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)
Not Reportable
Case no: 2025/123779
In the matter between:
NJR STEEL CAPE TOWN (PTY) LIMITED Applicant
and
RUPERT FRANCOIS GORDON First Respondent
STEWARTS AND LLOYDS HOLDINGS
(PTY) LIMITED Second Respondent
Neutral citation: NJR Steel Cape Town (Pty) Limited v Rupert Francois Gordon
and another
(Case no 2025/123779) [2025] ZAWCHC (6 AUGUST 2025)
Coram: NJOKWENI AJ
Heard: 6 August 2025
Delivered ex tempore: 6 August 2025
Reasons delivered: 26 August 2025
Summary: Urgency - final interdict –restraint of trade – breach and enforceability –
locus standi application to strike out averments in the replying affidavit – no
formal application to strike out filed leave to file further affidavits – referral to oral
evidence – requirements for final interdict met – not repugnant to public policy –
restraint of trade found to be reasonable and enforceable.
___________________________________________________________________
ORDER
___________________________________________________________________
1. The rules relating to forms, service, notices, and time periods, to the
extent necessary, are dispensed with in terms of uniform rule 6(12).
2. The matter is declared sufficiently urgent to be heard on urgent basis.
3. The first respondent’s informal application to strike out is condoned.
4. Application to strike out impugned new averments from the replying
affidavit is dismissed.
5. Application to strike out “hearsay” evidence from the replying affidavit is
dismissed.
6. The first respondent, for a period of six months, from 1 August 2025,
(“the restraint period”) is hereby interdicted and prohibited from:
6.1 rendering services as an employee of the second respondent
(Stewarts and Lloyds Holdings (Pty) Ltd).
6.2 being directly or indirectly involved with the second respondent
within a 250-kilometer radius of the applicant's business premises
situate at 1[…] B[…] Avenue, Epping Industria, Cape Town,
Western Cape (“the restraint area”).
6.3 marketing, selling, or supplying goods or services similar to those
of the applicant within the restraint area and during the restraint
period.
7. The second respondent is hereby interdicted and prohibited from
employing the first respondent within the restraint area during the
restraint period.
8. The first and second respondents jointly and severally one paying the
other be absolved to pay the costs of the application, including the costs
of counsel, on scale C.
WRITTEN REASONS/JUDGMENT
Njokweni AJ
Introduction
[1] This application served before me in the urgent court on 6 August 2025. It
concerns an urgent application brought by NJR Steel Cape Town (Pty) Ltd
(the applicant) against Rupert Francois Gordon (the first respondent) and
Stewarts and Lloyds Holdings (Pty) Ltd ( the second respondent). The case
revolves around enforcing a restraint of trade agreement signed by the first
respondent during his employment with the applicant.
[2] The applicant, NJR Steel Cape Town (Pty) Ltd, sought urgent interdictory
relief to enforce a restraint of trade and confidentiality agreement signed by
the first respondent, Rupert Francois Gordon, on 2 October 2023. The first
respondent allegedly breached this agreement by joining the second
respondent, Stewarts and Lloyds Holdings (Pty) Ltd, a direct competitor, on 1
August 2025. The applicant fears irreparable harm to its proprietary
interests, including customer connections and confidential information, and
seeks to prevent both respondents from engaging in unla wful competition.
The applicant contended that the matter is urgent as the restraint is valid for
only six months, expiring on 31 January 2026.
[3] After I heard oral submissions from counsel of all the parties and having
considered the matter, I found the matter to be sufficiently urgent and granted
relief to the applicant by making an order inter alia interdicting: (1) the first
respondent from working for the second respondent or engaging in activities
that would compete with the applicant's business wit hin a specified area
during the restraint period; and (2) the second respondent from employing
the first respondent within the restraint area during the restraint period. I then
delivered an ex tempore judgment in support of my order . The respondents
have filed leave to appeal against the entirety of my ex tempore judgment
and the order I made on 6 August 2025. They have also requested written
reasons in terms of rule 49(1) (c) for the decision . The full reasons appear
below.
Relevant Facts
[4] The factual background relevant to the issues for determination is briefly set
out below.
[5] NJR Steel Cape Town (Pty) Ltd operates as a steel merchant, selling various
steel and related products. The f irst respondent was employed by the
applicant as an internal sales representative from 1 October 2023 to 31 July
2025. Prior to this period, he worked for the second respondent for 15 years
from 2008 to 2023. On 2 October 2023, the first respondent signed a restraint
of trade and confidentiality agreement that wa s attached to his employment
contract as an addendum. The material relevant terms thereof:
[6] The first respondent agreed not to market, sell, or supply any competitive
products within a 250 -kilometer radius of the applicant's business during the
restraint period (employment period plus six months after termination). The
first respondent is prohibited from being involved in any competitive business
within the restraint area in any capacity (e.g., as an employee, consultant,
shareholder, etc.).
[7] The first respondent undertook not to solicit, persuade, or induce NJR
customers to cease or reduce business with the applicant during the restraint
period. The respondent is prohibited from canvassing or soliciting orders from
NJR customers for competitiv e products. The first respondent agreed to
maintain the confidentiality of, and not disclose proprietary information,
including customer and supplier lists, business relationships, pricing
structures, and trade secrets. The respondent is prohibited from u sing
confidential information or business connections for personal benefit or for
the benefit of any competitive business. These provisions aim to protect the
applicant's proprietary interests, customer relationships, and confidential
information from mis use by the first respondent during and after his
employment.
[8] During his time as the applicant’s employee, the first respondent had access
to, and came into possession of, confidential and proprietary information
belonging to the applicant during his employment. This includes customer
contact details, new personnel relationships, and confidential information
regarding: steel, tube, and plate requirements, opportunities, and proposals
discussed with the applicant ’s customers. The first respondent was the
applicant's best -performing internal sales representative, contributing
approximately 41.5% of sales by value and 43.9% of sales by volume over
the last nine months of his employment.
[9] On 2 July 2015 the first re spondent tendered his resignation from the employ
of the applicant to take up employment with the second respondent as an
internal salesperson to revive dormant customers. Notwithstanding better
offers by the applicant and the binding effect of the restraint and
confidentiality agreement, on 1 August 2025 , the first respondent took up
employment with the second respondent, a direct competitor of the
applicant, at its Wetton branch, which is located less than 15 kilometers
from the applicant's premises and falls within the restraint area. The second
respondent is a direct competitor of the applicant, selling similar products and
targeting the same customer base. It is considered one of the applicant’s
main competitors.
[10] The first respondent's defence to the applicant's claim is summarised below.
[11] The applicant does not have a legitimate proprietary interest in the TOP 15
[11] The applicant does not have a legitimate proprietary interest in the TOP 15
customer relationships. These relationships were cultivated by Gordon over
15 years with the second respondent, not during his brief tenure with the
applicant. The applicant profited from these pre-existing relationships without
creating new goodwill, and thus cannot claim ownership over them.
[12] The f irst respondent’s current role selling Fluid Control Products is entirely
distinct from the applicant’s steel products. He handles dormant accounts
and uses the second respondent’s database, posing no competitive threat to
the applicant. This distinction negates any claim of breach of the restraint of
trade.
