THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
REPORTABLE
Case No: 2025 - 117803
In the matter between:
ATLAS 360 COMMERCIAL Applicant
VEHICLE SERVICES (PTY) LTD
and
CHRISTA MAGDALENA DE WITT First Respondent
RENEW-IT TRUCK REPAIR CENTRE (PTY) LTD Second Respondent
Heard: 15 October 2025
Delivered: Served on the parties by email on 3 November 2025.
Summary: Urgent application re restraint of trade - requirements established
- interdict of disclosure of confidential information and conduct in
violation of restraint agreement.
JUDGMENT
2
DANIELS J
Introduction
[1] This is an application to interdict and restrain the first respondent from
breaching her restraint of trade agreement that she concluded with the
applicant. In essence, the applicant seeks an order as follows:
1.1 Dispensing with the rules regulating notices and proceedings in this
Court and permitting the application to be heard on an urgent basis,
as contemplated by Rule 39,
1.2 Permitting the applicant to deliver a confidential affidavit, to be
treated as such by the court and the respondents, requesting that
said affidavit not form part of the court record, and requiring further
that the affidavit be returned to the applicant’s attorneys upon
conclusion of the proceedings,
1.3 Interdicting and restraining the first respondent , for a period of 12
months, throughout the Republic of South Africa, from being
associated with the second respondent or any other restricted
business in any capacity whatsoever,
1.4 Interdicting and restraining the first respondent, for a period of 12
months, throughout the Republic of South Africa, from acquiring any
direct or indirect interest in the second respondent or any other
restricted business,
1.5 Interdicting and restraining the first respondent, for a period of 12
months, throughout the Republic of South Africa, from undertaking
any activities in competition with the applicant’s business,
3
1.6 Interdicting and restraining the first respondent, for a period of 12
months, from soliciting the applicant’s employees to leave it and
become employed by the second respondent or any other restricted
business,
1.7 Interdicting and restraining the first respondent, for a period of 12
months, throughout the Republic of South Africa, from soliciting any
of the applicant’s customers or suppliers to cease to be customer s or
suppliers of the applicant and become customer s or suppliers of the
second respondent or any other restricted business,
1.8 Interdicting and restraining the first respondent from using the
applicant’s confidential information for her own benefit, the benefit of
the second respondent, or any other restricted business,
1.9 Interdicting and restraining the first respondent from divulging the
applicant’s confidential information to the second respondent , or any
other restricted business.
Procedural issues:
Urgency
[2] The applicant approached the court on an urgent basis. A lthough
applications seeking orders in restraint of trade have the “inherent quality
of urgency”, the applicant must nevertheless still satisfy the court that the
application is urgent. 1 The applicant set out the grounds upon which it
argues that the application is urgent, which I see no reason to repeat,
1 Vumatel (Pty) Ltd v Majra & others (2018) 39 ILJ 2771 (LC) at paras [4] to [8]
4
and the reasons substantial redress cannot be achieved in the normal
course. These reasons are reasonable and withstand scrutiny.
[3] It is apparent that the applicant launched proceedings without delay, as
soon as it became clear that it would not receive the undertakings it
sought from the respondents . Any delays in having the matter heard
were the result of the time periods contemplated by the Rules, and the
difficulties with securing an earlier hearing date.
[4] Having considered the relevant facts and the submissions , I am satisfied
that the application is urgent and should be treated as such.
Confidential affidavit
[5] The applicant provided the court and the applicant with a hard copy of its
‘confidential affidavit’ and informed the court that it did not intend to
upload the affidavit onto case lines. T he applicant requested that the
affidavit not form part of the court record and that it be returned after
judgment was handed down.
[6] The applicant provided sound reasons why the information in the affidavit
is confidential and should be excluded from the record. The respondents
did not seriously oppose this request.
[7] Noting that the respondents suffered no prejudice, they had access to
the affidavit , and filed an affidavit in response, I find it appropriate and
expedient to approach the issue in the manner proposed.
[8] The affidavit is thus admitted in accordance with Rule 71 but will not form
part of the court record. The affidavit must be returned to the applicant’s
attorneys after judgment is handed down.
5
Context of the dispute
[9] The applicant operates in the repair and refurbishment industry in
relation to medium and heavy commercial vehicles (“HCV”) and has
done so since 2009. It provides support services to original equipment
manufacturers (“OEMs”) and works with insurers , and parts suppliers.
