IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case number A2025-153574 & A2025-153556
Consolidated under case number A2025-153574
In the matter between:
DOWNARD IAN MICHAEL
(Case No. A2025-153574) First Appellant
JENKINS MARK
(Case No.2025-153556) Second Appellant
SNIPERVERSE (PTY) LTD
(Case No.153556/2025) Third Appellant
and
HUDACO TRADING (PTY) LTD
(Both Appeals) Respondent
Heard: 14 May 2026
Delivered: 30 July 2026
2
Coram: Van Niekerk JA, Tokota AJA et Djaje AJA
This judgment was handed down electronically by circulation to the parties’
representatives by email, published on the Labour Appeal Court website, and
released to SAFLII. The date and time for hand-down is deemed to be 10h00 on
30 July 2026.
JUDGMENT
TOKOTA, AJA
Introduction
[1] The respondent approa ched the Labour Court seeking an order
interdicting and restraining the first and the second appellants from
breaching the contracts of restraint of trade entered into between them
and the respondent. There were two separate applications before the
Labour Court, each of which was based on similar facts. The Labour
Court granted both applications, but it restricted the area of application of
the restraints to Gauteng, KwaZulu- Natal and Western Cape, with costs.
In this judgment where I refer to Mr Downard and Mr Jenkins that will be
a reference to the first and second appellants respectively.
[2] The appeals against the order are with leave of the Labour Court.
Background
[3] During 2013 the respondent entered into a sale of Business A greement in
terms whereof it purchased the business of Three-D Agency Investments
(Pty) Ltd (Three-D Investments) as a going concern. In concluding the
agreement Mr Downard was the authorised representative of Three -D
3
Investments. It was envisaged that Three -D Investments would be
conducted as a separate divis ion and that Mr Downard would be
appointed as the head thereof. In terms of t he agreement Mr Downard
was to conclude a written service, confidentiality and restraint agreement.
It is alleged that there was a precondition to the sale of Business
Agreement that Mr Downard would bind himself to the extensive and
comprehensive restraint and non-competitive agreement for a period of 3
years after the termination of employment.
[4] The restraint clause was intended to protect the interests of the business
being acquired as a going concern of the respondent’s investments and to
prevent the erstwhile owners and employees of the purchased business
from expropriating the clients, suppliers, business relationships, the
technical knowledge, know how, proprietary information and trade
secrets of the business for their own benefit
[5] After the sale , indeed Mr Downard was appointed as the Managing
Director of Three -D Investments to run the day -to-day business until
November 2022. He was also responsible for maintaining the relationship
of the existing clients and the expansion of the client base. The sale
agreement was to include a restraint clause (clause 18) in terms of which
he would be` bound to honour for three years after the termination of his
employment with Three-D Investments.
[6] Mr Downard then concluded a contract of employment with Three -D
Investments on 1 May 2013 which was subject to various extensions up
until the end of November 2024. His duties included expanding the
business of Three-D Investments’ new clients, suppliers, developing sales
and implementation of strategies subject to the Board’s approval.
Included in his contract was a confidentiality clause which would survive
4
after the termination of his employment. The contract further contained
confidentiality and secrecy clauses in terms of which Mr Downard agreed
not to use, for his own benefit or disclose to any other person for their
benefit, any trade secrets or confidential information. The confidentiality
and secrecy clauses were to operate indefinitely.
[7] In terms of the sale of Business A greement Mr Downard agreed that the
prescribed area of the business would be the magisterial district of
Johannesburg and every other magisterial district in the Republic of
South Africa. That he would not, for a period of three years after the
termination of his employment with Three -D Investments or Huduco,
compete with business of Three-D Investments directly or indirectly. That
he would not carry on business as either a proprietor, partner, director,
shareholder, employee, member, consultant, contractor, financier, agent
representative, assistant or otherwise, whether for reward or not.
