THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 2025-089086
In the matter between:
SOUTHERN AFRICAN FRUIT TERMINALS (PTY) LTD First Plaintiff
COLDHARVEST (PTY) LTD Second Plaintiff
and
MAERSK LOGISTICS AND SERVICES SOUTH AFRICA
(PTY) LTD
First Defendant
MARIUS NEL Second Defendant
DESMOND PIENAAR Third Defendant
SHAUN LEWIS Fourth Defendant
FRANCO LOVEMBER Fifth Defendant
Summary: Exceptions - No Cause of Action - Alleged Unlawful
Competition - Malice Not Required - Exceptions
Dismissed.
Coram: Wille, J
Heard: 24 February 2026
Delivered: 9 March 2026
JUDGMENT – [EXCEPTION]
WILLE, J:
INTRODUCTION
[1] The plaintiffs sued the defendants for unlawful competition, misappropriation of
confidential information, and the alleged encouragement of employees to breach their
contractual obligations. In summary, the defendants, by way of exception, attack two
of the prayers in the plaintiff’s amended particulars of claim.1
[2] There are two exceptions before me for adjudication. The defendants set out
their complaints in exceptions three and five of the exception s filed. The complaints
allege that the pleading s contain conclusions of law unsupported by the factual basis
required to sustain the causes of action . Thus, the exceptions concern issues in
relation to the causes of action as currently formulated.2
[3] I will deal with exception number five first and exception number three last. I do
this because I hold the view that there is very little merit (in any) in exception number
five.3
RELEVANT CONTEXT
[4] The plaintiffs (as a group) conduct business in cooling, cold storage, and
containerization of fruit and other perishable products in accordance with export and
market regulations. The plaintiffs allege that their operations are heavily reliant on
certain specific proprietary systems, processes, and human resource structures that
they say are peculiar to their business and give them a competitive edge.4
1 The defendants assert that it is impermissible to claim that they be interdicted and restrained from
inducing the plaintiffs’ employees to breach their employment contracts and or their fiduciary duties to and
with the plaintiffs’.
2 The fifth exception does not however concern a “cause of action” in the legal sense.
3 This exception goes to the issue of the scale of the costs order sought against the defendants.
4 The plaintiffs’ confidential information and trade secrets.
[5] It is alleged that this confidential information includes the workings of the
plaintiffs’ cooling regimens, workflow systems, regulatory compliance processes,
management structures, skills matrices and proprietary client lists and pricing. Further,
it is alleged that the plaintiffs’ confidential information is commercially valuable and
known only to the plaintiffs and to a limited number of employees who are subject to
confidentiality obligations. In summary, this confidential information (in the form of a
protectable proprietary interest) would materially benefit any competitor seeking to
enter the cold-storage business.5
THE ALLEGED INTERFERENCE BY THE DEFENDANTS
[6] The plaintiff’s case is that the first defendant constructed and commissioned
two cold-storage facilities in direct competition with the plaintiffs’ businesses. The
second and third defendants (while employed by the plaintiffs) were engaged by the
first defendant to provide technical advice on cold-storage systems for its facilities,
which were then in the process of construction. The second and third defendants
allegedly divulged the plaintiffs’ confidential information to the first defendant in breach
of their contractual and fiduciary obligations.6
[7] The allegation is made that the first defendant knew that the second and third
defendants were acting in breach of their obligations to the plaintiff and colluded with
them to benefit from this confidential information. The fourth and fifth defendants were
former employees of the plaintiffs and had extensive access to the plaintiffs'
confidential personnel information. These former employees had signed employment
contracts with confidentiality covenants to avoid conflicts of interest and prevent the
disclosure of confidential information to competitors.7
[8] Thus, it is alleged that the first defendant’s use of the plaintiffs’ confidential
information through the plaintiffs’ former employees was part of an orchestrated
information through the plaintiffs’ former employees was part of an orchestrated
scheme for purposes of springboarding the first defendant’s entry into the cold-storage
market. It is pleaded that as a direct result of this stratagem employed by the first
defendant, the plaintiffs lost twenty-three of their managers and operators who were
