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document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 2026-114014
In the matter between:
MOSSEL BAY ANIMAL HOSPITAL First applicant
BENNETT STANDER Second applicant
PIETER JACOBUS DE WET Third applicant
and
REINHARDT VENTER Respondent
Coram: Van Zyl, J
Heard on: 2 June 2026
Judgment: 11 June 2026
Summary: Application for enforcement of court order pending application for leave
to appeal and appeal, if leave granted – Superior Couts Act 10 of 2013 section 18(3)
– restraint of trade – restraint period running out - exceptional circumstances and
irreparable harm established – application granted
___________________________________________________________________
ORDER
1. The applicants’ non-compliance with the forms, service and time periods
prescribed by the Uniform Rules of Court is condoned, and this matter is
dealt with as one of urgency under Rule 6(12).
2. The order dated 29 April 2026 under case number 243/2026 granted by
the Honourable Madam Justice Kusevitsky , sitting in the Thembalethu
local seat of this Court, is put into immediate effect as contemplated in
section 18(3) of the Superior Courts Act 10 of 2013, pending the outcome
of the application for leave to appeal delivered by the respondent on 8
May 2026, as well as the appeal itself, i f any, and any further applications
for leave to appeal and appeals.
3. The respondent shall pay the costs of this application, including counsel’s
fees taxed on Scale B.
JUDGMENT
VAN ZYL, J:
Introduction
1. Time flies, they say. This in escapable fact is the reason for th ese
proceedings.
2. The respondent is a veterinarian , as are the applicants . They used to
practice together but the relationship has broken down. On 29 April 2026 an
order was granted 1 against the respondent for the enforcement of a restraint
of trade. The order interdicted the respondent from:
1 In the Eastern Circuit Local Division of this Court, held at Thembalethu (Kusevitsky J
presiding).
“1.1 practising as a registered veterinarian relating to large animals (including
dairy cows, cattle, pigs, sheep and horses) within a radius of 60 Kilometres
calculated from […] H[...] Street, Mossel Bay;
1.2 having a direct or indirect interest in a business engaged in the veterinary
practice relating to large animals within a radius of 60 Kilometres calculated
from […] H[...] Street, Mossel Bay;
1.3 selling veterinary goods relating to large animals as defined in paragraph
[1].1 above within a radius of 60 Kilometres calculated from […] H[...] Street,
Mossel Bay;
1.4 having a direct or indirect interest in a business selling veterinary goods
relating to large animals within a radius of 60 Kilometres calculated from […]
H[...] Street, Mossel Bay …”
3. The restraint is in place for a period of 1 year, calculated from 10 April 2026.
4. Reasons for the grant of what I shall call the restraint order have not yet been
furnished. This notwithstanding, on 8 May 2026 the respondent lodged an
application for leave to appeal in which numerous grounds of appeal are
traversed over several pages – perhaps understandably so, because the
respondent did not (and still does not) know the court’s reasoning in finding
against him. He therefore covered all possible bases.
5. The application for leave to appeal was scheduled to be heard on 29 May
2026, but the respondent then indicated that the date was not suitable. No
new arrangement has been made in this respect, and the application remains
pending. As a result, the restraint order remains suspended, 2 but time is
running on the respondent’s restraint period.
6. What is accordingly before me is an urgent application to enforce the restraint
order pending the outcome of the respondent’s application for leave to
appeal, as well as any appeal that may follow, and any further applications for
leave to appeal as may be launched.
2 See section 18(1) of the Superior Courts Act 10 of 2013.
7. At the hearing of the present application counsel for the respondent
effectively invited this Court to reconsider the matter , no doubt because the
reasons for the grant of the restraint order are not yet available. I respectfully
decline this invitation. A lthough I am grateful for the very detailed heads of
argument prepared by the respondent’s counsel, much of what it contains will
have to be left to the court that considers the application for leave to appeal in
due course , except to the extent that I am enjoined to have regard to the
respondent’s prospects of success in the exercise of my discretion at this
stage. I revert to this aspect later in this judgment.
