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: 04 February 2026
Delivered: Electronically on 02 March 2026
JUDGMENT – LEAVE TO APPEAL
LEKHULENI J:
Introduction
[1] This is an application for leave to appeal to the full Court of the Western Cape
High Court in terms of s 17(1)(a) of the Superior Courts Act 10 of 2013 (‘the Superior
Courts Act’), against the whole judgment and order of this Court (‘the main
Judgment’) handed down on 10 November 2025. In that judgment, this Court
dismissed the applicants ’ application for the Court to interdict the first respondent
from being employed by or being otherwise associated with the second respondent
until 22 May 2026. The court also dismissed the applicants’ application to declare the
first respondent in breach of the buy -back agreement concluded between the first
and second applicants and the first respondent on 22 May 2024, which was attached
to the applicants’ founding affidavit as JS2. The applicants seek leave to appeal that
judgment. The first respondent opposed the application. The second respondent did
not oppose the application; instead, it filed a notice to abide by the decision of this
court.
Brief background facts
[2] The first respondent (‘Kumeshin’) was employed by the third applicant (‘Mainline’)
as a junior site manager in May 2015. Kumeshin also held 15 per cent of Mainline’s
shares. In terms of clause 14 of his employment contract, Kumeshin a greed 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 develo ped by
Mainline, which he acquired in the course of his employment with Mainline. The
employment relationship between Kumeshin and Mainline broke down irretrievably.
In October 2023, Mainline and Kumeshin entered into a termination agreement
under which his employment was terminated, and he was paid compensation
accordingly.
[3] The parties thereafter negotiated the buy -back agreement of Kumeshin’s shares
[3] The parties thereafter negotiated the buy -back agreement of Kumeshin’s shares
in Mainline. An agreement regarding the buy -back of Kumeshin’s shares in Mainline
by the first and second applicants was ultimately concluded on 2 May 2024. In terms
of the buy-back agreement reached by the parties, the first and second applicants
purchased Kumeshin’s 15 per cent shares in Mainline for R6 260 132,00. In addition,
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 trust 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 r ecording Kumeshin’s breach of any of the
provisions of the confidentiality and/or restraint provisions in the agreement. The
buy-back agreement incorporated both a confidentiality clause and a restraint of
trade clause.
[4] The applicants asserted that Kumeshin decided to breach the confidentiality and
restraint provision of the buy-back agreement by taking employment with the second
respondent (‘Trenchless’). The applicants also asserted that Kumeshin breached the
restraint clause when he established his company, KS Civil Engineering (Pty) Ltd,
which entered into a service -provider agreement with Trenchless. Pursuant thereto,
the applicants sought an order interdicting Kumeshin from being employed by or
being otherwise associated with Trenchless until 22 May 2026, being the expiry date
of the restraint period. The applicants also sought an order declaring Kumeshin to be
in breach of the buy-back agreement.
[5] After considering the matter, the Court found that the restraint clause is
excessively broad, contravenes public policy and is consequently unenforceable .
The Court dismissed the applicants’ application and found that there was no
evidence suggesting that Kumeshin breached the restraint agreement nor that
Trenchless employed him. The applicants now seek leave to appeal that order.
Grounds of Appeal
[6] The applicant s raised two grounds of appeal. On the first ground, the applicants
assert that this court conflated the question of breach with that of the enforceability of
the restraint agreement in the main judgment. The applicants contended that
the restraint agreement in the main judgment. The applicants contended that
whether the respondent breached a restraint clause is separate fr om the question of
whether the restraint clause should be enforced. Secondly, the applicants averred
that the court erred in finding that the restraint clause was unenforceable. However,
at the hearing of this application, the applicant s abandoned the seco nd ground of
appeal and persisted only on the first ground. In other words, the applicants do not
impugn this court’s finding that the restraint clause that it alleged Kumeshin
breached is excessively broad, contravenes public policy, and is, consequently,
unenforceable. Instead, t he applicant s persisted that Kumeshin breached the
restraint clause and sought leave to appeal the court’s finding dismissing its
application on this aspect.
The applicable legal principles
[7] The applicants’ application for leave to appeal is based on section 17(1)(a) of the
Superior Courts Act. Section 17 of the Superior Courts Act regulates applications for
leave to appeal from a decision of a High Court. It provides as follows:
‘(1) Leave to appeal may on ly be given where the judge or judges concerned are of
the opinion that—
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
(b) the decision sought on appeal does not fall within the ambit of section 16(2)( a);
and
(c) Where the decision sought to be appealed does not dispose of all the issues in
the case, the appeal would lead to a just and prompt resolution of the real issues
between the parties.'
