THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025-121270
In the matter between:
TWK AGRI (PTY) LTD Applicant
and
DE LANGE, COERT FREDERICK First Respondent
INTERSURE FINANCIAL SERVICES (PTY) LTD Second Respondent
Heard: 8 August 2025
Delivered: This judgment was handed down electronically by circulation to
the parties' legal representatives by email, and by publication on Caselines.
The date for hand-down is deemed to be 19 August 2025.
Summary: Application to enforce an earlier order of this Court pending the
outcome of an appeal. The requirements of section 18(3) of the Superior
Courts Act No 10 of 2013 were met, and the earlier order of this Court, which is
sought to be appealed, remains operative and effective.
JUDGMENT
2
GANDIDZE, J
Introduction
[1] TWK Agri (Pty) Ltd (TWK Agri), the applicant herein, seeks the interim
enforcement of Daniels J’s Order, dated 30 June 2025, issued against De Lange
Coert Frederick (De Lange), the first respondent herein. Enforcement is sought
pending the determination of an application for leave to appeal against the Daniels J
order:
1.1 Interdicting De Lange from soliciting the custom o f or dealing with or in
any way transacting with, in competition to TWK Agri, any business, company,
firm, undertaking, association or person, w hich during the period of 36 (thirty-
six) months preceding the date of termination of employment of De Lange has
been a client of TWK Agri, in the Republic of South Africa for a period of 24
months calculated from 1 May 2025.
1.2 That De Lange be interdicted from directly or indirectly revealing or
disclosing or in any way utilising, whether for De Lange and Intersure’s own
purposes, or for the purposes of any third party, any of TWK Agri’s
confidential information and/or trade secrets and or client particulars.
[2] The application is in terms of section 18(1), read with section 18(3) of the
Superior Courts Act
1, (SC Act), and seeks to alter the usual or default position2 that
an application for leave to appeal suspends the operation of a court order being
appealed, unless the court orders otherwise.
Urgency
[3] It was submitted for TWK Agri that the application concerns further relief
regarding a restraint judgment and that restraint matters are inherently urgent. 3 In
1 Act 10 of 2013.
2 Ntlemeza v Helen Suzman Foundation and Another (Ntlemeza) 2017 (5) SA 402 (SCA); [2017] 3 All
SA 589 (SCA) at para 25.
3 E-Merge IT Recruitment CC v Brits & another (E-Merge) (2016) 37 ILJ 1145 (LC); [2015] ZALCJHB
426 at para 37.
3
addition, it was submitted that De Lange and Intersure Financial Services (Pty) Ltd
(Intersure), the second respondent, were forewarned as early as 11 July 2025 that
the current application would be brought if they applied for leave to appeal the
Daniels J order.
[4] De Lange’s submissions on urgency pertain to events before and after the
restraint application was filed, but prior to the Daniels J judgment being issued. That
chronology was relevant to the urgency of the restraint application and has no
bearing on the urgency of the current application.
[5] It is not in dispute that De Lange ’s application for leave to appeal was filed
on 21 July 2025. This was the trigger for the current application, brought on 24 July
2025. It follows that the threat of a contempt application made by TWK Agri against
De Lange is of no relevance in deciding whether TWK Agri delayed in bringing the
current application. As l said, the immediate trigger for an application such as the
present is an application for leave to appeal
4. Accordingly, I am satisfied that TWK
Agri acted swiftly in filing this application, once De Lange filed the application for
leave to appeal.
[6] I have also considered that unless this application is entertained on an
urgent basis, TWK Agri cannot obtain redress in the ordinary course.
[7] For these brief reasons, I am therefore satisfied that the matter is urgent.
De Lange’s preliminary issues
[8] TWK Agri is in the business of short -term insurance brokerage, marketing
and administering policies with various insurers through insurance brokers. De
Lange was one of its insurance brokers until he resigned. The Daniels J order
enforced a restraint in favour of TWK Agri against De Lange.
4 See section 18(5) of the SC Act.
4
[9] In the current application, De Lange argues non- joinder, specifically that the
clients he is alleged to have poached from TWK Agri, should have been joined as
parties to the application. Mr Bester, for De Lange, submitted that the non- joinder
issue did not arise in the restraint application or in the application for leave to appeal,
but only emerged for the first time in the interlocutory application. He further argued
that the Court was not being asked to set aside the Daniels J's order on the grounds
of non-joinder, but rather to issue an order stating that the clients ought to have been
joined to the current application.
