IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 2026-100111
In the matter between:
CITADEL HOLDINGS (RF) (PTY) LIMITED 1st Applicant
CITADEL INVESTMENT SERVICES (PTY) LIMITED 2nd Applicant
PRECEPT WEALTH SOLUTIONS (PTY) LIMITED 3rd Applicant
PRECEPT INVESTMENTS (PTY) LTD 4th Applicant
And
AMANDA STRATFOLD Respondent
Coram: Adams AJ
Heard on: 8 June 2026
Delivered on: 30 June 2026 Electronically
Summary: Restraint of trade — Sale of business and employment agreements — Confidentiality and
non-solicitation undertakings — Enforcement — Protectable interests — Client connections and
goodwill — Fourth affidavit admitted in interests of justice — Whether agreements indivisible —
Whether failure to comply with contractual mora clause barred relief — Whether unpaid contingent
purchase price rendered restraint unenforceable — Exceptio non adimpleti contractus — Alleged
disputes of fact — Referral to oral evidence — Respondent failing to discharge onus of proving
unreasonableness — Restraint and confidentiality undertakings enforced.
ORDER
___________________________________________________________________
1. The respondent is interdicted and restrained, until 14 May 2028 and within the
Republic of South Africa, from:
1.1 in any capacity whatsoever, dealing with, rendering advice to or
consulting with any Relevant Client in relation to Relevant Services;
1.2 in any capacity whatsoever, soliciting, encouraging or enticing
away any Relevant Client from the second, third or fourth applicants;
and/or
1.3 in any capacity whatsoever, otherwise performing or providing any
Relevant Services to any Relevant Client.
2. The respondent is interdicted and restrained from using, divulging, disclosing
or disseminating to any third party any confidential information of any Group
entity, including but not limited to:
2.1 the identity, names, addresses and other contact details of the
Relevant Clients;
2.2 the contractual arrangements in place between any Group entity
and any Relevant Client; and
2.3 any other information relating to the business of any Group entity
which is not readily available in the ordinary course of business to a
competitor of any Group entity or attempting to do so.
3. It is recorded that the relief sought in prayers 2 and 4 of the notice of motion
was settled between the parties.
4. It is further recorded that the applicants abandoned the relief sought in
prayers 6.1 and 6.2 of the notice of motion and no order is made in respect
thereof.
5. The respondent shall pay the costs of the application on Scale C, including
the costs consequent upon the employment of two counsel where so
employed.
JUDGMENT
___________________________________________________________________
ADAMS, AJ
INTRODUCTION
[1] Commercial certainty depends upon the principle that agreements freely and
voluntarily concluded should ordinarily be honoured. This case is not merely about
the enforcement of a restraint of trade. It concerns whether a party who has received
the benefits of a carefully structured commercial transaction may thereafter avoid the
contractual safeguards that formed an integral part of the bargain from which those
benefits flowed.
[2] The central question is whether the respondent, having agreed to restraint,
confidentiality and non -solicitation undertakings as part of a substantial commercial
transaction, has established a proper basis in law or on the facts for avoiding their
enforcement.
[3] This is an opposed urgent application for the enforcement of restraint of trade,
confidentiality and non -solicitation undertakings arising from a commercial
transaction in terms of which the respondent sold her shareholding in Precept
Wealth to the first applicant and thereafter continued to render services within the
applicants’ group.
Background to the application
[4] The matter was initially enrolled for hearing on 19 May 2026. The applicants
had delivered heads of argument addressing both urgency and the merits. The
respondent’s heads dealt only with urgency. On 20 May 2026 this Court determined
that the matter was urgent. The matter was then enrolled for hearing on the merits
on 27 May 2026.
[5] On 27 May 2026, by agreement between the parties, the matter was
postponed to 8 June 2026. Subsequent to the previous hearing, the parties reached
a settlement, the terms of which were recorded by consent. In terms thereof, the
respondent consented to the granting of an order in terms of prayers 2, 3.3 and 4 of
the notice of motion. At the hearing, counsel for the applicant further informed the
Court that the relief sought in prayers 6.1 and 6.2 of the notice of motion was
abandoned and that no order is sought in respect of those prayers.
