IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable/Not Reportable
Case no: 136876/25
In the matter between:
PIETER MARITZ APPELLANT
and
TRUWORTHS LIMITED RESPONDENT
Neutral citation: Maritz v Truworths Ltd (Case no 136876/25) [2025] ZAWCHC
___ (30 October 2025)
Coram: MANGCU-LOCKWOOD J, LEKHULENI J and DAVIS AJ
Heard: 24 October 2025
Delivered: 30 October 2025
Summary: Appeal in terms of s 18(4)(a)(ii) against an order granted in terms of
s 18(3) of the Superior Courts Act 10 of 2013 - operation of interdict in restraint of
2
trade pending appeal - relationship between prospects of success on appeal and
exceptional circumstances requirement – restraint interdict overbroad –
implementation of order not permitted to extent that interdict overbroad – partial
implementation of enforcement order
ORDER
1. The appeal is upheld with costs, including the costs of two counsel payable
on scale C.
2. The order of the court a quo is set aside and replaced with the following
order:
‘a) The operation and execution of paragraph 1.3 of the order granted
under case number Case No 136876/25 on 28 August 2025 (‘the
restraint order’) shall not be suspended by any application for leave
to appeal or any appeal.
b) The order in paragraph 1.3 of the restraint order continues to be
operational and enforceable until the final determination of all
present and future leave to appeal applications and appeals in respect
of the application under Case No 136876/25.
c) The operation and execution of the orders in paragraphs 1.1 and 1.2
of the restraint order is suspended pending the final determination of
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all present and future leave to appeal applications and appeals in
respect of the application under Case No 136876/25.
d) Each party shall pay its own costs in the application in terms of
section 18(3) of the Superior Courts Act 10 of 2013.’
JUDGMENT
Davis AJ (Mangcu-Lockwood and Lekhuleni JJ concurring):
[1] This is an automatic appeal to the Full Court , in terms of section 18(4)(a)(ii)
of the Superior Courts Act 10 of 2013 (‘ the Act’), against an order granted
in terms of section 18(3) of the Act for the upliftment of the automatic
suspension of the operation of an order pending an appeal.
[2] On 28 August 2025, Higgins AJ granted an order in favour of the respondent
(‘Truworths’) to enforce a covenant in restraint of trade, in terms whereof
the appellant (‘ Maritz’) was interdicted and restrained for a period of 12
(twelve) months from ‘[a]ssuming employment with Tymebank Limited or
any holding, subsidiary or associated entities, or any other direct or indirect
competitor of [Truworths]…’ (‘the restraint order’).
[3] On 1 September 2025, Maritz applied for leave to appeal against the restraint
order. This had the effect of suspending the operation of the restraint order
4
in terms of section 18(1) of the Act . Truworths then applied in terms of
section 18(3) of the Act for an order uplifting the suspension of the restraint
order, which order was granted on 19 September 2025 (‘ the execution
order’).
[4] The execution order directs that:
‘a. The operation and execution of the restraint order granted on 28 August 2025
shall not be suspended pending the determination of [Maritz’s] application for
leave to appeal and any further appeal proceedings.
b. The restraint order shall remain in force and be executable until the final
determination of all present and future applications for leave to appeal and
appeals.
c. [Maritz] is to pay the costs of the application, including the costs of two counsel,
on scale C.’
[5] In this appeal, Maritz seeks to set aside the execution order . If the appeal is
successful, it will have the effect of reinstating the automatic suspension of
the restraint order pending the determination of the application for leave to
appeal against the restraint order.
The relevant legal principles
[6] Section 18 of the Act reads as follows in relevant part:
‘18. Suspension of decision pending appeal
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(1) Subject to subsections (2) and (3), and unless a court under exceptional
circumstances orders otherwise, the operation and execution of a decision
which is the subject of an application for leave to appeal or of an appeal, is
suspended pending the decision of the application or appeal.
(2) …
(3) A court may only order otherwise as contemplated in subsection (1) or (2),
if the party who applied to the court to order otherwise, in addition proves
on a balance of probabilities that he or she will suffer irreparable harm if
the court does not so order and that the other party will not suffer
irreparable harm if the court so orders.
(4) (a) If a court orders otherwise, as contemplated in subsection (1) –
(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the
next highest court;
(iii) the court hearing such an appeal must deal with it as a
matter of extreme urgency; and
(iv) such order will automatically be suspended , pending the
outcome of such appeal.
