IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case No:2025-168949
In the matter between:
MARY JANE WALSH First Applicant
MATTHEW PIUS WALSH Second Applicant
MAINLINE CIVIL ENGINEERING
CONTRACTORS (PTY) LTD Third applicant
and
KUMESHIN SINAYAN First Respondent
TRENCHLESS TECHNOLOGIES (PTY) LTD Second Respondent
KS CIVIL ENGINEERING (PTY) LTD Third Respondent
Corum: LEKHULENI J
Heard: 07 October 2025
Delivered: Electronically on 07 November 2025
Summary: Restraint of trade – First respondent retrenched by the third applicant. The first
and second applicants buying back 15 per cent of the first respondent’s shares in the third
applicant. Buying -back agr eement incorporating a confidentiality and restraint of trade
clause. Applicants seeking an interdict to restrain the first respondent from being employed
by the second respondent. Restraint clause not triggered. Application dismissed.
JUDGMENT
LEKHULENI J:
Introduction
[1] The applicants seek final relief to enforce a contractual restraint of trade and
confidentiality undertakings given by the first respondent in favour of the third
applicant (‘Mainline’). The applicant s seek enforcement of the restraint until 2 2 May
2026 and throughout the Republic of South Africa. In addition, the applicants seek an
order interdicting the first respondent from being employed by or otherwise
associated with the second respondent until 22 May 2026. The applicants also seek
a declaratory order that the first respondent, Kumeshin, is in breach of the buy -back
agreement, which includes a restraint of trade clause. This agreement was entered
into between Kumeshin and the directors of Mainline on 22 May 2024.
[2] In terms of the buy-back agreement, the directors of Mainline, first and second
applicants, bought back 15 per cent of Kumeshin’s shares in Mainline. The buy-back
agreement incorporated a restraint of trade clause to the effect that Kumeshin will
not directly or indirectly and whether for his own account, or as a principal , compete
or associate with a company that competes with Mainline for a period of two years
from 22 May 2024. The applicants contend that Kumeshin breached this agreement
by being employed by the second respondent (Trenchless), a competitor of Mainline,
in contravention of the buy-back agreement.
Preliminary Point
[3] At the hearing of this matter, the applicants applied for the joinder of the third
respondent. The joinder application was premised on the grounds that in the
answering affidavit, Kumeshin stated that he is the sole director of KS Civil
Engineering (Pty) Ltd (‘KS Civil’). KS Civil entered into a service agreement with the
second respondent, Trenchless in April 2025, a competitor of Mainline. The
applicants asserted that the restraint provisions binding Kumeshin precluded him
from directly or indirectly being associated with a competitor of Mainline. The joinder
application was not opposed. The court determined that the relief requested by the
applicants against KS Civil involved the same questions of law and fact as those
pertaining to the relief sought agai nst Kumeshin. Having considered the application
and the pertinent issues that had to be decided, I decided to grant the applicants'
application for the joinder of KS Civil as the third respondent.
Material background facts
[4] Mainline is a civil engineering business established by the first applicant in
1994. It specialises in underground trenchless water and sewer pipe rehabilitation
and repair. Almost all of Mainline’s work is derived from government tenders.
Amongst its varied pipe rehabilitation services, Mainline offers two main types of pipe
rehabilitation and repair solutions: Spirally wound pipelining (‘SWP’) and cure -in-
place pipe lining (‘CIPP’). Both systems aim to rehabilitate degraded pipes by
inserting a high -density polyethylene lining or fibreglass with resin as a liner into a
damaged or degraded pipe.
[5] The first respondent, Kumeshin, obtained an engineering degree at the
University of Johannesburg in 2014 and became employed by Mainline as a junior
site manager in May 2015. He arrived at Mainline with no prior experience. In terms
of clause 14 of his employment contract, Kumeshin agreed that he would not during
the currency of his employment with Mainline, or at any time after the termination
thereof, directly or indirectly use or disclose to any person, firm or company any
information or secrets relating to processes used or developed by Mainline, which he
information or secrets relating to processes used or developed by Mainline, which he
acquired in the course of his employment with Mainline. In 2021, 15% of the shares
in Mainline were sold to Kumeshin for R270,000. This sale consisted of 8% from the
first respondent and 7% from the second respondent, both of whom are directors of
Mainline.
[6] The applicants asserted that, unfortunately, shortly thereafter, Kumeshin
developed a substance abuse problem. He attended rehab several times and further
received outpatient care. Mainline was sympathetic about Kumeshin’s drug addiction
and supported his attempts at recovery. However, he relapsed several times and
Mainline began to be prejudiced by hi s inability to recover fully. After a relapse in
September 2023, Mainline took the difficult decision to terminate Kumeshin’s
employment. During October 2023, Mainline and Kumeshin entered into a
termination agreement, pursuant to which Kumeshin’s employment was terminated,
and he received compensation accordingly.
[7] The parties thereafter negotiated the buy -back agreement of Kumeshin’s
shares in Mainline. According to the applicants, the negotiations were tough, and an
agreement regarding the buy-back of Kumeshin’s shares in Mainline by the first and
second applicants was concluded on 2 2 May 2024. In terms of the buy -back
agreement reac hed by the parties, the first and second applicants purchased
Kumeshin’s 15 per cent shares in Mainline for R6,260,132.00. In terms of the
agreement, R534 070, 00 of the purchase price would be held by Mainline’s auditors
as a retention to be held in trus t and paid with interest to Kumeshin if Mainline did
not within two years deliver a written notice to the auditors attaching a copy of a
court order recording Kumeshin’s breach of any of the provisions of the
confidentiality and/or restraint provisions in the agreement.
[8] The agreement also stipulated that the retention amount would be paid to
Mainline if it delivered a written notice to the auditors within two years, attaching a
copy of a court order that recorded Kumeshini’s breach of any of the confid entiality
and/or restraint provisions in the buy -back agreement. In the event that the retention
was not paid over to the auditors, Mainline accepted, however, that provided
was not paid over to the auditors, Mainline accepted, however, that provided
Kumeshin is not in breach of the confidentiality and restraint provisions of the
agreement, he is entitled to payment thereof, plus interest, as of 22 May 2026.
[9] The buy-back agreement incorporated both confidentiality and a restraint of
trade clause. In terms of the confidentiality clause, Kumeshin acknowledged, among
other things , that by virtue of his association with Mainline he had access to
commercially sensitive information and secrets not available in the ordinary course of
business to a competitor including : know-how, processes, techniques and designs,
knowledge of and influence over customers and business associate of Mainline; the
names of existing and prospective customers and their requirement s and details of
remuneration paid by Mainline to its employees and their respective duties. The
applicants contended that Kum eshin expressly undertook not to directly and
indirectly divulge Mainline’s confidential information.
