THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025-094429
In the matter between:
ARNOLDUS STEFANUS STRYDOM Applicant
and
ANGELIQUE CASTRO First Respondent
Heard: 15 August 2025
Delivered: 21 August 2025
JUDGMENT
ERASMUS, AJ
Introduction
[1] This is an application in terms of Rule 39 of the Labour Court Rules
1 to
enforce a restraint of trade.
1 GN 4775 of 2024: Rules Regulating the Conduct of the Proceedings of the Labour Court.
2
[2] The Applicant, in essence, seeks to interdict the Respondent from working for
or owning a medical practice within a 10 km radius of the Applicant’s premises for a
period of three years and from engaging with the Applicant’s clients for a period of
one year. The application is opposed.
Factual background
[3] The Applicant is a doctor and general practitioner, and has been practising as
such in the Mulbarton area for the last 28 years, initially in the Mulbarton Shoppin g
Centre and for the past 10 years in the Strydom Medi Centre, across the road from
the shopping centre. He is assisted in the practice by his wife, Dr Letitia Strydom,
and he employs five medical doctors and eleven staff members consisting of
dispensary staff, a sister, receptionists, administrative staff and a cleaner.
[4] The Respondent commenced employment with the Applicant on 1 May 2021,
immediately after completing her compulsory community service to qualify as a
medical practitioner.
[5] Upon taking up employment with the Respondent, the Applicant and
Respondent entered into an employment contract . The provisions of the contract
which are relevant to these proceedings state as follows:
‘Confidentiality and Conflict of Interest
13.1. The Employee records, acknowledges and agrees that:
13.1.1. During the course of his employment in terms of this agreement,
the Employee shall become acquainted with, gain personal and in- depth
knowledge of and have direct access to strategic, sensitive and confidential
information of the Employer (including the Employer’s technical and business
know-how, confidential information, goodwill and intangible assets in general -
hereinafter collectively referred to as “the Confidential Information “) which is
not readily available to a competitor of the Employer;
13.1.2. The Confidential Information is of strategic importance to the
business of the Employer and the Employer accordingly has a legitimate
business of the Employer and the Employer accordingly has a legitimate
proprietary and commercial interest therein which the Employer is entitled to
protect.
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13.1.3. Should any of the Confidential Information become available to
a competitor of the Employer, it could cause the Employer considerable
financial loss.
13.1.4. The only effective and reasonable manner in which the
Employer ‘s legitimate proprietary and commercial interests in the Confidential
Information could be protected so as to avoid financial loss to the Employer is
by way of the Employee furnishing the confidentiality undertakings provided
for in clause 13.2 below.
13.2. In consideration of the benefits accruing to the Employee in terms of
this agreement and in the interest of the protection and maintenance of the
Employer’s Confidential Information, the Employee undertakes to the
Employer that:
13.2.1. He shall not during his employment by the Employer or at any
time thereafter, either himself utilise and/or directly or indirectly divulge and/or
disclose to any third party (except as required by the terms and nature of the
Employee ‘s appointment/employment with the Employer) any of the
Employer’s Confidential Information.
13.2.2. He shall not derive any benefit, whether directly or indirectly,
from the Confidential Information, nor, without limiting the generality of the
foregoing, be engaged, involved, concerned, or interested, whether directly or
indirectly, in the economic exploitation, whether by marketing, promoting,
advertising, or selling in any manner whatsoever, the Confidential Information.
13.2.3. He shall treat as confidential all Confidential Information which a
third party has in terms of any contract made available to the Employer and
which has become known to the Employee in the course of his duties under
this agreement, and he shall not divulge to third parties any information
regarding such Confidential Information contrary to the terms of the aforesaid
contract.
13.2.4. Any documents or records (including written instructions,
drawings, patients files, notes or memoranda) relating to the Confidential
drawings, patients files, notes or memoranda) relating to the Confidential
Information of the Employer which are created by the Employee or which
come into the Employee’s possession during the existence of this agreement,
shall be deemed to be the property of the Employer and shall be surrendered
to the Employer on demand, and in any event on the termination of the
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Employee’s appointment by the Employer and the Employee will not retain
any copies or extracts thereof.