[10] The current application is interlocutory. It arises due to the Daniels J order,
as well as De Lange’s application for leave to appeal against that order. If non-
joinder is an issue now, it should have been raised before Daniels J, or at least
during the application for leave to appeal the Daniels J order. Non- joinder cannot,
belatedly, be raised for the first time in this interlocutory application.
[11] In any event, I am also not persuaded that the clients in question have a
direct and substantial interest in the outcome of the matter in the sense that the relief
sought by TWK Agri against De Lange cannot be sustained and carried into effect
without necessarily prejudicing their interests.
5 An order enforcing the Daniels J
order pending the outcome of the appeal will cause negligible prejudice, if not mere
inconvenience, to the concerned clients. They remain insured, with the only
difference being that De Lange cannot act as their broker until the appeal has been
determined. This settles De Lange’s preliminary point of non-joinder.
[12] The final preliminary point concerns the fact that the current application was
issued under a different case number, which is argued to be an attempt to prevent
the Court from becoming aware of the parties' cases in the restraint application. The
the Court from becoming aware of the parties' cases in the restraint application. The
complaint confirms my earlier conclusion that the current application is interlocutory.
I have previously addressed the absence of the restraint application papers when the
matter was first before Phakade AJ. Regarding the new case number, I have
considered the explanation provided on behalf of TWK Agri and accept that the
5 Gordon v Department of Health: KwaZulu-Natal 2008 (6) SA 522 (SCA); (2008) 29 ILJ 2535 (SCA) at
paras 9-10; Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A); 1949 (2) PH
K191 (SCA); at 657 and ABSA Bank Ltd v Naude NO and Others 2016 (6) SA 540 (SCA); [2015] ZASCA
97 at para 10.
5
Registrar likely issued a new case number due to an administrative error, and that
this was unrelated to any intention by TWK Agri to conceal information from the
Court regarding the current application.
[13] With the preliminary points out of the way, I proceed to deal with the merits
of the enforcement application.
Section 18 SC Act applications
[14] Section 18 of the SC Act provides that:
‘(1) Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation and execution of a
decision which is the subject of an application for leave to appeal or of an
appeal, is suspended pending the decision of the application or appeal.
(2) Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision
that is an interlocutory order not having the effect of a final judgment, w hich is
the subject of an application for leave to appeal or of an appeal, is not
suspended pending the decision of the application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the court to order otherwise, in addition proves
on a balance of probabilities that he or she will suffer irreparable harm if the
court does not so order and that the other party will not suffer irreparable harm
if the court so orders.’
[15] Therefore, the three requirements to be satisfied in such applications are (a)
exceptional circumstances, (b) proof on a balance of probabilities that the applicant
will suffer irreparable harm if the operation and execution of the order are not
granted interim effect, and (c) that the party against whom the order was granted will
not suffer irreparable harm if the order is enforced in the interim.
6
[16] The provision applies to applications for leave to appeal in this Court, which
has a status similar to that of the High Court.6
[17] In Tyte Security Services CC v Western Cape Provincial Government and
Others (Tyte),7 the SCA explained section 18(3) as follows:
‘... The overarching enquiry is whether or not exceptional circumstances
subsist. To that end, the presence or absence of irreparable harm, as the
case may be, may well be subsumed under the overarching exceptional
circumstances enquiry…
Although it has been postulated that the second and third are distinct and
discrete enquiries, they are perhaps more accurately to be understood as
being two sides of the same coin. The same facts and circumstances, which
by that stage ought largely to be either common cause or undisputed, will
inform both enquiries ... Insofar as the third goes, although s 18(3) casts the
onus (which does not shift) upon an applicant, a respondent may well attract
something in the nature of an evidentiary burden. This would be especially so
where the facts relevant to the third are peculiarly within the knowledge of the
respondent. In that event it will perhaps fall to the respondent to raise those
facts in an answering affidavit to the s 18 application, which may invite a
response from the applicant by way of a replying affidavit.’
[18] What constitutes exceptional circumstances was explained in MV Ais
Mamas Seatrans Maritime v Owners, MV Ais Mamas, and Another (MV Ais)
8 in the
following terms:
‘1. What is ordinarily contemplated by the words ''exceptional
circumstances'' is something out of the ordinary and of an unusual nature;
something which is excepted in the sense that the general rule does not apply
to it; something uncommon, rare or different; ''besonder'', ''seldsaam'',
''uitsonderlik'', or ''in hoë mate ongewoon”.