[8] Three-D Investments purchases various electrical and cable accessories
from its own established suppliers, and then sells them to the mining,
industrial zomer, electrical wholesale, automotive, and renewab le energy
sectors. The respondent's suppliers include Uni -Trend Technology
(China) (Uni-T) and HIKMICRO. The respondent contends that Three -D
Investments is the sole distri butor for Uni-T products in S outh Africa. In
addition, so the respondent contends , it is one of two distributors of
HIKMICRO products in South Africa.
[9] During his employment period with Three -D Investments, Mr Downard
had unrestricted access to all the information of Three -D Investments
including pricing, client lists and details, client and supplier purchasing
trends, sales projections, payment analysis, stock inventories and
suppliers, as well as its business expansion strategy.
5
[10] During the second week of December 2024, the first and second
appellants, acting on behalf of the third appellant, placed an order with
Uni-T and/or HIKMICRO for products valued at more than R 1 000 000,
00 (one million rand).
[11] Mr Downard averred that he assisted the third respondent, and
Sniperverse Holdings, to bring their businesses into the SYSPRO
programming system designed to provide retailers with an " all in one
business management solution", for which he was remunerated. He stated
that this had nothing to do with the respondent’s business and products
[12] Clause 18 of Mr Downard’s contract of employment contains conditions
of the restraint but suffice it to quote the relevant part for the
determination of this appeal. Pertinent to his contract of employment was
clause 18 of the restraint agreement the relevant terms of which are that
he:
‘shall not, during the operation of this agreement or thereafter, use for his
own benefit or any other person or divulge or communicate to any person
or persons, except to those officials of the company whose province it is
to know, any of the Group’s Secret and Confidential information or any
other information which he may receive or obtain in relation to the
Group’s affairs or to the details of any specific project undertaken by the
Group or to the working of any process or invention or to any marketing
technique which is carried on or used by the Group.’
[13] On 2 October 2013 Mr Jenkins took up employment with Three -D
Investments, which was a division of the respondent, as a Sales Director.
As the company was based in Gauteng, during February 2024 Mr Jenkins
sought a transfer to Cape Town due to ill -health of his wife who wanted
6
to live closer to her children in Cape Town. The application for transfer
was declined.
[14] On 31 May 2024 Mr Jenkins tendered a resignation from Three -D
Investments effective from 31 July 2024. Apparently by the time he
resigned he had already secured employment with Sni perverse Holdings
which is a family company of his in-laws. There is a dispute as to
whether he was employed by S uperverse Holdings or the third appellant.
This is dealt with later in this judgment.
[15] Mr Jenkins commenced his duties with the new employer on 1 August
2024. Superverse Holdings was a shareholding company of Sni perverse
Investments (Pty) Ltd , the third appellant. The Directors of these two
companies are Ms Danielle Diedericks and Mr Sheldon Diedericks (the
son to Danielle) . Mr Jenkins’ daughter is married to Mr Sheldon
Diedericks.
[16] The respondent is adamant that Mr Jenkins is employed by the third
appellant. It attached a letter from the third appellant confirming that Mr
Jenkins was in its employment from August 2024. Mr Jenkins stated that
the letter did not reflect a true position but was written purely to secure
his rental accommodation. He stated that Sniperverse H oldings was at its
infancy stages when he took up employment with it. The thir d appellant
ordered stock for Sniperverse Holdings because it did not possess a
customs code. The third appellant attached two salary slips for Mr
Jenkins, one was for December 2024 and one for January 2025. The one
for Janu ary 2025 reflected that ‘Jenkins ’ was employed by Sniperverse
Holdings effective from January 2025.
[17] The respondent stated that Mr Jenkins disclosed its trade secrets and
confidential information to the third appellant to enable the third
7
appellant to gain competitive advantage. Needless to say t his was denied
by Mr Jenkins.
