraint earlier, she would have reconsidered seeking employment with the applicant. On the other hand, the applicant avers that, from the commencement of
her employment, the first respondent was aware that she would be required to sign a restraint agreement. She was advised as much in the offer of employment issued to
her on 6 February 2018.
[11] The first respondent gave notice of her resignation to the applicant on 4
March 2025, informing it of her resignation with effect from 31 March. She commenced employment with the second respondent the very next day. The second
5
respondent , MRA Insurance Brokers (“MRA”) is the largest broker in Mbombela, and
indeed the whole of Mpumalanga. It is a direct competitor of the applicant.
[12] At the time the urgent application was launched, only one and half months
after the first respondent had resigned, approximately twenty three clients had
cancelled their insurance policies with the applicant. F irst respondent stated that
several of these clients had terminated their policies for reasons unrelated to her
departure. A small number of these policies were personal, relating to either her or
her family. However, the first respondent conceded that several of the policies were
cancelled because the clients wished to move to the second respondent so she
could service them. The first respondent denied solicit ing the business of these
clients and contended that they cancelled their policies voluntarily. Importantly , the
first respondent does not deny that she now services several of these clients.3 The
first respondent also does not deny that the restraint agreement prevent ed her from
transacting with, or engaging with, the former clients of the applicant.
Factual disputes
[13] In applications for final relief, when faced with factual disputes, our courts
have consistently applied the principles set out in Plascon -Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd4 which holds that, in general, the undisputed averments
from the respondent constitutes the substratum upon which the dispute must be
resolved.
[14] The Plascon -Evans principle is further clarified by Wightman t/a JW
Construction v Headfour (Pty) Ltd and Another
5 where Heher JA held:
“[12] Recognising that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who seeks final relief on
3 It was common cause that several former clients (of the applicant ) are now serviced by the first
respondent, through the second respondent, namely; Gercar (Pty) Ltd, PK Safaris (Pty) Ltd, JG
Steyn, JH Du Preez, Bapela Engineering, A Benade, and Timbiwa Minerals.
4 1984 (3) SA 623 (A) at 634E - 635C (the “Plascon- Evans ” principle )
5 2008 (3) SA 371 (SCA)
6
motion must, in the event of conflict, accept the version set up by his
opponent unless the latter's allegations are, in the opinion of the court, not
such as to raise a real, genuine or bona fide dispute of fact or are so far -
fetched or clearly untenable that the court is justified in rejecting them merely
on the papers : Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd 1984 (3) SA 623 (A) at 634E - 635C. See also the analysis by Davis J
in Ripoll- Dausa v Middleton NO and Others 2005 (3) SA 141 (C) at 151A -
153C * with which I respectfully agree. (I do not overlook that a reference to
evidence in circumstances discussed in the authorities may be appropriate.)
[13] A real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise the dispute has in his
affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the
fact averred lies purely within the knowledge of the averring party and no
basis is laid for disputing the veracity or accuracy of the averment. When the
facts averred are such that the disputing party must necessarily possess
knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true or accurate but, instead of doing so, rests his
case on a bare or ambiguous denial the court will generally have difficulty in
finding that the test is satisfied. I say 'generally' because factual averments
seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may not necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them. There is thus a serious duty
imposed upon a legal adviser who settles an answering affidavit to ascertain and engage with facts which his client disputes and to reflect such disputes
7
fully and accurately in the answering affidavit. If that does not happen it
should come as no surprise that the court takes a robust view of the matter .”
(own emphasis)
[15] The applicant alleges that the first respondent solicited the custom and clients
of its business. As previously mentioned, t he first respondent denies this and says
they left the applicant voluntarily. The first respondent alleges the clients contacted
her, and she never contacted them. With respect, I find this version to be far -fetched
and untenable. While one accept s and understands that a broker must be intimately
acquainted with the client’s needs, it does not follow that every client is in regular,
and frequent, contact with the broker. This will be dictated by the needs of the client .