[13] The restraint imposed by the applicant is unreasonably broad, spanning 12
months unpaid and a 250 -kilometer radius. This scope disproportionately
burdens Gordon, a junior salesman without strategic knowledge, and violates
public policy by restricting his constitutional right to work and economic
freedom.
[14] The applicant has failed to demonstrate genuine urgency, as the harm it
claims is speculative and self-induced due to its delay in filing the application.
Courts require concrete evidence of harm and the absence of substantial
redress through normal procedures, which the applicant has not provided.
[15] The applicant’s claims about protectable confidential information are vague
and unsupported. The first respondent assert s that the data in question is
transient, public, or originates with the second respondent, and the
applicant’s reliance on hearsay further undermines its case.
[16] Material disputes regarding proprietary interest, competitive threat, and
confidentiality re quire oral evidence for resolution. These disputes prevent
the court from ruling in favour of the applicant based solely on the papers. A
damages action would suffice as an alternative remedy, which the applicant
has failed to address. This further wea kens the applicant’s case for urgent
relief.
[17] Ruling in favour of the first respondent upholds his constitutional right to
work, dignity, and economic freedom. The restraint imposed by the applicant
is excessive and contrary to public policy, as it prevents the first respondent
from pursuing non-competitive employment.
[18] In summary, the applicant has failed to establish a protectable interest,
demonstrate urgency, or justify the restraint’s scope. First respondent’s
arguments align with constituti onal principles and public policy, compelling
the court to rule in his favour. The applicant asserts that the first respondent
possesses confidential information regarding customer requirements,
opportunities, and proposals acquired during his employment – information
that is protectable under the restraint agreement.
[19] The r espondents have raised different points in limine . These points are
procedural challenges raised before addressing the substantive merits of the
case. However, I decided to hear the merits of the application before I ruled
on those points so I could determine the merits of the application in the event
that I should decide to dismiss the in limine points. I deal with these points
below.
Urgency
[20] The issue of whether a matter should be enrolled and heard as an urgent
application is governed by the provisions of Rule 6(12) of the Uniform Rules.
The aforesaid sub-rule allows the court or a judge in urgent applications to
dispense with the forms and service provided for in the rules and dispose of
the matter at such time and place, in such manner, and in accordance with
such procedure as it deems fit. It furt her provides that in the affidavit in
support of an urgent application the applicant ‘… shall set forth explicitly the
circumstances which he avers render the matter urgent and the reasons why
he claims that he could not be afforded substantial redress at a hearing in
due course.’
[21] The applicant argues that the matter is urgent because the restraint is valid
for only six months, expiring on 31 January 2026. The respondents contend
that the urgency is self -created, as the applicant delayed for we eks before
launching this application following the first respondent’s resignation on 4
July 2025. In this regard, the court held in East Rock Trading 7 (Pty) Ltd and
Another v Eagle Valley Granite (Pty) Ltd and Others 1:
‘[8] In my view the delay in instituting proceedings is not, on its own a ground,
for refusing to regard the matter as urgent. A court is obliged to consider the
circumstances of the case and the explanation given. The important issue is
whether, despite the delay, the applicant can or cannot be afforded substantial
redress at a hearing in due course. A delay might be an indication that the
matter is not as urgent as the applicant would want the Court to believe. On
the other hand, a delay may have been caus ed by the fact that the Applicant
was attempting to settle the matter or collect more facts with regard thereto.2
[9] It means that if there is some delay in instituting the proceedings an
Applicant has to explain the reasons for the delay and why despite the delay,
he claims that he cannot be afforded substantial redress at a hearing in due
course. I must also mentio n that the fact the Applicant wants to have the
matter resolved urgently does not render the matter urgent. The correct and
the crucial test is whether, if the matter were to follow its normal course as
laid down by the rules, an Applicant will be afforded substantial redress. If he
cannot be afforded substantial redress at a hearing in due course, then the
matter qualifies to be enrolled and heard as an urgent application . If,
however, despite the anxiety of an Applicant he can be afforded a substantial
redress in an application in due course the application does not qualify to be
enrolled and heard as an urgent application.’
[22] In East Rock3, it was held:
‘|7] It is important to note that the rules require absence of substantial redress.
This is not equivalent to the irreparable harm that is required before the
granting of an interim relief. It is something less. He may still obtain redress in
granting of an interim relief. It is something less. He may still obtain redress in
1 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767)
[2011] ZAGPJHC 196 (23 September 2011) at paragraphs [8] and [9]. (“East Rock”).
2 See: Nelson Mandela Metropolitan Municipality v Greyvenouw 2004 (2) SA 81 (SE) at 94C –
D; Stock v Minister of Housing 2007 (2) SA 9 (C) 12I–13A.
3 East Rock, fn1 supra at paragraph [7].
an application in due course, but it may not be substantial. Whether an
applicant will not be able obtain substantial redress in an application in due
course will be determined by the facts of each case. An applicant must make
out his cases in that regard.’
[23] In this application, there was an exchange of correspondence between the
applicant’s attorneys and first respondent, in which the latter was reminded of
the undertakings he made to the applicant in respect of restraint of trade and
confidentiality, especially the restraint area and period . Instead of the first
respondent responding to such correspondence, on 12 July 2024, the second
respondent’s attorneys wrote to the applicant’s attorneys and advised that the
first respondent would only be involved in marketing an d sales of the second
respondent’s fluid products.
[24] On 21 July 2025, the applicant sought to conclude an “Exit Agreement” with
the first respondent. This agreement was intended to record the position in
which the first respondent would be employed by the second respondent and
would contain further undertakings and assurances to protect the applicant’s
confidential and proprietary information and interests . The following day, 22
July 2025, the second respondent’s attorneys informed the applicant that the
first respondent will not be signing the Exit Agreement without proposing any
counter terms and undertakings that would satisfy the applicant as sufficient
protection.
[25] In a letter dated 28 July 2025, the applicant’s attorneys informed the
respondents’ attorneys that the refusal to sign the Exit Agreement or even to
suggest counter undertakings or wording thereof was a clear indication of the
respondents’ intention to breach the restraint and confidentiality undertakings
between the applicant and the first respondent . The applicant further
asserted that the second respondent would unlawfully benefit from such a
breach. The applicant, in the said letter, informed the respondents that the
breach. The applicant, in the said letter, informed the respondents that the
alleged employment of the first respondent in the second respondent’s fluid
division was fabricated. In the result, the applicant informed the respondents
that the employment of the first respondent by the second respondent would
be a breach of the restraint and confidentiality agreement . The second
respondent would unlawful ly compete with the applicant and the refusal to
sign the Exit Agreement was a clear indication that the respondents intend to
breach the restraint and confidentiality agreement.