[6] The settlement further provided that, without prejudice to the applicants’ right
to contest the admissibility of the respondent’s fourth set affidavit, the respondent
would deliver such affidavit and the applicants would be entitled to respond thereto.
[7] The remaining relief concerns, in substance, prayers 3.1, 3.2, 3.4, and 5 of
the notice of motion, together with costs. The issues that remain are whether the
applicants are entitled to enforce the remaining restraint, confidentiality and non -
solicitation relief, and whether any of the respondent’s defences defeat such
enforcement.
[8] The application has its origins in a commercial transaction concluded during
July 2021 in terms of which the respondent sold her entire shareholding in the third
applicant, Wealth Solutions (Pty) Ltd (“Wealth”), to the first applicant. Wealth in turn
held the entire shareholding in the fourth applicant, Investments (Pty) Ltd
(“Investments”). Collectively, these entities were known as “Precept”.
[9] The sale was governed by a written Sale of Shares Agreement concluded on
26 July 2021. In terms thereof, the respondent disposed of the Precept business and
its associated goodwill, client relationships and commercial value to the applicants.
The transaction became unconditional on 1 August 2021.
[10] A condition precedent to the transaction was that the respondent would enter
into an employment relationship with the second applicant, CIS, and continue to
assist in the integration and development of the business. To that end, she became
employed by CIS with effect from 1 August 2021 as an Advisory Partner. The parties
simultaneously concluded a Confidentiality and Non -Solicitation Agreement on 27
July 2021.
[11] The respondent received substantial financial benefits arising from the
transaction and her subsequent employment. In addition to the purchase price of
R31 million paid for her shares, she received remuneration and incentive payments
pursuant to her employment with CIS. The applicants contend that these payments,
together with the contractual undertakings furnished by the respondent, formed part
of a carefully structured commercial arrangement designed to protect the goodwill
and client connections acquired through the transaction.
[12] Following the termination of her employment, a dispute arose concerning the
respondent’s post -employment conduct. The applicants allege that the respondent
commenced steps to establish a competing advisory business, contacted clients
associated with the Precept business and acted in breach of her restraint,
confidentiality and non -solicitation obligations. A letter of demand was addressed to
the respondent on 17 April 2026, but the dispute remained unresolved.
[13] The applicants accordingly launched these proceedings seeking urgent
interdictory relief to enforce the contractual undertakings contained in the Sale of
Shares Agreement and the Confidentiality and Non-Solicitation Agreement.
Shares Agreement and the Confidentiality and Non-Solicitation Agreement.
[14] The respondent opposed the application. While initially challenging the
urgency of the matter, that issue was determined at an earlier hearing when the
court found the application to be sufficiently urgent and directed that the merits be
heard on a later date. The respondent further challenged the authority of the
applicants to institute the proceedings, disputed aspects of the interpretation and
enforceability of the restraint provisions and contended that the agreements relied
upon by the applicants formed part of a broader indivisible transaction which must be
considered as a whole.
[15] The parties raised a number of preliminary issues which, if upheld, may
impact upon the determination of the merits. I deal with those issues first.
Authority to institute the proceedings
[16] The respondent challenged the authority of the third and fourth applicants to
institute these proceedings and, in particular, the authority of the attorneys acting on
their behalf. The challenge was initially foreshadowed in paragraph 16 of the
answering affidavit, where the respondent indicated that a preliminary point would be
taken regarding whether resolutions had been passed by the third and fourth
applicants authorising the institution of the application.
[17] On 13 May 2026, the respondent delivered a notice in terms of Rule 7(1) of
the Uniform Rules of Court calling upon the applicants to prove the authority of the
attorneys to act on behalf of the third and fourth applicants.
[18] On 18 May 2026, the applicants responded to the Rule 7 notice and furnished
resolutions of the boards of directors of the third and fourth applicants authorising
and ratifying the institution and prosecution of these proceedings and authorising the
attorneys to act on their behalf.