The relevant legal principles
8. This application is brought in terms of section 18 (1), read with section 18(3),
of the Superior Courts Act 10 of 2013 (the Act).
9. The default position is that an application for leave to appeal suspends the
order in respect of which leave is sought (in this case, the restraint order).
10. In terms of section 18 3 of the Act, an order may be enforced pending the
appeal processes in exceptional circumstances. An applicant must
demonstrate, too, on a balance of probabilities that he or she will suffer
irreparable harm if the order is not put into effect, and that the respondent will
not suffer irreparable harm if the order is put into effect.
11. The relevant principles have been summarised in various recent cases.4
3 Superior Courts Act section 18(1) and (3):
“18 Suspension of decision pending appeal
(1) Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision which is
the subject of an application for leave to appeal or of an appeal, is suspended
pending the decision of the application or appeal.
(2) …
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the
party who applied to the court to order otherwise, in addition proves on a balance of
party who applied to the court to order otherwise, in addition proves on a balance of
probabilities that he or she will suffer irreparable harm if the court does not so order
and that the other party will not suffer irreparable harm if the court so orders.”
4 See, for example, Maritz v Truworths Limited [2025] ZAWCHC 508 (30 October 2025) para
8, and Tyte Security Services CC v Western Cape Provincial Government and others 2024
(6) SA 175 (SCA) paras 9-21.
12. First, as to “exceptional circumstances”, the concept is sufficiently flexible to
be considered on a case -by-case basis. It is undesirable to attempt to lay
down any general rule in respect of exceptional circumstances, and each
case must be considered on its own facts. What is ordinarily contemplated by
these words is something out of the ordinary and of an unusual nature,
something which is unexcepted in the sense that the general rule does not
apply to it; something uncommon, rare or different. It is a question of fact, not
a matter of judicial discretion.
13. The existence of exceptional circumstances is a necessary precondition, or
jurisdictional requirement, for the exercise of the court's discretion under s 18.
If the circumstances are not truly exceptional, the application must fail.
14. The three enquiries posited in subsections 18(1) and (3), namely the
existence or otherwise of exceptional circumstances and the presence and
absence of irreparable harm to the parties, should not be approached as a
box-ticking exercise in a compartmentalised fashion. A holistic approach is
required, the overarching enquiry being whether or not there are exceptional
circumstances.
15. Second, as to irreparable harm, t he presence or absence of irreparable harm
cannot be divorced from the exceptional circumstances enquiry. The need to
establish exceptional circumstances is likely to be closely linked to the
requirement that an applicant show that he or she will suffer irreparable harm
if the order is not implemented immediately, and, concomitantly, that the
respondent will not suffer irreparable harm if the order is implemented
immediately. The two harms may be understood as two sides of t he same
coin; the same facts inform both enquiries.
16. Section 18(3) casts an onus on the applicant which requires proving a
negative, that is, the absence of irreparable harm to the respondent.
However, a respondent may attract an evidentiary burden where the facts are
However, a respondent may attract an evidentiary burden where the facts are
peculiarly within his or her knowledge.
17. Third, a court seized of an application in terms of s 18(3) retains a discretion
whether or not to grant an order. This allows for a weighing -up of the
respective harm to the parties. The mere presence of some irreparable harm
to a respondent, irrespective of its nature and extent, and regardless of how
slight or inconsequential, or that it is significantly outweighed by that of an
applicant, cannot non-suit an applicant.
18. Fourth, t he prospects of success in the pending appeal are relevant to the
exceptional circumstances enquiry. The less sanguine a court seized of a
section 18(3) application is about the prospects of the judgment at first
instance being upheld on appeal, the less inclined it will be to grant the
exceptional remedy of execution of that judgment pending the appeal.
19. In Tyte Security Services CC v Western Cape Provincial Government and
others5 the Supreme Court of Appeal touched on the issue at the core of the
present application:
“In Hoffmann-La Roche & Co AG and Others v Secretary of State for Trade and
Industry, Lord Wilberforce expressed the view that:
‘The object of [an interim injunction] is to prevent a litigant, who must
necessarily suffer the law's delay, from losing by the delay the fruit of his
litigation; this is called "irreparable" damage, meaning that money obtained at
trial may not compensate him.’
