THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case 2026-061774
In the matter between:
GIB INSURANCE BROKERS (PTY) LTD Applicant
and
JULIAN MADURAY Respondent
JUDGMENT: LEAVE TO APPEAL
DU PLESSIS J
Introduction
[1] This is an application for leave to appeal against my judgment delivered on 26
March 2026, in which the applicant’s urgent application for final interdictory relief was
dismissed with costs.
(1) REPORTABLE: Yes☐/ No ☒
(2) OF INTEREST TO OTHER JUDGES: Yes☐ / No ☒
(3) REVISED: Yes ☒ / No ☐
Date: 11 June 2026
2
[2] The test for leave to appeal is well known. Section 17(1)(a) of the Superior
Courts Act1 provides that leave may be granted only where the court is of the opinion
that the appeal has a reasonable prospect of success, or that there is some other
compelling reason for it to be heard. As explained in MEC for Health, Eastern Cape v
Mkhitha,2 a mere possibility of success, an arguable case, or a matter that is not
hopeless is not enough. There must be a sound, rational basis for the conclusion that
another court would reasonably reach a different outcome on the facts and the law.
[3] The applicant's heads set out six grounds of appeal, which can be grouped into
three themes:
a. that I failed properly to apply the second requirement for a final interdict,
namely injury actually committed or reasonably apprehended in the
future, and that I conflated breach with harm;
b. that I erred in interpreting the non-solicitation clause in the parties' CCMA
settlement agreement; and
c. that I did not properly consider the absence of an adequate alternative
remedy, the balance of prejudice, and alleged "compelling reasons" why
an appeal should be heard.
[4] The crux of the applicant’s concern in the leave to appeal is that the judgment
failed to address the element of reasonable apprehension of future harm and that I
adopted an unduly narrow understanding of “solicitation”. The respondent disagrees
and places emphasis on the email of 13 February 2026, in which the respondent stated
that she was actively seeking employment and “would keep in touch”, submitting that
this wording cannot reasonably support an inference of future solicitation, whether
direct or indirect.
[5] I do not intend to repeat in detail what was set out in the main judgment. It is
sufficient to note that the parties concluded a settlement agreement at the CCMA on
13 November 2025, under which the applicant waived an existing restraint of trade
13 November 2025, under which the applicant waived an existing restraint of trade
and the respondent undertook a non-solicitation obligation for 12 months. That clause
1 10 of 2013.
2 [2016] ZASCA 176.
3
provided that, should the respondent “engage and interact” with the applicant’s clients,
contractors, agents or employees “in a manner that breaches this clause” within that
period, the full settlement amount would become repayable. After termination of
employment, while she was unemployed and had no competing business, she
responded to certain communications from former clients and staff and, in an email,
recorded that she had referred clients back to the applicant, was actively seeking
employment, and would “keep in touch”. The applicant emphasises this conduct as
indicating a breach of the clause and a reasonable apprehension of future harm to its
client relationships, goodwill, and proprietary interests.
Non-solicitation
[6] My judgment approached the interpretation of the clause using the now-settled
Endumeni
3 methodology, and I held that the clause is a non-solicitation clause and
that, in the ordinary use, would mean active asking, canvassing or enticement,
typically to secure business for oneself or a competitor. I also took into account the
context, namely that it was a clause in a settlement agreement in which the applicant
expressly waived its restraint of trade. That warranted narrower protection, rather than
recreating a restraint-of-trade clause as a non-solicitation clause. The words “in a
manner that breaches this clause” further supported this reading: not every
engagement or interaction is prohibited, only those undertaken for the purpose of
solicitation.
[7] The applicant submits that another court would hold that any engagement or
interaction with clients is prohibited, regardless of purpose. I do not agree. That
reading treats the phrase “engage and interact” in isolation from the contractual and
commercial context, where a restraint of trade was expressly waived. On this point,
the applicant has not demonstrated that another court would, rather than might, reach
a different conclusion.
a different conclusion.
3 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).