The applicant has a large pool of customers, including First Automotive
Works (“FAW”) and Volvo. It operates in South Africa but also has a
presence in other countries throughout Southern Africa.
[10] The second respondent , a division of Bluespec Holdings, also operates
an autobody repair business and has been servicing the insurance
industry since 1981. It is common cause that the second respondent is a
competitor of the applicant. Although the second respondent has long
history in the industry, it is a relative newcomer to repairs of HCVs.
[11] Prior to her employment by the applicant, the first respondent, Ms Christa
De Witt (“De Witt”) had approximately two decades of experience in
sales and administration across different industries.
[12] De Witt was engaged, by the applicant, during early 2022, in the position
of a sales assistant. Her employment contract required her consent to a
restraint agreement, which was attached to the contract as annexure B.
The restraint agreement was signed approximately two months after De
Witt commenced her employment. De Witt alleges that she was given the
agreement by the finance manager, Mr Mark Wilkes (“Wilkes”) who
instructed her to sign but did not afford her an opportunity to read it. She
alleges that she was not provided with a copy thereafter . Notably, De
Witt does not allege that she was under any form of duress, such that the
contract may be rendered unenforceable. Nor does she allege that
requested an opportunity to read the agreement , nor that she requested
a copy thereof. According to De Witt, at the time, Wilkes informed her
6
that the agreement meant that she would not be allowed to work for
another panel beater.2
[13] In clause 4 of the restraint agreement, 3 De Witt provided the applicant
with various undertakings to keep its confidential information secret, not
to disclose such information to third parties, or to use such information
for her own benefit. In clause 5, for a period of twenty -four months after
termination of her employment, De Witt undertook to protect the goodwill
and proprietary interests of the applicant, not to be associated with or
acquire any interest in a ‘ restricted business’4 and not to compete with
the business of the applicant. In clause 6, De Witt undertook not to solicit
or offer employment to any employee of the applicant.
[14] De Witt performed well in the applicant’s employ, and, by 1 April 2025,
she had been appointed as a sales executive.
[15] De Witt was assigned to expand the applicant’s customer base in
Gauteng, and to work with OEM dealerships (such as MAN, Mercedes,
Volvo, and FAW) and approaching new fleet operators using leads from
the OEMs, the internet, and tow truck companies. De Witt was the point
of contact. She was required to, and did, attend golf days and other
marketing events. She was required to, and did, call on existing
customers, previous customers, and prospective new customers. De Witt
admits that she onboarded customers but states that she was just one
element in the relationship. Ultimately, she alleges , the customer is most
influenced by price, turnaround time, and quality of the work.
[16] On 30 May 2025, De Witt informed the applicant of her resignation, with
effect from the end of June 2025.
2 Answering Affidavit para 120, page 001-163
3 Annexure AZ10 to the Founding Affidavit, page 001-73
4 The term is defined in the restraint agreement as “any business activity which directly or
indirectly is similar to” the applicant’s business or operates in competition with the applicant.
7
[17] It is common cause that, during her exit interview, on 13 June, De Witt
informed the applicant that she would be joining her ex -boss in the scrap
metal industry and assured the applicant that she would not be working
in competition with it. The meeting was an amicable one during which De
Witt informed the applicant that she was grateful for the experience
working with it, and the applicant informed De Witt that she may access
the scrap metal from its’ business. The applicant agreed that De Witt
may exit the business early, on 25 June.
[18] On 1 July, De Witt took up employment with the second respondent as a
marketing officer. Despite her assurances, De Witt was now working for
the applicant’s competitor, a restricted business.
[19] At that approximate time, the applicant had two further resignations. The
first from a receptionist, Ms Palesa Thabane, who became a receptionist
for the second respondent. The second, an estimator, was persuaded to
stay on. There is no direct evidence that the first respondent encouraged
these individuals to leave the applicant.
[20] On 3 July, the applicant became aware of an advertisement of the
second respondent seeking customers for its new truck repair facility in
Kempton Park. The advertisement stated that a tour of the facility could
be booked through the second respondent’s key account manager, De
Witt. As key account manager, or marketing officer, De Witt is performing
the same, or similar, functions to those she performed for the applicant.