[18] During November 2024 Mr Jenkins proceeded to Gauteng to meet with
representative clients of Snipervers e Holdings. During his visit to clients
in Johannesburg, he was accompanied by Mr Downard . Although Mr
Downard alleges that he was merely a chauffeur of Mr Jenkins his denial
of attendance to the meetings was, in my view, correctly rejected by the
Labour Court. However, there is no evidence to gainsay that Mr
Downard, even though he attended meetings , did not participate in the
negotiations of a prospective business. Mr Jenkins admits that Mr
Downard attended meetings but avers that he did not participate in the
deliberations.
[19] He asserts that prices and stock quantities are standard in the industry and
not confidential at all.
[20] In light of these meetings and the orders from Uni -T and/or HIKMICRO
referred to above the respondent sought an interdict restraining and
interdicting the appellants , demanding that they should desist from
breaching their contracts of restraints of trade. As pointed out above the
Labour court granted the interdict with costs.
[21] Before discussing the merits of the appeal I deem expedient to dispose of
preliminary issues.
Amendment of the notice of motion:
[22] One of the grounds of appeal is that the Labour Court erred in granting an
amendment of the notice of motion in respect of the first appellant
relating to the addition of ‘and the restraints in the employment/services
8
agreement’ at the end of paragraphs 2 and 3 of the notice of motion.
Paragraph 2 reads:
“Declaring that the first respondent, lan Michael Downard has breached
the terms of clause 18 of the sale of business agreement concluded on 26
March 2013 a copy of which is annexed to the founding papers of the
Applicant ("the Sale of 10 Business Agreement").
[23] Paragraph 3 reads:
“That the First Respondent be interdicted from breaching any term
of the restraint of trade contained the Sale of Business Agreement
from date of granting this order for a period of 32 months.”
[24] It is contended that the Labour Court, by allowing the application for
amendment to be moved from the bar, it altered the case of the first
appellant and based this alteration on the heads of argument and not on
his founding papers. It was submitted that the first appellant’s case
founded jurisdiction in terms of the Labour Relations Act
1 (LRA) and not
the Basic Conditions of Employment Act 2 (BCEA). On this basis, so it
was argued, the Labour C ourt lacked jurisdiction. It was further
contended that the Labour Court ought to have postponed the matter to
allow a proper application for amendment to be made on notice. It was
submitted that the application for amendment was an attempt to bring the
application within the jurisdiction of the Labour Court.
[25] Our Courts have, as correctly submitted by counsel for the respondent,
adopted a generous approach to the amendment of pleadings. They have
allowed amendments to cure defects in pleadings, even to the extent of
allowing even a cause of action to be substituted by another and even in
1 Act 66 of 1995.
2 Act 75 of 1997.
9
cases where prescription might otherwise have intervened3. Counsel for
the first appellant submitted that it is not correct, as stated by the Labour
Court, that there was no serious opposition to the amendment.
[26] The contract of employment of the first appellant is inextricably linked to
the sale of business agreement hence it was subject to him being
employed as the head of Three-D Investments. It was further a term of the
sale of the business agreement that he should sign a restraint of trade
agreement. In my view the amendment did not bring about any prejudice
to the appellants. I am therefore unable to find fault in the Labour Court
allowing the amendment.
Jurisdiction
[27] It has been argued on behalf of the first appellant that the Labour Court
had no jurisdiction on the grounds that the respondent brought the
application in terms of the LRA. It is trite that where a court has
jurisdiction in the principal action, it retains jurisdiction in ancillary or
incidental matters arising therefrom. A litigant who submits to the
jurisdiction of the court in the main proceedings cannot approbate and
reprobate by seeking to avoid jurisdiction in respect of interlocutory or
ancillary relief.
[28] The question of jurisdiction and the formulation of a cause of action has
been decided by the Constitutional Court in Gcaba v Minister for Safety
and Security and Others
4 where it was held that:
3 See in this regard Trans-Africa Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) at 279C - E; Alfred
McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1977 (4) SA 310 (T) at 343B - D;
Mabaso and Others v Minister of Police and Another 1980 (4) SA 319 (W) at 323D - 325A; Imprefed
(Pty) Ltd v National Transport Commission 1990 (3) SA 324 (T) at 329C - D; Wavecrest Sea
Enterprises (Pty) Ltd v Elliot 1995 (4) SA 596 (SE) at 600I - J; Vorster v Havemann 1996 (4) SA 308
(T) at 312A - I.
