IN THE HIGH COURT OF SOUTH AFR ICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
DISPRO TECH SA (PTY) LTD
and
SOOT SCIENCE (PTY) LTD
MARTIN ELS
PIETER ALBERTUS VAN
NIEKERK
Coram:
Heard:
Wessels AJ
29 June 2026
Not reportable
Case no:5063/2025
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
2
Delivered: This judgment was handed down electro nically, circulate d to the
partie s' representati ves via emai l, uploaded to CaseLine s, and released to
SAFLII. The date and time for the handin g down of the judgment are deemed to
be 10h00 on 10 July 2026.
Summary: Superior Courts Act 10 of2013 - s 18(1) and (3)- application for
order to operate and be executed pending app lication for leave to appeal and any
appea l - requirements restated - exceptio nal circumstances not a
compa 1tmentalised enquiry but an overarching one, infonned throughout by
presence or absence of irrepar able harm - applicant must further show on balance
of probabilities that it will suffer irreparable harm if order not made and that
respondent will not suffer in-eparable harm if it is - prospects of success on appeal
relevant but to be assessed with restraint , without pre-emp ting appeal court
forfeiture of time- limited relief through the appeal process, regardless of the
outcome of the appeal, constitute s except ional circumstances - springboard
interd ict of finite duration rendered nugatory by suspension pending appeal -
anc illary paragraphs enforcing an interdict not seve rable from it - costs order
distinguished as not time-sensitive and ordinar ily recoverable once appeal
process conc ludes - partial enforcement granted accordingly
JUDGMENT
Wessels AJ
Introductio n
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[l] The applicant, Dispro Tech SA (Pty) Ltd ('Dispro Tech'), applies in terms
of ss 18(1) and (3) of the Superior Courts Act1 ('the Act') for an order that the
whole of the order granted by Hendricks JP on 8 April 2026 ('the order ') operate
and be executable pending the determination of the respondents' application for
leave to appeal, and any subsequent appeal. The respondents , Soot Science (Pty)
Ltd ('Soot Science'), Martin Els ('Mr Els ') and Pieter Albertus van Niekerk (' Mr
Van Niekerk'), oppose the relief. I will refer to the aforementioned parties
collectively as 'the respondents ' . A striking-out application brought by Dispro
Tech in respect of certain paragraphs in the answering affidavit was argued before
me and dismissed. This judgment deals only with the s 18 application.
The judgment
[2] It is necessary to briefly set out the findings in the judgment of Hendricks
JP ('the judgment '). Dispro Tech conducts specialised gas emissions testing. It
entails measuring and analysing diesel particulate matter emitted by diesel
engines, primarily in the mining industry. It was the first enterprise of its kind in
the North West Province and in South Africa. Dispro Tech emp loyed Messrs Els
and Van Niekerk in senior positions. They had intimate knowledge of its business
model, client base, proprietary software and exclusive distribution arrangements
with a German equipment manufacturer , Saxon. Both had personall y signed the
exclusive distribution agreement with Saxon on behalf of Dispro Tech and had
undergone training at Saxon's facilities in Germany , at Dispro Tech's expense.
[3] In March 2025, Mr Van Niekerk was suspended followin g the discovery
on his laptop of a business plan which contemplated the purchase of Saxon
equ ipment for a competing busines s. Mr Van Niekerk denied any such intention
1 Superior Courts Act IO of2013.
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and gave assurances which led to the lifting of his suspensio n. On 15 May 2025,
Mr Van Niekerk emailed himself a copy of Dispro Tech's proprietary softwa re
without authorisation. Messrs Els and Van Niekerk resigned on 2 June 2025 and
left Dispro Tech's employ on 27 June 2025. Soot Science was incorporated 11
days later, on 8 July 2025. It was subsequently established that Messrs Els and Van
Niekerk contacted Valterra Platinum, one of Dispro Tech's clients, and delivered a
proposal to it for gas emission testing, using what Hendricks JP found to be a
business model, methodology, equipment and software distinctly similar to those
of Dispro Tech. Hendricks JP held that the respondents had springboarded Soot
Science into existence by using Dispro Tech 's confidential information ,
proprietary software, and client relations hips as a launching platform, without
investing any resource s, time, or expense of their own.
