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in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO: 2026-009074
In the matter between
KYTA INDUSTRIES (PTY) LTD Applicant
(REG NO:2013/166736/07)
and
ROXANNE HIBBERT First Respondent
(ID: 9[...])
HOLDIT MARKETING AND MANUFACTURING
(PTY) LTD Second Respondent
(REG NO: 2000/001061/07)
MUKA ENCHANTED EMPORIUM (PTY) LTD Third Respondent
(REG NO: 2023/965818/07)
___________________________________________________________________
JUDGMENT
___________________________________________________________________
KRüGER AJ:
Introduction
[1] The applicant instituted urgent proceedings in this court against the first
respondent, its former employee, with whom it had entered into a restraint -of-trade
agreement which prohibited her from taking up similar employment in the Eastern
Cape for a period of six months after the termination of her employment. At the
same time, it sought to protect its interests against her new employers, the second
and third respondents. It sought to interdict the first and second respondents from
utilising and/ or disclosing its confidential information, including its customer lists and
contact details, customer point of contact information; pricing models, data and
formulae, discount models and formulae, as well as customer product trends and
customer supply requirements, for a period of 18 months from the date of the court
order. Additionally, it sought to restrain these respondents from contacting its clients
and from disclosing confidential information they held relating to the applicant, and to
obtain an order directing all three respondents, jointly and severally to pay the costs
of the application, with the one paying absolving the others.
[2] The merits of the matter have been settled.
[3] What remains to be determined is the issue of costs, as between the applicant
and the second and third respondents (‘the respondents’). The applicant sought an
order to direct the respondents to pay 50% of its party -and-party costs on scale A,
jointly and severally, up to 29 January 2026, and for them to bear the costs fully on
the same scale from 29 January 2026, up to the hearing, on 3 February 2026, unless
the costs are otherwise excluded. The respondents opposed the proposed co sts
order.
The order by consent and parties’ submissions
[4] The respondents consented to an order prohibiting them from employing the
first respondent in the Eastern Cape for a period of six months from the date of
termination of her employment with the appl icant, and from utilising and/ or
disclosing the applicant’s confidential information, including its customer lists and
contact details; pricing data, models and discount structures, as well as customer
contact details; pricing data, models and discount structures, as well as customer
trends and supply requirements, obtained directly or indirectly and to the extent that
this information is not lawfully known or in the public domain. The respondents
further consented to refraining from contacting, soliciting or engaging with any
customers of the applicant, unless they have had prior or ex isting relationships with
those customers; or where customers approach the respondents; or where they
acquired the customers after 23 December 2025, and where they have approached
the customers without knowledge of the applicant’s customer list. The excep tions
apply only to the extent that the customer relationships were not established using
the applicant’s confidential information. Lastly, the respondents also agreed to
remove and delete any confidential information of the applicant and provide
confirmation thereof.
[5] Mr Delport, for the applicant, supported the applicant’s requested costs order
as, in his view, the applicant was substantively successful in its application. Thus, in
accordance with the usual rule, the applicant should be entitled to an a ward of costs.
He submitted that the applicant had no choice but to turn to the court to protect its
interests on 19 January 2026. While the respondents could have avoided the
litigation by providing suitable undertakings, they failed to do so in the exc hanges
between the parties preceding the launching of the proceedings. The respondents’
internal directive to the first respondent, dated 12 January 2026, instructing her to ply
her trade outside the Eastern Cape and without reference to the applicant’s
confidential information, was not supplied in the answering affidavit and came before
the court only because it was included in the replying affidavit. It was submitted that
the fact that the proceedings reached the hearing stage was solely attributable to the
respondents.1
[6] Ms Sephton, on behalf of the respondents, opposed the requested costs
order. She submitted that the respondents opposed the application to protect their
legitimate interests against the severe curtailment of their rights as the appl icant
sought a restraint lasting 18 months. In her view, the respondents did not capitulate
or concede that they intended to use the applicant’s confidential information to their
benefit. Pertinently, she pointed out that the order by consent was limited to the six-
benefit. Pertinently, she pointed out that the order by consent was limited to the six-
month duration of the first respondent’s restraint of trade and in the Eastern Cape,
and that there were clear exclusions to the restriction imposed on the respondents,
which did not form part of the relief as requested. She added that the evid ence relied
upon in support of the application did not support a conclusion that the respondents
1 Reliance was placed on Meljo Pan Africa (Pty) Ltd v Rossouw and Others (120904-2024) [2024
ZAGPPJHC 2071 (20 December 2024) para 85.
would place reliance on the applicant’s confidential information, and that, as such,
costs should either be awarded against the applicant, on scale B, or the p arties
should be ordered to pay their own costs.
[7] In reply, Mr Delport submitted that the exceptions noted in the order simply
clarified what necessarily could not be restricted in terms of the court order. In his
view, the applicant’s success entitled it to costs. The threshold for relief of this
nature to prevent unlawful competition from an employer who employs an employee
under restraint was met, in line with the ratio of IRR South Africa BV v Hall (aka
Bagas).2
Discussion
[8] The point of departure in an award of costs is that it lies within the court's
discretion. Subject to that, the second principle is that costs will ordinarily follow
suit.3 A successful party will be deprived of their costs depending on the specific
circumstances of the case, such as the conduct of the parties and/or their legal
representatives, whether the success of the party is technical in nature, or depending
on the nature of the proceedings.4
[9] It is indeed true that the applicant had met the threshold for the relief obtained
as was set out in IIR South Africa . Schwartzmann J, for the full court, held that the
ex-employer must prove that (1) it has confidential info rmation or trade secrets; (2)
that a third party is making use of such information, knowingly or innocently; (3) that
it has a real right not to be faced with unlawful competition; and (4) that it has no
other remedy.5
[10] It was thus immaterial whether th e respondents used or intended to use the
confidential information of the applicant to which the first respondent had access.
They employed the first respondent, who was under restraint, and did not undertake
at the outset, that her employment would align with her restraint. She had access to
2 2004 (4) SA 174 (W).
2 2004 (4) SA 174 (W).
3 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (No 2) 1996 (4)
BCLR 441 (CC) para 3.
4 Ibid.
5 Para 13.4.2.
confidential information of the applicant which she could have used for the benefit of
the respondents, knowingly or innocently.
[11] The applicant obtained the restraining order on terms similar to, yet more
limited than, those requested. The interdict, as agreed, is geographically restricted
and coincides with the period of restraint imposed on the first respondent. In my
view, that amounts to significant success, and the applicant should not be deprived
of its cost s, but it should also not be awarded its costs without qualification, as the
agreed order is clearly narrower than what was requested. The proposed order on
party-and-party scale and shared between the respondents based on their
responsiveness to the application, is warranted.
[12] Accordingly, I make the following order:
(a) The second and third respondents are jointly and severally liable for 50%
of the applicant’s party-and-party costs on scale A, up to 29 January 2026,
and
(b) The second and third respondents ar e jointly and severally liable for the
remainder of the applicant’s costs on party -and-party costs on scale A,
unless otherwise excluded
R KRüGER
ACTING JUDGE OF THE HIGH COURT
Date heard: 3 February 2026
Date delivered: 10 February 2026
APPEARANCES:
For the Applicant: Adv J Delport
Instructed by: Barnard Inc, Pretoria c/o Huxtable
Attorneys, Makhanda
For the Second and Third
Respondents: Adv S Sephton
Instructed by: Steyn IP, Kempton Park