[10] Furthermore, as to the restraint, Kumeshin agreed that Mainline had
protectable interests that required protection. The first relates to pricing. The
applicants stated that Kumeshin knows exactly how Mainline prices its work, and
particularly its tenders. According to the applicant, Kumeshin knows exactly what
Mainline’s operating costs are, and he knows what its profit margins are. Secondly,
and rel ated to tenders, Kumeshin has developed considerable experience in SWP
and CIPP work due to his eight years of employment with Mainline. This experience
is rare, and in the context of tenders, it is particularly significant. By taking all the
SWP and CIPP experience he has gained from Mainline to Trenchless, a competitor
of Mainline and a new employer or associate of Kumeshin, the latter provides
Trenchless with an unfair advantage because it is automatically more likely to submit
a responsive bid and to be able to score higher than before on functionality.
[11] That advantage, according to the applicants, is unfair to Mainline because it
has paid Kumeshin an enormous sum of money, in exchange, in part, for him not
joining a competitor like Trenchless for a period of two years . To this end, the
applicants asserted that Kumeshin undertook that he would not directly or indirectly
and whether for his own account or as a principal, agent, partner , or as
representative for a period of two years and anywhere in South Africa be interested
or engaged in any business that is competitive with or carries on a business similar
or engaged in any business that is competitive with or carries on a business similar
to Mainline business in particular those listed in annexure B to the buy-back
agreement including Trenchless.
[12] It was agreed between th e parties that should Kumeshin wish to take up
employment in any capacity with any of the parties listed in annexure B to the buy -
back agreement, he will seek Mainline’s permission, which would not, in respect of
the parties other than those marked with X, be unreasonably withheld. Mainline
would thus be entitled to refuse requests for permission in relation to the X list
without providing any reasons. According to the agreement, Kumeshin was not
entitled to be associated with those parties for a period of two years. The parties with
an X next to their names were parties who Kumeshin and Mainline agreed would
particularly benefit from the confidential information possessed by him.
The alleged breach of the buy-back agreement
[13] The applicants asserted that Kumeshin decided to breach the confidentiality
and restraint provision of the buy -back agreement by taking employment with
Trenchless. The applicants stated that they discovered this on 28 August 2025 when
one of Mainline’s employees came across a notice from the Langeberg Municipality
advertising temporary traffic and pedestrian disruptions in Robertson owing to water
pipeline rehabilitation work being undertaken by Trenchless. The Langeberg
Municipality’s Notice referred to Ku meshin as Trenchless’ Contracts Manager.
Trenchless is a direct competitor of Mainline, particularly in relation to tenders.
According to the applicants, Trenchless is a competitor for which Mainline requires
special protection, as agreed upon by both part ies in annexure B of the buy -back
agreement.
[14] Following the said discovery that Kumeshin is allegedly employed by
Trenchless, on 08 September 2025, Mainline’s attorneys addressed a letter to
Kumeshin and Trenchless, calling upon Kumeshin to provide an undertaking by 9
September 2025 that he will cease his employment with Trenchless, and the letter to
Trenchless served to inform it of Kumeshin’s alleged breaches. Kumeshin responded
to the said correspondence on 9 September 2025 in which, amongst others, he
denied being employed by Trenchless. On 11 September 2025, Trenchless’
attorneys addressed a letter to the applicant’s attorneys denying that Trenchless
employed Kumeshin.
[15] The applicants further stated that it may well be true that Trenchless does not
[15] The applicants further stated that it may well be true that Trenchless does not
employ Kumeshin – he may be a subcontractor, a consultant, or an agent. But he is
clearly associated with Trenchless in a manner prohibited by the buy -back
agreement, and these facts entitle the applicants to the relief sought in the Notice of
Motion. Moreover, the applicant s submitted that, in terms of the restraint provision,
Kumeshin may not be interested in, engaged in, concerned with, or associated with
any business that is competitive with or carries on a business similar to the Mainline
business.
[16] The applicants contended that Kumeshin is in breach of both the
confidentiality provision and the restraint provision . In this regard, the applicant s
asserted that they are entitled to an interdict pre venting Kumeshin from working for
Trenchless for the time remaining on his restraint, that is, until 22 May 2026.
[17] The applicants believed that they had demonstrated a clear right to this relief,
as well as the apprehended injury. In the applicants’ view, they do not have a suitable
alternative legal remedy. While they're entitled to keep their retention of R5 340 70,
00 referred to in paragraph above 7 in the event of Kumeshin’s breach, this is a
wholly insufficient remedy which does not in law serve to deprive the applicants of
their interdictory relief against either Kumeshin or Trenchless. The applicants
asserted that they are entitled to a declarator to the effect that Kumeshin is in breach
of the confidentiality and restraint provisions of his buy-back agreement.
[18] The applicants also averred that this matter is urgent, as they only discovered
Kumeshin’s employment or association with Trenchless on 28 August 2025, and took
immediate steps to consult with their attorneys. Letters were quickly dispatched, and
this application was delivered a few days after responses were received from
Kumeshin and Trenchless. The applicants believe that their rights must be protected
and that the relief sought should be granted as soon as possible. According to the
applicants, any delay will prejudice the applicants even further than they have
already been prejudiced.
The first respondent’s (Kumeshin) case
already been prejudiced.
The first respondent’s (Kumeshin) case
[19] Kumeshin opposed the application and challenged, among others, the
urgency with which it was brought. Kumeshin submitted that the applicants lack
sustainable grounds for having the matter heard on an urgent basis. First, Kumeshin
believes that the applicants’ truncation of the time periods is unreasonable. He
complained that the application was launched under Rule 6(12) of the Uniform Rules
on 18 September 2025 and served on him later that same day. In terms of the Notice
of Motion, he was directed to give notice of intention to oppose by 22 September
2025 and deliver his answering affidavit on 26 September 2025. T his left him with
just over a week within which to appoint and consult with his legal representative s
and have them prepare his answering affidavit. Kumshin denied that this gives the
respondents sufficient and proper time to prepare their papers.
[20] Secondly, Kumeshin asserted that the weakness of the applicants’ case
mitigates against an urgent hearing. Kumeshin contends that the applicant’s claims
are speculative and based on a mistaken assumption that it has not done due
diligence on. On the merits of the matter, Kumeshin stated that he is a qualified civil
engineer with a degree in engineering from the University of Johannesburg. He
confirmed that Mainline employed him in May 2015. In August 2016, the first and
second applicants offered him a 15 per cent membership interest in Mainline due to
his business acumen and ability to run the business independently of them. He
purchased his 15 per cent membership interest for R270 000, which was based on
the fair value of such shares at a 10 per cent discoun t. Between 2015 and 2017,
Mainline operated at a net loss. Despite Mainline running at a loss, throughout 2015
and 2017, he became responsible for running Mainline operations, as the first and
second applicants were retired and not Mainline employees. Thei r contribution to the
business was mainly financial.
[21] After 2018, Mainline began making a profit and growing its operations.