[26] The applicant contends that these actions constitute a prima facie breach of
the restraint addendum and confidentiality provisions. The applicant, in the
said letter, informed the respondents that it had instructed its attorneys to
make an urgent application to this Court for an interdict and costs . The
applicant’s attorneys even stated in their letter dated 28 July 2025 that they
would have preferred to enrol the urgent application for 31 July 2025 , but to
do so would be too short a notice , and as such they will enrol the urgent
application for 6 August 2025. Indeed the application was enrolled for hearing
on 6 August 2025 and it served before me in the urgent court as an urgent
application. In the result, I disagree with contention that urgency was self -
created. The factual background relating to attempts by the applicant to
secure from the respondents an Exit Agreement or similar undertaking as
proposed in the Exit Agreement , prima facie suggests that there is
reasonable apprehension of harm by the applicant, being unlawful use of
confidential proprietary information and client lists. It is apposite to mention
that the aforementioned top 15 customers are not the applicant’s only
customers. The first respondent’s relation s with other customers were
enhanced by his employment with applicant.
[27] I am alive to the fact that the applicant may still obtain redress in an
application in due course , but it may not be substantial. In casu, I am
persuaded that the applicant cannot be afforded substantial redress in due
course if the final interdict is not granted and in the circumstances, I find that
the balance of convenience favoured the applicant that I should hear the
the balance of convenience favoured the applicant that I should hear the
matter, as I did, on an urgent basis.
Jurisdiction
[28] The second respondent claims that the court lacks jurisdiction over it
because its principal office is in Bedfordview, Gauteng . The applicant
counters this by arguing that the unlawful acts constituting unlawful
competition are being perpetrated within th e jurisdiction of the court (Cape
Town), and the proprietary interests being harmed are situated at the
applicant’s registered office in Epping Industria, Cape Town. The applicant
also invokes the continentia causae rule, which allows the court to exercise
jurisdiction over the entire cause of action for reasons of convenience,
justice, and good sense. This point was abandoned (wisely so, in my view)
by second respondent’s counsel.
Striking out averments in replying affidavit as new matter
[29] The first respondent seeks an order to strike out the following averments
from the replying affidavit.
‘Replying Affidavit (paragraph [14] p. 201 -2) where the Applicant claims that
Gordon strengthened the TOP 15 customer relationships during his 22 months
with them. This claim wasn’t made in the Founding Affidavit (paragraph [39], p.
12-13), which only argued that these relationships were their property.
Replying Affidavit, paragraph [18] (p. 203) wher e it is asserted that new
customer information (e.g., contact personnel details) is protectable, despite
this not having been raised in the Founding Affidavit.’ [my emphasis]
[30] In the answering affidavit , the applicant uses the word developed - as
opposed to strengthens - as used in the replying affidavit - to describe the
the first respondent’s relationship with the applicant’s clients or top 15
customers. I do not find the use of the term strengthen to mean anything
different to develop in the context of describing the effect of the first
respondent’s employment with the applicant on improving, enhancing,
developing and strengthening of customer relationships with the first
respondent and the applicant’s customers. In the ex tempore judgment I even
stated ‘one does not need to be a Ha rvard scholar in English to understand
stated ‘one does not need to be a Ha rvard scholar in English to understand
the contextual use of these said words’ in casu.
[31] The application to strike out or intent to move same was mentioned for the
first time only in the first respondent’s heads of argument, which were filed
after applicant’s heads of argument were filed. During the hearing, I asked
whether there was a formal application before me to strike out those
impugned provisions, and there was none . An application to strike out is an
interlocutory application and as such an application to strike out is an
application on notice to the other party 4. I am very much aware that due to
the urgency of the matter I have the discretion to permit a request to strike
out certain averments to be made within the affidavit itself.5 Notwithstanding,
to simply mention an application to strike out in heads of argument, to me it is
bad practice to do so. This is because the applicant is ambushed..
[32] Further, the second respondent could and should have applied for leave to
file a further affidavit after t he replying affidavit was filed, so that the
impugned averments in the replying affidavit could be addressed fairly.
Notwithstanding the said shortcomings, I acknowledge that, due to the
urgency, certain procedural defects could be overlooked and as such I
condoned the defective application to strike out because of the pressured
situation created by the urgency of the matter and the truncated timetable. 6
An application to strike out is an application incidental to pending
proceedings within the meaning of rule 6(11) and should therefore be initiated
by way a simple application on notice.7
[33] I find no merit in the application to strike out, as the content in question did
not introduce a new matter and was consistent with the applicant's original
submissions.
Striking out hearsay evidence in replying affidavit
[34] First respondent seeks the striking out of the following:
4 Application to strike is an application on notice. See Abromowitz v Jacquet and Another 1950 (2) SA
247 (W) at 251-2.
247 (W) at 251-2.
5 See Thurgood v Dirk Kruger Traders (Pty) Ltd 1990 (2) SA 44 (E) at 48A-C.
6 See Abramowitz v Jacquet 1950 (2) SA 247 (W) at 251-2.
7 Elher (Pty) Ltd v Silver 1947 (4) SA 173 (W) at 178.
‘Allegations about Gordon’s dealings with TOP 15 customers, based on
information from others (Replying Affidavit, paragraph [14] p. 201 -2), without
specifying sources or justifying admissibility. Claims about protectable new
information, relying on unspecified third -party information (Replying Affidavit,
paragraph1[8] p. 203). Lacking personal knowledge, these stateme nts
prejudice Gordon, as he cannot test their veracity (Answering Affidavit,
paragraph [16] p. 108). This Court should strike them out with costs, per
supra.’
[35] For these reasons, it is contended that the impugned averments are
contended to constitute hearsay evidence , which is inadmissible and
therefore should be struck out. There is no merit to this point. The deponent,
Mr Jacobs states that although he has not interacted directly with the first
respondent in this particular matter, he has been kept inform ed and involved
in decisions and actions taken against respondents, including the applicant’s
dealings with issues concerning the first respondent’s employment with and
his resignation from the applicant . There is no merit to this point, the
application to strike out should fail.
Issues
[36] From this background I have distilled the following issues for determination.
[37] Whether there are any new averments in the replying affidavit that must be
struck out.
[38] Whether certain evidence contained in the founding affidavit is hearsay
evidence and thus inadmissible and falls to be struck out.
[39] Whether the restraint of trade and confidentiality provisions signed by the first
respondent are reasonable and enforceable.
[40] The requirements for granting of a final interdict against both respondents are
met.
Legal Framework
[41] The position in our law is, therefore, that a party seeking to enforce a contract
in restraint of trade is required only to invoke the restraint agreement and
prove a breach thereof.8 Thereupon, a party who seeks to avoid the restraint,
bears the onus to demonstrate on a balance of probabilities, that the restraint
agreement is unenforceable because it is unreasonable.
[42] These principles have been reaffirmed in other decisions of our courts.
In Basson v Chilwan and Others , Botha JA stated, in a separate judgment,
that:
‘The incidence of the onus in a case concerning the enforceability of a
contractual provision in restraint of t rade does not appear to me in principle to
entail any greater or more significant consequences than in any other civil
case in general. The effect of it in practical terms is this: the covenantee
seeking to enforce the restraint need do no more than to invoke the provisions
of the contract and prove the breach; the covenantor seeking to avert
enforcement is required to prove on a preponderance of probability that in all
the circumstances of the particular case it will be unreasonable to enforce the
restraint; if the Court is unable to make up its mind on the point, the restraint
will be enforced. The covenantor is burdened with the onus because public
policy requires that people should be bound by their contractual undertakings.
