THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case no: 2025-235294
In the matter between:
DIDI WATERPROOFING SERVICES (PTY) LTD Applicant
and
WILLIAM STEVEN ELS First Respondent
MARCELL ENGINEERING (PTY) LTD Second Respondent
Heard: 26 February 2026
Delivered: 20 April 2026
Summary: An application to enforce restraint of trade and confidentiality
undertakings. The restraint clause is vague, and enforcing it would be contrary to
public policy. No credible evidence that the employee was exposed to confidential
information.
JUDGMENT
GANDIDZE, J
Introduction
(1) Reportable: No
(2) Of interest to other Judges: No
20 April 2026
Signature Date
[1] The applicant, Didi Waterproofing (Pty) Ltd, is a roofing and waterproofing
contractor operating in the City of Cape Town Metropolitan Municipality (Cape
Metro) and surrounding areas since 2008. It services residential, commercial
and industrial properties, undertaking, inter alia , painting, roofing, asbestos
removal, asbestos encapsulation, waterproofing roofs, gutters, walls,
showers, cellars, pools, door and window frames, balconies, dunn walls and
skylights. The first respondent, William Steven Els (Els ), was employed by the
applicant as a site manager, effective 19 November 2024. He resigned less
than a year later, on 23 September 2025. Upon leaving the applicant, he
started a business that, on WhatsApp and Facebook, advertises , inter alia ,
waterproofing services under the name Marcell Engineering (Pty) Ltd
(Marcell), the second respondent. Notably, Marcell was registered in May
2015, with Els as the sole director of the second respondent.
[2] The present application was intended to interdict and restrain Els from
breaching the provisions of the employment contract that Els signed, identified
as:
2.1 clause 22 which states that ‘the employee undertakes not to be engaged
in the establishing of a new business, be it direct or indirect, or as a
shareholder, partner, member of a Close Corporation, director of a
Company or in any other capacity, within 1 (one) year after termination of
this Agreement in the area known as the Municipal district of the
workplace of the Employee’.
2.2 clause 26, which addresses avoiding conflicts of interest while employed
by the applicant.
2.3 clause 27, which addresses the protection of the applicant’s confidential
information during and after termination of the employment contract.
2.4 clause 28, which addresses the misuse of employer information during the
period of employment.
[3] The applicant also sought an order interdicting and restraining Els and Marcell
(the respondents) from conducting or trading within the geographical area of
the Cape Town Metro until 23 September 2026, or for such period as the
Court may deem fit.
[4] The applicant also sought an order that Els resign as a director of Marcell, or,
alternatively, that he be interdicted from participating in Marcell 's
management, operations, and business within the Cape Town Metro until 23
September 2026.
[5] Before addressing the merits of the application, it is necessary to consider two
preliminary issues: the alleged late filing of the answering affidavit and the
question of urgency. The other highly contested issue, namely whether the
applicant sought to make out a case in the replying affidavit, becomes
academic given the conclusions reached in this judgment.
Late filing of the answering affidavit
[6] The applicant takes issue with the answering affidavit, which was filed on 20
January 2026, six weeks late. The applicant sets out the chronology (which is
dealt with under urgency) and submits that there were unexplained periods of
delay and that the respondents' explanation for the delays is inadequate.
Ultimately, the applicant submits that condonation for the late filing of the
answering affidavit must be refused, in which case the application must be
determined as unopposed.
[7] In response, the respondents explained what they did after receiving the
application, complained that they were given insufficient time to file an
answering affidavit, given the time they had to consult their attorneys, and
stated that the delay in filing the answering affidavit was due to attempts to
settle the dispute. The respondents also relied on case authorities to the
effect that litigants should first attempt to avoid litigation, which is costly and
often unnecessary.
[8] The preliminary point should never have been raised, given Rule 36 of the
Rules Regulating the Conduct of the Proceedings of the Labour Court
1
1 Published: GN 4775, G. 50608 of 3 May 2024. Commencement: 17 July 2024 - GN 5038, G. 50929
of 12 July 2024.
(Labour Court Rules), which provides that when an answering or replying
affidavit is filed late, a condonation application is not required unless the party
upon whom the affidavit is served late files, within 10 days, a notice of
objection to the late filing. Failure to file the notice of objection within 10 days
results in the right to object lapsing. The applicant did not file the notice of
objection, with the consequence that its right to object to the late filing lapsed.