According to Komeshin, the applicants have received a substantial benefit from the
efforts that he made. Kumeshin acknowledge d that at one stage he voluntarily
efforts that he made. Kumeshin acknowledge d that at one stage he voluntarily
attended the rehabilitation program for substance abuse; however, he denied that it
impacted upon the performance of his duties with Mainline. Kumeshin believes that
the applicants have exaggerated the issue into being th e cause of their decision to
terminate his employment. According to him, the true circumstances for his
retrenchment were that there had been discussions regarding a proposed buyout of
the first and second applicants’ membership interests from Mainline by him and his
colleague, Mr Spreckley.
[22] When he decided against being involved with this, it led to personal issues
and a falling out between them. On 5 September 2023, he was served with a section
189(3) retrenchment notice in terms of the Labour Rela tions Act 66 of 1995. On 11
October 2023, he signed a settlement agreement regarding the termination of his
employment with Mainline based on operational requirements. At that point, he was
still a member of Mainline, despite the other members trying to fo rce him to sell his
membership interest. He believed his retrenchment was a means to drive him out of
Mainline cheaply, but he refused to sell his equity for less than fair value. Kumeshin
maintained a 15% membership interest in Mainline until 22 May 2024, when the buy-
back of his shares agreement was concluded. Up until May 2024, he made multiple
requests to the first and second respondents to provide him with Mainline’s most
recent financial records.
[23] Although the applicant s accepted that h e was entitled to Mainlaine’s
accounting records, this ultimately did not happen, which prevented him from making
an accurate valuation of his equity. Due to not having access to the most recent
Mainline’s financial records, he was unable to estimate a mor e updated value, nor
could he dispute the value of the applicants’ buy -back offer of R6,260,132. 00, which
was presented as a take -it-or-leave-it offer. Due to financial constraints, he faced at
the time, he had no choice but to accept the applicant's offe r and, on 22 May 2024,
he signed the buy-back agreement annexed to the applicant’s funding affidavit.
[24] Since his retrenchment in October 2023, he received several offers of
employment from Mainline’s competitors, who offered him a similar salary to what he
was receiving at Mainline. He did not want to breach the restraint agreement and
declined such offers. After concluding the buy -back agreement, he got married in
June 2024. Given that he had not been working since October 2023, he had to
June 2024. Given that he had not been working since October 2023, he had to
carefully consider his options for earning a living to sustain his family while having
the restraint clause hanging over his head. He asserted that he does not come from
wealth, nor does he have exorbitant amounts of money, which would enable him to
sit at home and no t earn a living. After some thought, he decided to use the funds
from the sale of his membership interest to purchase equipment and pay off debt, so
that he could start his own independent business, of hiring out equipment and
providing labour.
[25] In July 2024, he registered KS Civil , the third respondent, as a company
under his directorship. KS Civil’s ordinary course of business involves supplying
plant, equipment, and labour to other businesses. It does not perform specialist
rehabilitation services , nor does it have specialist equipment. It simply provides
general plant equipment and labour. It also does not qualify for the tenders which
Mainline tenders on. KS Civil employs approximately 40 staff members and owns
plant and equipment, including TLBs , tipper trucks, dumpers, rollers, trailers, and a
generator.
[26] Kumeshin asserted that KS Civil and Trenchless entered into a service
provider agreement in April 2025 specifically for the supply of equipment and labour
to its business. The agreement i s a standard service provider arrangement which
specifies that KS Civil will render support services, specifically the hire of plant and
equipment, provision of labour, and related logistical assistance. According to
Komeshin, the scope of work and respons ibilities does not extend to any services
provided by Mainline nor to any of its trade secrets described in the buy -back
agreement. However, this agreement with Trenchless may sometimes require him to
attend a site solely to manage his own staff and equipment.
[27] Kumshin drew the court’s attention to clause seven of the service provider
agreement with Trenchless, which states that nothing in it shall be construed as
creating a partnership, joint venture, agency, or employment relationship between
KS Civil and Trenchless. Kumeshin asserted that KS Civil’s business is distinct from
the applicants’ specialist rehabilitation business. All his staff remain KS Civil
employees. All plant equipment remains under KS Civil’s ownership and control. The
service it p rovides to Trenchless cannot amount to unlawful employment or
service it p rovides to Trenchless cannot amount to unlawful employment or
association. Kumeshin denied that he had disclosed or misused any confidential
information from Mainline for the advancement of Trenchless. According to him, KS
Civil’s work is independent. At n o point in time had he ever procured tenders or
projects for Trenchless. Kumeshin implored the court to dismiss the applicant’s claim
with costs.
The second respondent’s (Trenchless) case
[28] Trechless also opposed the applicants’ application. Trenchless noted that the
applicants do not seek any substantive relief against it in terms of their notice of
motion. According to Trenchless, the only relief sought by the applicants against
Trenchless is a prayer for costs on an attorney and client scale. However, this was
disputed during argument by Mr Baguley, counsel for the applicants, who submitted
that the interdictory relief sought by the applicants is against all three respondents.
Trenchless as serted that Kumeshin’s employment contract does not contain a
restraint undertaking in favour of Mainline.
[29] Trenchless asserted that, in terms of the buy -back agreement, Kumeshin
appears to have given a restraint undertaking in terms of clause eight thereof, in
favour of Mainline; however, Trenchless is not a party to the buy -back agreement
and accordingly did not incur any obligation towards either Mainline or the first and
second applicants in terms of the buy -back agreement. Trenchless noted the
applicants’ assertion that Kumeshin expressly undertook not to directly or indirectly
divulge Mainline’s confidential information and that he would not directly or indirectly
use or disclose any information or secrets relating to processes developed by
Mainline.
[30] Trenchless denied the applicants' claim that Kumeshin was ever employed by
them. In addition, Trenchless asserted that although it was appointed as the main
contractor by the Langeberg Municipality, as alluded to by the applicants in their
founding affidavit, it appointed a service provider by the name of KS Civil, the third
respondent herein, to assist them. At no stage was Trenchless or its management
aware of Kumeshin’s confidentiality undertaking and restraint undertaking in favour
of Mainline when KS Civil was appointed as a service provider.
[31] Trenchless disputed that Kumeshin shared Mainline’s confidential information
[31] Trenchless disputed that Kumeshin shared Mainline’s confidential information
with it. Furthermore, Trenchless stated that the applicants failed to demonstrate an
entitlement to any relief against it in terms of a delictual claim based on unlawful
competition, nor are there any averments about the elements of such delictual claim
in the founding affidavit. Moreover, Trenchless stated that it is not aware of the
nature and description of the third applicant’s confidential information, nor can it be
said that Kumeshin in any way shared such confidential information with Trenchless.
[32] Furthermore, Trenchless submitted that it is immaterial whether Kumeshin is
in breach of his confidentiality undertakings and restraint undertakings towards
Mainline, as far as Trenchless is concerned. According to Trenchless, the fact of the
matter is that the applicants have not demonstrated entitlement to any relief, let
alone an order for costs against Trenchless, whether in terms of unlawful competition
or otherwise. To this end, Trenchless asserted that the conduct of the applicants is
none other than vexatious and frivolous, particularly since the applicants were
afforded the opportunity after it had already instituted an application to abandon the
cost order sought against Trenchless. Instead, the applicants chose to per sist with
the application against Trenchless.
