THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case no: 2025-240756
In the matter between:
ACCU AIR (PTY) LTD Applicant
and
DYLAN DE WITT First respondent
LEON BRODRICK Second Respondent
CLIMATE CONTROL (PTY) LTD Third Respondent
WESTCOOLING (PTY) LTD Fourth Respondent
Heard: 17 March 2026
Delivered: 17 March 2026
Summary: An urgent application to enforce restraint of trade and confidentiality
undertakings against two former employees, who have set up their own businesses
in competition with the former employer post termination of employment. Applicant
dragged its feet in approaching the Court , and substantial redress in due course is
possible given the provision for liquidated damages agreed in the contract of
employment.
(1) Reportable: No
(2) Of interest to other Judges: No
17 March 2026
Signature Date
JUDGMENT
GANDIDZE, J
Introduction
[1] The urgent application seeks to enforce against two former employees, De
Witt and Brodrick, obligations agreed to in a contract of employment. The first
obligation relates to an undertaking, post -termination of employment, not to
compete with the applicant for a period of 12 months, calculated from 29 July
2025, in the Western Cape. De Witt and Br odrick both resigned from the
applicant’s employment and have since registered Climate Control (Pty) Ltd
and Westcooling (Pty) Ltd, the third and fourth respondent s, respectively, as
competitors of the applicant.
[2] The second contractual obligation sought to be enforced is that De Witt and
Brodrick do not utilise the applicant’s confidential information.
[3] Reference was also made to a conflict-of-interest obligation, but it applies only
while De Witt and Brodrick are employed by the applicant.
[4] When the matter was heard, no opposing papers had been filed.
[5] At the hearing of the application, Mr. Haupt of NGH Attorneys represented the
applicants after filing a notice of substitution as attorneys of record. The
application papers and the heads of argument were drafted by the AHI
Employer’s Organisation.
Background information
[6] The applicant, which has been in business since 2012, manufactures,
supplies, and installs air conditioning and ventilation products, and also
provides related services. It has a national presence, with seven full -time
employees in the Western Cape, but utilises subcontractors in other provinces
as needed.
[7] De Witt began employment with the applicant on 12 February 2025 and
resigned without notice on 29 July 2025.
[8] Brodrick commenced employment with the applicant on 25 March 2025 and
resigned on 29 July 2025 without providing notice.
[9] The applicant alleges that, during their employment, both De Witt and
Brodrick were directly assigned to work on the premises of a client,
Associated Fruit Processors Pty Ltd (AFP), located in Grabouw. Their
responsibilities included diagnosing the client’s needs, designing solutions,
and preparing formal proposals and quotations. As technicians, they
conducted routine maintenance on cooling and refrigeration systems and
provided advice on equipment requirements, system upgrades, and process
optimisation. Therefore, the applicant contends that they possessed detailed
knowledge of AFP’s projects.
[10] Another employee, Monique Botha (Botha), is also said to have resigned at
the same time as De Witt and Brodrick, although her whereabouts were
unknown. She was based at the applicant’s office, and her role involved
receiving technical information from De Witt and Brodrick, preparing the
costings, and drafting formal quotations for clients.
[11] The applicant’s founding affidavit states that the deponent, Mr. Luqman Khan
(Khan), the sole director of the applicant, learned that De Witt and Brodrick
organised a gathering attended by other employees, during which De Witt and
Brodrick celebrated having taken over AFP as a client. The applicant states
that it generated approximately R500 000 in revenue from AFP’s business ,
and that, when contacted about the matter, AFP neither confirmed nor denied
the reports but instead provided evasive answers. Khan s tates that the work
quoted for AFP did not proceed, suggesting it was given to another service
provider. The likely service providers are the third and fourth respondents,
who were registered in July 2025 and October 2025, respectively.
Applicant’s case on the merits
[12] The applicant asserts that both de Witt and Brodrick signed the employment
contracts, which include restraint-of-trade and confidentiality provisions.
[13] The protectable interests are confidential information and trade secrets, such
as knowledge of business opportunities, information shared in confidence,
and technical or operational know -how developed through skill and kept
confidential. These provide a competitor with a commercial advantage and
encompass what is technically available in the public domain.
