REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2026-036213
DATE: 23 March 2026
In the matter between:
CUT-N-WELD SUPPLIES (PTY) LIMITED Applicant
and
DANIEL SHAUNE BRITZ First Respondent
THUTHUKA WELDING PRODUCTS (PTY) LTD Second Respondent
Neutral Citation: Cut-N-Weld Supplies v Britz and Another (2026-036213)
[2026] ZAGPJHC --- (23 March 20265)
Coram: Adams J
Heard: 12 March 2026
Delivered: 23 March 2026 – This judgment was handed down electronically
by circulation to the par ties' representatives by email , by being
uploaded to CaseLines and by release to SAFLII. The date and
time for hand-down is deemed to be 10:30 on 23 March 2026.
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Summary: Civil procedure – urgent application – for final interdictory relief
against erstwhile employee of company and his new employer – restraint o f
trade – unlawful competition and unlawful use of confidential information –
Application found to be urgent – the Court also held that restraint of trade
agreement concluded between the parties even though it did not contain
employee’s full signature – on the evidence, employee found to have intended
to be bound by the restraint of trade –
Held that restraint of trade is not binding – a restraint of trade will generally be
considered unreasonable if it does not protect some legally recognisable
interest of the party in whose favour it is granted but merely seeks to eliminate
competition – applicant failed to demonstrate a proprietary interest worthy of
protection by the restraint of trade –
Ditto unlawful competition – to constitute confidential information, such
information should: (a) involve and be capable of application in trade or
industry; (b) must be useful; (c) must not be public knowledge and public
property, that is objectively determined, it must be known only to a restricted
number of people or to a closed circle of persons; and (d) objectively
determined must be of economic value to the person seeking to protect it –
applicant failed to comply with these requirements – no protectable interested
demonstrates – application should therefore fail –
Urgent application dismissed with costs.
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ORDER
(1) The applicant’s urgent application be and is hereby dismissed with costs.
(2) The applicant shall pay the first and the second respondents’ costs of this
urgent application, includ ing Counsel’s charges on scale ‘C’ of the tariff
referred to in Uniform Rule of Court 67A(3), read with rule 69.
JUDGMENT
Adams J:
[1]. The applicant (Cut-N-Weld Supplies) is a company that specialises in the
importing and distribution, throughout Sub -Saharan Africa, of cutting and
welding machines, gouging carbons, ARC accessories, MIG (Metal Inert Gas)
and accessories, TIG (Tungsten Inert Gas) and accessories, plasma and
accessories, gas equipment, safety equipment and welding consumables. The
first respondent (Mr Britz) was – from March 2024 to February 2026 – employed
by the applicant as an ‘Operations Assistant / Internal Sales Representative’.
During February 2026, he took up employment with the second respondent
(Thuthuka Welding Products) in the capacity as an ‘Operational Assistant’.
[2]. The second respondent, which has been in business for over forty years,
is also involved in the Welding Industry and describes itself as a manufacturer
and a distributor mainly of welding electrodes . The applicant alleges that the
second respondent is a direct trade competitor of it. The second respondent, so
it is alleged by the applicant, is a company conducting business in competition
with it. A ccording to their website, the second respondent manufactures a
complete range of welding electrodes , which includes mild steel, low alloy,
stainless steel, cast iron , as well as numerous hard facings , and it is a
wholesaler and supplier of various grades of MIG, TIG and Flux -cored wires,
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gouging carbons and welding consumables (welding electrodes, welding wire,
gouging electrodes and respiratory protection).
[3]. The applicant alleges that the first respondent, by taking up employment
with the second respondent, is in breach of a Restraint of Trade agreement
concluded between him and the applicant. The first and the second
respondents, so the applicant avers, are also competing unlawfully with it in that
they are in possession of and intend using the applicant’s confidential
information in order to gain an unfair advantage over it in competing for
business opportunities.
[4]. In this opposed urgent application the applicant applies, on an urgent
basis, for an order in the following terms: -
‘(1) … ... …
(2) Interdicting and restraining the first respondent for a period of 12 months as from
4 February 2026 from being employed by the second respondent and any
business concern or other entity operating in competition with the applicant.