[33] Accordingly, Trenchless sought the dismissal of the applicants’ application
with costs on an attorney and client scale, including the costs of counsel on scale C,
against the applicants jointly and sever ally, with the one paying the other to be
absolved.
Principal submissions by the parties
[34] Mr Baguley, counsel for the applicants, submitted that this matter is urgent.
Counsel submitted that the applicants only discovered Kumeshin’s employment or
association with Trenchless on 28 August 2025 and took immediate steps to consult
with their attorneys. Counsel submitted that letters of demand were quickly
dispatched, and this application was subsequently prepared and launched. In
counsel’s view, there is accordingly no prospect of any redress if the applicants are
forced out of the urgent lane.
[35] On the merits of the application, Mr Baguley submitted that Kumeshin
admitted that by virtue of his association with Mainline, he had access to
admitted that by virtue of his association with Mainline, he had access to
commercially sensitive information and secrets not available in the ordinary course of
business to a competitor. Counsel further submitted that Kumeshin agreed that
Mainline had a protectable in terest and that he would not directly or indirectly or
whether for his own account or as a principal or agent or other association of any
nature for a period of two years and anywhere in South Africa be interested or
engage in, or associated with any business that is competitive with or carries on a
business similar to the Mainline business and, in particular, th ose listed in annexure
B to the buy-back agreement which includes Trenchless.
[36] Counsel submitted that Kumeshin’s detailed knowledge of Mainline’s business
gives rise to the prospects of unlawful competition by competitors, including
Trenchless, becau se Kumeshin knows exactly how Mainline prices its work, and
particularly its tenders. He can accurately state what Mainline’s price will be in any
tender. Mr Baguley submitted that this knowledge provides competitors, including
Trenchless, with an obvious unfair advantage. In addition, Kumeshin has, due to his
eight years of employment with Mainline, developed extensive experience in SWP
and CIPP work. By leveraging the extensive knowledge, he has gained in SWP and
CIPP at Mainline, Kumeshin gives Trenchless a significant unfair advantage.
Counsel submitted that t his experience increases the likelihood of Trenchless
submitting a competitive bid and achieving higher scores in functionality than before.
[37] Mr Baguley submitted that, notwithstanding Kumeshin’s very substantial
compensation, he has breached the confidentiality and restraint provisions of the
buy-back agreement and the confidentiality provision of his employment contract.
According to Mr Bagule y, even if the applicants fail on the restraint relief, the court
should grant the declaratory relief against Kumeshin for breaching the restraint
clause. Counsel prayed for an order sought in the notice of motion.
[38] Mr Loubser, counsel for the first and third respondents, submitted that, based
on nothing more than the Langberg Municipality’s notice, the applicants assumed
on nothing more than the Langberg Municipality’s notice, the applicants assumed
that Trenchless had employed Kumeshin. Counsel argued that the applicants
launched this application based on that mistaken assumpti on. Mr Loubser argued
that Trenchless does not employ Kumeshin. His business, KS Civil, has a service
provider agreement with Trenchless. According to counsel, this is not employment in
any capacity and thus does not trigger the requirement that Kumeshin s hould seek
Mainline’s permission.
[39] Mr Loubser further submitted that Kumeshin does not deny that he gained
knowledge from Mainline and that Mainline has a protectable interest. However,
Kumeshin denies that the applicants’ interests are at risk or being prejudiced.
Furthermore, counsel submitted that there is no evidence on the papers that
Kumeshin has divulged any confidential information. Even though Mainline and
Trenchless are competitors , so the contentions proceeded, the scope of KS Civil’s
service provider agreement with Trenchless is limited to the supply of general plant
equipment and labour, not specialist equipment. It does not involve the potential to
share confidential information.
[40] Counsel for Kumeshin submitted that the applicants maintain that Kumeshin
can state with complete accuracy what Mainline’s price will be in any tender. In
counsel's view, this hyperbole is hard to believe. Mr Loubser contended that two
years have passed since Kumeshin was retrenched from Mainline. Any knowledge
Kumeshin still has about the business is more limited than then, if not outdated and
irrelevant altogether. In addition, Mr Loubser contended that the restraint is
overbroad due to its geographic extent covering the whole of South Africa. In
counsel’s view, the applicants did not motivate for the app lication of the restraint in
the whole of South Africa in their founding papers or otherwise. To this end, counsel
implored this Court to dismiss the applicants’ application with costs.
[41] On the other hand, Mr Montzinger, counsel for Trenchless, submi tted that no
substantive relief is sought against Trenchless by the applicants, except for an order
for costs, on a punitive scale of attorney and client. Mr Montzinger submitted that
there is simply no case for Tre nchless to meet on the applicants’ foundi ng affidavit,
whether for an order for costs or otherwise. Counsel argued that Trenchless is not a
party to the restraint of trade undertakings given by Kumeshin in favour of Mainline.
party to the restraint of trade undertakings given by Kumeshin in favour of Mainline.
Trenchless is accordingly not bound thereby and is not subject to any o bligation in
terms thereof, whether on Mainline or otherwise.
[42] Although Trenchless indirectly enlisted the services of Kumeshin through a
service provider, KS Civils (Pty) Ltd, in counsel’s opinion, it did so without the
knowledge of the historical r elationship between Kumeshin and Mainline. It was
certainly not aware of the restraint undertakings given by Kumeshin in terms of the
buy-back agreement with the first and the second applicant s. Mr Montzinger further
submitted that there is no suggestion w hatsoever that the applicants seek to hold
Trenchless liable, whether for costs or otherwise, in terms of a delictual claim
premised upon unlawful competition. To this end, counsel argued that Trenchless
was accordingly put to the unnecessary effort and ex pense of having to enter the
fray only to defend itself against a claim devoid of any merit. To this end, Mr
Montzinger prayed for the dismissal of the applicants’ application with costs on an
attorney and client scale, including the costs of counsel on scale C.
Issues to be decided
[43] From the above discussion, this Court is enjoined to decide, first, whether the
applicants’ application is urgent as envisaged in Rule 6(12) of the Uniform Rules.
Secondly, whether the Kumeshin breached the buy -back agreement incorporating a
restraint of trade agreement concluded on 22 May 2024. Thirdly, whether Kumeshin
should be interdicted from being employed by or being otherwise associated with
Trenchless until 22 May 2026. For the sake of completeness, I will discuss the se
disputed issues sequentially, starting with the question of urgency.
Urgency
[44] As foreshadowed above, Kumeshin impugned the truncated timeline afforded
to the respondents to file their answering affidavits. Kumeshin does not contend that
the matter is not urgent; he only complains that the applicants’ timetable has not
provided him with sufficient opportunity to answer the case. Trenchless did not place
urgency in dispute at all. As correctly pointed out by Mr Baguley, Kumeshin is wrong.
