SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case No: 2025-124057
In the matter between:
INOSPACE SERVICES (PTY) LTD Applicant
and
RYAN JAMES MORRIS First Respondent
STACK ONE FULFILLMENT (PTY) LTD Second Respondent
Neutral citation: Inospace Services v Ryan James Morris and Anoth er (Case
no124057/2025) [2025] ZAWCHC…(08 September 2025)
Coram: LEKHULENI J
Heard: 19 May 2025
Post hearing submissions: 15 and 29 August 2025
Delivered: Electronically on 08 September 2025
Summary: Restraint of trade – First respondent resigning from the applicant’s
employment – First respondent soliciting the applicant’s clients to do busin ess with
his new employer, the second respondent. Applicant seeking interim interdict - Effect
of the interdict final in effect - First and second respondents interdicted and
restrained from soliciting applicant’s clients.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
LEKHULENI J:
1. Introduction
[1] This is an application to enforce a restraint of trade agreement. The applicant
brought this application on an urgent basis seeking an order that a rule nisi be issued,
calling upon the respondents and all interested parties to show cause, if any, on a
date to be determine by the this Court why an order should not be granted
restraining and interdicting the first respondent for a period of 12 months
commencing on 01 July 202 5, from breaching the covenant in restraint of trade he
concluded with the applicant by directly or indirectly, soliciting business in respect of
fulfilment services from any person who was a client of the applicant during the first
respondent's employment with the applicant or was a prospective client of the
applicant at the termination of the first respondent's employment being 30 June 2025.
[2] The applicant also seeks an order that the first and second respondents be
interdicted and restrained for 12 months from canvassing or soliciting business or
attempting to do so in respect of fulfilment services, particularly from Ecomignite and
Repcillen, who were clients or customers of the applicant during the first
respondent's employment with the applicant.
2. The Parties
[3] The applicant is Inospace Services (Pty) Ltd, a private company with limited
liability duly incorporated in accordance with the Company Laws of the Republic of
South Africa under registration number 2017/308733/07, with its registered office
situated at The Block, 5[…] W[…] Street, Cape Town, Western Cape.
[4] The first respondent is Ryan James Morris, an adult male who currently
resides in Tamboerskloof, Cape Town, Western Cape. The second respondent is
Stack One Fulfilment (Pty) Ltd, a private company with limited liability, duly
incorporated in accordance with the Company Laws of the Republic of South Africa
under registration number 2025/418438/07. The second respondent is a newly
incorporated company, having been registered on 26 May 2025.
3. The applicant’s case
[5] The applicant's group of companie s has various business divisions operating
across Southern Africa, which include providing a variety of property, logistics and
business services. The applicant asserts that its fulfilment division was established in
2023, and it is the group's fastest-growing service business. The applicant states that
fulfilment services encompass the end -to-end process involved in managing e -
commerce customer orders on behalf of third parties, from the moment an order is
placed to the final delivery of the product. This includes receiving the order, storing
inventory, picking and packaging the merchandise, and arranging shipping to the
customer. Fulfilment services enable small to medium -sized e-commerce retailers to
outsource their warehousing and distribution needs, cap abilities that were
traditionally only accessible to large retailers with the capital to operate their own
bulk storage and distribution facilities.
[6] The applicant asserted that it has invested in a rigorous system of employing
and then training its em ployees. Once employed, the applicant systematically
educates and nurtures its employees. Its employees learn how the industry operates
educates and nurtures its employees. Its employees learn how the industry operates
and the business methods and systems that enable them to succeed. Furthermore,
the applicant asserted that it cannot tra in and educate its employees effectively
without exposing them to confidential information at the core of its business and
without introducing them to its customer and supplier base, which forms part of the
goodwill of the business. For this reason, the applicant requires its employees to sign
a restraint of trade agreement that is operative for a period of 12 months as a
condition of their employment.
[7] The first respondent commenced his employment with the applicant on 01
February 2021. As an employee, the first respondent was trained and upskilled by
the applicant. He was ultimately promoted to the head of the fulfilment division, a
senior position in the applicant, with full management authority, including the
authority to hire and dismiss employees. Prior to his employment with the applicant,
the applicant stated that the first respondent had no exposure to fulfilment services,
supply chain management, e -commerce and the logistics industry. According to the
applicant, the skills and knowledge the firs t respondent gained were instilled during
the first respondent's employment with the applicant.
[8] The restraint of trade incorporated in the first respondent’s employment
contract records that the first respondent would, through his employment, gain in -
depth knowledge of the confidential information and protectable interest of the
applicant and that he will be exposed to clients and suppliers of the applicant. He will
have the opportunity to forge business links with such parties. For this reason, the
applicant contended that by the first respondent's signature on his employment
agreement, he agreed that if he were to take up employment with or become
associated with a competitor of the applicant, the applicant's protectable interests
would be prejudiced.
[9] In this regard, the first respondent's employment agreement recorded that the
first respondent would be required to agree to the restraint of trade. The applicant
asserts that the first respondent agreed freely, voluntarily, and recognising that suc h
restraint would not cause him any hardship that he is not willing to bear. The restraint
of trade was for a period of 12 months from the date of termination of the first
of trade was for a period of 12 months from the date of termination of the first
respondent's employment with the applicant.
[10] Additionally, the restraint of tr ade agreement also provided that any
threatened or actual breach thereof may result in an interdict proceeding being
launched to enforce the terms of the covenant, in which event the first respondent
would be liable for costs incurred on an attorney and cl ient scale. The relevant part
of the of the restraint of trade agreement stipulated as follows:
‘Irrevocably and unconditionally agree and undertake in favour of the
company that [he] shall not within the territory, during [his] employment with
the compan y and/or during the restraint period directly or indirectly, either
solely or jointly, whether as proprietor, partner, director, shareholder,
employee, consultant, contractor, financial, agent, representative:
12.2.1 carry on, assist, or otherwise be emplo yed, engaged or concerned or
interested in any person, firm, company, close cooperation, or entity which is
in direct competition with the company; and
12.2.2 canvas or solicit (or attempt to do any of the aforegoing) business in
respect of the prescribed services from prescribed clients.’
[11] On 29 May 2025, the first respondent submitted his letter of resignation to the
applicant. His final day of employment was scheduled to be 30 June 2025. According
to the applicant, due to the seniority of the first respondent at the applicant’s
business, it was mutually agreed that the first respondent should be placed on
gardening leave during his notice period, which commenced on 13 June 2025,
following a small farewell celebration at the applicant's offices. The applicant
contends that although the first respondent last rendered services to the applicant on
13 June 2025, his period of employment formally ended on 30 June 2025 after his
notice had come to an end.
[12] On 13 June 2025, the first respondent sent a W hatsApp message to the
applicant's Chief Executive Officer (Mr Levitt) and appreciated the opportunity he
was given and thanked the applicant for learning a lot whilst employed by the
applicant. On 27 June 2025, Mr Weber, a former employee of the applicant , sent Mr
Levitt a WhatsApp message informing him that he had become involved in a new
Levitt a WhatsApp message informing him that he had become involved in a new
venture operating in the fulfilment space, which would be headed up by the first
respondent.
[13] I pause to mention that Mr Weber was the former Chief Operating Offic er of
the applicant and had been intricately involved in setting up the applicant's fulfilment
division before his resignation in 2023. Mr Weber had brought the first respondent to
the applicant in 2021. He appointed the first respondent to work in the ful filment
business of the applicant.
