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IN THE HIGH COURT OF SOUTH AFRICA
NORTHWEST DIVISION - MAHIKENG
Case No.: 6532/2024
In the matter between :
ISIKO MALT (PTY) LTD Applicant
-and-
CFAM TECHNOLOGIES (PTY) LTD First Respondent
RAY J LUND CONSUL TING (PTY) LTD Second Respondent
Coram: Maree AJ
Date of hearing: 27 November 2025
Delivered: The judgment was handed down electronically by circulation
to the parties' representatives via email. The date and time for hand
down is deemed to be 21 April 2026 at 12h00.
ORDER
1. The application is dismissed with costs, including costs of counsel
on scale C.
JUDGMENT
MAREEAJ
[1 ]. The matter before this Court concerns an application by the
applicant for an interim interdict, pending the finalisation of an
action to be instituted against the first respondent, that (a) the first
respondent be restrained and interdicted from directly, or
indirectly, engaging into business, and/or any business
relationship, with Kgalagadi Breweries (Pty) Ltd. ('KBL') and/or
the South African Breweries Limited ('SAB'), or any of their
subsidiaries, including the rendering of services and delivery of
products, and (b) against the second respondent that the second
respondent be restrained and interdicted from directly, or
indirectly, engaging into business, and/or any business
relationship, with KBL or SAB, including the rendering of services
or delivery of products, with any assistance, advise or input from
the first respondent.
[2]. During July 2016, the applicant was awarded a contract by
Kgalagadi Breweries (Pty) Ltd ('KBL') to construct and
commission a Beer Powder Plant.
[3]. The applicant approached the first respondent to assist with the
design and supply of products to be utilised in the commissioning
and construction of the Beer Powder Plant.
[4]. To regulate their arrangement, the applicant and the first
respondent entered into several agreements; of relevance hereto
is the Service Agreement dated 15 April 2016 ('the service
agreement')1 and the Nondisclosure and Non-circumvention
Agreement dated 25 July 2017 ('the nondisclosure agreement')2.
[5]. In terms of the service agreement, the parties agreed inter alia
that the first respondent "shall refrain from engaging into business
and/or any business relationship with the Clients and/or to
circumvent the Principal [the applicant] in this regard for purposes
of rendering Services and/or delivering Products to the Clients
Service Agreement, Annexure "FA5"
Nondisclosure agreement annexure "FA6"
without the intervention of the Principal [the applicant] as
contemplated in this Agreement"3. The service agreement defined
the "Clients" as "such persons secured by the Principal [the
applicant] and with whom the Principal [the applicant] enters into
a relationship for purposes of the delivery of certain products
and/or the rendering of certain services being, at the Signature
Date, KBL Breweries an affiliate or subsidiary of the South Africa
Breweries Group of Companies as per the Initial Contract" and
"Services" as "the services rendered by the Supplier [the first
respondent] in relation to the manufacturing , supply, distribution,
maintenance and commissioning of the Products".
[6]. Under the nondisclosure agreement, the first respondent was to
hold and maintain the applicant's confidential information in strict
confidence for the sole and exclusive benefit of the applicant. In
this regard, the first respondent was contractually obligated to
carefully restrict access to the confidential information to
employees, contractors and third parties as is reasonably
required and shall require those persons to sign nondisclosure
restrictions at least as protective as the provisions contained in
the said nondisclosure agreement. In addition, the first
respondent was not allowed, without written approval from the
applicant, to use for its own benefit, publish, copy, or otherwise
disclose to others, or permit the use by others for their benefit or
to the detriment of the applicant, any confidential information4 .
3
4
Service Agreement, Annexure "FAS" para 17.5 p. 326
Annexure "FA6" clause 3 p. 330
The term confidential information is defined in the nondisclosure
agreement as " ... all information or material that has been
originated by the Disclosing Party [the applicant] and not
generally known to others, being its business activities,
discoveries, client names and the like and which was disclosed to
the Receiving Party [first respondent] as a result of the disclosing
purpose as contemplated in paragraph 4 [sic]"5. Clause 4 of the
said nondisclosure agreement records that the applicant
disclosed to the first respondent the confidential information for
the purposes of enabling the first respondent to execute its
mandate, constructing and commissioning the Beer Powder
Planf>. In terms of clause 8 of the nondisclosure agreement, the
first respondent undertook not to use the confidential information
for any commercial purpose, not to circumvent the applicant, not
to enter the premises where the plant was erected without the
applicant's consent, and not to enter into any business dealings
with clients of the applicant7.