4 2010 (1) SA 238 (CC) at p 263 para. 75:
10
‘While the pleadings - including, in motion proceedings, not only
the formal terminology of the notice of motion, but also the
contents of the supporting affidavits - must be interpreted to
establish what the legal basis of the applicant's claim is, it is not for
the court to say that the facts asserted by the applicant would also
sustain another claim, cognisable only in another court. If,
however, the pleadings, properly interpreted, establish that the
applicant is asserting a claim under the LRA, one that is to be
determined exclusively by the Labour Court, the High Court would
lack jurisdiction.’
[29] Section 77(3) of the BCEA provides as follows:
‘The Labour Court has concurrent jurisdiction with the Civil
Courts to hear and determine any matter concerning a contract of
employment, irrespective of whether any basic condition of
employment constitutes a term of that contract.’
[30] This Court, per Waglay AJP, as he then was, has held that if an issue in
dispute relates to; is linked to; or connected with an employment contract
then the Labour Court does have jurisdiction in terms of section 77(3) of
the BCEA to entertain such a dispute.
5 The Learned Judge continued in
Randwater v Stoop and Another6 and said:
‘In the matter of Tsika v Buffalo City Municipality, the court in my
view properly held that the Labour Court had wide powers in terms
5 See: Randwater v Stoop and Another [2013] 2 BLLR 162 (LAC) ; Penta Publication (Pty) Ltd v
Schoombie and other s [2001] 2 BLLR 199 (LC) here the Labour Court held that an employer was
entitled to enforce a confidentiality clause in an employment contract even after termination of the
employment relationship. Vorster v Real Africa Corporate Services (Pty) Ltd [2003] 2 BLLR 208 (LC);
Mafihla v Govan Mbeki Municipality [2005] 4 BLLR 334 (LC) where the Labour Court considered if
there was a breach in the termination of an employment contract, if so, the relief that should be
granted
6 [2013] 2 BLLR 162 (LAC) at para 22.
11
of the BCEA and that in terms of s77A(e) the Labour Court may
make any order that it considers reasonable on any matter
concerning a contract of employment in terms of s77(3). The court
added that such orders may include an order for specific
performance; an award of damages or an award of compensation.
’
(Footnotes omitted)
[31] If regard is had to the contents of clause 18, the text of which is fully
quoted below, the ‘issue in dispute relates to; is linked to; or connected
with an employment contract’. The clause reads:
‘18.2. Each Covenantor will not, for 3 (three) years from the
Termination Date, whether as proprietor, partner, director,
shareholder, employee, member, consultant, contractor,
financier, agent, representative, assistant or otherwise, and
whether for reward or not, directly or indirectly, -
18.2.1. carry on in the Prescribed Areas any undertaking; or
18.2.2. be interested or engaged in or concerned with any
company, close corporation firm, undertaking or
concern operating in any of the Prescribed Areas; of
18.2.3 be employed by any company, close corporation,
firm, undertaking or concerns span operating in any
of the Prescribed Areas, which manufactures and/or
sells goods competitive with the Prescribed Goods or
renders services competitive with the Prescribed
Services or in the course of the business of which of
which such goods are sold and/or such services are
rendered; provided that the Covenantors shall not be
12
deemed to have breached their undertakings by
reason of them –
18.2.4. holding shares in any company the shares of which
are listed on a recognised stock exchange if the
shares owned (whether directly or indirectly) by
them, their ascendants and descendants, their or their
spouses, any person related to them or their spouse
within the third degree of consanguinity and any trust
created primarily for the benefit of one or more of
such persons or any company or close corporation
effectively controlled by the Covenantor and/or one
or more of such persons and/or trusts do not in the
aggregate constitute more than 5% (five per cent) of
any class of the issued share capital of such
company.’
