1
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE NO: 2026-093159
In the matter between:
RHAM EQUIPMENT (PTY) LTD Applicant
and
JACQUES LOUIS BOTES First Respondent
COALSEAM HYDRAULIC & MINING SUPPLIES (PTY) LTD Second Respondent
Heard: 3 June 2026
Delivered: 15 June 2026
Summary: Application to enforce restraint and confidentiality undertakings.
Requirements proved for interdict. Order granted as sought.
JUDGMENT
(1) Reportable: YES
(2) Of interest to other Judges: YES
Signature Date
2
DANIELS J
Introduction
[1] The applicant seeks to enforce ‘restraint of trade’ and confidentiality
undertakings (the “restraint agreement”) given to it by its former employee, the
first respondent, who is employed by the second respondent . The application
is brought , inter alia , under section 77(3) of the Basic Conditions of
Employment Act No. 75 of 1997, as amended (“BCEA”). The application has
been actively opposed by the first respondent. The second respondent, which
states that it does not oppose the application, has nevertheless filed an
affidavit in support of the first respondent. The applicant seeks to enforce the
restraint agreement for twenty-four months, even though the restraint itself is
thirty-six months.
Urgency
[2] The requirements relating to urgency are laid out in AMCU & others v
Northam Platinum Ltd & another 1 where Snyman AJ summarises the
applicable principles. A party seeking urgent relief must expressly, and in
adequate detail, set out the reasons for urgency and why such relief is
necessary. An applicant is not entitled to rely on a self-created urgency. The
applicant must not delay when acting. The more immediate the litigant's
reaction to remedy the situation by instituting litigation, the better for
establishing urgency. The applicant must state why he cannot be afforded
substantial redress at a hearing in due course. A further consideration is the
prejudice the respondent might suffer because of the abridgment of the
prescribed time periods.
[3] Among other things, it is necessary to consider whether the applicant acted
with expedition. The following facts are pertinent:
1 (2016) 37 ILJ 2840 (LC)
3
3.1 On 28 January 2026, the first respondent gave the applicant 30 days’
notice of his resignation, stating that he intended to continue his studies.
3.2 However, o n 16 March 2026, the applicant became aware that the first
respondent had taken up employment with the second respondent, which
the applicant views as a competitor, in breach of the restraint agreement.
3.3 On 19 March 2026, the applicant addressed a letter to the first
respondent, warning him that his employment with the second respondent
was in breach of the restraint agreement.
3.4 The respondents replied to the applicant’s letter on 23 March 2026,
advising inter alia that the second respondent was not competing with the
applicant. In addition, the first respondent undertook that he would not
directly or indirectly divulge any of the applicant’s confidential information,
that he would not retain any copies of the applicant’s confidential
information, that he did not possess copies of confidential information, and
that he would not solicit any parties contrary to the restraint agreement.
3.5 The applicant approached the registrar and was informed that the
application could not be heard until 3 June 2026. The applicant therefore
launched the application on 23 April 2026, thirty -eight days after it learned
that the first respondent had breached the undertakings. It is noted that
the time periods for the filing of the answering affidavit, the replying
affidavit, and the fourth affidavit complied with the rules. The time periods
allocated by the rules allow for 17 court days to file these pleadings. This
would have taken the applicant to 20 May 2026.
4
[4] The applicant could have launched the application sooner . But it is also plain
that this would not have led to an earlier hearing date. Rule 39 provides for
the allocation of provisional and final hearing dates, both of which fall within
the registrar's purview. Given the abovementioned circumstances, in my view,
the applicant acted with the necessary expedition.
[5] In my view, the applicant cannot receive substantial redress at a hearing in
due course. If the application were brought in the normal course, it is unlikely
that a hearing date would be set within 18 months. By that time, the applicant
would have suffered irrepa rable harm. By the time the matter was heard and
determined, it may well have become moot . In the circumstances, I accept
that the application is urgent and should be heard as such.
Material facts
[6] The facts set out below are drawn from the four affidavits filed by the applicant
and the first respondent. For the sake of completeness, reference is also
made to the facts alleged by the second respondent , albeit that the affidavit
from the second respondent should be properly admitted before it can be
taken into consideration. Where the facts are not common cause, this is
indicated.