13.2.5. The Employee shall be precluded from being engaged with any
clients of the Employer for a period of 1 year from termination of this
agreement.
13.2.6. The employee is not allowed to work or open his own business
in a radius of ten kilometre from Strydom Medi Centre on termination of this
contract, irrespective of the reason. This provision will remain in place for a
period of three years post-employment.’ (sic)
[6] The Respondent resigned on 17 March 2025 with notice until 30 April 2025.
On 07 April 2025, the Applicant and Respondent signed a document in terms of
which the Respondent gave certain undertakings. The document reads as follows:
‘Whereas the above parties agree that the services of Dr Angelique Castro’s
will be terminated on the 30
th of April 2025. This is in respect of her handing in
her resignation voluntarily and own accord on the 17th of March 2025.
Dr Angelique Castro further undertakes not to communicate her resignation to
patients of Strydom Medi Centre, and agrees to abide by the restraint of trade
and confidentiality clauses, as contained in the employment contract signed
on the 01st of May 2021 by both parties.
No amendments shall be made to this agreement unless agreed by both
parties and reduced to writing and signed before witnesses.’ (sic) (Own
emphasis)
[7] Upon leaving the Applicant’s employ, t he Respondent and another doctor
opened a medical centre named Castro Smith Medical Suites , which medical centre
is situated 3.8 km from Strydom Medi Centre on a straight -line radius and
approximately 6.6 km when driving in a vehicle on the road.
[8] Whilst in the Applicant’s employment, the Respondent attended to
approximately 30 patients per day. The majority of these patients, with the exception
of the Respondent’s family and friends and referrals from them , were patients of the
of the Respondent’s family and friends and referrals from them , were patients of the
Applicant’s Strydom Medi Centre, who were introduced to the Respondent by virtue
of her employment at the Strydom Medi Centre.
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[9] The Respondent agreed that she was provided with the requisite skills,
training and resources to operate as a doctor and general practitioner under the
Applicant’s guidance and in pursuit and furtherance of the Applicant’s medical
practice.
Dispute regarding the contract
[10] There is a dispute between the parties regarding the meaning of the
employment contract, specifically in relation to the clauses relevant to these
proceedings.
[11] The Respondent contends that the restraint of trade provisions relate solely to
the protection of the confidential information of Strydom Medi Clinic.
[12] The Applicant contends that the clauses relating to the restraint of trade are
severable from the clauses regarding confidentiality.
[13] This court is faced with a classic example where a contract has been drafted
with little to no cognisance of the employer’s business or the employee’ s duties, and
the circumstances within the business.
[14] The Labour Appeal Court in Herbert v Head Education: Western Cape
Education Department and Others
2 summarised the position with regard to the
interpretation of contracts , with reference to Constitutional Court judgments as
follows:
‘[13] In University of Johannesburg v Auckland Park Theological Seminary
and Another , the Constitutional Court stated that the approach to
interpretation adopted in Endumeni had “updated” the previous position,
which was that context could be resorted to if there was ambiguity or lack of
clarity in the text. In cases subsequent to Endumeni, the Constitutional Court
noted that the Supreme Court of Appeal “has explicitly pointed out that
2 (2022) 43 ILJ 1618 (LAC).
6
context and purpose must be taken into account as a matter of course,
whether or not the words used in the contract are ambiguous.”
[14] In Capitec Bank Holdings Limited and Another v Coral Lagoon
Investments 194 (Pty) Ltd and Others, the Supreme Court of Appeal stated
that:
‘…Endumeni has become a ritualised incantation in many submissions before
the courts. It is often used as an open- ended permission to pursue
undisciplined and self -serving interpretations. Neither Endumeni, nor its
reception in the Constitutional Court, most recently in University of
Johannesburg, evince skepticism that the words and terms used in a contract
have meaning.’