[4] The order broadly provided for the following: (i) Messrs Els and Van
Niekerk are interdict ed from disclosing any confidential information obtained
during their employment; (ii) the respondents are interdicted from utilising such
information for the ir direct or indirect personal gain; (iii) the responden ts are
ordered forthwith to return and destroy all confidential information and related
documentation; (iv) the respondent s are interdicted from unlawfully competing
with Dispro Tech for 18 months from the date of the judgment; and (v) the
respondents are ordered to pay the costs of the application on the attorney -and
client scale, jointly and severally.
The section 18 application
[5] The respondents filed an appl ication for leave to appeal on 23 April 2026,
against the whole of the jud gment and order. This had the immediate effect, in
terms of s 18( 1) of the Act, of suspending all five paragrap hs of the order, which
was the catalyst for launchin g this application. At the date of the hearing of this
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application, 29 June 2026, approximately three month s of the 18-month
springboard period have elapsed. The application for leave to appeal is enrolled
for 24 July 2026. By that date, a further month will have elapsed. Should leave
be granted and an appeal run its ordinary course, the process could take well in
excess of a year. Should leave be refused and the respondents petition the
Supreme Court of Appeal, a further six to 12 months may be cons umed. On any
calculation , the springboard interdict will have expired before the appea l is finally
determined.
[6] In this application , reliance is placed on the respondents' own
corres pondenc e. In a letter dated 28 April 2026, the respondents, through their
attorneys, stated that they had never disclosed or utilised any of Dispro Tech's
confidential information, were not in possession thereof and were not in unlaw ful
competition with Dispro Tech. On the other hand , Dispro Tech argues that, if this
is so, the respondents suffer no prejudice whatsoever from an order compe lling
them to refra in from conduct the respondents disavow.
[7] The respondents' opposition rests on three grounds. Firstly, except ional
circumstances have not been established because the founding affidavit does not
address the prospects of success on the intended appeal. Secondly, the applicant
has not demonstrated ongoing irreparable harm , give n that no clients have been
lost and no damages action has been launched. Thirdly, the respondents will
themselves suffer irreparable harm by reason of the vagueness of paragraphs ( i)
to (iii) of the order, the threat of contempt proceedings and the risk that the appeal
may become moot if the orders are fully implemented before the appea l is heard.
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Legal framework
[8] The general principles governing s 18 of the Act have been stated by the
Supreme Court of Appeal ('SCA') in University of the Free State v Afriforum and
Another 2 and, more recently, in Tyte Security Services CC v Western Cape
Provincial Government and Others 3. The default position established bys 18(1)
of the Act is that the operat ion and execution of an order is suspended pending an
application for leave to appeal or an appeal. Section 18 constitutes an
extraordi nary deviation from that norm and is ava ilable only under exceptional
circumstances. In addition to establishing exceptional circumstances, an applicant
must prove on a balance of probabilities that it will suffer irreparable harm if the
order is not made , and that the other party will not suffer irreparable harm if it is.
