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Scholtz and Another v TMA Express Road (Pty) Ltd and Another (2025/071413) [2025] ZAGPJHC 750 (4 August 2025)

68 Reportability
Contract Law
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Brief Summary

Restraint of trade — Enforcement of restraint and confidentiality undertakings — Application for leave to appeal against enforcement of restraint clause prohibiting former employee from dealing with any customers of new employer, regardless of prior connections — Legal issue of whether the order exceeded the scope of the restraint clause and whether a breach of confidentiality was established — Court held that the restraint clause's purpose justified its broad application, and that a reasonable apprehension of harm was sufficient to enforce the confidentiality undertakings, thus denying leave to appeal.

Comprehensive Summary

Case Note


Scholtz and 4PL Africa (Pty) Ltd v TMA Express Road (Pty) Ltd and TMA Logistics (Pty) Ltd

Application for Leave to Appeal from an urgent restraint-of-trade judgment

4 August 2025, High Court of South Africa, Gauteng Local Division, per DJ Smit AJ


Reportability


The judgment is reportable because it clarifies the proper scope of interim interdicts enforcing restraint-of-trade and confidentiality clauses. It aligns the South African approach with the reasoning in Experian South Africa (Pty) Ltd v Haynes and re-affirms that a court may grant a wide restraint where a narrower order would be impossible to police. The decision is significant for employment-law practitioners and commercial litigators as it restates the evidentiary burden for former employers seeking to protect confidential information and customer connections.


Cases Cited


Experian South Africa (Pty) Ltd v Haynes 2013 (1) SA 135 (GSJ)

Den Braven South Africa (Pty) Ltd v Pillay 2008 (6) SA 229 (D)

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)


Legislation Cited


No statutory enactments were referred to in the judgment.


Rules of Court Cited


No specific rules were mentioned.


HEADNOTE


Summary


The applicants, Mr Henrico Scholtz and his new employer 4PL Africa (Pty) Ltd, sought leave to appeal against an urgent judgment of 25 June 2025 that enforced a twelve-month restraint-of-trade and confidentiality clause in favour of the respondent employers, TMA Express Road (Pty) Ltd and TMA Logistics (Pty) Ltd. They contended that the order was overly broad, created a new contract between the parties, and overlooked factual disputes as to whether Mr Scholtz had used confidential information.


DJ Smit AJ dismissed the application. The court held that the purpose of the restraint was to protect customer connections and that its collateral effect of preventing dealings with new customers was permissible. Relying on Experian and Den Braven, the judge concluded that the wording of the clause justified a comprehensive prohibition on competitive employment within a limited time and geographic scope.


Addressing the confidentiality undertaking, the court held that the respondents were only required to show a reasonable apprehension of harm rather than an actual breach. On the common-cause facts—particularly Mr Scholtz’s possession of customer contact details and his immediate outreach to them—such apprehension was plainly established.


Key Issues


Whether the restraint order impermissibly exceeded the contractual clause.

Whether the court effectively rewrote the contract between the parties.

Whether factual disputes concerning use of confidential information barred final relief under the Plascon-Evans rule.

Whether a reasonable apprehension of harm sufficed for a final interdict.


Held


Leave to appeal was refused. The court found no reasonable prospect that another court would disturb the earlier order because the restraint’s breadth was justified, no new contract had been fashioned, and a reasonable apprehension of harm had been demonstrated.


THE FACTS


Mr Scholtz had been employed by TMA Express Road and TMA Logistics as a key account manager, cultivating extensive customer relationships. His contract included a restraint-of-trade prohibiting employment with competitors for twelve months within the Gauteng region and a broad confidentiality clause.


In early 2025 he resigned and took up employment with 4PL Africa, an undisputed competitor in the same logistics sector. Almost immediately he contacted several customers of his former employers, using contact details stored on his personal device. The respondents launched an urgent application and, on 25 June 2025, obtained an interdict preventing him from working for 4PL Africa in Gauteng and from using or disclosing any confidential information.


On 4 August 2025 the matter returned for determination of the present application for leave to appeal. The applicants argued that the original interdict was overly wide and that factual disputes should have been resolved in their favour.


THE ISSUES


The court had to decide whether an appeal would have reasonable prospects of success. That enquiry required it to consider three discrete questions: first, whether the restraint order went beyond protecting existing customer connections; second, whether the court’s formulation of the order amounted to rewriting the parties’ agreement; and third, whether the Plascon-Evans rule necessitated a finding that the confidentiality undertaking had not been breached.


ANALYSIS


The court began by emphasising the purpose of restraint-of-trade clauses: to prevent the exploitation of customer connections acquired during previous employment. Preventing an employee from joining a competitor entirely, even in respect of customers with whom he had no prior dealings, is a permissible and often necessary means to secure that purpose. Policing a narrower order would be impractical and contrary to commercial reality.