Albeit said in the context of the consideration of a wholly discretionary remedy, and
thus not perfectly analogous, the sentiment expressed is not entirely without value
here, inasmuch as it echoes precisely the position in which Royal finds itself.”
20. I consider the merits of the application in this context.
Factual background
5 Tyte Security supra para 21. My emphasis.
21. The facts upon which the application was originally brought against the
respondent are as follows.
22. The first applicant has a long history as a veterinarian practice in Mossel Bay
and the surrounding farming communities. The second and third applicants
are partners in the first applicant. The practice is divided into two sections,
namely the treatment of small or domestic animals (the small animal
practice), and the treatment of large (usually farm) animals (the large animal
practice). The first applicant’ s large animal practice is well -established,
comprising about 142 different farms in the area.
23. The respondent was employed as a veterinarian at the first applicant’s
practice as from 18 December 2020. His contract of employment included a
restraint of trade provision , prohibiting him from practising as a vet erinarian
for a period of 1 year within 60 kilometres of the first applicant's premises.
24. In the course of his employment, the respondent serviced the first applicant’s
large animal clients , and over some years he got to know their names and
contact details as well as their veterinary requirements (both as to services
and medication). He also came to know the first applicant’s pricing structure,
and was able to build up a relationship with the large animal clients and their
staff. In this regard, there are two aspects of particular importance:
25. First, the respondent ran the first applicant’ s large animal practice from his
personal cell phone rather than the phone designated by the first applicant for
that purpose . This means that clients had the respondent’s number as a
contact rather than that of the practice.
26. Second, without the first applicant’s knowledge, the respondent established a
WhatsApp group called “ Mosselbaai Kudde Gesondheid ” which included at
least 91 of the first applicant's large animal clients.
27. The respondent was dismissed from the first applicant’ s employ on 10 April
27. The respondent was dismissed from the first applicant’ s employ on 10 April
2026, after a disciplinary hearing . It is not for present purposes necessary to
go into the reasons for his dismissal . The first applicant says that e ven
before the respondent left the practice, there was reason to suspect that he
would breach his restraint. This was confirmed after he had left the first
applicant’s employ, when he was seen at the farm of one of the first
applicant's clients.
28. The respondent denies that he was at the farm on that day for the purpose of
servicing on the first applicant’s clients – but that is an issue (one of many)
that will be debated in the application for leave to appeal. Having read the
record I am inclined to agree with the applicants’ counsel’s submission that ,
although no replying affidavit was delivered in the restraint application, the
nature of the respondent’s denials in his answering affidavit did not invariable
lead to disputes of fact invoking Plascon Evans.6 Many were conclusions, and
others were either bald or unspecific as to which part of an allegation in the
founding affidavit it applied. I do not have to trawl through all of them as
painstakingly as counsel for the respondent did in his heads of argument.
That may be left to an appeal court in due course, if leave to appeal is
granted.
29. On 23 April 2026 the first applicant launched an urgent application at this
Court's local seat in Thembalethu to enforce its restraint against the
respondent. The matter was heard on 29 April 2026 and, on that day, an
order was granted containing a narrower version of the relief sought in the
notice of motion : whereas the restraint prohibited the respondent from
working as a veterinarian and selling medication for 1 year within 60
kilometres of the seat of the first applicant’s practice , the restraint order
interdicted the respondent only from working with large animals for 1 year
within such 60-kilometre radius.
30. The respondent may, therefore, continue his work with small animals without
any limitation. He is currently employed as a locum at the Dana Bay
Veterinary Clinic in Mossel Bay.
Veterinary Clinic in Mossel Bay.
6 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634G-
635C. The applicants sought final relief on motion.
Exceptionality and urgency
31. The respondent denies that the matter is urgent , and he denies that there are
any exceptional circumstances warranting the implementation of the restraint
order. In my view, however, t he problem faced by the applicants is
immediately apparent.