[9] In Tyte4, it was clarified that these requirement s are not hermetically sealed
enquiries to be approac hed in a compartmentalised, formula ic fashion . The
overarching enqu iry is whether exceptiona l circumstances subsist. The presence
or absence of irreparab le harm guides the entire inquiry and can be integrated into
it. The second and third requirements are, as stated in Tyte, 'two sides of the same
coin' . However , in Autumn Skies Resources and Logistics (Pty) Ltd v Genet
Manganese (Pty) Ltd In re: Genet Manganese (Pty) Ltd v Minister of Mineral
Resources and Others5 the Full Court emphasised that the irreparable harm
enquiry is a sine qua non in that if either question is answered in the negative, the
existence or non-existence of except ional circumstances is moot. Only once the
2 University of the Free State v Afrifor 11111 and Ano/her 2018 (3) SA 428 (SCA).
3 Tyte Security Services CC v Wes/ern Cape Provincial Govemment and Others 2024 (6) SA 175 (SCA).
4 Idem para I 0.
5 Autumn Skies Resources uml Logistics (?ty) Ltd v Genet Mongunese (fly) Lid /11 re: Genet Manganese (Ply} Ud
1· Minister of Mineral Resource.1· und Others [20191 ZAGPP I IC 559 para 26.
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irreparable harm hurdle is crossed does the court proceed to consider wheth er
exceptional circumstances justify the deviation.
[1 OJ In Incubeta Holdings (Pty) Ltd and Another v Ellis and Another6, the court
established that where a time-limited interdict will be rendered entirely nugatory
by the appeal process, regardless of the outcome of the appeal, such forfeiture of
substantive relief constitutes exceptio nal circumstances. Put differently, a court
order ought not to be lightly allowed to evaporate , as that would undermine the
role of courts in ordering social relations. This principle was endorsed by the Full
Court in Jai Hind EMCC CC t/a Emmarentia Convenience Centre v Engen
Petroleum Ltd South Africa7, which further confirmed that irreparable harm as
env isaged by s 18(3) of the Act is harm that arises from being unable to recover
performa nce in terms of the order, not harm that flows from some other collateral
consequence.
[ 11] Turning to the merits of the appeal, in Afriforum the SCA affirmed 8 that the
less confident a court is that the original judgment will be upheld on appeal, the
less inclined it should be to grant the exceptional remedy of execution pending
that appea l. To this extent, the respondents place particular reliance on the Full
Court judgment of Maritz v Truworths Ltd 9. In 1vfaritz, the court set aside an
enforcement order because the underlying restraint-of-trade order was
incompetent, as it went beyond both the wording of the restraint agreement as
well as the case made in the founding affidavit. That court held that the prospects
of success on appeal go to the heart of the exceptiona l circumstances enquiry in
terms of s 18, and that an order will not be put into operation pending appeal
6 lncubeta Holdings (Pty) ltd and Anoth er v Ellis and Another 20 I 4 (3) SA 189 (GJ) para 25 - 27.
7 Jai Hind EMCC CC t/a Emmarentia Convenience Centre v Engen Petroleum ltd South Aji-ica 2023 (2) SA 252
(GJ) para 20.
8 lbidfn 2 paras 14 - 15.
(GJ) para 20.
8 lbidfn 2 paras 14 - 15.
9 Maril= v Truworths ltd [2025] ZAWCI IC 508.
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where it is shown to be overbroad or incompetent. Although I am enjoined to,
inter alia, consider the merits of the application for leave to appeal or appeal, I
should do so with restraint so as not to rehear the original application or pre-empt
the outcome of the application for leave to appeal or any possible appeal. In
Maritz , it was stated 10 that:
'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 cou11, the prospects of success on appeal will, perforce, carry
less weight in the exceptiona l circumstances enquiry, which will focus more on the presence
and absence of irreparable harm to the partie s.'
[12] This restraint finds recent affirmation in the Full Court judgment of this
Division in Atamelang Bus Transport {Pty) Ltd v Member of the Executive
Council for the Department of Commun ity Safety and Transport Management ,
North West' 1, where Petersen ADJP held that a court seized with as 18 appl ication
may express a view on the prospects of success of the appeal process, but may
not pre-judge the appeal itself.
