THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: 2026-056545
In the matter between
YOULESHA NARAINSAMY Applicant
and
ANSTEM MEDICAL (PTY) LTD Respondent
Heard: 15 April 2026
Delivered: 20 April 2026
This judgment was handed down electronically by circulation to the parties’
representatives by email. The date for hand -down is deemed to be on 20 April
2026.
JUDGMENT
SAUNDERS, AJ
Introduction
[1] This is an opposed urgent application seeking the declaration of
unenforceability of a confidentiality and restraint clause stemming from an
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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employment contract governing the relationship between the applicant and
her erstwhile employer, the respondent. The applicant also seeks punitive
costs if the application is opposed.
[2] This application, unusually, is brought by the erstwhile employee, seeking to
set aside the restraint of trade clause on the basis that it is unenforceable and
unreasonable. The clause reads as follows:
19. Confidentiality & restraint of trade
19.1 In accepting employment with the employer, the employee
acknowledges that during the course of his/her employment or other
association with the employer, the employee may develop a close and
personal relationship with the clients of the employer, and that the
employee shall, in the course of his/her duties, have access to
confidential information of the employer, including, but not limited to,
confidential information the employer, including, but not limited to,
confidential information in relation to financial and marketing
operations, customer data base, technical information, the employers
terms conditions and methods of conducting its business, trade
secrets, names of clients or other client information, methods of
operation, information regarding systems, technical know -how and
financial information (hereafter 'confidential information')
19.2 The employee shall not, during the tenure of the existing employment
contract and for an "indefinite period" after termination of the existing
employment contract for any reasons whatsoever and in any role that
he/she may assume thereafter whatsoever, disclose to or discuss any
confidential information with any person other than the employer.
19.3 The employee further undertakes not to be directly or indirectly,
interested in, carry on, engaged in or concerned with any business,
company, firm, partnership, close corporation, trust, undertaking or
concern, either as an employee or in any other concern, either as an
employee or in any other capacity of whatsoever nature, which carries
employee or in any other capacity of whatsoever nature, which carries
on any business which competes in any way with the business
conducted by the Company
19.4 The employee undertakes further not to, in any way, persuade solicit,
encourage or procure the services of any employee of the Company,
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or in any manner persuade any employee of the Company to
terminate his/ her contract with the Company."
[3] The applicant does not distinguish between the restraint clause and the
confidentiality clause and seeks that the clause be set aside in totality.
Background
[4] The applicant was dismissed by the respondent in June 2025, having been
employed since November 2021 in various capacities . At the time of her
dismissal, she was employed as a territory manager. No new contracts have
been entered into during the sustenance of the employment relationship, save
for the original contract of employment relevant to this dispute.
[5] In September 2025, the applicant took up employment with a competitor of
the respondent. On 19 November 2025 the respondent launched an
application in this Court seeking to enforce the restraint of trade clause
contained in the applicant’s contract of employment (“the first application”). It
was set down for hearing on 27 February 2026. In November 2025 the
applicant’s employment with her new employer was terminated on terms
which were not disclosed in th e first application and are not disclosed in this
application. The answering affidavit in the first application was filed on 7
December 2025 and the notice of withdrawal by the applicant’s erstwhile
employer was filed on 17 February 2026. No replying affidavit was filed in the
first application, and the applicant raises a variety of complaints about this
fact, coupled with complaints pertaining to a confidential affidavit which was
not filed at time.
[6] On 27 February 2026 the applicant persisted with the position that the matter
should be adjudicated as the order would have a practical effect and serve an
actual purpose. Submissions were made at the hearing of this application that
argument was advanced on 27 February 2026 about whether the dispute was
moot. No court order from 27 February 2026 has been uploaded onto
caselines and counsel for both parties do not recall that a specific order
caselines and counsel for both parties do not recall that a specific order
regarding mootness was made. Both recall that the erstwhile employer’s
notice of withdrawal was given effect. This order has not been appealed.
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[7] The applicant now approaches this Court on an urgent basis for a declaratory
order that the restraint clause; which on its face contains neither a
geographical limitation nor any stipulated duration; is unenforceable.
