SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 2026-085681
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE: 1 May 2026
SIGNATURE
In the matter between:
CRAIG DU TOIT NEL ,CRAIG'S GLOW Plaintiff / Applicant / Appellant
EMPIRE (PTY) LTD,CRAIG DU TOIT NEL
GROUP (PTY) LTD
and
HESTER SOPHIA SWART Defendant / Respondent
2
JUDGMENT
The judgment and order are published and distributed electronically.
PA VAN NIEKERK, J
INTRODUCTION:
[1] Applicants seek, by way of urgency, an order interdicting the Respondent to
utilise the Applicants’ confidential information and further ancillary relief, and in
the alternative seeks an interim interdict for similar relief, pending the institution
of an action against Respondent. The First Applicant trades as “Craig’s
Slimming” and the Second and Third Applicants are related entities to the First
Applicant, which all trade under the brand “Craig du Toit Nel ”. The Applicants
trade in the beauty and cosmetic industry, providing a range of slimming and
cosmetic products and procedures including laser lipo, microneedling and other
slimming products. For sake of convenience in this judgment the three
Applicants will be referred to jointly.
[2] Respondent is an adult female, a cosmetic consultant who was previously
employed by the Applicants.
[3] In the Notice of Motion Applicants seek an order in the following terms:
3
“1. Any non -compliance by the Applicant with the Rules in respect of form,
service and time periods as provided for in Rule 6(12)(b) of the Rules of
the above honourable Court, as well as any non -compliance with the
practice directives of the above honourable Court, as well as any non -
compliance with the practice directives of the above honourable court, be
condoned and this matter is treated as one of urgency.
2. That the Respondent be ordered to:
2.1 Immediately cease and halt all attempts to contact, solicit and/or
deal with, in any manner whatsoever, with the Applicants’ clients;
2.2 Immediately cease and halt all attempts to make use or utilise for
any purpose, in any manner whatsoever, the Applicants’
confidential information, more specifically in relation to, but not
limited to, their client lists, client data, business practices, supplier
information, costing formulations and/or brand;
2.3 Immediately cease and halt all attempts to hold out, represent
and/or advertise, in any manner whatsoever, that the Respondent
is affiliated with the brand or in the employ of the Applicants;
2.4 Immediately return and/or handover any and all stock, items,
products and/or material containing the Applicants’ brand name on
or upon it;
4
2.5 Immediately disclose to the Applicants the list of the Applicants’
clients that the Respondent has made contact with and/or sold
products to, as well as the description of such products sold; and,
2.6 Immediately return and/or handover any and all confidential
information of the Applicants’, in any form or manner that such
information may be held and or published;
2.7 Provide proof/confirm under oath that she no longer has any of the
Applicants’ confidential information in her possession and that all
records and/or personal information in her possession, along with
information contained in or upon any personal devices of the
Respondent has been destroyed and/or removed and/or handed
over to the Applicants.
3. That the costs of this application be paid by the Respondent on an attorney
client scale, inclusive of the costs of Counsel.
4. Further and/or alternative relief.
ALTERNATIVELY:
5. In the alternative and in the event that the Honourable Court is not inclined
to grant a final interdict, then the relief sought as per paragraphs 1 to 3
5
above shall be sought to act as an interim interdict pending the return date
of a rule nisi to be issued.
6. That the Respondent, or any interested party, are called upon to show
cause before this Honourable Court on ______________ 2026, at 10h00,
or so soon thereafter as counsel may be heard as to why an Order in the
following terms, as per paragraphs 1 to 3 above, should not be made final.
7. That the interim Order is to be served:
7.1 on the Respondent by email: at V[...]
8. That the costs of this application be paid by the Respondent on an attorney
client scale, inclusive of the costs of Counsel.
9. Further and/or alternative relief”.
[4] The relief claimed by Applicants is opposed by Respondent. The matter was
enrolled as an urgent application in this Court and stood down for hearing from
Tuesday 28 April 2026 to Wednesday 29 April 2026 after it was established that
the Applicants’ counsel was engaged in another Court and was unavailable at
the time when the matter was called. This issue will be referred to infra in
relation to costs.
6
BACKGROUND FACTS:
[5] During February 2025 the Respondent was contracted by Applicants as a
consultant to perform various services, including client relations such as
handling of telephone calls and WhatsApp messages on behalf of the
Applicants, deal with queries from clients, booking of appointments, product
sales, invoicing and receiving proof of payment, as well as packaging and
delivering of products ordered by clients. Respondent was also trained to use
the laser machine as well as to perform meso-therapy.