[19] The respondent’s complaint, advanced during oral argument, was not that
resolutions had not been produced. Rather, the complaint was that the resolutions
appeared to have been adopted in terms of section 74 of the Companies Act 71 of
2008(“The Companies Act”) and were signed by only two of the three directors. The
respondent’s signature did not appear on either resolution. It was contended that the
respondent’s signature did not appear on either resolution. It was contended that the
applicants had failed to place before the Court proof that notice of the proposed
resolutions had been given t o the respondent as contemplated in section 74 and
that, in the absence of such proof, authority had not been established.
[20] Rule 7(1) 1 exists to enable a litigant to challenge the authority of a person
purporting to act on behalf of another. The purpose of the Rule is to ensure that
litigation is properly authorised and not instituted without the knowledge or approval
of the litigant concerned. It is not directed at the resolution of internal disputes
concerning the procedural validity of corporate decision -making save where such
disputes genuinely place the authority to litigate in issue.
[21] The applicants produced resolutions signed by a majority of the directors of
the third and fourth applicants authorising the institution of these proceedings and
the appointment of attorneys. Those resolutions constitute prima facie proof of
authority.
[22] Importantly, after the applicants responded to the Rule 7 notice and furnished
the resolutions, no further challenge was raised by the respondent. No
supplementary affidavit was delivered. No objection was recorded in
correspondence. Nor was the point pursued in the respondent’s heads of argument.
The applicants were therefore entitled to assume that the Rule 7 challenge had been
addressed to the respondent’s satisfaction.
[23] The argument now advanced, namely that section 74 of the Companies Act
required proof that notice of the proposed resolutions had been given to the
respondent before the resolutions were adopted, surfaced for the first time during
oral argument.
[24] There is considerable force in the applicants’ submission that had this point
been raised in the papers, they could readily have dealt with it by placing the
relevant documentation before the Court. Counsel informed the Court that the
respondent had in fact been notified of the resolutions and that confirmation of
receipt existed in email correspondence. Whether that is so or not need not be
determined.
1 Uniform Rules of Court
[25] The difficulty confronting the respondent is that the factual foundation
necessary to sustain the challenge was never properly laid in the affidavits. Motion
proceedings are decided on the papers. A litigant is generally not permitted to
advance a new factual challenge for the first time during oral argument where the
opposing party has had no opportunity to answer it on oath.
[26] Moreover, the respondent does not contend that the third and fourth
applicants themselves did not wish to institute these proceedings. Nor does she
contend that the directors who signed the resolutions lacked authority to do so. Her
complaint is confined to an alleged procedural irregularity in the adoption of the
resolutions.
[27] In the circumstances of this case, the production of resolutions signed by a
majority of the directors constitutes sufficient proof of authority for purposes of Rule
7(1). The respondent has failed to place before the Court facts establishing that the
resolutions are invalid or that the attorneys lack authority to represent the third and
fourth applicants.
[28] The Rule 7 challenge must therefore fail. I am accordingly satisfied that the
third and fourth applicants properly authorised the institution and prosecution of
these proceedings and that the attorneys acting on their behalf are duly authorised to
do so.
The fourth affidavit
[29] The respondent seeks the admission of a fourth set affidavit. She contends
that the affidavit is necessary because the initial answering affidavit was prepared
under extreme pressure, in circumstances where incomplete and unsigned papers
were initially served on the eve of a long weekend, the completed papers were
served only on 5 May 2026, and she had very limited time to respond to a
voluminous record. The respondent submits that the affidavit deals with the central
issue of reasonableness and that the in terests of justice require the Court to have all
relevant facts before it.
[30] Reliance is placed by the respondent on Thint (Pty) Ltd v National Director of
Public Prosecutions and Others 2009 (1) SA 1 (CC), Sigaba v Minister of Defence
and Police and Another 1980 (3) SA 535, Pretoria Portland Cement Company Ltd
and Another v Competition Commission and Others 2003 (2) SA 385 (SCA),
and Tantoush v Refugee Appeal Board and Others 2008 (1) SA 232 (T), for the
proposition that further affidavits may be allowed where fairness and the interests of
justice so require.