[8] At the time of deposing to the founding papers in this application the applicant
was unemployed. At the time of deposing to the replying papers, the applicant
appears to have accepted a role as an intern with an unidentified employer
and in an unidentified role. There is no further indication as to whether this
could constitute a breach of the agreement or not. The respondent has given
no indication that it intends to enforce the restraint on this basis or any other.
But the application is opposed and on this basis the applicant seeks punitive
costs.
The argument
[9] The applicant argues that the restraint is against public policy because it
contravenes the Constitution in disallowing the applicant from working in her
chosen profession, despite her qualifications and her disability. She suffers
financial prejudice which will impact her quality of life. The geographic
limitations force the applicant to live in a specific area (as set out in the
restricted tender from the first application); and constitutes modernised
slavery. There is no interest which warrants protection and the so- called
interest does not weigh qualitatively and quantitatively against the applicant’s
right to be economically active. The restraint is against public policy.
[10] The second leg of the applicant’s argument is that there is no extant restraint
of trade clause operating against the applicant. The applicant signed a
restraint of trade in her position of sales representative and not territory
manager. The restraint clause does not specifically reference the role of
territory manager and the restraint is therefore inoperative.
[11] The applicant also argues that the restraint seeks to restrict competition and
[11] The applicant also argues that the restraint seeks to restrict competition and
that there is no confidential information and no protectable interest.
The law
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[12] A restraint of trade agreement, like any other agreement, is on its face valid
and enforceable. As the Constitutional Court emphasised in Barkhuizen v
Napier1 public policy, as informed by the Constitution of the Republic of South
Africa, 1996, requires in general that parties should comply with contractual
obligations that have been freely and voluntarily undertaken. The sanctity of
contract remains a foundational principle of our law. Courts are slow to strike
down or declare invalid terms to which parties have agreed and will do so only
where compelling reasons rooted in public policy demand it. The judgment
sets out the test for application, which reads as follows2:
The first question involves the weighing-up of two considerations. On the one
hand, public policy, as informed by the Constitution, requires, in general, that
parties should comply with contractual obligations that have been freely and
voluntarily undertaken. This consideration is expressed in the maxim pacta
sunt servanda which, as the Supreme Court of Appeal has repeatedly
noted, gives effect to the central constitutional values of freedom and
dignity. Self-autonomy, or the ability to regulate one’s own affairs, even to
one’s own detriment, is the very essence of freedom and a vital part of
dignity. The extent to which the contract was freely and voluntarily concluded
is clearly a vital factor as it will determine the weight that should be afforded
to the values of freedom and dignity. The other consideration is that all
persons have a right to seek judicial redress. These considerations express
the constitutional values which must now inform all laws, including the
common law principles of contract.
[13] The judgment continues to state that:
“It follows in my judgment that the first inquiry must be directed at the
objective terms of the contract. If it is found that the objective terms are not
inconsistent with public policy on their face, the further question will then arise
inconsistent with public policy on their face, the further question will then arise
which is whether the terms are contrary to public policy in the light of the
relative situation of the contracting parties.3
1 2007 (5) SA 323 (CC)
2 Barkhuizen ibid at para 57.
3 Barkhuizen (id fn 2) at para 59.
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[14] There is nothing in the papers which suggests that the applicant did not sign
the employment contract and the restraint of trade agreement freely and
voluntarily in line with the constitutional values of freedom and dignity.
[15] In terms of the first leg of the test as set out above, the wording of the restraint
clause must be considered. There is nothing to preclude parties to a restraint
of trade agreement from agreeing to any terms they wish, regardless as to
how broad such terms may be , including a restraint which operates
indefinitely and has worldwide application. Barkhuizen v Napier recognises
that individuals have the right to enter into the contracts they wish to govern
their relationships. Objectively, there is nothing against the terms of the clause
as it stands. The fact that a confidentiality clause operates for an indefinite
period is unremarkable. Clauses of this nature are enforced on a daily basis in
this Court. In respect of the restraint of trade clause, while unusually wide, it
may nonetheless be enforceable if an erstwhile employer can set out facts in
response to an unreasonableness attack . On the face of it, and on an
objective assessment of the terms, the clause is not inconsistent with public
policy.
[16] This then gives rise to the second leg of the enquiry as set out in Barkhuizen.
The terms must be considered against the relative situation of the contracting
parties.