[21] On 4 July, the applicant addressed a letter to De Witt advising her that it
was aware she was working for a competitor, in breach of the restraint
agreement. The applicant called on De Witt to honour her confidentiality
undertakings and the restraint agreement.
8
[22] On 10 July, on behalf of De Witt, RHK Attorneys replied to the applicant
requesting a copy of the restraint agreement.
[23] On 11 July, the applicant’ s attorneys addressed a lengthy letter to the
second respondent, attaching a copy of the restraint agreement and
setting out the reasons why it believed that De Witt had breached the
restraint agreement. The applicant’s attorneys demanded an undertaking
by the second respondent by no later than 14h00 on 15 July that it would
honour the restraint agreement.
[24] On the same day, the applicant’s attorneys addressed a letter to De
Witt’s attorneys demanding an undertaking from by no later than 12h00
on 15 July that she would honour the restraint agreement.
[25] The applicant did not receive the requested undertakings from the first or
second respondents . However, at 16h50, on 15 July, the applicant’s
attorneys received a letter from Werksman’s Attorneys advising that they
acted for the first and second respondents and were taking instructions.
[26] When the applicant investigated the work phone of De Witt, it discovered
that her chat history had been deleted. This was viewed by the applicant
as suspicious. De Witt admits that she had deleted the chat history on
her phone but alleges this was because her chat history included
personal information.
[27] On 17 July 2025, the applicant came across an advertisement in video
format containing infographics and the same information as indicated in
the advert it first saw on 3 July . The first respondent was again identified
as the key account manager.
9
[28] This application was launched on 18 July and provisionally enrolled for
11 September. On that day, the court removed the matter from the roll
because neither of the parties had filed heads of argument.
Restraint of trade: the legal principles and the facts
Protectable interests
[29] The purpose of agreements concluded in restraint of trade are to
safeguard the employer’s protectable interests. However, this is not
without bounds. Employees may not relinquish their aptitudes, skill,
dexterity, and manual or mental ability.
5 Accordingly, such abilities and
aptitudes are not protectable.
[30] In addition, a restraint may not be used with in the employment context
solely to limit competition.6 As Lord Parker famously stated:
“The reason, and the only reason, for upholding such a restraint on the
part of an employee is that the employer has some proprietary right,
whether in the nature of trade connection or in the nature of trade
secrets, for the protection of which such a restraint is – having regard to
the duties of the employee – reasonably necessary. Such a restraint
has, so far as I know, never been upheld, if directed only to the
prevention of competition or against the use of the personal skill and
knowledge acquired by the employee in his employer’s business.”
(own emphasis)
5 Hepworth Manufacturing Co. Ltd v Pyott (1920) 1 Ch. D. at 9
6 Masstores (Pty) Ltd v Pick N Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) at para [35]
10
[31] Proprietary interests , which may be protected by restraint agreements,
are of two sorts:7
31.1 Any confidential matter useful for the carrying on of the business and
which, if disclosed to the competitor, may assist him to gain a relative
advantage. Such confidential material is sometimes referred to as
“trade secrets”. Whether information constitutes a trade secret is a
factual question, determined objectively by reference to whether the
information is useful and capable of application in a trade or industry,
it is not public knowledge
8 and known only to a restricted number of
people; and it is of economic value. The employer is not required to
prove an intention to divulge such information, merely that the former
employee may share the trade secrets should he or she wish to do
so.9
31.2 Relationships with customers, potential customers, and suppliers can
referred to collectively as the “trade connection” of the business. This
is an important aspect of its incorporeal property known as
goodwill.10 An applicant is entitled to protect its interest in customers
and suppliers where its former employee had access to customers
and suppliers, such that they could influence them to the detriment of
the applicant. In such circumstances, where the new employer is a
competitor of the applicant , there is a reasonable apprehension of
harm to the applicant.11
7 Tension Envelope Corp. (SA) Ltd v Zeller & another 1970 WLD 333 at 347G-H
8 Note that such information may still be protectable if it came into existence in the context of a
contractual relationship. See Experian SA v Haynes (2013) 34 ILJ 529 (GSJ) at para 44
9 IIR South Africa BV (Incorporated in the Netherlands) t/a Institute for International Research
v Tarita and others 2004 (4) SA 156 (W) at 166 – 167
10 Sibex Engineering Services (Pty) Ltd v Van Wyk and another 1991 (2) SA 482 (T) at 502D
11 New Justfun Group (Pty) Ltd v Turner & others (2018) 39 ILJ 2721 (LC) at par [13];
11 New Justfun Group (Pty) Ltd v Turner & others (2018) 39 ILJ 2721 (LC) at par [13];
Experian SA (Pty) Ltd v Haynes (2013) 34 ILJ 529 (GSJ) at 536, and
Den Braven SA (Pty)Ltd v Pillay 2008 (6) SA 229 (D); [2008] 3 All SA 518 (D) at paras 1718
11
[32] On 21 February 2025, the sales executives (including De Witt) together
with management, attended an annual strategic conference to discuss
the applicant’s strengths, weaknesses, opportunities, and threats .
