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This judgment is handed down electronically by circulation to the parties’ legal
representatives by email and by being uploaded to CaseLines. The date and time for
hand down is deemed to be 11 September 2025.
MAHON AJ:
Introduction
[1] This is an urgent application brought by Mutualism (Pty) Ltd (“the applicant”)
against Two Cent Solutions (Pty) Ltd and several of its former employees (“the
respondents”). The applicant seeks to enforce contractual restraints of trade
and confidentiality undertakings entered into by the second to sixth respondents
during their employment, and to interdict all of the respondents from engaging
in unlawful competition. The applicant contends that the respondents, having
left its employ, have misappropriated its confidential information and diverted its
business opportunities to establish and operate the competing enterprise, Two
Cent Solutions.
[2] The relief claimed includes final interdicts restraining the respondents from
breaching their restraint and confidentiality obligations, interdicting them from
competing unlawfully with the applicant, and preventing the first respondent
from conducting business in the applicant’s field of activity. Ancillary relief is
sought, including an order declaring the second respondent a delinquent
director under section 162(5) of the Companies Act 71 of 2008. In the
alternative, the applicant prays for interim relief pending the institution of
proceedings for final relief.
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[3] The respondents oppose the application. They challenge its urgency and
dispute that the applicant has established a clear right. They further contend
that the business model of the applicant is non-compliant with the National
Credit Act, and that, on this basis, the applicant cannot enforce contractual
rights said to arise from such operations.
[4] It is against this background that the Court is called upon to determine whether
the requirements for the relief sought have been met, and if so, the extent to
which the relief should be granted, bearing in mind the need to temper the scope
of the orders to ensure they remain just and equitable.
Background and Chronology of Events
[5] The applicant, Mutualism (Pty) Ltd, is a financial services company founded in
2019 by Mr Mason Ames Wittman and Mr Dylan Mott, with a focus on
developing financing solutions for small and medium -sized enterprises. The
company established proprietary risk assessment systems, investment
committee processes, and a network of funders and clients over several years.
[6] In 2020, the applicant employed Mr Retshegofetse Prince Moeng, who later
rose to the position of Chief Executive Officer. He, together with other senior
employees, had full access to the applicant’s confidential information,
methodologies, systems, client pipeline, and funder connections.
[7] The applicant contends that from 2024 onwards, Mr Moeng and the other
individual respondents secretly began diverting its opportunities, clients, and
resources to a competing venture under the name Two Cent Solutions (Pty) Ltd
(“Two Cent”). The “Two Cent” banner first became visible in early 2024 ,
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appearing on Mr Moeng’s LinkedIn profile, at corporate events, and later at
offices in Hyde Park. By 2025, the applicant alleges, Two Cent had emerged
publicly as a brokerage and finance business in direct competition with
Mutualism, built upon its confidential systems, client relationships, and business
model.
[8] In April 2025, the misconduct came to light when internal investigations
revealed that the second to sixth respondents had, during their employment,
been involved in the copying and misappropriation of Mutualism’s confidential
information, business processes, and client opportunities. A meeting held on 8
April 2025 exposed contradictions in Mr Moeng’s explanations concerning deals
concluded through Two Cent, including a transaction involving Emmia Farm.
[9] Following their suspension and disciplinary proceedings, the respondents were
dismissed. Shortly before and after their dismissal, they were instructed by one
of their number, Ms Hlengiwe Zwane, to delete all material that could link them
to Two Cent. This instruction, according to the applicant, was itself evidence of
the respondents’ knowledge of wrongdoing.
[10] The applicant maintains that the respondents’ conduct amounted to the
wholesale misappropriation of its business. It alleges that Two Cent, as i t now
exists, was effectively constructed out of its confidential information, trade
connections, and resources, and that the respondents continue to operate in
direct competition in breach of their contractual restraints.
[11] The respondents, for their part, argue that Two Cent was incorporated in 2020
and that its existence was no secret. They deny misappropriating confidential
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information, assert that they deleted all such material when instructed, and
contend that the applicant’s operations are themselves n on-compliant with the
National Credit Act.
[12] It was against this factual background that the applicant launched the present
urgent application in July 2025, seeking final interdictory relief and ancillary
orders.
Respondents’ Defences
[13] The respondents oppose the application on a number of grounds, both in limine
and on the merits.
[14] First, they contended in their answering affidavit that the application was
defective for want of proper authority, alleging that the deponent to the founding
affidavit, Mr Wittman, lacked authority under Uniform Rule 7 to institute these
proceedings on behalf of the applicant. However, during the hearing this issue
was clarified and resolved between the parties. It is accordingly unnecessary
for this judgment to address the question of authority further.