The covenantor is not so boun d, however, if the restraint is unreasonable,
because public policy discountenances unreasonable restrictions on people's
freedom of trade. In regard to these two opposing considerations of public
policy, it seems to me that the operation of the former is exhausted by the
placing of the onus on the covenantor; it has no further role to play thereafter,
when the reasonableness or otherwise of the restraint is being enquired into.’
8 Experian South Africa (Pty) Ltd v Haynes and Another 2013 (1) SA 135 (GSJ) at paragraph [14].
(“Experian”).
[43] Nicholas J, as he then was, stated in Super Safes (Pty) Ltd and Others 9 v
Voulgarides and Others:
‘A bare covenant not to compete cannot be upheld. A restraint against
competition must, if it is to be valid, serve some interest of the person in
whose favour it was inserted - the purchaser of a business, for example, who
requires protection against the erosion of its goodwill by the competition of the
seller; or the employer who req uires that his trade secrets and his trade
connections be protected against exploitation by the man whom he is taking
into his employment.’
[44] The test set out in Basson v Chilwan and Others 10, for determining the
reasonableness or otherwise of the restrain t of trade provision, is the
following:
‘[15.1] Is there an interest of the one party, which is deserving of protection at
the determination of the agreement?
[15.2] Is such interest being prejudiced by the other party?
[15.3] If so, does such interest so weigh up qualitatively and quantitatively
against the interest of the latter party that the latter should not be
economically inactive and unproductive?
[15.4] Is there another facet of public policy having nothing to do with the
relationship between the parties, but which requires that the restraint should
either be maintained or rejected?’
[16] In Kwik Kopy (SA) (Pty) Ltd v Van Haarlem and Another 1999 (1) SA
472 (W) at 484E, Wunsh J added a further enquiry, namely whether the
restraint goes further than is necessary to protect the interest.
[17] It is well established that the proprietary interests that can be protected by
a restraint agreement, are essentially of two kinds, namely:
17.1 The first kind consists of the relationships with customers, potential
customers, suppliers and others that go to make up what is compendiously
9 Super Safes (Pty) Ltd and Others v Voulgarides and Others 1975 (2) SA 783 (W) at 785E . (“Super
Safes”).
10 Basson v Chilwan and Others (supra) at 767G-H.
referred to as the “trade connection” of the business, bei ng an important
aspect of its incorporeal property known as goodwill;
17.2 The second kind consists of all confidential matter which is useful for the
carrying on of the business and which could therefore be used by a
competitor, if disclosed to him, to g ain a relative competitive advantage. Such
confidential material is sometimes compendiously referred to as “trade
secrets.’
[45] As I have pointed out above, the onus is on the respondent to prove the
unreasonableness of the restraint. He must establish that h e had no access
to confidential information and that he never acquired any significant
personal knowledge of, or influence over, the applicant’s customers whilst in
the applicant’s employ. It suffices to show that trade connections through
customer contact exist and that they can be exploited if the former employee
were employed by a competitor. Once that conclusion has been reached and
it is demonstrated that the prospective new employer is a competitor of the
applicant, the risk of harm to the applicant, if its former employee were to
take up employment, becomes apparent.11
Analysis
Does the applicant lack protectable proprietary interest?
[46] The first respondent’s defence on the merits is that the applicant’s claim of
having a proprietary interest in respect of various customers is untrue and
thus the applicant is not entitled to the relief it seeks. In fact, the first
respondent’s contention in this regard is limited or focused only on TOP 15
customers of the applicant which the First Respondent claims were previous
customers of the second respondent with whom the first respondent built a
relationship over a period of fifteen years whilst prev iously in the employ of
the second respondent. The first respondent explains that he commenced
employment in 2008 with the second respondent, also in internal sales at the
employment in 2008 with the second respondent, also in internal sales at the
11 See Den Braven SA (Pty) Limited v Pillay and Another [2008] 3 All SA 518 (D) at paragraphs [17] to
[18].
Epping branch. He spent fifteen years there before resigning and joining the
applicant for an improved remuneration package in October 2023. During his
fifteen years with the second respondent, he formed relationships with the
representatives of the so -called Top 15 customers that he continued to
service during his 22 months with the app licant. The first respondent
contends that these relationships were not cultivated whilst he was in the
applicant’s employ, they were pre -existing. These customers buy steel, tube
and plate products and were “brought” or “transitioned” by the first
respondent from the second respondent to the applicant in October 2023.
[47] The first respondent has spent the last 22 months dealing with the TOP 15
customers. In so doing, he enhanced the relationship between the applicant
and these customers. I agree with the applicant’s counsel that it can never
be the case, as the respondents would have it, that the customer
relationships, once developed over time, remain static and unenhanced over
a further period of almost two years whilst the first respondent was deal ing,
on a regular basis , with these customers on behalf of the applicant. As the
applicant states in reply, the respondents conveniently lose sight of the fact
that over the past 22 months key personnel of the Top 15 customers, with
whom the first responde nt previously dealt whilst in the second respondent’s
employ, have been replaced by new personnel. For example, Jerome
Scritten, a buyer at Holman Engineering (one of the Top 15 customers) and
Dylan Heyns, a buyer at Servo (also a Top 15 customer), left t heir respective
employment with those customers and were replaced by someone else who
commenced dealing with the first respondent . It is precisely these new
relationships that the first respondent has developed during his employment
with the applicant that it seeks to protect by means of this application. It must
therefore follow that any new information acquired by the first respondent,
therefore follow that any new information acquired by the first respondent,
such as new contact personnel details, is protectable as the first respondent
was not possessed of this information when he joined the applicant from the
second respondent in October 2023.
[48] As stated above, the first applicant contributed 45.5% of applicant’s sales by
value and 43.9% by volume. The first respondent not only had access to and
relationships with the applicant’s T op 15 customers but also with other
customers of the applicant. The first respondent freely and voluntarily signed
the restraint addendum and undertook inter alia not to and is prohibited from:
(a) being involved in any competitive business within the restraint area in
any capacity (e.g., as an employee, consultant, shareholder, etc. )
within the restraint period.
(b) soliciting, persuading, or inducing NJR customers to cease or reduce
business with the applicant during the restraint period.
(c) canvassing or soliciting orders from NJR cu stomers for competitive
products.
[49] When informing the applicant of his employment offer from the second
respondent and his intention to resign from the applicant, he never
mentioned that he would be employed in the second respondent’s fluid
business or division. This was mentioned after the applicant informed the
respondents of its intention to strictly enforce the restraint and confidentiality
undertakings made b y the first respondent. In fact, the first respondent
concedes in the answering affidavit that:
‘… there may be common clients (given the nature of the steel industry) and
that a common client would be one that may require both a fluid control
product, as well as a steel and tube product” (i.e. steel and tube products also
sold by the applicant), but says such an event would not be a breach of the
restraint.’
[50] This is precisely the applicant’s concern that not only will the first
respondent’s employment wit h the second respondent place the first
respondent in a position to deal with the applicant’s customers and exploit its
customer relationships, but that both respondents acknowledge that the first
respondent would be able to offer and sell competitive prod ucts to those
customers. This, precisely, is the risk the applicant sought to mitigate through
the exit agreement which the first respondent refused to sign and which
refusal the second respondent supports.