DJ Smit AJ then aligned the reasoning with that in Experian South Africa (Pty) Ltd v Haynes, which recognises that restraints may legitimately have collateral restrictive effects. The judge also drew from Den Braven South Africa (Pty) Ltd v Pillay, noting that a court is entitled, indeed obliged, to tailor an order to what is justified on the facts without being accused of rewriting the contract. In this instance the order mirrored the contractual wording and imposed no additional obligations.


Turning to confidentiality, the court held that the respondents needed only to demonstrate a reasonable apprehension of harm. The uncontested facts—that Mr Scholtz possessed customer databases, that he contacted those customers upon joining 4PL Africa, and that he had acknowledged using such information—sufficed. Therefore, the Plascon-Evans rule did not favour the applicants; even on their version, an apprehension of harm existed.


REMEDY


The application for leave to appeal was dismissed with costs, including the costs of senior counsel. The original interdict of 25 June 2025 remains in force.


LEGAL PRINCIPLES


A restraint-of-trade may legitimately prohibit all competitive employment within a defined period and area where narrower policing is impractical; any collateral restriction on dealings with new customers is incidental and permissible.


For a final interdict protecting confidential information, a former employer need not prove actual misuse; a demonstrable reasonable apprehension of harm suffices.


When assessing disputes on motion proceedings, the Plascon-Evans rule does not assist an applicant who admits facts that create such reasonable apprehension, even if actual misuse is denied.

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JUDGMENT IN APPLICATION FOR LEAVE TO APPEAL

DJ Smit, AJ


Introduction
[1] This is an application for leave to appeal against a judgment dated 25 June 2025
in which I enforced, on an urgent basis, a restraint of trade and confidentiality
undertakings given by Mr Henrico Scholtz.
[2] Mr Scholtz and his new employer, 4PL Africa argue that an appeal would have
reasonable prospects of success, for essentially the following reasons:
a. While I found that the interest protected by the restraint clause was the
customer connections that Mr Scholtz had built up while he was in the
employ of TMA Express Road and TMA Logistics, the ambit of the order I
made was far wider than that and prevent s him from dealing with any
customers of 4PL Africa even if they had no connection with the former
employers of Mr Scholtz.
b. By framing the interdicts as I did, I made a new contract for the parties.
c. There was a dispute of fact on the papers regarding whether Mr Scholtz
used his former employers’ confidential information (which, it appears to be
common cause, was at his disposal) to further his new employer’s interests.
Applying the Plascon-Evans rule, I should have found that he did not breach
his confidentiality undertakings.
[3] In my view, there is no reasonable prospect that another court will uphold an
appeal against the order made on 25 June 2025.
[4] In the first place, the very purpose of restraint of trade clauses in general – and
this clause in particular – is to prevent a former employee from working for a
competitor in circumstances where that creates the opportunity for the employee

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to exploit the customer connections he had built up in his previous employment.
It is irrelevant to that purpose that a collateral result of the prevention of
competing with the former employer is also to prevent the employee from dealing
with new customers with whom he had no prior involvement. That collateral effect
is justified by the primary purpose.
[5] Put differently, it is impossible to police an obligation on the employee not to deal
with former customers but only with new customers , which is why it is not
disproportionate to prohibit employment (for a limited period and geography) with
competitors altogether, regardless of the fact that they may also have customers
who are entirely new to the employee.
[6] In my view, these propositions are correctly stated and explained in the Experian
judgment,1 with which I align myself.
[7] In the second place, Wallis AJ (as he then was) explained in Den Braven2 that
limiting the ambit of a restraint in an order to what is justified on the facts
comports both with general principles and, in particular, with the prior decisions
he cited. In my view, that was a correct statement of the law, and I did not
understand Mr Elliot SC to contend otherwise.
[8] Rather, counsel contended that I strayed outside the ambit of the restraint clause.
I do not think, however, it is reasonably arguable that paragraphs (b) or (d) of the
order add anything to the wide ambit of the wording of the restraint clause itself,
which prohibits competing with the ex-employers.
[9] Third, to be entitled to a final interdict against the dissemination of confidential
information, it was not necessary for the former employers to show that
Mr Scholtz actually breached his confidentiality undertaking. It was sufficient to
show a reasonable apprehension of harm. 3 In this case, the risk of harm was
amply demonstrated by common cause or undeniable facts, such as that Mr
Scholtz was in possession of the contact details of customers of his ex -

Scholtz was in possession of the contact details of customers of his ex -
employers; that he contacted them upon taking up employment with 4PL Africa;

1 Experian South Africa (Pty) Ltd v Haynes 2013 (1) SA 135 especially paras 21-22
2 Den Braven SA (Pty) Ltd v Pillay 2008 (6) SA 229 (D) paras 42-47.
3 Experian South Africa (Pty) Ltd v Haynes 2013 (1) SA 135 para 59

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Date of hearing: 4 August 2025
Date of judgment: 4 August 2025

1

For the applicants for leave to appeal:


For the respondents in the application
for leave to appeal:
G Elliott SC instructed by Maurice
Phillips Wisenberg

M Lennox instructed by DH Hinrichsen
Attorneys Inc.

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