32. Under the restraint order the respondent is interdicted from working with large
animals until 10 April 2027. That is only ten months away. If leave to appeal
is granted (whenever it will be heard, which is at present uncertain) there is
no prospect that the appeal will be determined within ten months. If leave to
appeal is refused and the respondent pursues his rights to apply to the
Supreme Court of Appeal for leave (and a reconsideration of any refusal
under section 17(2)(f) of the Act ) and the Constitutional Court, those
applications will not be finally adjudicated within ten months. Even if the first
applicant is ultimately successful in the appeal process initiated by the
respondent, it will be left with no relief.
33. The respondent, rightly so, does not dispute any of this.
34. The time element inherent in restraint cases has been held to constitute
exceptionality for the purposes of section 18 of the Act. In Incubeta Holdings
(Pty) Ltd and another v Ellis and another7 it was held that:
“In my view the predicament of being left with no relief, regardless of the outcome of
an appeal, constitutes exceptional circumstances which warrant a consideration of
putting the order into operation. The forfeiture of substantive relief because of
procedural delays, even if not protracted in bad faith by a litigant, ought to be
sufficient to cross the threshold of ‘exceptional circumstances”.
35. The court in Fidelity Security Services (Pty) Ltd v Naidoo and another8 stated
as follows:
7 2014 (3) SA 189 (GSJ) para 27. My emphasis.
“In so far as the requirement of exceptional circumstances is concerned, the courts
have in applications for leave to execute on an interdict enforcing a restraint of trade
agreement given considerable weight to the fact that if the order was not put into
operation, the relief would be forfeited by the applicant because of the short duration
of the restraint which would inevitably expire before exhaustion of the appeal
process.”
36. This Court has, very recently, held as follows in Body Corporate Assist ance
Gauteng (Pty) Ltd v Janse Van Rensburg and another:9
“If the operation of the judgment of the court a quo remains suspended pending the
determination of the leave to appeal process. (sic) In any subsequent petitions or
appeals, a substantial portion of the restraint period will have expired before BCA is
able to enforce its rights. In those circumstances, the judgment will effectively
become hollow and academic, as the very purpose of the restraint would be
defeated by the passage of time.”
37. The respondent relies on what was stated in Twenty Four Motors CC t/a Ford
Ermelo v Venter and others 10 in support of his argument that the present
matter is not exceptional merely because it involves a restraint of trade:
“[22] In L'Oreal South Africa (Pty) Ltd v Kilpatrick and Another (L’Oreal), the Court
held that:
‘In the case of a restraint of trade interdict, it is the immediate protection of
the protectable interest of the applicant that is critical to the application even
having any purpose. It is all about the elimination of continued risk, which in
the case of a protectable interest relating to confidential information can only
be achieved by interdicting employment of the individual respondent with the
competitor where such respondent is so employed (which is the case in the
current matter). If an applicant manages to pass the quite substantial hurdle
of convincing a Judge to exercise the Judge’s discretion in the applicant’s
of convincing a Judge to exercise the Judge’s discretion in the applicant’s
8 [2016] ZALCJHB 60 (3 February 2016) para 7. My emphasis.
9 [2026] ZAWCHC 183 (13 April 2026) para 25. My emphasis.
10 [2024] ZALCJHB 232 (27 February 2024) (see paras 19 -37 in relation to exceptional
circumstances).
favour, it is in my view untenable that all this effort and the very objective that
needs to be achieved is thwarted by the respondent party simply proceeding
with an appeal. It is, in my view, the nature of restraint of trade proceedings
that in itself must contemplate ‘exceptional circumstances’.’
[23] Exceptionality is fact -specific and exceptional circumstances cannot be
assumed or accepted merely because the matter involves a restraint of trade. Each
case must be decided on its own merits and L’Oreal is not authority for a position
that when the matter involves a restraint of trade, the existence of exceptional
circumstances follows as a matter of fact.”
38. There is no quibble with this when the case is considered as a whole . The
court in Twenty Four Motors took a strong view on the merits of the
application for leave to appeal and the prospects of success on appeal .