[6] When the Respondent was employed by Applicants, the Respondent concluded
a non -disclosure agreement with the Craig du Toit Nel brand. A copy of the
agreement is annexed to the founding affidavit and has the following salient
terms:
[6.1] Respondent agreed to protect the confidential information of the
Applicants and specifically not to divulge to any third party, or sell, trade,
publish, reproduce or reverse -engineer any of the confidential
information, and further not put in use, in any manner, any confidential
information without the prior written consent of the Applicants;
[6.2] The confidential information remains the property of the Applicants who
may demand return thereof and in which event the Respondent shall
7
return all of the original confidential information and destroy all copies
and reproductions thereof in her possession;
[6.3] Respondent is prevented from disclosing or furnishing to any other party
any information, equipment or material embodying any confidential
information or developed as a result of the business relationship;
[6.4] The confidential agreement survives termination of the relationship
between Respondent and Applicants;
[6.5] The term “ confidential information” is widely defined and includes
particulars of clients, prospective clients, their contact information, as
well as technical knowledge, specifications, client lists and is in my view
clearly defined to the extent that it includes the confidential information
which the Applicants seek to protect in terms of the relief as claimed in
the notice of motion.
[7] On 2 April 2026 Respondent terminated her employment with the Applicants and
was then requested to return all confidential information and company property
which included a cell ular phone used for business purposes a s well as the
Applicants’ invoice book. The invoice book contains all the information pertaining
to Applicants’ client base. The invoice book was only returned on 7 April 2026.
Applicants aver in the founding affidavit that, on the same day being 7 April
2026, it was discovered that an existing client of the Applicants purchased
8
products from the Respondent after being brought under the impression that
Respondent was still affiliated with the Applicants. Existing clients of Applicants
were then contacted and the deponent to the founding affidavit (First Applicant)
attached copies of four different electronic messages exchanged between
existing clients of the Applicants and the Applicants from which it clearly
transpires that the Respondent engaged such clients and solicited business
from them, similar to the nature of the business conducted by Applicants.
[8] The aforesaid resulted therein that the Applicants’ attorney of record addressed
correspondence to the Respondent, wherein it was recorded that the
Respondent is utilising confidential information, contrary to the non -disclosure
agreement, and a demand was made that the Respondent desist from such
conduct. Respondent failed to react to such correspondence and in the
Respondent’s opposing affidavit the Respondent does not deny that she
received such correspondence and neither does the Respondent provide any
rational reason as to why she ignored the correspondence. In my view,
considering the nature of the serious allegations made against Respondent in
such correspondence and the fact that the Respondent failed to react thereto ,
warrants an inference that the Respondent accepted the veracity of the
allegations contained the correspondence and had no justifiable reason to
dispute the contents thereof.
[9] When the correspondence failed to have the necessary effect, the application
was launched on an urgent basis.
9
RESPONDENT’S OPPOSITION
[10] Respondent filed an opposing affidavit which has the following features:
[10.1] The answering affidavit contains mostly bare denials of allegations set
out in the founding affidavit, and is in my view a textbook example of a
bold and sketchy defence of material allegations as contained in the
founding affidavit. In this regard I inter-alia refer to the fact that the
answering affidavit fails to explain why the respective clients to whom
the Applicants refer in paragraph 11.14 of the founding affidavit would
provide information to the Applicants which substantiate the Applicants’
averment that the Respondent is utilising confidential information to
compete with the Applicants unlawfully . Significantly, instead of
providing a plausible explanation in answer to the factual content of the
averments made, Respondent elected to raise an issue on the
admissibility of the evidence.
[10.2] The answering affidavit is mostly argumentative in the sense that it
attempts to provide legal argument why a final interdict cannot be
granted and why the matter is not urgent.
THE MERITS OF THE MATTER:
[11] After some debate during the hearing of the matter, counsel acting on behalf of
the Applicants handed up a draft order which provides for an interim interdict,
10
pending an ation to be instituted by the Applicants against Respondent.
Applicants’ counsel thereafter argued that the requirements for an interim
interdict w ere satisfied and in heads of argument filed on behalf of the
Applicants the issue of an alternative order granting an interim interdict was
dealt with, submitting compliance by Applicants of all requirements for an interim
interdict to be granted.