[8] The prospects of success required in terms of section 17 (1)(a)(i) of the Superior
Courts Act are to be decided without reference to the parties' wishes.1 The court may
grant leave to appeal if the appeal has a reasonable prospect of success. The test of
reasonable prospects of success postulates a dispassionate decision based on the
facts and the law, that a Court of Appeal could reasonably reach a conclusion
different from that of the trial court. To succeed, an applicant must convince the court
on proper grounds that he has prospects of success on appeal and that those
prospects are not remote but have a realistic chance of succeeding. There must be a
prospects are not remote but have a realistic chance of succeeding. There must be a
1 Rail Commuter Action Group v Transnet Limited Trading as Metrorail (Number 2) 2003 (5) SA 593
(C)
sound, rational basis for the con clusion that there are prospects of success .2 The
requirement for a successful leave to appeal is more than a mere possibility that
another court might come to a different conclusion. The test is whether there is a
reasonable prospect of success that another court would come to a different
conclusion.3
[9] In MEC for Health, Eastern Cape v Mkhita 2016 JDR 2214 (SCA), the Supreme
Court of Appeal (‘SCA’) emphasised the applica ble test for leave to appeal and
stated:
‘[16] Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that
leave to appeal may only be given where the judge concerned is of the
opinion that the appeal would have a reasonable prospect of success; or
there is some other compelling reason why it should be heard.
[17] An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance of success on
appeal. A mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There must be a sound, rational basis to conclude
that there is a reasonable prospect of success on appeal.’
[10] Leave to appeal is further granted not in respect of the reasons for the judgment
but in respect of the order itself. Therefore, the success of the application for leave to
appeal must be related to the outcome of the case and not an argument that fails to
dispose of the case in the appellant’s favour. In Tecmed Africa v Minister of Health ,4
the SCA stated as follows:
‘First, appeals do not lie against the reasons for judgment but against the
substantive order of a lower court. Thus, whether or not a Court of Appeal
agrees with the lower court’s reasoning would be of no consequence if the
2 S v Smith 2012 (1) SACR 567 at 570 para 7.
3 Dineam Trade Pty Ltd v Sumali Investment 101 (Pty) Ltd 2025 JDR 0666 (GJ at 21.
4 [2012] 4 AII SA 149 (SCA).
result would remain the same (Western Johannesburg Rent Board v Ursu la
Mansions (Pty) Ltd 1948 (3) SA 353 (A) at 354).’
[11] From the foregoing, what is required of this Court is to consider, objectively and
dispassionately, whether there are reasonable prospects that another court will find
merit in the arguments advanced by the losing party. ( Valley of the Kings Thaba
Motswere (Pty) Ltd and Another v Al Maya International [2016] 137 (ZAECGHC) 137
(10 November 2016) para 4).
Discussion
[12] The applicants’ main ground of appeal is that the court conflated the breach
question with the enforceability question. The applicant s contend that whether a
respondent breached a restraint is separate from the question of whether the
restraint should be enforced. I must mention that agreements in restraint of trade are
valid and enforceable in our law unless, inter alia , they impose an unreasona ble
restriction on a person’s freedom to trade, in which case they will probably be held to
be against public policy and therefore illegal and unenforceable. At common law, a
contract is illegal and unenforceable if it is against good morals (contra bonos mores)
or against public policy.
[13] In the present matter, I must stress from the outset that I am not persuaded at all
that there are any reasonable prospects that the applicants ’ argument or ground of
appeal would or, for that matter, might be upheld by another court for the following
reasons: In the main judgment, the court dealt with breach and enforceability under
one heading as the two concepts are inextricably intertwined. As Mr Beguley,
counsel for the applicants, correctly notes in his heads of argument, the court held in
paragraph 61 of the main judgment that the restraint clause is excessively broad,
contravenes public policy and is consequently unenforceable.
[14] In paragraph 80 of the main judgment, the court found that on the objective
facts, there is no evidence to suggest that the first respondent breached the restraint
facts, there is no evidence to suggest that the first respondent breached the restraint
agreement. In considering the alleged breach of the restrained clause, the Court
emphasised in paragraph 80 of the main judgment that Kumeshin is associated with
Trenchless under a service agreement that does not infringe the applicants'
protectable interests. The court emphasised that the applicants' case is clearly based
on suspicion and speculation that Kumeshin is divulging its confidential information
to Trenchless an d that there is nothing of substance to negate the respondents'
version.
[15] More pertinently, at paragraph 83 of the main judgment, the court held that, in
operating KS Civil Engineering to hire out equipment, Kumeshin is not breaching his
restraint of trade agreement. The Court concluded 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. These preceding paragraphs clearly
addressed the breach alleged by the applicants.