There was, in its view, a good chance that the restraint orders granted would
be set aside on appeal. It was inter alia for that reason that no exceptional
circumstances were found to exist. 11 The court accordingly granted leave to
appeal and refused the employer’s section 18 application. As matters turned
out, the subsequent appeal to the Labour Appeal Court was unopposed, and
the restraint orders were set aside.12
39. In the present matter, the court granting the restraint order has not yet given
reasons for its decision. 13 The respondent nevertheless applied for leave to
appeal. I therefore questioned counsel on how the respondent’s prospects
on appeal should be determined, in other words, in the absence of reasons,
would this determination entail effectively reconsideration the restraint
application? Counsel for the respondent, whil st insisting that the respondent
had excellent prospects, recognised that this was not called for. Counsel for
the applicants referred me to Maritz v Truworths:14
“[33] In Afriforum, the SCA confirmed that the prospects of success on appeal are
“[33] In Afriforum, the SCA confirmed that the prospects of success on appeal are
relevant to the enquiry into the existence or otherwise of exceptional
11 Twenty Four Motors supra paras 30-37, read with para 58.
12 Venter and Others v Twenty Four Motors CC ta Ford Ermelo [2024] ZALAC 32 (28 June
2024).
13 I am advised that reasons have been requested.
14 Supra paras 33-34.
circumstances. The prospects of success on appeal will inevitably vary from case to
case. At one end of the spectrum, a proposed appeal may be clearly vexatious,
enjoying no prospects of success whatsoever. At the other end of the spectrum,
success on appeal may be a racing certainty. It seems to me that, at either end of
the spectrum, where the prospects of success may be assessed with relative ease
and accuracy, strong or weak prospects of success must weigh heavily in the
exceptional circumstances enquir y, and the choice of the court whether or not to
implement the judgment pending appeal will be clear-cut.
[34] In between the two ends of the spectrum, however, where the prospects of
success on appeal are uncertain and cannot be gauged without an in -depth
engagement with the merits which anticipates the work of the appeal court, the
prospects of success on appeal will, perforce, carry less weight in the exceptional
circumstances enquiry, which will focus more on the presence and absence of
irreparable harm to the parties.”
40. In other words, in middle -of-the road matters , a court should focus on the
aspect of harm to the parties rather than on the prospects of success on
appeal. The present case is such a matter. Twenty Four Motors, by contrast,
fell on one of the extreme ends of the spectrum.
41. When the time aspect is considered together with the issue of harm (as it has
to be under the relevant legal principles referred to earlier) I agree with the
applicants’ counsel’s submissions that the first applicant h as made out a
proper case in relation to exceptionality . A damages claim is not viable in
these circumstances:
“Turning next to the irreparable harm that the applicant contends it will suffer, I am
satisfied that the applicant has no alternative way of protecting itself and its
proprietary i nterests against the competition with the subject of the restraint
agreement. The harm that the applicant will suffer if leave to execute is not granted
agreement. The harm that the applicant will suffer if leave to execute is not granted
is self-evident, since if leave to execute is refused, the first respondent’s contractual
undertakings and the interdict granted by the court will be worthless. The prospect of
any reparation of harm by way of damages is remote. Damages would be difficult to
quantify and prove in an instance where what is sought to be protected is an
investment in customer relationships and the value of each contract the applicant
concludes with its customers. … in restraint cases, damages are not an appropriate
alternative remedy precisely because the relief sought aims to compensate for the
ineffectiveness of that remedy …”15
42. This state of affairs also renders this application urgent. The facts speak for
themselves. If the first applicant is forced to bring its section 18 application in
the ordinary course, it will obviously not obtain sufficient redress. The
application for leave to appeal was delivered on 8 May 2026. Th is section 18
application was instituted 10 days later, on 19 May 2026, after the respondent
had indicated that argument of the application for leave to appeal on 29 May
2026 would not suit him. Had the application for leave to appeal been argued
and refused within a short period of time after the grant of the restraint order,
the section 18 application would not have been necessary.
43. The applicants cannot in these circumstances be criticised for the 10 -day
lapse between the delivery of the application for leave to appeal and the
institution of this application.