[7]. It is not disputed that the South African Breweries ('SAB') is an
affiliate of Anheuser-Busch InBev ('AB InBev'). It was argued on
behalf of the applicant that both the SAB and AB InBev are clients
of the applicant and are included under the definition of "client" in
both the service and nondisclosure agreements. This argument is
premised on the conclusion of an agreement between the
applicant and SAB in 2024 titled the Short Form Framework
5
6
7
p.329
p. 330
p. 331
Agreement for Deliverables,8 whereby the SAB (and by
necessary implication AB InBev) became a client of the applicant.
[8]. Following the conclusion of the business relationship between the
applicant and the first respondent, the project commenced.
However, before the project was completed, KBL suspended it in
August 2016.
[9]. In April 2024, the applicant received information that the second
respondent was contracted by KBL to complete the construction
and commissioning of the Beer Powder Plant, being the same
plant initially commissioned by the applicant with the assistance
of the first respondent in 2016. After obtaining such information,
the applicant entered into negotiations with KBL, a subsidiary of
AB InBev. The exact details of the negotiations are not disclosed
by the applicant; however, the outcome of the said negotiations
was that, in November 2024, the applicant was appointed by AB
InBev to attend to the "product commissioning" of the Beer
Powder Plant. As per the applicant's papers, the "product
commissioning" of the plant concerned the commissioning and
implementation of the plant that had already been mechanically
commissioned ; the mechanical commissioning being awarded to
the second respondent. The applicant was required to attend the
product commissioning of the plant with the second respondent.
8 SAB Agreement, Annexure FA16 pp. 364 - 367
[1 O]. It is contended by the applicant that the second respondent could
not have attended to the commissioning of the Beer Powder Plant
without direct input from it or the first respondent9. The applicant's
case is that it "believes that the second respondent is assisted by
the first respondent in order to engage in a business relationship
with KBL, by rendering goods and services to KBL"10. To put it
differently, the applicant alleges that the first respondent
contravened the service and nondisclosure agreement by
supplying its service to the second respondent to commission the
Beer Powder Plant without the applicant's knowledge and
express consent. In support of its contention, the applicant relies
on the following:
a. The applicant relies on information received from employees of
AB InBev who informed the deponent of the founding affidavit,
confidentially and on a basis of anonymity, that employees of the
First Respondent visited the plant in preparation for
commissioning the plant.
b. The applicant states that on 24 June 2024, when the deponent to
the founding affidavit visited the Beer Powder Plant, he found
electrical designs bearing the first respondent's company name
and logo. The said designs were recognised as those made
9
10
The applicant, relying on a consulting engineering report, states that "it will be impossible
for any other contractor, apart from the contractors involved in the initial commissioning of
the plant, to complete it, without an extensive reverse engineering process", p. 20, para 35;
see also pp. 18-19, paras 32-33
p.11 para 14
during the period when the applicant and first respondent were
conducting the initial commissioning and construction of the Beer
Powder Plant.
c. The applicant relies on suspicious conduct by the first and second
respondents on the 61h of November 2024. On this said date, the
first respondent in writing cancelled the agreements it had with
the applicant (which agreements were dated between the period
2016 and 2017). This happened, according to the applicant, on
the same date on which the applicant was appointed by KBL to
attend to the product commissioning of the Beer Powder Plant.
