REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION , JOHANNESBURG
(1) REPORTAB LE: NO
(2) OF INTEREST TO OTHER JUDGES : NO
(3) REVISED : NO
20/10/2025
DATE SIGNATUR E
In the ma tter between:
CORPORATE BUSINESS SOLUTIONS
and
KENTON BRADLEY TRAVIS
FUSION GRID TECHNOLOGIES
Ca se number: 2025-171331
App licant
First Respondent
Second Respondent
JUDGMENT
Mfenyana J
Introduction
[1] This is an urgent application in which the applicant, Corporate Business
Solutions (CBS), seeks to interdict and restrain the first and second
respondents. Concerning the first respondent (Mr Kenton), CBS requests an
order prohibiting him from directly or indirectly competing with CBS's
business, or having any interest, whether as an employee, consultant, or
director, in any entity that competes with CBS within the province of
Gauteng.
[2] With respect to the second respondent (Fusion), CBS seeks an order
interdicting and restraining Fusion from facilitating Mr Kenton’s continued
employment and from unlawfully competing with CBS through the use of
CBS’s proprietary and confidential information.
[3] CBS further seeks an order restraining the respondents from using or
disclosing the applicant's confidential and proprietary information, directly
or indirectly, including its customer and product base, pricing structure,
marketing strategies, supplier det ails (including each supplier’s hardware
and consumables pricing), and the intricate details and terms of customer
contracts, contact persons, and trade secrets. CBS also seeks an order
requiring the respondents to return, deliver to the applicant’s attorney, or
destroy all confidential and proprietary information and materials belonging
to CBS within 48 hours.
[4] The applicant seeks costs on an attorney and client scale, only in the event
of opposition.
[5] The dispute originates from an employment contract between CBS and Mr
Kenton, which began on 2 May 2014 and ended on 7 August 2025. Mr Kenton
was originally hired as a direct salesman and later promoted to Sales
Manager in February 2023. In January 2024, he became Corporate Accounts
Manager, responsible for CBS’s sales base and managing corporate clients,
including SMH.
[6] Upon termination of his employment, the first respondent commenced work
with Page Automation, a competitor of CBS.
Applicant’s case
[7] The applicant contends that, by taking up employment with Fusion, Mr
Kenton acted in contravention of the confidentiality and restraint clause by
taking up employment with Fusion and disclosing CBS’s confidential
information, resulting in CBS losing two customers. The applicant further
alleges that Fusion used this information to solicit CBS’s existing customers
with the intention of diverting their business to Fusion or facilitating such
solicitation.
[8] CBS further states that, due to his position and responsibilities while
employed there, Mr Kenton gained extensive knowledge of CBS’s client
base, product offerings, pricing structure for all products and services,
confidential business contract information and terms, custo mer contact
details, and trade secrets that provide CBS with a competitive advantage in
their industry. Mr Bradley James (Mr James), the deponent to the founding
affidavit, states that, because of his role in the company, Mr Kenton became
deeply involved in all aspects of CBS's business, including access to
confidential information not known to the public or third parties.
[9] When Mr Kenton joined Page Automation in September 2024, CBS chose
not to enforce the restraint provisions at the time. Mr James asserts that
this decision was due to Mr Kenton's lengthy service with CBS, and the
company did not wish to impose a blanket ban on his employment.
Furthermore, he states that there was no indication that Mr Kenton misused
CBS’s confidential information or solicited its customers upon joining Page
Automation. He states that on the contrary, Mr Kenton respected his
restraint obligations, referring all CBS customers who contacted him back
to CBS as stipulated in his letter of termination. Mr James adds that, in some
instances, Mr Kenton directly informed CBS of such contacts. Accordingly,
Mr James further avers, Mr Kenton’s employment with Fusion did not impact
CBS’s business due to the professional manner in which he conducted
himself. There was no harm to CBS’s confidential information, he says.
[10] According to Mr James, it was on 28 August 2025 that CBS learnt from its
Sales Manager, Ms Walker, that one of its clients, SMH, had been referred
to Fusion, a newly established entity under the directorship of Mr Kenton
and two other directors. He avers that this referral could have only been
facilitated by Mr Kenton due to his intimate knowledge of CBS’s customers,
including the customer details of SMH. A CIPC search conducted by the
applicant indicates that Fusion was registered on 6 May 2025.
