THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: 2025 – 072515
In the matter between:
TWK AGRI (PTY) LTD Applicant
and
DE LANGE, COERT FREDERICK First Respondent
INTERSURE FINANCIAL SERVICES (PTY) LTD Second Respondent
Heard: In Chambers
Delivered: 5 September 2025
Summary: Application for leave to appeal dismissed, no costs.
JUDGMENT
DANIELS J
Introduction
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[1] The first respondent seeks leave to appeal against the judgment of this court ,
handed down on 30 June 2025. For ease of reference, the parties are referred to in
the same manner as the application itself.
Test on leave to appeal
[2] Section 17(1) of the Superior Courts Act No. 10 of 2013 provides that leave to
appeal may only be given where the court a quo is of the opinion that the appeal
would have a reasonable prospect of success or there is some other compelling
reason the appeal should be heard. Leave to appeal should not be granted unless
there is a sound and rational basis to conclude that there is a reasonable prospect of
success.
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Analysis of the grounds for leave to appeal
[3] The first respondent contends that this court erred by finding that the
application was urgent . It contends that the applicant failed to make out its case on
urgency in its founding affidavit. The grounds for urgency were pertinently addressed
in para 12 of the founding affidavit. It is clear, from the judgment, that this court
considered the submissions of both the parties, and exercised its discretion judicially.
In any event, a ruling on urgency is not final and definitive of the rights of the parties
and is therefore not subject to appeal.
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[4] The first respondent contends that this court erred by failing to consider that
the applicant had not complied with rule 39(3)(c), 39(10), and 39(11) which allegedly
contain mandatory provisions . I disagree. The rules should not be interpreted, or
applied, in such a strict and formal manner so as to deprive the Judge of the
discretionary power to manage the court proceedings in a fair and just manner . In
any event, as the court held in Federated Trust Ltd v Botha 3 “The court does not
encourage formalism in the application of the Rules. The rules are not an end in
1 MEC for Health, Eastern Cape v Mkhitha and Another [2016] JOL 36940 (SCA) at paras 16 – 17
1 MEC for Health, Eastern Cape v Mkhitha and Another [2016] JOL 36940 (SCA) at paras 16 – 17
2 Ball v Bambalela Bolts (Pty) Ltd & another (2013) 34 ILJ 2821 (LAC) at para 32
3 1978 (3) SA 645 (A) at 654
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themselves to be observed for their own sake. They are provided to secure the
inexpensive and expeditious completion of litigation before the courts .” The rules
must be interpreted in a purposive manner, not in a manner that is mechanical or
literalist.4 Furthermore, as is oft said the rules are there for the Court , not the Court
for the rules.5
[5] The first respondent contends that the court erred by having regard to the
applicant’s amended notice of motion and its supplementary founding affidavit
because the applicant failed to give notice in terms of rule 20(1) and failed to file an
application in terms of r ule 20(9). It is clear from its design that rule 20 is applicable
to trials. In my view , the authorities do not restrict the discretion of the court in the
manner contended. In para 4 of its judgment, the court applied the test set out in
Transvaal Racing Club v Jockey Club of South Africa
6. It is apparent that the court
had regard to the reason why the additional affidavit was necessary, prejudice, and
the public policy consideration that the parties should be permitted to place their full
case before the court. I see no reason why the appeal court would come to a
different conclusion.
[6] The first respondent contends that the court erred by finding that there was no
dispute about the existence of 12 July 2022 restraint agreement and it failed to
properly apply the Plascon-Evans rule. Once again, I must disagree. The court found
that first respondent’s denial that the restraint existed was a bald denial which failed
to raise a real, genuine and bona fide dispute of fact. A genuine dispute of fact exists
“only where the court is satisfied that the party who purports to raise the dispute has
in his affidavit seriously and unambiguously addressed the fact said to be disputed.
There will of course be instances where a bare denial meets the requirement
because there is no other way open to the disputing party and nothing more can
because there is no other way open to the disputing party and nothing more can
therefore be expected of him. But even that may not be sufficient if the fact averred
lies purely within the knowledge of the averring party and no basis is laid for
4 Adams v National Bargaining Council for the Road Freight & Logistics Industry & others (2020) 41
ILJ 2051 (LAC) at para 16
5 Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2007 (2) SA 363 (SCA) at para 32
6 1958 (3) SA 599 (W) at 604
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disputing the veracity or accuracy of the averment. When the facts averred are such
that the disputing party must necessarily possess knowledge of them and be able to
provide an answer (or countervailing evidence) if they be not true or accurate but,
instead of doing so, rests his case on a bare or ambiguous denial the court will
generally have difficulty in finding that the test is satisfied.”
7 The court found that, for
the reasons set out in its judgment, that the bald denial failed to raise a genuine or
bona fide dispute of fact. In the circumstances, the court properly applied the
Plascon-Evans rule.
[7] The first respondent contends that the court erred by finding that the applicant
had a protectable interest, given that the relationship between the broker and the
clients or customers is of such a personal nature that they cannot be said to
constitute a protectable interest. This submission lacks merit
8 and I see no reason
why the appeal court would find otherwise.
[8] The first respondent contends that the court erred by failing to consider that
the TCF provisions of the Financial Sector Conduct Authority permit s clients to
switch brokers, and therefore the restraint ought not to be enforced. This argument
also lacks merit. As the applicant indicates, the first respondent practiced under the
FSP licence issued to the applicant.
[9] The first respondent contends that the court erred by finding that the restraint
was reasonable, and that it failed to put up facts demonstrating that the restraint was
unreasonable in respect of the matter, area, or duration of the restraint . First, it is
clear from the authorities that the first respondent still bears an onus in that regard.
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Second, t he factors raised in para 15, to the extent that they are relevant, 10 were
considered. This is evident from para 43 of the judgment.
7 Wightman t/a JW Construction v Headfour (Pty) Ltd and another 2008 (3) SA 371 (SCA) at para 13
8 Rawlins and another v Caravantruck (Pty) Ltd 1993 (1) SA 537 (A) at 542
9 Beedle v SloJo Innovations Hub (Pty) Ltd (2023) 44 ILJ 2493 (LAC) at paras 34 and 35
10 In Medtronic (Africa) (Pty) Ltd v Van Wyk & another (2016) 37 ILJ 1165 (LC) at para 35 Van
Niekerk J (as he then was) stated: “The predictable consequences of personal inconvenience and
ramifications on family and career prospects are not factors that weigh against enforcement.”
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Conclusion
[10] An analysis of the grounds for leave to appeal do not reveal a sound and
rational basis to conclude that there is a reasonable prospect of success on appeal.
The application is therefore dismissed.
RN Daniels
Judge of the Labour Court of South Africa