(b) …’
[7] The meaning and approach to the application of section 18 of the Act was
considered by the Supreme Court of Appeal (SCA) in University of the Free
State v Afriforum and Another (‘Afriforum’),1 Ntlemeza v Helen Suzman
Foundation and Another (‘Ntlemeza’),2 Johannesburg Society of Advocates
1 2018 (3) SA 428 (SCA).
2 2017 (5) SA 402 (SCA).
6
and Another v Nthai and Others (‘Nthai’),3 Premier for the Province of
Gauteng and Others v Democratic Alliance and Others ,4 Knoop NO and
Another v Gupta (Execution) (‘Knoop’),5 Zuma v Downer and Another,6 and
Tyte Security Services CC v Western Cape Provincial Government and
Others (‘Tyte’).7
[8] A number of principles may be distilled from these cases and summarised as
follows:
a. Subsections 18(1) and (3) proceed from the common law premise that
the norm is that a judgment and its attendant orders are suspended
pending an appeal, and that the implementation of orders pending an
appeal constitutes an extraordinary deviation from the norm. Such
relief can only be granted ‘under exceptional circumstances’.8
b. Section 18 does not purport merely to codify the common law; it
introduces more onerous requirements.9 Apart from the requirement of
exceptional circumstances, an a pplicant is required ‘in addition’ to
prove on a balance or probabilities that he or she ‘will’ suffer
irreparable harm if the execution order is not made, and that the other
3 2021 (2) SA 343 (SCA).
4 [2021] 1 All SA 60 (SCA); [2020] ZASCA 136 (27 October 2020).
5 2021 (3) SA 135 (SCA).
6 2024 (2) SA 356 (SCA).
7 2024 (6) SA 175 (SCA).
8 Afriforum (supra) para 9.
9 Afriforum supra) paras 10 and 11.
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party ‘will not’ suffer irreparable harm if the execution order is
made.10
c. The concept of ‘exceptional circumstances’ is sufficiently flexible to
be considered on a case -by-case basis.11 It is undesirable to attempt to
lay down any general rule in respect of exceptional circumstances,
and each case must be considered on its own facts.12
d. What is ordinarily contemplated by the words ‘exceptional
circumstances’ is something out of the ordinary and of an unusual
nature, something which is excepted in the sense that the general rule
does not apply to it; something uncommon, rare or different.13
e. The existence or otherwise of exceptional circumstances is a question
of fact, not a matter of judicial discretion.14
f. The existence of ‘exceptional circumstances’ is a necessary
precondition, or jurisdictional requirement, for the exercise of the
court’s discretion under s 18. If the circumstances are not truly
exceptional, the application must fail.15
10 Afriforum (supra) para 10.
11 Premier for the Province of Gauteng and Others v Democratic Alliance and Others (supra) para 14.
12 Tyte (supra) para 12.
13 Premier for the Province of Gauteng and Others v Democratic Alliance and Others (supra) para 14 ,
referring to MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas and Another 2002 (6) SA
150 (C) at 156I – 157C. (See, too, Tyte (supra) para 12.)
14 Ibid. (See, too, Afriforum para 13.)
15 Tyte (supra) para 11.
8
g. The three enquiries posited in subsections 18(1) and (3) , namely the
existence or otherwise of exceptional circumstances and the presence
and absence of irreparable harm to the parties , should not be
approached as a box -ticking exercise in a compartmentalised fashion .
A holistic approach is required, the overarching enquiry being
whether or not there are exceptional circumstances.16
h. The presence or absence of irreparable harm cannot be divorced from
the exceptional circumstances enquiry. The need to establish
exceptional circumstances is likely to be closely linked to the
requirement that an applicant show that he or she will suffer
irreparable harm if the order is not implemented immediately, and ,
concomitantly, that the respondent will not suffer irreparable harm if
the order is implemented immediately .17 The two harms may be
understood as two sides of the same coin ; the same facts inform both
enquiries.18
i. Section 18(3) casts an onus on the applicant, which requires proving a
negative, viz the absence of irreparable harm to the respondent.