(3) Interdicting and restraining the first respondent from disclosing and/or using, for
personal benefit or the benefit of any third party, any proprietary and confidential
information, including but not limited to contractual arrangements between the
applicant, its clients and business associates, client lists, supplier lists, pricing
structures, credit and discount terms, process, methods, menus, technology,
computer programmes and software and all other issues that relate to the
operations of the Applicant.
(4) Interdicting and restraining the second respondent from using, for personal
benefit or the benefit of any third party, any proprietary and confidential
information including but not limited to client lists, supplier lists, pricing structures,
credit and discount terms, process, methods, menus, technology, computer
programmes and software and all other issues that relate to the operations of the
applicant.
(5) Interdicting and restraining the first respondent from disclosing and/or using, for
(5) Interdicting and restraining the first respondent from disclosing and/or using, for
personal benefit or the benefit of any third party, technical data and application
techniques relating to welding technology programs, literature, designs, patents,
inventions, systems that are used, applied, or developed by the applicant.
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(6) Interdicting and restraining the second respondent from using, for personal
benefit or the benefit of any third party, technical data and application techniques
relating to welding technology programs, literature, designs, patents, inventions,
systems that are used, applied, or developed by the applicant.
(7) Interdicting and restraining the first respondent from disclosing and/or using, for
personal benefit or the benefit of any third -party data, records, documentation,
trade secrets, trade connection confidential to the applicant, programs and
databases of the applicant and material relating to the affairs of the applicant.
(8) Interdicting and restraining the second respondent from using, for personal
benefit or the benefit of any third party, data, records, documentation, trade
secrets, trade connection confidential to the applicant, programs and databases
of the applicant and material relating to the affairs of the applicant.
(9) Interdicting and restraining the first respondent and the s econd respondent
(‘respondents’) from using, distributing, copying or publishing any confidential
information of the applicant and/or personal information, as defined in the
Protection of Personal Info rmation Act 4 of 2013 (‘the Act’), of the applicant’s
clients and suppliers in any manner, either directly or indirectly, for any purpose.
(10) Directing the respondents to delete, remove and/or destroy all of the applicant’s
clients’ and suppliers’ personal information, as defined in the Act, and data in
their possession from the respondents’ electronic devices, including laptops, cell
phones, storage disks (including Hard Disk Drives, Sold State Drivers, USB Flash
Drives, and/or micro disks) and/or tablets of any sort and any Cloud storage
service, including Google Drive.
(11) Directing the respondents to delete, remove and/or destroy all soft copies of the
applicant's confidential information documentation, contemplated in clauses 2 of
applicant's confidential information documentation, contemplated in clauses 2 of
the first respondent's agreement on Restraint of Trade from the first respondent’s
electronic devices, including laptops, cell phones, storage disks (including Hard
Disk Drives, Sold State Drivers, USB Flash Drives, and/or micro disks) and/or
tablets of any sort and any Cloud storage service, including Google Drive.
(12) Directing that the first respondent deliver to the applicant, within 24 (twenty four)
hours of the granting of this order, all the applicant's documents, property,
business credit cards, customer and client lists, costing sheets, databases,
written material and software programs, whether produced by the first respondent
or by others and in his possession or under his control, alternatively written
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confirmation that he is not in possession of any such information, materials or
data.
(13) Interdicting and restraining the first respondent from retaining copies of the
documents and programs referred to in paragraph 12.
(14) Directing the first respondent to deliver all hard copies of documents and
programmes referred to on paragraph 12 within 24 ( twenty-four) hours from date
of granting of the Court Order, alternatively written confirmation that he is not in
possession of hard copies of documents and programmes contemplated in
paragraph 12.
(15) The first respondent to pay the cost of the application on the scale between
attorney and client.
(16) The second respondent to pay the costs of this application, jointly and severally
with the first respondent, the one paying the other to be absolved, in the event
that this application is opposed by the second respondent.
(17) Further and alternative relief.’