The answering affidavit is properly before the court.
Urgency
[9] The application was brought as urgent, with the applicant contending that
restraint applications are inherently urgent because the restraint is only for a
limited period, and that any demonstrated proprietary interests require urgent
protection. The respondents contested the urgency, arguing that the applicant
took more than a month to approach the court after first becoming aware of
the alleged breach.
[10] For the purpose of determining urgency, the court accepts the applicant’s
version that it approached Els in October 2025 regarding the alleged breach,
and that the allegation in the founding affidavit that Els was approached in
November 2025 was clearly an inadvertent drafting error. I say this because
the October 2025 WhatsApp exchange is annexed to the founding affidavit.
[11] The court also accepts the applicant’s account that it did not need to approach
the court in October 2025 because Els undertook not to advertise
‘waterproofing’. I also accept that the parties re-engaged in November 2025,
but I consider it necessary to reproduce some of the exchanges. One reads:
Steven afternoon. I'm gonna get straight to the point . If you were retrenched
and tried to make a living I have no cobble. You resigned and goins straight
into competition with my water / weather proofing. I'm not gonna sugarcoat
****. Y ou signed the legal doc with the restraint pf trade in any and
everything related to my trade . Either you refrain from your doings as such
everything related to my trade . Either you refrain from your doings as such
or I will go the legal route or a stern warning I will call on the dogs I've been
holding back fpr so long to protect you . This is not a thread . I'm just not
protecting you anymore for the ****you caused. So now the ball is in your
court as to how this will play out. (sic)
[12] Els responded, stating, inter alia, that ‘I don’t know [what] you expect a person
to do in this economy ’, that they had a conversation in which it was agreed
that the respondents could do waterproofing but not offer the service to the
applicant’s customers, and that they would not talk to employees, both of
which Els stated he had adhered to. The WhatsApp also records this:
Once upon a time you were hungry to make something of yourself aswell , I
just hope the person you did what you had to , to create a business didn't try
to stop you like you've done to me, this country is an absolute ****hole. And I
am out here just to try and make a living, make something of myself.
Instead of perhaps helping each other and showing support you've wanted
nothing but my downfall. (sic)
[13] In yet another response, Els stated that he would not post anything further
until everything ‘is settled and understood’.
[14] Two days later, Els received a cease- and-desist letter from the applicant’s
attorneys, alleging that he had started a new business that was competing
with the applicant and offering him the option to provide an undertaking by 24
November 2025 to cease operations, failing which the court would be
approached for an interdict and a damages claim would be brought.
[15] On 25 November 2025, Els gave the letter to his attorneys. On 26 November
2025, his attorneys indicated they were taking instructions. On the same day,
the applicant’s attorneys advised that, as no undertaking had been given, they
had received instructions to bring the present application. Counsel was
briefed on 26 November 2025, and the application was finalised and launched
on 2 December 2025.
[16] The court is satisfied that the applicant acted promptly in approaching this
court after failing to obtain the undertaking sought from Els in late November
2025.
[17] Notwithstanding the above finding, it is also necessary to refer to the letter
that Els' attorneys wrote to the applicant’s attorneys on 10 December 2025,
raising several issues, inter alia , that the matter was not urgent; that there
were no protectable interests, hence the restraint was unreasonable and
unenforceable; that Els was rendering different services from those rendered
by the applicant; that the applicant’s Constitutional rights were being infringed;
that there was no evidence that clients may be solicited or that the applicant’s
confidential information may be used; and that, in any event, Els was not privy
to the applicant’s confidential information. The letter also offered an
undertaking that the respondents would not solicit or render services to the
applicant’s clients.
[18] The letter did not resolve the dispute. Several other settlement offers were
made and rejected. The final attempt was to give the respondents until 12
January 2026 to provide the undertaking, which Els alleges would have
prevented him from conducting any business in the area specified in the
restraint provision. The undertaking was not provided, and an answering
affidavit was filed on 21 January 2026. The relevance of the information in this
paragraph will become apparent later.
[19] But having acted swiftly to approach the court with its application, in my view,
a dispute does not cease to be urgent merely because the application is filed.