[15] Secondly, the respondents submit that the application does not warrant urgent
consideration. They maintain that the applicant became aware of the alleged
misconduct in April 2025 yet delayed almost three months before launching
proceedings, and thereafter set the matter down for hearing in September 2025.
This delay, they say, renders any urgency “self-created” and abusive of the
court process.
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[16] Thirdly, they challenge the applicant’s entitlement to a final interdict. Their
central contention is that the applicant lacks a clear and enforceable right
because its business model amounts to the provision of credit facilities without
registration under the National Credit Act 34 of 2005. On this footing, the
applicant is said to be operating unlawfully, and therefore cannot claim to
enforce contractual restraints or seek protection from the Court.
[17] On the factual front, the respondents advance three further lines of defence.
They assert that:
[17.1] Two Cent was incorporated as early as 2020 and its existence was
never concealed;
[17.2] The individual respondents deleted any confidential information in
their possession at the time of their suspension and dismissal, and
accordingly no misuse can be inferred; and
[17.3] Two Cent does not compete directly with the appl icant, being
positioned as an “ecosystem builder” and advisory business rather
than a lender.
[18] Lastly, the respondents argue more broadly that the contractual restraints
sought to be enforced are unreasonable, unlawful, and contrary to public policy,
particularly when weighed against their right to work and earn a livelihood.
[19] In sum, the respondents’ defences turn upon three pillars: procedural objections
(urgency), substantive objections to the existence of a protectable right, and
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factual denials concerning the alleged competition and use of confidential
information.
Urgency
[20] The first enquiry is whether the applicant can obtain substantial redress at a
hearing in due course (see Luna Meubel Vervaardigers (Edms) Bpk v Makin
(t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W) at 137F; East Rock
Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd (unreported, GJ case no
11/33767 dated 23 September 2011)).
[21] On the facts here, it cannot. The restraint periods would, by the time this matter
could be heard in the ordinary course, have wholly or materially expired,
rendering the relief moot or largely so. That consideration alone renders the
matter urgent. The harm complained of is continuing and consists in the ongoing
operation of a competing enterprise alleged to trade on the applicant’s
confidential information and relationships. Each day that passes erodes the
efficacy of the restraints the applicant seeks to enforce.
[22] A suggestion was advanced that the urgent court should weigh the “gravity” of
the consequence for the applicant and entertain urgency only where the
absence of immediate relief would lead to catastrophic outcomes (such as the
extinction of the business), even if rights are infringed. That is not a correct
articulation of the test. Threats to commercial interests have long been
recognised as capable of engaging the urgent court’s protection (see Twentieth
Century Fox Film Corporation v Anthony Black Films (Pty) Ltd 1982 (3) SA 582
(W) at 586G).
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[23] It is not the quantum of harm, per se, that determines urgency, but whether the
harm cannot be prevented or arrested without recourse to the urgent court. On
that footing, the applicant’s case plainly qualifies: absent urgent relief, the
restraints will lapse (at least in part) before any ordinary hearing, and the
asserted springboard advantage and diversion of opportunities will persist in the
interim.
[24] The next enquiry is whether the urgency is “self-created”. That enquiry is not
undertaken in the abstract. It is not simply a question of whether the applicant
might have acted with greater haste or whether the court would have done so
in the applicant’s shoes. The focus is on the tangible effect of the alleged delay.
[25] Two paradigms are relevant in this regard . First, where a matter could have
been brought in the ordinary course but, by reason of the applicant’s delay, must
now be brought urgently to avoid being too late . That is par excellence a case
of self-created urgency. Secondly, even where the nature of the controversy
justifies truncated time periods in principle, urgency may be self-created if the
applicant delays so long that the respondent is unreasonably prejudiced by
curtailment that could have been avoided or mitigated. It must also be
remembered that w here an applicant first seeks compliance from the
respondent before lodging the application it cannot be said that the applicant
had been dilatory in bringing the application or that urgency was self-created
(See Nelson Mandela Metropolitan Municipality v Greyvenouw CC 2004 (2) SA
81 (SE) at 94C–D).
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[26] Measured against those standards, the record does not establish self-created
urgency. The applicant explains the steps taken after the April 2025 discovery,
including restoring management control, instituting disciplinary proceedings,
retrieving and reviewing two years of communications, and assembling an
evidentiary record against multiple respondents—steps that consumed time but
were reasona bly necessary given the breadth of the allegations. The
explanation is detailed and comprehensive.