[14] Mr Venske the Group Operations Manager of the applicant who deposed to
the founding affidavit asserted that upon receiving the message from Mr Weber, he
learned for the first time that the first respondent intended to pursue employment in
the fulfilment industry, thereby directly competing with the applicant. Additionally, the
first respondent had not previously communicated his intention to participate in a
rival business venture upon his resignation. On 30 June 20 25, Mr Levitt, applicant’s
CEO and the first respondent, met to discuss the effect of the restraint of trade
agreement in the first respondent's employment contract. At that meeting, the first
respondent requested that the applicant relax the restraint of trade so that a
competitor could employ him.
[15] In addition, the first respondent explained that he had no intention of soliciting
the applicant's staff and clients. The applicant contends that Mr Levitt, in good faith
and because he genuinely took an interest in advancing the first respondent's career,
indicated to the first respondent that, in principle, the applicant would be willing to
agree to relax the terms of the restraint of trade subject to certain conditions. Those
conditions were subsequently communicated to the applicant through a Whats App
message. The first condition was that the first respondent or any business with which
he is associated, whether directly or indirectly, is prohibited from employing,
attempting to employ, or engaging with current employees of the applicant during the
restraint period, regardless of who initiates the contact.
[16] The second condition was that the first respondent or any associated entity is
not permitted to solicit or provide services to any existing clients of the applicant,
not permitted to solicit or provide services to any existing clients of the applicant,
leads or prospects that w ere in the applicant's pipeline during the first respondent's
employment. The third condition was that the first respondent or any associated
entity may not engage, contract or utilise the applicant's suppliers that hold
proprietary or strategic value, spe cifically Mintsoft, the applicant's warehouse
management system provider.
[17] In response, the first respondent confirmed that he will not approach or solicit
any of the applicant's current clients known to him from his time at the applicant's
employment. However, the first respondent added that if a former client
independently approaches him more than four months after ending their relationship
with the applicant during the period of 12 months from 1 July 2025, he proposed that
they be free to consider w orking with such a client, as he did not believe that would
result in any prejudice to the applicant. The first respondent further assured the
applicant that he has no intention of replicating or exploiting any proprietary or
strategic arrangements unique to the applicant. Mr Levitt accepted the
counterproposal and promised to formalise it in a letter.
[18] After that, on 8 July 2025, the applicant's head of human resources sent a
written draft agreement to the first respondent encapsulating the agreement reached
between the parties foreshadowed above. Amongst others, the proposed agreement
recorded that the applicant was prepared to relax the restraint of trade agreement
and that with effect from 1 November 2025, the first respondent may engage with
prior clients of the applicant who approached the first respondent independently
within the 12 -month window period provided that there is no direct or indirect
solicitation of the clients. This entitlement would take effect from 1 November 2025.
The agreement also stipulated that a breach of the agreement would result in the full
restraint outlined in the first respondent's employment contract becoming binding.
[19] In response to the formal written agreement, the first respondent did not agree
with the suggest ion that a breach of the new agreement would trigger the full
restraint enclosed in his employment contract. The first respondent also proposed
that he could engage with prior clients from 1 November 2025, in the absence of any
that he could engage with prior clients from 1 November 2025, in the absence of any
solicitation. Notwithstandin g, the applicant asserted that on Friday, 18 July 2025,
while considering the first respondent's counterproposal, the applicant learned that
its second -largest fulfilment client, Ecomignite, was using the fulfilment services of
the second respondent instead of the applicant.
[20] It also came to the applicant's knowledge that at least one other existing
customer of the applicant, Repcillen, was now using the fulfilment services of the
second respondent instead of the applicant. This change occurred after the second
respondent, the first respondent's new employer, approached the customer.
[21] The applicant also explained an incident involving one of its business clients,
Ecomignite. According to the applicant, this company has been doing business with
the applicant almost since the inception of its fulfilment division. The applicant
explains that on 7 May 2025, the head of Ecomignite, Mr Rayne Roselt, sent an
email to the first respondent, who was still employed by the applicant, and to Mr
Levitt, pointing out that another competitor in the fulfilment industry had offered his
business better rates. Mr Roselt concluded the email by requesting a review of the
rates that the applicant was offering him.
[22] The applicant further asserted that at that time, t he first respondent convinced
Mr Levitt to let him manage Mr Roselt because of his close working relationship with
the latter. The first respondent scheduled a meeting with Roselt for 9 May 2025.
According to the applicant, the first respondent indicated t o Mr Levitt that it will be
better if Mr Levitt does not attend the meeting. The first respondent promised to
handle Mr Roselt on his own and advised Mr Levitt that he (first respondent) felt a
face-to-face meeting between him and Mr Roselt would likely yi eld the best results.
The first respondent attended the meeting with Mr Roselt and later reported to Mr
Levitt that the meeting had been a success and that Mr Roselt would remain a client
of the applicant.
[23] Shortly thereafter, on 2 June 2025, days af ter the first respondent had
resigned, Mr Roselt emailed the first respondent and Mr Levitt to inform them that
Ecomignite would be terminating its business dealings with the applicant, effective
from the end of June 2025. The applicant contends that at that time, it had no reason
to suspect that the first respondent had anything to do with Mr Roselt's decision to
to suspect that the first respondent had anything to do with Mr Roselt's decision to
take the business of Ecomignite to a competitor. However, on 17 July 2025, Mr
Venske of the applicant arranged for a package to be purchased from Ecomignite
online. This purchase reflected that the second respondent was the fulfilment service
provider for the order. After that, the applicant discovered that the second
respondent, Stack One, employed the first respondent.
[24] The applicant furthe r contended that, due to the close relationship between
the first respondent and Mr Roselt and based on the meeting that took place on 7
May 2025, it was an unavoidable conclusion that the first respondent had engineered
for Mr Roselt and Ecomignite to move their business to Stack One his new employer.
In addition, the applicant asserted that it is undoubtedly so that the first respondent
had been negotiating with Mr Levitt in bad faith when he made an undertaking not to
solicit the applicant's clients and suppliers. The applicant stated that it has also since
learned that another of its clients, Repcillen, has commenced using Stack One
instead of the applicant.
[25] The applicant asserts that Mr Weber and one Jon Goodman are the directors
of Stack One, wh ich was registered on 26 May 2026, three days before the first
respondent resigned from the applicant. The applicant further postulated that these
facts lead to the conclusion that the first respondent must have been complicit with
Mr Weber in the incorporation of the second respondent before he resigned from the
applicant and that Mr Goodman's directorship of Stack One (second respondent)
was designed to conceal the first respondent's involvement in Stack One to avoid
scrutiny. In the applicant’s view, the second respondent is essentially a special -
purpose tool being used by the first respondent and Mr Weber to establish a
business that competes with the applicant.
[26] The applicant submitted that competition is healthy, but it must be lawful.
What the fi rst respondent, Mr Weber and the second respondent have done is
unlawful. The applicant’s version is further that Mr Weber signed an almost identical
restraint of trade when employed with the applicant and employed the first
respondent as his reporting man ager when he was still with the applicant. The
applicant also noted that Mr Weber and the first respondent are good friends. In the
applicant also noted that Mr Weber and the first respondent are good friends. In the
applicant’s view, Mr Weber and the first respondent have conspired to mask the first
respondent’s involvement in second resp ondent and schemed to undermine and
prejudice the applicant's business.
[27] In the applicant's opinion, the second respondent is not an innocent employer
whose new employee concealed the fact that he was subject to a restraint of trade.
Instead, the second respondent is the tool that was established by Mr Weber and the
first respondent to try to circumvent the restraint of trade. The applicant opined that
the second respondent is clearly complicit in the first respondent's unlawful conduct,
in breach of their restraint of trade, and is benefiting from the first respondent's
unlawful solicitation of the applicant's client. The applicant prayed that an order be
granted as prayed in the notice of motion, as the applicant is at risk of losing further
clients through the first respondent's unlawful conduct if an interdict is not granted.
