THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No. 2025-111178
In the matter between:
RAP TECHNOLOGIES (PTY) LTD Applicant
and
PIETERSE, ROBIE CONLY First Respondent
AXFLOW AQS LIQUID TRANSFER Second Respondent
Heard: 22 August 2025
Order: 22 August 2025
Reasons: 4 September 2025
REASONS
MAKHURA, J
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[1] At the end of the hearing of this restraint of trade application on 22 August 2025,
this Court granted an order in favour of the applicant, the terms of which were contained
in the draft order. The respondents have now requested reasons for the order.
[2] The proceedings commenced with Mr Bishop, who appeared for both
respondents, requesting the postponement of the matter sine die. The main reason for
the request w as that the respondents only received the applicant’s signed replying
affidavit in the morning, and they had the right to file a fourth affidavit in terms of the
rules
1 of this Court . Therefore, they wanted to exercise this right to file the fourth
affidavit, which accords with their constitutional right to access courts in terms of section
34 of the Constitution. 2 They submitted that the applicant would not suffer prejudice if
the application is postponed. The applicant, so they submitted, could approach the High
Court for urgent relief . This submission was informed by the fact that the earliest date
for this matter to be enrolled is in October 2025, according to the Registrar. The
respondents tendered the wasted costs of the postponement.
[3] In response, Mr Snyman, for the applicant, argued that the applicant has the right
to choose the forum to adjudicate its application, that the respondents were served with
the application on 14 July 2025 but only chose to file their answering affidavit on 20
August 2025, more than 5 weeks later, in breach of the terms of the notice of motion
and the rules of this Court that they s ought to rely on to file their fourth affidavit, that the
respondents may not directly rely on the Constitution as this offends the principle of
subsidiarity and that the tender of costs would not mitigate against the prejudice that the
applicant would suffer considering that the restraint period is of a limited duration of 6
months, which expires at the beginning of November 2025.
months, which expires at the beginning of November 2025.
[4] Having considered the arguments from both parties, in particular the fact that the
respondents only elected to answer to the applicant’s founding affidavit two days before
the hearing, the limited restraint period which expires in less than 3 months , and that it
1 Rules regulating the conduct of the proceedings of the Labour Court, GG 50608, GN 4775 of 3 May
2024.
2 The Constitution of the Republic of South Africa, 1996.
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was irrelevant that the applicant could have and could still approach the High Court as
this Court is clothed with the necessary jurisdiction to determine the application, I
dismissed the application for postponement.
[5] The second preliminary issue I had to determine was whether to condone the
non-compliance with the time period set out in the notice of motion and admit the
respondents’ answering affidavit. The respondents applied for condonation in their
answering affidavit . They deal t with this request in paragraphs 136 to 144 of their
answering affidavit. The respondents emphasised their right to be heard and attributed
the delay in filing their answer to the first respondent’s initial decision to deal with the
matter on his own without legal representation, and his alleged subsequent realisation
that the issues required legal representation. The second respondent agreed to cover
part of his legal fees.
[6] The explanation is not only wholly inadequate for this unreasonably long delay of
4 weeks. The first respondent’s allegation that he initially intended to deal with the
matter on his own is contradictory and borders on deception because, as early as 14
July 2025, he had already appointed his current attorneys of record. It is common cause
that by 25 July 2025, the respondents' attorneys of record had signed the notice of
opposition, even though they filed it on 1 August 2025. The opposition was entered on
behalf of both respondents. Having considered the application, I found the first
respondent’s explanation unsatisfactory and the conduct of the respondents
disrespectful to the rules of the Court . I therefore rejected their explanation and their
answering affidavit, and dismissed their application. The application proceeded on that
basis, without the respondents’ answering affidavit.
[7] The material facts of this matter are that the first respondent was employed as a
senior sales representative for the Limpopo Province or region, effective 9 June 2014.
senior sales representative for the Limpopo Province or region, effective 9 June 2014.
He was allocated specific customers to attend to and service . On 6 September 2019,
the first respondent signed an updated contract of employment, which contained the
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restraint of trade and confidentiality undertakings. The restraint agreement was to
continue for six months after the termination of employment between the parties.
[8] On 8 April 2025, the first respondent resigned from the applicant. The applicant
elected to enforce the 4 weeks’ notice period in terms of the contract, and his
resignation was effective on 7 May 2025. Although the first respondent cited ill-health as
the reason for his resignation, the applicant’s evidence shows that the first respondent
had joined the second respondent as a sales representative. The second respondent is
the applicant’s competitor and had opened a branch in Mokopane, Limpopo, where
some of the applicant’s customers are based. They supply the same product or service
to their customers. The first respondent was seen visiting one of the applicant’s
customers, wearing his new employment uniform. The applicant also solicited orders
from four of the applicant’s customers.
[9] The applicant argues that the second respondent w ould have a competitive
advantage over the applicant due to the fact that during his employment, the first
respondent accessed or had access to information about the applicant , its pricing,
operations and customers. Finally, the applicant submits that:
‘The particular knowledge of the pricing and specifications of the
services/products supplied by the applicant, as well as the particulars of the
applicant's customers and their requirements, held by the first respondent, was
obtained through his employment and association with the business of the
applicant and which, in turn, gave rise to the restraint of trade agreement.’