[27] The respondents’ contrary case relies on the interval between April 2025 and
the launch of proceedings in late July 2025, and on the fact that the matter was
enrolled for September 2025. Those facts, viewed in isolation, do not show
either paradigm of self-created urgency which I have articulated above. This is
not a situation where a dispute suited for the ordinary roll became urgent only
because the applicant tarried. To the contrary, the very nature of restraint and
confidential-information relief , especially where the impugned conduct is
ongoing, typically necessitates curtailment. Nor is there demonstrated prejudice
of the second kind: the applicant afforded the respondents a generous
answering period of approximately 15 days, which ameliorates any curtailment-
related prejudice and points away from self-creation.
[28] The respondents further invoke an exchange of correspondence at the end of
May 2025 to suggest that, if urgency existed, the application ought to have been
launched then. That contention does not grapple with the central point: urgency
in this matter is driven by continuing competitive harm and the imminently
expiring restraints, not by a single dem and-and-response event. The May
correspondence does not alter that analysis.
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[29] In the result, I am satisfied that the applicant cannot obtain substantial redress
in due course, that the matter is appropriately enrolled in the urgent court, and
that the urgency is not self-created.
Requirements for Final Interdictory Relief
[30] The requirements for a final interdict are settled: the applicant must establish (i)
a clear right, (ii) an injury actually committed or reasonably apprehended, and
(iii) the absence of an adequate alternative remedy. I deal with each in turn.
(i) Clear right
[31] The applicant relies for its clear right both on contract and at common law.
Contractually, the second to sixth respondents each signed written restraint and
confidentiality undertakings in favour of the applicant, recorded in their
employment contracts and in standalone agreements. Those undertakings
were valid and binding, and their existence is not disputed. At common law, the
applicant enjoys protectable proprietary interests in its confidential information,
systems, trade connections, goodwill, and corporate opportunities.
[32] The respondents resist this by contending that the applicant has no enforceable
right because it is not registered as a national credit provider under the National
Credit Act 34 of 2005. During argument it became clear that the point was
framed specifically with reference to section 40 of the NCA, and the alleged
failure to register. Leaving aside that this defence was not properly pleaded, it
is misconceived. Whether the NCA applies to any given transaction is a matter
of fact, to be determined case by case by reference to the statutory
prerequisites. It cannot be assumed, as the respondents would have it, that
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every transaction concluded by the applicant necessarily fell within the NCA.
Some may have done so; others may not. Even if particular transactions were
tainted by non-compliance, that would not infect the totality of the applicant’s
operations, still less extinguish the applicant’s contractual rights against its
employees. On the papers before me, no factual basis has been advanced to
sustain the sweeping conclusion contended for. The respondents have elected
to advance only bald allegations, not specific facts.
[33] Moreover, the respondents themselves were integrally involved in the
company’s compliance trajectory. They advised on partnership structures
designed to ensure regulatory cover, and they participated in drafting materials
which referenced NCR registration as part of the scale-up plan. Their present
reliance on the issue is therefore self-serving.
[34] On the uncontested facts, the applicant’s proprietary interests fall squarely
within the categories long recognised by authority as warranting protection:
trade secrets (its scoring system, portal, and processes) and trade connections
(its funders, clients, and goodwill). The evidence shows that those interests
were both accessible to and exploited by the respondents.
[35] In the circumstances, I am satisfied that the applicant has demonstrated a clear
right, both in contract and at common law.
(ii) Injury actually committed or reasonably apprehended
[36] The applicant has demonstrated not only a reasonable apprehension of harm,
but that unlawful injury has already been committed.
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[37] The evidence shows that the respondents diverted pipeline opportunities that
had been originated, vetted, and presented within the applicant’s structures,
including the Investong transaction (valued at approximately R100 million) and
the Emmia Farm deal. Both were introduced to the applicant’s board as
Mutualism transactions and later carried across to Two Cent. The Investong
diversion alone deprived the applicant of a potential R1.5–2 million fee. Such
diversions are not speculative: they are evidenced by board minutes,
correspondence, and transactional documents.
[38] The respondents also misappropriated the applicant’s confidential systems. Its
online application portal, credit scoring methodology, and backend workflows
— developed at cost and over years — have been replicated in Two Cent’s
platform. Once replicated and embedded in a competitor’s offering, those
advantages cannot be “unlearned”. They confer a continuing springboard
benefit to the respondents and an ongoing competitive disadvantage to the
applicant.