4. The first respondent’s case
[28] The first and second respondents opposed the applicant's application and
raised some preliminary points. The first respondent disputed th at he approached or
solicited the applicant's clients. The first respondent pointed out that two clients,
Ecomignite and Repcillin, are mentioned in the applicant's application to the effect
that that the first and second respondents may not deal with thes e clients. The first
respondent postulated that these clients have a direct and substantial interest in the
grant or refusal of the relief sought by the applicant. Yet, they have not been cited in
these proceedings. The two respondents take the view that t his is a material non -
joinder of Ecomignite and Repcillin, and the relief sought by the applicant is
accordingly incompetent.
[29] The first respondent asserted that the applicant complains volubly about the
loss of clients, namely Ecomignite and Repcillin, who are properly regarded as
former clients of the applicant and who will not return to the applicant, regardless of
the cir cumstances. In the first respondent's view, the applicant has no protectable
interest in these former clients and no legitimate basis for the interdict sought. The
first respondent points out that the nature of the fulfilment business that the applicant
seeks to protect is straightforward, and there are no trade secrets or confidential
information involved in setting up such a business. The first respondent contends
information involved in setting up such a business. The first respondent contends
that the generalised and unsubstantiated assertions made in support of the
application are e ither misleading or simply false, as underscored by the fact that
many companies offer fulfilment services on an identical or substantially similar basis
to the applicant.
[30] In addition, the first respondent pointed out that, in terms of Rule 41A of t he
Uniform Rules of Court, there is a peremptory requirement that an applicant serve a
notice in which it is given a binary choice: it must indicate whether it agrees to or
opposes the referral of the dispute to mediation. No such notice was served at the
time the application was served on the respondents on 28 July 2025. The first
respondent contends that it would not be appropriate to dispense with the filing of a
Rule 41A notice in this matter, as the parties are not far apart from settling.
[31] In filing the notice to oppose, the respondents delivered a Rule 41A notice in
terms of which they agreed to formal mediations of the matter. At the request of the
respondents’ legal representatives, the applicant filed a Rule 41A notice with a
proviso that the applicant does not object to referring the matter to mediation, subject
to the interim relief sought by the applicant pending the commencement and
outcome of any mediation. The respondents objected to the applicant's request as
they opined that there will be no real incentive for the applicant to participate
meaningfully in a mediation process if the interim relief is granted before mediation.
[32] Furthermore, the respondents challenged the urgency with which this
application was brought. They contended that the application was launched on 28
July 2025 and set down for hearing on 1 August 2025. The respondents were
required to file their opposition to the application by 10h00 on Tuesday, 29 January
2025. The respondents aver that they were required to fi le their answering affidavits
by 12h00 on Thursday, 31 July 2025, two days after entering their notices to oppose
the application and less than one day before the matter is set down for hearing.
[33] According to the respondents, the applicant has contem plated this application
since 18 July 2025 and instructed its legal representatives to draft the application
since 18 July 2025 and instructed its legal representatives to draft the application
over the 8 days period between 20 July and 27 July 2025. Despite this, it has
afforded the respondent less than three days to file answering papers . The
respondents asserted that this matter is not urgent and must be struck from the roll.
[34] On the merits of the application, the first respondent asserted that he joined
the applicant's property division in 2021, where he worked directly under the
supervision of Mr Weber, who was the applicant's regional operations director at the
time. The first respondent contends that at the time he entered into the employment
agreement with the applicant, which contained a restraint of trade, the applicant had
no fulfilment division and could not foresee that the first respondent would have any
involvement in fulfilment generally. During 2023, the first respondent was transferred
from the applicant's property division to its new fulfilment division, which had bee n
largely created by Mr Weber.
[35] According to the first respondent, Mr Weber resigned from the applicant in
early 2024. In the wake of Mr Weber's departure, the first respondent points out that
he noticed an increasing sense of hostility towards Mr Web er, by both Mr Levitt and
Venske of the applicant, who attributed many of the difficulties that the applicant's
business was then experiencing to him despite his departure. First respondent’s
attempts to address the problems faced by the applicant were uns uccessful, and it
was during this time that he realised that his position at the applicant had become
untenable and that he would need to explore other opportunities.
[36] The first respondent further asserted that he maintained a good relationship
with Weber after the latter left the applicant. During April 2025, Mr Weber informed
the first respondent that he intended to start his own fulfilment business following the
expiration of his restraint of trade with the applicant on 1 March 2025. The company
in question became the second respondent owned by Mr Weber and Mr Goodman.
In that company, the first respondent was offered an equal share of the business
alongside Mr Weber and Goodman. Accordingly, he resigned from the applicant on
29 May 2025.
[37] From the day following the date of his resignation and until June 2025, he
called the applicant's clients to notify them of his departure and to facilitate a smooth
handover to his successor, one Conry Orange. The applicant's Group Operations
handover to his successor, one Conry Orange. The applicant's Group Operations
Manager, Mr Vens ke, initially opposed the idea of the applicant informing clients of
his departure, expressing concern that such news might unsettle the applicant's
client base. Despite Mr Venske's objection, the first respondent proceeded to notify
clients, as he believed it was both appropriate and professionally necessary to do so.
[38] The first respondent explained that it would have created an impossible
situation for Mr Orange if the customer base discovered that he was no longer there
and that this fact had been concealed from them, as he had been the applicant's
point of contact with the applicant's clients. He proceeded to contact the applicant's
clients to facilitate a proper handover of his duties to Mr Orange. Most of the clients
expressed regret at seeing him leave. A handful asked him what he was going to do,
and in response, he told them that he was going to be in a similar business. Some
clients indicated to him that they were unhappy with the applicant services and did
not wish to continue using such serv ices in the event of the first respondent's
departure.
[39] Three clients inquired about following him to his new business venture. These
clients were Ecomignite, Repcellin and Habit. He informed these three entities that
his restraint of trade prevented him from soliciting or engaging them in respect of any
new venture. Repcillin and Ecomignite were fundamentally unhappy with the
applicant. They would not stay with the applicant after the first respondent's
departure. The first respondent also explained the genesis of the applicant's
relationship with Repcillin and Ecomignite. According to him, he personally identified
and contacted Repcillin with a view to signing them on as a client for the applicant in
January 2024.
[40] After his resignation and upo n calling Ms Emma Sweet, who managed the
day-to-day operations of Repcillin, advising her of his imminent departure from the
applicant, Ms Sweet advised the first respondent that she under no circumstances
wanted to continue with the applicant in the first respondent's absence and insisted
that she would terminate her agreement with the applicant. The first respondent
stated that Repcillin became a client of the second respondent (his new employer)
without any intervention from him. When she came to know of this litigation, Ms
without any intervention from him. When she came to know of this litigation, Ms
Sweet of Repcillin wrote a letter and a confirmatory affidavit, which were attached to
the applicant's answering affidavit.
[41] In that letter, Ms Sweet indicated that at no point did the first respondent
solicit or ask them to move their business. They had built a strong working
relationship with the first respondent during his time at applicant's employ, and they
experienced consistently good service. Their decision to engage the second
respondent was solely based on their need for reliable fulfilment services and was
not the result of any inducement or solicitation on the first respondent's part.
[42] Concerning Ecomignite, the first respondent stated that he was introduced to
its sole director, Mr Roselt, by Mr Venske. The first respondent contended that Mr
Roselt was constantly complaining about the applicant’s prices during the period
June 2024 to May 2025. That ultimately culminated in Mr Venske requesting that he
meet with Mr Roselt to smooth things over and retain his busine ss for the applicant.