A party that files an urgent application cannot simply fold its hands after filing
it. It must do everything necessary to ensure the application is heard urgently.
The respondents had 7 days, calculated from 2 December 2025, to file an
answering affidavit. When the answering affidavit was not received by 11
December 2025, the due date, the applicant could have asked for the matter
to be set down for hearing on an unopposed basis. Instead, it was content to
engage the respondents in correspondence, and yet argues that the
engage the respondents in correspondence, and yet argues that the
respondents cannot rely on attempts to settle the dispute as a valid reason for
filing the answering affidavit late. For more than a month, the applicant did
nothing to set the matter down for a hearing on an unopposed basis. By the
time the application was argued at the end of February 2026, this was almost
halfway through the restraint period. These delays prove that the matter was
not as urgent as the applicant would have the court believe.
[20] Yet another reason the matter is not urgent is that an applicant must allege
and show that it cannot obtain substantial redress in due course. In the
November 2025 cease-and-desist letter, the applicant threatened to bring this
application and to file a damages claim. However, in this application, the
applicant claims it would face insurmountable challenges in pursuing a
damages claim. It can obtain substantial redress in due course through a
damages claim, as Els was informed in November 2025. The court will return
to this issue when it addresses whether the applicant has a suitable
alternative remedy.
[21] The application would fail on urgency for the reasons given above, but for
finality, the Court will dispose of it on its merits.
Brief synopsis of the applicable legal principles
[22] In Magna Alloys and Research ( SA) (Pty) Ltd 2, the court stated that a n
agreement in restraint of trade is valid and enforceable, unless it is shown to
be unreasonable and contrary to public policy. Therefore, a party seeking to
enforce a restraint need only invoke the provision and show a breach, after
which the onus shifts to the person sought to be restrained to prove that the
restraint cannot be enforced because it is unreasonable and contrary to public
policy.3 In Beedle v Slo- Jo Innovations Hub (Pty) Ltd 4, the Court stated that
the onus of proving that the restraint provisions are unreasonable lies with the
employee.
[23] In Reddy v Siemens Telecommunications (Pty) Ltd 5, the court stated that the
two principal considerations to be balanced when determining whether to
2 1984 (4) SA 874 (A).
3 See also Basson v Chilwan & others [1993] ZASCA 61; 1993 (3) SA 742 (A), Experian South Africa
(Pty) Ltd v Heyns and Another 2013 (1) SA 135 (GSJ) para 14.
4 (2023) 44 ILJ 2493 (LAC) para 34 and 35.
5 (2007) 28 ILJ 317 (SCA).
enforce a restraint of trade are the principle of pacta sunt servanda, which
requires parties to comply with their contractual obligations, and the section
22 Constitutional rights to engage freely in trade, commerce or a chosen
profession. The Court further stated that unreasonable restrictions on section
22 Constitutional rights would be contrary to public policy.6
[24] Whether a restraint is unreasonable is determined by (i) whether there is a
protectable interest deserving of protection, (ii) whether the protectable
interest is threatened or prejudiced by the other party, (iii) if so, weighing the
protectable interest against a party’s right to be economically active and
productive, and (iv) having regard to public policy considerations which have
nothing to do with the relationship of the parties, to determine whether the
restraint should be enforced or rejected. Some case authorities have added a
fifth question, namely , whether the restraint goes further than necessary to
protect the relevant interest.
[25] It is against these principles that the application will be considered
The restraint and alleged breach
[26] Although it was alleged that four clauses of the employment contract were
being breached, the only provisions relevant to the present application are
those dealing with starting a new business after termination of employment
and the confidentiality undertaking, which subsists beyond termination of the
employment relationship. The provisions regarding avoiding conflicts of
interest and misuse of the employer's information apply during employment,
not after termination.
[27] The restraint provision prohibits Els from establishing a new business after he
leaves the applicant's employment. It is not disputed that after Els left the
applicant, Marcell, which had been registered in 2015 but was dormant,
began trading and offered, inter alia, services similar to those of the applicant.
The court accepts that Marcell became a competitor of the applicant.
The court accepts that Marcell became a competitor of the applicant.
6 See Labournet (Pty) Ltd v Jankielsohn and Another [2017] 5 BLLR 466 (LAC) at para 41 and
Barkhuizen v Napier 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) at para 15.