2. To be exceptional the circumstances concerned must arise out of, or
6 Road Traffic Management Corporation v Tasima (Pty) Ltd & others (2019) 40 ILJ 1785 (LAC); [2019]
5 BLLR 434 (LAC) at para 14.
7 2024 (6) SA 175 (SCA); [2024] ZASCA 88 at paras 14-15.
8 2002 (6) SA 150 (C). This test was approved by the Constitutional Court in Liesching and Others v S
[2018] ZACC 25; 2019 (4) SA 219 (CC).
7
be incidental to, the particular case.
3. Whether or not exceptional circumstances exist is not a decision which
depends upon the exercise of a judicial discretion: their existence or otherwise
is a matter of fact which the Court must decide accordingly.
4. Depending on the context in which it is used, the word ''exceptional''
has two shades of meaning: the primary meaning is unusual or different; the
secondary meaning is markedly unusual or specially different.
5. Where, in a statute, it is directed that a fixed rule shall be departed from
only under exceptional circumstances, effect will, generally speaking, best be
given to the intention of the Legislature by applying a strict rather than a liberal
meaning to the phrase, and by carefully examining any circumstances relied
on as allegedly being exceptional.’
9
Has TWK Agri met the section 18(3) SC Act test?
[19] The right to enforce a restraint exists for a limited period, and this constitutes
exceptional circumstances warranting the enforcement of an order sought to be
appealed against, as any delay in enforcing the right substantially diminishes the
right itself. In E-Merge
10 it was held as follows:
‘In this instance, by its very nature, the restraint order contemplates
“exceptional circumstances ” since it provides immediate protection of the
protectable interest and elimination of continued risk in relation to confidential
information…’
[20] Unless the Daniels J order is implemented, De Lange does not have to
comply with its terms. It is not known how long the application for leave to appeal,
and ultimately the appeal itself (or the petition and then an appeal) will take to
process. Unless the order sought is granted, TWK Agri’s victory before Daniels J
would have been in vain.
11
9 MV Ais at 156I-157C; Incubeta Holdings (Pty) Ltd and Another v Ellis and Another (Incubeta) 2014
(3) SA 189 (GJ); [2013] ZAGPJHC 274 at para 17, and Ntlemeza at para 37.
(3) SA 189 (GJ); [2013] ZAGPJHC 274 at para 17, and Ntlemeza at para 37.
10 (2016) 37 ILJ 1145 (LC) at para 15. See also Coetzer and another v Actom (Pty) Limited (Actom)
[2015] JOL 34286 (GP) at para 16.
11 Incubeta at paras 27-28. See also Shoprite Checkers (Pty) Ltd v Jansen & another (2018) 39 ILJ
2751 (LC); [2017] ZALCJHB 503 at para 32.
8
[21] TWK Agri has no alternative remedy. It is entitled to protect a contractual
obligation related to an investment in the cust omer base and the relationships
established there, which a damages claim cannot remedy .12 It does not lie in the
mouth of De Lange to say that if this application is dismissed, he will not process the
clients who have already jumped ship. The evidence suggests that he has continued
to engage with TWK Agri’s clients, albeit he claims that they are approaching him,
rather than the other way around.
[22] If the customers are valuable to De Lange’s business and his livelihood
depends on them, then they are equally important to TWK Agri’s business.
According to De Lange’s version, he resigned from TWK Agri without the intention of
‘poaching’ its clients, and thus, he must find his own clients. He is skilled and
experienced enough to do so. He is not prohibited from working in the insurance
industry or from competing with TWK Agri in the Agriculture sector. All he is required
to do is to stay away from its clients.
[23] If the appeal succeeds, De Lange can pursue a damages claim against
TWK Agri and therefore would not suffer irreparable harm if the restraint is enforced
pending the appeal. Conversely, if the Daniels J order is not enforced, TWK Agri
does not merely suffer a commercial inconvenience as argued on behalf of De
Lange. The 10 clients are important to its business, and Daniels J has already
vindicated that right. Proving damages in due course against De Lange will be
challenging.
[24] Before concluding, I address one other issue that dominated the
submissions of the respective parties, namely, whether prospects of success play
any role in determining similar applications, such as this one.
Relevance, if any, of prospects of success on appeal
[25] The parties presented divergent submissions on whether a respondent’s
prospects of success on appeal should be considered in these applications.
12 See also Actom at para 19.
9
[26] TWK Agri referred to conflicting judgments on the issue. On one hand, there
are judgments to the effect that prospects of success are not relevant to a section 18
SC Act inquiry, and in that regard, reference was made to Incubeta Holdings (Pty)
Ltd and Another v Eliss and Another 13 (Incubeta) and Liveiro Wilge Joint Venture
and Another v Eskom Holdings Soc Ltd (Liveiro)14.