[17] The law relating to restraints of trade is a particular application of this broader
contractual principle. It is well established that a restraint of trade is prima
facie valid and enforceable unless and until the party seeking to avoid it
proves that its enforcement would be unreasonable and therefore contrary to
public policy.
4 The question of reasonableness does not arise in the abstract.
It is engaged only when enforcement is actually sought.5
[18] When that question does arise, the Court applies the well -known four-fold test
[18] When that question does arise, the Court applies the well -known four-fold test
formulated by the Appellate Division in Basson v Chilwan and Others6:
4 Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A)
5 Den Braven SA (Pty) Ltd v Pillay and Another 2008 (6) SA 229 (D) at paragraph 46.
6 1993 (3) SA 742 (A) (Headnote).
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1. Is there an interest of the one party which is deserving of protection at
the termination of the agreement?
2. Is such interest being prejudiced by the other party?
3. If so, does such interest weigh up qualitatively and quantitatively
against the interests of the latter party that the latter should not be
economically inactive and unproductive?
4. 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?”
[19] This test, which has been consistently applied in this Court and in the High
Court, requires a careful, fact-specific, and context-sensitive enquiry. It cannot
be undertaken in a vacuum or on the basis of a hypothetical future dispute.
[20] Nienaber JA’s words, in CTP Ltd and others v Argus Holdings Ltd and
another,7 neatly apply this general approach to a contract in restraint of trade:
“Three points need to be made. One, the words in the contract must not be
interpreted in the abstract and out of context (cf Swart en ’n Ander v Cape
Fabrix (Pty) Ltd 1979 (1) SA 195 (A) at 202C). Two, a restraint which in
general terms may be unduly wide or imprecise can be trimmed to fit the
common understanding and perceptions of the parties in the light of the
circumstances prevailing at the time of its enforcement (cf Magna Alloys and
Research (SA)(Pty) Ltd v Ellis 1984 (4) SA 874 (A) at 896A-E, 898D). Three,
a conclusion of invalidity will only be reached as a last resort (cf Haviland
Estates (Pty) Ltd and Another v McMaster 1969 (2) SA 312 (A) at
337H; Lewis v Oneanate (Pty) Ltd and Another 1992 (4) SA 811 (A) at 819E-
J).”
[21] In the present matter there is no live dispute. The respondent has withdrawn
the first application and has not threatened any further steps to enforce the
restraint. The applicant is not currently employed in any capacity that could
constitute a breac h. A lthough she mentions an internship in her replying
constitute a breac h. A lthough she mentions an internship in her replying
affidavit, she has furnished no details of its nature, duration, or whether it
bears any relationship to the respondent’s business. In the absence of any
actual or threatened breach, there is simply no factual matrix against which
7 1995 (4) SA 774 (A) at 787E-G.
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the Court can measure the reasonableness of the clause in terms of the
Barkhuizen assessment or against which it could apply the Basson test. To
grant the declarator sought would amount to an advisory opinion on a
hypothetical future dispute.
[22] To apply the dictum of CTP Ltd, this Court could trim a restraint clause which
is unduly wide (as proposed by the applicant) but it must be done at the time
of its enforcement and by applying the facts present at that time to the test
established in Basson. In this matter the respondent does not seek to enforce
the restraint and the Court has not been given any facts against which the
considerations of Basson can be applied in order to determine the
reasonableness of the restraint.
[23] The applicant has attempted to rely on the facts as set out in the first
application to justify the setting aside of the restraint clause or the reduction of
the duration of the restraint. That application has been disposed of and those
facts are irrelevant to this application . Enforcement in the future has the
potential to be wholly different to the enforcement sought in the first
application, and different facts are likely to be relevant to enforcement with a
different employer. Reliance on facts specific to that breach and that
enforcement is misplaced.
[24] In the matter of National Chemsearch (SA) (Pty) Ltd v Borrowman and
Another8
the court held:
‘It amounts to this: if a restraint is so worded that according to its terms it can
become operative in eventuality A and in eventuality B, and it appears that it
will operate reasonably in eventuality A but unreasonably in eventuality B,
then, even although it is eventuality A that actually materialises, it is still
unenforceable. I can perceive no principle of logic or justice in such an
approach. In my view it loses sight, once again, of what seems to me to be
the decisive question in cases of this kind, namely the dictates of public policy
the decisive question in cases of this kind, namely the dictates of public policy
as at the time when the Court is asked to enforce the restraint. Why, if the fact
before the Court is A, and an order to enforce the restraint on that basis
8 1979 (3) SA 1092 (T) at 1108.