Bluespec, the holding company of the second respondent, was identified
as a threat given its recent focus on the HCV sector. At the conference,
the applicant states, De Witt gained critical insights into its business,
customer strategies , expansion strategies, and weaknesses in certain
markets. De Witt denies that the information shared there is useful to the
second respondent or unknown within the industry. In my considered
view, it is extremely unlikely that the applicant’s strategies, strengths and
weaknesses would be widely known throughout the industry.
[33] De Witt denies that she had access to the applicant’s pricing models,
invoices, banking facilities, or its creditors and debtors. While De Witt
accepts that she saw the quotes provided to customers, she states that
she had no input into the contents of the quotes.
[34] The applicant’s sales strategies were also discussed at a further
meeting, held in Heidelberg on 23 April, attended by the first respondent
and other sales executives. The executives presented their sales
strategies to management and to each other, and the strategies were
discussed by the participants. As a result, the first respondent is aware of
the sales strategies of all the executives. Similarly, this information could
not possibly be known throughout the industry.
[35] The first respondent contends that the meetings in March and April 2025
were in fact team building exercises and nothing more. This version is
untenable, and I do not accept it.
[36] The applicant holds monthly sales management meetings (“MANCO”) at
which the performance of all the sales executives’ is discussed. The first
respondent attended these meetings, the last being held on 26 March
2025. No doubt t hrough these MANCO meetings, the first respondent
12
would have gained know ledge of ‘insider information’ relating to many of
the applicant’s customers. Furthermore, the first respondent was part of
a WhatsApp group titled “Team Focus” through which all the sales
executives communicate.
[37] In its confidential affidavit, the applicant states that it hosted marketing
events targeting specific customers such as Scania and Volvo, where
key contacts of those customers were invited. The first respondent was
an active participant at such events.
[38] Upon investigation, the applicant dis covered that the first respondent
had, on 17 April 2025, sent an email from her work email to her private
email. The email contained several attachments including customer lists ,
contacts at specific customers , the identity of customers to be targeted
together with potential “ins” , the identity and contacts for seven OEMs,
notes from first respondent titled “terms”, “payment” and “risks”, the fleet
sizes for certain customers, and the applicable periods for certain service
level agreement s. The first respondent admit ted sending herself this
information but denied that it is proprietary information of the applicant.
Disputes of fact
[39] In applications for final relief, when faced with factual disputes, our courts
have consistently applied the principles set out in Plascon -Evans Paints
Ltd v Van Riebeeck Paints (Pty) Ltd
12 which holds that the undisputed
averments of the applicant, together with the averments of the respondent,
constitute the factual matrix upon whic h the dispute must be resolved.
However, where the averments of the respondent are, in the opinion of the
court, far fetched or untenable, they may be rejected on the papers.