[51] The ex -employer seeking to enforce a protectable interest recorded in a
restraint against his ex -employee does not have to show that the ex -
employee has, in fact, utilized confidential information; it merely needs to
show that the ex -employee could do so . The very purpose of the restraint
agreement is to relieve the applicant from having to show bona fides or lack
of retained knowledge on the part of the respondent concerning the
confidential information. In these circumstances, it is reasonable for the
applicant to enforce the bargain it has exacted to protect itself. Indeed, the
very ratio underlying the bargain is that the applicant should not have to
contend itself with crossing his fingers and hoping that the respondent would
act honourably or abide by the undertakings that he has given. I t does not lie
in the ex-employee’s ipse dixit [my own words], who has breached a restraint
agreement by taking up employment with a competitor to say to the ex -
employer ‘Trust me: I will not breach the restraint further than I have already
been proved to have done’.12
First respondent has access to confidential proprietary information
[52] The 22-month period spent in the applicant’s employ also means that the first
respondent is possessed of confidential information belonging to the
applicant (and not to him or the second respondent) regarding steel, tube and
plate requirements, opportunities and proposals that he discussed with the
Top 15 customers and information he received concerning other customers of
the applicant, while representing and being employ ed by the applicant. In
respect of such confidential information, the fact that the first respondent
might previously and whilst representing the second respondent have dealt
with a customer, does not detract from the protectable nature of the
confidential nature that came into his possession whilst in the applicant’s
employ.
12 Experian (supra) at paragraph [22].
[53] In Rawlins and Another v Caravantruck (Pty) Ltd 13, the former employee
stated that during his employment with his former employer, he largely dealt,
not with its existing customers, but with his own pre -existing following or
buyers whom he later found. This particular argument was convincingly dealt
with by Nestadt JA as follows:
“…what Rawlins says is that during his employment with the respondent he
largely dealt, not wit h its existing customers, but with his own pre -existing
following or buyers whom he later found. Does this establish that the [former
employer] did not have a proprietary interest of the kind under consideration?
It is, of course, a factor in [the former e mployee’s] favour; but not conclusively
so … Even though the persons to whom an employee sells and whom he
canvasses were previously known to him and in this sense ‘his customers’, he
may nevertheless during his employment, and because of it, form an
attachment to and acquire an influence over them which he never had before.
When this occurs, what I call the customer goodwill which is created or
enhanced is at least in part an asset of the employer. As such it becomes a
trade connection of the employer which is capable of protection by means of a
restraint of trade clause. The onus being on Rawlins to prove the
unreasonableness of the restraint, it was for him to show that he never
acquired any significant personal knowledge of or influence over the persons
he dealt with as a salesman of the [former employer] over and above that
which previously existed.”
[54] The first responde nt provides no such evidence. As in Rawlins, the first
respondent did not allege that he did not acquire such knowledge or
influence, nor could this be inferred – on the contrary, it appears no less
probable that the first responde nt’s relationships with he dealt with whilst at
the applicant were such as to make it reasonable for the applicant to protect
the applicant were such as to make it reasonable for the applicant to protect
itself by enforcing the restraint. Also as in Rawlins, it is a fair inference in the
circumstances that the first respondent’s 22 -month employment with the
applicant gave him the opportunity to consolidate or even strengthen the prior
13 Rawlins and Another v Caravantruck (Pty) Ltd 1993 (1) SA 537 (A) at page 542G-I, (“Rawlins”).
rapport he had had with these customers.
[55] It follows that the first respondent has failed to discharge the onus of
demonstrating that the restraint is unreasonable. The first respondent’s bald
denial that the restraint area (250 km from the applicant’s premises) is
reasonable does not discharge the onus. He has failed to provide any factual
basis in support of this submission. The first respondent serviced
approximately 60 customers on a monthly basis, the Top 15 of which were
those with whom he had formed relationships whilst employed by the second
respondent.
[56] The first respondent does not contend that the applicant does not h ave a
proprietary interest in respect of those customers serviced by the first
respondent that fall outside the Top 15 customers.
[57] It is these reasons that persuaded me that the applicant has a protectable
proprietary interest in the present application.
First respondent employment by the second respondent poses a competitive
threat to applicant
[58] In Reddy v Siemens Telecommunications (Pty) Ltd 14, the court enforced
restraint because Reddy joined a direct competitor (Ericsson) in a similar role
servicing telecommunication operators risking disclosure of confidential
information. First respondent’s counsel sought to persuade me that the facts
in Reddy are dist inguishable from the present application because unlike
Reddy, who joined a direct competitor (Ericsson) in a similar role servicing
telecommunication operators, Gordon (the first respondent) sells Fluid
Control Products, distinct from the applicant’s stee l products. The difficulty
with this proposition lies in the admissions made by the respondents that in
the course and scope of his employment with the second respondent, the
first respondent might invariably cross sell steel and tube products to
14 Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA) at paragraph [120] page
219, (“Reddy”).
customers that came to the second respondent to purchase fluid control
products. Such customers might include the applicant’s T op 15 customers
including those that fall outside the T op 15 customers. In that situation, it
would be difficult if not impossible for th e applicant to police strict compliance
with the restraint and confidentiality undertakings by the respondents. If
breach of those undertakings were to occur the second respondent would
benefit unfairly from protected and confidential proprietary informati on of the
applicant.
[59] In Experian15, the court held:
‘[21]Where an applicant as employer, has endeavoured to safeguard itself
against the unpoliceable danger of the respondent communicating its trade
secrets to, or utilising its customer connection on behalf of a rival concern
after entering that rival concer n’s employ by obtaining a restraint preventing
the respondent from being employed by a competitor, the risk that the
respondent will do so is one which the applicant does not have to run and
neither is it incumbent upon the applicant to enquire into the bona fides of the
respondent, and demonstrate that he is mala fides before being allowed to
enforce its contractually agreed right to restrain the respondent from entering
the employ of a direct competitor (see IIR South Africa BV (Incorporated in the
Netherlands) t/a Institute for International Research v Tarita and Others 2004
(4) SA 156 (W) at 166I to 167C). In such circumstances, all that the appl icant
needs do is to show that there is secret information to which the respondent
had access, and which, in theory, the respondent could transmit to the new
employer should he desire to do so.’
[60] The second respondent’s counsel sought to persuade this court that in the
past, the second respondent had employed the applicant’s former employees
and in those circumstances the applicant and the second respondent were
able to negotiate and conclude acceptable arrangements whereby such
able to negotiate and conclude acceptable arrangements whereby such
former employees would sign a formal written undertaking to comply with
15 Experian at paragraph [21].
restraint of trade for a period of six months after their employment with the
second respondent resulting in applicant not interdicting such former
employees from being employed by the second respondent. I was dir ected to
annexure “RMG2” of the second respondent’s answering affidavit being an
example of such an undertaking.