[15] The Court noted that what Endumeni does is that it –
‘… simply gives expression to the view that the words and concepts used in a
contract and their relationship to the external world are not self -defining. The
case and its progeny emphasise that the meaning of a contested term of a
contract (or provision in a statute) is properly understood not simply by
selecting standard definitions of particular words, often taken from
dictionaries, but by understanding the words and sentences that comprise the
contested term as they fit into the larger structure of the agreement, its
context and purpose. Meaning is ultimately the most compelling and coherent
account the interpreter can provide, making use of these sources of
interpretation. It is not a partial selection of interpretational materials directed
at a predetermined result.’
[16] In interpreting the collective agreement in this matter, the arbitrator was
required to have regard to the aim and purpose of the collective agreement,
the words and language used in it, having regard to ordinary rules of grammar
and syntax, and the context in which the disputed terms appear in the
agreement.’ (Footnotes omitted)
[15] This Court in Sedumedi v Sefako Makgatho Health Sciences University
3 held
as follows:
3 (2025) 46 ILJ 2015 (LC) at para 16.
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‘Indeed, as pointed out by Unterhalter AJA in Capitec, “interpretation begins
with the text and its structure. They have a gravitational pull that is important .
The proposition that context is everything is not a licence to contend for
meanings unmoored in the text and its structure. Rather, context and purpose
may be used to elucidate the text.”’ (Own emphasis).’
[16] The wording in the impugned clauses 13.2.5. and 13.2.6 before Court is clear.
It states that the Respondent shall be precluded from being engaged with any clients
of the Employer for a period of one year from termination of the agreement and that
she is not allowed to work or open her own business in a radius of ten kilometres
from Strydom Medi Centre on termination of the employment contract, irrespective of
the reason and that the latter provision will remain in place for a period of three years
post-employment.
[17] The Respondent , however, contends that the context shows a different
meaning, more particular, that they relate solely to the protection of confidentiality.
[18] Although the structure may at first glance support the Respondent’s
contention, of importance to note is , amongst others, the heading to the relevant
clauses which refers not only to c onfidentiality, but to “Confidentiality and Conflict of
Interest”. (Own emphasis)
[19] Furthermore, clause 13.2 provides that the Respondent gives certain
undertakings and that those undertakings are given not only in the interest s of
protecting and maintaining the Applicant’s confidential information, but also in
consideration of the benefits accruing to the Respondent in terms of the agreement.
The first four sub- clauses of clause 13.2 deal with the confidential information, with
the fifth sub-clause setting out the preclusion from engaging the clients for one year ,
and the sixth sub- clause dealing with the prohibition to w ork within or open a
business within a 10 km radius.
business within a 10 km radius.
[20] The context, therefore, does not support the Respondent’s contention.
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[21] The Respondent was not exposed to significant confidential information, but
was allowed, over a period of four years of employment, to form customer relations
with the Applicant’s customers to the extent that she attended to approximately 30
patients per day.
[22] Furthermore, upon her resignation, the Respondent provided the Applicant
with undertakings which she signed, agreeing to abide by the restraint of trade and
confidentiality clauses , as contained in the employment contract. This document
clearly acknowledges, after having spent four years in the Applicant’s employ, that
there are two sets of clauses that she agrees to abide by, namely confidentiality
clauses and restraint of trade clauses.
[23] The Court is therefore satisfied that clauses 13.2.5. and 13.2.6 are capable of
being read separately from the confidentiality clauses and constitute restraint of
trade provisions in their own right, not only in respect of confidentiality.
Restraint of trade
[24] In Reddy v Siemens Telecommunications (Pty) Ltd 4, the S upreme Court of
Appeal held that:
‘[15] A court must make a value judgment with two principal policy
considerations in mind in determining the reasonableness of a restraint. The
first is that the public interest requires that parties should comply with their
contractual obligations, a notion expressed by the maxim pacta servanda
sunt. The second is that all persons should in the interests of society be
productive and be permitted to engage in trade and commerce or the
professions. Both considerations reflect not only common- law but also
constitutional values. Contractual autonomy is part of freedom informing the
constitutional value of dignity, and it is by entering into contracts that an
individual takes part in economic life. In this sense freedom to contract is an
integral part of the fundamental right referred to in s 22. Section 22 of the
Constitution guarantees ‘[e]very citizen … the right to choose their trade,
Constitution guarantees ‘[e]very citizen … the right to choose their trade,
4 2007 (2) SA 486 (SCA).