However, a respondent may attract an evidentiary burden where the
facts are peculiarly within his or her knowledge.19
j. A court seized with an application in terms of s 18(3) retains a
discretion whether or not to grant an order. This allows for a
16 Tyte (supra) paras 10 and 14.
17 Tyte (supra) para 13.
18 Tyte (supra) para 15.
19 Tyte (supra) para 15.
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weighing-up of the respective harm to the parties. The mere presence
of some irreparable harm to a respondent, irrespective of its nature
and extent, and regardless of how slight or inconsequential, or that it
is significantly outweighed by that of an applicant, cannot non-suit an
applicant.20
k. The prospects of success in the pending appeal are relevant to the
exceptional circumstances enquiry. The less sanguine a court seized
with a section 18(3) application is about the prospects of the judgment
at first instance being upheld on appeal, the less inclined it will be to
grant the exceptional remedy of execution of that judgment pending
the appeal.21
The grounds of appeal
[9] In the heads of argument filed on behalf of Maritz, and in argument before
us, it was contended that the requirements of s 18(3) had not been met in that
Truworths had failed to show a) that the circumstances were exceptional; b)
that it would suffer irreparable harm in the absence of an enforcement order,
and c) that Maritz would not suffer irreparable harm by virtue of an
enforcement order.
[10] Mr Cockrell, who with Ms Scheepers appeared for Maritz, argued that the
appeal against the restraint order enjoys good prospects of success because
the restraint order was incompetent in that it went further than the wording
20 Tyte (supra) paras 16 to 18.
21 Afriforum (supra) paras 14 and 15.
10
of the restraint covenant, and was not anticipated by the contents of the
founding affidavit in the interdict application. He contended that the restraint
order should not have been asked for, or granted, in the terms in which it
was worded.
[11] Mr Cockrell further contended that, if it was accepted that the restraint order
was overbroad and incompetent, the point was dispositive of the s
18(4)(a)(ii) appeal because it meant that the strong prospects of success on
appeal militate d against a finding that there are exceptional circumstances
favouring the implementation of the restraint order pending the appeal.
[12] This brings me to the question of whether or not the restraint order is
incompetent.
Is the restraint order incompetent?
[13] In the restraint agreement, a ‘restrained business’ is defined as:
‘…any business which is the same as, or materially similar to or competitive with any
business conducted by Truworths (“the Competitive Business”) or the business of any
supplier who supplies goods and services to a competitor or competitors of Truworths.
Without limiting the generality of the aforegoing, the Competitive Business shall be
deemed to include any organiz sation, undertaking or business which is a retailer of
clothing and footwear and related accessories and/or jewellery and/or homewares.
Furthermore, and again with out limiting the generality of the description of “restrained
business” above, the Competitive Business shall be deemed to include any
organization, undertaking or business which is the same as, or materially similar to or
competitive with any specialist business unit or department of Truworths (in existence
11
or to be formed) conducted and operated to offer specialist services to the broader
spectrum and which business units or departments are dependent on the speciality
experience and input of the Restrainee through his/her employment with Truworths. Each
facet of this definition shall, for purposes of enforcing this restraint or otherwise, be
regarded as severable.’
[Emphasis added]
[14] Also pertinent is clause 4.1 of the restraint agreement, which reads as
follows in relevant part:
‘4.1 …The Restrainee hereby undertakes to and in favour of Truworths that:
4.1.1 he/ she shall not, throughout the period of his/her employment with
Truworths and for a period of 12 (twelve) months with effect from the
Termination Date, and anywhere within the Territory, directly or
indirectly:
4.1.1.1 carry on; or
4.1.1.2 be engaged or concerned or interested in or employed by ;
or
4.1.1.3 solicit business for; or
4.1.1.4 be a proprietor or partner or, or a director, shareholder or
member in; or
4.1.1.5 act as a consultant, trustee, manager, employee, agent,
administrator, representative, assignee, partner, advisor,
officer or in any other like capacity to; or
4.1.1.6 render any services (gratuitously or otherwise) to; or
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4.1.1.7 lend or advance, or bind himself as surety for, any sum of
money or assist financially,
any business, company, close corporation, partnership, trust, person,
body corporate, juristic person , association or other legal or business
entity (incorporated or unincorporated) which in any manner whatsoever
(wholly or partly) carries on the Restrained Business.’
[Emphasis added]
[15] If the provisions of clause 4.1 are read with the definition of ‘restrained
business’, it appears that Maritz essentially bound himself for a period of 12
(twelve) months not to be employed by, or in any way involved with, any
business which is the same as, or materially similar to or competitive with
any business conducted by Truworths , including the business of any
specialist business unit or department of Truworths.
[16] The latter aspect of the definition of restrained business is significant. It was
common cause that in -house credit counts for over 70% of Truworths’ total
sales and that Truworths has a highly skilled credit -analytics department,
which is integral to the success and sustainability of it retail business. Before
the termination of his employment with Truworths, Maritz held the position
of Executive: Risk & Analytics, one of the two most senior executives in the
credit analytics department . He ha d been instru mental in the development
and rollout of ‘Pay3’, a ‘buy -now-pay-later’ (BNPL) product aimed at
customers who are new to credit or are considered higher risk. One can
therefore accept that the provision of in -house consumer credit for purposes
of retail purchases constitutes a specialist business unit or department within
Truworths.