[39] In addition, the respondents solicited the applicant’s existing funders and
clients, including investors cultivated over years of relationship- building.
Goodwill, once diverted, cannot be restored by subsequent legal process. It is
incorporeal property which, once eroded, is gone. The respondents further
passed themselves off by using the applicant’s branding at public events to
promote Two Cent. That conduct compounds market confusion and risks
permanent reputational damage.
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[40] The respondents’ denials in this regard are unconvincing. They do not dispute
their access to the applicant’s confidential information while in its employ, nor
their active involvement in Two Cent during the same period. The suggestion
that the subsequent deletion of materials somehow cures the breach
misunderstands the law. The protection afforded by restraint and confidentiality
obligations is designed precisely to avoid reliance on an employee’s bona fides
after confidential information has been exposed. As the Supreme Court of
Appeal emphasised in Reddy v Siemens Telecommunications (Pty) Ltd 2007
(2) SA 406 (SCA), once access to trade secrets is established, the objective
risk of disclosure to a competitor suffices to ground relief.
[41] The third to sixth respondents, moreover, have failed to put up any clear or
credible version regarding their present involvement in Two Cent, despite
overwhelming evidence of their association with its operations. The evasive and
bare denials offered do not raise genuine disputes of fact. At the very least, the
facts support a robust inference that they remain associated with Two Cent and
that the unlawful conduct continues.
[42] On this evidence, the applicant has shown that the respondents’ breaches are
not historic or isolated. The injury is ongoing, in the form of continuing
competition entrenched through the use of confidential systems, diverted
clients, and reputational appropriation. Even if certain aspects of the conduct
were now paused, the reasonable apprehension of future harm would persist,
given the respondents’ possession of the applicant’s know- how and their
embedded involvement in a rival business.
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[43] Accordingly, the requirement of actual or reasonably apprehended injury is
amply satisfied.
(iii) Absence of adequate alternative remedy
[44] The final requirement is that the applicant must demonstrate that no satisfactory
alternative remedy is available. In my view, this requirement is met.
[45] The respondents argue that the applicant’s alleged losses are financial in nature
and can be compensated in damages. That submission is unsustainable. Th e
harm established in this matter is not merely pecuniary; it goes to the heart of
the applicant’s business model and market position. Once confidential systems
are replicated and deployed in a competitor’s operations, they cannot be clawed
back. The competitive springboard advantage obtained cannot be undone by a
damages award. Similarly, once goodwill has been diverted, it cannot be
restored by monetary compensation.
[46] The Investong and Emmia Farm transactions illustrate the point. The lost fees,
though quantifiable, are but the surface manifestation of a deeper harm: the
erosion of client confidence and the establishment of Two Cent as a competitor
in the very space occupied by the applicant. The competitive foothold gained by
the respondents will continue to yield benefits long after any damages action is
concluded.
[47] Moreover, restraint undertakings exist precisely because damages are
recognised as inadequate. The very object of a restraint is to prevent misuse of
confidential information and relationships before they occur, because it is
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impossible to measure or to reverse the prejudice once the information is used
and the relationships diverted.
[48] The respondents’ further reliance on their purported deletion of confidential
information does not supply an alternative remedy. As the case law makes
plain, the law does not require an employer to “cross its fingers” and hope that
confidential material committed to memory will not be deployed. The purpose
of an interdict is to give meaningful effect to contractual undertakings and to
avoid reliance on the respondents’ assurances.
[49] In the result, I am satisfied that there is no adequate alternative remedy
available to the applicant. Only interdictory relief can arrest the ongoing use of
its confidential material, restrain the unlawful competition, and protect its
proprietary interests.
Disputes of Fact and the Evidentiary Burden
[50] The respondents have sought to suggest that the application gives rise to
disputes of fact, which would preclude the grant of final relief. I do not agree.
[51] It is settled law that a final interdict may be granted in motion proceedings where
the facts as stated by the respondents, together with those admitted by the
applicant, justify such an order. Bare denials, evasions, or vague assertions do
not suffice to create genuine disputes. As the Supreme Court of Appeal
explained in Wightman t/a JW Construction v Headfour (Pty) Ltd and Another
2008 (3) SA 371 (SCA), a dispute of fact exists only where the opposing party
seriously and unambiguously engages with the material facts. Where a party
who has direct knowledge of the facts advances only bald or ambiguous
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denials, a court is entitled to adopt a robust approach and to proceed on the
applicant’s version.