[5]. So, in sum, in this urgent application , the applicant seeks final
interdictory relief against its former employee, the first respondent, and his new
employer, the second respondent. The applicant primarily seeks to enforce a
twelve-month restraint of trade agreement, which it contends is binding on Mr
Britz, and to interdict him from being employed by the second respondent,
whom it describes as a direct competitor. Furthermore, the applicant seeks a
wide range of ancillary relief aimed – in a shotgun approach – at protecting its
alleged confidential informatio n and trade connections, including orders
compelling the return and destruction of data and interdicting both respondents
from using such information. The relief is also premised, in part, on alleged
contraventions of the Protection of Personal Information Act 4 of 2013 (POPIA).
[6]. In issue in this opposed urgent application is whether the applicant has
demonstrated a sustainable cause of action based on a breach of a restraint of
trade agreement and unlawful competition and the misappropriation of
trade agreement and unlawful competition and the misappropriation of
confidential information. Crystalised further, the question to be considered by
me is whether the applicant has proven a protectable interest worthy of
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protection by a final interdict. Those issues are to be decided against the factual
backdrop as set out briefly in the paragraphs which follow.
[7]. The applicant’s case in relation to its protectable interest is that it lies in
the applicant's accumulated commercial intelligence about how its products are
priced, sold and applied in relation to its own customers and suppliers. This
information, so the applicant contends, is not publicly available and can be used
by a manufacturer or a distributor, such as the second respondent , to refine its
pricing, product range and sales strategy to the applicant's detriment.
[8]. The first issue for determination , that being urgency, I shall make short
thrift of. This matter, which relates to the enforcement of a restraint of trade , is
inherently urgent. The restraint period is limited to twelve months from 4
February 2026. If this matter were to follow the normal course, the restraint
period would be substantially, if not entirely, completed before the application
could be heard. The harm the applicant seeks to prevent is the disclosure and
use of its alleged confidential information and the erosion of its trade
connections during this finite period. Once such information is disclosed, or a
competitor gains an unfair foothold, the ha rm is irreversible and cannot be
adequately remedied by a subsequent award of damages. The short
abridgement of time between the launching of the application and the hearing,
necessitated by the parties’ own filing timelines, does not detract from this
inherent urgency. The applicant’s explanation for the truncated timelines is
reasonable in the circumstances.
[9]. Consequently, I find that the applicant has made out a proper case for
the matter to be heard as one of urgency. The application for condonation for
non-compliance with the forms and service is granted.
[10]. The next issue is that relating to the e xistence of the Restraint of Trade
[10]. The next issue is that relating to the e xistence of the Restraint of Trade
Agreement. In that regard, there is a dispute between the parties as to whether
a valid restraint of trade agreement was ever concluded between the applicant
and Mr Britz. It is common cause that the document titled ‘Agreement on
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Restraint of Trade ’ (‘the R oT’) does not bear Mr Britz’s full signature on the
signature page. It does, however, bear his initials on every page, including the
last page. Mr Britz’s employment contract, signed on the same day, was fully
executed by him.
[11]. Mr Britz contends that he is not bound by the R oT because he did not
sign it. He argues that the pack of documents he received included the R oT,
and if he had intended to be bound by a restraint, he would have signed it. The
applicant argues that the initials constitute a valid signature, demonstrating Mr
Britz’s animus contrahendi (intention to be bound). It points to an email chain
showing the documents were sent to him for consideration days before they
were signed.
[12]. I find myself in agreement with this contention on behalf of the applicant.
The simple point is that t he legal position is that no special form of signature is
required for a restraint of trade agreement. In fact, there are no legally
prescribed formalities in relation to the conclusion of restraint of trade
agreements. In any event, in Van Niekerk v Smit and Others 1, albeit in a
different context, it was held as follows: -
‘Nor am I any more impressed by the contention that the letter of exercise is not
“signed”. Signature does not necessarily mean writing a person's Christian and
surname but any mark which identifies it as the act “of the party” – Morton v Copeland,
16 C.B. 517 per MAULE, J., at p. 535. To sign, as distinguished from writing one's
name in full is to make such a mark as will represent the name of the person signing.
(In re Trollip, 12 S.C. 243 at p. 246, per Lord De Villiers.) See also R v Matanda, 1923
AD at p. 436. Pencil signatures, signature by initials or by means of a stamp, or by
mark, or by a party's writing below a printed heading are all sufficient under the Statute
of Frauds (vide Halsbury, Laws of England, Vol. 7, para. 179, Hailsham Ed.) ’
(Emphasis added).