[11] On 2 September 2025, so the story goes, CBS further learnt from one of its
technicians, Mr Bhola, that Fusion had contacted another CBS client,
Efficient Engineering, and had installed a printer at SMH, with another
installation scheduled for Efficient Engineering. CBS asserts that these
installations were made possible by Mr Kenton’s involvement with Fusion,
as he knew that the contracts with these customers were about to expire
and also knew who the relevant contacts at those companies were. In so
doing, he enabled Fusion to contact the correct people in each of the
companies. The applicant thus claims that this conduct constitutes a breach
of Mr Kenton's restraint obligations.
[12] On the same day, Mr Kenton, through his attorneys, assured the applicant
that he had resigned from Fusion on 30 May 2025. However, this statement
proved to be untrue, as a CIPC search conducted on 28 July 2025 revealed
several changes to his details , listing him as Managing Director ; the
applicant further avers.
[13] CBS contends that the matter is urgent as it would be prevented from
enforcing the restraint of trade against Mr Kenton if the matter were to be
heard in the ordinary course, as the restraint period would have run its
course. CBS further states that its c ustomer connections with both SMH
and Efficient Engineering may have been lost to Fusion by then, and the
respondents would continue soliciting the remaining customers of CBS and
carry on with the onslaught against CBS. Thus, it would be too late to
prevent Fusion from using CBS’s confidential information to the detriment
of CBS.
Respondents’ case
[14] In opposing the application, the respondents contend that the application is
not urgent in that the applicant has failed to set out explicitly the
circumstances which render the matter urgent and why it would not be
afforded substantial redress in due course. The respondents further
contend that CBS waived its rights and condoned Mr Kenton’s employment
with Page Automation , by which he remains employed. The respondents,
therefore, state that the relief sought would have the effect of terminating
his employment with Page Automation.
[15] The respondents further a ver that the application is a year late, as the
alleged breach occurred when he took up employment with Page
Automation in September 2024 , which is also when the urgency arose .
However, since CBS chose not to take any action , it cannot now claim a
breach, the respondents further aver.
[16] The respondents further contend that CBS also does not explain the month’s
delay in bringing this application, and as such, urgency, if any, is self -
created. In this regard, the respondents rely on the decision of this Division
in Mogalakwena Local Municipality v Provincial Executive Council, Limpopo
and Others1, that ‘where an applicant has been dilatory in their approach to
the urgent application, the court should assess factors extrinsic to the
papers, and any delay by the applicant in asserting its rights can be deemed
to be self-created urgency.’ They say that CBS cannot approach the urgent
court at any time it elects to, simply because the shoe pinches.
1 (35248/14) [2014] ZAGPPHC 400; [2014] 4 All SA 67 (GP) (19 June 2014).
[17] The respondents dispute the applicant’s assertion that it would suffer harm
if the matter were not treated as urgent, and contend that if there was any
harm, it is a little too late for CBS to bring that up at this stage.
[18] Finally, the respondents contend that CBS will attain substantial redress at
a hearing in due course, as it is free to institute a damages claim , and the
commercial interest CBS seeks to protect can be dealt with in the ordinary
course.
[19] On the merits, Mr Kenton avers that the restraint is unenforceable because
he was never compensated for the restraint of trade as stipulated in the
employment contract, a contention denied by CBS. I understand the first
respondent to be saying that the applicant did not fulfil its end of the bargain
and cannot therefore rely on the same provision that it did not comply with.
It is necessary to dispose of this issue forthwith. In disputing this contention,
CBS stated that the restraint compensation had been paid to Mr Kenton as
part of his salary package, in accordance with clauses 4.3 and 4.4 of the
employment contract. In this regard, CBS provided a schedule of payments
made to Mr Kenton from February 2014 to August 2024. In my view, this
resolves the issue.
[20] The second point relied on by the respondents is that CBS has waived any
rights it may have had, as it allowed Mr Kenton to be in the employ of a
competitor.
[21] In respect of Fusion, the argument is that as a new entrant in the market, it
cannot, at this stage, be regarded as a competitor. In addition, the
respondents contend that the relief sought against Fusion cannot be
granted, as it flows from an interdict against Mr Kenton, who did not provide
any confidential information to Fusion, and therefore no breach has been
committed by either of the respondents. In this regard, Mr Warryn Mudde
(Mr Mudde), a director of Fusion , avers that it was not h e who facilitated
the relationship between Fusion and SMH. To this end, Mr Mudde provides
a letter from SMH to the effect that SMH was referred to Fusion by one Mr
Wayne McLaren.