[13] The respondents' main grounds of appeal are an alleged misdirection of the
Plascon-Evans rule and the imposition of an 18-month period without pleaded
facts. I decline to assess the respondents' prospect s on appeal in depth. It is,
however, necessary to satisfy myself that this matter does not fall within the
excep tional category identified in Maritz , where strong and readily assessable
prospects of success militated against a finding of exceptional circumstances
because the underlying order was objectively incompetent on its face. The order
is not incompetent on its face value. The respondents' grounds of appeal are
10 Ibid Maril= para 34.
11 Atamelang Bus Transport (Pty) ltd v Member of the Executive Council for the Departmenl of Commun ity
Safety and Transport Management, Norlh West [2025) ZANWI IC 191 para I 0.
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arguable, but they are far removed from the overbrea dth of an order that was the
decisive feature of Maritz. The irreparable harm enquiry is therefore the decisive
considerat ion in this matter.
Irreparable harm to Dispro Tech
[ I 4] The interlocutory relief is, by definition, the only satisfac tory remedy
availab le to Dispro Tech. Hendricks JP found that the respondent s' springboard
advantage was unlawfu l, which is precisely why an interdict was granted. Each
day of the suspe nsion of the order is a day of the 18-month protection
permanently lost. The lost period cannot be recovered or compensate d by a later
award for damages. This is irreparable hann envisaged bys 18(3).
[ 15] The respondents argue that no irreparable harm has been demonstrated
because no clients have been lost and no damages action has been launched. This
argument misconstrues Dispro Tech's case. The harm is not the loss of any
specific client or contract, it is the nullification of the springboar d interdict itself,
which conforms with the approach followed in Jai Hind. The fact that the
interdict has been large ly unenforc eable since 23 April 2026 indicates that Dispro
Tech has been deprived of the protection the Court found it was entitled to
receive. Dispro Tech will suffer irreparable harm if paragrap hs (i) to (iv) of the
order are not enforced.
Irreparable harm to the respondents
[16] In their lette r of 28 April 2026, the respondents, through their attorneys,
stated that they had never disclosed or utilised Dispro Tech's confidential
information , were not in possession thereof , and were not in unlawful compet ition
with Dispro Tech. If that is so, the respondents are not engaged in any conduct
that the order restrains. An order compe lling the respondents to refrain from
cond uct they now disavow causes them no harm, let alone irreparable harm. The
respondents cannot, in one breath, deny all wrongdoing and in the next, claim
irreparable prejudice from an order that merely prohibits that wrongdoing.
[17] The respondents' specific claims of harm do not withstand scrutiny. The
argument that the orders are too vague to comply with is not credible, as the
respondents have been employed by Dispro Tech for years and know prec isely
what constitutes its confidential information. Mr Van Niekerk himself admitted
to creating the formulas in Dispro Tech's softwa re and emailing them to himself.
The contention that the threat of contempt proceedings constitutes irreparable
harm is circula r, as any such threat arises only if the respondents fail to comply
and compliance is within their control. As for the mootness argument that the
appea l may be dismissed as academ ic if the orders are implemented before it is
heard, the respondents overlook that s 18( 4) of the Act confers an automatic right
of urgent appeal against this very order. That is the legislature's answer to the
mootness concern.
[ 18] App lying the holistic approach mandated by Tyte, the balance is decis ively
in Dispro Tech 's favour. Dispro Tech faces the permanent forfeiture of court
ordered protection against unlawful competition. The respondents, on their own
version, face no interference with any lawful conduct whatsoever. The
respondents' claimed harm is, at best, speculative and, at worst, self-induced. l
am satisfied that the respondents will not suffer irreparable harm if the order is
enforced.
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Exceptional circumstances
[19] The springboard interdict in paragraph (iv) is time-sensitive by its nature.