He met with Mr Roselt on 9 May 2025. At that meeting, while Roselt confirmed that
he would stay with the applicant. However, it was clear to him that this was a short -
term commitment and that Mr Roselt was on the lookout for a differe nt fulfilment
solution if his price requirements were not met.
[43] Upon calling Mr Roselt during the week of 26 May 2025 to advise him of his
imminent departure from the applicant, Mr Roselt advised him that he would not
continue with the applicant in the absence of the first respondent and further stated
that he wou ld terminate his agreement with the applicant. Observing the provisions
of his restraint of trade, the first respondent stated that he did not suggest to Mr
Roselt that he should follow him to the new business.
[44] The first respondent attached a suppor ting affidavit and a letter from Mr
Roselt, wherein the latter stated that from early 2025, Aramex had actively sought
his business, seeking to replace the applicant as Ecomignite's fulfilment partner. Mr
Roselt confirmed the meeting of 9 May 2025 with the first respondent, who was in
the applicant's employ at the time. Mr Roselt stated that at that meeting, the
applicant offered him improved pricing, and he advised the applicant that this was
sufficient for the time being to prevent him from moving to Aramex.
sufficient for the time being to prevent him from moving to Aramex.
[45] Aramex continued to solicit his business, and they ultimately made an offer
which he found acceptable. This prompted him to write a letter to the applicant,
informing them that June 2025 would be the last month of doing business with them.
Mr Roselt stated that neither the first nor the second respondent was the cause of
this termination. Notwithstanding, he did not move his business to Aramex.
Subsequently, he had discussions with the second respondent, and an improved
offer was made to him, whi ch he accepted. Mr Roselt also impugned the non -joinder
of Ecomignite in the application. He submitted that the preclusion of Ecomignite from
doing business with the second respondent would cause material prejudice to
Ecomignite and its ongoing operations.
[46] The first respondent also explained the discussion that took place between
him and the group's operations manager relating to the relaxation of the restraint of
trade agreement. First respondent contends that the agreement that was reached
after his meeting with Mr Venske and subsequent email correspondence amounted
to a variation of the terms of the restraint agreement. The first respondent further
opined that it cannot be disputed that both Ecomignite and Reccillin are former
clients of the applic ant who have no intention of returning. In the first respondent's
view, the applicant has no protectable interest, and the first respondent contends
that, as a matter of law, the applicant cannot restrain them from dealing with the two
entities.
[47] The first respondent disputed that he was dishonest when he negotiated with
the applicant regarding his restraint of trade agreement. He implored the court to
dismiss the applicant's application with costs.
5. The second respondent’s case
[48] Mr Weber depo sed to an affidavit on behalf of the second respondent. He
stated that he was the Chief Operating Officer of the second respondent and had
been an integral part of establishing the applicant's fulfilment business. Mr Weber
submitted that the applicant's fu lfilment business officially commenced on 3 July
2023. He oversaw the business from its conception and development in April 2023
until the termination of his employment with the applicant in March 2024, following a
two-month notice period. In terms of his contract of employment with the applicant,
two-month notice period. In terms of his contract of employment with the applicant,
he stated that he was restrained from, among other things, competing with the
applicant for 12 months from the date of termination of his employment until 1 March
2025.
[49] According to him, following his resig nation, he had already begun
conceptualising his own fulfilment business as he was entitled to do in early July
2024. He was, however, mindful that he had to wait out the expiry of his restraint
which he did. He attached WhatsApp correspondences to corrobo rate his averment.
On 14 May 2025, he caused the second respondent (Stack One Fulfilment.co.za) to
be registered. Mr Weber asserted that the second respondent was incorporated on
26 May 2025, and Mr Goodman is the sole director and owns all the shares. He
declined to be a director as he is already a director of five companies. Mr Weber
contended that the second respondent's fulfilment business was initially envisaged
and conceptualised a month before the first respondent's resignation on 29 May
2025.
[50] Mr Weber contended that this application has been motivated by the hostility
that Mr Levitt, the CEO of the applicant, developed towards him following his
departure from the applicant. Whilst he departed on relatively good terms, one of the
reasons for hi s resignation was that Mr Levitt and he had disagreements regarding
his remuneration, particularly as regards the bonus model, which placed a strain on
their relationship. Furthermore, their relationship deteriorated later that year following
the terminati on of the commercial relationship between the applicant and Watch
Tower Group (Pty) Ltd, a company of which Mr Weber is a director. This company
provided off -site monitoring services to the applicant from September 2019 to
October 2024.
[51] Mr Weber also impugned the urgency with which this application was brought.
He shared the same sentiments with the first respondent that the relief sought by the
applicant is incompetent in that Ecomignite and Rapcillin were not joined in these
proceedings. Mr Weber s ought an order that the applicant's application be struck
from the roll with a punitive cost order.
6. Principal submissions by the parties
from the roll with a punitive cost order.
6. Principal submissions by the parties
[52] Mr Goldberg SC, counsel for the applicant, submitted that this matter is urgent.
Counsel argued that if this matter were to be heard in the normal course, the
applicant would be prejudiced as the restraint of trade between the applicant, and
the first respondent is for a year. Counsel submitted that the first respondent has
canvassed or solicited business from the prescribed clients of the applicant and from
the entities trading as Ecomignite and Repcellin in breach of his restraint of trade
agreement with the applicant. Mr Goldberg asserted that the second respondent is
clearly complicit in the first respondent's unlawful conduct in breach of his restraint of
trade and that the second respondent is also complicit in benefiting from the first
respondent's unlawful solicitation of the applicant's clients.
[53] According to Mr Goldberg, a CIPC search in respect of the second
respondent reveals, inter alia, that this entity was registered shortly before the first
respondent's resignation on 26 May 2025 from the applicant. The first respondent
resigned on 29 May 2025. Counsel emphasised that the invaluable springboar d into
the applicant's market share is not one that the second respondent would ordinarily
have, were it not for their employment of the first respondent. Counsel argued that a
restraint of trade enforcement claim arises against a third party, such as the second
respondent, who, with full knowledge of the restraint of trade agreement, employs
the concerned employee.
[54] Mr Goldberg submitted that the first respondent was the general manager of
the applicant's fulfilment business and played a critical rol e in the day -to-day
operation of its fulfilment division, serving as the primary point of contact for all
clients. He developed a deep understanding of each client's business model delivery
requirements, fulfilment challenges and pricing sensitivities. The se relationships
were highly personal, and trust based. Counsel submitted that the conduct of the
respondents to solicit the applicant’s clients constitutes a direct threat to these
legitimate business interests. He implored the court to grant the relief s ought in the
notice of motion.
notice of motion.
[55] On the other hand, Mr Kirk-Cohen SC, counsel for the respondents, submitted
that the relief sought by the applicant is legally incompetent. Counsel submitted that
the applicant is barking at the wrong tree. In counsel’ view, this case should centre
around Mr Weber and not the first respondent. Counsel submitted that the applicant
employed Mr Weber, and, after his resignation, Mr Weber served the 12 months and
honoured his restraint of trade with the applicant. Mr Kirk -Cohen argued that Mr
Weber's restraint clause has expired, and it is within his right to solicit clients,
including that of the applicant. Counsel also submitted that the matter is not urgent.
According to Mr Kirk-Cohen, the applicant had knowledge of the a llege breach of the
restraint of trade agreement on 18 July 2025 but failed to bring such application
timely.