[61] I must pause to mention that prior to being referred to annexure “RMG2” I
understood the respondents ’ defence to be that they intended to issue
undertakings not to breach the restraint and confidentiality undertakings
made by the first respondent to the applicant but were unable to do so
because the applicant failed to furnish them with acceptable arrang ements
(i.e. draft undertaking acceptable to the respondents). However, on perusal of
annexure “RMG2” and after debating the submissions made with regard to
annexure “ RMG2” counsel for the second respondent, I understood the
submission to be that I should find that it is the applicant who failed to
provide acceptable information or proposals that resulted in failure to execute
a fresh undertaking acceptable to the respondents.
[62] Contrary to that submission, annexure “RMG2” in fact proves that the
respondents were aware and in possession of the kind of an undertaking that
was acceptable to the applicant and which was worded in a manner
acceptable to the applicant. Notwithstanding, the respondents did not offer
the applicant such an undertaking. In fact , they sought the applicant to agree
to arrangements or an undertaking suitable to the respondents but not
protecting the applicant’s interest. In the result, the applicant presented the
respondents with a draft exit agreement . The agreement was worded in a
manner that would allow the first respondent to be employed at the second
respondent but with safeguards on policing non -compliance with undertaking
in terms thereof. In fact, the respondents flatly refused to sign the exit
in terms thereof. In fact, the respondents flatly refused to sign the exit
agreement on the basis that the first respondent would be employed in the
second respondent’s fluid control products section.
[63] It is against this backdrop that the applicant’s attorneys wrote to the
respondents’ attorneys informing them that:
‘… that refusal to sign the Exit Agreement or even to suggest counter
undertakings or wording thereof was a clear indication of the respondents’
intention to breach the restraint and confidentiality undertakings between
applicant and first respondent and the second respondent would unlawf ully
benefit thereby. The applicant, in the said letter, informed the respondents that
the alleged employment of the first respondent in the second respondent’s
fluid division was a construct.’
[64] For reasons stated above, I was persuaded that the respondent s posed a
competitive threat to the applicant’s business even though the respondents
claim that the first respondent is employed in the fluid control section of the
second respondent’s business, which does not compete with the applicant’s
steel and tube business.
Prima facie breach
[65] The following common cause facts are relevant to establish whether the
applicant has established a prima facie breach.
[66] The applicant conducts business as a steel merchant which markets and
sells a variety of steel and related products, including steel flat sheets and
plates, tubing, grating and mesh, roof sheets, perimeter and palisade fencing,
hardware and steel paint products. The applicant’s business overlaps
substantially with the second respondent’s, with the excep tion of the fluid
control division, which products the applicant and the NJR Steel group do not
offer for sale.
[67] The first respondent was employed by the applicant as an internal sales
representative at the applicant’s business premises from 1 October 2023 to
31 July 2025, a period of 22 months. The terms and conditions of the first
respondent’s employment with the applicant are recorded in the written letter
of employment, dated 2 October 2023. As part of the first respondent’s duties
and responsibilities as an internal sales representative for the applicant, the
first respondent had access to and has become possessed of information
that is confidential and proprietary to the applicant.
[68] In the performance of his duties and responsibilities as an internal s ales
representative for the applicant, the first respondent was responsible for
servicing and developing the business relationships with the applicant’s key
customers, i.e. the applicant’s key accounts were considered as the
applicant’s best performing internal sales representative.
[69] The lifeblood of the applicant’s business is the relationship it has with its
customers, in that on average over the last nine months of October 2024
through to June 2025, has been responsible for approximately 41.5% of the
applicant’s sales, by value; and 43.9% of the applicant’s sales, by volume.
[70] The first respondent’s letter of employment incorporates a written restraint
addendum in terms of which the first respondent essentially undertook for a
period of six months from the date of the termination of his employment not
to, either alone or together with any other person, market, sell or supply any
competitive product (as d efined) within a radius of 250 kilometers of any
place at which the applicant carries on business or do any business with any
of the applicant’s customers (as defined) within the aforesaid radius.
[71] The second respondent is a direct competitor of the applic ant, selling
essentially the same products as the applicant, targeting customers (and
potential customers) in the same general area, apart from its fluid control
division.
[72] The second respondent, which also has branches throughout South Africa, is
considered by the NJR Steel group as one of its main competitors. From 1
August 2025, the first respondent has taken up employment with the second
respondent at its Wetton branch, which is less than 15 kilometers from the
applicant’s business premises and falls w ithin the 250 -kilometer restraint
applicant’s business premises and falls w ithin the 250 -kilometer restraint
area. The applicant’s attempts to reach an amicable solution in the form of
the execution of an exit agreement were rejected by the respondents.
[73] It is for the reasons stated above that I find that there is a prima facie breach
of the restraint addendum.
Public policy and reasonableness of restraint
[74] The locus classicus on this subject is Magna Alloys and Research (SA) (Pty)
Ltd v Ellis 16, where Rabie CJ summarised the legal position inter alia, as
follows:
‘12.1 There is nothing in our common law which states that a restraint of trade
agreement is invalid or unenforceable;
12.2 It is a principle of our law that agreements which are contrary to the
public interest are unenforceable. Accordingly, an agreement in restraint of
trade is unenforceable if the circumstances of the particular case are such, in
the court’s view, as to render enforcement of the restraint prejudicial to the
public interest;
12.3 It is in the public interest that agreements entered into freely should be
honoured and that everyone should, as far as possible, be able to operate
freely in the commercial and professional world;
12.4 In our law the enforceability of a restraint should be determined by
asking whether enforcement will prejudice the public interest;
12.5 When someone alleges that he is not bound by a restraint to which he
had assented in a contract, he bears the onus of proving that enforcement of
the restraint is contrary to the public interest.’
[75] The first respondent signed an employment contract that contains restraint of
trade and confidentiality provisions. He has chosen to tak e up employment
with a competitor of the applicant and to work in the restraint area, with full
knowledge of those provisions and knowingly in breach of them.
[76] The respondents have failed to allege that the restraint is unreasonable, let
16 Magna Alloys and Research (SA) (Pty) Ltd v Ellis [1984] ZASCA 116; 1984 (4) SA 874 (A), at 897F-
898E (“Magna Alloys”).
alone discharge th e onus on them to establish that the restraint is
unreasonable.
[77] The next question, in terms of Chilwans, is whether the applicant’s interest so
weighs up qualitatively and quantitatively against the interest of the first
respondent that the latter should not be economically inactive and
unproductive.
[78] Bearing the onus in this regard, the first respondent add uced no evidence to
show that enforcement of the restraint is disproportionate , having regard to
any of his countervailing interests. He resigned from the applicant of his own
accord. In the circumstances, he remains free to earn a living by using his
skills and expertise in the industry. There was no imbalance of power. In fact,
in this matter, despite the applicant’s counteroffer to earnings and benefits
the first respondent was offered by the second respondent , he flatly refused
any counteroffer. This is so in circumstances where he knows that almost
42% of the applicant’s business was generated from customer relationships
which the first respondent managed, maintained, and developed for the
applicant.