6.1 The applicant is a well -established business that designs and
manufactures specialized machines and equipment for the underground
mining industry , a demanding and highly competitive market . The
applicant also provides support and maintenance services to its
customers for its machines and equipment. The applicant designs and
manufactures its own ‘roof bolter’ as an ‘original equipment manufacturer’
and, in that regard, it faces competition from one other manufacturer in
the domestic market. The applicant also designs and manufactures its
own specialized “load haul dumpers” (“LHD”). The applicant’s design and
5
manufacture of hydrostatic machinery enhance efficiency and control,
giving it a competitive edge.
6.2 With effect from 3 January 2024, the applicant and the first respondent,
Mr. Jacques Louis Botes (“Botes”), concluded a written employment
contract, with Botes engaged as a technical illustrator , working under the
instruction of the managing director.
6.3 Clauses 11, 12, and 13 of the employment contract read as follows:
“11.1 The employee , by virtue of his association with the employer, has become
possessed of and has access to the employer's trade secrets, trade
connections, and confidential information, including inter alia, but without
limiting the generality of the foregoing, the following matters, all of which are
hereinafter referred to as “trade secrets”:
11.1.1 Knowledge of the production (including raw material production) and
operating procedures relating to the business of his employer,
11.1.2 Knowledge of and influence over the customers, suppliers and business
associates of the employer and knowledge of the needs and
requirements of such customers, suppliers and business associates,
11.1.3 Contractual arrangements between the e mployer and its business
associates,
11.1.4 Financial details of the relationship of the employer with his business
associates,
11.1.5 The names of the prospective customers of the employer and their
requirements,
11.1.6 Details of the remuneration paid directly by the employer to its various
employees and their duties,
11.1.7 Training schemes, programmers and methods utilized by the employer,
11.1.8 Other matters which relate to the business, structure and management
of the employer , and in respect of which information is not readily
available in the ordinary course of business to a competitor.
11.2 The employee acknowledges that, if on termination of his employment he
takes up employment or otherwise becomes associated with or interested in
takes up employment or otherwise becomes associated with or interested in
a competitor of the employer, the employer’s proprietary interest in its trade
connections, trade secrets and confidential information will be prejudiced.
6
12.1 Having regard to the matters referred to in 11 above, the employee
undertakes in favour of the employer to protect the proprietary interest of the
employer with regards to trade connections and trade secrets in the
following manner:
12.1.1 The employee will not at any time, directly or indirectly, divulge or
disclose to others (except to the extent necessary to perform his duties
to the employer) any of the company’s trade connections and trade
secrets.
12.1.2 Any written instructions, notes, memoranda or records relating to the
employer’s trade connections and trade secrets which are made by the
employee or which come into his possession during the period of his
employment with the employer shall be deemed to be the property of
the employer and shall be surrendered to the employer on demand, and
the employee will not obtain any copies thereof or extracts there from.
12.1.3 The employee shall not for a period of three (3) years after the date of
termination of his employment with the employer:
12.1.3.1 Persuade or attempt to persuade any person whom, during
his employment with the employer , was a banker, financier,
supplier or customer of the employer, to cease doing
business with the employer or commence doing business with
anyone else.
12.1.3.2 Solicit or attempt to solicit the business or custom of any
persons referred to herein.
12.1.3.3 Persuade, induce, solicit, encourage or procure any employee
employed by the employer to cease such employment or to
undertake employment with (sic) to have interest (sic) in any
other business.
12.1.4 The employee shall not during the period of three (3) years
after the termination of his employment for any reason
whatsoever, either alone or jointly or together with or as agent
for any other person, assist , be interested, engaged or
concerned, directly or indirectly, whether as principal,
proprietor, shareholder, partner, representative, member,
consultant, advisor, director, financier, administrator,
consultant, advisor, director, financier, administrator,
employee or otherwise, in any business, company or concern
which carries on business in competition with the employer in
South Africa.
12.2 ….
12.3 …
12.4 In the event that it is contended that any of the provisions of this
agreement are not binding, the onus of proving same shall be upon
the employee and until the dispute has been adjudicated upon finally
by a court of competent jurisdiction, the provisions of this agreement
shall remain binding upon him.