[52] That is the position here. The respondents have not seriously engaged with the
detail of the applicant’s allegations. They do not dispute the existence or validity
of the restraint and confidentiality undertakings. They do not deny their access
to the applicant’s confidential systems and client connections. Their repeated
assertions that such material was “deleted” after dismissal is no answer in law;
the risk lies precisely in the knowledge already acquired and in its potential use
in a rival enterprise. Likewise, their attempt to describe Two Cent as an
“ecosystem builder” is contradicted by uncontroverted evidence of diverted
opportunities (Investong, Emmia Farm, Selele), solicitations of funders, and
replication of the applicant’s portal and branding. Such responses do not create
genuine disputes of fact.
[53] In restraint matters, the evidentiary burden is particularly clear. As set out
in Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) and
followed in Basson v Chilwan & Others 1993 SA 742 (A) and Reddy v Siemens
Telecommunications (Pty) Ltd 2007 (2) SA 406 (SCA), once the applicant
proves the existence of a valid restraint and a breach thereof, the onus shifts to
the respondent to show that enforcement would be unreasonable and contrary
to public policy. That onus is not discharged by platitudes or bald denials; it
requires cogent factual material demonstrating why, in the particular
circumstances, the restraint should not be enforced.
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[54] The applicant has, as it was required to, established the existence of binding
restraint agreements and their breach. It has further shown the respondents’
access to and use of its confidential information, the diversion of corporate
opportunities, and their participation in a competing business. T he applicant
correctly emphasised that it bore the burden of proving the restraints and the
breach thereof, which it has done. It pointed out that there is no dispute that Mr
Moeng is a director of Two Cent, that he has promoted its interests in direct
competition, that deals were diverted, and that the other respondents worked
for Two Cent while still employed by the applicant. Those facts remain
substantially uncontested.
[55] Against that evidentiary background, it fell to the respondents to show that
enforcement of the restraints would be unreasonable. They have not done so.
Their case rests on vague assertions of non-involvement, bare denials of
competition, and reliance on alleged illegality under the NCA which is both
opportunistic and inadequately pleaded. They have not provided a candid
account of their present relationship with Two Cent. They have not explained
why the restraints should be considered unreasonable, nor how their
enforcement would unduly infringe their right to work.
[56] When measured against the three requirements of an interdict, their failure is
plain. On the element of a clear right , they were required to demonstrate
unreasonableness in the restraints but offered none. On injury, they were
required to give a coherent account countering the evidence of ongoing unlawful
competition, but they responded only with conclusory denials. On absence of
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an alternative remedy, they were required to show that damages would suffice,
but they advanced no factual foundation for that contention.
[57] Accordingly, no genuine disputes of fact arise on the material issues, and the
respondents have not discharged the evidentiary burden placed upon them.
The Court is entitled to proceed on the applicant’s evidence, reinforced where
appropriate by robust inferences from the respondents’ evasions.
Conclusion on the Interdict Requirements
[58] The applicant has satisfied all three requirements for final interdictory relief.
[59] First, it has demonstrated a clear right, both in contract and at common law. The
existence and validity of the restraint and confidentiality undertakings are
undisputed, as is the applicant’s protectable interest in its confidential
information, systems, and client relationships. The respondents’ reliance on
alleged non-compliance with the National Credit Act is ill- founded and
inadequately pleaded. Even if accepted at its highest, it would not extinguish
the applicant’s rights as a whole.
[60] Secondly, the applicant has established both actual and reasonably
apprehended injury. The evidence of diverted opportunities, replication of
proprietary systems, solicitation of clients and funders, and use of the
applicant’s branding demonstrates ongoing unlawful competition. The
respondents’ bare denials and self-serving assertions do not dislodge that
evidence. As set out in the preceding section, those denials do not give rise to
genuine disputes of fact, and the Court is entitled to adopt a robust approach.
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[61] Thirdly, the applicant has shown that there is no adequate alternative remedy.
Damages cannot restore lost goodwill, erase the competitive springboard
advantage, or neutralise the unlawful use of confidential information. The very
rationale for the contractual restraints is to provide protection which damages
could never achieve.
[62] The respondents have failed to discharge the evidentiary burden that rests on
them in restraint matters. Having proved the contracts and their breach, the
applicant shifted the onus to the respondents to demonstrate that enforcement
would be unreasonable. They have not done so. Their evasive and
unsubstantiated denials leave the applicant’s case intact.
[63] In these circumstances, the requirements for a final interdict are satisfied. What
remains is to consider the scope of the relief to be granted, and to ensure that
the orders made are tempered to protect only the applicant’s legitimate
proprietary interests without unduly impairing the respondents’ right to work.