[79] The restraint itself will not last forever. It is in place for six months, a period
which does not appear excessive given the steps the applicant needs to take
to protect its legitimate interests: that is, permit a replacement salesperson to
establish the same rel ationships with the customers. The first respondent
could easily be placed in a different branch of the second respond ent that is
outside the restraint area. The first respondent, for convenience and
proximity to his family, does not wish to be employ ed in any other branch of
the second respondent. The restraint is not against public policy. The first
respondent’s conduct of flagrantly breaching a restraint and confidentiality
agreement that he signed voluntarily is against public policy. Worse, he wants
to legitimise unlawful use of the applicant’s proprietary information for his and
to legitimise unlawful use of the applicant’s proprietary information for his and
the second respondent’s business because, according to him, he used the
second respondent’s trade secrets and customer information for the benefit
of the applicant and the second respondent never restrained the applicant.
Two wrongs do not make a right. That being said, t here are no other public
policy issues that militate ag ainst enforcing the restraint. On the contrary,
there are public interests to enforce the restraint.
Dispute of facts in motion proceedings
[80] In casu, the applicant seeks a final interdict without resorting to oral
evidence, and the respondents contend that there are material disputes of
fact that cannot be resolved on affidavits. They submit in their heads of
argument that the matter should be referred to oral evidence. In such a case,
the general rule was stated by Van Wyk J (with whom De Vil liers JP and
Rosenow J concurred) in Stellenbosch Farmers’ Winery Ltd v Stellenvale
Winery (Pty) Ltd17 to be:
‘... where there is a dispute as to the facts a final interdict should only be
granted in notice of motion proceedings if the facts as stated by the
respondents together with the admitted facts in the applicant's affidavits justify
such an order... Where it is clear that facts, though not formally admitted,
cannot be denied, they must be regarded as admitted.’
[81] In Plascon-Evans Paints v Van Riebeeck Paints (Pty) Ltd18 Corbett JA held:
‘It seems to me, however, that this formulation of the general rule, and
particularly the second sentence thereof, requires some clarification and,
perhaps, qualification . It is correct that, where in proceedings on notice of
motion disputes of fact have arisen on the affidavits, a final order, whether it
be an interdict or some other form of relief, may be granted if those facts
averred in the applicant's affidavits which have been admitted by the
respondent, together with the facts alleged by the respondent, justify such an
order.
17 Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235E – G.
(“SFW”).
18 in Plascon -Evans Paints v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at page 364H -I
(“Plascon-Evans”).
[82] The power of the Court to give such fina l relief on the papers before it is,
however, not confined to such a situation. In certain instances, the denial by
respondent of a fact alleged by the applicant may not be such as to raise a
real, genuine or bona fide dispute of fact 19. If in such a case the respondent
has not availed himself of his right to apply for the deponents concerned to
be called for cross -examination under Rule 6 (5) (g) of the Uniform Rules of
Court and the Court is satisfied as to the inherent credibility of the applicant's
factual averment, it may proceed on the basis of the correctness thereof and
include this fact among those upon which it determines whether the applicant
is entitled to the final relief which he seeks .20 Moreover, there may be
exceptions to this general rule, as, for example, where the allegations or
denials of the respondent are so far -fetched or clearly untenable that the
Court is justified in rejecting them merely on the papers.’21 [my emphasis].
[83] The respondent contends that since the applicant seeks final interdict and
there is a material dispute of facts, the matter should be decided based on
the principle in Plascon-Evans22 that where there is a genuine dispute of fact,
the respondent’s version must be accepted. The a pplicant, on the other
hand, argues that the alleged dispute of fact is so far -fetched or so clearly
untenable because it is not genuine , and therefore, the court would be
justified in rejecting it on the papers. 23 This exception to the usual position is
allowed because motion proceedings are quicker and cheaper, and it is in the
interests of justice that dishonest respondents should not be permitted to
shelter behind patently implausible versions on affidavit or bald denials. The
practice in this regard has rightly become more robust24.
[84] However, the test is not simply whether the respondent’s version is
improbable: in order to reject the respondent’s version on the papers, the test
improbable: in order to reject the respondent’s version on the papers, the test
19 see Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163 - 5; Da
Mata v Otto NO 1972 (3) SA 858 1984 (3) SA p635 Corbett JA (A) at 882D – H.
20 Rikhoto v East Rand Administration Board and Another 1983 (4) SA 278 (W) at 283E - H.
21 see the remarks of Botha AJA in the Associated South African Bakeries case, supra at 924A.
22 fn 18 supra.
23 Plascon-Evans at 634E -635C; Wrightman t/a JW Construction v Headfour (Pty) Ltd and Another
2008 (3) SA 371 (SCA) at para 12
24 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) paras 55-56
is the more stringent one, namely, whether the respondent’s version is so far-
fetched or so clearly untenable that the court may safely reject it on the
papers25.
[85] The applicant pleaded the existence of a validly executed restraint and
confidentiality agreement between it and the first respondent, including its
terms and the breach thereof . The first respondent admits the existence and
conclusion of the restraint addendum, the terms and that the second
respondent is a direct competitor to the applicant.
[86] The dispute lies in the co ntention by the respondents that the T op 15
customers are not the applicant’s proprietary interest worthy of protection by
way of an interdict because these relationships were cultivated by him and
the second respondent over 15 years whilst in the employ o f the second
respondent, not the applicant. The applicant’s case is that even if the T op 15
customers were previously cultivated through the first respondent whilst in
the former employ of the second respondent, when the first respondent
became employed by the applicant, the former enhanced and/or developed
his relationship with the T op 15 customers over a period of 22 months
because his employment with applicant enabled him to do so. As a result, a
protectable proprietary interest was created in favour of the applicant . It is
precisely because of that protectable interest that the applicant committed
the first respondent to the restraint and confidentiality undertakings. Our
Courts have recognised that information of the type that the applicants seek
to pro tect in casu, is considered trade secrets worthy of protection. In that
regard, see, for example , Sibex Construction (SA) (Pty) Ltd and Another v
Injectaseal CC and Others .26
[87] I find that the so -called disputed facts are not genuine and , as such so far -
fetched to safely reject it, as I hereby do, from the papers. In any event, there
was no application by the respondents to refer the disputed facts to oral
was no application by the respondents to refer the disputed facts to oral
25 National Scrap Metal v Murray and Roberts 2012 (5) SA 300 (SCA) paras 21 -22 and cases cited
therein
26 Sibex Construction (SA) (Pty) Ltd and Another v Injectaseal CC and Others 1988 (2) SA 54 (T)
evidence to cross-examine the deponents to the applicant’s founding affidavit
as envisaged in sub-rule 6(5)(g).27
Requirements for final interdict
[88] The requirements for a final interdict are trite. 28 Accordingly, in order to
succeed, the applicant must establish such requirements. These are (a) a
clear right, (b) injury actually committed or reasonably apprehended, and (c)
the absence of similar protection by any other ordinary remedy.
Clear right
[89] The clear right to be proved is a right to which, if not protected by an interdict,
irreparable harm would ensue. Quite apart from the right to an interdict, the
applicant should demonstrate a right that is threatened by an impending or
imminent irr eparable harm. It is a right to which, if not protected by an
interdict, irreparable harm would ensue. 29 An interdict is meant to prevent
future conduct and not the past.