13
[17] The restraint agreement targets business activities which are the same as, or
materially similar to or competitive with any business activities conducted
by Truworths (ie, competitive activities), and persons or entities engaged in
competitive activities (ie, competitors). One does not find a stipulation in the
restraint agreement that Maritz is precluded from being employed by or
involved with any holding or subsidiary company or associated entity of a
competitor of Truworths. It is clear that the prohibition in clause 4.1 is
limited to persons or entities which carry on the restrained business
themselves, ie., to competitors of Truworths. The restraint agreement does
not cover employment with persons or entities which do not themselves
engage in competitive activities, and are merely related to, or associated
with, a competitor of Truworths.
[18] As mentioned above, the restraint order, which followed the wording of the
Notice of Motion in the interdict application, interdicted Maritz from:
‘… assuming employment with Tymebank Limited or any holding, subsidiary or
associated entities , or any other direct or indirect competitor of [Truworths] as
envisaged in the restraint of trade agreement concluded by the respondent on 15 January
2015.’
[Emphasis added]
[19] In the interdict application, Truworths’ case in the founding affidavit was
that Maritz would be employed by TymeBank Limited (‘TymeBank’). It
was alleged that TymeBank was a competitor of Truworths, because it had
its own BNPL product called ‘ MoreTyme’ which compete s directly with
Truworths’ Pay3 product, and because it ha s strategic partnerships with The
14
Foschini Group (TFG) and Pick ’n Pay, both of which retail clothing in
competition with Truworths.
[20] In the answering affidavit, Maritz denied that he would be employed by
TymeBank. He alleged that he would be employed by Tyme Pte Limited
(‘Tyme Pte ’)22 in the role of Head of Merchant Cash Advance (MCA)
Analytics.
[21] Maritz also pertinently denied that his employment with Tyme Pte would
breach the restraint agreement. He alleged , inter alia , that there were
material differences between Truworths and Tyme Pte which showed that
the two entities did not operate in competition with one another, including :
the fact that Truworths offers retail credit linked to the purchase of clothing
and other goods in Truworths stores, whereas Tyme Pte offers SME (Small
and Medium -sized Enterprize) financing, business banking and fintech -
driven lending solutions unrelated to retail clothing credit ; and Truworths
operates in South Africa and some neighbouring countries, based on a store -
based retail model, whereas Tyme Pte operates as a multi -country digital
banking and financing group, focusing on emerging markets, with its home
base in Singapore.
[22] It can be accepted, in my view, that the employment of Maritz by TymeBank
would fall within the ambit of the restraint agreement, by virtue of a) the
22 In the answering affidavit in the interdict application, Maritz defined Tyme Pte Limited as ‘the Tyme
Group’. This led to confusion with the group or association of related companies of which TymeBank
Limited and Tyme Pte Limited form part, also referred to as ‘the Tyme Group’. Read correctly,
however, Maritz’s references to ‘the Tyme Group’ in the answering affidavit should be understood as
references to Tyme Pte Limited.
15
direct competition between TymeBank’s ‘MoreTyme’ and Truworths’
‘Pay3’ products, and b) the fact that TymeBank supplies BNPL goods and
services to TFG and Pick ’n Pay, who are competitors of Truworths.23
[23] However, it seems to me that Truworths, on whom the onus rested, made out
no case in the founding affidavit that Tyme Pte is a competitor of Truworths.
The version put up by Maritz in the answering affidavit suggests that
Truworths and Tyme Pte ‘ fish in different ponds ’ when it comes to the
provision of credit: Truworths provides credit to individual retail customers,
whereas Tyme Pte provides financing to businesses.
[24] I agree with the submission by Mr Cockrell that there is a disconnect
between the wording of the restraint agreement and the wording of the
notice of motion to the extent that the notice of motion sought an order
restraining Maritz from assuming employment with ‘ any holding, subsidiary
or associated entities ’ of TymeBank Limited , regardless of whether or not
such associated entities are in fact competitors of Truworths. As Mr Cockrell
put it, the order was so broadly worded as to prohibit employment with a
catering company within the Tyme group of companies, notwithstanding the
obvious lack of any competition with Truworths.