[27] On the other hand, reference was made to a decision of the full bench in
Minister of Social Development Western Cape and Others v Justice Alliance of
South Africa and Another ( Justice Alliance) 15 which found that the Court a quo
should consider the prospects of success of a pending appeal as part of its wide
discretion.16 Reference was also made to University of the Free State v Afriforum
and Another ( Afriforum),17 which endorsed Justice Alliance, but also accepted that
section 18(3) replaced the test espoused in South Cape Corporation (Pty) Ltd v
Engineering Management Services (Pty) Ltd (South Cape Corporation) 18 in its
entirety.
[28] TWK Agri submitted that Incubeta and Liveiro were co rrect. It argued that
before t he promulgation of section 18 of the SC Act, the test that applied was
formulated by the erstwhile Appeal Court in South Cape Corporation 19, which
required courts to exercise a wide discretion to determine what was just and
equitable, having regard to four factors, one of which was the prospects of success
of the pending appeal. 20 Secondly, it was submitted that the power to make a
decision under section 18 of the SC Act was replaced with the three factors listed
there, which do not include prospects of success. In the second place, it was
submitted that while the power to determine an application for leave to appeal rests
with the court a quo , the power to decide a petition and the appeal lies with the
appeal court. Furthermore, it was contended that t he court a quo, which determines
13 2014 (3) SA 189 (GJ); [2013] ZAGPJHC 274 at para 17.
13 2014 (3) SA 189 (GJ); [2013] ZAGPJHC 274 at para 17.
14 [2014] ZAGPJHC 150 at para 30.
15 [2016] ZAWCHC 34.
16 Ibid at paras 26 and 27.
17 2018 (3) SA 428 (SCA); [2016] ZASCA 165 at para 10.
18 1977 (3) SA 534 (A); [1977] 4 All SA 53 (A).
19 Ibid.
20 South Cape Corporation at 545D-G.
10
a section 18(3) SC Act application, cannot usurp the powers of an appeal court by
deciding the merits of an application for leave to appeal or the appeal itself. Lastly, it
was also submitted that allowing a Court a quo to hear the s ection 18(3) application
and consider the prospects of success , which have already been considered, gives
the losing party a second bite at the cherry.
[29] The submission for TWK Agri was further that because Afriforum did not
consider the prospects of success of the matter before it , as it did not have the
appeal record, it follows that prospects of success are not a consideration in
determining section 18(3) SC Act applications. Reference was also made to other
decisions of this Court
21 and the High Court , which found that prospects of success
were an irrelevant consideration in determining section 18(3) SC applications.
[30] On behalf of De Lange, it was submitted that prospects of success were a
relevant consideration, and that in Caterpillar Financial Services South Africa (Pty)
Ltd v Zero Azania (Pty) Ltd 22, the Court found that Afriforum overtook Incubeta when
the Court agreed with the approach in Justice Alliance that:
‘…the less sanguine a court seized of an application in terms of section 18(3)
is about the prospects of the judgment at first instance being upheld on
appeal, the less inclined it will be to grant the exceptional remedy of execution
of that judgement pending the appeal. The same quite obviously applies in
respect of the Court dealing with an appeal against an order granted in terms
of section 18(3).’
[31] Notably, p aragraph 8 of Afriforum records that divisions of the High Court
had considered section 18 of the SC Act, and the matter before it was the first time
that the SCA was being called upon to interpret a “novel” provision. In that matter,
the SCA found that “ the appeal record in the review application was not before us .
The prospects of success shall not feature in our consideration of whether or not the
The prospects of success shall not feature in our consideration of whether or not the
order of the Full Court should be upheld”.
23
21 Minister for Local Government, Environmental Affairs & Development Planning, Western Cape v
Bitou Municipality & others (Bitou Municipality) (2020) 41 ILJ 1154 (LC) at para 8.
22 [2023] ZAGPHC 1117 at para 19.
23 Ibid at para 15.
11
[32] After Afriforum, other decisions of the SCA dealt with the interpretation of
section 18 of the SC Act.24 In Knoop NO and another v Gupta (Tayob as intervening
party)25 (Knoop), the SCA had occasion to clarify its position on the issue of
prospects of success and section 18(3) SC Act applications as follows:
‘[49] In Justice Alliance, it was held that the court has a wide discretion to
grant or refuse an execution order once the statutory requirements are
satisfied, and that prospects of success in the appeal have a role to play in
considering the exercise of that discretion. There is a dictum in UFS v
Afriforum that supports this approach, but in both that case and Ntlemeza the
record in the main appeal was not before this court and the appeals had
perforce to be decided without the full record or any consideration of the
merits of the main appeals.