[31] The applicants object to the admission of the affidavit. They submit that the
respondent bears the onus of establishing that enforcement of the restraint would be
unreasonable, and that the answering affidavit was the proper place for that case to
be made out. They rely on Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984
(4) SA 874 (A), Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486
(SCA), Experian South Africa (Pty) Ltd v Haynes and Another 2013 (1) SA 135
(GSJ), Townsend Productions v Leech and Others 2001 (4) SA 33 (C), and Michelin
Tyre Company South Africa (Pty) Ltd v Coetzee and Others [2019] ZALCJHB 107.
[32] The applicants further submit that the fourth affidavit is not a true reply to new
matter in their replying affidavit, but an impermissible attempt to introduce a new
case after the respondent failed to advance one in her answering affidavit.
[33] Rule 6(5)(e) of the Uniform Rules of Court makes it clear that the filing of
further affidavits beyond those ordinarily permitted is not a matter of right but
requires the leave of the court. 2 The admission of such affidavits falls within the
court’s discretion, which must be exercised judicially upon a consideration of all the
relevant circumstances.
2 See also Hano Trading CC v J R 209 Investments (Pty) Ltd (650/11) [2012] ZASCA 127; 2013 (1)
SA 161 (SCA); [2013] 1 All SA 142 (SCA) (21 September 2012) at para 11
[34] As was observed in Meso Group (Pty) Ltd v Avanthi Hylas 2 Cyprus Ltd 3, the
orderly administration of justice requires adherence to the established sequence of
affidavits in motion proceedings, namely the founding, answering and replying
affidavits. Parties are accordingly required to set out fully and clearly in their principal
affidavits the facts upon which they rely, rather than assume that material facts are
common cause or seek to supplement deficiencies at a later stage. As a general
rule, a fourth set of affidavits will not be permitted unless the applicant demonstrates
the existence of essential or special circumstances justifying a departure from the
ordinary procedure.
[35] I accept that a fourth set affidavit is not delivered as of right. The ordinary rule
remains that affidavits must be confined to their proper sequence and purpose. 4
However, the Court retains a discretion to admit further affidavits where fairness, the
interests of justice and the proper ventilation of the issues require it.5
[36] In this matter, the better course is to admit the respondent’s fourth affidavit,
together with the applicants’ response thereto. The applicants have answered the
allegations and no procedural prejudice remains. The question is rather what weight
should be attached to the allegations advanced and whether they establish a
defence to the relief sought.
[37] I therefore admit the fourth and fifth sets of affidavits. Their admission does
not, however, mean that the respondent has discharged the onus resting upon her.
The applicable legal principles
[38] The principles governing the enforcement of restraint of trade agreements are
now well established in our law. They were comprehensively summarised in
3Meso Group (Pty) Ltd v Avanthi Hylas 2 Cyprus Ltd (59900/2016) [2017] ZAGPJHC 265 (18
September 2017) paras 5–6 where reference is made to several authorities including
4 James Brown & Hamer (Pty) Ltd v Simmons NO 1963 (4) SA 656 (A) at 660 D-H.
4 James Brown & Hamer (Pty) Ltd v Simmons NO 1963 (4) SA 656 (A) at 660 D-H.
5 James Brown & Harmer Pty Ltd Supra at para 11
Experian South Africa (Pty) Ltd v Haynes and Another 6, drawing upon the seminal
decision in Magna Alloys and Research (SA) (Pty) Ltd v Ellis .7 The starting point is
that there is nothing in South African law which renders agreements in restraint of
trade inherently invalid or unenforceable. Such agreements are enforceable unless
their enforcement would, in the circumstances of the particular case, be contrary to
public policy.8
[39] Public policy requires that contractual undertakings freely and voluntarily
entered into should generally be honoured. Equally, public policy recognises that
individuals should, as far as possible, be free to participate in commercial and
professional activity. The enforceability of a restraint of trade agreement therefore
depends upon whether its enforcement would be contrary to the public interest. 9 A
party seeking to avoid the consequences of a restraint to which he or she has
agreed bears the onus of establishing that its enforcement would be unreasonable
and therefore contrary to public policy.10
[40] In Basson v Chilwan and Others, the Supreme Court of Appeal confirmed that
a party seeking to enforce a restraint need do no more than rely upon the agreement
and establish a breach thereof. The burden then shifts to the covenantor to
demonstrate, on a balance of probabilities, that the restraint is unreasonable and
should not be enforced. 11 As Botha JA explained, if the court is unable to conclude
that the restraint is unreasonable, the restraint must be enforced, since public policy