[25] Mr Sholto-Douglas, who with Ms Maddison appeared for Truworths, argued
that the restraint order was worded so as to meet the exigencies of the case
where Truworths did not know whether Maritz would be employed with
TymeBank or another entity within the Tyme group of companies. That, to
23 Also included in the definition of ‘restrained business’ is ‘the business of any supplier who supplies
goods and services to a competitor or competitors of Truworths.’
16
my mind, is no answer. A loophole in the restraint of trade agreement cannot
be cured by judicial invention. Since the restraint agreement does not
preclude employment with an entity merely by virtue of its association with
a competitor of Truworths, if that entity itself is not a competitor of
Truworths, there was no basis for the broad wording of the restraint order.
[26] I consider that, by granting an order in these terms, Higgins AJ granted an
order that was not anticipated or justified by the contents of the founding
affidavit.
[27] I am accordingly of the view that the restraint order was incompetent to the
extent that it precluded Maritz from assuming employment with Tyme Pte in
circumstances where Tyme Pte has not been shown to be a competitor of
Truworths, and such employment therefore does not fall within the ambit of
the restraint agreement.
[28] In my judgment, an appeal against the restraint order would enjoy good
prospects of success inasmuch as I consider it likely that an appellate court
would, in the exercise of its power under s 19(d) of the Act, amend the
restraint order by deleting the reference to employment with any holding,
subsidiary or associated entities’ of TymeBank Limited.
The relationship between exceptional circumstances and prospects of success on
appeal
[29] For the reasons already mentioned, I am of the view that the contemplated
appeal against the restraint order would enjoy good prospects of success, at
17
least to the extent that the restraint order precludes employment with any
holding or subsidiary of TymeBank, or any entities associated with
TymeBank.
[30] In his judgment in the section 18(3) application, Higgins AJ downplayed the
prospects of success on appeal. He held that prospects of success, while
relevant, do not outweigh the exceptional circumstances created by the
effective forfeiture of Truworths’ relief because the restraint will expire
before the exhaustion of the appeal process . In this regard, the learned
Acting Judge evidently aligned himself with the views expressed by
Sutherland, J in Incubeta Holdings (Pty) Ltd and Another v Ellis and
Another(‘Incubeta’)24 that, ‘the predicament of being left with no relief,
regardless of the outcome of an appeal, constitutes exceptional
circumstances which warrant a consideration of putting the order into
operation. The forfeiture of substantive relief because of procedural delays,
even if not protracted in bad faith by a litigant, ought to be sufficient to
cross the threshold of “exceptional circumstances”.’ 25
[31] It is a problem specific to restraint of trade orders that, given the generally
short duration of the restraint period, the restraint will expire before the
appeal is heard. As a result, the relief under a restraint order will effectively
be forfeited, regardless of the outcome of an appeal, unless the restraint
order is put into operation immediately, pending the appeal.26
24 2014 (3) SA 189 (GJ).
25 Incubeta (supra) para 27.
26 Incubeta (supra) at 196 D.
18
[32] In my view, care should be taken not to regard the short duration of restraint
of trade orders as an invariable indication of exceptional circumstances
warranting the implementation of the restraint order pending an appeal
against the order. As I understand the judgment in Incubeta, Sutherland, J
did not purport to lay down a general rule in this regard. As the learned
Judge stated, exceptionality must be fact -specific, and [t]he circumstances
which are or may be “exceptional” must be derived from the actual
predicaments in which the given litigants find themselves.’ 27 It should also
be borne in mind that Sutherland, J did not regard the question of prospects
of success on appeal as a relevant consideration – an approach which has not
been endorsed by the SCA.
[33] In Afriforum, the SCA confirmed that the prospects of success on appeal are
relevant to the enquiry into the existence or otherwise of exceptional
circumstances.28 The prospects of success on appeal will inevitably vary
from case to case. At one end of the spectrum, a proposed appeal may be
clearly vexatious, enjoying no prospects of success whatsoever. At the other
end of the spectrum, success on appeal may be a racing certainty. It seems to
me that, at either end of the spectrum, where the prospects of success may be
assessed with relative ease and accuracy , strong or weak prospects of
success must weigh heavily in the exceptional circumstances enquiry, and
the choice of the court whether or not to implement the judgment pending
appeal will be clear-cut.
27 Incubeta (supra) para 22.
28 Afriforum (supra) paras 14 and 15.
19
[34] In between the two ends of the spectrum, however, where the prospects of
success on appeal are uncertain and cannot be gauged without an in-depth
engagement with the merits which anticipates the work of the appeal court,
the prospects of success on appeal will, perforce, carry less weight in the
exceptional circumstances enquiry , which will focus more on the presence
and absence of irreparable harm to the parties.