He had eight days to complete his affidavit. The application was served on him on 18
September 2025, and he delivered his answering affidavit on 26 September 2025.
[45] Significantly, the applicants are enforcing a restraint of trade covenant. It is
trite that proceedings for the enforcement of a restraint of trade agreement are
usually, by their ver y nature, urgent. 1 Restraint of trade agreements invariably seek
to interdict ongoing unlawful action in respect of which an applicant continues to
suffer financial losses, which are notoriously difficult to quantify or to recover by way
of action.2 While the confidentiality provisions the applicant s rely on are not limited
as to time, the restraint of trade the applicant s rely on comes to an end by the
effluxion of time on 22 May 2026.
[46] In my opinion, the applicants’ application is urgent, especially considering that
they are entitled to retain the sum of R534,070.00 as a retention, on condition they
secure a court order by 22 May 2026, that Kumeshin breached the restraint clause. If
they are removed from the urgent court, a decision on whether they should keep the
amount of R534,070.00 would not be made within the required timeframe. Therefore,
the argument that this matter is not urgent must fail. This leads me to the second
disputed issue of whether Kumeshin breached the buy -back agreement, which
incorporated a restraint of trade agreement concluded on 22 May 2024. However,
before I consider this question, I deem it expedient to briefly set out the legal
principles applicable in restraint of trade agreements.
Legal principles applicable to agreements in restraint of trade
[47] The landmark case on this subject is Magna Alloys and Research (SA) (Pty)
Ltd v Ellis ,3 which introduced a significant change to the courts' approach to
agreements in restraint of trade by declining to follow earlier decisions based on
English precedent that an agreement in restraint of trade is prima facie invalid and
unenforceable. In English law , a party seeking to enforce such an agreement must
show that the restraint is reasonable as between the parties, while the burden of
proving that it is contrary to public policy is incumbent on the party alleging it.
[48] The Magna Alloys judgment reversed this approach and held that agreements
[48] The Magna Alloys judgment reversed this approach and held that agreements
in restraint of trade were valid and enforceable unless they are unreasonable and
1 Inospace Services (Pty) Ltd v Morris and Another (2025/124057) [2025] ZAWCHC414 (September
2025) para 63.
2 Boomerang Trade CC t/a Border Sheet Metals v Groenewald and Another [2012] JOL 29426 (ECG)
para 36.
3 1984 (4) SA 874 (A) at 897F– 898E.
thus contrary to public policy, which necessarily as a consequence of their common -
law validity, has the effect that a party who c hallenges the enforceability of the
agreement bears the burden of alleging and proving that it is unreasonable. The
Court summarised the legal position, inter alia, as follows:
48.1 There is nothing in our common law which states that a restraint of trade
agreement is invalid or unenforceable.
48.2 It is a principle of our law that agreements which are contrary to the public
interest are unenforceable. Accordingly, an agreement in restraint of trade is
unenforceable if the circumstances of the particu lar case are such, in the
court's view, as to render enforcement of the restraint prejudicial to the public
interest.
48.3 It is in the public interest that agreements entered into freely should be
honoured and that everyone should, as far as possible, be able to operate
freely in the commercial and professional world.
48.4 In our law the enforceability of a restraint should be determined by asking
whether enforcement will prejudice the public interest.
48.5 When someone alleges that he is not bound by a re straint to which he had
assented in a contract, he bears the onus of proving that enforcement of the
restraint is contrary to the public interest.4
[49] As foreshadowed above, the principle laid down in Magna Alloys is that a
restraint of trade clause is enforceable unless it is shown to be unreasonable, which
necessarily casts an onus on the person who seeks to escape it. In the present
matter, if the facts disclosed in the affidavits, as I have described in the material
background facts above, disclose that the restraint is reasonable, then Mainline must
succeed in its relief ; if, on the other hand, those facts disclose that the restraint is
unreasonable, then Kumeshin must succeed. These two dichotomous questions call
for a value judgment.5
4 Saner J Agreements in Restraint of Trade in South African Law issue 13 (October 2011) at 3-5 and
3-6.
5 Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA) para 14.
[50] In Reddy v Siemens Telecommunications (Pty) Ltd ,6 the Supreme Court of
Appeal held that the Court must make a value judgment with two principal policy
considerations in mind in determining the reasonableness of a restraint. 7 The first is
that the public interest8 requires parties to comply with their contractual obligations, a
notion expressed by the maxim pacta servanda sunt.9 The second is that all persons
should, in the interests of society, be productive and be permitted to engage in trade
and commerce or the professions. Both considerations reflect not only common -law
but also constitutional values.10
[51] A restraint would be unenforceable if it prevents a party after termination of his
or her employment from partaking in trade or commerce withou t a corresponding
interest of the other party deserving of protection. Such a restraint is not in the public
interest.11 Simply put, when considering the enforceability of a covenant in restraint
of trade, the most important question is whether the covenant protects a legitimate
proprietary interest on the part of the coven antee. Our law adopts the view that it will
be contrary to the public interest to enforce a ‘naked’ restraint of trade that fails to
protect any legitimate proprietary interest on the part of the covenantee but seeks
merely to exclude competition by the covenantor.12
[52] In Basson v Chilwan and Others ,13 the court identified four questions that
should be asked when considering the reasonableness of a restraint: (a) Does the
one party have an interest that deserves protection after termination of the
agreement? (b) If so, is that interest threatened by the other party? (c) In that case,
does such interest weigh qualitatively and quantitatively against the interest of the
other party not to be economically inactive and unproductive? (d) Is there an aspect
of public policy having nothing to do with the relationship between the parties that
of public policy having nothing to do with the relationship between the parties that
requires that the restrai nt be maintained or rejected? Where the interest of the party
sought to be restrained weighs more than the interest to be protected, the restraint is
unreasonable and consequently unenforceable. The enquiry undertaken at the time
6 Reddy v Siemens Telecommunications (Pty) Ltd fn 5 above, para 14.
7 Reddy v Siemens Telecommunications (Pty) Ltd fn 5 above, para 15.
8 Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) paras 18 - 21.
9 Brisley v Drotsky 2002 (4) SA (SCA) para 23.
10 Reddy v Siemens Telecommunications (Pty) Ltd fn 5 above, para 15.
11 Townsend Productions (Pty) Ltd v Leech and Others 2001 (4) SA 33 (C) at 50J - 51B.
12 Amalgamated Retail Ltd v Spark 1991 2 SA 143 (SEC) 150FH.
13 1993 (3) SA 742 (A) at 776H – 777B.
of enforcement covers a wide field. It includes the nature, extent, and duration of the
restraint, as well as factors peculiar to the parties and their respective bargaining
powers and interests.14
[53] Having set the applicable legal principles in this matter, I turn to consider the
remaining disputed issues between the parties. However, as a point of departure, I
must emphasise that the restraint agreement entered between the applicants and
Kumeshin, in my view, stands on a different footing. It must be stressed that the
employment contract of Kumeshin did not have a restraint of trade clause. As
correctly pointed out by Mr Loubser, the restraint agreement was concluded seven
months after Kumeshin’s retrenchment in terms of a termination agreement that
contained no restraint clause. The seven -month period represented a clean break
between Kumeshin’s time as a Mainline employee and thereafter, when he was only
a Mainline shareholder.