[14] The applicant states that it also aims to protect customer and supplier
relationships that De Witt and Brodrick built through regular contact with the
applicant’s clients; otherwise, these clients might follow De Witt and Brodrick
to a competing business. The submission is further that both De Witt and
Brodrick were given access to AFP, a client with whom it had taken a long
time to establish a relationship. The applicant had to undergo an extensive
vetting process to secure AFP’s business, and De Witt and Brodrick were
introduced to AFP through their employment with the applicant. They were
granted access to the client’s needs, specifications, and technical information
necessary for preparing quotations and proposals, and they possess
knowledge of ongoing and upcoming projects, including submitted costings
and quotations. The submission asserts that De Witt and Brodrick used their
brief period of employment with the applicant to acquire knowledge of its
business operations — including its client base, suppli er relationships,
operational methodology, pricing structures, and commercial strategy — for
purposes entirely inconsistent with their contractual and fiduciary obligations.
[15] It was also the applicant’s case that the contractual undertakings were
enforceable unless they were shown to be unreasonable and contrary to
public policy. This is because only competition is prohibited, limited to the
Western Cape, and De Witt and Brodrick can operate their businesses
Western Cape, and De Witt and Brodrick can operate their businesses
elsewhere in the Republic. The submission was also that the applicant aims to
protect its customers.
[16] A twelve -month duration was deemed reasonable, as it is modest and
comparable to restraint periods routinely enforced by the Court.
[17] Further context was provided regarding De Witt and Brodrick’s careers. De
Witt is only 24 years old, and it is alleged that his limited experience was
gained while working for the applicant. Initially, he was employed to drive
technicians to clients and was later utilised to liaise with clients because of his
professionalism and communication skills. As for Brodrick, he is said to have
built his career primarily in the Northern Cape before relocating to the
Western Cape, where he worked for the applicant until his resignation in July
2025.
[18] As it sought a final interdict, the applicant also addressed the requirement s for
final relief. It submitted that it had a clear right to the relief sought, given the
contractual undertakings, and that the competition it was being subjected to
was unlawful. An injury had been committed against it, as it suffered
commercial harm from the cancellation of substantial purchase orders and the
exploitation of its information. It had no suitable alternative remedy because
damages would be extremely difficult to pr ove due to the numerous variables
involved—including lost business opportunities, erosion of goodwill, and the
misuse of confidential information. It was also submitted that the monetary
quantum can be determined in due course, but the restraint is sought to be
enforced to prevent further harm.
Discussion
Are the Respondents aware of the proceedings of 17 March 2026?
[19] The application, dated 8 December 2025, was filed with the Court on 9
December 2025. The notice of motion states as follows:
‘KINDLY TAKE NOTICE that in terms of Rule 39 application will be made on
behalf of the abovenamed Applicant to the above Honourable Court on a
date and time to be determined by the Registrar of the above court, for an
order in the following terms:… ’
[20] The affidavit of service states that on 9 December 2025, the Applicant’s
Notices of Application, along with the founding affidavit, were served on the
respondents.
[21] Rule 38(3) of the Labour Court Rules 1 requires a party submitting an urgent
application to sign it. The Rule then continues as follows:
‘(4) The registrar must fix a date, time and place for the hearing of the
application, having regard to the degree of urgency for which the
applicant contends.
(5) Except in the case of an ex parte application, as soon as the registrar
has allocated a date, time and place for the hearing, the party bringing
the application must serve a copy of the application, together with the
information obtained from the registrar, on the respondent.
(6) Except in the case of an ex parte application, the party bringing the
application must satisfy the court when the application is heard that a
copy of the application has been served on the respondent or that
sufficient and adequate notice of the content of the application was
brought to that party's attention by other means.
[22] Rule 39 dealing with restraint of trade applications also provide as follows:
‘(4) At the time of launching the application, the applicant must apply to the
registrar to allocate a provisional date for the hearing of the application,
such date having been calculated so as to take into account the
mandatory time periods prescribed above and the filing of heads of
argument as contemplated below. The applicant must also insert a date,
not less than 7 calendar days after launching the application, on which
the application will be heard if it is unopposed.’