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occupation or profession freely’ reflecting the closeness of the relationship
between the freedom to choose a vocation and the nature of a society based
on human dignity as contemplated by the Constitution. It is also an incident of
the right to property to the extent that s 25 protects the acquisition, use,
enjoyment and exploitation of property, and of the fundamental rights in
respect of freedom of association (s 18), labour relations (s 23) and cultural,
religious and linguistic communities (s 31).
[16] In applying these two principal considerations , the particular interests
must be examined. A restraint would be unenforceable if it prevents a party
after termination of his or her employment from partaking in trade or
commerce without a corresponding interest of the other party deserving of
protection. Such a restraint is not in the public interest.’
[25] In Basson v Chilwan and Others
5, Nienaber JA identified four questions that
should be asked when considering the reasonableness of a restraint: (a) Does the
one party have an interest that deserves protection after termination of the
agreement? (b) If so, is that interest threatened by the other party? (c) In that case,
does such interest weigh qualitatively and quantitatively against the interest of the
other party not to be economically inactive and unproductive? (d) Is there an aspect
of public policy having nothing to do with the relationship between the parties that
requires that the restraint be maintained or rejected? Where the interest of the party
sought to be restrained weighs more than the interest to be protected, the restraint is
unreasonable and consequently unenforceable.
[26] In Kwik Kopy (SA) (Pty) Ltd v van Haarlem and Another
6, a further
consideration was added, namely, whether the restraint goes further than is
necessary to protect the interest.
[27] It is by now trite that the party seeking to enforce a restraint need only invoke
the restraint agreement and prove a breach of the agreement.
the restraint agreement and prove a breach of the agreement.
5 1993 (3) SA 742 (A) at 767G-H.
6 1999 (1) SA 472 (W) at 484E.
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[28] It is common cause that the Applicant and Respondent entered into the
employment contract and that the Respondent gave the additional undertakings after
resigning.
[29] It is also common cause that the Respondent and another doctor opened a
medical centre named Castro Smith Medical Suites which medical centre is situated
3.8 km from Strydom Medi Centre on a straight-line radius and approximately 6.6 km
when driving in a vehicle on the road, thereby in breach of the provision that prohibits
her from doing so within a 10 km radius.
[30] The Applicant only claims customer relations as a protectable interest in
seeking to enforce the restraint of trade provisions. In New Justfun Group (Pty)
Limited v Turner and Others
7 the Court held, with reference to customer
connections, that “it is sufficient for the applicant to show that the customer contacts
exist and that they can be exploited by the former employee” and that it “remains
ultimately for [the respondent] to establish that [he or] she had no access to
confidential information and that [he or] she never acquired any significant personal
knowledge of, or influence over, the applicant’s customers.”
[31] It was not in dispute that the Respondent treated about 30 patients ( clients)
per day and that the Respondent was exposed to these clients and placed in a
position to forge relations with these clients by virtue of being exposed to them as a
result of being in the employ of the Applicant for four years . The Applicant also
confirmed that most clients do not generally change their regular general practitioner
and have remained with his practice for years . The Respondent did not demonstrate
that she did not have influence over the Applicant’s customers or that they would not
follow her to her new practice, a mere 6.6km down the road, where her new practice
was situated with in a 3.8km radius from the Applicant , which clearly constitutes a
threat to the Applicant’s business.
threat to the Applicant’s business.
[32] In weighing the interests of the parties, one cannot escape the reality that the
Respondent left the Applicant’s employ , where she earned an attractive salary , for
7 (2018) 39 ILJ 2721 (LC) at paras 13 and 20.