Tempering and Tailoring of Relief
[64] It is trite that a restraint of trade is enforceable unless it is shown to be
unreasonable, and the enquiry into reasonableness involves the now-
classic Basson v Chilwan & Others 1993 (3) SA 742 (A) test: (i) whether the
applicant has a legitimate proprietary interest deserving of protection; (ii)
whether that interest is threatened by the respondent; (iii) if so, whether such
interest weighs up qualitatively and quantitatively against the respondent’s
interest in being economically active and productive; and (iv) whether there are
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any broader public policy considerations that require the restraint to be enforced
or rejected.
[65] On the first two questions, the applicant has established legitimate proprietary
interests (its confidential systems, client connections and goodwill) and has
shown that these have been misused and diverted by the respondents. The
balance of the enquiry therefore concerns proportionality.
[66] The respondents contend that the first respondent’s business is not a “carbon
copy” of the applicant’s operations and that it encompasses a broader range of
service offerings. That may be so. But the fact that Two Cent may engage in
activities beyond the scope of the applicant’s own business does not detract
from the applicant’s right to protection against those aspects of the respondents’
conduct which are in direct competition with it and which involve the misuse of
its confidential information, trade connections, and goodwill.
[67] The law does not require that the parties’ businesses be identical before
interdictory relief can issue. It is sufficient that they overlap in material respects,
such that the risk of unlawful competition is real. At the same time, the interdict
must be carefully tailored so that it does not extend to non-competing elements
of the first respondent’s business. The applicant is entitled to restrain only those
activities which compete with its financing model and which exploit its
confidential systems and diverted opportunities. It is not entitled to prevent the
respondents from engaging in lines of work which are wholly distinct from its
operations.
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[68] This principle of proportionality is consistent with the jurisprudence on restraints
of trade, which requires that enforcement go no further than is reasonably
necessary to protect the proprietary interests in question. A restraint that
prevents the respondents from working altogether, or from engaging in activities
which do not encroach on the applicant’s business, would be overbroad and
contrary to public policy.
[69] In the course of argument, Mr Whitcutt SC, for the applicant, quite properly
acknowledged that certain elements of the relief originally sought were
overbroad and could be tempered to ensure that a more effective balance of
competing rights is struck. He volunteered a number of revisions to th e notice
of motion which would operate to the respondents’ benefit.
[70] First, he directed attention to prayer 10 of the notice of motion and proposed
amendments curtailing the scope of the interdict in three respects: its duration,
the nature of the work to which it applies, and the sector in which it operates.
These revisions were advanced in recognition of the principle that enforcement
of restraints should go no further than reasonably necessary to protect the
applicant’s legitimate proprietary interests.
[71] Secondly, he candidly abandoned the relief sought in prayer 11.3 of the notice
of motion, accepting that the applicant had not established an entitlement to that
relief.
[72] Thirdly, he proposed an amendment to the relief sought against the first
respondent in paragraph 11.12 of the notice of motion, limiting its operation to
a period of two years. That concession accords with established authority that
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restraints must be proportionate in duration, and I have adopted it in the order
that follows.
[73] I have given effect to these recommendations in the framing of my order. In
addition, however, I am not persuaded that a total prohibition on the first
respondent’s use of “any online application and scoring portal” is justified. Such
an order would extend beyond the protection of the applicant’s legitimate
interests and unduly inhibit the first respondent in carrying out activities that are
not shown to compete unfairly. The balance of the relief sought — particularly
the restraints directed at the use of the applicant’s confidential systems, diverted
opportunities, and client relationships — is sufficient to meet the applicant’s
concerns without imposing an unnecessarily broad prohibition.
[74] In sum, the relief is to be confined to those aspects of the respondents’ conduct
which amount to direct and unlawful competition with the applicant, for a period
that is proportionate, and in a manner that leaves unaffected those activities of
the first respondent which fall outside the applicant’s domain.
Conclusion
[75] The applicant has established the requirements for final interdictory relief. The
contractual undertakings given by the second to sixth respondents, together
with the common -law protections available to the applicant, entitle it to
protection against the diversion of its opportunities, the misuse of its confidential
systems and information, and the unlawful competition that has ensued. The
respondents’ defences have not withstood scrutiny, and their denials fall short
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of creating genuine disputes of fact or of discharging the onus that rests upon
them in resisting the enforcement of restraints.