Also on this date, and according to the applicant, the applicant
attended the Beer Powder Plant site, but the second respondent,
suspiciously so, was absent from the site. The applicant argues
that its appointment to attend to the product commissioning of the
plant would have resulted in the applicant having to work in
proximity with the second respondent, who was, as alluded to
hereinbefore, appointed to finish the Beer Powder Plant. The
applicant thus contends that (a) the termination letter addressed
to it by the first respondent was made in an attempt to circumvent
the contractual restraint, and (b) the fact that the second
respondent left the construction site was to conceal its business
relationship with the first respondent.
d. The applicant relies on an email received from AB InBev dated 27
November 2024. As part of the email trail was an email from the
second respondent, which had attached design plans for the Beer
Powder Plant. The applicant alleges that the said design plans
are the design plans provided by the first respondent to the
second respondent.
e. The applicant relies on a client proposal by the first respondent,
referencing the client's KBL, SAB and Ab InBev. This, the
applicant contends, shows the first respondent contravened the
non-circumvention and nondisclosure terms of the agreements
between the applicant and the first respondent.
[11]. The first and second respondents opposed the application. On 19
November 2025, the second respondent filed a notice conceding
to the relief sought by the applicant.11 The first respondent,
however, persists with its opposition to the applicant's application.
[12]. In essence, the first respondent denies contravening the
contractual restraints. More specifically, it denies that it attempted
to or assisted the second respondent in commissioning the plant.
The second respondent confirms the first respondent's position
and explicitly denies any assistance from the first respondent in
commissioning the plant12.
11
12
pp. 689-690
p. 450 para 49; p.454 para 62.3; p.455 para 63; p. 456 paras 66.1 and 67.2
[13]. Before dealing with the applicant's main contentions and
juxtaposing them with the respondents' opposition in more detail,
I set out the legal principles applicable to this application.
[14]. The requirements which an applicant for an interlocutory interdict
has to satisfy are the following: a prima facie right, a well
grounded apprehension of irreparable harm if the interim relief is
not granted and the ultimate relief is eventually granted, a balance
of convenience in favour of the granting of the interim relief, and
the absence of any other satisfactory remedy.13
[15]. The different requisites should not be considered separately or in
isolation but in conjunction with one another in order to determine
whether the court should exercise its discretion in favour of the
grant of the interim relief sought.14
[16]. When considering the first requirement, a prima facie right, the
degree of proof required is as follows: the right can be prima facie
established even if it is open to some doubt. Mere acceptance of
13
14
Erasmus: Superior Court Practice 3rd Edition: (Vol 2) Revision Service 27, Civil Litigation
and Procedure, Appendices 06, Interdicts - Interim Interdicts, para 8
Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (0) at 383E-F ; Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton 1973 (3) SA 685 (A) at 691 F; Beecham
Group ltd v 8-M Group (Pty) ltd 1977 (1) SA 50 (T) at 54E-F; Cambridge Plan AG v
Moore 1987 (4) SA 821 (0) at 833G-H ; Commissioner for Inland Revenue, Transkei v Jalc
Holdings (SA) (Pty) ltd 1991 (4) SA 646 (TK) at 654G-H; Breedenkamp v Standard Bank
of South Africa Ltd 2009 (5) SA 304 (GSJ) at 313J-314H; Camps Bay Residents and
Ratepayers Association v Augoustides 2009 (6) SA 190 (WCC) at 196H- I; Tshwane City v
Afriforum 2016 (6) SA 279 (CC) at 3068; Homemed (Pty) Ltd v Claasen (unreported, GJ
case no 2022/004040 dated 1 August 2022) at paragraph 80 footnote (34]; Vea Road
case no 2022/004040 dated 1 August 2022) at paragraph 80 footnote (34]; Vea Road
Maintenance and Civils (Pty) Ltd v South African National Roads Agency SOC Limited
(unreported, KZ0 case no 07913/2023 dated 20 Noven,ber 2023) at paragraph (32].
the applicant's allegations is insufficient, but a weighing up of the
probabilities of conflicting versions is not required. The proper
approach is to consider the facts as set out by the applicant
together with any facts set out by the respondent which the
applicant cannot dispute, and to decide whether, concerning the
inherent probabilities and the ultimate onus, the applicant should,
on those facts, obtain final relief at the trial or in the main
application to be determined. The facts set up in contradiction by
the respondent should then be considered, and if they throw
serious doubt on the applicant's case, the latter cannot succeed.15
[17]. The second requisite for an interim interdict is a reasonable
appre hension that continuan ce of the alleged wrong will cause
irreparable harm to the applicant. The test is objective, and the
question is whether a reasonable person, confronted by the facts,
would apprehend the probability of harm. Actual harm need not
be established upon a balance of probabilities16 .