13
12 1984 (3) SA 623 (A) at 634E - 635C (the “Plascon-Evans rule”)
13 Skog NO and Others v Agullus and others 2024 (1) SA 72 (SCA) at para 18
13
[40] The Plascon-Evans rule was further clarified in Wightman t/a JW
Construction v Headfour (Pty) Ltd and Another14 where Heher JA held:
“[12] Recognising that the truth almost always lies beyond mere
linguistic determination the courts have said that an applicant who seeks
final relief on motion must, in the event of conflict, accept the version set
up by his opponent unless the latter's allegations are, in the opinion of
the court, not such as to raise a real, genuine or bona fide dispute of fact
or are so far -fetched or clearly untenable that the court is justified in
rejecting them merely on the papers : Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E - 635C. See also
the analysis by Davis J in Ripoll-Dausa v Middleton NO and
Others 2005 (3) SA 141 (C) at 151A - 153C* with which I respectfully
agree. (I do not overlook that a reference to evidence in circumstances
discussed in the authorities may be appropriate)
[13] A real, genuine and bona fide dispute of fact can exist only where
the court is satisfied that the party who purports to raise the dispute
has in his affidavit seriously and unambiguously addressed the fact said
to be disputed. There will of course be instances where a bare denial
meets the requirement because there is no other way open to the
disputing party and nothing more can therefore be expected of him. But
even that may not be sufficient if the fact averred lies purely within the
knowledge of the averring party and no basis is laid for disputing the
veracity or accuracy of the averment. When the facts averred are such
that the disputing party must necessarily possess knowledge of them
and be able to provide an answer (or countervailing evidence) if they be
not true or accurate but, instead of doing so, rests his case on a bare or
ambiguous denial the court will generally have difficulty in finding that
the test is satisfied. I say 'generally' because factual averments seldom
the test is satisfied. I say 'generally' because factual averments seldom
stand apart from a broader matrix of circumstances all of which needs to
be borne in mind when arriving at a decision. A litigant may not
necessarily recognise or understand the nuances of a bare or general
denial as against a real attempt to grapple with all relevant factual
allegations made by the other party. But when he signs the answering
affidavit, he commits himself to its contents, inadequate as they may be,
and will only in exceptional circumstances be permitted to disavow
them. There is thus a serious duty imposed upon a legal adviser who
settles an answering affidavit to ascertain and engage with facts which
his client disputes and to reflect such disputes fully and accurately in the
answering affidavit. If that does not happen it should come as no
surprise that the court takes a robust view of the matter.”
(own emphasis)
[41] In my view, many of the denials by the first respondent , including her
allegation that the information she emailed to herself on 17 April is freely
14 2008 (3) SA 371 (SCA)
14
available to the public , ring hollow, amount to bare denials, and do not
raise bona fide disputes of fact . I do not believe the first respondent
adequately explained why it was necessary to email such information to
herself, and why she required access to the information outside of the
office. If such information were embedded in the memory of the first
respondent, as of the end of April 2025, there would have been no need
for the first respondent to email it to herself. 15 The information in the
attachments to the email is not widely known and is useful in the
industry. It is improbable that customers would reveal information such
as the size of their fleet, or details of their service level agreements, on
public platforms. In the circumstances, such information was proprietary
information of the applicant.
[42] I also took into consideration that t he first respondent had little or no
knowledge of the HCV sector before her engagement by the applicant.
16
Her knowledge of the applicant’s customers was developed, or greatly
enhanced, through her employment by the applicant.
[43] In her answering affidavit, the first respondent explains that her
relationship with another executive, Mr Izak Nel, soured during March
2025 and this was a catalyst for her departure. It can hardly be a
coincidence that the email was sent soon after her relationship with Mr
Nel soured. The probabilities are that the information was sent by the first
respondent, to herself, to enhance her marketability to the second
respondent, and to assist in building the business of second respondent.
15 Note that the mere fact that the confidential information is not embodied in a document but is
carried away by the employee in his head is not a reason against the granting of an injunction to
prevent its use or disclosure by him. See Printers and Finishers Ltd v Halloway cited in Strike
Productions (Pty) Ltd v Bon View Trading (Pty) Ltd & others [2011] JOL 26664 (GSJ) at para
[18]
[18]
16 Founding Affidavit, para 95.3 and 95.4, page 001 - 36
15
Onus in restraint disputes
[44] In Magna Alloys and Research (Pty) Ltd v Ellis 17 the Appellate Division
pronounced that the onus of proving that the restraint is unreasonable,
and thus unenforceable, lies with the respondent.18 In Reddy v Siemens
Telecommunications (Pty) Ltd (“Reddy”)19 the SCA stated that a value
judgment was called for, and the onus need not necessarily be used.
Reddy did not state that there was no onus, or that Magna Alloys wrongly
decided where the onus lay.
[45] In Ball v Bambalela Bolts (Pty) Ltd & another 20 Coppin JA suggested
that, considering the constitutional right of citizens freely to choose their
trade, occupation, or profession, the onus may need to be reassessed.