The first respondent does not explain how it came about that the clients became
aware of her departure, or how they accessed her contact details . There can be no
doubt that such information would not have been shared by the applicant. Finally, it
is too much of a coincidence that so many clients decided to terminate their policies (with the applicant) and migrate d to MRA shortly after first respondent joined it. The
authorities are clear that, when the facts lie within the knowledge of the respondent,
it is impermissible for him, or her, to simply rest their case on a bare denial. I
therefore accept that the first respondent solicited the custom of the applicant’s clients.
Legal principles and analysis
Protectable interests
[16] The first respondent denies that the applicant has protectable interests. It is
unclear on what basis this deni al is made. It is well established that the proprietary
interests that can be protected by a restraint agreement are essentially of two kinds:
6
16.1 All confidential matter useful for the carrying on of the business and
which, if disclosed to the competitor, may assist him to gain a relative
6 See Tension Envelope Corp. (SA) Ltd v Zeller & another 1970 WLD 333 at 347G -H
8
advantage. Such confidential material is sometimes referred to as “trade
secrets .”
16.2 The relationships with customers, potential customers, suppliers, and
others that go to make up what is compendiously referred to as the “trade connection” of the business . This is an important aspect of its incorporeal
property known as goodwill.
7
[17] Whether information is confidential and protectable is a factual question, to be
determined by reference to whether the information is: capable of application in a
trade or industry, useful and not public knowledge; known only to a restricted number
of people; and of economic value to the person seeking to protect it. The enquiry is
objective. On the facts of this matter, objectively, there can be no doubt that the
information is of economic value in the industry. This information extends , for
example, to the client’s identit ies, their contact details , their personal information,
their financial needs and histories, and their ability to make regular payments of premiums. Naturally, this information would be known to only a small circle. None of
this was seriously contested.
[18] The first respondent denied disclosing or sharing confidential information,
trade secrets , or customer connections, with the second respondent. However it is
unnecessary for applicant to prove that the first respondent has done so. It suffices
that the first respondent had access to such information (which she acknowledged
by signing agreements to that effect) and she may do so if so inclined. Where an
employee becomes engaged with a competitor, there is a risk of disclosure and the employer is entitled to protect its commercial interests. This was explained in
Experian South Africa (Pty) Ltd v Haynes and another
8 as follows:
“[18] In Rawlins and Another v Caravan Truck (Pty) Ltd [1992] SASCA 204;
1993 (1) SA 537 (A) at 541C –D Nestadt JA, dealing with the issue of a party’s
relationship with customers, stated that the need of an employer to protect his
7 See Sibex Engineering Services (Pty) Ltd v Van Wyk & another 1991 (2) SA 482 (T) at 502D
8 2013 (1) SA 135 (GSJ); (2013) 34 ILJ 529 (GSJ)
9
trade connections arises where the employee has access to customers and is
in a position to build up a particular relationship with the customers so that
when he leaves the employer’s service, he could easily induce the customers
to follow him to a new business. The learned judge referred to Heydon The
Restraint of Trade Doctrine (1971) at 108, where it is stated that the “ customer
contact ” doctrine depended on the notion that “ the employee, by contact with
the customer, gets the customer so strongly attached to him that when the
employee quits and joins a rival he automatically carries the customer with
him in his pocket ”. In Morris (Herbert) Ltd Saxelby (1916) 1 AC 88 (HL) at 709,
it was said that the relationship must be such that the employee acquires
“… such personal knowledge of and influence over the customers of his
employer … as would enable him (the servant or apprentice), if competition
were allowed, to take advantage of his employer’s trade connection …”.
… [20] As I have pointed out above, the onus is on the respondent to prove
the unreasonableness of the restraint. He must establish that he had no access to confidential information and that he never acquired any significant personal knowledge of, or influence over, the applicant’s customers whilst in the applicant’s employ. It suffices if it is shown that trade connections through
customer contact exist and that they can be exploited if the former employee
were employed by a competitor. Once that conclusion has been reached and
it is demonstrated that the prospective new employer is a competitor of the
applicant, the risk of harm to the applicant, if its former employee were to take
up employment, becomes apparent. See Den Braven SA (Pty) Limited v Pillay
and Another [2008] 3 All SA 518 (D) at paragraphs [17] to [18].