[90] I am also of the view that the applicants do indeed have protectable interests
in the form of customer connections and confidential information. As was
held by this Court in Experian and Sibex , there are two kinds of proprietary
interests that can be protected by a restraint of trade undertaking. The first is
‘the relationship with customers, potential customers, suppliers and others
that go to make up what is compendiously referred to as the “trade
connections” of the business, being an important aspect o f its incorporeal
property known as goodwill’. And the second is ‘all confidential matter which
27 Sub-rule 6(5)(g) in provides:
‘ Where an application cannot properly be decided on affidavit the court may dismiss the application
or make such order as it dee ms fit with a view to ensuring a just and expeditious decision. In
particular, but without affecting the generality of the aforegoing, it may direct that oral evidence be
heard on specified issues with a view to resolving any dispute of fact and to that en d may order any
deponent to appear personally or grant leave for such deponent or any other person to be
subpoenaed to appear and be examined and cross -examined as a witness or it may refer the matter
to trial with appropriate directions as to pleadings or definition of issues, or otherwise.’
28 Setlogelo v Setlogelo 1914 AD 221: at 227.
29 National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) para 50 (“OUTA”).
is useful for the carrying on of the business and which could therefore be
used by a competitor, if disclosed to him, to gain a competitive advantage’.
[91] By all accounts, the first respondent, through his position at the applicant’s
business in Epping and his previous history with the clients, developed
relationships with at least the T op 15 customers of the applicant including
others that fall outside the T op 15. A business’s customer connections are a
proprietary interest that can be protected by a restraint of trade undertaking.
[92] Accordingly, I find that the applicant has established a clear right worthy of
protection.
Irreparable harm or reasonable apprehension
[93] Where a restraint is enforceable and the applicant has interests worth
protecting, it suffers irreparable harm if the restraint is not enforced.30
[94] The first respondent has relationships with customers of a nature that he
could induce them to follow him to his new employment with the second
respondent, a direct competitor of the applicant. The applicants set out in
some detail the strength of these relationships with the customers of the
applicants, developed in the exercis e of his duties. All of this serves to show
an employee with the knowledge of the identity and requirements of the
applicants’ customers and who had regular and repeated contact with the
customers so as to build up a connection in the course of trade with them.
[95] The fact that the second respondent never protected itself from s iphoning of
its former customers by the first respondent does not negate or nullify the
validity and enforcement of the restraint and confidentiality undertakings.
Further, the fact th at the first respondent is alleged to be employed in the
second respondent’s fluid control business is not bulletproof evidence that
the restraint and confidentiality undertakings would not be breached.
30 Esquire System Technology v Cronje (2011) 32 ILJ 601 (LC) at paragraph [38].
[96] This is so because, the respondents admit that it i s possible for a fluid control
customer to purchase steel and tube products from the second through the
first respondent. The risk of breach of the restraint and confidentiality
agreement by the respondents is real.
[97] In addition, the respondents refused t o sign the proposed exit agreement
which would have put in place safety measures to the satisfaction of the
applicant that they will not breach the undertakings. I agree with the applicant
that the so -called employment of the first respondent by the second
respondent in its fluid business section is a construct aimed at undermining
the restraint and confidentiality agreement. Moreover, it is not only the Top 15
customer information and contact details that the applicant is concerned
about, but also other ap plicant’s customer information to which the first
respondent had access by virtue of his employment with the applicant.
[98] The first respondent, when he first informed the applicant of his employment
offer from the second respondent and subsequent discussion in which he
was offered a better offer, had never disclosed that he would be employed in
the fluid control products section. Further, the second respondent has other
branches outside the restraint area. The first respondent could have been
employed in such other branches to avoid breaching the restraint addendum ,
but insists on being employed within the restraint area. He agrees that it is an
available option, but he does not want to be far from his family.
[99] The first respondent is employed by a direct competitor within the restraint
area. I find that the so-called non-competing role in which the first respondent
is employed (i.e., fluid control products) is aimed at div erting this court’s
attention from the real and genuine issues in this application . This attempt to
divert the court’s attention failed.
[100] Accordingly, I find the apprehension of harm is reasonable in the
[100] Accordingly, I find the apprehension of harm is reasonable in the
circumstances. That being the case, if an interdict is not granted , the harm
that might be inflicted on the applicant’s business would be irreparable
considering that the T op 15 customers and other customers serviced by the
first respondent at the applicant’s business in Epping accounted for more
than 40% of the applicant’s sales in revenue and value.
Alternative remedy
[101] The applicant has no alternative remedy other than to enforce the restraint.
An alternative remedy of damages “ is cold comfort to an applicant that seeks
to enforce a legitimate rest raint of trade covenant. By the time a damages
claim is heard, the horse ha[s] bolted and harm is done. That harm is very
difficult to repair. I am satisfied that, where a restraint of trade is enforceable,
the alternative remedy of a damages claim in du e course is more apparent
than real”.31
Conclusion
[102] I am satisfied that the urgent application was properly set down before me.
The requirements for urgency were met. The respondents have failed to
discharge the onus resting on them to prove that the restraint is
unreasonable and thus unenforceable . As stated above, the restraint does
not offend public policy and does not unfairly restrict the first respondent’s
constitutional rights to practise his trade freely and or to earn a living.
[103] For all of these reasons, I conclude that there can be no doubt that customer
contact exists and that the respondents could exploit these connections if
employed by a competitor such as the second respondent (w hich actually
happened here). This is the interest that the applicant is entitled to protect by
enforcing the restraint of trade. Accordingly, the restraint should be enforced .
In the circumstances, I am satisfied that the order I made below is just and
equitable.
In the result, I made the following order.
31 Esquire System Technology, supra, at paragraph [39].
1. The rules relating to forms, service, notices, and time periods, to the extent
necessary, are dispensed with in terms of uniform rule 6(12).
2. The matter is declared sufficiently urgent to be heard on an urgent basis.
3. The first respondent’s informal application to strike is condoned.
4. Application to strike out averments in the replying affidavit is dismissed.
5. Application to strike out “hearsay” evidence from the replying affidavit is
dismissed.
6. The first respondent, for a period of six months, from 1 August 2025 (“the
restraint period”), is hereby interdicted and prohibited from:
6.1 rendering services as an empl oyee of the second respondent
(Stewarts and Lloyds Holdings (Pty) Ltd).
6.2 being directly or indirectly involved with the second respondent within
a 250-kilometer radius of the applicant's business premises situate at
1[…] B[…] Avenue, Epping Industria, Cape Town, Western Cape (“the
restraint area”).
6.3 marketing, selling, or supplying goods or services similar to those of
the applicant within the restraint area and during the restraint period.
7. The second respondent is hereby interdicted and prohibited fr om employing
the first respondent within the restraint area during the restraint period.
8. The first and second respondents jointly and severally, one paying the other,
be absolved to pay the costs of the application, including the costs of
counsel, on scale C.
_______________________________
P NJOKWENI
ACTING JUDGE OF THE HIGH COURT
Appearances
Applicant : G Elliot SC
First Respondent : P Tredoux
Second Respondents : G Samkange