[76] At the same time, the relief sought has been appropriately tempered, both by
the concessions properly made on behalf of the applicant and by further
adjustments I consider necessary, to ensure that the orders granted go no
further than is reasonably required to protect the applicant’s legitimate
proprietary interests. The relief is thus carefully calibrated to strike a fair balance
between the applicant’s entitlement to protection and the respondents’ right to
pursue livelihoods in fields not shown to be in competition with the applicant.
[77] On the question of costs, there is no reason to depart from the general principle
that costs follow the result. The applicant has been substantially successful in
vindicating its rights, and the respondents must bear the costs of the application,
including the costs of two counsel where so employed.
[78] In the circumstances, the following order is made:
1. It is declared that the second to sixth respondents respectively are in
breach of their Restraint Agreements concluded with the applicant
(annexures MAW2, MAW6, MAW7, MAW8 and MAW9 to the founding
affidavit) (“the Restraint Agreements”);
2. It is declared that the third, fourth and fifth respondents are in breach of
their respective Confidentiality and Non-Disclosure Agreements
concluded with the applicant (annexures MAW3, MAW4, and MAW5 to
the founding affidavit) (“the Confidentiality Agreements”);
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3. The second respondent is ordered indefinitely to keep confidential and not
to disclose any of the applicant’s trade secrets, confidential
documentation, technical know-how and data, drawings, system,
methods, software, processes, client lists, programs, marketing and / or
financial information to any person other than to persons employed and /
or authorized by the applicant or associated company and who are
required to know such secrets or information for their employment and /
or association with the applicant, the applicant’s trade secrets, confidential
documentation, technical know-how and data, drawings, system,
methods, software, processes, client lists, programs, marketing and / or
financial information where applicable and which represent a substantial
monetary value to the company, both during his/her employment
hereunder or thereafter;
4. The second respondent is interdicted and restrained until 22 October 2025
and throughout the South African Development Community (“SADC”)
from directly or indirectly, in any capacity whatsoever:
4.1. being interested in any business in the territory which carries on
business, manufactures, sells or supplies any commodity or goods,
brokers or acts as an agent in the sale or supply of any commodity
or goods and / or performs or renders any service in competition
with or identical or similar or comparative to that carried on, sold,
supplied, brokered or performed by the applicant during the period
of the employment of the second respondent up to and including
the last day of his employment (22 April 2025).
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4.2. soliciting the custom of or dealing with or in any way transacting
with, in competition with the applicant, any business, company,
firm, undertaking, association or person which during the period of
six (6) months preceding the date of termination of the employment
of the second respondent has been a customer or supplier of the
applicant in the SADC territory; and
4.3. directly or indirectly offering employment to or in any way causing
to be employed any person who was employed by the applicant as
at the termination of the employment of the second respondent with
the applicant or at any time within six (6) months immediately
preceding such termination.
5. The third and fourth respondents are interdicted and restrained until 22
April 2026, within a radius of 100 kilometres from any of the applicant’s
offices office:
5.1. from being interested in or concerned with, in any capacity
whatsoever, any person, company or association, organisation or
concern which competes directly or indirectly with the applicant or
any of its associated companies;
5.2. either solely or jointly with or as employee, manager or agent for
any other person, firm or company, directly or indirectly:
5.2.1. in connection with any business similar to or in-
competition with that carried on by the applicant, solicit
the customers of or sell to or attempt to sell to or deal with:
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5.2.1.1. any customer of the applicant from whom they
obtained or attempted to obtain orders for the
applicant's products at any time d uring their
employment with the applicant; or
5.2.1.2. offer employment to or employ, or cause
employment to be offered to or cause to be
employed or solicit any employee of the
applicant who was then employed by the
applicant or who was employed by the applicant
at the date of the termination of their employment
or at any time during the 1- year period preceding
such termination.
6. The third, fourth and fifth respondents are directed to keep confidential
indefinitely any confidential information disclosed during their
employment.
7. The fifth respondent is interdicted and restrained until 22 October 2025
and throughout the SADC region from directly or indirectly, in any capacity
whatsoever:
7.1. being interested in any business which carries on business,
manufactures, sells or supplies any commodity or goods, brokers
or acts as an agent in the sale or supply of any commodity or goods
and/ or performs or renders any service in competition with or
identical or similar or comparative to that carried on, sold, supplied,
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brokered or performed by the applicant during the period of the
employment of the fifth respondent up to and including the last day
of the employment of the fifth respondent;
7.2. soliciting the custom of or deal with or in any way transact with, in
competition with the applicant, any business, company, firm,
undertaking, association or person which during the period of six
(6) months preceding the date of termination of the employment of
the fifth respondent has been a customer or supplier of the
applicant in the SADC territory; and
7.3. directly or indirectly offering employment to or in any way cause to
be employed any person who was employed by the applicant as at
the termination of the employment of the fifth respondent with the
applicant or at any time within six (6) months immediately preceding
such termination.