[23] When the file was presented to the Court ahead of the hearing, neither Rule
38 nor Rule 39 was complied with, as an application with no set -down date
was served on the respondents . That would have been a basis to strike the
matter from the roll.
[24] At the hearing of the matter, Mr Haupt informed the Court that a Notice of
Motion with a set -down date was served on the respondents on 16 February
2026. That notice of Motion was uploaded to Caselines after the Court stood
2026. That notice of Motion was uploaded to Caselines after the Court stood
the matter down for that purpose, among other reasons. The matter could
1 Rules Regulating the Conduct of the Proceedings of the Labour Court, GN 4775, G.50608 of 3
May 2024.
also have been struck from the roll on the grounds that not all the relevant
papers were placed before the Court timeously.
[25] Be that as it may, the application will , in any event, be struck from the roll for
lack of urgency, an issue I turn to next.
Urgency
[26] Since the application was made on an urgent basis, the applicant must
comply with Rule 38 of the Labour Court Rules. Rule 38(2) specifically
requires the affidavit in the urgent application to state the reasons for urgency
and why urgent relief is necessary. It is well established that Rule 38 is not to
be invoked lightly. An applicant requesting the Court’s assistance on an
urgent basis must demonstrate why the matter is urgent and that they cannot
obtain substantial redress through normal procedures.
[27] The above-stated principles were succinctly set out in East Rock Trading 7
(Pty) Ltd v Eagle Valley Granite (Pty) Ltd 2, where the Court stated the
following:
[6] The import thereof is that the procedure set out in rule 6(12) is not
there for taking. An applicant has to set forth explicitly the
circumstances which he avers render the matter urgent. More
importantly, the Applicant must state the reasons why he claims that
he cannot be afforded substantial redress at a hearing in due course.
The question of whether a matter is sufficiently urgent to be enrolled
and heard as an urgent application is underpinned by the issue of
absence of substantial redress in an application in due course. The
rules allow the court to come to the assistance of a litigant because if
the latter were to wait for the normal course laid down by the rules it
will not obtain substantial redress.
[7] ….
2 2011 JDR 1832 (GSJ).
[8] In my view the delay in instituting proceedings is not, on its own a
ground, for refusing to regard the matter as urgent. A court is obliged
to consider the circumstances of the case and the explanation given.
The important issue is whether, despite the delay, the applicant can or
cannot be afforded substantial redress at a hearing in due course. A
delay might be an indication that the matter is not as urgent as the
applicant would want the Court to believe. On the other hand a delay
may have been caused by the fact that the Applicant was attempting
to settle the matter or collect more facts with regard thereto.
‘[9] It means that if there is some delay in instituting the proceedings an
Applicant has to explain the reasons for the delay and why despite the
delay he claims that he cannot be afforded substantial redress at a
hearing in due course. I must also mention that the fact the Applicant
wants to have the matter resolved urgently does not render the matter
urgent. The correct and the crucial test is whether, if the matter were
to follow its normal course as laid down by the rules, an Applicant will
be afforded substantial redress. If he cannot be afforded substantial
redress at a hearing in due course then the matter qualifies to be
enrolled and heard as an urgent application. If however despite the
anxiety of an Applicant he can be afforded a substantial redress in an
application in due course the application does not qualify to be
enrolled and heard as an urgent application.’
[28] The initial question is whether the applicant has outlined the reasons why the
matter is urgent and why urgent relief is required.
[29] The founding affidavit states that restraint applications are inherently urgent
because the prejudice an employer suffers cannot be remedied in due course.
The applicant further states that the restraint period runs from 30 July 2025 to
29 July 2026, and that unless the matter is heard urgently, a significant part of
29 July 2026, and that unless the matter is heard urgently, a significant part of
the restraint period will have passed, rendering any relief largely academic
and defeating the original purpose of the restraint.
[30] The answer to the above question is that, when the application was launched
in December 2025, a significant part of the restraint period had already
elapsed. Five months of the restraint period had already expired, and, as I will
demonstrate below, that period was not explained at all, other than through
broad statements about what allegedly occurred after De Witt and Brodrick
resigned from the applicant's employment, without mentioning any specific
dates so that the Court is able to decide whether to exercise its jurisdiction to
hear the matter as one of urgency.