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would not be contrary to public policy, should the Court refuse to enforce it,
simply because the agreement also happened to provide for eventuality B,
which has turned out to be purely academic? In cases of restraint of trade
public policy requires the Court to consider the effect of the order it is asked
to issue, but to my mind neither public policy, nor any other principle of law,
requires the Court to ignore the concrete facts before it and to pronounce in
abstracto on the validity of the restraint clause as at the time of its creation,
speculating in the process upon all sorts of possibilities which it knows never
eventuated.
[25] Finally, the applicant’s desire for a clean declaration that the clause is
unenforceable must be weighed against the respondent’s right not to have its
contractual bargain declared invalid in circumstances where it has already
elected not to enforce it. Public policy favours the enforcement of contracts
that parties have freely concluded unless there is a clear and present basis for
finding them unreasonable. That basis has not been established in this matter.
No restraint
[26] The applicant argues that there is no restraint of trade agreement on the basis
that the agreement entered into at the time that she assumed the role of sales
representative was not updated or re- negotiated at the time at which she was
promoted to the role of territory manager. This is incorrect in law. In the matter
of Slo Jo Innovation (Pty) Ltd v Beedle and Another 9 the Court dealt with a
similar argument and held:
[44] In Profibre Products (Pty) Ltd v Govindsami, the applicant sought to
enforce the restraint provisions as contained in the contract of
employment between itself and the respondent. The respondent was
employed on 15 December 2005 and promoted in 2011 to the position
he held until his resignation seven years later. From the facts, it
appears that the parties did not conclude a new contract of
appears that the parties did not conclude a new contract of
employment at the time of the respondent’s promotion in 2011. The
respondent contended that he was not bound by any restraint
because when he was promoted in 2011, the restraint covenants (and
9 (2023) 44 ILJ 839 (LC) at paragraph 44.
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indeed the entire employment contract concluded in 2005) were no
longer binding. The Court held that –
‘There is manifestly no merit in this submission. The contract of
employment signed by the respondent at the commencement of his
employment remained intact and enforceable until the respondent
terminated the contract by way of his resignation. There is simply no
conceptual basis on which it could be otherwise. The respondent
continued to reap the benefits of the contract after his promotion in
2011, by way of remuneration and other benefits. There is no reason
why he should not continue to be bound by the obligations imposed on
him by the contract, including the restraint’.
[27] There is nothing unusual in parties concluding a restraint of trade agreement
at the outset of the employment relationship. There is similarly nothing
unusual or inherently wrong with an employer pre- empting a long and fruitful
relationship with an employee and designing a restraint which foresees the
need to protect itself across a wider area and a broader base than the
employee works at the commencement of the relationship. In the absence of
a further agreement or a revision to the existing agreement the original
restraint clause will survive any promotions which the employee enjoys. This
matter is no different. The restraint clause has survived the promotion to
territory manager and remains alive.
Urgency
[28] The issue of urgency warrants mention. Ordinarily, the urgency of an
application should be determined at the outset and if deemed not urgent, it
should be struck from the roll on that basis. Urgent court exists to protect
parties from genuine and imminent harm that cannot be adequately
addressed in the ordinary course. In Boomerang Trade CC t/a Border Sheet
Metals v Groenewald and Another10 the Court stated that:
“Pr oceedings for the enforcement of a restraint of trade agreement are
usually, by their very nature, urgent. They invariably seek to interdict ongoing
usually, by their very nature, urgent. They invariably seek to interdict ongoing
10 (EL 2300/10, ECD 1938/12) [2012] ZAECELLC 18 (18 September 2012) at para 36.
11
unlawful action in respect of which an applicant continues to suffer financial
losses which are notoriously difficult to quantify, or to recover by way of
action.”
[29] This dispute is different. This is not a true restraint of trade application, despite
the use of Rule 39 of the Rules Regulating the Conduct of the Proceedings of
the Labour Court by the applicant. The applicant is not presently employed in
a competing capacity, and the internship to which she refers has not been
shown to engage the restraint in any way. There is accordingly no immediate
prejudice that would justify the matter being entertained outside the ordinary
course. The respondent is no longer seeking to interdict ongoing unlawful
action. The applicant is not entitled to “jump the queue” simply because she
wishes to obtain certainty about a clause that is not presently being invoked
against her and may never be invoked against her.