Urgency
[22] The key consideration in determining urgency is whether the applicant will
be afforded substantial redress in due course. 2 The court in Mogalakwena,
which has been relied on by the respondents, held that if an applicant
cannot establish that it would not be afforded substantial redress in due
2 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others
(11/33767) [2011] ZAGPJHC 196 (23 September 2011).
course, the application cannot be urgent. Even on the strength of that
decision, once prejudice has been established, the other factors to be
considered include whether the respondents can adequately present their
case in the available time and any other prejudice to the administration of
justice, the strength of the applicant’s case and the delay by the applicant
in asserting his rights.
[23] I must say that I could not find any reference in Mogalakwena to the effect
that factors extrinsic to the issue at hand should be considered. The factors
to be taken into account, as identified by the court in that judgment, are in
no way extr aneous to the papers. Neither is the observation by the court
capable of the interpretation assigned by the respondents.
[24] The applicant’s case is that Mr Kenton has breached the restraint
provisions, and it is prejudiced by this conduct, which prejudice is ongoing.
What is relevant at that stage of the enquiry is whether the applicant would
suffer any prejudice if its case were found to have merit. In my view, none
of the authorities relied on by the respondents in this regard assists the
respondents. For the simple reason that the applicant states categorically
that the conduct of the respondents it seeks to restrain is his latest conduct
and not his employment by Page Automation . The applicant further states
that the conduct complained of came to their attention on 2 September 2025
and is ongoing.
[25] Even if the sentiments expressed by the respondents were correct, there
can be no suggestion that the applicant was dilatory in approaching the
urgent court. Should CBS’s assertions be later substantiated, there can be
no doubt that it would suffer prejudice if the matter is heard in the ordinary
course. On the contrary, no apparent prejudice would be suffered by Mr
Kenton, moreso, in view of his assertion that he has not shared any
information belonging to CBS. The applicant has thus satisfied the
requirements for urgency.
Discussion
[26] In terms of clause 16 (the confidentiality and restraint clause) of the
employment contract, Mr Kenton agreed that for 18 months following the
termination of his employment with CBS, regardless of the reason therefor,
he would not, either directly or indirectly, compete with CBS's business or
hold any interest in a competing company. This restriction applies
specifically to roles as an employee, consultant, or director in any entity
competing with CBS in the province of Gauteng.
[27] The conduct of the respondent is inconsistent with this provision. The recent
allegations by CBS that the respondents solicited their clients are separate
from Mr Kenton ’s earlier conduct in joining Page Automation, which CBS
condoned. The allegation that in so doing, CBS waived its rights is baseless.
Clause 19 of the employment contract stipulates that any latitude, extension
of time or other indulgence, or failure by CBS to enforce its rights in terms
of the agreement, shall not be deemed a waiver of those rights.
[28] It seems improbable that CBS’s customers leaving and joining Mr Kenton's
business when he founded his own was just a coincidence. His version
seems to suggest that t o be the case. It is not. It is also not correct that
CBS prevented Mr Kenton from earning a living, having allowed him to take
up employment with Page Automation and remain so employed to date ,
subject to the specific condition that he refrains from sharing CBS’s
confidential information with third parties.
[29] On the strength of Plascon- Evans3, the disputes of fact between the parties
can be resolved on Mr Kenton’s version, provided that his version is
plausible and believable. The fact that Mr Kenton denies having shared
CBS’s confidential information is implausible and does not exonerate him .
His version is ‘far-fetched, clearly untenable and palpably implausible.’
[30] I consider it necessary to deal with the relief sought by CBS against Fusion.