[31] De Witt and Brodrick resigned from their employment with the applicant on 29
July 2025 without notice. The fact that these employees resigned without the
necessary notice is, in itself, a warning sign that should have raised the
applicant’s suspicions. The applicant states that it was not concerned about
these departures because De Hewitt had very limited experience and Brodrick
had most of his connections in the Northern Cape, rather than the Western
Cape. Did the applicant forget that De Witt and Brodrick had worked from
AFP’s premises?
[32] It is then alleged that the applicant received formal cancellations of two
significant purchase orders from AFP. It remains unclear when and how the
applicant was informed of these cancellations, as the relevant
correspondence has not been attached to the application papers. The
annexed documents are the two purchase orders placed in February 2025,
with delivery scheduled for March 2025. This occurred well before both De
Witt and Brodrick started employment with the applicant, and even before
they resigned from the applicant’s employment, as conceded by Mr Haupt in
oral argument. He, however, submitted that there were purchase orders which
were cancelled, but these orders were not attached to the application papers.
Therefore, it is unknown when the cancelled purchase orders were issued.
[33] Then it was stated that the smaller, routine jobs that had been quoted were no
longer materialising, which was unusual. Still , no steps were taken to
establish what was happening.
[34] The applicant claims that its concerns were confirmed when several
[34] The applicant claims that its concerns were confirmed when several
employees informed it that they had attended a gathering organised by De
Witt and Brodrick, where the two openly celebrated having taken AFP from
the applicant. What the applicant's concerns were, and when they arose, are
not specified. It is unclear when the applicant was informed about the
gathering, as this too is not stated.
[35] More concerning is why the applicant would not have acted on information
provided by several of its employees, who attended the gathering called by
De Witt and Brodrick and shared that they had just taken over AFP as a client.
[36] An expanded explanation for the delay, offered in the heads of argument, is
that after De Witt and Brodrick left the applicant, reports began to emerge
among the workforce suggesting they were soliciting and diverting the
applicant’s clients. Whether this refers to before the gathering mentioned in
the founding affidavit or something entirely different remains unclear.
[37] The heads of argument also record that these reports were unsubstantiated
workplace rumours and were therefore dismissed. It is difficult to understand
how an employer can disregard reports from its own employees that former
staff are soliciting and diverting clients.
[38] Thereafter, the applicant alleges that it followed up with the contact person at
AFP, whose evasive and non- committal responses reinforced suspicions that
De Witt and Brodrick had taken over AFP as a client. Once again, the Court is
not informed of when contact was made with the AFP contact person, despite
this being important information for explaining the delay.
[39] Be that as it may, the version proffered in the founding affidavit was that after
contact with the AFP contact person did not yield the desired result, an
investigation was conducted, and it was discovered that De Witt, Brodrick,
and Botha had compiled the quotations for the smaller orders for AFP that
had not materialised. This prompted searches of the CIPC database, which
revealed that the third and fourth respondent corporate entities were
registered in July and October 2025, respectively. Again, the Court is not told
when the CIPC searches were conducted relative to the launch of the urgent
application on 8 December 2025.
[40] It is also unknown when the applicant instructed its current representatives to
file the application and whether this was done swiftly, given that a priority
hearing date was being sought.
[41] On the facts, there is no escaping the conclusion that the explanation for the
delay is very poor. The Court is left with no option but to conclude that the
applicant sat idle for months and chose to initiate the current application five
months into the restraint period, content that it will simply argue that restraint
applications are inherently urgent . This is not the correct approach. If an
applicant delays in approaching the Court, then the urgency is self-created, as
happened in this case.
[42] Further evidence that the matter was never truly urgent is that, although the
applicant submitted the application as urgent, it still expected the dies non to
apply. This is why it states that the respondents had until 20 January 2026 to
file opposing papers. Dies non cannot and should not be applied in urgent
matters. In any event, i t is for a respondent to raise the issue of dies non, not
for an applicant who has approached the Court seeking a priority hearing
date. A matter is never truly urgent i f nothing has been done for more than a
month to advance the urgent application. The applicant’s belief that dies non
was applicable proves that the matter was not genuinely urgent.