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the purposes of opening her own business . The Applicant is an established medical
centre in the area for about 28 years , which employed the Respondent after her
practical years, providing her with the requisite skills, training and resources to
operate as a doctor and general practitioner . The Applicant’s wife and eleven other
staff members earn a living from the Applicant’s practice. The restraint provisions do
not prevent the Respondent from earning a living. She merely has to do so outside of
the 10 km radius.
[33] Although the Respondent contends that she caters for a less affluent area and
population, one cannot escape the reality of t his new business’ proximity to that of
the Applicant’s. And although she attempts to demonstrate that she charges lower
fees to accommodate the neighbourhood which she seeks to serve, the reality is
once again that she is undercutting the Applicant’s prices after having forged
relations with his clients and being based in close proximity to the Applicant’s
practice.
[34] The 10 km radius agreed to by the parties is not such that it prevents the
Respondent from being economically active. Although she explained that she was
not able to afford to launch her own business at an affordable price outside of the
radius, she did not provide convincing details in substantiation. She did not contend
or demonstrate that she could not be gainfully employed (as opposed to opening her
own practice) outside of the 10 km radius. Although the Respondent indicated her
place of residence and the special scholastic needs and location of her children, she
again failed to demonstrate why taking up employment or opening her own practice
just outside the 10 km radius would not have enabled her to remain in her residence
and for her children to remain in their current school, especially considering that the
Respondent alleged that she intended catering for the lower-income market.
Respondent alleged that she intended catering for the lower-income market.
[35] The Respondent agreed in her affidavit not to engage the Applicant’s clients
for a period of one year. She contended, however, that she should not be restrained
for a 10 km radius, considering that there are four other general practitioners in close
proximity to the Applicant, as well as a hospital which houses even more general
practitioners. If anything, this makes it even more important to restrain the
Respondent to enable the Applicant to pick up ties with the clients, rather than have
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them follow the Respondent to her new practice, which is now also situated in close
proximity to all the practices and operates in competition with them, at lower fees.
[36] No consideration of public policy was demonstrated to the extent that it should
prevent the enforcement of the restraint.
[37] This leaves the Court with the question of whether the restraint provisions go
further than required to protect the interest . In terms of her contract of employment,
the Respondent may not engage with the Applicant’s clients for a period of one year ,
and these clients are the only protectable interest being claimed by the Applicant .
Yet, the Applicant seeks to prevent the Respondent from working or opening a
practice in the area for a period of three years. In the absence of any cogent
explanation from the Applicant, this appears to simply be for purposes of stifling the
competition, which cannot be obtained by means of a restraint. It clearly goes further
than what is required to protect the Applicant’s interests. In this regard, the one- year
period, in respect of engaging the Applicant’s clients , is more in line with the
Applicant’s interests.
Costs
[38] Both parties are seeking to enforce constitutional rights . As a result, the Court
deems it just and equitable that no order should be made against either party.
Order
1. The R espondent is interdicted and restrained for a period of one (1)
year from 1 May 2025 to 1 May 2026 from working for or owning a business,
more specifically, a medical practice within a 10 (ten) kilometre radius of the
Strydom Medi Centre, situated at 4 True North Road, Mulbarton,
Johannesburg South, 2091.
2. The Respondent is interdicted and restrained for a period of one (1)
year from 1 May 2025 to 1 May 2026 from operating a medical practice known
as the Castro Smith Medical Suites, currently situated at Shop 4, Mayfield
Park Shopping Centre, 38 Silver Avenue, Mayfield Park, Johannesburg
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South, 2091, within a 10 (ten) kilometre radius of the Strydom Medi Centre,
situated at 4 True North Road, Mulbarton, Johannesburg South, 2091.
3. The R espondent is interdicted and restrained for a period of one (1)
year from 1 May 2025 to 1 May 2026, from engaging with any of the
Applicant’s clients.
4. Each party is to pay their own costs.
L. Erasmus
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv K Mitchell
Instructed by: VZLR Attorneys
For the Respondent: Mr B Williams of Brandon B Williams Attorneys Inc