favours compliance with contractual obligations freely undertaken.12
[41] The enquiry into reasonableness was formulated in Basson as comprising
four questions: first, whether the party seeking enforcement has an interest
6 Experian South Africa (Pty) Ltd v Haynes and Another (2013) 34 ILJ 529 (GSJ) paras 12–15.
7 Experian South Africa (Pty) Ltd v Haynes and Another (2013) 34 ILJ 529 (GSJ) paras 12–15.
7 Experian South Africa (Pty) Ltd v Haynes and Another (2013) 34 ILJ 529 (GSJ) paras 12–15.
8 Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) at 897F–898E.
9 Magna Alloys supra at 897F–898E.
10 Magna Alloys supra at 897F–898E; Experian supra para 12
11 Basson v Chilwan and Others 1993 (3) SA 742 (A) at 776H–777B.
12 Basson supra at 776H–777B.
deserving of protection after termination of the agreement; secondly, whether that
interest is being prejudiced by the conduct of the other party; thirdly, if such prejudice
exists, whether the protectable interest weighs qualitatively and quantitatively against
the interest of the other party in remaining economically active and productive; and
fourthly, whether there are any broader considerations of public policy, unrelated to
the parties’ relationship, which require that the restraint either be enforced or
rejected.13
[42] To these considerations a further enquiry was added in Kwik Kopy (SA) (Pty)
Ltd v Van Haarlem and Another , namely whether the restraint goes further than is
reasonably necessary to protect the interest relied upon by the covenantee. 14 A
restraint that exceeds what is reasonably required for the protection of a legitimate
proprietary interest will not be enforced.
[43] The enquiry into the reasonableness of a restraint ultimately involves a value
judgment informed by competing constitutional and public policy considerations. As
the Labour Appeal Court observed in Labournet (Pty) Ltd v Jankielsohn and Another,
the court must balance the principle that parties should be held to their contractual
undertakings against the constitutional right freely to choose and practise a trade,
occupation or profession. 15 A restraint will therefore be enforceable only where it
serves to protect a legitimate proprietary interest deserving of legal protection. It is
not reasonable to enforce a restraint merely to prevent competition as such.16
[44] In motion proceedings, where the reasonableness of a restraint is disputed on
the papers, factual disputes are resolved in accordance with the Plascon -Evans rule.
Where the accepted facts demonstrate that the restraint is reasonable, enforcement
13 Basson supra at 767G–H.
14 Kwik Kopy (SA) (Pty) Ltd v Van Haarlem and Another 1999 (1) SA 472 (W) at 484E.
14 Kwik Kopy (SA) (Pty) Ltd v Van Haarlem and Another 1999 (1) SA 472 (W) at 484E.
15 Labournet (Pty) Ltd v Jankielsohn and Another (2017) 38 ILJ 1302 (LAC) para 41
16 Labournet supra para 41; Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA).
will follow. Conversely, where those facts establish that the restraint is unreasonable,
the application must fail.17
[45] Reddy v Siemens Telecommunications (Pty) Ltd 18 confirms that where an
employee with access to confidential information joins or intends to join a competitor,
the risk of disclosure or use may justify enforcement without requiring proof of actual
disclosure.
[46] The applicants must therefore establish the restraint agreement and breach or
threatened breach. Once they have done so, the respondent bears the onus of
establishing that enforcement would be unreasonable.
The agreements and protectable interests
[47] The respondent sold her shareholding in Precept Wealth to Citadel Holdings.
The value of the transaction was calculated with reference to goodwill, client
connections and the integration of the Precept client base into the applicants’ group.