1 Van Niekerk v Smit and Others 1952 (3) SA 17 (T).
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[13]. On the basis of this case authority, I conclude that the first respondent
had every intention to be bound by the terms of the Restraint of Trade
Agreement. The evidence before me supports this conclusion.
[14]. This matter can and should be distinguished on the evidence and the
facts from E-MD Technologies (Pty) Ltd v Soni2, to which I was referred to by Mr
Swiegers, who appeared on behalf of the first and the second respondents. In
the latter case, the employee had specifically denied that he entered into the
restraint of trade agreement as, so his evidence went, he had been advised by
his legal representatives against signing the restraint of trade agreement
because there were a number of difficulties the legal representative identified in
the restraint of trade agreement. The employee in that matter had therefore
taken a conscious decision not to enter into a restraint of trade agreement and it
is for this reason that he did not attach his full signature to the said document
presented to him.
[15]. In this matter, there is no such specific denial supported by objective
evidence. The first respondent simply states that he notes that the restraint of
trade agreement was not signed by him and despite his initials appearing on the
document it is clear that where the witness signed, he has not signed the said
agreement. He then goes on to ‘ deny that the restraint agreement is valid on
this point alone and that lack of agreement in this regard is fatal to the
applicant's relief …’. In conclusion on this point, the first respondent says the
following in his answering affidavit: -
‘I submit that if I intended to be bound by restraint provisions, I would have signed the
restraint agreement. My physical address and postal address were also omitted from
the restraint agreement.’
[16]. The way in which the first respondent addresses this issue and the
formulation of his case on this aspect of the matter , are instructive. It is not a
formulation of his case on this aspect of the matter , are instructive. It is not a
denial that he concluded a restraint of trade agreement with the applicant. Nor
is it a disavowal of him committing himself to be bound by the provisions of all of
2 E-MD Technologies (Pty) Ltd v Soni 2020 JDR 2437 (LAC).
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the documents, including the restraint of trade agreement, presented to him by
the applicant during January 2024. What he does say – almost as an
afterthought – is that, seeing that his full signature is not attached to the
restraint of trade agreement (which implies that he accepts that he intended
concluding the said agreement), the said agreement is not valid. Nowhere in his
papers does the first respondent clearly and unequivocally deny that he entered
into a restraint of trade agreement, which should b e contrasted with the
applicant’s version that ‘[o]n or about 22 January 2024 and at Sebenza,
Edenvale, the first respondent entered into a written “Agreement on Restraint of
Trade” ("ROT")’.
[17]. For these reasons, I am of the view that this matter is distinguishable
from E-Md Technologies. The first defendant did, in my judgment, conclude with
the applicant the written restraint of trade agreement on 22 January 2024, which
provide in the important parts as follows: -
‘2. CONFIDENTIALITY:
The Parties hereto therefore agree as follows:
2.1. The Employee acknowledges that, by virtue of the Employer engaging his
services, he shall become possessed of and will continue to have access to the
technical data, trade secrets and confidential information of the Employer,
Including but not limited to the following matters, all of which are hereinafter
referred to as confidential information relating to the Employer: -
2.1.1. Contractual arrangements between the Employer, its Clients and business
associates;
2.1.2. Financial details (including pricing structures, credit and discount terms)
relating to the Employer and its dealings with business associates and
clients;
2.1.3. Details as to the remuneration paid by the Employer to any of its
employees, consultants or other business associates.
2.1.4. Technical data and application techniques relating to welding technology
programmes, literature, designs, patents, inventions, systems and any
programmes, literature, designs, patents, inventions, systems and any
other issue or topic that relates to any of the aspects referred to above that
are used, applied or developed by the Employer
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2.1.5. Any and all other matters which relate to the business of the Employer and
in respect of which information is not readily available in the ordinary
course of business to a competitor of the Employer and/or are not within
the knowledge of the public domain.
2.2 The Employee accordingly agrees and undertakes, in order to protect the
proprietary interests of the Employer and its Clients in its confidential information,
that:
2.2.1. The Employee will not, during the course of this agreement or at any time
thereafter, either use, directly or indirectly divulge or disclose to any person
whomsoever or entity whatsoever for any reason whatsoever any
confidential information of the Employer or any of its Clients.