[12] Insofar as the requirement that the Applicants have to show a protectable prima
facie right is concerned, Applicants’ counsel referred to the Moller decision1
where the Court described the test for establishment of a protectable prima facie
right as follows:
“9.1 The rights can be prima facie established even if it is open to some
doubt;
9.2 Mere acceptance of the applicant’s allegations is insufficient but
weighing up the probabilities of conflicting versions is not required;
9.3 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, with regard to the inherent
probabilities and the ultimate onus, the applicant should on those facts
obtain final relief at the trial;
1 Moller N.O. and Another v Murray N.O. and Others (2308/2021) [2021] ZAMPMBHC 34.
11
9.4 The facts set up in contradiction by the respondent should then be
considered and if they throw serious doubt on the applicant’s case he
cannot succeed. See Webster v Mitchell 1948 1 SA 1186 (W)”.
[13] In Messina (Transvaal) Development Co. Ltd v South African Railways and
Harbours2 the Court held as follows:
“In an application for an interim interdict pending action, the Court has a large
discretion in granting or withholding an interdict. Where there is merely a
possibility, not a practical certainty, of interference or injury, as in the present
case, the Court will be reluctant to grant an interdict, especially if the party
seeking the interdict will have other means of redress and will not suffer
irreparable damage. And the Court is entitled to and must regard the possible
consequences, both to the applicant and to the respondent, which will ensue if
an interdict be granted or withheld”.
[14] In my view the Applicants established a protectable prima facie right for the
following reasons:
[14.1] In terms of the evidence as presented in paragraph 11.14 of the
founding affidavit, the Applicants refer to prima facie evidence that the
2 Messina (Transvaal) Development Co. Ltd v South African Railways and Harbours 1929 AD 195 at
215-216.
12
Respondent is soliciting clients of the Applicants. Although that evidence
may be open to some doubt at this time, it constitutes prima facie
evidence which Respondent did not deal with in a manner which casts
serious doubt on the credibility of that evidence;
[14.2] If the facts referred to supra are proven at the trial, the Applicants will be
entitled to a final interdict;
[14.3] On the version of Respondent, she was in unlawful possession of
confidential information of Applicants after her resignation, because she
admits to retaining the invoice book and cellular phone for a number of
days after resignation, contrary to the terms of the non -disclosure
agreement. No reasonable explanation is provided for this conduct.
[15] Considering the fact that , on the probabilities of the evidence, the Respondent
will most likely continue to utilise confidential information of the Applicants to
compete unlawfully with the Applicants while there is a non -disclosure
agreement in place, I am of the view that the balance of convenience favours
the Applicants and that the real potential of continuation of harm leaves the
Applicants with no suitable alternative remedy. In my view Applicants therefore
satisfied the requirements for an interim interdict.
COSTS:
13
[16] The matter was allocated to be heard on 28 April 2026 but by necessity had to
stand down to 29 April 2026 by virtue of the fact that the Applicants’ counsel was
engaged in a different Court (Johannesburg) notwithstanding the fact that this
application was enrolled in this Court, in terms of the Practice Directives of this
Court, for 28 April 2026. The aforesaid caused inconvenience to this Court and
to Respondent’s legal representatives who duly attended Court on 28 April
2026. I am therefore of the view that the wasted costs which includes
Respondent’s counsel’s costs for attending the Court on 28 April 2026 ,. should
be paid by the Applicants . T he remainder of the costs is to be reserved for
determination by the Trail Court wh ich hears the action to be instituted by the
Applicants as referred to in the draft order prepared by Applicants’ counsel.
[17] In the result, the draft order which was handed down by Applicants’ counsel and
which I have marked with an “X”, dated and initialled is made an order of Court
with the proviso that paragraph 4 thereof is amended to read:
“Costs of the application is reserved for the Trial Court referred to in paragraph 3 of the
order with the proviso that the Applicants pays the wasted costs occasioned on 28 April
2026”, including costs of Respondent’s counsel’s appearance on that day “.
_________________________________
P A VAN NIEKERK
JUDGE OF THE GAUTENG DIVISION,
PRETORIA
14
APPEARANCES
FOR APPLICANTS
INSTRUCTED BY VAN DER MERWE &
ASSOCIATES
RESPONDENT
INTSTRUCTED BY