[54] Simply put , at the time when the buy -back agreement was concluded,
incorporating a restraint clause, Kumeshin was no longer an employee of Mainline
for a period of seven months. Furthermore, the termination agreement did not
incorporate the restraint clause. Clearly, the buy -back agreement, which
incorporated the restraint clause, was concluded in the context of Kumeshin being a
shareholder of Mainline, rather than in an employment context. Notwithstanding, it
remains to be determined whether the restraint is reasonab le and can thus be
enforced.
Did Kumeshin breach the restraint clause?
[55] In determining this question, it is important to consider the four questions
postulated by Nienaber JA, as he then was, in Basson v Chilwan and Others ,
discussed in paragraph 52 above. The first question is whether Mainline has a
protectable interest that deserves protection. In brief, i t is common cause that
Kumeshin gained knowledge from Mainline and that Mainline , the third applicant
Kumeshin gained knowledge from Mainline and that Mainline , the third applicant
14 Reeves and Another v Marfield Insurance Brokers CC and Another 1996 (3) SA 766 (A) at 776A -
F; Basson v Chilwan fn 13 above, at 786B - C.
herein has a protectable interest. Kumeshin has admitted this, and it is not in
dispute. The question that follows is whether Kumeshin’s association with Trenchless
threatens that protectable interest. I turn to consider that question in the discussion
that follows.
Is Mainline’s protectable interest threatened by Kumeshin’s association with
Trenchless?
[56] To determine this question, it is necessary to examine the restraint of trade
clause closely. The restraint clause is contained in paragraph 8 of the buy -back
agreement under the heading ‘Restraint’. The relevant part of that clause provides as
follows:
8.3 “Kumeshin shall not directly or indirectly, and whether for his own account, or as a
principal, agent, partner, representative, shareholder, director , executive, consultant,
contractor, financier, assistant, administrator, advis er, officer or holding any other capacity
whatever in relation to any person, syndicate, partnership, joint venture, company, business
undertaking, concern or other association of any nature for a period of two years after the
signature date and anywhere in the RSA-
8.3.1 be interested or engaged in, concerned or associated with any business that
is competitive with or carries on a business similar to the Mainline business.
8.3.2 canvas, solicit or entice, or endeavour to entice in respect of any business
that is competitive with the Mainline business, any person who is at the signature
date and the closing date or, during a period of two years prior to the signature date
was a customer, supplier or distributor of the Mainline business or is or was
accustomed to dealing with Mainline, specifically including (without limitation) those
parties listed on Annexure B. Should K umeshin wish to take up employment in any
capacity with any of the parties listed on Annexure B, he shall seek permission from
Mainline which, other than those parties marked with an ‘X’ shall not be unreasonably
withheld.”
withheld.”
[57] The restraint agreement targets business activities which is competitive with
or similar to the Mainline business. Evident ly, clause 8.3 prohibits being associated
with any business that is competitive with or carries on a business similar to the
Mainline business. The restraint agreement does not apply to employment with
entities which do not themselves compete with Mainline . The applicants referred the
court to three aspects of its protectable interests, namely Kumeshin’s knowledge of
pricing, his experience in SWP and CIPP work-related tenders, and his knowledge of
Mainline’s operations.
[58] Kumeshin has denied being employed by Trenchless, a competitor of
Mainline. In this regard, he has denied that the applicants’ protectable interests are
at risk or threatened. In my view, there is no evidence on the papers that Kumeshin
has divulged any confidenti al information to Trenchless. Kumeshin registered KS
Civil as a company whose ordinary course of business entails the supply of plant,
equipment, and labour to other businesses. KS Civil does not provide specialist
rehabilitation services, such as SWP or C IPP, nor does it possess specialised
equipment. It also does not qualify for the tenders which Mainline tenders on.
[59] From the affidavits filed, the nature of Kumeshin’s current work with KS Civil
differs from Mainline. It purely concerns the supply of general plant equipment and
labour. It does not involve specialist equipment or knowledge that poses a risk of
sharing or exploring Mainline’s confidential information. In my view, there is nothing
in the papers suggesting that Trenchless employs Kumeshin. I am mindful of the
notice dated 23 July 2025 from Langeberg Municipality, which identifies Kumeshin as
a Contracts Manager which underpins the applicants’ application. Ku meshin denied
that he is a Contracts Manager of Trenchless. Trenchless has also corroborated this
version. Kumeshin asserted that he only manages KS Civil employees and
equipment on site. Trenchless as well denied that Kumeshin is an employee of
theirs.
[60] It is crucial to approach the interpretation of the notice from the Langeberg
Municipality with precision and care. To suggest that the reference to the Contracts
Manager in the notice intrinsically implies that Kumeshin is working for Trenchless,
Manager in the notice intrinsically implies that Kumeshin is working for Trenchless,
the primary contractor, would be an overly broad assumption. Kumeshin has clearly
indicated that he is involved in the project on -site, collaborating with his team to
supply both labour and essential plant equipment. Even though Mainline and
Trenchless are competitors, the scope of KS Civil’s service provider agreement with
Trenchless is limited to the supply of general plant equipment and labour, not
specialist equipment. It does not involve the potential to share con fidential
information. Furthermore, given that KS Civil operates as a service provider to other
entities, the possibility that KS Civil will divulge Mainline’s confidential information to
Trenchless is not a reasonable or probable one.
[61] It has been a rgued that in establishing KS Civil and entering into a service
provider agreement with Trenchless, K umeshin has clearly breached the buy-back
agreement. This argument is predicated on the premise that the buy-back agreement
prohibits Kumeshin from engaging in any direct or indirect association with a
competitor of Mainline for a duration of two years. To the extent that the buy-back
agreement prevents Kumeshin from having any direct or indirect association with a
competitor of Mainline, I consider that the restraint clause is overly broad , legally
incompetent, and unenforceable. It suggests that, for the sake of argument,
Kumeshin cannot to perform tasks necessary for him to earn a living, such as
keeping books of accounts for companies that ar e in competition with the applicant.
Such an association has no connection to the applicant's protected interests . In my
opinion, this limitation is inconsistent with public policy and should not be enforced. I
will shortly provide an evaluation in the discussion below, demonstrating that this
restraint clause is excessively broad, contravenes public policy, and is, consequently,
unenforceable. In my view, there is no legitimate threat or harm to the applicants’
protectable interests.
Does the applicants' protectable interest outweigh, qualitatively and
quantitatively, Kumeshin’s interest to be economically active and productive?