[43] As if that was not enough, on the applicant’s version, the opposing affidavits
were due on 20 January 2026. However, it was only on 16 February 2026,
nearly a month after the dies non had expired, that a Notice of Motion with a
set down date was served on the respondents. The reason for the delay in
setting down for a hearing what was evidently an unopposed matter is not
explained. This further indicates that the matter was never urgent.
[44] To conclude, the applicant failed to explain its delay in launching the
application and subsequently failed to take the necessary steps to ensure the
application and subsequently failed to take the necessary steps to ensure the
application was treated as an urgent one. Therefore, any urgency was self -
created.
Substantial redress
[45] The other factor in assessing urgency is whether a party can secure
substantial redress in due course. In East Rock Trading, the Court explained
the requirement as follows:
[7] It is important to note that the rules require absence of substantial
redress. This is not equivalent to the irreparable harm that is required
before the granting of an interim relief. It is something less. He may
still obtain redress in an application in due course but it may not be
substantial. Whether an applicant will not be able obtain substantial
redress in an application in due course will be determined by the facts
of each case. An applicant must make out his case in that regard.
[46] It will be remembered that the applicant’s case was that it had no suitable
alternative remedy but to approach the Court with an urgent application, as
damages would be extremely difficult to prove due to the numerous variables
involved—including lost business opportunities, erosion of goodwill, and
misuse of confidential information. At the same time, it was also submitted
that the monetary quantum can be determined in due course, but the restraint
is sought to be enforced to prevent further harm.
[47] The initial submission concerning the challenge of establishing damages must
pertain to the breach of the confidentiality clause, which states as follows:
‘24. CONFIDENTIALITY
24.1 The employee shall refrain from disclosing any confidential information
to any third party or entity during the operation of this agreement or
after its termination unless the employer specifically agrees thereto.
Breach of this clause may lead to disciplinary action against the
employee.
24.2 The employee is hereby restrained from and will not, without the
Employer’s written consent, and except in the normal course of his /
her duties, disclose, use or make available to any person, or use for
personal gain any information disclosed by or acquired from the
Employer, (and including, without limitation, all and any details and
Employer, (and including, without limitation, all and any details and
information about or relating to the client) which information is
regarded by the Employer or can be reasonably regarded as
confidential. The Employee indemnifies the Employer against all and
any loss that may be sustained as a result of the employee’s breach of
this cl ause. This cl ause will endure into perpetuity and will survive
termination of this agreement for whatever reason. This clause in no
way supersedes or amends any of the secrecy undertaking in place,
and in the event of conflict, the more restrictive provision will prevail. ’
(Own emphasis)
[48] However, regarding breach of the restraint of trade undertaking, the
employment contract states the following:
‘26.3 Without prejudice to any other rights which the employer may have in
law, the employee alleges that the agreed damages due to his /her
employer will be an amount of R 5 000-00 in respect of each calendar
month during which any breach of the awful state restraint continues ,
and that the employer shall be entitled to recover such.’
[49] Therefore, in relation to any loss suffered by the applicant due to a breach of
the restraint of trade undertakings, the applicant can claim from De Witt and
Brodrick the agreed amount of R5 000 for each month they breached the
restraint of trade undertakings. This is the substantial redress that the
applicant can obtain in due course concerning the restraint undertakings,
making it unnecessary for the Court to hear the matter as an urgent one.
[50] Returning to the alleged breach of the confidentiality provision, even though
there is some merit to the applicant’s contention that proving damages in due
course will be a difficult task, I have already determined that the applicant
delayed in approaching this Court for the relief it sought. It knew for months of
a possible breach of the contractual undertaking but did nothing to protect its
rights. If the matter is struck from the roll, it can bring an application in the
ordinary course to enforce the confidentiality undertaking, or it can simply sue
De Witt and Brodrick for any damages it claims to have suffered, and which it
can prove.
De Witt and Brodrick for any damages it claims to have suffered, and which it
can prove.
[51] The above findings render it unnecessary to assess the merits of the
application.
[52] In the result, the following order is made:
Order
1. The application is struck from the roll as the urgency was self-created.
_______________________
T. Gandidze
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr Haupt (Attorney)
Instructed by NGH Attorneys
For the Respondents: No appearance