7
REASONABLENESS OF THE RESTRAINTS
13. The employee acknowledges and agrees that the restraints imposed upon
him in terms of this agreement are reasonable in all respects as to subject
matter, period and territorial limitation and are no more than are reasonable
and necessarily required by the employer and its shareholders to protect the
proprietary interests, goodwill, trade secrets, trade connections and
confidential information of the employer.”
6.4 On the applicant’s version, Botes’ position required that he be granted
access to the applicant ’s technical and proprietary material 2 including the
use of engineering drawings, schematics, and specifications to document
machine functionality, operating procedures, maintenance processes,
component configurations, and technical limitations. He was given access
to all the applicant’s 3D models, assemblies, and component -level design
data, including machine architectures, hydraulic layouts, component
specifications, bills of materials, and engineering tolerances and fits. In
short, on the applicant’s version, Botes had unrestricted and direct access
to the applicant’s design environment and interacted with the design
server and the engineering database. As a result of his duties, Botes also
gained knowledge of the applicant’s deal structures, its running costs and
operational expenditure, parts costings and margins applicable to
customers and suppliers.3
6.5 The first respondent’s father , Mr Louis Botes Snr, is an employee of the
second respondent. The second respondent enquired of him whether he
knew of any draughtsmen he could recommend. He mentioned his son.
This led to the first respondent's initial resignation from the applicant in
March 2025.
6.6 As previously mentioned, in March 2025, Botes resigned from the
applicant and informed it that he would be joining the second respondent .
2 Founding Aff para 54, Answering Aff para 118
3 Founding Aff para 3
8
However, when the human resources manager raised the restraint
agreement with him, he withdrew his resignation.
6.7 Thereafter, on 28 January 2026, the first respondent gave the applicant
30 days’ notice of resignation, this time stating that he intended to
continue his studies. 4 Instead, the first respondent took up employment
with the second respondent as a senior draughtsman.
6.8 Following Botes’ resignation, the applicant discovered that he had deleted
his email history. In his answering affidavit, Botes accepts that he did so
but suggests that this was merely a deletion of personal emails and
personal information. However, in its replying affidavit, the applicant
demonstrated that the deleted emails went beyond the personal.
6.9 In response to a letter of demand, the first respondent undertook that he
would not directly or indirectly divulge any of the applicant’s confidential
information, he would not retain any copies of the applicant’s confidential
information, he did not possess copies of confidential information, and he
would not solicit any parties contrary to the restraint agreement . The
second respondent stressed that Botes was not employed by Coalseam
Engineering, and the second respondent was not in competition with the
applicant.
Issues arising
[7] The following issues arise:
4 The first respondent offers only a bare denial of the allegation that he informed the applicant that he
was leaving to continue his studies. Answering Aff para 134 – 136 (004-35)
9
7.1 The status of the second respondent’s affidavit . Is it admissible, and
should it be taken into consideration?
7.2 Did the first respondent breach the restraint agreement by taking up
employment with the second respondent? This depends on whether the
second respondent is a competitor of the applicant.
7.3 Has the applicant shown that it has protectable or proprietary interests?
7.4 If so, has the first respondent proven that the restraint is unreasonable
and therefore unenforceable? If indeed the restraint is unreasonable,
would a more limited restraint suffice to protect the applicant’s proprietary
interests?
7.5 Has the applicant satisfied the requirements for a final interdict?
7.6 The appropriate relief, including costs.
Analysis
Status of the second respondent’s affidavit
[8] In this court, in restraint disputes, the rules make provision for the filing of four
affidavits. The respondent is permitted to file two affidavits to afford it a fair
opportunity to discharge the onus of proving that the restraint is contrary to
public policy. 5 In general, while further affidavits are permitted at the court’s
discretion, this does not constitute a license to parties who have deliberately
chosen not to participate in the proceedings to file affidavits. Parties who have
5 See Atlas 360 Commercial Vehicle Services (Pty) Ltd v De Witt & another (2026) 47 ILJ 561 (LC) at
para [48]
10
chosen not to participate may not file affidavits and participate through the
back door. In the circumstances, the second respondent’s affidavit can play
no role in these proceedings.