[62] The applicant avers that Kumeshin’s restraint of trade agreement does not
preclude him from working. Mr Baguley submitted that if Kumeshin wanted to work or
associate with entities in annexure B, he had to seek permission from Mainline,
associate with entities in annexure B, he had to seek permission from Mainline,
whose consent shall not be unreasonably withheld. It must be borne in mind that
Kumeshin’s employment with Mainline was not terminated of his own account, but he
was retrenched following a consu ltation process in terms of section 189 of the
Labour Relations Act 66 of 1995.
[63] The restraint clause is significantly detrimental to Kumeshin. It is crucial to
note that the relationship between the parties has deteriorated irreparably, which led
to the retrenchment of Kumeshin. Moreover, the discussions and negotiations
concerning the buy-back agreement have been quite vigorous. It is unlikely that the
applicants would consent to Kumeshin being employed by their competitors, as the
primary purpose of the restraint agreement was to prevent such employment. Given
these circumstances, it is unreasonable for Kumeshin's employment prospects to be
contingent upon the discretion of the applicants.
[64] Furthermore, it is not in dispute that after he was retrenched, Kumeshin
remained unemployed for several months. Kumeshin stated that he received several
offers of employment from Mainline’s competitors, who offered him a similar salary to
what he received at Mainline. However, he did not want to breach his restraint and
declined such offers. Since the buy -back agreement was concluded, his freedom to
earn a living that uses his skills and expertise in the engineering industry has been
restricted. He had to consider his options carefully to make a living that would
sustain his family without breaking the restraint clause.
[65] After some thought, he decided to use the funds from the sale of his
membership interest to purchase equipment and pay off debt, so that he could start
his own independent business, hiring out equipment and providing labour. This was
not a service that Mainline provides, nor was it in violation of the restraint agreement.
In starting KS Civil, he opted to focus on a narrow scope of work, hiring out of
general equipment and labour. In my opinion, it would be unfairly prejudicial to
Kumeshin to enforce the restraint and further limit his ability to earn a living,
especially since he is already operating within a narrow scope and not practising the
profession for which he studied for.
profession for which he studied for.
[66] Kumeshin is a civil engineer. From the documents submitted, Kumeshin is 33
years old. KS Civil is currently his sole source of income and the only way he can be
economically productive. The applicants seek to interdict Kumeshin until 26 May
2026 from practising his profession, the only trade in which he is qualified and fro m
doing business through KS Civil. The work of KS Civil has no connection to the
protectable interest of the applicants. In my view, enforcing the restraint of trade in
these circumstances would cause significant harm to Kumeshin and would no doubt
render him destitute. This will not only harm him but also the thirty employees and
their families who work for his company – KS Civil.
[67] Moreover, t he applicants’ allegations that Kumeshin is employed by
Trenchless or is a subcontractor or a consultant of Trenchless is based on
speculation and conjecture. Both Kumeshin and Trenchless have denied that
Kumeshin is employed by the second respondent. The notice from Lang eberg
Municipality does not on its own, without more, prove that Kumeshin is employed by
Trenchless. The applicants did not submit any document from the Langeberg
Municipality to indicate on what basis they referred to Kumeshin a s the Contracts
Manager of the Trenchless.
[68] It is my firm view that Kumeshin’s right, protected in section 22 of the
Constitution of the Republic of South Africa, to choose his trade, occupation, and
profession freely would be severely affected if the restraint is enforced. The freedom
to choose a vocation is intrinsic to the nature of a society based on human dignity, as
contemplated by the Constitution. One's work is part of one's identity and is
constitutive of one's dignity. 15 Every individual has a right to take up any activity
which he or she believes himself or herself prepare d to undertake as a profession
and to make that activity the very basis of his or her life.
[69] In the founding and replying affidavits, the applicants stated that,
notwithstanding Kumeshin’s staggering compensation of R7.5 million he received
when he l eft Mainline, he decided to breach the confidentiality and restraint
provisions of the buy -back agreement. The applicants created an impression that
part of the buy -back agreement amount was compensation for the prejudice the
restraint may cause him. This, with respect, is not correct. There is no mention in the
restraint agreement that the buy-back amount was allocated partly for the purpose of
the restraint agreement. The agreement clearly indicates that R6.26 million is the
the restraint agreement. The agreement clearly indicates that R6.26 million is the
agreed market value of Kumeshin’s 15 per cent equity in Mainline. The R6.26 million
is an amount due to him as a member of Mainline for the value of his shares and has
nothing to do with the restraint agreement.
15 Affordable Medicines Trust and Other v Minister of Health and Others 2006 (3) SA247 (CC0 para
59
[70] Notably, the assertion by the applicants in paragraph 87 of the rep lying
affidavit is concerning. The applicants assert that for the limited period of the
restraint, the 7.5 million compensation Kumeshin received means that he does not
have to work. The applicants suggest that the size of the payment mitigates any
prejudice that the restraint may cause Kumeshin. As correctly pointed out by Mr
Louser, it is crucial to note that the R7.5 million is actually two separate amounts,
and that the only compensation payable was R1.27 million in terms of the
termination of the emplo yment agreement. R6.26 million was for the purchase of
shares in Mainline. Moreover, from this amount, a loan claim of R919,428 due by
Komeshin to Mainline, as stipulated in the buy -back agreement, should also be
deducted.
[71] In his deposition, Kumeshin indicated that he does not come from a wealthy
background, nor does he have exorbitant amounts of money, which would enable
him to sit at home and not earn a living. He further stated that his parents did not
finish their high s chool qualifications due to economic distress in their families.
Throughout his life, he had to study hard and work tirelessly to provide not only for
himself but also for his parents, sister, nephew, his wife and now his newborn son.
The applicants do not know the financial commitments of Kumeshin. The suggestion
that he need not work for the duration of the restraint is fallacious and unsustainable.
[72] Kuymeshin is utilising his skills and training in a limited capacity in KS Civil to
practice his profession. This has no connection to the applicants’ protectable interest.
In my view, Kumeshin should not be prevented from using h is stock of general
knowledge, skill, and experience to earn a living. 16 Significantly, no person can be
unreasonably prevented from earning a living in the public domain. The right to trade
and practice a profession is highly pri ced.17 In my view, restraining the Kum eshin
and practice a profession is highly pri ced.17 In my view, restraining the Kum eshin
from practising his profession under these limited circumstances would conflict with
section 22 of the Constitution, which guarantees his right to freedom of trade,
occupation, and profession.
16 Bonnet v Schofield 1989 (2) SA 156 AD at 160A.
17 Strike Productions (Pty) Ltd v Bon View Trading (Pty) Ltd and Others [2011] JOL 26664 (GSJ) para
1.
[73] Additionally, it is incontestable that Kumeshin , who was no longer an
employee at the time the buy -back agreement was concluded, was in a weaker
bargaining position in relation to the applicants. While I accept that attorneys of
repute represented him during the negotiations leading to the conclusion o f the buy-
back agreement, he did not have the same bargaining power enjoyed by the
applicants during the negotiation of the buy -back agreement. Kumeshin was in the
minority, and the other members were in the majority. In the replying affidavit, Mr
Spreckley, the consultant of Mainline, who also deposed to the founding and replying
affidavits, denied that Kumeshin was told that he had no right to question payments
made by Mainline.