[21] Where an applicant as employer, has endeavoured to safeguard itself
against the unpoliceable danger of the respondent communicating its trade
secrets to, or utilising its customer connection on behalf of a rival concern
after entering that rival concern’s employ by obtaining a restraint preventing
the respondent from being employed by a competitor, the risk that the
respondent will do so is one which the applicant does not have to run and
neither is it incumbent upon the applicant to enquire into the bona fides of the
10
respondent , and demonstrate that he is mala fides before being allowed to
enforce its contractually agreed right to restrain the respondent from entering
the employ of a direct competitor (see IIR South Africa BV (Incorporated in the
Netherlands) t/a Institute for International Research v Tarita and Others 2004
(4) SA 156 (W) at 166I to 167C). In such circumstances, all that the applicant
needs do is to show that there is secret information to which the respondent
had access, and which, in theory, the respondent could transmit to the new
employer should he desire to do so.
(own emphasis)
[19] Accordingly , the applicant does not need to show that first respondent actually
disclosed confidential information: it need only show that she could potentially do so.
The very purpose of the restraint is to relieve the applicant from the burden of
showing bona fides or lack of retained knowledge on the part of the respondent
concerning the confidential information. The applicant does not need to content itself
with crossing fingers and hoping the respondent will abide by the undertakings that she has given. [20] While the confidential information cannot be expunged from the first
respondent’s mind, she can and should be prevented from sharing that information
with third parties, or using such information to gain a competitive advantage. In
Printers and Finishers Ltd v Halloway
9 the court held: “ The mere fact that the
confidential information is not embodied in a document but is carried away by the
employee in his head is not, of course, of itself a reason against the granting of an
injunction to prevent its use or disclosure by him. ”
[21] The applicant did not seek a specific order interdicting the first respondent
from disclosing confidential information. However, this relief was adequately dealt
with in the founding papers and during argument. Furthermore, such relief is of the
9 See Strike Productions (Pty) Ltd v Bon View Trading (Pty) Ltd & others [2011] JOL 26664 (GSJ) at
para [18]
11
same nature sought in the other prayers.10 In the circumstances, the relief may be
granted under the claim for ‘further and alternative relief .’
Reasonableness of the restraint
[22] In Magna Alloys and Research (SA) (Pty) Ltd v Ellis11 the Appellate Division
held that the party seeking to enforce a restraint must prove the agreement, and its
breach. Thereafter, a respondent who seeks to avoid the restraint, bears an onus to demonstrate, on a balance of probabilities, that the restraint is unreasonable, and therefore unenforceable. The central question is whether the restraint is
unreasonable in the context in which it is to be enforced. Factors the court will
consider include the subject matter, area, and duration of the restraint.
12 Our courts
are more likely to take a more favourable view of the restraint where the parties engaged on an equal footing when the restraint was agreed.
13 Although this is a
question of fact there is a general acceptance that , in the employment context,
parties rarely contract as equals. Exceptions will include instances where the
employee is in senior management, highly skilled and in demand.
[23] In disputes concerning restraints, there arises a tension between the right of
individuals to be economically active, to pursue his or her trade or profession, and
the need for individuals to respect the agreements into which they have voluntarily
entered. Contracts which unreasonably restrict the covenantor’s freedom to trade, or
work , are unreasonable and unenforceable.14
[24] Public policy dictates that agreements entered into voluntarily are binding and
enforceable. The court must therefore strike a balance between the need to respect
agreements,15 the freedom of the individual employee to practice his trade,
professional or occupation,16 the nature of the restraint, and the competing interests
10 See D.D v I.L and Another (16939/2024) [2024] ZAWCHC 215 (20 August 2024)
11 1984 (4) SA 874 (A)
12 Experian, cited in fn. 8 at para [57]
13 Dickinson Holding Group v Du Plessis 2008 4 SA 218 N
14 J Louw & Co. (Pty) Ltd v Richer 1987 (2) SA 237 (N) at 243 D - E
15 Brisley v Drotsky 2002 (4) SA 1 (SCA) at para [94]
16 See section 22 of the Constitution of the Republic of South Africa, 1996
12
of the parties.17 It is necessary for the court to make value judgments18 taking into
account all the relevant considerations including the consideration that everyone
should be economically active and productive.