15
16
The Law of South Africa('LAWSA'), Interdicts, Interim Interdicts, para 537; Webster v
Mitchell 1948 1 SA 1186 (W) as qualified by Gool v Minister of Justice (1955] 3 All SA 115
(C); 1955 2 SA 682 (C); Freinkel v Garment Workers Union of SA (1961] 1 All SA 243 (W);
1961 1 SA 507 (W); Selected Products Ltd v Enterprise Bakeries (Pty) Ltd (1963] 1 All SA
352 (C); 1963 1 SA 237 (C). Godbold v Tomson (1970] 1 All SA 218 (D); 1970 1 SA 61 (D)
63D. Airoadexpress (Pty) Ltd v Chairman, Local Road Transportation Board, Durban 1986
2 SA 663 (A); Buffalo Club v Border Cricket (2012] JOL 29403 (ECG) par 28. Nedbank Ltd
v Surve [2024) 1 All SA 615 (SCA); (2023] JOL 62281 (SCA) par 19; Goldstar Finance (Pty)
Ltd v Capitec Bank (Pty) Ltd (2024] 1 All SA 727 (WCC) par 19. Spur Steak Ranches Ltd v
Saddles Steak Ranch, Claremont 1996 3 SA 706 (C) 714; Aranda Textile Mills (Pty) Ltd v
Hurn (2000] 2 All SA 530 (E); (2000] JOL 6494 (EC). A possibility or a slight degree of
Hurn (2000] 2 All SA 530 (E); (2000] JOL 6494 (EC). A possibility or a slight degree of
probability will not suffice: Molteno Bros v SAR 1936 AD 321 333; Van den Berg v OVS
Landbou lngenieurs (Edms) Bpk (1956] 4 All SA 105 (O); 1956 4 SA 391 (0) .
LAWSA supra at para 538
(18). The third requisite for an interim interdict is that the balance of
convenience must favour granting the order. The court must
weigh the prejudice the applicant will suffer if the interim interdict
is not granted against the prejudice the respondent will suffer if it
is, bearing in mind the wider public interest and the underlying
principles of our democratic society. The exercise of its discretion
usually resolves itself into a consideration of the prospects of
success and the balance of convenience: the stronger the
prospects of success, the less the need for such balance to favour
the applicant; the weaker the prospects of success, the greater
the need for the balance to favour the applicant.17
(19]. The fourth requisite for the granting of an interim interdict is the
absence of another adequate remedy. This element is also a
factor in the exercise of the court's general discretion to grant or
refuse an interim interdict.18
[20). A court always has a wide discretion to refuse an interim interdict
even if the requisites have been established. This means that the
court is entitled to have regard to a number of disparate and
incommensurable features in coming to a decision, and not that
the court has a free and unfettered discretion. The discretion is a
judicial one which must be exercised according to law and upon
established facts.Important factors taken into account are the
17
18
LAWSA supra at para 539
LAWSA supra at para 540
relative strengths of the parties' respective cases and whether
any other adequate remedy is available.19
[21]. Having regard to the applicable legal principles, I deal with the
applicant's main contentions and the opposition thereto.
[22]. The question to consider is, did the applicant meet the
requirements necessary for an interim interdict against the
respondents? To answer this question, it is necessary to have
regard to all the requirements for an interim interdict in
conjunction with each other. What should be considered are the
facts as set out by the applicant together with any facts set out by
the respondents which the applicant cannot dispute, and to
decide whether, concerning the inherent probabilities and the
ultimate onus, the applicant should, on those facts, obtain final
relief at the trial to be determined. The facts set up in contradiction
by the respondents should then be considered, and if they throw
serious doubt on the applicant's case, the latter cannot succeed.