2.2.2. Any written Instructions, notes, drawings, memoranda, techniques, welding
technology programmes, literature, designs, patents, inventions, systems
and any other matter or topic related thereto or any client lists, pricing
structures and / or records relating to the confidential information of the
Employer or its Clients which are made by the Employee or which come
into the possession of the Employee during the course of his rendering
services to the Employer, shall be deemed to be the property of the
Employer and shall be surrendered to the Employer on demand and in any
event upon termination of his services for any reason whatsoever, and the
Employee shall not retain copies and/or extracts of same.
2.3. Any breach of this provision, be it during or after termination of the employment
relationship, shall entitle the Employer to obtain relief from a competent Court
and the costs associated with such approach to a Court shall be recovered from
the Employee, The Parties hereto agree that the Employer shall be entitled to
claim monetary relief equivalent to 25% of the Employee's annual remuneration
as would be applicable at the time of the breach of this clause.
… … …
RESTRAINT OF TRADE:
as would be applicable at the time of the breach of this clause.
… … …
RESTRAINT OF TRADE:
3.1. The Parties hereto recognise that the Company operates in a highly competitive
market where trade secrets, pricing structure, technical data and -programmes,
Inventions and Innovations, client lists and operational data are of extreme
importance.
3.2 If such information is disclosed to competitors, it could have serious financial
repercussions for the Company.
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3.3 The Employee therefore agrees to the following terms:
3.3.1. The Employee undertakes not to:
3.3.1.1. disclose, divulge, use or in any other manner apply any of the Employer's
confidential information to the detriment of the Employer;
3.3.1.2. or to become involved, either directly or indirectly and whether as
employee, director, member of a closed corporation, shareholder,
partner or financier in any other business concer n or other entity
operating in the welding technology sector and which is or may be in
competition with the Employer for a period of twelve (12) months after
termination of his services with the Employer for whatever reason.’
[18]. The next question which arises is whether the applicant has a
protectable interest deserving of protection by the Restraint of Trade.
[19]. In Basson v Chilwan and Others 3, the Appellate Division held that in
determining the reasonableness or otherwise of the restraint of trade provisions
the Court must ask the following questions: (a) is there an interest of the one
party, which is deserving of protection at the termination of the agreement?
(b) Is such interest being prejudiced by the other party? (c) If so, does such
interest so weigh up qualitatively and quantitatively against the interest of the
latter party that the latter should not be economically inactive and unproductive?
(d) Is there another facet of public policy having nothing to do with the
relationship between the parties but which requires that the restraint should
either be maintained or rejected?
[20]. A restraint of trade will generally be considered unreasonable if it does
not protect some legally recognisable interest of the party in whose favour it is
granted but merely seeks to eliminate competition. In that regard, it is well
established that the proprietary interests that can be protected by a restraint
agreement are essentially of two kinds, namely: (a) the relationships with
agreement are essentially of two kinds, namely: (a) the relationships with
customers, potential customers, suppliers and others that go to make up what is
compendiously referred to as the 'trade connections' of the business, being an
3 Basson v Chilwan and Others 1993 (3) 742 (A);
13
important aspect of its incorporeal property known as goodwill; and (b) all
confidential matter which is useful for the carrying on of the business and which
could therefore be used by a competitor, if disclosed to him, to gain a relative
competitive advantage. Such confidential material is sometimes compendiously
referred to as 'trade secrets'.
[21]. The applicant allege s in this regard that it has a protectable interest in
that it seeks to protect both its trade connections and its confidential
information. Neither of these interests are worthy of protection and I say so for
the reasons set out in the paragraphs which follow.
[22]. The issue of competition between the applicant and the second
respondent is an important consideration as far as reasonableness is
concerned. Whilst there is competition to a limited extent between t he applicant
and the second respondent, it has to be accepted as a fact that the second
respondent mainly is a manufacturer and a distributor of welding electrodes and
that this constitutes 80% of its business . On the other hand, t he applicant is a
distributor of a broad range of welding equipment and related accessories. The
applicant acquires from its suppliers premanufactured products and then on sell
those products to its clients, who are, in the main, distributors / retailers
themselves.