11
Alleged breach of the restraint agreement
[9] Clause 12.1.4 of the first respondent’s employment contract prohibits him
from taking up employment with a competitor of the applicant , within South
Africa, for a period of three years following the termination of his employment.
[10] It is common cause that the applicant and the second respondent both
manufacture, supply, repair, and maintain LHD, face drills, roof bolters, shuttle
cars, and related vehicles . They provide the same or similar products and
services to the same clients or customers . They compete for the same
contracts. They operate within the same industry. Furthermore, the second
respondent services, repairs, and rebuilds machines manufactured by the
applicant.
[11] On the common cause facts, the first respondent cannot seriously contend
that the second respondent is not a competitor of the applicant . Whether the
second respondent uses different technologies, designs, and engineering
approaches is of no moment.
[12] In the circumstances, the first respondent breached the restraint agreement
by taking up employment with the second respondent within three years of the
termination of his employment with the applicant. Given that he had previously
attempted to take up such employment and subsequently backed off, it is
arguable that he deliberately breached the restraint agreement.
Does the applicant have protectable or proprietary interests?
[13] Proprietary interests that may be protected are of two types : the first type
consists of the relationships with customers, potential customers, and
suppliers - usually referred to as the “trade connection”; while the second type
consists of all confidential matters that are useful for the carrying on of the
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business and which can be used by a competitor to gain a competitive
advantage. The second type is commonly referred to as “trade secrets”. In
this dispute, the applicant’s primary concern is its trade secrets.
[14] Whether information constitutes a trade secret is a factual question,
determined objectively by reference to whether the information is useful and
capable of application in a trade or industry, and is not public knowledge, and
is known only to a restricted number of people, and is of economic value.6
[15] The applicant alleges that, as its technical illustrator, Botes was responsible
for compiling operating manuals, parts manuals, risk assessments, and
integrated technical documentation packages. His duties required access to
engineering drawings, schematics, and specifications of machine functionality,
operating procedures, maintenance processes, component configurations,
and technical limitations. He had access to all the applicant’s 3D models,
assemblies, component -level design data, including machine architectures,
hydraulic layouts, component specifications, bills of materials, and
engineering tolerances and fits. In short, says the applicant, Botes had
unrestricted, direct access to the applicant’s design environment and
interacted with the design server and the engineering database.
[16] It is common cause on the papers that, among other things, the engineering
and electrical designs and specifications constitute confidential information.
The true dispute was whether the first respondent had access to such
information and documentation. Indeed, Botes states: “ I do not contend that
Rham has no confidential information in its business. That is not the issue.
The issue is whether I possess specific confidential information which is
capable of being used by Coalseam and whether my employment at
Coalseam creates a real threat to such information. I deny that it does.”
6 Experian SA (Pty) Ltd v Haynes & another (2013) 34 ILJ 529 (GSJ) at para [19]
13
[17] Upon receipt of the answering affidavit, the applicant obtained an older
backup of Botes’ emails, which showed that he had been granted access to
the design library. 7 The backup also shows that Botes was copied on emails
from the applicant’s design engineers and technical directors that included
engineering design files and documents. Botes was copied on emails
containing so -called “STEP” and “RA” files that contained confidential
engineering / electrical drawings and specifications.
[18] In the fourth affidavit, the first respondent denies having “unrestricted access”
to all the design files. He states: “ To the extent that I received engineering
files or documents, they were provided to me for the limited purpose of
preparing manuals, parts pages, technical illustrations or support
documentation”.8 Despite his initial denials, the first respondent ultimately
conceded that he had access to the engineering and design files, albeit not
unrestricted access. This tepid denial does not suffice to raise a genuine and
material dispute of fact.9
[19] In addition, the applicant alleges, while Botes did not prepare or issue
quotations, he had access to its running costs and operational expenditure
data, parts costings, and margins applicable to all customers and suppliers.