Irreparable harm
44. No reasons have yet been given, but it is safe to assume that the restraint
order would not have been granted unless the court was satisfied that the
restraint was enforceable and – to the extent set out in the order –
reasonable, that the first applicant had protectable interests in the form of
customer connections and confidential information , that the respondent was
threatening those protectable interests or could threaten them , and that the
first applicant had no satisfactory alternative remedy.
45. This Court is not sitting as an appeal court, and it will only concern itself with
the merits of the r estraint application for the purposes of considering the
question of exceptionality . I have referred to the approach in Maritz v
Truworths, which I endorse, and which avoids the usurpation of the appeal
15 Fidelity Security supra para 8. My emphasis.
court’s role. In Body Corporate Assist ance Gauteng (Pty) Ltd v Janse Van
Rensburg16 this aspect was dealt with as follows:
“[26] In these circumstances, BCA will suffer irreparable harm if the order remains
suspended. In contrast, the respondents will suffer no irreparable harm if execution
is granted, particularly in circumstances where Justice Magona -Dano has already
determined that the restraint is valid and enforceable. The respondents argued that
BCA has no confidential information, trade secrets, customer protection, business
methodology, or proprietary interests. I must stress that this court is not sitting in this
matter as an appellate court in respect of the decision granted by Magona -Dano AJ.
When granting the judgment, Justice Magona -Dano found that the applicant had
established protectable proprietary interests, including trade connections, trade
secrets, and pricing structure. Simply put, and at the risk of repetition, the court a
quo has already found that BCA possesses a protectable proprietary interest,
including its confidential information, which is worthy of protection.
[27] The suspension of the judgment pending appeal means the respondents remain
free, during the appeal process, to utilise the applicant’s confidential information and
trade connections. In contrast, BCA remains unable to enforce the restraining order.
Crucially, Reinier was an employee of BCA and occupied a position in which he had
extensive knowledge of the applicant’s confidential information, including its client
base, pricing structures, financial management, and proprietary business
methodologies. His employment in circumstances connected to a former client of
BCA creates a real and ongoing risk that such information may be utilised to BCA's
detriment. The longer Reinier remains in the employment of Hartland, the previous
client of BCA, the greater the threat it poses to BCA's confidential information and
trade customer connections, given that he will have ample opportunity and
trade customer connections, given that he will have ample opportunity and
temptation to expose that information and exploit those connections to the benefit of
Hartland and to his personal advantage. Clearly, this behaviour will cause
irreparable harm and damage to the applicant.”
46. In the present case, too, there is a strong likelihood that the respondent is
misusing the first applicant’s con fidential information and providing
veterinarian services to its large animal clients. The respondent has not
expressly stated that he is not servicing those clients. Instead, what he has
16 Supra paras 26-27. My emphasis.
chosen to do is provide what counsel referred to as pro forma denials. I have
already referred to this earlier in this judgment.
47. In the founding affidavit, f or example , the first applicant claims that the
respondent is using its confidential information and servicing its clients. The
respondent commences his answer with a denial, but it appears from the rest
of the paragraph that what he is really denying is that the information is
confidential. Where the first applicant claims that the respondent is providing
large animal services to its clients and selling medication , the respondent
answers with a denial but proceeds to c riticise the first applicant 's failure to
provide details as to the “dates, times, circumstances, or persons to whom I
allegedly rendered large -animal veterinary services to. ” The denials only go
half-way. There is no statement to the effect that he is not providing services
or selling medication to any of the applicant’s large animal clients.
48. On the papers, this must be because the respondent is servicing those
clients, since he knows who they are and has their contact details . They
have his cell phone number, and he runs a WhatsApp group about large
animal health. Almost a hundred of the first applicant’s clients are members
of the group. The respondent, moreover, does not believe that the restraint is
enforceable or valid , he does not believe that the first applicant has any
protectable interests , and considers that its client information is not
confidential, and he considers that the relationships he has with the first
applicant's clients were fostered by himself.