[28] The question is whether the restraint provision prohibits Els from starting a
business that competes with the applicant. The answer is that it does not,
which explains Mr de Kock's urging the court to read the word ‘competing’ into
the restraint provision. The invitation or request is declined because it would
amount to creating a new contract for the parties. The applicant drafted a
vague restraint provision and cannot seek the court's assistance in crafting a
more sensible one.
[29] Mr de Kock’s submission that the court can read the word ‘competition’ into
the restraint provision because it has the power to grant limited relief rather
than the relief sought has no merit. Adding the word ‘competing’ would
broaden, not limit, the scope of the restraint. This is very different from limiting
the geographical area or duration of a restraint, which this court has the power
to do.
[30] There is merit in Mr Van der Merwe’s submission, with reference to Divine
Inspiration Trading 130 (Pty) Ltd v Aveng Greenaker -LTA (Pty) Ltd
7, that the
court cannot entertain the new relief of restraining the respondents from
conducting a competing new business when this is not the relief sought in the
papers, but is raised for the first time in argument. The applicant’s case must
stand or fall on the case it made in its papers. The heads of argument are not
intended to amend the relief sought, in the absence of a proper application to
amend the notice of motion.
[31] The fact that Els agreed that the restraint provision is fair, reasonable and
necessary will not save the applicant’s case. Provisions contrary to public
policy will not be enforced, even if the employee agreed to them.8 Additionally,
whether a restraint is fair, reasonable and necessary can be determined only
at the time the restraint provision is sought to be enforced, not by what was
agreed at the time of entry into the agreement.
[32] It follows that the discussion held before Els left the applicant, during which
[32] It follows that the discussion held before Els left the applicant, during which
certain undertakings were given, did not render an unenforceable restraint
7 2016 JDR 0988 (GJ).
8 Magna Alloys (supra at 905B - C).
enforceable. The application was brought under the written restraint provision,
not a verbal one.
[33] Similarly, Els's undertakings in October and November 2025 not to advertise
waterproofing services do not alter the fact that the restraint provision does
not refer to a competing business. Consequently, Els was free to compete
with the applicant after he resigned from the applicant’s employment.
[34] A troubling feature of this case is that the applicant failed to disclose all
relevant facts to the court, in the hope that they would never come to light. In
fact, it appears that this was the reason the applicant vigorously raised the
late filing of the answering affidavit as an issue, so that its contents could not
be taken into account in determining the application.
[35] The applicant did not disclose the discussions held after Els resigned, during
which Els stated that he intended to start a business. The only dispute was
whether the discussion concerned the rendering of waterproofing services
(according to the applicant) or the rendering of services to the applicant’s
customers (according to Els). The fact is that the applicant knew Els would
start a business, yet did not disclose this in its papers.
[36] Yet other relevant facts the applicant sought to withhold from the court were
that he offered to sell the bakkie to Els, wished Els well in his business
endeavours, and that he had a friendship with Els and Els’s father, and that
they had a WhatsApp group. All these facts were highly relevant to the issues
the court was required to decide, and were intentionally omitted, as they
would have defeated the applicant’s case that it was unaware that Els
intended to start a business upon leaving the applicant. The applicant cannot
now claim entitlement to an interdict prohibiting Els from starting a competing
business when this was never raised as an issue before the current
application was launched. In any event, the restraint provision does not
application was launched. In any event, the restraint provision does not
prohibit starting a competing business. It prohibits starting a business, an
issue that will be addressed next.
[37] Even though the finding above is dispositive of the alleged breach of the
restraint provision and must lead to the conclusion that the applicant is not
entitled to an interdict prohibiting Els from running Marcell's business, there is
another reason why the application was bound to fail, an issue addressed
next.
Restraint contrary to public policy
[38] In oral argument, Mr de Kock submitted that the restraint provision prohibits
Els from starting a business but permits him to join any existing business,
even if that business is a competitor of the applicant. The question is which
protectable interests would be harmed by a new business established by Els
but not by Els joining a competitor? Such a restraint would be unenforceable
and contrary to public policy, as it seeks to prevent Els from being a
businessman and to keep him an employee. The applicant also alleged that it
intended to appoint Els as Sales Manager. This is the real reason the restraint
application was launched: the applicant did not want Els to resign, as
evidenced by the WhatsApp message sent to Els stating that if he had been
retrenched, things would be different. On those facts, there is no protectable
interest.