[25] In this matter, it is common cause that the restraint exists and was breached.
The restraint prohibited the first respondent from taking up employment with a
competitor but she did exactly that . It is common cause that the first respondent, in
breach of the restraint, is transacting with former clients of the applicant. That she
does so at the request of the clients is of no moment. Moreover, on the facts, I have
already found that first respondent solicited the clients of the applicant. In the
circumstances, the burden lies with the first respondent to show that the restraint is unreasonable. Given that the applicant only seeks the partial enforcement of the
restraint , and does not seek to extinguish the first respondent’s ability to work in the
industry , the burden of proving that the restraint is unreasonable will be even harder .
[26] The first respondent does not expressly take issue with the matter, area, or
duration of the restraint. Instead, she says that she did not contract with the applicant
as an equal party. On the facts of this matter, this is of no moment . The first
respondent was fully aware that the applicant required her to sign a restraint. This was made clear to her when she was offered employment. She did little to enquire
about the nature and extent of the restraint. Apart from the fact that the applicant is a
large concern, and the first respondent is an employee, there is little detail of the extent of the inequality between the parties.
[27] In the circumstances, the first respondent has failed to demonstrate that the
restraint is unreasonable.
Conclusion
17 Torrente & another v Grant Monaghan & Associates Incorporated ( 2024) 45 ILJ 798 (LAC) at para
[21]
18 Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 SCA at para [15]
13
[28] The applicant seeks a final interdict and must therefore satisfy three
requirements19 namely: a clear right, an injury actually committed or reasonably
apprehended, and the absence of any alternative satisfactory remedy.
[29] As I explained above, I believe that the applicant has proven that it has a clear
right to the relief sought in prayer 2.1 of the notice of motion. It proved the existence
of the restraint, and the confidentiality agreement, and the breach thereof. There is
no satisfactory alternative remedy . If the first respondent is not interdicted from
disclosing the confidential information, relating to the clients and the business of the
applicant, to third parties (including the second respondent) there is a reasonable apprehension that she will do so in breach of her confidentiality undertakings. The first respondent finds herself employed by the second respondent, in competition with the applicant. The temptation is always present to use her prior knowledge, gained during her employment with the applicant, to benefit herself and the second respondent.
[30] The applicant failed to prove any right to the relief sought in prayer 2.2 of the
notice of motion. No factual basis was laid for such relief. I am therefore not inclined to grant such relief.
Costs
[31] The applicant did not vigorously pursue costs during argument. On balance, in
my view, the requirements of law and fairness do not dictate that there should be a costs order .
Court Order [32] In the circumstances, I make the following order:
32.1 The application may be heard as one of urgency, in accordance with
Rule 38 of the Rules of this Court,
19 Setlogelo v Setlogelo 1914 AD 221 and 227
14
32.2 The applicant is granted an order in terms of prayer 2.1 of the notice of
motion,
32.3 The first respondent is interdicted for a period of 24 months (from the
date of her termination of employment with the applicant) from using for her
own benefit, or disclosing to second respondent, or any other party, the
information identified as “confidential” in the restraint of trade and
confidentiality agreements between herself and applicant.
32.4 There is no order as to costs.
RN Daniels
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:
Adv M Jacobs
Instructed by: Seymore Du Toit & Basson Attorneys
For the First Respondent:
Adv R Van Schalkwyk Instructed by: Du Toit – Smuts Attorneys