Despite initially denying such access, the first respondent later states: “To the
extent that I was copied on emails involving quotes, purchase orders, sales
orders, stores, or production planning, my involvement was incidental to my
manuals and parts documentation work .” More specifically, the first
7 Replying Aff paras 124 – 129 (005-22)
8 Founding Aff para 263 (006 – 59)
9 See Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA) at para
[13] where Heher JA stated: “ A real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and
unambiguously addressed the fact said to be disputed. There will of course be instances where a
bare denial meets the requirement because there is no other way open to the disputing party and
nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred
lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or
accuracy of the averment. When the facts averred are such that the disputing party must necessarily
possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be
not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court
will generally have difficulty in finding that the test is satisfied.”
14
respondent admits that during January 2024, he received an internal email
containing a sales quote. He also admits that in July 2024, he requested a
purchase order. Further, the first respondent admits that during October 2025,
he received a 2025 production planning folder. This amounts to a concession
that the first respondent had access to such confidential commercial
information.
[20] There can be little doubt that the abovementioned information is confidential,
was known only to a closed circle, is useful in the industry, and has economic
value.
[21] In the present circumstances, it falls to the first respondent to show that he
had no access to the confidential information10 which he has failed to do.
Is the restraint unreasonable and therefore unenforceable?
[22] It is trite that restraint agreements are valid and enforceable unless the party
seeking to evade them can prove that the restraint is unreasonable, contrary
to public policy, and therefore unenforceable. 11 The party seeking to enforce
the agreement must prove its existence and its breach. Assuming these are
proved, the question arises as to whether the agreement is reasonable.
[23] The test to determine the reasonableness of the agreement was set out in
Basson v Chilwan and others12 where the Appellate Division indicated that the
court must ask the following questions: (a) Is there an interest of the one party
that is deserving of protection upon the termination of the agreement? (b) Is
that interest being prejudiced by the other party? (c) If so, does such interest
so weigh up against qualitatively and quantitatively against the interest of the
10 New Justfun Group (Pty) Ltd v Turner and others (2018) 39 ILJ 2721 (LC)
11 Reddy v Siemens Telecommunications 2007 2 SA 486 (SCA)
12 1993 (3) SA 742 (A)
15
other party, such that the other party should not be economically active and
productive? (d) 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?
[24] In Sibex Engineering Services (Pty) Ltd v Van Wyk13 Stegmann J held that the
onus fell to the respondent to show that the contractual restraint went beyond
what was reasonably required to protect the applicant’s proprietary interest.
[25] In Reddy v Siemens Telecommunications (Pty) Ltd 14 (“Reddy”) the Supreme
Court of Appeal (“SCA”) juxtaposed two competing policy considerations and
a value judgment . First, the court must consider that the public interest
requires that parties comply with their contractual obligations. Second, the
court must consider that it is in the interest of society that all persons should
be productive and be permitted to engage in trade and commerce or the
professions. If the interest of the party to be restrained outweighs the interest
to be protected , the restraint is unreasonable and consequently
unenforceable. The inquiry is undertaken at the time of enforcement and
covers a wide range of issues , including the nature, extent, and duration of
the restraint, as well as factors peculiar to the parties and their respective
bargaining powers and interests.
[26] While the duration of the restraint, twenty -four months, may seem extreme,
the applicant explains it in the context of the need to protect its valuable
engineering designs and methodologies, which are unique to its business and
give it its competitive edge. In my view, the duration and extent of the restraint
do not exceed what is reasonably necessary to protect the applicant’s
proprietary interests.
[27] The first respondent is a skilled individual who is unlikely to remain
unemployed for any length of time . In his own words, the first respondent
13 1991 2 SA 482 (T) 502H-J
13 1991 2 SA 482 (T) 502H-J
14 Cited at fn. 11 at 327
16
states that , by the time he commenced employment with the applicant, he
already had substantial experience in draughting, technical drawings, parts -
related documentation , assembly -related work , and the use of drawing
software such as AutoCAD and Sol id Edge. These skills and experience can
be used outside the applicant's industry, but can also be used within the
industry, provided they are not used in competition with the applicant.
[28] The first respondent does not contend that he will be rendered economically
inactive if the restraint is enforced. He contends only that he will be unable to
use the skills and experience that he gained while in the applicant’s employ.