[56] Mr Kirk -Cohen argued that the affidavit of Mr Roselt, the sole director of
Ecomignite, filed on 13 August 2025, brings into sharp focus three issues: one of fact
and two of law. On a factual level, Mr Roselt's affidavit removes any suggestion that
his business Ecomignite was solicited away from the applicant by either respondent.
In fact, so the contentions proceeded, the cause for the termination of his contract
with the applicant was an attractive offer made to him by Aramex. Counsel submitted
that M r Roselt's decision to take his business to the second respondent was after
this termination had already been communicated. There was no solicitation of
business by the first respondents. Counsel submitted that the applicant relies on
inferential reasoning that the respondents ‘poached’ the applicant's client, particularly
Ecomignite.
[57] Mr Kirk -Cohen further pointed out that from early 2025, Aramex, another
fulfilment service provider in the industry, had actively sought Ecomignite's business,
seeking to replace the applicant as its fulfilment partner. This assertion aligns with
the first respondent's evidence that Ecomignite had long been complaining about the
applicant's pricing since June 2024, and that there was a waning of confidence on
the part of Mr Roselt about the competitiveness of the applicant's pricing.
[58] Counsel submitted that Aramex continued to solicit Ecomignite's business and
made an offer which Mr Roselt found to be acceptable. It caused him to give notice
to the applicant on 2 Jun e 2025 that Ecomignite's contractual relationship with the
to the applicant on 2 Jun e 2025 that Ecomignite's contractual relationship with the
applicant was terminated, effective from the end of June 2025. Mr Roselt intended to
take his business to Aramex. Self -evidently, so the argument went, neither the first
nor the second respondent w as the cause of this termination. Furthermore, from the
subsequent discussion between Mr Roselt and Mr Venske, the Group Operations
Manager of the applicant, there is no suggestion in Venske's communication to Mr
Roselt that the circumstances of the termin ation are somehow attributable to the
conduct of the respondents.
[59] Mr Kirk-Cohen also impugned the non -joinder of Ecomignite and Repcillin in
this application. Counsel argued that the two entities have a substantial and direct
interest in the matter a nd would be affected by any order the court granted against
them. Furthermore, in counsel's view, Ecomignite is currently a client of the second
respondent. The second respondent is lawfully entitled to trade and is at liberty to
solicit and canvass client s without restriction. Counsel prayed the court to dismiss
the applicant's application with costs.
7. Issues
[60] From the above discussion, the parties raised several issues on the papers
that this Court must consider. First, the respondents impugned t he urgency with
which this application was brought. According to the respondents, this matter is not
urgent and must be struck from the roll. Secondly, the respondents take issue with
the applicant's failure to serve a notice in terms of Rule 41A. The question is whether
such a failure to serve the Rule 41A notice warrants this Court to dismiss the
applicant's application. Thirdly, whether the non -joinder of Ecomignite and Repecllin
is fatal to the applicant's application. Fourthly, whether the applicant ha s made out a
case for an interdict against both respondents as prayed for in the Notice of Motion.
8. Relevant legal principles and discussion
[61] As stated above, this is an urgent application for an interim interdict against
the first and second res pondents, specifically the first respondent, to prevent him
from breaching his restraint of trade covenant with the applicant. The applicant also
seeks an interdict against the second respondent from competing unlawfully with the
applicant. As will be disc ussed later in this judgment, the effect of the order sought
by the applicant is final in effect. For convenience, I will discuss the disputed issues
by the applicant is final in effect. For convenience, I will discuss the disputed issues
raised above sequentially.
Urgency
[62] As foreshadowed above, the respondents impugned the urgency wit h which
this application was brought and the truncated timeline that the applicant afforded
them to file their answering affidavits. The respondents argued that this matter is not
urgent. Rule 6(12) of the Uniform Rules of court confers courts with a wide discretion
to decide whether an application justifies enrolment on the urgent court roll based on
the facts and circumstances of each case. 1 When an applicant has departed from
the normal time periods and has stipulated truncated time limits in its notice of
motion, it must set out circumstances justifying the extent of the departure from the
normal time limits, and why it claims that it could not obtain substantial redress at a
hearing in due course.2 The degree of departure from the modes of service and t ime
frame in the Uniform Rules must be commensurate with the urgency in each case.3
[63] The applicant in this matter is enforcing a restraint of trade agreement. It is
now trite that proceedings for the enforcement of a restraint of trade agreement are
usually, by their very nature, urgent. They invariably seek to interdict ongoing
unlawful action in respect of which an applicant continues to suffer financial losses
which are notoriously difficult to quantify, or to recover by way of action. 4 As it will be
demonstrated hereunder, there is overwhelming evidence that the first respondent is
soliciting the applicant’s clients for the benefit of the second respondent.
[64] Significantly, the restraint period is of a limited duration and is being eroded
daily. If the applicant were required to wait for a hearing in the ordinary course, the
restraint period might have expired or be of very limited duration by the time the
matter is heard. As Mr Goldberg submitted, given the conduct of the respondents,
the appreh ension of further imminent harm to the applicant's legitimate interest is
palpable. Within the allotted timeframe, the respondents successfully filed their
palpable. Within the allotted timeframe, the respondents successfully filed their
1 Mogalakwena Local Municipality v Provincial Executive Council, Limpopo [2014] 4 AII 67 (GP) at
para 63; Caledon Street Restaurants CC v D’ Aviera 1998 JDR 0116 (SE) at 8.
2 Luna Meubel Vervaardigers (EDMS) BPK v Makin and another (t/a Ma kin’s Furniture
Manufactures) 1977 (4) SA 135 (W) at 137F-G).
3 Republikeinse Publikasie (edms) Bpk v Afrikaanse Pers Publikasie (edms) Bpk 1972 (1) SA 773 (A)
at 782A-G.
4 Boomerang Trade CC t/a Border Sheet Metals v Groenewald and Another [2012] JOL 29426 (ECG)
para 36; Mozart Ice Cream Franchises (Pty) Ltd v Davidoff and Another 2009 (3) SA 78 (C) at 88J.
answering affidavit and sourced information from third parties to support their case.
In my view, this matter is urgent and deserves the immediate attention of this Court.
Rule 41A Notice
[65] The respondent contended that, in terms of Rule 41A of the Uniform Rules of
Court, there is a peremptory requirement that applicants shall serve a notice in which
it is given a binary choice: It must indicate whether they agree to or oppose the
referral of the dispute to mediation. No such notice at the time the application was
served on the respondents on 28 July 2025 was attached. Rule 41A envisages a
speedy re solution of disputes through mediation. The purpose of the rule is to
require the parties to consider and inform the court of their perspectives on whether
the matter is capable of alternative resolution processes.
[66] In this case, the respondents conte nded that the parties were very close to
settling and that a via media could be found through mediation, bridging the gaps
that separate them and the applicant. It is common cause that the parties exchanged
correspondence after the application was served, and the applicant subsequently
delivered a notice in terms of Rule 41A. The respondents did not accede to the
applicant's request for mediation, as the applicant had made a conditional offer to
participate in mediation. The applicant stated that it does no t object to the referral of
the matter to mediation, subject to the interim relief sought by the applicant pending
the commencement and outcome of any mediation. The respondents rejected this
proposal because they believed that such mediation would take place with them over
a barrel, with the interim relief against them a fait accompli.
[67] However, at the hearing of this matter, the applicant's counsel informed the
court that the applicant was willing to go for mediation unconditionally with a view to
settling the matter. The applicant's counsel further informed the court that the
settling the matter. The applicant's counsel further informed the court that the
applicant was amenable to a short postponement of the matter so that it could be
referred to mediation. The offer was rejected outright by the respondents' counsel on
the grounds that the applicant's offer arrived too late and that they would only agree
to a po stponement on the condition that the applicant pay the wasted costs of the
day. This was unacceptable to the applicant, and the matter was argued on its merits.