[23]. This means that the overlap between the business conducted by the
applicant and that of the second respondent is minimal. That, in my view,
translates into a conclusion that as against the second respondent the applicant
cannot be said to have a proprietary interest worthy of protection.
[24]. Moreover, and, as a general proposition, I do not think, all things
considered, that the applicant has demonstrated that it has a proprietary interest
worthy of protection under a restraint of trade agreement or on the basis of
unlawful competition.
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[25]. The applicant's contention is that it has protectable proprietary interests
in confidential information and trade connections . It states that its pricing and
discounting is confidential and would be useful to the second respondent. The
difficulty with this contention is that, on the applicant’s own version, its pricing
and by implication the related discounting are changed on a monthly basis .
Moreover, the pricing of the applicant is communicated regularly to its
customers, which include the second respondent. The simple point is that the
applicant’s pricing and discounting structure cannot possibly be a proprietary
interest because it is in the public domain.
[26]. The same can also be said of the claim by the applicant that the type of
work done by its internal sales representatives , as the first respondent was
during his employment with it, require s special skills and entailed knowledge
peculiarly acquired by them in their capacities as internal sale representatives at
the applicant. These representatives, so the applicant alleges, handle calls from
customers and recommend product s best suited for a particular project. They
ascertain which products are better suited for particular applications for the
specific requirements of clients and then make appropriate recommendations to
customers.
[27]. The respondents contend that the applicant overstates the position in
that regard. It may be so that end users purchase product s which could use
input on various products and consumables to be used , so the respondent
argues, but it is not conceivable that same would apply where the applicant
supplies distributors.
[28]. I agree with this contention. Common sense dictates that no input into
premanufactured products would be required by the applicant, who on sell
these products to distributors. These products, in any event, come with manuals
from the Original Equipment Manufacturers (OEM’s) and any sales
from the Original Equipment Manufacturers (OEM’s) and any sales
representative can familiarise himself or herself with the qualities and special
features of a product simply by reading the manual. The applicant has not , in
my view, demonstrated that, as regards the information it has in relation to the
15
products it imports and distributes, it is in possession of confidential matter
which is useful for the carrying on of the business and which could be used by a
competitor, if disclosed to him, to gain a relative competitive advantage (to
quote from Basson v Chilwan and Others ). I cannot possibly be suggested that
this information can and should be regarded and treated as 'trade secrets'. This
alleged confidential information regarding the premanufactured products come
from the OEM’s and not from the applicant.
[29]. Importantly, and this point deserves particular emphasis, the alleged
‘training’ received by the first respondent whilst in the employ of the applicant,
which, according to the applicant equates to trade secrets, was nothing more
than a rehash of product information obtained by the a pplicant from the OEM’s
as the manufacturer s of the products on-sold by the applicant. Moreover, the
applicant publishes this information on its website in the form of t echnical and
operator manuals, with specifications in relation to the products distributed by it.
How then, I ask rhetorically, can it be said that the skills acquired by the
applicant’s sales representatives is a proprietary interest if the information
received during this training is publicly available?
[30]. As for the applicant’s claim on the basis of its confidential information,
the nature of protectable interests has indeed been described as confidential
information and trade secrets, trade connections, or both. The confidential
information, whether information, know -how, technology or a method, must be
objectively worthy of protection and have value in the sense that it concerns
matter such as business opportunities, customer information, proposals,
marketing, price or pricing arrangements, product specifi cations, know -how,
technology or manufacturing details which are unique to the business and not
generally available to third parties. It must have actual economic value to the
generally available to third parties. It must have actual economic value to the
party seeking to protect it, in circumstances in which the employee is obliged
contractually to keep it confidential. The information must not be public
knowledge, public property or be available in the public domain. To be
confidential and therefore worthy of protection, it must be shown to be specific
or unique to the respondent, wi th economic value, and known only to a
16
restricted number of people or a closed circle within its business while being
capable of use or application within the same trade or industry.
[31]. Does the applicant ’s application for relief based on the misappropriation
of its confidential information (prayers 3 to 14 of the notice of motion) meet the
requirements set out in the aforegoing paragraph? In my view, the answer to
this question is no. And I say so for the reasons which follow.