[10] Based on the above and there being no contrary version, the applicant submitted
that it is entitled to the relief sought, which, in terms of the draft order, the applicant
limited the geographical area to the Limpopo Province.
[11] Mr Bishop opposed the application from the bar . He submitted that the
[11] Mr Bishop opposed the application from the bar . He submitted that the
applicant’s notice of motion refers to the founding affidavit of A Rodr iques being used in
support of the application, but the applicant used the affidavit of Carl Houwer (Houwer).
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This, so Mr Bishop submitted, is a material defect warranting the dismissal of the
application. The applicant has pl aced evidence before this Court through the deponent
who is duly authorised to depose to the affidavit. The incorrect reference of the name in
the notice of motion is not fatal to the application. This point is meritless and constitutes
a nuisance, and is therefore rejected outright.
[12] Secondly, Mr Bishop submitted that although the contract , which contains a
restraint clause, was signed by the first respondent, it was not signed by the applicant .
The deponent to the founding affidavit, so Mr Bishop submitted, was not employed by
the applicant at the time of the conclusion of the contract and cannot testify to the
contract. And, because the applicant did not plead that the contract was partly in writing
and partly oral , the applicant has not established the existence of the contract . Mr
Bishop could not obviously testify from the bar. He could not address the Court on
matters that required evidence and expect the Court to accept the submission. The first
respondent signed the employment contract. The applicant’s evidence is that the
contract was concluded between the parties. There is no evidence to dispute that the
first respondent rendered his services in accordance with the terms of the contract,
which also contained the restraint agreement. This argument is dismissed.
[13] Thirdly, Mr Bishop submitted, with reference to the amendment of the
geographical area, that the applicant cannot whittle down the restraint agreement
without a proper motivation in its founding papers. In other words, the first respondent
complains that it is unfair for the applicant to limit the geographical area from national to
provincial without pleading the reason therefor. It is inexplicable that the first respondent
effectively argued for a nationwide application of the restraint agreement, despite the
effectively argued for a nationwide application of the restraint agreement, despite the
applicant stating that it was prepared to limit it to the province. Mr Bishop’s submission
that the terms of the restraint agreement may not be amended at all without a proper
case being made out in the papers is untenable and unsound. There is nothing wrong or
unlawful with an order that departs from the terms of the restraint agreement , because
ultimately, the enforcement of the restraint must be reasonable . This Court has the
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power to determine the reasonableness or otherwise of enforcing the restraint
agreement and may limit the terms of the restraint agreement.3
[14] Finally, Mr Bishop submitted that the duration of 6 months is unreasonable.
However, there are no facts before this Court to demonstrate why 6 months is
unreasonable. The submission was also rejected.
[15] As it is clear from the above, t he respondents raised technical points and
arguments that only served to waste the court’s time. It was unacceptable that they
disregarded the Court’s rules by filing their answering affidavit 2 days prior to the
hearing and requesting a postponement, actions that, in my opinion, were clearly meant
to delay and frustrate the matter.
[16] Having considered the submissions and applying the trite legal principles
4, I was
satisfied that the applicant had established the contract , the breach and that it has a
protectable interest in the form of customer connections and confidential information.
Further, I was satisfied with the reasonableness of the restraint agreement , the duration
and the geographical area to which the applicant limited it to the Limpopo Province.
Enforcing the restraint agreement would not deprive the first respondent of the
opportunity to earn a living. He may practise his trade and profession and utilise his
skills and expertise in all other 8 provinces, including the Gauteng Province where t he
second respondent is also based. He is free to return to Limpopo Province at the expiry
of the period.
[17] For the above reasons, I granted the application and the draft order was made an
order of this court. The terms of the order read as follows:
Order:
3 Sadan and Another v Workforce Staffing (Pty) Ltd [2023] ZALAC 18.
4 Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA) ; (2007) 28 ILJ 317 (SCA) at
paras 10 - 16; Automotive Tooling Systems (Pty) Ltd v Wilkens and others 2007 (2) SA 271 (SCA); (2007)
28 ILJ 145 (SCA) at para 8; Labournet (Pty) Ltd v Jankielsohn & another (2017) 38 ILJ 1302 (LAC );
[2017] 5 BLLR 466 (LAC) at paras 41 – 43.
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1 The forms and service provided for in the Rules of Court are dispensed
with and the matter is heard as one of urgency as contemplated by Rules 38 and
39 of the Rules of the Labour Court.
2 The First Respondent is interdicted and restrained from directly or
indirectly:
2.1 Being in any manner interested in any business in the Province of
Limpopo, that competes with the business of the applicant, for a period of 6 (six)
months calculated from 7 May 2025.
2.2 Soliciting, transacting and/ or accepting any business or custom from any
existing customers or clients of the applicant for a period of 6 (six) months ,
calculated from 7 May 2025;
2.3 Being employed with any business or entity or person in the Province of
Limpopo, which conducts business which is similar to or competes with that of
the applicant, and in particular the business of the second respondent , for a
period of 6 (six) months calculated from 7 May 2025.
3 The Second Respondent be interdicted and restrained from employing the
first respondent, or in any way being associated with the first respondent, in
breach of the restraint of trade covenant of the first respondent.
4 There is no order as to costs.
M. Makhura
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr S. Snyman of Snyman Attorneys
For the Respondents: Mr A. Bishop
Instructed by: Dewey Mclean Levy Inc