[68] I appreciate that Rule 41A plays a critical role in resolving disputes. This rule
not on ly establishes a framework for addressing dispute, but it also serves as a
stamp of approval by the Uniform Rules for alternative dispute resolution
mechanisms. However, upon reading the respective affidavits of the parties, I am of
the view that the parties are poles apart, and that this is a quintessential case where
the court must dispense with the rule and consider the matter on its merits. This
conclusion is also fortified by the fact that before this application was launched, the
parties had discussed at length the relaxation of the restraint agreement contained in
the applicant's employment agreement. The parties could not reach consensus on all
the issues discussed.
[69] Additionally, notwithstanding that the Rule 41A notice was not served on the
respondent simultaneously with the application, the notice was delivered shortly after
the applicant's application was launched and long before the answering affidavit was
prepared. In my view, this matter is urgent. A delay in resolving the matter would
prejudice the applicant, particularly in circumstances where the first respondent
freely and voluntarily signed an agreement of non -compete against the applicant.
The respondents were indeed served with the Rule 41A notice. The fact that it was
not served to gether with the application is inconsequential. It does not warrant the
dismissal of the applicant's application.
The non-joinder of Ecomignite and Repcillin
[70] The respondents challenged the applicant's application for the non -joinder of
Ecomignite and Repcillin. The respondents contended that the applicant seeks an
order prohibiting these two entities from contracting with the second respondent.
According to the respondents, the relief sought by the applicant provides the two
entities with a real an d substantial interest in the outcome of the litigation; therefore,
entities with a real an d substantial interest in the outcome of the litigation; therefore,
these two entities should have been joined in these proceedings.
[71] The general rule is that, if a party has an interest of such a nature that it is
likely to be prejudiced by a judgmen t given in the proceedings, such a party ought to
be joined.5 The test is whether or not a party has a ‘direct and substantial interest’ in
the subject matter of the action, that is, a legal interest in the subject matter of the
litigation which may be aff ected prejudicially by the judgment of the court. 6 A 'direct
and substantial interest' has been held to be an interest in the right which is the
subject-matter of the litigation and not merely a financial interest which is only an
indirect interest in such litigation.7 A mere financial interest is an indirect interest and
may not require joinder of a person having such interest.8
[72] The Appellate Division, as it then was, in Amalgamated Engineering Union v
Minister of Labour,9 sets out two tests to determine whether a third party has a direct
and substantial interest in a matter: the one is whether the third party would have
locus standi to claim relief concerning the same subject -matter (the locus standi test),
and the other is whether the third party wh o has not been joined can successfully
raise the defence of res judicata concerning the same subject -matter in a
subsequent case and obtain a conflicting decision to that made in the first instance
(the res judicata test).
[73] In the present matter, I am of the view that Ecomignite and Repcillin have an
indirect financial interest in the matter as opposed to a direct and substantial interest.
This matter involves the enforcement of a restraint of trade against the first and
second respondents. As I see it , the two entities have no locus standi to the
applicant’s enforcement of the restraint agreement against the respondents.
Likewise, the two entities cannot successfully raise the defence of res judicata in any
subsequent case and, in the process, obtain a conflicting decision to the one made
in this matter, because they were not parties to this case.
[74] In the circumstances, I conclude that the two entities fail the test enunciated
above. However, even if I am wrong in my interpretation, I must stress that the two
above. However, even if I am wrong in my interpretation, I must stress that the two
entities were aware of the proceedings between the applicant and the respondents.
5 Standard Bank of South Africa Ltd v Swartland Municipality and Others 2010 (5) SA 479 at 482F.
6 Zingwazi Contractors CC v Eastern Cape Department of Human Settlements 2021 (6) SA 557
(ECG) para 62.
7 Bohlokong Black Taxi Association v Interstate Bus Lines (Edms) Bpk 1997 (4) SA 635 (O) at 644A-
B.
8 Hartland Implemente (Edms) Bpk v Enal Eiendomme BK 2002 (3) SA 653 at 663E–H.
9 1949 (3) SA 637 (A) at 660-661.
The two entities chose to file supporting affidavits in support of the respondents.
From their affidavits and letters of support filed, it can be reasonably infe rred that
they read the applicant’s notice of motion and the founding affidavit. The two entities
had an opportunity to intervene in these proceedings if indeed they felt that their
interests would be prejudiced.
[75] They consciously opted not to interv ene. Moreover, the respondents could
have pursued an application to join these entities in the matter if they deemed their
involvement to be indispensable. Consequently, I conclude that the respondents’
preliminary point of non-joinder must ultimately be dismissed.
Has the applicant made out a case for the restraint of trade?
[76] From the outset, I must stress that the applicant cannot enforce the alleged
restraint of trade against the respondents if such enforcement would be
unreasonable. The following four factors determine reasonableness:10
76.1 Does the applicant establish a protectable interest?
76.2 If so, is such interest threatened by the first respondent’s employment
with the second respondent?
76.3 If yes, does the applicant’s protectable interest outweigh, qualitatively
and quantitatively, the first respondent’s interest to be economically active and
productive?
76.4 If yes, is there another aspect of public policy having nothing to do with
the relationship between the parties that requires the restraint of trade not to
be enforced?
76.5 Does the restraint go further than necessary to protect the interest of
the applicant?
10 Basson v Chilwan 1993 (3) SA (A) 742 at 767G-I.
[77] If the answer is no to any of the first three questions, the rest raint of trade
cannot be enforced. Furthermore, an employer cannot prevent an erstwhile
employee from applying their skills, knowledge, and experience in their new
employment. I, in turn, deal with these factors ad seriatim.11
Did the applicant establish a legitimate protectable interest?
[78] There are two types of proprietary interests generally recognised as deserving
of protection, although there is no fixed list. The first kind consists of the relationships
with customers, potential customers, and su ppliers that make up what is
compendiously referred to as the 'trade connection' of the business, being an
essential aspect of its incorporeal property known as goodwill.12
[79] The second kind consists of all confidential matters which are useful for the
carrying on of the business and which could therefore be used by a competitor, if
disclosed to him, to gain a relative competitive advantage. Such confidential material
is sometimes compendiously referred to as 'trade secrets'.13
[80] If I understand the applicant's application correctly, the applicant's application
does not concern trade secrets or confidential information, but rather client
connections or trade connections that impact the goodwill of the applicant. After
carefully evaluating the conspectus of all the evidence provided, I am of the view that
the applicant demonstrated a significant and compelling protectable interest. The
following objective facts support this conclusion: It is common cause that the first
respondent was the General Manage r of the applicant's fulfilment business. The first
respondent was the main point of contact with the applicant's fulfilment clients. This
was particularly true for the applicant's larger clients, such as Ecomignite. The first
respondent was responsible for maintaining the client relationship and ensuring their
satisfaction.
satisfaction.
11 Northern Offices Computers (Pty) Ltd v Rosenstein 1981 (4) SA 123 (C) at 136B-D.
12 Sibex Engineering Services (Pty) Ltd v Van Wyk 1991 (2) SA 482 at 502D-F.
13 Sibex Engineering Services (Pty) Ltd v Van Wyk fn 12 above at 502D-F.
[81] The first respondent was entrusted with managing these relationships and
serving them in the applicant's interests. The first respondent had a close connection
with the applicant' s clients. He had full responsibility for dealing with clients and
direct oversight of daily client communication, service delivery and issue resolution.
He was responsible for preparing and submitting all pricing proposals. If there was
dissatisfaction, i t was the first respondent who was charged with resolving it. The
applicant stressed that the first respondent repeatedly and publicly praised the
fulfilment division under his tutelage, especially on social media.