49. In these circumstances, for the purposes of the restraint, the first applicant
need only demonstrate the potentiality of harm, that is, it must show on a
balance of probabilities that there is a likelihood that harm will be suffered. 17
This it has done.
50. In terms of the restraint order, the respondent may attend to small animals.
50. In terms of the restraint order, the respondent may attend to small animals.
He argues, however, that his current locum employment at Dana Bay
17 Minister of Social Development, Western Cape v Justice Alliance of South Africa and another
[2016] 34 (1 April 2016) para 25.
Veterinary Clinic does not provide him with sufficient income , and for that
reason the restraint order should not be implemented.
51. This can mean nothing else but that the respondent intends to continue
servicing the first applicant’s large animals if the order is not implemented,
because the order does not preclude him from working with large animals
beyond the 60 -kilometre radius . H e does not say that he has any large
animal clients within the 60 -kilometre radius who are not the first applicant’s
clients, and he does not service Dana Bay Veterinary Clinic's large animal
clients.
52. Counsel for the respondent had no counter-argument to this.
53. The only way that an implementation of the restraint order could therefore
harm the respondent is if he intend ed to service the first applicant’s large
animal clients. When that happens, the first applicant suffers financial harm
which is irreparable because of the accepted difficulties in proving the
quantum of a damages claim in this context.
54. Should the restraint order be put into effect, the respondent may continue his
locum work at Dana Bay Veterinary Clinic . There is nothing on the papers to
suggest that his current income there would never improve or that he would
not obtain other locum positions. Th e respondent may undertake small
animal work anywhere, and he may undertake large animal work beyond the
stipulated 60-kilometre radius. He may also sell medication relating to small
animals anywhere , and he may sell medication relating to large animals
beyond the 60-kilometre radius.
55. The Supreme Court of Appeal in Tyte Security 18 described the respective
parties’ harm as the two sides of the same coin:
18 Supra para 15. My emphasis.
“Although it has been postulated that the second and third are distinct and discrete
enquiries, they are perhaps more accurately to be understood as being two sides of
the same coin. The same facts and circumstances, which by that stage ought largely
to be either common cause or undisputed, will inform both enquiries. The logical
corollary of an applicant suffering irreparable harm, will invariably – but not always –
be that the other party has not. The enquiry into each can thus hardly be mutually
exclusive, particularly because as far as the third is concerned, unlike the second,
the onus cast upon an applicant would be to prove a negative, in accordance with
the usual civil standard. This suggests that, as with the exceptional circumstances
enquiry, a court considering both the second and third must have regard to all of the
facts and circumstances in any particular case. Insofar as the third goes, although s
18(3) casts the onus (which does not shift) upon an applicant, a respondent may well
attract something in the nature of an evidentiary burden.”
56. The present case is a good example of this. The first applicant has, on the
facts, established on a balance of probabilities that it will suffer irreparable
harm, and that the respondent will not suffer a similar fate.
Conclusion and costs
57. The applicants have made out a case for the relief sought.
58. In accordance with the general rule, the respondent must bear the costs of
the application , including the costs of counsel taxed on Scale B of the
applicable tariff.
Order
59. In the premises, it is ordered as follows:
1. The applicant’s non -compliance with the forms, service and time
periods prescribed by the Uniform Rules of Court is condoned, and
this matter is dealt with as one of urgency under Rule 6(12).
2. The order dated 29 April 2026 under case number 243/2026 granted
by the Honourable Madam Justice Kusevitsky, sitting in the
Thembalethu local seat of this Court, is put into immediate effect as
contemplated in section 18(3) of the Superior Courts Act 10 of 2013,
pending the outcome of the application for leave to appeal delivered
by the respondent on 8 May 2026, as well as the appeal itself, i f any,
and any further applications for leave to appeal and appeals.
3. The respondent shall pay the costs of this application, including
counsel’s fees taxed on Scale B.
P. S. VAN ZYL
Judge of the High Court
Appearances:
For the applicants: Mr D. Baguley and Ms K. Damonse
Instructed by: Herbie Oosthuizen & Associates
For the respondent: Mr T. E. Lotz
Instructed by: Millers Attorneys