However, thereafter, in Beedle v SloJo Innovations Hub (Pty) Ltd21 the
LAC accepted that an employee who seeks to escape the reach of the
restraint bears the onus of showing that the restraint is unreasonable.
[46] Of importance, the SCA22 and the Constitutional Court23 both accept that
where a party seeks to avoid compliance with a contract, based on public
policy, the onus lies with that party to prove that the contract should not
be enforceable.
[47] In Sadan and another v Workforce Staffing (Pty) Ltd 24 the LAC per Smith
AJA confirmed that the onus lies with the party , seeking to escape the
confines of the restraint agreement, to show that its enforcement would
be contrary to public policy . This judgment, the most recent iteration of
the position, is binding on this court.
17 1984 (4) SA 874 (A)
18 Cited with approval in New Justfun Group (Pty) Ltd v Turner & others (2018) 39 ILJ 2721 (LC)
at para [10]
19 2007 (2) SA 486 (SCA)
20 (2013) 34 ILJ 2821 (LAC) at para [13]
21 (2023) 44 ILJ 2493 (LAC)
22 AB and another v Pridwin Preparatory School and others 2019 (1) SA 327 (SCA)
23 Beadica 231 CC and other v Trustees, Oregon Trust and others 2020 (5) SA 247 (CC) at
para 95
24 (2023) 44 ILJ 2506 (LAC) at para [19]
16
[48] The respondent submitted that the decision of this court in Select PPE
(Pty) Ltd v Holmes and Another 25 shifted the position. However, in that
matter, the learned acting judge confirmed that the onus rests on the
respondent to show that enforcement would be unreasonable. The court
held that the applicant must make out a “complete and substantiated
case” in its founding affidavit as to why the enforcement of the restraint is
reasonable. In my view, this statement does not align with the authorities,
and I do not intend to follow it. Rule 39(3) permits the filing of two
affidavits by the respondent, no doubt to allow it a fair opportunity to
discharge the onus of proving that the restraint is contrary to public
policy. This suggests, to my mind, that the alleged unreasonableness of
the restraint and its enforcement would only arise in the first answering
affidavit of the respondent, if it arises at all.
[49] The existence of the restraint and confidentiality agreement s is
undisputed. It is also undisputed that the first respondent left the services
of the applicant and joined the second respondent, a competitor, acting
in breach of the restraint. In addition, the first respondent sent herself
confidential information shortly before her leaving the employ of the
applicant. If the first respondent did not approach any other employees of
the applicant to leave the applicant for the second respondent , the
events described in para 19 above are highly coincidental.
[50] In all the circumstances, there can be no doubt that the first respondent
has breached the restraint and the confidentiality agreements, and there
is a reasonable apprehension of harm to the applicant.
25 (2024/115703) [2024] ZALCJHB 484 (3 December 2024)
17
Reasonableness of the restraint
[51] Our courts are more likely to take a more favourable view of the restraint
agreement where the parties engaged on an equal footing when the
restraint was agreed.
26 Although this is a ques tion of fact, there is a
general acceptance that , in the employment context , parties rarely
contract as equals. Exceptions include instances where the employee is
in senior management, highly skilled and in demand.
[52] The central question is whether the restraint is unreasonable in the
context in which it is to be enforced. Factors include inter alia the subject
matter, area, and duration of the restraint. Contracts which unreasonably
restrict the employee’s freedom to trade, or work, are unreasonable and
therefore unenforceable.
27
[53] In disputes concerning restraints of trade, there arises a tension between
the right of individuals to be economically active, to pursue his or her
trade or profession, and the need for those individuals to respect the
agreements they have entered. Public policy dictates that agreements
entered voluntarily are binding and enforceable.
[54] The court must therefore seek a balance between the need to respect
agreements,
28 the freedom of the individual employee to practice his
trade, professional or occupation,29 the nature and extent of the restraint,
and the competing interests of the parties. 30 It is necessary to make a
value judgment31 taking into account all the relevant considerations.
26 Dickinson Holding Group v Du Plessis 2008 4 SA 218 (N)
27 J Louw & Co. (Pty) Ltd v Richer 1987 (2) SA 237 (N) at 243 D - E
28 Brisley v Drotsky 2002 (4) SA 1 (SCA) at para [94]
29 Section 22 of the Constitution
30 Torrente & another v Grant Monaghan & Associates Incorporated ( 2024) 45 ILJ 798 (LAC) at
para [21]
31 See Reddy v Siemens cited in fn. 19
18
[55] In Basson v Chilwan and others 32 (“Basson”) Nienaber JA identified four
questions that should be asked when considering the reasonableness of
a restraint: (a) does one party have an interest that deserves protection
after termination of the agreement? (b) if so, is that interest threatened?