[82] The applicant's assertion in this r egard is corroborated by the respondent's
averments in the answering affidavit wherein the first respondent asserted that he
personally identified and contacted Repcillin with a view to signing them on as a
client for the applicant during January 2024. The first respondent further asserts that
his point of contact at Repcillin was Ms Emma Sweet, who is the daughter of the co -
members of Repcillin and who he understood was involved in Repcillin's day -to-day
operations.
[83] Moreover, Mr Roselt of Ecomignite also corroborated the applicant's version
in his affidavit. Mr Roselt stated that Ecomignite has used the applicant as a
fulfilment contractor for several years. Mr Roselt further asserted that initially, his
relationship was with Mr Dean Venske. However, he later met the first respondent at
the applicant's warehouse, following which he became his primary and regular point
of contact. Over time, they developed an excellent professional relationship, and he
came to regard the first respondent as a trusted business associate.
[84] Additionally, when Ecomignite sent an email to the applicant's Group
Operations Manager (Mr Venske) and the first respondent pointing out that another
competitor in the fulfilment industry had offered his business better rates, Mr Venske
competitor in the fulfilment industry had offered his business better rates, Mr Venske
and the first respondent analysed the rates that Ecomignite was complaining about
and concluded that he was in fact not being offered a better deal compared to the
applicant's pricing structure. The first respondent, as the point of contact with cl ients,
convinced Mr Venske to let him manage Mr Roselt of Ecomignite because of their
close working relationship. This resulted in a meeting which took place on 9 May
2025, where the first respondent represented the applicant in discussing the impasse
between the applicant and Ecomignite.
[85] From the foregoing, it is abundantly clear that the first respondent was the
point of contact of the applicant's clients. His relationship with the applicant's clients
characterises a compelling protectable interest in client connections. The first
respondent played a critical role in the day -to-day operations of the applicant's
fulfilment division and was the primary point of contact for all clients. He managed all
ongoing communications, coordinated daily service d elivery, and established himself
as the trusted operational liaison for clients.
[86] Intelligibly, the first respondent held direct correspondence with clients. He
developed a deep understanding of each client's business model, delivery
requirements, fu lfilment challenges and pricing sensitivities. These relationships
were highly personal and trust -based, particularly within the Small and Medium
Enterprise client base, where businesses rely heavily on service continuity and
personal support. Therefore, t he applicant succeeded in establishing a compelling
protectable interest.
Is the applicant’s protectable interest threatened by the first respondent’s
employment with the second respondent?
[87] Having found that the applicant has a protectable interest, the question is
whether such interest is threatened by the first respondent's employment with the
second respondent. This question, in my view, must be considered from the well -
established pr inciple that a restraint of trade clause with the sole aim of stifling
competition is against public policy and unenforceable.14 It is common cause that the
first respondent is subject to a restraint of trade in favour of the applicant for a period
of 12 mo nths after the termination of his employment. From the first respondent's
own affidavit, it is without a doubt revealed that the first respondent solicited the
applicant's clients.
applicant's clients.
14 Ice Cream Francise (Pty) Ltd v Davidoff and Another 2009 (3) SA 78 (C) at 82H-83C.
[88] It bears emphasis that the need of an employer to protect his 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 lives the
employer’s service, he could easily induce the customers to follow him to a new
business.15 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’.16
[89] In casu , Mr Venske of the applicant opposed th e first respondent's idea of
informing clients of his departure from the applicant. Mr Venske expressed concern
that such news might unsettle the applicant's client base. Notwithstanding the
applicant's opposition to the first respondent informing clients, the first respondent
proceeded to notify them, knowing very well of his trade connection with the
applicant's client. He called the applicant's clients and told them that he was leaving.
Importantly, when he called the applicant's clients, he was still em ployed by the
applicant and was aware that he was joining a competitor of the applicant.
Incontestably, the first respondent had formed an attachment with the applicant’s
clients and acquired an influence over them which he never had before.
[90] The suggestion by the first respondent that he notified the applicant's clients
of his departure to facilitate a smooth handover to his successor is a sheer
contrivance. The first respondent understood that he had a close working
relationship with the applicant's clients. As Mr Roselt points out, the first respondent
knew over time that he had developed an excellent professional relationship with the
applicant's clients and that they regarded him as a trusted business associate. From
the objective facts, the only r easonable inference to be drawn in the first
respondent's conduct was that he was soliciting the applicant's clients to follow him
respondent's conduct was that he was soliciting the applicant's clients to follow him
to the second respondent in breach of the restraint of trade covenant.
[91] Demonstrably, the applicant's protectable inter est is threatened by the first
respondent's employment with the second respondent. The first respondent has
already caused two of the applicant's clients to leave the applicant and to use the
15 Rawlings and Another v Caravantruck (Pty) Ltd 1993 (1) SA 537 (A) at 541.
16 Rawlings and Another v Caravantruck (Pty) Ltd fn 15 above at 541.
second respondent in the applicant's stead. In my view, the appl icant must be
protected against the respondents in that if the relief in the notice of motion is not
granted, there's a likelihood that the first respondent will continue to solicit other
clients of the applicant to the applicant's prejudice.
[92] Ecomiginite and Repcillin were the clients of the applicant before the applicant
resigned. Surprisingly, immediately upon his resignation, the two entities followed the
first respondent to the second respondent. In my view, it is inescapable not to
conclude that the first respondent clearly solicited the two entities to follow him when
he started with the second respondent. The second respondent, on the other hand,
is enjoying the benefits of the first respondent's breach of the restrained agreement.
[93] I am mindful of the supporting affidavits submitted by Mr Roselt and Ms Sweet,
which indicate that they were not solicited. However, a thorough examination of the
facts in this case unequivocally refutes their assertion. This conclusion is
underscored by the affidavit of Mr Roselt. In his deposition, Mr Roselt asserts that
the first respondent informed him that he was going to be employed by a similar
business and disclosed the identity of his employer. Mr Roselt asked the first
respondent if he could follow h im to his new employer. On 2 June 2025, shortly after
the first respondent had contacted Roselt, Ecogmignite gave notice to the applicant
that it was moving its business to Aramex. After the first respondent resigned,
Ecomignite moved its business directly to Stack One (the first respondent’s new
employer) and it never used Aramex.
[94] Consequently, the applicant's protectable interest is being prejudiced by the
first respondent's soliciting of the applicant's clients for the benefit of the second
respondent. The second respondent is complicit in that it is benefiting from the first
respondent. The second respondent is complicit in that it is benefiting from the first
respondent's unlawful solicitation of the applicant's clients. Moreso, Mr Weber knows
that there is a restraint agreement that binds the first respondent not to compete with
the applicant. The second respondent is thus unlawfully competing with the applicant.
Does the applicant’s protectable interest outweigh, qualitatively and quantitatively the
first respondent’s interest to be economically active and productive?
[95] The applicant avers that although the first respondent's employment with the
second respondent constitutes a breach of the restraint of trade, the applicant does
not seek to prevent the first respondent from continuing to work with that company.
The applicant does not seek to impede the first respondent's ability to work and earn
a living, even if it means competing with the applicant. However, the applicant
contends that the first respondent has unlawfully solicited its existing clients, thereby
breaching the restraint of trade.
[96] The second respondent is a direct competitor of the applicant. I believe that
the impact on the applicant should the relief be denied is significantly more
consequential than any potential repercussions that the respondents may encounter.
To my mind, while competition is beneficial, it is imperative that such competition
remains within the confines of legality to ensure fairness and justice.