[48] The transaction was accompanied by restraint, confidentiality and non -
solicitation undertakings. The applicants contend that the respondent sold not merely
shares, but the commercial substance of a business relationship, including client
goodwill.
[49] The respondent does not seriously dispute that the applicants have
protectable interests. She admits, expressly or by necessary implication, that she
had access to client connections, confidential information, client details, contractual
arrangements, internal systems and business information. The respondent also
accepts that customer lists and client information may, in appropriate circumstances,
constitute confidential information. This is consistent with Mathias International Ltd
and Another v Baillache and Others19 .
17 Labournet supra para 40; Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA);
Ball v Bambalela Bolts (Pty) Ltd and Another (2013) 34 ILJ 2821 (LAC) para 19.
18 (251/06) [2006] ZASCA 135; 2007 (2) SA 486 (SCA); (2007) 28 ILJ 317 (SCA) (30 November 2006)
at para 20
19 2015 (2) SA 357 (WCC)
[50] The applicants have therefore established protectable interests in confidential
information, customer connections and goodwill. The respondent’s intended
competitive activity threatens those interests. The respondent had longstanding
relationships with the relevant clients. She is able, by reason of those relationships,
to influence the movement of clients away from the applicants. That is precisely the
harm that the restraints were designed to prevent.
Indivisibility of the agreements
[51] The respondent submits that the Sale of Shares Agreement, Memorandum of
Employment and Confidentiality and Non -Solicitation Agreement form one indivisible
contractual arrangement. She relies on the fact that the Employment Agreement and
Confidentiality Agreement were conditions precedent to the Sale of Shares
Agreement, and that the transaction contemplated the integration of Precept clients
into the applicants’ group.
[52] I accept that the agreements formed part of one broader commercial
transaction. They must be read contextually and with regard to their commercial
purpose. It does not follow, however, that every breach alleged under one
agreement automatically defeats enforcement of every obligation under the others.
The question remains whether the particular obligation sought to be enforced is
conditional upon prior performance of the obligation allegedly breached.
[53] The fact that the agreements are commercially connected does not mean that
the respondent is released from restraint and confidentiality obligations merely
because she alleges that she did not receive the full contingent purchase price.
The mora clause
[54] The respondent contends that the application is premature because the
applicants failed to comply with clause 18 of the Sale of Shares Agreement, which
required a ten-day notice to remedy breach. She relies on Henriques and Another v
Lopes20, where the Court held that compliance with a ten -day notice provision
formed part of the applicant’s cause of action, and on Badenhorst v Theophanous21 ,
where the enforcement of a restraint was described as a form of specific
performance.
[55] The difficulty with the respondent’s argument is that the remaining relief is not
confined to a claim under the Sale of Shares Agreement alone. It includes
enforcement of independent confidentiality and non -solicitation obligations arising
from the employment-related agreements.
[56] In any event, the relief sought is prohibitory. It seeks to restrain ongoing or
threatened conduct inconsistent with negative obligations already undertaken by the
respondent. The alleged conduct was not one that could sensibly be remedied by the
respondent within ten days in a manner that would preserve the applicants’ interests
pending compliance.
[57] The correspondence placed before the Court sufficiently alerted the
respondent to the applicants’ complaint and to the threatened enforcement of their
rights. In urgent restraint proceedings of this nature, a contractual notice provision
should not be interpreted so as to deprive the innocent party of effective protection
where protectable interests are under imminent threat. The mora clause defence is
accordingly rejected.
The exceptio non adimpleti contractus
[58] The respondent’s principal defence is that the applicants cannot enforce the
restraint while approximately R22 million of the purchase price remains unpaid. She
relies on International Executive Communications Ltd t/a IIR v Turnley 22 , Universal
Storage Systems (Pty) Ltd v Crafford23 , and Datacentrix (Pty) Ltd v Duffy24 .
20 1978 (3) SA 356 (W)
21 1988 (1) SA 793 (C)
22 1996 (3) SA 1043 (W)
23 2001 (4) SA 249 (W)
[59] Those cases establish that where the consideration for a restraint is reciprocal
to the restrained party’s obligation, and the applicant has failed to perform the
reciprocal obligation that had to be performed first, the respondent may raise
the exceptio non adimpleti contractus.