[35] In fairness to Higgins AJ, the learned Judge was not confronted in the
section 18(3) application with the legal point that the restraint order was
incompetent, as the point was argued for the first time before us.
Nevertheless, I am of the view that he misdirected himself by
overemphasising the potential forfeiture of the restraint remedy and failing
to have due regard to the question of the prospects of success on appeal.
Irreparable harm
[36] In the answering affidavit in the interdict application, Maritz stated that he
would be employed by Tyme Pte. In accordance with the rule in Plascon -
Evans,29 his version must prevail, as, in my judgment, it is not so inherently
implausible as to warrant its rejection merely on the papers.
[37] In the answering affidavit in the section 18(3) application, Maritz alleges
that he took up employment with Tyme Pte on 2 September 2025. While
Truworths expresses doubts about the credibility of his version, it is not able
to offer evidence which contradicts it. In my view, it can be accepted on a
balance of probabilities, as disclosed in the papers in the section 18(3)
29 Plascon-Evans Paints (Tvl) Ltd v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 620 (A).
20
application, that Maritz is now employed by Tyme Pte, and not by Tyme
Bank.
[38] If one accepts, as I do, that the restraint order was overbroad and should not
have included a prohibition on Maritz being employed by any holding or
subsidiary company of TymeBank, or any entities associated with
TymeBank, that view necessarily informs the enquiry into irreparable harm.
[39] If the order which precludes Maritz from being employed by Tyme Pte is
incompetent and should not have been sought or granted, it must follow that
Truworths cannot suffer any irreparable harm if it is precluded from
implementing immediately an order to which it was not entitled in the first
place.
[40] Moreover, since there is no indication in the papers that Tyme Pte competes
with Truworths – they ‘fish in different ponds’ – Truworths does not stand to
suffer any harm if Maritz continues in his employment with Tyme Pte
pending the contemplated appeal.
[41] On the other hand, Maritz stands to suffer real prejudice if the restraint
order, in its current overbroad form , is put into effect immediately, as this
will have the conseq uence that his employment with Tyme Pte will be
terminated. H e will be forced to seek alternative employment, which he
alleges will take some time to find, during which he will be without income
and the medical aid cover required to fund his ill son’s expensive medical
treatment.
21
[42] On the day before the hearing of this appeal, Truworths made a tender to pay
any damages which Maritz may be able to prove i f the restraint order is set
aside on appeal. Mr Sholto -Douglas contended that this tender meant that
Maritz would not suffer any irreparable harm if the restraint order were to be
implemented at once.
[43] I am not persuaded that the tender to pay damages cures all the prejudice
which Maritz stands to suffer if his employment with Tyme Pte is terminated
as a result of the execution order. Much of the harm referred to by Maritz in
his answering affidavit in the section 18(3) application is such that it cannot
readily be quantified in monetary terms. No price can be put on the
inevitable stress and anxiety which would accompany an immediate loss of
income and medical aid benefits pending a search for new employme nt,
particularly given the medical needs of Maritz’s son. Nor can one readily
quantify the prejudice arising from a period of interruption in employment in
the fast-evolving field of finance and technology.
[44] In my judgment, the probabilities are that Truworths will not suffer
irreparable harm if the restraint order is not implemented pending the
proposed appeal, whereas Maritz will suffer irreparable harm of a type not
curable by a claim for damages if the restraint order is implemented at once.
What weighs particularly heavily with me is the inherent unfairness of
subjecting Maritz to an order which has profound negative consequences for
him, if the order is incompetent and should not have been granted.
[45] I therefore conclude that Truworths has not established the existence of
exceptional circumstances which warrant the immediate implementation of
22
the restraint order. On the contrary, I consider that, due to what I regard as
strong prospects of success on appeal in regard to the objectional part of the
restraint order , fairness dictates that the default position be maintained,
namely that the operation of the restraint order is suspended pending an
appeal.
Should the restraint order be partially implemented?
[46] The fact that an appeal court will , in my view, likely overturn part of the
restraint order is not necessarily dispositive of this appeal , as the question
arises whether the restraint order should be partially implemented pending
an appeal. This court, sitting as an appellate court in the section 18(4)(a)(ii)
appeal, has the power in terms of s 19(d) of the Act to vary the order granted
by Higgins AJ in the s 18(3) application.