[30] Be that as it may, the applicant has been to court on a previous occasion and
now seeks the intervention of this Court on the same facts again. While the
dispute is not urgent and should fail on this basis alone, it is helpful to set out
the basis upon which it is also meritless, to obviate the need for a different
court to be seized with the dispute in the ordinary course.
Jurisdiction
[31] A further difficulty arises from the procedural route chosen by the applicant.
The application has been brought under the Labour Relations Act 11 (LRA).
Restraint of trade disputes are fundamentally contractual in nature and are
more appropriately pursued under the common law principles of contract in
the High Court or, where relevant, the Basic Conditions of Employment Act
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(BCEA), in particular s ection 77(3), which confers concurrent jurisdiction on
this Court in respect of matters concerning contracts of employment. The
reliance on the LRA as the sole basis for relief raises a real question as to the
proper foundation for this Court’s jurisdiction in the present context.
proper foundation for this Court’s jurisdiction in the present context.
11 Act 66 of 1995.
12 Act 75 of 1997.
12
[32] In the matter of Abrahams v Drake and Scull Facilities Management (SA) Pty
Ltd13 the court dealt with a matter in which the relief sought was not
specifically pleaded or founded in section 77(3). It held that:
‘[32] Mr Donen also submitted that the applicant has not specifically located
her claim in s 77(3) of the Basic Conditions of Employment Act. That
section provides that:
“The Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning a contract of employment,
irrespective of whether any basic condition of employment constitutes
a term of that contract.”
[33] That section makes it abundantly clear, once again in plain language,
that this court does have jurisdiction to hear and determine a matter
such as the one before me. It clearly concerns a contract of
employment: the respondent has breached its terms by amending it
unilaterally, and the applicant seeks specific performance of the
contract. Maybe the applicant would have done better, through her
attorney, to spell it out; but the fact that she doesn’t allege in so many
words that this court has jurisdiction in terms of s 77(3) of the BCEA
does not deprive the court of that jurisdiction.’
[33] This position was upheld more recently in the matter of Makgoka v Silverstar
Casino14. On this basis, although reliance has erroneously been placed on the
LRA, it does not deprive the court of jurisdiction.
Costs
[34] This court has jurisdiction by virtue of section 77 (3) of the BCEA and not the
provisions of the LRA. In the matter of WACO Africa (Pty) Ltd v Ismail Ahmed
and others15 the court set out the correct test for costs. The test is as follows:
[114] In Zungu v Premier of the Province of KwaZulu- Natal and Others, the
Constitutional Court confirmed that the rule that costs follow the result
does not apply in labour matters. The Court should seek to strike a fair
13 (2012) 33 ILJ 1093 (LC) at paras 32 and 33.
14 (J310/210 [2023] ZALCJHB 135 (21 April 2023).
14 (J310/210 [2023] ZALCJHB 135 (21 April 2023).
15 Unreported Judgment 109219-2024, Labour Court Johannesburg, delivered on 11 December 2024.
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balance between unduly discouraging parties from approaching the
Labour Court to have their disputes dealt with and, on the other hand,
allowing those parties to bring to this Court (or oppose) cases that
should not have been brought to Court (or opposed) in the first place.
[115] However, the LAC has held that when this Court exercises its
jurisdiction under section 77(3) of the Basic Conditions of Employment
Act, as it does in this instance, the rule established by section 162 of
the Labour Relations Act to the effect that costs do not follow the
result and must be determined by reference to the requirements of the
law and fairness, does not apply. The rule to be applied in
proceedings such as the present is that costs follow the result, save in
exceptional circumstances.”
[35] The applicant sets out that her attorney is acting on a pro bono basis. But for
this fact, costs would follow in favour of the respondent.
[36] In the premise the following order is made:
Order
1. The application is dismissed.
2. There is no order as to costs.
_______________
S. Saunders
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Adv KC Pillay
Instructed by: JPM Attorneys
For the Respondent: Adv C Goosen
Instructed by: Horn Attorneys