Fusion states that the relief sought is incompetent, presumably because
there is no contractual relationship between CBS and Fusion. This
3 Plascon- Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] (3) SA 623 (A).
contention overlooks that while a restraint of trade is primarily an agreement
between an employer and an employee, in this case, CBS and Mr Kenton,
the employer can enforce its rights to protect its confidential information
from being used to its detriment by a competitor or a third party. In Rawlins
and Another v Caravantruck (Pty) Ltd4, the Supreme Court of Appeal (SCA)
held that that an employer’s right to protect his trade connections arises
where an employee who “has access to customers and is in a position to
build up a particular relationship with the customers so that when he leaves
the employers service, he could easily induce the customers to follow him
to a new business.” This is precisely what Mr Kenton has done, in alliance
with Fusio n, a company he formed just for the purpose of soliciting
customers from CBS. The conduct of both Mr Kenton and Fusion is unlawful
and amounts to a breach of the restraint provisions in the case of Mr Kenton,
and unlawful use of confidential information in the case of Fusion.
[31] There was also the contention that because CBS dismissed Mr Kenton, the
restraint provisions cannot be enfor ced. This argument overlooks that the
employment agreement specified that the restraint of trade provisions
would apply regardless of the reason for termination.
[32] Laser Junction (Pty) Ltd v Fick5 relied on by the respondents, is not authority
4 1993 (1) SA 537 (A).
5 (6970/2017) [2017] ZAKZDHC 36; (2017) 38 ILJ 2675 (KZD) (28 September 2017).
for the propo sition that a restraint of trade cannot be enforced where an
employee has been promoted. In that judgment, which was concerned with
a transfer of employment in terms of section 197 of the Labour Relations
Act and whether a restraint of trade had been transferred with the business,
the court noted that the restraint of trade agreement was specific to the
respondent’s functions as a salesman. As such, the restraint fell away when
the respondent was promoted. This is not the only distinguishing feature of
that judgment. The second is that the court accepted the respondent’s
version that he concluded a new agreement with the applicant, the terms of
which included a confidentiality clause and no restraint of trade. In addition,
the court stated that in section 197 , transfer of employment, contracts of
employment taken over by a new employer may not include terms which are
unfavourable to the employee. In the present application , there is no
misunderstanding about the restraint of trade concluded between Mr
Kenton and CBS. If anything, Mr Kenton’s promotion to a senior position
within CBS exposed him to even more intricate and confidential information.
The only prejudice in those circumstances would be against CBS.
[33] There can be no doubt that the applicant has a clear right and a legitimate
interest, worthy of protection. In the circumstances, the applicant has made
out a proper case for the relief sought.
[34] Consequently, I make the following order:
a. The applicant’s non -compliance with the rules and directives of the
above Honourable Court is condoned, and this application is heard as
one of urgency in terms of Rule 6(12).
b. The first respondent is interdicted and restrained until 8 February 2026,
being 18 months from the date of the termination of the first
respondent’s employment with the applicant, from:-
i. directly or indirectly competing with the business of the
applicant; or
ii. having any interest whatsoever, as an employee, a
consultant, a director of any concern , save for Page
Automation, which competes with the business of CBS , in
the province of Gauteng.
c. The second respondent is interdicted and restrained until 8 February
2026, being 18 months from the date of the termination of the first
respondent’s employment with the applicant, from assisting, aiding or
abetting the first respondent in any manner whatsoever, in breaching the
terms of the restraint of trade agreement , in conflict with the order in
paragraph b. above.
d. The first and second respondents are interdicted and restrained from
directly or indirectly making use of, or disclosing, the applicant’s
confidential and proprietary information, including:
i. the applicant’s customer base;
ii. the applicant’s product base;
iii. the intricate and confidential details in relation to the
customer contracts/contact persons , as well as the terms
of such contracts and the trade secrets of the applicant.
e. The second respondent is interdicted and restrained from unlawfully
competing with the applicant using the information and details referred
to in paragraph d. above.
f. The first and second respondents are ordered to return, deliver up or
destroy all of the information and ma terials referred to in paragraph 4
above and provide confirmation thereof within 48 (forty-eight) hours to
the applicant's attorney.
g. Th e respondents are ordered to pay the costs of this application on an
attorney and client scale, jointly and severally, the one paying the other
to be absolved.
Appearances
For the applicant:
For the respondent:
Date of hearing:
Date of judgm ent:
S M fenyana
Judge of the High Cou rt
Johannesburg
Adv. I L Posthumus instructed by Sim
Attorneys
annikes@simattorneys.co.za
Adv. T Moloi instructed by MAA
Incorporated Attorneys
kmotshwane@maa-inc.co.za
tmotshwane@maa- i nc. co .za
07 October 2025
20 October 2025