[47] The restraint order has three parts:
a. In terms of paragraph 1.1, Maritz is interdicted from assuming
employment with TymeBank Limited or any holding, subsidiary or
associated entities, or any other direct or indirect competitor of
Truworths.
b. In terms of paragraph 1.2, Maritz is essentially interdicted from being
involved in any way with an entity which carries on the ‘restrained
business’, ie, with a competitor of Truworths.
c. In terms of paragraph 1.3, Maritz is interdicted, at any time after the
termination of his employment with Truworths, from himself utilising,
23
divulging or disclosing to any other person any of the trade secrets
and know-how of Truworths, as defined in clause 3.1.4 of the restraint
agreement.
[48] The question, then, is whether any of the provisions of the restraint order
should be implemented pending the appeal, shorn of any reference to ‘ any
holding, subsidiary or associated entities.’
[49] Since the prospects of success on appeal in regard to the order in respect of
TymeBank are not as clear-cut as the prospects of success in relation to the
order in respect of employment within the broader Tyme group of
companies, this question to my mind falls to be answered with reference to
the question of irreparable harm.
[50] As I have already mentioned, Maritz stated in the section 18(3) application,
and it can be accepted in my view, that he is now employed by Tyme Pte.
[51] That being the case, it seems to me that the probabilities are that Truworths
will not suffer any irreparable harm if paragraph 1.1 of the restraint order is
not immediately implemented with reference to TymeBank and/or any other
competitor of Truworths, as Maritz is in fact employed by Tyme Pte, and not
by TymeBank.
[52] For the same reason, I consider that the probabilities are that Truworths will
not suffer any irreparable harm if paragraph 1.2 of the restraint order (which
prohibits any involvement with a competitor of Truworths) is not
24
implemented, as Maritz is employed by Tyme Pte, which has not been
shown to be a competitor of Truworths.
[53] Paragraph 1.3 of the restraint order, however, stands on a different footing.
In terms of paragraph 1.3, Maritz is precluded from using or divulging any
trade-secrets and know -how of Truworths , as defined in the restraint
agreement.
[54] It was common cause in the interdict application that Maritz has knowledge
of confidential trade -secrets and know -how by virtue of his employment
with Truworths. It was also common cause in the interdict application, and
the position has not changed in the section 18(3) application, that Maritz
would be physically based in the offices of TymeBank in Cape Town,
regardless of the fact that he is employed by Tyme Pte.
[55] Maritz gave an undertaking to Truworths on the record that he will not
disclose, whether directly or indirectly, any confidential or proprietary
information belonging to Truworths, to Tyme Pte, Tyme Bank or any other
entity or person outside of Truworths. However, Truworths is not obliged to
be content with an undertaking on the part of Maritz not to breach the
restraint agreement by divulging confidential information.30
[56] In my view, given the fact that Maritz will be working from the offices of
TymeBank, his physical proximity with employees of TymeBank gives rise
to an inherent and increased risk of disclosure of confidential information to
TymeBank. There is, therefore, the potential of irreparable harm to
30 Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA) at 500 A – D.
25
Truworths as a result of the disclosure of confidential information, if the
order in paragraph 1.3 of the restraint order is not implemented immediately.
[57] On the other hand, there can be no harm at all to Maritz if the order in
paragraph 1.3 of the restraint order is implemented immediately, as the order
merely serves to enforce Maritz’s o bligation in terms of the restraint
agreement, and is consistent with the terms of the undertaking given by
Maritz to Truworths . Maritz c ould hardly be heard to complain of
irreparable harm if he is ordered to do what he himself has undertaken to do.
[58] In my view , the particular circumstance of this case – specifically, Maritz’s
close physical proximity to TymeBank employees with the attendant risk of
disclosure of confidential information which would cause irreparable harm
to Truworths, and the concomitant absence of any harm to Maritz – amount
to exceptional circumstances warranting the immediate implementation of
the order in paragraph 1.3 of the restraint order.
[59] It follows that, in my view, the order of Higgins AJ falls to be amended to
allow for the immediate implementation of paragraph 1.3 only of the
restraint order.
Attempt to regulate the position pending further appeal processes
[60] It remains only to deal with a further argument advanced by Mr Cockrell
that the order granted by Higgins AJ in the section 18(3) application was
incompetent to the extent that it purported to regulate what happens in future
proceedings. In this regard:
26
a. Paragraph a) of the execution order provides that the restraint order
‘shall not be suspended pending the determination of the
Respondent’s application for leave to appeal and any further appeal
proceedings.’
b. Paragraph b) of the execution order provides that the restraint order
‘shall remain in force and be executable until the final determination
of all present and future applications for leave to appeal.’