[32] A Covenantor refers to Lamley and Downard in terms of clause 18.1.1
Lamley represented the purchaser in the sale of Business Agreement. The
main order sought was a declaratory order that the first appellant was in
breach of the restraint of trade embodied in clause 18 of the sale of
business Three -D Investments and that he should be interdicted from
continuing to breach the contract.
[33] It is clear from clause 18 that the contract related to the first appellant in
his capacity as an employee. The ‘Termination Date’ referred to in clause
18.2 refers to the termination of employment. When drawing papers, it is
not necessary to refer to a statutory provision by name but it is sufficient
if the provisions on which reliance is placed are covered in the
allegations. The Labour Court has concurrent jurisdiction as the High
13
Court to adjudicate on matters of restraint of trade particularly with
reference to employment contracts. Accordingly, the Labour Court had
jurisdiction to entertain the matter.
Dispute of fact
[34] It was submitted on behalf of the first appellant ; that he was out of
employment for the past three years; that he did not participate in the
meetings where he accompanied the se cond appellant. In relation to the
second appellant, it was disputed that he is employed by the third
appellant and therefore there was a misjoinder. It was submitted that his
employer is Snipervers e Holdings. It was also denied that he breached
any contract by disclosing information to the companies he consulted. It
was further disputed that the respondent had protectable interests.
[35] From the onset, it must be stated that insofar as there are factual disputes,
the Labour Court properly resolved the disputes by applying the Plascon-
Evans rule
7 which lays down that in motion proceedings, the applicant
can only succeed in obtaining the relief sought if the facts as stated by the
respondent together with the admitted facts in the applicant’s affidavits
justify such an order. The general rule as was stated in Stellenbosch
Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd8 is that:
"... where there is a dispute as to the facts a final interdict should
only be granted in notice of motion proceedings if the facts as
stated by the respondents together with the admitted facts in the
applicant's affidavits justify such an order... Where it is clear that
7 See: Plascon-Evan Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623(A) at 634-5
8 1957 (4) SA 234 (C) at 235 E – G.
14
facts, though not formally admitted, cannot be denied, they must be
regarded as admitted." 9
[36] In my view it is not necessary to set out the details of how the Labour
Court went about resolving the issues. Suffice it to say that the denials by
the appellant were so farfetched and in certain instances consistent with
the allegations of the respondent and therefore the Labour court was
justified in rejecting them.
[37] To summarise the resolution of the disputed facts I say, (a) the denial by
the first appellant that he was merely a chauffeur of the second appellant
cannot hold water in view of the fact that he also attended these meetings.
He had no business in the consultations if he was merely a chauffeur; (b)
the second appellant was not telling the truth when he said he was
employed by the Sniperverse Holdings in view of the letter saying he was
employed by the third appellant; (c ) Snipervers e Holdings was not in its
infancy in view of the revelations that it was established in December
2016; (d) the allegations that the prices and stock quantities are standard
in the industry and not confidential cannot be reconciled with t he
appellants signing restraint contracts in terms of which they agreed that
they are confidential. I am satisfied that the overall assessment of the
facts by the Labour Court was correct.
Merits of the appeal
[38] It is trite that restraints of trade are valid and binding, and as a matter of
principle enforceable, unless the enforcement thereof would be regarded
9 See: Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E -635C;
Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398 (A) at 430G-H
15
to be unreasonable. 10 Furthermore, a restraint of trade also does not
infringe on the constitutional right to free economic activity. 11 The
rationale behind the enforceability of restraint is based on the principle of
pacta sunt servanda.
[39] Restraints of trade are aimed at protecting an employer’s right to trade
secrets and to retain business relationships that they may have introduced
an employee to as a contract employee. Ultimately, a restraint of trade is
intended to protect the interests of the employer while allowing an
employee enough freedom to be economically active and productive.
Balancing these sometimes-competing interests can be difficult.