(c) in that case, does such interest weigh qualitatively and quantitively
against the interest of the other party to be economically active and
productive? (d) is there an aspect of public policy having nothing to do
with the relationship between the parties that requires the restraint to be
maintained or rejected? Besides these questions, Reddy suggested that
a fifth question – whether the restraint goes further than is necessary to
protect the interest. Where the interest of the party sought to be
restrained weighs more than the interest to be protected, the restraint is
unreasonable.
[56] In my view, in this matter, the applicant has an interest worthy of
protection. The applicant has operated with sufficient caution to ensure
that its confidential information is protected and restricted such
information to a closed circle. The applicant entered into a confidentiality
agreement ( and restraint agreement ) early in the employment
relationship. The information is useful, it is not public knowledge, and it is
capable of application in the industry. It clearly has economic value. The
applicant clearly has an interest in its trade connections that is worthy of
protection. These interests are threatened by the first respondent. The
first respondent is employed by a direct competitor of the applicant , and
she is therefore in breach of the restraint. Having already breached the
restraint, t here is no reason to apprehend that the first respondent will
now respect the other terms of the restraint or the confidentiality
agreements. There is therefore a reasonable apprehension that, absent
an interdict, the first respondent will cause harm to the business of the
applicant.
an interdict, the first respondent will cause harm to the business of the
applicant.
32 1993 (3) SA 742 (A) at 767
19
[57] The next question is how the commercial interest of the applicant weighs
qualitatively and quantitively against the interest of the first respondent to
be economically active and productive. Notably, the applicant does not
seek to interdict and restrain the first respondent for the entire duration of
the restraint period, namely twenty-four months. It seeks an interdict for a
limited period of twelve months. This is fitting.
[58] The first respondent points out that she earns a salary of R30 674, 00 per
month. She supports both her mother and her son. The first respondent
admits that she has extensive experience in sales and administration
outside of the autobody and HCV repair industry. She previously worked
in the mining and the steel industr ies. Although the first respondent has
no tertiary education, she is experienced and capable. It is probable that
she will be able to obtain employment other than with the second
respondent. Furthermore, as the first respondent herself suggested, she
is likely to be welcomed back into the scrap metal industry.
[59] On the other hand, if the first respondent is not interdicted, she has the
potential to seriously harm the business of the applicant. The court must
guard against the temptation to consider the first respondent to be
merely a salesperson. In any business dependent on sales to customers,
the salesperson is critical to the success of that business. Public policy
dictates that the first respondent be compelled to comply with the
restraint agreement she consented to. Had the first respondent refused
to sign the agreement, the applicant would likely not have engaged her
and exposed itself to risk. In my view, there are good and sound reasons
to enforce the restraint to the extent sought by the applicant.
[60] When one takes all the relevant facts and the equities into consideration,
the applicant’s interest in the enforcement of the restraint outweighs the
the applicant’s interest in the enforcement of the restraint outweighs the
first respondent’s interests in being economically active in the autobody
and HCV repair industry. The first respondent is not being prohibited
from being economically active in another industry. The first respondent
20
has not discharged the onus of proving that the restraint is unreasonable,
and contrary to public policy.
Costs
[61] Both parties sought costs against the other . This being a contractual
dispute, falling outside the scope of the Labour Relations Act No. 66 of
1995, the criterion of fairness in section 162 is inapplicable. Accordingly,
the normal rule should apply, and costs should follow the result.
Conclusion
[62] For the above reasons, the applicant is entitled to the relief sought . For
the reasons set out above, I grant an order in terms of prayers 1, 2, 3, 4,
and 5 of the notice of motion. I n addition, the first and second
respondents are ordered to pay the costs of the application, jointly and
severally, the one paying the other to be absolved.
RN Daniels
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:
Adv C Whitcutt SC
Instructed by: Thomson Wilkes Inc
For the Respondents:
Adv Werner Luderitz SC
Instructed by: Werksmans Attorneys