[61] As I understood Mr Cockrell’s argument, paragraph b) of the execution
order was incompetent as Higgins AJ could not bind the discretion of a court
seized with possible future applications for leave to execute pending
possible future application for leave to appeal to the SCA and/or the CC.
[62] In addition, it was contended that Higgins AJ could not grant an order which
overrides the express provision in s 18(4) (a)(iv) that, where the court orders
otherwise as contemplated in s 18(1), any such any order is automatically
suspended pending the outcome of an appeal in terms of s 18(4) (a)(ii). In
other words, Higgins AJ could not grant an order to the effect that the
restraint order remains operative and executable pending the determination
of this appeal in terms of s 18(4)(a)(ii).
[63] To the extent that the wording of paragraph a) of the execution order is
arguably wide enough to include the present app eal proceedings, it is
incompetent.31 Properly construed, however, and b earing in mind the
31 Knoop (supra) paras 24 and 27 to 35.
27
provisions of section 18(4)(a)(iv) of which Higgins AJ was doubtless aware,
it seems to me that the order was not intended to include the present appeal
in the words ‘any further appeal proceedings.’
[64] As regards the objection that Higgins AJ could not dictate what happens in
future applications for leave to execute pending future applications for leave
to appeal, it seems to me that the complaint is misconceived. A similar
argument was rejected in Ntlemeza,32 where the SCA endorsed a pro-active
approach by a court seized with an application for an execution order , so as
to avoid ‘a multiplicity of applications ’ and a ‘ to-ing and fro -ing of
litigants.’33 Navsa JA approved wording similar to that in the execution
order, and stated in this regard that:
‘The high court reasonably apprehended on the evidence before it that further appeals
were in the offing and issued an order that sought not just to crystallize the position but
also to anticipate further appeal processes.’
[65] It would be most unsatisfactory, in my view, for courts to be faced with
successive applications for execution orders each time a new application for
leave to appeal is lodged. There can be no quibble with courts acting as
‘guardians of their own processes’34 to avoid a waste of judicial resources.
[66] There is accordingly no merit, in my view, in the contention that the
execution order was incompetent by virtue of the fact that it sought to
32 Ntlemeza (supra) paras 31 and 32.
33 Ibid.
34 Ntlemeza (supra) para 32
28
regulate the position pending all further applications for leave to appeal, and
any resultant appeal.
Costs
[67] For all the reasons set out above, I am of the view that the appeal must
succeed, and the order granted by Higgins AJ in the section 18(3)
application amended as set out hereunder.
[68] In my judgment, Maritz has achieved substantial success in this appeal, and
the costs ought to follow the result. I am mindful in this regard that
Truworths sought interdictory relief which, in my view, was overbroad and
incompetent, and, despite having been alerted to the fact, it has not
abandoned the unjustifiable part of the restraint order, but has instead sought
to defend the implementation of the execution order in its overly broad
terms.
[69] As regards the costs of the section 18(3) application itself, it seems to me
that the fairest course would be to order that each party pay its own costs in
the application, given the limited success achieved by Truworths relating to
the implementation of paragraph 1.3 only of the restraint order.
[70] I would therefore make the following order:
3. The appeal is upheld with costs, including the costs of two counsel
payable on scale C.
29
4. The order of the court a quo is set aside and replaced with the
following order:
‘a) The operation and execution of paragraph 1.3 of the order
granted under case number Case No 136876/25 on 28 August
2025 (‘ the restraint order ’) shall not be suspended by any
application for leave to appeal or any appeal.
b) The order in paragraph 1.3 of the restraint order continues to
be operational and enforceable until the final determination of
all present and future leave to appeal applications and appeals
in respect of the application under Case No 136876/25.
c) The operation and execution of the orders in paragraphs 1.1
and 1.2 of the restraint order is suspended pending the final
determination of all present and future leave to appeal
applications and appeals in respect of the application under
Case No 136876/25.
d) Each party shall pay its own costs in the application in terms
of section 18(3) of the Superior Courts Act 10 of 2013.’
_____________________________
D M DAVIS
ACTING JUDGE OF THE HIGH COURT
30
Mangcu-Lockwood J (concurring)
_____________________________
N MANGCU-LOCWOOD
JUDGE OF THE HIGH COURT
Lekhuleni J (concurring)
_____________________________
J D LEKHULENI
JUDGE OF THE HIGH COURT
31
Appearances
For appellant: A Cockrell SC with M Scheepers
Instructed by: Malatji & Co Attorneys, Sandton
For respondent: A R Sholto-Douglas SC with M Maddison
Instructed by: Ward Brink Attorneys, Cape Town