[50] We had the full record in the main appeal before us and had read it in
anticipation of dealing with the main appeal, but the argument on the urgent
appeal did not include any debate over prospects of success in the main
appeal. Our finding that the three requirements for making an execution order
were not established means that we did not have to consider whether there is
a discretion once they are present and, if so, whether the prospects of
success should affect its exercise. There may be difficulties if the high court
takes the prospects of success into account in granting an execution order,
because it is not clear that the court hearing an urgent appeal under s 18(4)
will always be in a position to assess the weight of this factor. As I have noted,
in both UFS v Afriforum and Ntlemeza the court disposed of the appeal by
disregarding the prospects of success on appeal. The urgency of the appeal
almost inevitably dictates that in this court and possibly in a full court, the
appeal court will not have the record before it and will be confined to
assessing the prospects of success in the main appeal from the judgment
assessing the prospects of success in the main appeal from the judgment
alone. The usual principle that an appeal court decides the appeal on the
record before the high court cannot apply in those circumstances. If the
language of s 18(4) confers a discretion, is that a full discretion or a power,
combined with a duty to exercise that power on proof of the requirements for
24 Ntlemeza and Premier for the Province of Gauteng and Others v Democratic Alliance and Others
[2020] ZASCA 136; [2021] 1 All SA 60 (SCA).
25 [2021] 1 All SA 17 (SCA); 2021 (3) SA 135 (SCA).
12
its exercise? These issues may warrant a reconsideration of the approach in
Justice Alliance on an appropriate occasion.’
[33] Therefore, and as I understand it, what is to be distilled from Knoop is that if
the requirements in section 18(3) are not satisfied, it becomes unnecessary to
consider prospects of success and that an application to enforce an order pending
the outcome of an appeal must fail. Secondly, Knoop states that there may be
difficulties if a Court a quo hearing a section 18(3) application considers prospects of
success, because it is not clear that an urgent appeal under section 18(4) will always
be in a position to assess the weight of this factor. Thirdly, Knoop clarifies that in
Afriforum (and Ntlemeza) , the appeal s were disposed of “ by disregarding the
prospects of success on appeal ”. Fourthly and finally, Knoop proposes a
reconsideration of the Justice Alliance approach, which require d the Court a quo
hearing a section 18(3) SC Act application, to consider the prospects of success on
appeal.
[34] Knoop has not clarified matters, but based on my understanding of the
judgment, De Lange’s prospects of success in the pending application for leave to
appeal is a matter for Daniels J to assess and determine when considering that
application. Moreover, ultimately, the appeal court, whether leave to appeal is
granted or a petition is granted, will decide whether Daniels J correctly enforced the
restraint. If the above approach is found to be a misunderstanding of the Knoop
decision or incorrect, and if pros pects of success are taken into account, this is not
one of those cases where it can be said that TWK Agri’s prospects on appeal are so
weak that this Court should refuse to enforce the Daniels J order while awaiting the
outcome of De Lange’s appeal against it.
[35] In all the circumstances, TWK Agri has satisfied the requirements of section
18(3) of the SC Act. It has demonstrated the existence of exceptional circumstances,
18(3) of the SC Act. It has demonstrated the existence of exceptional circumstances,
irreparable harm to itself, and that the respondents will suffer no irreparable harm if
the Daniels J order is not enforced pending an appeal process . TWK Agri has no
alternative remedy, and a failure to order the interim enforcement of the Daniels J
order would render its rights ineffective, if not useless, and make the Daniels J order
nugatory.
13
Costs
[36] Both parties sought costs against each other. TWK Agri was successful in
its application.
[37] In the premises, the following order is made:
Order
1. The matter is heard as one of urgency.
2. The orders granted in terms of paragraph 47 of the Daniels J j udgment
handed down on 30 June 2025 shall not be suspended and shall continue to
remain operative pending the outcome of the appeal process instituted by the
first respondent, w hich process shall include the application for leave to
appeal and/or petition for leave to appeal and/or any appeal noted, if at all.
3. The first respondent is ordered to pay the applicants' costs.
T Gandidze
Judge of the Labour Court of South Africa
Appearances
For the Applicant: Dr RJC Orton
Instructed by: Snyman Attorneys
For the Respondent: Advocate BC Bester
Instructed by: Matthew Klein Attorneys