19 LAWSA at para 541; Goldstar Finance (Pty) ltd v Capitec Bank (Pty) ltd [2024] 1 All SA
727 (WCC); [2023] JOL 62281 (SCA) par 22.Knox D'Arcy ltd v Jamieson 1996 (4) SA 348
(A) 3611; (1996) 3 All SA 669 (A) 6801; Hix Networking Technologies CC v System Publishers
(Pty) Ltd (1996] 4 All SA 675 (A); 19971 SA 391 (A) 401G; (1997] JOL 519 (A). Van Zyl v
Jonathan Ball Publishers (Pty) Ltd 1999 4 SA 571 (W); (1999] JOL 5234 (W). Gr0ndling v
Beyers (1967] 2 All SA 216 (W); 1967 2 SA 131 (W) 155. Benoni Town Council v Meyer
[1961] 3 All SA 294 (W); 1961 3 SA 316 (W) 326.Plettenberg Bay Entertainment (Pty) ltd v
Minister van Wet & Orde (1993] 1 All SA 509 (C); [1993] 4 All SA 243 (C); 1993 2 SA 396
(C) 400; Contact Electrical Maintenance(pty) ltd v Sanlam Ltd 1996 2 SA 440 (B); Sweets
from Heaven (Pty) ltd v Ster Kinekor Films (Pty) Ltd 1999 1 SA 796 (W) par 11. Beecham
Group ltd v B-M Group (Pty) Ltd [1977] 1 All SA 267 (T); 1977 1 SA 50 (T) 55. Cresto
Group ltd v B-M Group (Pty) Ltd [1977] 1 All SA 267 (T); 1977 1 SA 50 (T) 55. Cresto
Machines (Edms) Bpk v Die Afdeling Speuroffisier, SA Polisie, Noord-Transvaal 1970 4 SA
350 (T) 367G-368E.
[23]. The main contention by the applicant is that it believes the first
respondent, in contravention of the agreements between them,
assisted the second respondent in commissioning the Beer
Powder Plant and engaged in a direct business relationship with
KBL in contravention of the nondisclosure and non-circumvention
clauses of the agreements between them.
[24]. For purposes hereof, I deal hereinunder with the applicant's main
contention by considering the same and juxtaposing it with the
relevant facts set out in the respondents' opposing papers.
[25]. It is contented by the applicant that the Beer Powder Plant cannot
be commissioned and finalised without direct input from it (the
applicant) or the first respondent. The applicant, relying on a
consulting engineering report, states that "it will be impossible for
any other contractor, apart from the contractors involved in the
initial commissioning of the plant, to complete it, without an
extensive reverse engineering process"20. Both the respondents
deny that only the applicant and the first respondent could
commission the plant21. To this end, it is contended by both
respondents that through a process of reverse engineering, the
plant could be successfully commissioned. The second
respondent specifically states that it made use of a team of
software engineers to reverse engineer the software22 . Because
20
21
22
pp. 18-19 paras 32-33 ; p.20 para 35
p. 487 para 22.2; pp. 488-489 para 25
p. 451 para 49.4; p. 460 para 75.4
of this process and because the first respondent refused to assist
the second respondent, the completion of the project took a year
as opposed to two months23. Both respondents also deny that
the first respondent assisted the second respondent in any
manner to commission the Beer Powder Plant24. If regard is had
to the applicant's expert report, the said report does not exclude
the possibility of commissioning the plant without the applicant
and/or first respondent. What the repc-rt states is that it is not
advisable to do so, but that it can be done through an extensive
reverse engineering process that may take weeks or even months
to complete25. Given the contents of the expert report and the
versions of the respondents, it cannot be seriously contended that
a third party could not commission the Beer Powder Plant.
(26]. The applicant states that it received information from employees
of AB InBev who informed it, confidentially and on a basis of
anonymity, that employees of the First Respondent visited the
plant in preparation for commissioning the plant26. I need not say
more about this issue other than restating the relevant legal
position that, in general, hearsay evidence is not allowed in
affidavits and that no substantial application was made before this
Court that the hearsay evidence be considered and accepted27.