subsequently employed by the first defendant.8
5 The plaintiffs allege an orchestrated campaign of “springboarding”.
6 These defendants had signed restraint and confidentiality covenants to the benefit of the plaintiffs
7 The inducement to breach their contracts with the plaintiffs was unlawful.
8 These employees were used to springboard the competitive business of the plaintiff unlawfully.
[9] Further, it is pleaded that, as a direct result of this filching, the first defendant
avoided significant costs and time required to establish its own compliant cooling
systems and human-resource infrastructure for its new competitive business.9
[10] Finally, despite demand to refrain, the defendants have continued to use the
plaintiffs’ confidential information, and this alleged harm-causing conduct will continue
unless restrained. Most importantly, the allegation is also made that the defendants
have continued to contact and solicit the plaintiffs’ key skilled management personnel.10
CONSIDERATION
GENERALLY
[11] As a general proposition in deciding an exception, a court must accept all the
allegations of fact made in the particulars of the claim as true, may not have regard to
any other extraneous facts or documents, and may uphold the exception to the
pleading on ly when the excipient has satisfied the court that the cause of action or
conclusion of law in the pleading cannot be supported on every interpretation that can
be put on the facts. The purpose of an exception is to protect litigants against claims
that are bad in law or against an embarrassment that is so serious as to merit the costs
even of an exception.11
[12] Thus, the purpose of an exception is to raise and obtain a speedy and
economical decision on questions of law that are apparent on the face of th e pleadings
and generally to avoid the leading of unnecessary evidence.12
THE FIFTH EXCEPTION
[13] In some of their prayers for relief they seek, the plaintiffs seek costs of suit on
an attorney-client basis. The defendants complain that the particulars of claim do not
contain any allegations that could sustain such orders. In my view, this exception does
not raise any question of law that requires a decision by a court. Put another way, the
cost orders sought by the plaintiff are not part of the plaintiff’s cause of action.13
cost orders sought by the plaintiff are not part of the plaintiff’s cause of action.13
9 It is alleged that the first defendant was able to get one of its facilities operational six months earlier.
10 This allegation is of significance with reference to the third exception raised.
11 Pretorius and Another v Transport Pension Fund and Others 2019 (2) SA 37 (CC) at [15].
12 Barclays National Bank Ltd v Thompson 1989 (1) SA 547 (A).
13 With reference to Rule 23 (1) of the Uniform Rules of Court.
[14] I say this because orders concerning costs are incidental to the outcome of
litigation and, by their very nature, discretionary. It is so that this discretion must be
properly exercised and not arbitrarily. The plaintiffs allege unlawful conduct in the form
of wrongful interference with their business, and the facts (if demonstrated at the trial)
may persuade a court to exercise its discretion to award costs on any punitive scale.
The defendants are simply not in a position to assert that no facts exist that could lead
a court to award costs on a punitive scale.14
[15] The object of an exception is to dispose of a case or a portion thereof in an
expeditious manner, or to protect a party against an embarrassment which is so
serious as to merit the costs even of an exception. This exception by the defendants
does not dispose of or even seek to dispose of any portion of the pleaded case by the
plaintiffs as against the defendants.15
THE THIRD EXCEPTION
[16] The complaint here is that the mere allegation of an inducement to the plaintiffs’
employees to leave the plaintiffs’ service for a competitor (the first defendan t) is not
unlawful unless the primary intent thereof was and is to cripple or eliminate th e
plaintiffs’ business capacity. Put another way, they say the plaintiffs were obliged to
plead that the first defendant (at least) had a dishonest motive to cripple the plaintiffs’
business.16
[17] The plaintiffs ( in the particulars of claim) allege, inter alia, the following: (a) they
allege that the first defendant conceived of a n unlawful ‘scheme’ to undermine the
plaintiffs’ businesses and to ‘springboard’ itself into unlawful competition with the
plaintiffs, and (b) they say the first defendant unlawfully interfered with the plaintiffs’
business in various ways (which are pleaded with meticulous detail) and that the
second to fifth defendants associated themselves with that conduct and contributed to
it.17
second to fifth defendants associated themselves with that conduct and contributed to
it.17
[18] In summary, the complaint is that the plaintiffs have not alleged that the
defendants acted maliciously or that the defendants’ sole or dominant purpose was the
14 The particulars of claim are replete with allegations of unlawful conduct by the defendants.
15 The defendants say the unlawful harm-causing conduct alleged is insufficient.
16 Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd and Others 1981 (2) SA 173 (T) at 200.