[16] What compounds the difficulty in the applicants' application is that this Court has
found the restraint clause to be overly broad, legally incompetent, and
unenforceable. In addition, the Court found tha t this restraint clause is excessively
broad, contravenes public policy, and is, consequently, invalid. The applicant does
not challenge this finding. Notwithstanding, the applicants seek a finding before the
appeal court that Kumeshin breached a restraint clause that, on the face of it, is
unreasonable, against public policy, illegal and unlawful. In my view, if a restraint of
trade clause is found to be illegal or against public policy, there can be no breach of
such an agreement. As discussed in the main judgment, the restraint clause is
contrary to public policy and unenforceable. To this end, I agree with the views
expressed by Mr Loubser , counsel for Kumeshin that a court of appeal, when
contemplating this as well as the purpose of clause 4.2.2 of the buy-back agreement,
will not grant an order that still permits this clause to be enforced despite it flowing
from a restraint clause that has been held to be against public policy and unlawful.
[17] In Bafana Finance Mabopane v Makwakwa and Another ,5 the SCA held that the
[17] In Bafana Finance Mabopane v Makwakwa and Another ,5 the SCA held that the
principle that a court may not enforce an agreement because the objective it seeks
to achieve is contrary to public policy is firmly part of our law.6 The court noted that in
this determination , 'public policy' is anchored in the founding constitutional values
which include human dignity, the achievement of equality and the advancement of
5 2006 4 SA 581 (SCA) 585H.
6 Napier v Barkhuizen 2006 (4) SA 1 (SCA) at para 7.
human rights and freedoms . In Sasfin (Pty) Ltd v Beukes,7 the court had to consider
the question of public policy vis-à-vis a contract of cession. The court held that a
deed of cession executed by the respondent (a doctor) in favour of, inter alia , the
appellant (a finance company) was contrary to public policy and therefo re
unenforceable. The cession, which was a cession in securitatem debiti , contained
provisions the effect of which was, on a proper interpretation thereof, to put the
appellant, from the time the deed of cession was executed, and at all times
thereafter, in immediate and effective control of all respondent's earnings as a doctor,
to entitle the appellant, on notice of cession to the respondent's debtors, to recover
all his book debts and to retain all amounts so recovered, irrespective of whether the
respondent was indebted to it in a lesser amount.
[18] The court observed that the deed of cession was invalid and unenforceable
because certain material, non-severable terms thereof were contrary to public policy,
and therefore illegal. Notably, the court stressed the well-recognised principle of our
law that a contract which contains illegal terms (as op posed to terms which are void
for vagueness or incompleteness) is devoid of legal effect unless the offending terms
are severable . The court noted further that as a matter of principle, when dealing
with an agreement which is invalid because it contains material terms contrary to
public policy, and the illegal terms are not severable, the Courts should not be astute
to find grounds for upholding the agreement. They should not permit provisions
contrary to public policy inserted in an agreement fo r the benefit of one party (which
are non -severable) simply to be disregarded with impunity by that party when, on
discovering where the shoe pinches, it suits it to do so.
[19] In the present matter, this Court has found that the restraint clause is
[19] In the present matter, this Court has found that the restraint clause is
unreasonable and against public policy, and thus illegal. In my view, the applicant s
cannot rely on an illegal provision of the buy-back agreement to establish a breach of
the restraint clause. Simply put, that clause is against public policy and therefore
illegal. The applicants have not challenged that finding. Furthermore, the
enforceability of the restraint, in my view, is intertwined with the alleged breach.
7 1989 (1) SA 1 (A) at p.19C.
[20] The alleged conflation by the court of the enforceability and breach of the
restraint clau se postulated by the applicants is unavailing. In Basson v Chilwan ,8
Botha JA in a separate judgment observed that t he incidence of the onus in a case
concerning the enforceability of a contractual provision in restraint of trade does not
appear to in principle to entail any greater or more significant consequences than in
any other civil case in general. The court noted that t he effect of it in practical terms
is this: the covenantee seeking to enforce the restraint need do no more than to
invoke the provisions of the contract and prove the breach. The covenantor seeking
to avert enforcement is required to prove on a preponderance of probability that in all
the circumstances of the particular case it will be unreasonable to enforce the
restraint.
[21] As foreshadowed above, the court found that the applicants established no
breach at all. In addition, the court found that the restraint clause was unreasonable,
excessively broad and against public policy.
[22] In the circumstances, an application for leave to appeal to the full court of this
division will, in my view, be a waste of judicial resources. I am not persuaded at all
that there are any reasonable prospects that the applicants ’ assertions would (or, for
that matter, might) be u pheld by another court. On a conspectus of all the facts
placed before this Court, there are no prospects of success in granting leave to
appeal.
Order
[23] In the result, the following order is granted:
23.1 The applicants’ application for leave to appeal is hereby dismissed.
23.2 The applicants are ordered to pay the first respondent’s costs on a party and
party scale, including the costs of the first respondent’s counsel on scale B.
8 1993 3 SA 742 (A).
________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
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