The applicant alleges that his skills and experience are broadly applicable and
may be used across a b road range of engineering, design , and industrial
contexts.15 In response, the first respondent offers a rather lukewarm denial.16
He states: “ The alternative employment options suggested by Rham are
theoretical and do not answer whether the restraint is reasonably necessary
to protect a legitimate interest”.
[29] The first respondent is restrained only in the choice of his employer for a
limited period, not in his being economically active at all. Restraining him from
being employed by the second respondent does not affect his employment
elsewhere or his ability to engage in the employment for which he was
trained.
[30] Ultimately, the burden falls to the first respondent to put up evidence from
which the court can determine that the restraint is unreasonable. He has not
put up any evidence apart from bald statements.
[31] It has been suggested by some that paragraph [14]17 of Reddy held that there
is no onus in restraint disputes. This statement has been taken out of context.
15 Replying Aff para 19
16 Fourth Affidavit para 341 - 342
17 “In the present case we are not called upon to decide that issue. Where the onus lies in a particular
case is a consequence of the substantive law on the issue. I have pointed out that the substantive law
17
The statement is merely an indication that the onus 18 seldom play s a
determinative role where value judgments are required. In any event, onus
plays a determinative role only where the evidence is evenly balanced. The
onus remains. Botha JA put it best in Basson v Chilwan when the learned
judge stated: “By a long process of judicial development it is clearly
established that, in the particular case of a contract in restraint of trade, an
unreasonable restraint is contrary to public policy, and that the covenantor
can avoid contractual liability by discharging the onus of proving
unreasonableness, according to the ordinary standard of proof required in a
civil case.”19
[32] This court is bound by Sadan & another v Workforce Staffing (Pty) Ltd 20
where, at para [19] the Labour Appeal Court (“LAC”) stated: “Once the party
seeking to enforce a restraint of trade agreement has established an interest
worthy of protection and that the other party is threatening that interest, the
onus is on the party resisting the enforcement of the agreement to prove that
it would be unreasonable. The appellants thus bore the onus of proving that
the enforcement of the restraint will be unreasonable, both in respect of its
territorial operation and duration.” In my view, the first respondent has failed to
discharge the onus of showing that the restraint is unreasonable.
as laid down in Magna Alloys is that a restraint is enforceable unless it is shown to be unreasonable,
which necessarily casts an onus on the person who seeks to escape it. But if the rule were to be
reversed to provide that a restraint is not enforceable unless it is shown that it is reasonable which
would necessarily cast an onus on the person seeking to enforce it to allege and prove that the
restraint is reasonable the result in the present case would be the same. For in the present case the
facts concerning the reasonableness or otherwise of the restraint have been fully explored in the
evidence, and to the extent that any of those facts are in dispute that must be resolved in favour of
Reddy (these being motion proceedings for final relief). If the facts disclosed in the affidavits,
assessed in the manner that I have described, disclose that the restraint is reasonable, then Siemens
must succeed: if, on the other hand, those facts disclose that the restraint is unreasonable then
Reddy must succeed. What that calls for is a value judgment, rather than a determination of what
facts have been proved, and the incidence of the onus accordingly plays no role.”
18 The burden of proof or true onus refers to the obligation of a party to persuade the trier of facts by
the end of the case of the truth of certain propositions. See Heydon & Ockelton Evidence: Cases &
Materials 4th Ed (1996) 15
19 At p777
20 (2023) 44 ILJ 2506 (LAC)
18
[33] In the final analysis, taking all the evidence into consideration, the first
respondent's interest does not outweigh the applicant's interest, either
qualitatively or quantitatively. It is in the interest of society that the parties be
held to their voluntarily agreed -upon agreement. Furthermore, as previously
mentioned, this is not a situation where the first respondent is likely to become
and remain economically inactive. No other facet of public policy has been
brought to the court’s attention.
Requirements for a final interdict
[34] The applicant seeks a final interdict. It must satisfy the requirements for a final
interdict - the existence of a clear right, an actual or reasonably apprehended
infringement of that right, and the absence of an adequate alternative
remedy.21
[35] The applicant has proved the existence of the agreement and its breach. The
first respondent does not dispute having had access to the applicant's
confidential information or trade secrets. He contends only that he did not
have unrestricted access to such information and his access was limited to
the nature of his duties and functions.