17 The plaintiffs plead unlawful harm-causing conduct by the defendants.
malicious infliction of harm. This failure, the defendants say, is subject to a valid
exception.18
[19] It seems clear to me (in our law) that harm-causing conduct intentionally and
without lawful justification to induce or procure anyone to breach a contract he or she
has made with another is actionable, if damage has resulted. In English law, proof of
malice (originally a requirement) is no longer a requirement for this type of tort. Put
another way, it must be so that a violation of a legal right committed knowingly must
sustain a cause of action. Thus, it is a violation of a legal right to interfere with
contractual relations recognised by law if there is not sufficient justification for such
interference.19
[20] In our law, it is well-established that an employee who takes his employer’s
confidential information and uses it to compete with his employer or former employer
acts unlawfully, even after the contractual relationship has ended.20
[21] Self-evidently, the inducement or procurement of a breach of contract by rival
traders also constitutes unlawful competition without the need to allege or prove
malice. Thus, not only inducing, but also assisting or supporting a person to breach his
contract with a competitor is unlawful.21
[22] In summary, the plaintiffs plead an unlawful scheme conceived and
implemented by the first defendant both to springboard its cold storage business into
competition with the plaintiffs’ cold storage businesses and to undermine the plaintiffs’
businesses which involved filching the plaintiffs’ confidential information from the
plaintiffs’ current and former employees and which necessarily involved the employees
unlawfully breaching their contracts with and their fiduciary duties to the plaintiffs.22
[23] A common-sense approach should be adopted to this pleading. If it is pleaded
(as it was) that the defendants’ conduct was unlawful, then, in that event, I do not see
(as it was) that the defendants’ conduct was unlawful, then, in that event, I do not see
the need to allege malice or an intention to harm. It is not the plaintiffs’ case (as I
understand it) that their former employees were lawfully induced to terminate their
contracts by the first defendant. I say this because it is pleaded that:
18 This they allege despite the repeated allegations of unlawfulness in the plaintiffs’ pleadings.
19 Lumley v Gye (1853) 2 E, & B. 216
20 Van Castricum v Theunissen at 736 A-B.
21 Genwest Batteries (Pty) Ltd v Van der Heyden 1991 (1) SA 727 (T) at 728-9.
22 In the circumstances the complaints by the defendants are not sustainable by way of exception.
(a) The plaintiffs’ employees were unlawfully induced by the first defendant to
breach their contracts of employment by giving inadequate notice.
(b) The unlawful inducements to the plaintiffs’ employees were made to
procure the plaintiffs’ confidential information.
(c) The purpose of unlawfully inducing the plaintiffs’ employees to terminate
their contracts was to enable the first defendant to use the plaintiff’s
confidential information, which they possessed.23
[24] The defendants contend that it is not unlawful to induce employees to lawfully
terminate their employment contracts. This, they say, is why a pleading of malice is
required in these circumstances.24
[25] The plaintiffs’ pleading makes it abundantly clear that their former employees
were unlawfully induced to leave the plaintiffs’ employment for a number of reasons
and that the first defendant’s entire scheme in this connection was unlawful. In these
circumstances, malicious intent is not a requirement for the acts of unlawful competition
on which the plaintiffs rely, and therefore, it was not required to be pleaded.25
[26] Finally, the defendants assert that the first defendant had a legitimate business
purpose in constructing and commissioning its own cold storage facilities. This may be
so, but the plaintiffs’ complaint is that the manner in which this was achieved by the
defendants amounts to the unlawful scheme by the first defendant to speed up and
improve what would otherwise have been the lawful construction and running of its cold
storage facilities.26
CONCLUSION
[27] I hold the view that particulars of claim plead a complete cause of action in
respect of each plaintiff because their claims, as formulated, rely on the allegations of
unlawful interference with their trade, supported by allegations of the misappropriation
of their confidential information and the solicitation of employees in breach of their
duties of loyalty and confidentiality. In summary, what is pleaded is a ‘springboard-
duties of loyalty and confidentiality. In summary, what is pleaded is a ‘springboard-
scheme’ to exploit an unlawful competitive advantage with the resultant suffering of
23 It is pleaded that all of this was unlawful.
24 The plaintiffs plead ad nauseum that this harr-causing conduct was unlawful.
25 Nor is it necessary to plead that the harm-causing conduct was done to cripple the plaintiffs’ business.
26 The plaintiffs unlawfully gained an unfair advantage.
economic harm. Thus, there is no reason why the defendants should not be required to
plead to the plaintiffs’ particulars of claim as currently formulated. The defendants, if
they so wish, can plead that they acted lawfully, and this is then an issue which will
ultimately be decided by the trial court.27
ORDER
[28] The following order is granted:
1. The defendants’ exception dated 15 September 2025 is dismissed with costs.
2. The defendants are to file and deliver their further pleadings to the plaintiffs’
particulars of claim by no later than 17 April 2026.
3. The defendants are to pay the costs and incidental to the exception
proceedings (jointly and severally, the one paying the others to be absolved) on
the scale as between party and party, as taxed or agreed, together with the
costs of two counsel (where so employed) on Scale C.
_________
WILLE, J
(Cape Town)
APPEARANCES:
For the Defendants (Excipients)
Advocate W R E Duminy SC
Advocate G P Solik
Webber Wentzel Attorneys
For the Plaintiffs
Advocate D Melunsky SC
Andrew De Vos and Associates
27 Nothing prevents the defendants from pleading to the current particulars of claim.