[40] In order for the courts to be able to enforce the contract of restraint the
contract must relate to information which may be contractually protected
by an employer and must be capable of application in that trade or
industry. In addition, the information must be secret or confidential in the
broader sense of not being readily available to the public and must be of
economic value.
[41] In Rawlins v Caravan Truck (Pty) Ltd 12 it was said that the need for an
employer to protect its trade connections arises where the employee has
access to customers and is in a position to build up a particular
relationship with the customers and could easily induce the customers to
follow him or her to a new business. Once that conclusion has been
10 Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) at 891B-C; SPP Pumps
(SA) (Pty) Ltd v Stoop and Another (2015) 36 ILJ 1134 (LC) at para 26; Shoprite Checkers (Pty) Ltd v
Jordaan and Another (2013) 34 ILJ 2105 (LC) at para 20.
11 Fidelity Guards Holdings (Pty) Ltd t/a Fidelity Guards v Pearmain 2001 (2) SA 853 (SE) where the
Court said at p 861 H that : ‘The Constitution does not take such a meddlesome interest in the private
affairs of individuals that it would seek, as a matter of policy, to protect them against their own
foolhardy or rash decisions’.
foolhardy or rash decisions’.
12 [1992] ZASCA 204; 1993 (1) SA 537 (A) at 541 C-D
16
reached and it is demonstrated that the prospective new employer is a
competitor of the applicant, the risk of harm to the applicant, if its former
employee would take up employment, becomes apparent.13
[42] An employer who seeks to enforce a restraint against an employee, must
prove the existence of a restraint contract that applies to the employee.
And if that is shown to exist, the employer must prove that the employee
acted in breach of the restraint obligation imposed by the restraint and
that the employee is likely to continue the breach or that there is a
reasonable apprehension that the breach is imminent. Once the breach is
shown to exist, the determination then turns to whether the facts,
considered as a whole, show that the enforcement of the restraint would
be reasonable in the circumstances. 14 In casu the respondent has shown
that the restraint obligations exist in respect of both the first and the
second appellants. The only avenue open to the appellants was to prove
on a balance of probabilities that the restraints are unreasonable or
contrary to constitutional values.15 Otherwise even if there is no evidence
of actual breach, the employer would still be entitled to an interdict in the
event of an apprehension that there is strong likelihood that it will be
breached. This is so by reason of the fact that an interdict is meant to
prevent future conduct and not past events.16
[43] An interdict is appropriate only when future injury is feared. This means
that when the wrongful act giving rise to the injury has already occurred,
either it must be of a continuing nature or there must be a reasonable
apprehension that it will be repeated. 17 If the injury is one that ‘ occurred
13 Ibid para.12
14 A J Charnaud & Co (Pty) Ltd v van der Merwe and Others (2020) 41 ILJ 1661 (LC) at para 56.
15 Barkhuizen v Napier 2007 (5) SA 323 (CC) at para 30
16 National Treasury and others v Opposition to Urban Tolling Alliance and others 2012 (6) SA 223
(CC) at para 50.
(CC) at para 50.
17 A C Cilliers, C Loots et al, Herbstein & Van Winsen: Civil Practice of the High Courts and the
Supreme Court of Appeal of South Africa, 5th ed, Juta, at p 1465.
17
once and for all and is finished and done with’, then the applicant should
allege facts justifying a reasonable apprehension that the harm is likely to
be repeated.18
[44] In Bidvest Protea (COIN) (Pty) Ltd v Seetharam and Another 19 Van
Niekerk J, as he then was, said:
‘It is incumbent on the employee under restraint to establish that he
or she had no access to confidential information and never acquired
any significant personal knowledge of confidential information or
influence over the applicant’s customers while in the applicant’s
employ (see Rawlins supra at 542F -543A). In other words, it is
enough for the party seeking to enforce a restraint to show that
trade connections through customer or supplier contact exist, and
that they can be exploited if the employee was to be employed by a
competitor or compete with the business of the applicant. It is not
for the applicant to have to run the risk of the employee
communicating its trade secrets or utilising its customer
connections to the advantage of a competitor. It is also not
incumbent on an applicant to enquire into the bona fides of the
employee or to demonstrate that he or she is mala fides before it is
entitled to enforce a contractually agreed restraint. The holder of
the restraint also does not have to show that the employee in fact
utilised information confidential to it – it is enough that the
employee could do so.’