23
24
25
26
27
p. 452 para 57
p. 450 para 49; p. 487 para 22.3
p. 334
pp. 19-20 para 34
Special Investigating Unit and another v Engineered Systems Solutions (Pty) Ltd (2021)
JOL 50623 (SCA) at para 40
There is no basis on which this hearsay evidence may be
accepted and, as such, the same is disregarded.
[27]. The applicant contends that on 24 June 2024, when the deponent
to the founding affidavit visited the Beer Powder Plant, he found
electrical designs bearing the first respondent's company name
and logo (annexures "FA15.2" to "FA 15.5" of the founding
affidavit28). The said designs were recognised as those made
during the period when the applicant and first respondent were
conducting the initial commissioning and construction of the Beer
Powder Plant29. The first respondent contends that, after some
investigations, a copy of the electrical wiring diagrams of the Beer
Powder Plant was provided to an entity known as Specia lised
Automation Services. The said wiring diagram contains no
confidential information but merely presents a drawing of the
electrical wires in the plant, which can be observed by any person
inspecting the wiring thereof3°. As per the second respondent's
answer, the drawings (annexures "FA 15.2" to "FA 15.3") were
provided to it by KBL 31 . The second respondent denies having
knowledge of annexures "FA 15.4" and "FA 15.5". Both the first and
second respondents deny the first respondent's involvement,
directly or indirectly, in the second respondent's commissioning
of the Beer Powder Plant. I agree with the applicant that the first
respondent's conduct, providing Specialised Automation Services
28
29
30
31
pp. 360 - 363
pp. 25-26 para 44
pp. 491-492 para 28
p. 462 para 79.3
with a copy of the wiring diagram, makes no sense; no indication
is given as to who Specialised Automation Services is or on what
basis they were provided with the electrical wiring diagram.
Irrespective of this, I do not find this conduct to amount to a breach
of the agreements entered into between the parties. Even if I am
wrong, such a breach does not warrant the relief sought in the
notice of motion interdicting the first respondent from engaging in
business with KBL, SAB and/or any of its subsidiaries (as
opposed to seeking relief prohibiting the first respondent from
sharing such information with third parties).
[28]. The applicant relies on the suspicious termination of the business
relationship between it and the nrst respondent on 6 November
2024. To this end, the termination letter was forwarded to the
applicant's attorneys of record on the same date on which the
applicant agreed with KBL that it was to oversee the
commissioning of the Beer Powder Plant, which would have
resulted in the applicant having to work in proximity with the
second respondent, who was, as alluded to hereinbefore,
appointed to finish the Beer Powder Plant. Also on 6 November
2024, the second respondent left the construction site. The
applicant contends that (a) the termination letter addressed to it
by the first respondent was made in an attempt to circumvent the
contractual restraint, and (b) the fact that the second respondent
left the construction site was to conceal its business relationship
with the first respondent32. Concerning the letter of cancellation,
32 pp. 26 - 28 paras 45 - 48
the first respondent confirms that it cancelled the business
relationship with the applicant and that, irrespective of that, the
contractual restraint survived such cancellation33. In addition to
the aforementioned, the first respondent denies assisting any
person in commissioning the Beer Powder Plant. The second
respondent also denies that the first respondent assisted in the
mechanical commissioning of the Beer Powder Plant. The second
respondent furthermore denies leaving the construction site on 6
November 2024 for any ulterior motives. The second respondent
contends that it left the construction site on 5 November 2024
after completing a training schedule34. Viewed objectively, the first
and/or second respondent's conduct on the 5th of November 2024
cannot be found to be suspicious as alleged or at all. The fact that
the agreements between the applicant and the first respondent
were cancelled some 8 years later does not render it suspicious,
and even if it did, such cancellation does not result in nullifying
the non-circumvention and non-disclosure clauses thereof. The
explanation by the second respondent as to why its director left
the site on 5 November 2024 is also not seriously unconvincing.
In any event, the second respondent's explanation is merely
denied by the applicant in its replying affidavit35.