[39] The respondents submitted that the relief sought in the notice of motion,
namely that they be interdicted and restrained from conducting business
within the geographical area of the Cape Metro until 23 September 2026, is
unconstitutional because it renders them economically incapacitated. The
submission has merit. Restricting respondents from conducting any business,
even if that business does not compete with the applicant, means the restraint
is not aimed at protecting any proprietary interests but rather at preventing Els
from earning a living. In Sibex Engineering Services (Pty) Ltd v Van Wyk and
Another
9, the court stated that a court will only enforce a restraint of trade if an
applicant demonstrates that there is a recognisable proprietary interest.
[40] It follows that the restraint provision cannot be enforced because it does not
protect any proprietary interests and is aimed at restricting Els’s right to earn a
protect any proprietary interests and is aimed at restricting Els’s right to earn a
living. The restraint provision is contrary to public policy.
9 1991 (2) SA 482 (T).
Confidentiality
[41] The applicant also sought to enforce the confidentiality undertaking to which
Els agreed. It was submitted that a reasonable inference must be drawn that,
as the sole director of Marcell, Els would utilise the applicant’s confidential
information for Marcell’s benefit, thereby breaching the confidentiality
provision.
[42] According to the applicant, during his employment with it, Els was exposed to
and privy to the ‘inner workings’ and day-to-day operations of its business, as
well as the specific processes and techniques used by the applicant in
providing services. It was also alleged that Els had access to confidential
business information, including customer details, the services provided, and
the prices charged to customers. It was also said that Els had access to the
applicant’s pricing structure for services, including supplier information.
[43] Explaining how Els became exposed to the confidential information, all site
managers attended daily morning meetings where projects, prices and client
details (including cell numbers) were discussed. All invoices were posted in
the WhatsApp group, and the site managers were members. Site managers
had company debit cards, which were used to purchase materials from
suppliers. Dulux was the sole credit facility supplier, and site managers
bought from it on account, thereby gaining insight into the applicant’s
purchasing and supplier arrangements. The inspection reports shared in the
WhatsApp group included the pricing methodology, and all internal
operational processes were discussed in the group.
[44] It is also the applicant’s case that the applicant intended to promote Els to the
position of sales manager, effective from 1 January 2026, and that, in
anticipation of the promotion, the applicant invested substantial time and
resources in training Els for the role, including practical experience by being
allowed to liaise with clients, prepare quotations and reports, and conduct site
allowed to liaise with clients, prepare quotations and reports, and conduct site
inspections. The training included specialised and confidential know -how of
the applicant’s operations and the industry, insight into dealing with clients
and suppliers, and the financial side of the applicant’s operations. Els had
insight into almost all aspects of the applicant’s business , including its
business model, rates, customers, and clients. The applicant had trusted and
put faith in Els and was now being prejudiced by his conduct.
[45] It was also submitted that Els retained knowledge of the applicant’s
operations and will focus on marketing to the applicant’s clients and offering
services to them at slightly reduced rates, at the applicant's expense, even
though the applicant created the client base by properly servicing and
maintaining the clients. The submission is that this is springboarding on know -
how and connections, creating unhealthy and unfair competition. It was
submitted that the respondents are misusing the applicant’s years of effort in
building a business, drawing on well -deserved experience and confidential
information. The submission was also that knowledge of clients and contacts
is valuable information obtained through a cumbersome process.
[46] In response, relying on Hirt & Carter (Pty) Ltd v Mansfield and
Another10, Els
submitted that the applicant failed to prove that he was privy to the business
know-how and confidential information, that the information was still in his
possession, or that he was able to use it to the applicant’s disadvantage. The
question posed was how Els could use confidential information which he did
not possess. It was also submitted that the applicant failed to put forward facts
showing that Els was introduced to specific processes and techniques.
[47] It is established that confidential information capable of protection is that
which is applicable in trade or industry, that is, it must be useful; not be public
knowledge or property; and (b) it must be known only to a restricted number
of people or a closed circle, and (c) be of economic value to the person
seeking to protect it.