[74] Mr Spreckley stated that it is a legitimate incident of company law th at a
holder of 15 per cent of shares can be outvoted on important shareholder’s decision
by the majority. That is the very foundation of Company law. Mr Spreckley is correct
in his observation; however, our Company law also recognises that a minority
shareholder must be paid the fair value of his shares.18
[75] In Roffey v Catteral Edwards,& Goudre (Pty) Ltd,19 the court noted that ‘once
it emerges that the covenantor was the weaker party during negotiations, the Court
will doubtless be aware of the possibility that his impotence was exploited, that he
was induced to say in the contract what he did not really mean, and that he was
prevailed upon to accept publicly as fair that which he rejected privately as
oppressive. In my view , in these circumstances, it would be disproportionate to
enforce the restraint.
Is the restraint clause wider than is necessary to protect Mainline’s protectable
interest?
[76] The restraint clause is so overbroad, couched in wide terms and is legally
incompetent. As it is worded, the clause is clearly intended to prohibit all competition
by the Kumeshin in all field s of activity of the applicant s throughout the entire
by the Kumeshin in all field s of activity of the applicant s throughout the entire
18 See section 164(15)(c)(ii) read with section 164(16) of the Companies Act 71 of 2008.
19 1977 (4) SA (N) at 499G.
Republic of South Africa. It has not been disputed that the applicant operates in the
Western Cape, rather than countrywide. An applicant should be astute to motivate, in
the founding papers, precisely why the area of the restraint is reasonable in the
circumstances, and a failure to do so could be harmful to the application. The
applicant did not assert that Mainline operates and or has offices in the whole of
South Africa.
[77] Furthermore, the appli cants do not motivate for the operation of the restraint
in the whole of South Africa in their founding papers or otherwise. The applicants
also do not deny that the majority of Mainline’s contracts are for the City of Cape
Town. Notwithstanding this, the applicants seek to enforce the restraint against
Kumeshin for the whole of South Africa, despite Mainline only operating in the
Western Cape. In my view, this, on its own, renders the restraint unreasonable in
that it exceeds what is necessary to protect the applicants’ interests.20 The overbroad
description of the clause supports Kumeshin’s assertion that the clause is contrary to
the public policy and therefore unenforceable.
[78] The clause is also overly broad because of its scope, as it prohibits Kumeshin
directly or indirectly from being in any association of any nature with any competi tor
of Mainline. It is not necessary for the protection of the applicants ’ interests that the
restraint be cast in such wide -ranging terms. As correctly pointed out by Kumeshin’s
counsel, if the restraint clause is interpreted to encompass KS Civil’s servi ce
provider agreement with Trenchless, which concerns the supply of general plant
equipment and labour, and a narrow scope of work that does not create a
reasonable or probable risk of divulging Mainline’s confidential information, then it is
unfair in its ambit.
[79] In MacPhail (Pty) Ltd v Janse van Re nsburg,21 the court stated that as a
matter of principle, a covenantee can never have a legitimate interest in restraining a
matter of principle, a covenantee can never have a legitimate interest in restraining a
covenantor from working in a totally innocent or neutral capacity for a competitor. If a
restraint purports to prescribe that, it is unreason able. Conversely restraint process
should be interpreted restrictively so as only to affect activities such as employment
with a competitor which infringes a legitimate proprietary interest. The supply of
20 Baroque Medical (Pty) Ltd v Medtronic Africa (Pty) Ltd 2014 JDR 0758 para 42.
21 1996 (1) SA 594 (T) at 600D.
equipment, labour and machinery does not infringe t he protectable interest of the
applicants. Consequently, the restraint clause is so wide-ranging that it is legally
incompetent.
[80] In conclusion, the applicants have not satisfied all the requirements to obtain
a final interdict against Kumeshin, nor have they established a case for a declaratory
order against Kumeshin. On the objective facts, there is no evidence to suggest that
Kumeshin breached the restraint agreement. It is noted that Kumeshin is associated
with Trenchless in a service that does not infringe the protectable interest of the
applicants. The applicant’s case is clearly based on suspicion and speculation that
Kumeshin is divulging its confidential information to Trechless. There is nothing of
substance to negate the respondent's version.
[81] On a conspectus of all the facts , it cannot be said that the respondents'
version is so far -fetched or untenable that the court is justified in rejecting it on the
papers. To the extent that the applicants seek a final interdict and there is a dispute
of facts on the versions of the parties, a final interdict may only be granted if the
respondent's factual version, together with the admitted facts in the applican ts'
affidavits, justify such an order. 22 In my view, the respondents ’ version must be
accepted. As foreshadowed above, it cannot be said that it is so far -fetched or
untenable that it must be rejected on the papers. The version of the respondents is
plausible.
[82] Finally, the affidavits submitted by the applicants do not provide any evidence
to support the assertion that Trenchless is engaging in unlawful competition with
Mainline. Furthermore, no allegations are presented regarding the elements
necessary for such a delictual claim. It is important to note that Trenchless is not a
party to the buy -back agreement and has not assumed any obligations under that
agreement toward either of the applicants. Trenchless also denied employing
agreement toward either of the applicants. Trenchless also denied employing
Kumeshin, as alleged by the applicants. In addition, at no stage was Trechless or its
management aware of Kumeshin’s confidentiality undertakings and restraint
22 Plascon-Evans Paints (Tvl) Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H-I.
undertakings in favour of Mainline when KS Civil was appointed as a service
provider.
[83] Consequently, the applicants have not demonstrated entitlement to any relief
against Kumeshin and Trenchless whether in terms of unlawful competition or
otherwise. In operating KS Civil to hiring out equipment, Kumeshin is not breaching
his restrain t of trade agreement. I am therefore satisfied that the only effect of the
restraint sought would be to inhibit or prevent Kumeshin from using his 'stock of
general knowledge, skill and experience’ to earn a living.
Costs
[84] It is trite that the question of costs is a matter in the court’s discretion. It is
equally trite that, as a rule, costs follow the result, and successful parties should be
awarded their costs. 23 This rule should be departed from only where good grounds
for doing so exist. 24 There is nothing in this case that warrants a departure from this
well-established principle.
Order
[85] In the result, the following order is granted:
85.1 The applicants’ application is hereby dismissed. The applicants are ordered to
pay the respondents’ costs on a party and party scale , including the costs of the
respondents’ counsels on scale C.
___________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
23 Union Government v Gass 1959 (4) SA 401 (A) 413.
24 Gamlan Investments (Pty) Ltd v Trilion Cape (Pty) Ltd 1996 3 SA 692 (C).
Appearances:
For the Applicants: Adv Baguley
Instructed by: Slabbert Venter Yanoutsos Inc
For the First Respondent: Adv Loubser
Instructed by: Allie and Naidoo Attorneys Inc
For the Third Respondent: Adv Montzinger
Instructed by: PMV Attorneys & Notaries