[32]. In Experian South Africa (Pty) Ltd v Haynes and Another 4, it was held
that p roprietary interests that may be protected by a restraint of trade
agreement between an employer and an employee include trade connections
and confidential information. An employer seeking to enforce a restraint
agreement is required only to invoke it and show breach, whereupon the
employee seeking to avoid it must show unreasonableness by establishing, for
example, that he had no access to confidential information or never acquired
any significant personal knowledge of, or influence over, the employer's
customers. For the employer it suffices to show that there was confidential
information or trade connections to which the employee had access and which
could, in theory, be exploited by the new employer.
[33]. It is trite that the law enjoins confidential information with protection.
Whether information constitutes a trade secret is a factual question. For
information to be confidential it must be capable of application in the trade or
industry, that is, it must be useful and not be public knowledge and property;
known only to a restricted number of people or a close circle; and be of
economic value to the person seeking to protect it.
[34]. The first thing that has to be said about the applicant’s claim base d on its
confidential information is that it has to be accepted as a fact that the first
respondent is not in possession of the applicant’s confidential information in the
respondent is not in possession of the applicant’s confidential information in the
form suggested in the paras 1 to 14 of the notice of motion. It cannot possibly
4 Experian South Africa (Pty) Ltd v Haynes and Another 2013 (1) SA 135 (GSJ); (2013) 34 ILJ 529 (GSJ).
17
be suggested, on the evidence presented in this matter, that the first respondent
is in physical possession of contractual arrangements between the applicant, its
clients and business associates, client lists, supplier lists, pricing structures,
credit and discount terms, process, methods, menus, technology, computer
programmes and software and all other issues that relate to the operations of
the applicant.
[35]. In his answering affidavit, the first respondent clearly and unequivocally
denies that he has in his possession any of the applicant's confidential
information. This is how the first respondent puts it in his answering affidavit:
‘64. I deny that I have possession of the applicant’s confidential information and
further that the applicant has not shown in what manner any of its information, it
in general terms declares to be confidential, is indeed of such a nature. I have not
made any copies of any of the applicant's information and the applicant has
collected all the applicant's devices and equipment from me when I was no
longer required to serve out my notice period.’ (Emphasis added.
[36]. These allegations are not seriously challenged by the applicant. And, as I
said, it has to be accepted as a fact that the first respondent is not in physical
possession of any of the applicant’s alleged confidential information.
[37]. The first respondent explains that he never dealt with the applicant's
suppliers and cannot disclose anything to the second respondent that could
enable the second respondent to ‘bypass’ the applicant. He says that he does
not know the costing of the applicant and is in no position to give any such
information to the second respondent.
[38]. I have no reason not to accept the first respondent’s word in that regard.
I am therefore of the view that the applicant has failed to demonstrate that the
first respondent was possessed of such information.
[39]. The respondents also contend that t he applicant’s allegations regarding
[39]. The respondents also contend that t he applicant’s allegations regarding
Mr Britz’ s customer relationships are vague. His consistent version, so the
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respondents contend, which must be accepted on the papers where a genuine
dispute exists, is that he was an internal sales representative who dealt with
customers on an ad hoc basis. He did not have a fixed client list, did not
perform external sales functions, and did not build the kind of personal
relationships that would enable him to sway customers to follow him to a
competitor. The fact that he may have been the primary contact for the second
respondent’s orders is a function of his daily duties and do es not, on its own,
establish a protectable trade connection.
[40]. I agree with this submission. All things considered the applicant has not,
in my view, proven otherwise. His interaction with clients as an internal sales
representative did not mean that the first respondent acquired the type of
information which can firstly be described as confidential information, nor can it
be said to have the qualities making it a proprietary interest.
[41]. As for the technical specifications of products , which the first respondent
is alleged to have been trained on and which translated into a protectable
interest, I have already dealt with that aspect supra. That information is in the
public domain, available on the applicant’s website or from the OEMs. Pricing
was therefore not a secret. Moreover, the first respondent had no independent
authority to set prices or grant discounts without management approval, and he
did not have access to underlying cost price s or supplier procurement terms.
Importantly, the applicant itself admits that it sends a full price list, including
distributor pricing, to its customers, including the second respondent, on a
monthly basis.