(29]. The applicant relies on an email received from AB InBev dated 27
November 2024. Part of the email was an email trail containing
33
34
35
pp. 493 - 494 para 32
p. 463 para 81.4 - 81 .5
p.630 para 63
an email from the second respondent, which had attached to it
design plans for the Beer Powder Plant (annexure "FA20" to the
founding affidavit). The applicant alleges that the said design
plans are the design plans provided by the first respondent to the
second respondent36. Both respondents explicitly deny that the
first respondent provided the second respondent with a copy of
the design plans37. The first respondent states that annexure
"FA20" is not a copy of the design plans but a copy of the first
respondent's product brochure as contained on its website38. The
second respondent states specifically that it completed annexure
"FA20" using extractions from the first respondent's brochure on
its website39. This explanation by the second respondent is not
placed in dispute in that it was not dealt with in the applicant's
replying affidavit. If proper regard is had to the facts surrounding
this aspect, I am unable to find that annexure "FA20" constituted
the design plans as alleged by the applicant.
[30]. The applicant refers in its papers to a client proposal done by the
first respondent, wherein the first respondent referenced KBL,
SAB and AB InBev as clients previously worked for. This conduct
by the first respondent, the applicant contends, shows the first
respondent contravened the non-circumvention and
nondisclosure terms of the agreements between the applicant
and the first respondent4°. The first respondent denies that it
36
37
38
39
40
pp. 29-30 para 49
p. 465 paras 83.2 - 83.3; p.494 - 495 para 33
p. 495 para 33.3
p. 465 para 83.7
p. 30 para 51
contravened the non-circumvention and nondisclosure terms of
the agreements between the applicant and it41. To this end, the
first respondent specifically stated that KBL has been a client of it
since 2014 and before entering into the agreements with the
applicant. Reference to KBL in the said proposal was for
marketing purposes by referencing former clients. In addition, the
first respondent takes issue with the manner in which the
applicant obtained the proposal made for a third party and
challenged the applicant to disclose such information42. The
applicant did not reply to this challenge nor deny the existence of
a working relationship between the first respondent and KBL
before it contracted with the applicant.
[31]. Premised on the discussion before, I am of the view that the
applicant did not establish a prima facie right, even a prima facie
right open to some doubt. To this end, it is not disputed that the
applicant has a contractual right in the form of inter alia non
circumvention and nondisclosure clauses. What the applicant
should, however, show is that there was a breach of such clauses
warranting the granting of an interim interdict against the
respondents. When considering the facts as set out by the
applicant together with the facts set out by the respondents, which
the applicant cannot dispute, and having regard to the inherent
probabilities and the ultimate onus, I cannot find that the applicant
showed that the first respondent contravened the terms of the
41
42
p. 496 para 35
p. 496 para 35.3
agreements, warranting the granting of an interim interdict. In
addition, the version of the respondents cast serious doubt on the
applicant's version. Concerning the relief sought against the
second respondent: The applicant has no contractual relationship
with the second respondent. I find that the applicant failed to show
that the second respondent infringed on its contractual
relationship with the first respondent. The fact that the second
respondent indicated that it concedes to the relief sought by the
applicant does not entail that such an order should necessarily be
made against the second respondent without a proper
consideration of the facts of the matter. The applicant's
application is primarily premised on the alleged contractual
infringement by the first respondent and collusion between the
first and second respondent to, as alleged, circumvent the non
disclosure and non-circumvention terms of the agreements
entered into between the applicant and the first respondent. I
already found that the applicant failed to show a prima facie right
warranting protection. Based on this finding, I find against the
granting of the interim interdict against the first and second
respondents.
[32]. Therefore, I make the following order:
i. The application is dismissed with costs, including costs of
counsel on scale C.
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
APPEARANCES :
JUDGEMENT RESERVED: 27 NOVEMBER 2025
JUDGMENT DELIVERED: 21 APRIL 2026
FOR THE APPLICANT :
INSTRUCTED BY:
ADV R RAUBENHEIMER
LABUSCHAGNE ATT
018 381 6828
litigation@labuschagneatt .co.za
FOR THE RESPONDENT: ADV J E KRUGER
INSTRUCTED BY: CJP OELOFSE ATT
018 632 2744
nicolene@cjpo.co.za