4
Injury or reasonable apprehension of harm
[8] The requirements of an interdict were applied in the main judgment. The
applicant’s main concern is that I confined myself to the question of whether an injury
was actually committed, and not also to whether there was a reasonable apprehension
of future harm. It submitted that I conflated the absence of breach with the absence of
injury. This is not convincing.
[9] The starting point for assessing both actual and apprehended injury is the
content and scope of the right relied on. This, in turn, depends on how the non-
solicitation clause is interpreted. The harm lies in conduct that infringes that right.
Conduct outside the clause’s prohibition cannot constitute an existing injury or a
reasonable apprehension of future injury. The respondent’s conduct relied upon
comprises reactive communication with former clients and staff, her express statement
that she is referring clients back to the applicant, and her indication, while unemployed
and without a competing business, that she is seeking employment and would keep in
touch.
[10] I accept that an undertaking to “keep in touch” with clients during a non-
solicitation period may, on a different factual matrix, contribute to a reasonable
apprehension of future solicitation (i.e. harm), particularly where the former employee
is already employed or engaged with a competitor. But on these facts the respondent
was unemployed, had no competing business, and, on her version, was referring
clients back to the applicant. On these facts, the email, read as a whole, with the
phrase “keep in touch”, does not, on its own, create an objectively reasonable
apprehension that the respondent will, once employed elsewhere, solicit the clients in
breach of the clause. The applicant’s apprehension rests on a series of variables,
inferences, and future possibilities (she might find employment, it might be with a
competitor, and then she might use the “keep in touch” relationship to solicit), not on
competitor, and then she might use the “keep in touch” relationship to solicit), not on
concrete facts (i.e. being employed with a competitor and about to solicit). Interdictory
relief of this nature cannot be founded on speculative future harm not grounded in
5
proven facts.4 Nothing prevents the applicant from approaching a court again should
these facts change.
[11] Because the applicant had not demonstrated conduct that falls within the non-
solicitation prohibition, it had not established either an injury or a reasonable
apprehension of injury to the right created by that clause. In light of the understanding
of "non-solicitation" and having found that another court would not reach a different
conclusion, this ground must likewise fail.
Alternative remedy, prejudice and compelling reasons
[12] The remaining grounds can be grouped together, as they relate to the alleged
absence of an adequate alternative remedy, the balance of prejudice, and “compelling
reasons” for the appeal to be heard. Again, these grounds presuppose that the other
requirements for an interdict have been met. The main judgment found that the
applicant has not established the other requirements. Once that is so, the question of
alternative remedies and prejudice does not arise.
[13] As for the compelling reason, there are cases involving non-solicitation
undertakings, and this case does not raise a sovel or difficult question of law that
requires clarification by an appellate court. I am not persuaded that there ei any
compelling reason within the meaning of section 17(1)(a)(ii) to warrant leave to appeal.
Conclusion
[14] Having considered the grounds in light of the main judgment, I am not satisfied
that another court would reach a different conclusion on either the interpretation of the
non-solicitation clause or the application of the interdict requirements to the
established facts. There is also no compelling reason for the appeal to be heard. The
costs should follow the result.
4 See Nestor v Minister of Police 1984 (4) SA 230 (SWA) at 245 H: “This means that, on the basis of the facts
presented to him, the Judge must decide whether there is any basis for the entertainment of a reasonable
apprehension by the applicant.” C f. Reddy v Siemens Telecommunications (Pty) Ltd [2006] ZASCA 135 and
Experian South Africa (Pty) Ltd v Haynes 2013 (1) SA 135 (GSJ) where the applicants have taken up new
employment with competitors already.
6
Order
[15] The following order is made:
1. The application for leave to appeal is dismissed.
2. The applicant is ordered to pay the respondent’s costs.
________________
WJ du Plessis
Judge of the High Court, Gauteng Division,
Johannesburg
Date of hearing:
10 June 2026
Date of judgment:
11 June 2026
For the applicant:
N Janse van Rensburg instructed by EMG
Attorneys
For the respondent:
AJ Nel instructed by Goldberg Attorneys