8. The sixth respondent is interdicted and restrained until 25 April 2026,
within a radius of 100 kilometres from any office of the applicant:
8.1. from being interested in or concerned with, in any capacity
whatsoever, any person, company or association, organisation or
concern which competes directly or indirectly with the applicant or
any of its associated companies;
8.2. from either solely or jointly with or as employee, manager or agent
for any other person, firm or company, directly or indirectly, for any
cause whatsoever:
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8.2.1. in connection with any business similar to or in-
competition with that carried on by the applicant, soliciting
the customers of or selling to or attempting to sell to or
deal with:
8.2.1.1. any customer of the applicant from whom the
sixth respondent obtained or attempted to obtain
orders for the applicant’s products at any time
during the sixth respondent’s employment with
the applicant; or
8.2.1.2. offering employment to or employing, or causing
employment to be of fered to or causing to be
employed or soliciting any employee of the
applicant who was then employed by the
applicant or who was employed by the applicant
at the date of the termination of the sixth
respondent’s employment or at any time during
the 1 year preceding such termination.
9. The first respondent is interdicted and restrained for a period of twenty
four months from the date of judgment, from conducting any business in
the field of activities conducted by the applicant in the SME Financing
sector as at 24 April 2025 namely –
9.1. asset-backed financing;
9.2. contract financing;
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9.3. invoice discounting financing;
9.4. purchase-order financing; and
9.5. origination and brokerage: preparing SME’s, packaging their
applications, and introducing them to licensed funders.
10. The first respondent and the second to sixth respondents are interdicted
and restrained from competing unfairly and unlawfully against the
applicant, including by:
10.1. Misappropriating, utilising and disclosing the applicant’s
confidential information and trade secrets obtained through their
employment with the applicant, including but not limited to the
applicant’s customer, supplier and funder information, its marketing
strategies, pricing and profit structures, application methodology
and process, online portal or scoring process, and any information
of the applicant which would be of assistance to a competitor to
enable it to compete against the applicant and which would not
ordinarily, but for the knowledge of the respondents, be known to
such competitor (“the applicant’s confidential information”);
10.2. using their knowledge of the applicant's confidential information
and trade secrets, or disclosing such confidential information to
third parties, for their own benefit to springboard the business of the
first respondent (or any other competitive entity);
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10.3. passing off the business of the first respondent as being associated
with that of the applicant or otherwise falsely representing to any
third party that the applicant and the first respondent are
associated, affiliated, or that the first respondent is in any way
endorsed by or linked to the applicant;
10.4. diverting corporate opportunities from the applicant to the first
respondent and continuing to utilise any corporate opportunities
already so diverted;
10.5. utilising the applicant's systems and platforms for the advancement
of the first respondent’s business;
10.6. improperly interfering with the applicant's contractual (whether
written, oral or tacit) relationships with its customers and service
providers;
10.7. directly or indirectly soliciting the applicant's customers, partners
and service providers, including by soliciting customers, partners
and service providers on the basis that the first respondent’s
offerings are the same and/or associated with the applicant;
10.8. utilising t he first respondent’s email or branding to promote,
advertise or undertake any of the services conducted by the
applicant including but not limited to asset-backed financing,
contract financing, invoice discounting financing and purchase
order financing;
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10.9. utilising any architectural digital infrastructure developed and
maintained by the applicant or contractors on behalf of the
applicant;
10.10. utilising or copying any materials that were produced by the
applicant or with the resources of the applicant in any way to
conduct activities or to promote the first respondent or any other
entity’s businesses including Youtube videos, documents,
brochures or any other promotional matter on any platform whether
print, media, digital or social;
11. The first respondent and each of the remaining respondents are
interdicted and restrained from utilising or operating (in relation to the SME
finance sector) any of the following internal operating models and internal
systems for a period of 24 months from the date of judgment:
11.1. the applicant’s internal financial models,
11.2. the applicant’s pricing strategies,
11.3. the applicant’s investment committee templates and
11.4. the applicant’s application workflows.
12. The relief sought in prayer 12 of the notice of motion is postponed sine
die;
13. The respondents shall pay the applicant’s costs of the application,
including the costs of senior and junior counsel, on Scale C.