9. Interim or final interdict?
[97] As discussed above, the applicant sought an interi m interdict in this
application to restrain the respondents from soliciting its clients. However, after
perusing the respective affidavits, it became clear to me that the effect of the relief
sought by the applicant is final in nature. I also noted that on ce the order requested
by the applicant is granted, the Court will not revisit any matters on the return date,
as all issues will have already been addressed. To this end, I invited the parties to
submit a post-hearing note to the Court to address this point.
[98] Mr Goldberg noted that the order sought by the applicant at this stage is self -
evidently of an interim nature. Furthermore, the respondents have at no stage
contended that the relief sought was final in effect. However, counsel submitted that
if the Court holds that the relief sought is final in nature, the applicant respectfully
contends that it has met and exceeded the threshold for final relief. Mr Kirk -Cohen,
contends that it has met and exceeded the threshold for final relief. Mr Kirk -Cohen,
on the other hand, agreed that all things considered, if this Court grants any form of
interdict, it will be final in effect. No other court will ever consider the substance of
the matter. Counsel argued that the matter would be moot by the time it is heard.
[99] It bears emphasis that an interim interdict is a temporary measure designed to
protect rights before a final determination can be made. An interim interdict does not
involve a final determination of the rights of the parties and does not affect their final
determination.17 In other words, it does not finally dispose of the rights between the
parties. The lis between them remains to be disposed of in the pending proceedings.
As soon as the court makes a final determination, the interim interdict is disch arged.
However, in my view, regard should be had to the substance of the relief sought
rather than the form of the relief sought.
[100] As mentioned above, the substance of the relief sought by the applicant is
final in effect. This view is bolstered by t he fact that no other court will ever consider
the substance of the matter, even if the return date of this matter is within the 12 -
month restraint period. The parties have filed all their affidavits and heads of
argument addressing all the issues raised i n the respective affidavits. The parties
have argued the substances (merits) of the issues raised in the affidavits. Ostensibly,
there is no quest by any party to put further facts before this Court. As noted by Mr
Kirk-Cohen, the papers must be regarded a s finalised, and a final decision can be
made without prejudice to any party. I agree with that proposition. A hearing on the
return date will rehash issues that have already been addressed and decided upon.
This may lead to an inefficient use of judicial resources and result in the incurrence
of unnecessary costs.
[101] In my view, the substance of the order sought by the applicant, although it
was cast in the form of an interlocutory interdict, it was in effect an application for a
final interdict. The consequence of the order sought by the applicant will be final in
effect. It has been consistently held that 'final in effect' means that an issue in the
effect. It has been consistently held that 'final in effect' means that an issue in the
suit has been affected by the order such that the issue cannot be revisited either by
the Court of fir st instance or that hearing the action’. 18 I will therefore thoughtfully
consider this interdict application from the premise that the applicant is seeking a
final order.
10. Did the applicant establish the requirements of a final interdict?
17 Rudkurum (Pty) Ltd v Weider Gym Athlone (Pty) Ltd 1996 (4) AII SA 29 (C) at 33.
18 Cipla Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation, 2018 (6) SA 440 (SCA) para 47.
[102] The law regarding the grant of a final interdict is trite. The test, for the granting
of a final interdict, requires an applicant to establish:
(a) a clear right.
(b) a reasonable apprehension of irreparable harm and imminent harm to the
right.
(c) no other satisfactory remedy available to the applicant.
[103] Once the applicant has established the three requisite elements for the grant
of an interdict, the scope, if any, for refusing relief is limited. 19 There is no general
discretion to refuse relief. To with hold an interdict where a case for such has been
made, would deny the injured party a remedy for its injury, and that would be
inconsistent with the constitutionally protected right of access to courts for the
resolution of disputes.
Did the applicant establish a clear right?
[104] In this case, the first respondent was employed by the applicant with a
restraint of trade agreement in his employment contract. The applicant asserts that
the first respondent breached the restraint of trade agreement. The fir st respondent
resigned from the applicant's employ on 29 May 2025. Before his resignation, the
first respondent was offered an equal share in the second respondent (Stack One), a
competitor of the applicant in breach of the restraint of trade agreement. Co ntrary to
the applicant's direct instructions, the first respondent immediately contacted the
applicant's clients.
[105] Despite the restraint of trade in his employment agreement, the first
respondent informed the applicant's clients that he was leaving the applicant and
was going to be employed in a similar business. Pursuant thereto, the first
respondent caused two of the applicant's clients to leave the applicant and to use the
second respondent as their fulfilment partner. In my view, the applicant h as
19 Hotz and Others v University of Cape Town 20171 (2) SA 485 (SCA) para 29.
established a clear right and has demonstrated the irreparable harm that would
result if the interdict were not granted. There can be no doubt that the actions taken
by the respondents to solicit the clients of the applicant constituted a violation of t he
applicant's rights and resulted in damages that are inherently difficult to quantify.
Alternative remedy.
[106] In this case, I believe that the applicant does not have an alternative remedy.
As foreshadowed above, it would be objectively impossible , in my view, for the
applicant to quantify its damages. The applicant has invested considerably in
establishing its fulfilment division and its fulfilment client base. I accept that an
interdict is meant to protect future conduct and not decisions already made; however,
as discussed above, the first respondent has already secured the business of two of
the applicant's clients. This conduct breached the applicant's protectable interest.
The risk that others would be induced to follow him if not interdicted is manifest.
Furthermore, the applicant cannot be allowed to infringe the applicant’s protectable
interest.
[107] Given all these considerations, I believe the applicant’s application for an
interdict must succeed.
11. Order
[108] In the result, the following order is granted.
[108.1] The first respondent is hereby restrained and interdicted for a
period of 12 (twelve) months, commencing on 1 July 2025, from breaching the
covenant in restraint of trade he concluded with the applicant by (directly or
indirectly, solely or jointly, whether as a proprietor, partner, director,
shareholder, employee, consultant, contractor, financier, agent and/or
representative) canvassing or soliciting business (or attempting to do so) in
respect of fulfilment services from any person who was a client or a
prescribed client of the applicant during the first respondent’s employment
with the applicant and/or any person to whom or on whose behalf the
applicant rendered or currently renders any servi ces during any part of the
first respondent’s employment with the applicant and/or any person who or
which is or was a prospective client of the applicant at the termination date of
the first respondent’s employment with the applicant being 30 June 2025 (t he
termination date), or whom the applicant approached to do business with
within 1 (one) year preceding the termination date and/or any person to whom
fulfilment services were rendered by the applicant within a period of 1 (one)
year preceding the termina tion date, and in particular, the first respondent is
interdicted and restrained for the said 12 (twelve) months period from
canvassing or soliciting business (or attempting to do so) in respect of
fulfilment services from the following persons who were cl ients/customers of
the applicant during the first respondent’s period of employment with the
applicant, namely; the business trading as Ecomignite and the business
trading as Repcillen.
[108.2] The second respondent is hereby restrained and interdicted fo r
a period of 12 (Twelve) months, commencing on 1 July 2025, from
canvassing or soliciting business (or attempting to do so) from the clients who
comprise the prescribed clients of the applicant, and in particular the entities
referred to in subparagraph 108.1 above in respect of fulfilment services.
[108.3] The first and second respondents are ordered to pay the costs
of this application on a party and party scale, jointly and severally, with the
one paying the other to be absolved, including the costs of two counsels
where so employed, on scale B.
________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES
For the Applicant: Adv D Goldberg SC
Adv J Ord
Instructed by: Smiedt & Associates Attorneys
For the Respondents: Adv Kirk-Cohen SC
Instructed by: Nirenstein Attorneys Inc