Its purpose is to restore competitive parity between the parties for a finite period
of 18 mont hs, calculated from 8 April 2026. The period runs regardless of whether
the order is operat ive. As of the date of this hearing , some three months of the
interd ict have been lost to the suspension. The application for leave to appeal is
enrolled for 24 July 2026, and by that date, a further month will have elapsed. In
the most optimistic scenario, the interdict will have been suspended for some four
months before it can first be enforced. Should the appeal process run its ordinary
course, the interdict will have expired before it is finally determin ed. The
forfeiture of the primary relief, regardless of the outcome of the appeal , falls
squarely within the exceptiona l circum stances identifi ed in Jncubeta 12 as follows:
'The forfeitur e 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 exce ptional circumstances.'
[20] Paragraphs (i), (ii) and (iii) of the order are ancillary to the springboard
interd ict and cannot sensibly be severed from it. They provide the enforcement
mechanism of the interdict. To enforce the springboard interdict in paragraph (iv)
of the order while leaving paragra phs (i) to (iii) suspe nded would deprive the
enforcement order of practica l content.
The cost order
[21] The respondents correctly point out that the applicant seeks enforcement
of all five paragraphs of the order but hinges its entire case for exceptional
circumstances on the time- sensitive nature of the springboa rd interdict in
12 Ibid fn 6 para 27.
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paragraph (iv) of the order. Paragraph (v) is a costs order. Its suspens ion pending
appeal is an ordinary incident of litigation. It is not time-sensitive, unlike the
interdict. Once it becomes enforceable, whether after the leave to appeal is
refused or after any appeal is dismissed, Dis pro Tech can recover the costs. lf the
appeal ultimately succeeds, the costs order would be revisited in any event. No
except ional circumstances have been advanced for the immediate enforcement of
the costs order and none are apparent. The power to grant partial enforcement is
expressly contemplated in Maritz. The same approach is appropriate here. The
application for enforcement of the costs order is refused.
Conclusion
(22] The requirements of s I 8 are not compartmentalised enquiries to be ticked
off in sequence. The overarching requirement is simply whether exceptional
circumstances exist. Viewed as a whole, this case plainly meets that requirement.
The applica nt possesses a court order that is being effectively emptied of its
substa nce by the respondents' application for leave to appeal. The respondents
state, in writing, that they are not doing what the order restrains them from doing.
They do not suffer from being held to that position. The application succeeds in
respect of paragraphs (i) to (iv) of the order.
Costs
(23] Dispro Tech has succeeded substant ially. Although the applicat ion fails in
respect of the costs order, the primary relief sought, enforcement of the
springboard interd ict and the ancillary obligations, is granted. Costs should
follow the result.
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Order
[24] Resultantly, the following order is made:
1. The operation and execution of paragraphs (i), (ii), (iii) and (iv) of
the order granted by Ilendricks JP on 8 April 2026 under case
number 5063/2025 ('the order') shalJ not be suspen ded pending
the determination of the respondents ' application for leave to
appeal , and, if leave is granted, pending any appeal and any further
appeal proceedings.
2. Parag raphs (i), (ii), (iii) and (iv) of the order shall remain in force
and be opera tional and enforceable until the final determination of
all present and future applica tions for leave to appeal and any
resultant appeal proceedings in respect of the matter under case
number 5063/2025.
3. The application for the enforcement of paragraph (v) of the order
is refused. The operation and execution of paragraph (v) of the
order remain suspended pending the determination of the
respondents' applicatio n for leave to appeal and any resultant
appeal.
4. The respondents are ordered to pay the costs of this application,
jointly and severally, the one paying the other to be absolved.
M WESSE LS
ACTING JUDGE OF THE HlGI I COURT
NORTH WEST DIVISION , MAHIK ENG
Appearances
For the applicant:
Instructed by:
For the respondents :
Instructed by:
Adv C Goosen and Adv M Kruger
Gerhard Botha & Partners Inc, Pretoria
c/o LFS Attorneys, Mahikeng
Mr N Esterhuyse ( attorney with right of appearance)
Du Plessis Van der Westhuizen Inc, Rustenburg
c/o Loubser Ellis & Associates, Mahikeng
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