[42]. In sum, it is so, as contended on behalf of the respondents, that t he
applicant has made broad and vague allegations of protectable interests, but
when tested against the respondents’ detailed denials and the applicant’s own
admissions in reply, these allegations fall away. The true nature of the
admissions in reply, these allegations fall away. The true nature of the
applicant’s case appears to be an attempt to use the restraint of trade and the
case based on unlawful competition as a sword to eliminate lawful competition
from the second respondent, rather than as a shield to p rotect a legitimate
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proprietary interest. This is not permissible. As was held in Sibex Engineering
Services v Van Wyk and Another 5, a restraint cannot be used merely to
eliminate competition.
[43]. Consequently, the applicant has failed to establish the first and most
crucial requirement for a final interdict: a clear right. It has not demonstrated
that it possesses a protectable proprietary interest, whether in the form of trade
connections or confidential information, that is worthy of protection and that is
threatened by Mr Britz’s employment with the second respondent.
[44]. In my view, the applicant fails to prove the requirements for a cause of
action based on restraint of trade, confidential information and springboarding.
As submitted on behalf the respondents, information about the products sold by
the applicant is not confidential. The details relating to the applicant’s suppliers
are not known to the first respondent, nor is the details of the applicant’s clients.
[45]. Moreover, the applicant’s business process es are not confidential. Its
pricing structure is widely publicised to all of their existing clients and on their
website. That information is easily accessible, not unique to the applicant and
‘not confidential at all’. 6 Also, as was held by this court in Combustion
Technology (Pty) Ltd v Peck 7, where there is ‘ nothing unique about the way an
applicant is doing business or nothing unique about its sales methods, and its
methods are those generally adopted in a particular trade or industry, such
methods cannot be considered confidential and therefore protectable ’. This, in
my view, is apt in casu.
[46]. By the same token, the customers of the applicant are not confidential.
They are the ma jor names in the welding industry . Moreover, none of this
information or documents containing same, is in possession of the first
respondent.
5 Sibex Engineering Services v Van Wyk and Another 1991 (2) SA 482 (T).
respondent.
5 Sibex Engineering Services v Van Wyk and Another 1991 (2) SA 482 (T).
6 Waste Products Utilisation (Pty) Ltd v Wilkes and Another 2003 (2) SA 515 (W).
7 Combustion Technology (Pty) Ltd v Peck 2020 JDR 1935 (GJ) at para 55.
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[47]. As was held in Alum-Phos (Pty) Ltd v Spatz and Another 8, to constitute
confidential information, such information should: (a) involve and be capable of
application in trade or industry; (b) must be useful; (c) must not be public
knowledge and public property, that is objectively determined, it must be known
only to a restricted number of people or to a closed circle of persons; and
(d) objectively determined must be of economic value to the person seeking to
protect it.
[48]. As I have already indicated, n one of these requirements have been
proven by the applicant . Importantly, it has not been proven that the first
respondent is in possession of the alleged confidential information.
[49]. In my view, the applicant has not demonstrated that it has protectable
proprietary interest that are being or will be infringed by the respondents. The
applicant has not presented any evidence of unlawful competition, and there is
no evidence in the papers of any injury having been actually committed or
reasonably apprehended.
[50]. For all of these reasons, the applicant ’s application should fail. The
application therefore falls to be dismissed, with the costs to follow the suit.
Order
[51]. In the result, I make the following order:
(1) The applicant’s urgent application be and is hereby dismissed with costs.
(2) The applicant shall pay the first and the second respondents’ costs of this
urgent application, including Counsel’s charges on scale ‘C’ of the tariff
referred to in Uniform Rule of Court 67A(3), read with rule 69.
8 Alum-Phos (Pty) Ltd v Spatz and Another [1997] 1 All SA 616 (W) at 623A–624A;
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HEARD ON: 12 March 2026
JUDGMENT DATE: 23 March 2026 – Judgment handed
down electronically
FOR THE APPLICANT: S Schulenburg
INSTRUCTED BY: Hutcheon Attorneys,
Bedfordview, Germiston
FOR THE FIRST AND THE
SECOND RESPONDENTS: S Swiegers
INSTRUCTED BY: Alet C Moorcroft Attorneys,
Edenglen, Edenvale, Germiston