[48] There is a factual dispute as to whether Els was exposed to the applicant’s
confidential information. When final relief is sought, and a factual dispute
confidential information. When final relief is sought, and a factual dispute
arises on the affidavits before a motion court, a final order can be granted only
if the facts averred by the applicant, which the respondent has admitted,
together with the facts alleged by the respondent, justify such an order. The
10 2008 (3) SA 512 (D).
exception is where the respondent proffers bare denials or presents a version
that is far -fetched, untenable and fanciful. This is in accordance with the
Plascon Evans rule. 11
[49] In the court’s assessment of the versions, Els’s version that he was never
exposed to the applicant’s confidential information must be preferred because
it is not far -fetched, untenable and fanciful. Additionally, the applicant’s case
that Els had access to confidential information is unpersuasive for several
reasons.
[50] The specific processes and techniques the applicant alleged Els was exposed
to were not identified. The decision in Bonnet and another v Sc hofield12,
which the applicant relied upon, does not assist its case. That case involved a
sail training instructor, and the court held that there were no special
techniques, methods, or secrets to protect in a sailing instructor's work . The
same applies to the manager of a site where, inter alia, waterproofing services
are rendered. Els’s version, that YouTube has videos, for example, on how to
do waterproofing, was not disputed. There are no applicant processes or
techniques to be protected.
[51] Els’s version that ordinary workers did the manual work, not him, was also not
gainsaid. The question is whether these ordinary workers were also exposed
to the processes and techniques that the applicant claims should be
protected..
[52] The information alleged to be confidential includes prices charged to
customers and by suppliers. Els admitted that he provided the information
needed to prepare quotations for each project, but denied knowing the prices
charged to customers, stating that this information had been removed from
the job cards he had been handed as the site manager. Despite admitting that
prices were removed from the job cards, the applicant called on Els to
produce proof that he did not keep copies of the job cards. Els’s version that
11 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H - 635C.
12 1989 (2) SA 156 (D)
he returned all job cards and did not keep copies is accepted because it is not
fanciful, untenable or far-fetched.
[53] Insofar as it is alleged that Els knows the applicant’s customers and will seek
to render services to them at reduced prices, the submission fails when one
has regard to the fact that Els sought to attract clients by advertising on
WhatsApp and on Facebook pages. There was no evidence placed before the
court that he attempted to solicit any of the applicant’s customers. This is
aside from the fact that nothing prevented Els from soliciting the applicant’s
customers. What he charges these customers is Els’s prerogative, as his
version that he did not know what prices were charged to the applicant’s
customers was accepted. What the applicant means by a pricing
methodology, given the services it renders, has not been explained.
[54] There was no suggestion that the applicant had customer lists or that Els had
access to them. The evidence was that Els would obtain the contact
information for the customer at the site where he would be working, and that
his personal phone number was used on the odd occasion when there were
issues with the work cellphone. Any customer who chose to keep Els'
personal contact number, which he used on the odd occasion, was free to do
so, and Els cannot be blamed. In any event, the applicant’s own case is that
the true art of a successful business is servicing and maintaining clients. If the
applicant has serviced its clients well, it has nothing to worry about.
[55] The applicant claimed it trained Els, a version he denied. His version was that
he was exposed to the work in 2015 while employed by the applicant as a
driver. The applicant failed to disclose that Els was an employee in 2015,
contending that this was irrelevant to the application, yet then claimed that he
gained experience in the applicant’s operations during the first period of
employment. The two versions are irreconcilable. Even if Els was trained, a
employment. The two versions are irreconcilable. Even if Els was trained, a
contention he denies, that does not demonstrate that he was given access to
confidential information. The applicant’s case that it intended to promote Els is
further evidence that, until the promotion, Els was not exposed to any of the
applicant’s strategic, financial, or sensitive business information.
[56] The applicant’s own version was that project information was posted on a
notice board. The court fails to see how information posted on a notice board
can ever be considered confidential, given that everyone with access to that
room can see it.
[57] The applicant alleges that the services it offers constitute confidential
information. The proposition only needs to be stated to see how the applicant
is clutching at straws.
[58] The applicant’s claims that Els had insight into its business model, had access
to the applicant’s specialised and confidential know -how and retained
knowledge of its operations make no sense without further elaboration. An
employee’s knowledge and skill are the property of the employee, and not that
of the employer.