[60] The present case is distinguishable. The unpaid amount was not an
unconditional amount due and payable merely in exchange for the restraint. It was
contingent upon the achievement of defined vertical integration and bonus targets.
The respondent did receive substantial consideration under the transaction. The
remaining amounts became payable only upon fulfilment of performance -linked
requirements.
[61] The respondent’s case is not simply that the applicants failed to pay an
amount admittedly due. Her case is that the applicants caused her failure to meet the
targets, and that the targets should therefore be deemed to have been fulfilled by
operation of the doctrine of fictional fulfilment.
[62] That contention may found a separate claim for payment if properly pleaded
and proved. It does not, on the papers before this Court, establish that the applicants
are precluded from enforcing the restraints.
[63] The respondent has not established that the applicants deliberately prevented
fulfilment of the targets, nor has she established facts sufficient to justify the
conclusion that fulfilment must be fictionally deemed.
[64] At best for the respondent, she raises disputed allegations concerning the
extent of support provided by the applicants, the reason for the Addendum and the
operational circumstances in which she failed to meet later targets.
[65] Those allegations do not establish that the restraint obligations and the unpaid
contingent payments are reciprocal in the strict sense required for the exceptio to
24 2014 JDR 0834 (ECP)
succeed. The exceptio non adimpleti contractus is accordingly not available to the
respondent on these papers.
Disputes of fact and oral evidence
[66] The respondent contends that material disputes of fact exist concerning the
reason for the Addendum and the reason she failed to achieve the targets from 2024
onwards. She submits that those disputes should be referred to oral evidence.
Reliance is placed on Kalil v Decotex (Pty) Ltd and Another 25 and Spur Steak
Ranches Ltd and Others v Saddles Steak Ranch26 .
[67] I accept that a court has a discretion to refer disputes of fact to oral evidence
where the disputes are real, genuine and material and where viva voce evidence
may affect the result. The question is whether the disputes identified by the
respondent are material to the determination of the remaining relief. In my
considered view, they are not.
[68] The reason for the Addendum and the reasons for the respondent’s failure to
meet later targets may be relevant to a damages or payment claim under the Sale of
Shares Agreement. They may also be relevant to a future action concerning the
alleged balance of the purchase price.
[69] They do not, however, defeat the applicants’ presently established rights to
protect confidential information, client connections and goodwill for the limited
remaining restraint period. The respondent has not shown that the applicants’
alleged failures destroyed the protectable interests, released her from the restraints,
or rendered enforcement contrary to public policy.
[70] A referral to oral evidence would delay the effective protection of the very
interests for which the restraints were concluded. In restraint matters, delay may
render the relief hollow. The request for referral to oral evidence is therefore
refused.
25 1988 (1) SA 943 (A)
26 1996 (3) SA 706 (C)
Confidential information
[71] The respondent submits that prayer 5 is overbroad because it includes client
identity, names, addresses and contact details, some of which she knows from
memory. Reliance is placed on Mathias International Ltd and Another v Baillache 27
and Others and Automotive Tooling Systems (Pty) Ltd v Wilkens and Others 28 , for
the proposition that a restraint may not be used to prevent a former employee from
using general skill, knowledge and experience.
[72] That principle is sound. A former employee cannot be ordered to wipe her
memory clean. However, that is not what the applicants seek. The applicants seek to
prevent the respondent from using or disclosing confidential information, including
client information and contractual information, for purposes of competing with them
or soliciting their clients.
[73] The fact that some information may be remembered does not deprive it of
protection where it forms part of the applicants’ confidential business information or
client connection and where its use would undermine the transaction concluded
between the parties.
[74] The relief under prayer 5 should, however, be understood as restraining the
misuse of confidential information and not the respondent’s ordinary stock of skill,
knowledge and experience.
Reasonableness
[75] The respondent bears the onus of showing that enforcement is unreasonable.
The restraint arises from a substantial commercial transaction in which goodwill and
client connections were sold for significant value. This is not an ordinary employment
restraint imposed upon a vulnerable employee with no bargaining power.