(Own emphasis)
18 Performing Right Society Ltd v Berman and Another 1966 (2) SA 355 (R) at 357 – 358
19 (D 14/2022) [2022] ZALCD 2 (28 February 2022) at para 20.
18
[45] It is common cause that the first appellant had unrestricted access to all
the information of Three-D Investments including pricing, client lists and
details, client and supplier purchasing trends, sales projections, payment
analysis, stock inventories and suppliers, as well as its business expansion
strategy. He occupied the highest position in the hierarchy and was
responsible for the day to day running of the business.
[46] The respondent discovered, by reference to its computer records, that the
first and second appellants accessed confidential business information
and trade secrets, such as client records and inventory lists for suppliers.
From July 2024, they accessed information relating to purchase patterns
of clients, inventory lists, and market trends relating to the products
supplied by the respondent. It was common cause that information, within
the respondent's business, is securely maintained. There are different
levels of access - depending on seniority. The first and second appellants
had unrestricted access to that information.
[47] During the second week of December 2024, the first and second
appellants, acting on behalf of the third appellant, placed an order with
Uni-T and/or HIKMICRO for products valued at more than R 1 000 000,
00 (one million rand). There was therefore a reasonable apprehension that
they may have breached the restraint obligations. This evidence was
enough for an interdict to be granted.
[48] The three requirements for a final interdict laid down in Setlogelo v
Setlogelo
20 namely, the establishment of a clear right, injury actually
committed or reasonably apprehended and the absence of similar
protection by any other ordinary remedy have been satisfied.
20 1914 AD 221 at 227
19
[49] With regard to reasonableness or otherwise of the restraints the Labour
Court considered that the restricted areas were too wide and reduced the
area of application of the restraints to Gauteng, KwaZulu- Natal and
Western Cape . Courts have consistently applied considerations in
determining whether the enforcement of a restraint of trade would be
unreasonable.
21 I find no reason to interfere with the determination of the
Labour Court in this regard. In my view the appeal must fail.
Costs
[50] The guiding principle in Labour matters with regard to costs is law and
fairness. Where no employment relationship exist the Court must exercise
its discretion either to award or not award costs. There is no contention
that the Labour Court exercised its discretion capriciously or upon
applying a wrong principle.
[51] In the result the following order will issue.
Order
1. The appeal is dismissed with costs.
_______________________
B R Tokota
Acting Judge of the Labour Appeal Court of South Africa
21Ball v Bambalela Bolts (Pty) Ltd and another [2013] 9 BLLR 843 (LAC) at para 15.; Basson v
Chilwan 1993 (3) SA 742 (A) at 767C -H New Justfun Group (Pty) Ltd v Turner and Others (J786/14)
[2014] ZALCJHB 177 (14 May 2014) at para 10; ARB Electrical Wholesalers (Pty) Ltd v Grove and
Others (C335/14) [2014] ZALCCT 31 (3 June 2014) para.27; Shoprite Checkers (Pty) Ltd v Jordaan &
another (2013) 34 ILJ 2105 (LC) at para 23; Vox Telecommunications (Pty) Ltd v Steyn and Another
(2016) 37 ILJ 1255 (LC) at paras 28; Benchmark Signs Incorporated v Muller and another [2016] JOL
36587 (LC) at para 15.
20
Van Niekerk JA and Djaje AJA Concur
APPEARANCES:
For the First Appellant : C Slabbert
Instructed by: V Cronje Attorneys
For the Second appellant : A Coetzee
Instructed by: Dunsters Attorneys
For the respondent : M. Peacock
Instructed by: Jagga and Associates