[59] As regards the relationship with suppliers, Els’s account that the
administrative staff placed orders with suppliers and that site managers
purchased only small items on account cannot be rejected. If Dulux is a
supplier to the applicant, it is difficult to regard this as confidential information.
Dulux sells products to anyone who requires them, including the second
respondent.
[60] The applicant has not made out a case that Els had access to its confidential
information, which is protected. It also did not allege any breach of the
confidentiality provision. The case is that an inference must be drawn that the
clause has been breached. This is unnecessary. If, in due course, the
applicant obtains evidence that Els had access to its confidential information
and breached the confidentiality provision, it may approach the court in the
ordinary course with a damages claim. It will be for t he court hearing that
application to determine what confidential information, if any, was abused by
Els and to order appropriate relief.
[61] The inquiry into weighing the parties' interests becomes unnecessary where
an applicant has not demonstrated a protectable interest.
[62] The above findings are dispositive of the matter. However, because the
applicant sought a final interdict, the requirements will be addressed for
completeness.
Requirements for an interdict
[63] The applicant cited the decision in National Council of Societies for the
Prevention of Cruelty to Animals v Openshaw 13, which concerns interim
interdicts. Where an applicant seeks to enforce a restraint provision until the
term has expired, the relief sought is final , not interim . Accordingly, the
applicant must demonstrate a clear right, harm suffered or reasonably
apprehended, and the absence of an adequate, suitable remedy. 14 The
balance of convenience is not a factor when final relief is sought.
[64] As regards a clear right, the applicant has not proved the existence of a
restraint that prohibits Els from competing with the applicant, and must
therefore fail on that ground. The applicant has a contractual right in respect
of its confidential information, but in the absence of credible evidence that Els
had access to the alleged confidential information, the appropriate course of
action is to bring a breach claim in due course if Els breaches it.
[65] As regards irreparable harm and the absence of an alternative remedy, these
issues become academic in light of the finding that the restraint provision
cannot be enforced for the reasons given. As regards a breach of the
confidentiality clause, if this materialises, the respondent can file a breach- of-
contract claim in due course.
[66] Taking all of the above into account, the court exercises its discretion not to
grant the relief sought because the applicant has not satisfied any of the
requirements for final relief.
Costs
13 2008 (5) SA 339 (SCA).
14 Setlogelo v Setlogelo 1914 AD 221; Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A)).
[67] Both parties sought costs on a punitive scale. The a pplicant s ought costs
against the respondent , contending that there was a flagrant breach of the
restraint provision , followed by an undertaking not to breach the provision,
and then another breach. The applicant also referred to the delay in filing an
answer, which it considers obstructive behaviour.
[68] The respondents sought costs, regarding the application as an abuse of the
court's processes.
[69] I agree with the respondents. The restraint provision does not prevent Els
from starting a competing business after he left the applicant. The applicant
would have known this before launching the current application. The
applicant’s case shifted from not rendering waterproofing services to seeking
an order prohibiting Els from running any business, thereby preventing him
from earning a living. That the application was an abuse of court processes is
evident from the applicant’s submission that Els could work for a competitor
but was not permitted to establish his own business. As I have found, that
amounted to saying Els must remain an employee and must not become an
entrepreneur for a year after leaving the applicant. The applicant was angered
that, after leaving the applicant, Els became his own boss at age 31 rather
than an employee. The applicant, which had legal advice, ought to have
realised that no court would enforce a restraint provision with that effect. An
order in accordance with the requirements of law and fairness is that the
applicant pay the respondents’ costs on a party-and-party scale.
[70] To compound matters, the applicant placed a great deal of information before
the court regarding the late filing of an answering affidavit, when condonation
was not required. The application, which the applicant pursued at a leisurely
pace, was also not urgent, and this judgment, which dealt with the merits of
the application, was prepared at the same leisurely pace, as there was no
urgency.
the application, was prepared at the same leisurely pace, as there was no
urgency.
[71] In the result, the following order is made:
Order
1. The application was not urgent.
2. The application is dismissed .
3. The applicant is ordered to pay the respondent’s costs.
_______________________
T. Gandidze
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv C de Kock
Instructed by: CK Attorneys
For the Respondent: Advocate Van der Merwe
Instructed by: Dunster Attorneys