27 supra
28 2007 (2) SA 271 (SCA)
[76] The respondent was the seller of the business interests and the very person
through whom many of the client relationships existed. The restraints were plainly
designed to protect the value of what the applicants purchased. The applicants have
established protectable interests. Those interests are threatened by the respondent’s
intended competition and dealings with relevant clients.
[77] The restraint is limited by duration, client category and subject matter. It is
directed at protecting client connections, goodwill and confidential information. It
does not impose an absolute prohibition on all economic activity. The respondent
has not established that enforcement would render her economically inactive or that
her right to trade outweighs the applicants’ proprietary interests.
[78] Public policy requires that parties who freely conclude commercial
agreements of this kind should, absent established unreasonableness, be held to
their bargain. The respondent has therefore failed to discharge the onus of proving
that enforcement of the remaining restraints would be unreasonable.
Conclusion
[79] The applicants have established the existence of valid and binding restraint of
trade, confidentiality and non-solicitation undertakings. They have further established
protectable proprietary interests in their confidential information, customer
connections and goodwill, all of which are threatened by the respondent’s intended
conduct.
[80] The respondent has failed to discharge the onus resting upon her of
demonstrating that the enforcement of the remaining restraint provisions would be
unreasonable or contrary to public policy. Neither the alleged failure by the
applicants to provide support in relation to the achievement of the vertical integration
targets, nor the alleged non -payment of portions of the purchase price, constitutes a
defence to the enforcement of the remaining restraints on the facts before this Court.
defence to the enforcement of the remaining restraints on the facts before this Court.
[81] The respondent’s reliance on the mora clause, the exceptio non adimpleti
contractus, and the alleged disputes of fact requiring referral to oral evidence cannot
be sustained. The disputes identified by the respondent do not affect the applicants’
entitlement to the protection of their proprietary interests during the remaining
restraint period.
[82] In all the circumstances, the applicants are entitled to the remaining relief
sought in the notice of motion.
Order
[83] In the result, the following order is made:
1.The respondent is interdicted and restrained, until 14 May 2028 and within the
Republic of South Africa, from:
1.1 providing or supplying any services that are the same and/or
substantially similar to the services rendered by the second, third or
fourth applicants as at 14 May 2026 or during the preceding 24 months
("Relevant Services") to any client of the second, third or fourth
applicant, or any prospective client of the second, third or fourth
applicant (being any person or entity approached by the second, third
or fourth applicant, or in respect of whom strategies had been devised,
as at 14 May 2026 or in the 24 months immediately preceding 14 May
2026) ("Relevant Clients"), irrespective of whether the Relevant Client
first made contact and/or approached the respondent or vice versa;
1.2 in any capacity whatsoever, dealing with, rendering advice to or
consulting
with any Relevant Client in relation to Relevant Services;
1.3 in any capacity whatsoever, otherwise performing and providing
any Relevant Services to any Relevant Client.
2.The respondent is interdicted and restrained from using, divulging, disclosing or
disseminating to any third party any confidential information of any Group entity,
including but not limited to:
2.1 the identity, names, addresses and other contact details of the
Relevant Clients;
2.2 the contractual arrangements in place between any Group entity
and any Relevant Client; and
2.3 any other information relating to the business of any Group entity
which is not readily available in the ordinary course of business to a
competitor of any Group entity, or attempting to do so.
1. It is recorded that the relief sought in prayers 2, 3.3 and 4 of the notice of
motion was settled between the parties.
2. It is further recorded that the applicants abandoned the relief sought in
prayers 6.1 and 6.2 of the notice of motion and no order is made in respect
thereof.
3. The respondent shall pay the costs of the application on Scale C, including
the costs consequent upon the employment of two counsel where so
employed.
____________________
MF Adams
Acting Judge of the High Court
Appearances
Counsel for Applicant: Adv C Whitcutt SC
Adv C de Witt
Instructed by Webber Wentzel
Counsel for Respondent: Adv B Pincus SC
Instructed by Geniv Wulz attorneys inc