[36] Indeed, w here an employee is employed by a competitor, the risk of
disclosure of the previous employer's trade secrets is objectively assessed as
obvious.22 The first respondent is engaged in a similar position . His loyalty is
to his new employer. He will have opportunities to disclose such information,
and it can be reasonably apprehended that he will do so, whether deliberately
or not.
21 Setlogelo v Setlogelo 1914 AD 221 at p227.
22 See Reddy at p330
19
[37] In BHT Water Treatment (Pty) Ltd v Leslie and another23 Marais J held: “In my
view, all that the applicant can do is to show that there is secret information to
which the respondent had access, and which in theory the first respondent
could transmit to the second respondent should he desire to do so . The very
purpose of the restraint agreement was that the applicant did not wish to rely
on the bona fides or lack of retained knowledge on the part of the first
respondent, of the secret formulae. In my view, it cannot be unreasonable for
the applicant in these circumstances to enforce the bargain it has exacted to
protect itself. Indeed the very ratio underlying the bargain was that the
applicant should not have to content itself with crossing its fingers and hoping
the first respondent would act honourably or abide by the undertaking he has
given.”
[38] In summary, the applicant proved the restraint agreement and proved its
breach. There is no reason for the applicant to accept the first respondent’s
bona fides. There is no adequate alternative remedy. The requirements for a
final interdict are proved.
Relief, including costs
[39] The application is brought under the BCEA and not the Labour Relations Act
No. 66 of 1995 as amended (the “LRA”) . The requirements of law and
fairness, in section 162 of the LRA, do not govern costs under the BCEA. In
Biase v Mianzo Asset Management (Pty) Ltd , the LAC held that in a civil
claim, absent special circumstances, the costs follow the result. No special
circumstances have been presented to the court , and there is no reason why
costs should not follow the result.
[40] In the circumstances, I make an order as follows:
23 1993 (1) SA 47 (W) at p57
20
40.1 The application may be dealt with on an urgent basis and the rules
governing service and process are condoned,
40.2 It is declared that the first respondent is in breach of the restraint
agreement contained in the written employment contract concluded with
the applicant on 27 November 2023,
40.3 The first respondent is interdicted and restrained for a period of 24
months, calculated from 27 February 2026, from:
40.3.1 Persuading or attempting to persuade any person who, during his
employment with the applicant, was a banker, financier, supplier ,
or customer of the applicant, to cease doing business with the
applicant or commence doing business with anyone else,
40.3.2 Soliciting or attempting to solicit the business or custom of any
persons referred to in para 40.3.1; and
40.3.3 Either alone or jointly or together with or as agent for any person,
assist, be interested, engaged or concerned, directly or indirectly ,
whether as principal, proprietor, shareholder, partner,
representative, member, consultant, advisor, director, financier,
administrator, employee or otherwise, in any business, company
or concern which carries on business in competition with the
applicant in South Africa.
40.4 The first respondent is interdicted and restrained from using and/or
directly or indirectly divulging or disclosing to any person any of the
applicant’s confidential information . This includes any methods,
operations, processes , computer software, operating manuals,
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engineering data, documentation, client lists, programmes, trade secrets,
technical information, drawings, financial information , or any other
information which could be damaging to the applicant’s operations, or
which could benefit other persons to the detriment of the applicant.
40.5 The first respondent is interdicted and prohibited from being engaged in
any form of employment or engaged in any capacity whatsoever with the
second respondent or any of its subsidiary and/or associated companies
for a period of 24 months, calculated from 27 February 2026,
40.6 The first respondent is ordered to destroy and/or return any of the
applicant’s confidential and/or proprietary information and/or trade secrets
in his possession to the applicant within 5 business days of the order
40.7 The first respondent is ordered to pay the applicant’s party and party
costs.
RN Daniels
Judge of the Labour Court of South Africa
For the Applicant
S Lancaster
Lancaster Kungoane Attorneys
For the First Respondent
Adv S Bismilla
MC Inc Attorneys