THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No: 2026-065290
In the matter between:
ROBOTECH TRAFFIC SYSTEMS (PTY) LTD Applicant
and
MOGAMAT ROESDEEN WILLIAMS First Respondent
TMT SERVICES AND SUPPLIES (PTY) LTD Second Respondent
Heard: 24 July 2026
Delivered: 06 August 2026
JUDGMENT
VENTER, AJ
Introduction
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[1] The main application concerns an application
for a restraint of trade order. The Applicant
served and filed an application to restrain the
Respondents for two years, on 19 March
2026.
[2] Rule 39(2) of the Labour Court Rules (the
Rules) requires that provision be made in the
notice of motion for the exchange of four sets
of affidavits. The notice of motion makes no
provision for a fourth affidavit and the
Applicant applied for leave to amend the
notice of motion accordingly.
[3] The Respondents applied for a striking of the
irregular step, as contained in the notice of
motion.
Background
[4] The Applicant operates in the technical field
of traffic signalised systems and employed
the First Respondent during 2001. It appears
that the First Respondent was trained by the
Applicant and the First Respondent
eventually qualified as an Electrician.
[5] During the course of employment, the parties
entered into several restraint of trade
agreements. The Applicant avers that the
restraint is for a period of two years and that
the First Respondent resigned on 14 April
2025. According to the Applicant, the First
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Respondent joined the Second Respondent,
which is regarded as a competitor in the field.
It is further alleged that its trade secrets
require protection and that the First
Respondent took certain clients to the
Second Respondent. The Applicant is, in
essence, asserting that its protectable
interests require protection.
[6] The Respondents filed a notice to remove the
cause of complaint on 24 March 2026. The
Respondents submitted that the Applicant
took an irregular step, as the notice of motion
makes no provision for a fourth affidavit. The
Applicant was granted ten days to remove
the cause of complaint.
[7] The Applicant served and filed a notice of
amendment on 17 April 2026 and applied for
condonation of the late filing of the notice to
amend on 1 June 2026. The Applicant
submits that the notice was filed late due to a
miscalculation of the dies and that the degree
was minimal (8 days).
[8] The Respondents objected to the proposed
amendment on 5 May 2026. They further
submit that the notice of motion is not a
pleading and that Rule 20 therefore does not
apply.
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[9] The Applicant served and filed a subsequent
application to amend the relief prayed for on
1 June 2026.
[10] It should be noted that the matter also
involved an application for joinder, but the
parties informed the court that the application
for joinder was withdrawn and that the court
is only called upon to determine whether the
Applicant should be granted leave to amend.
Legal principles
[11] Rue 39(1) provides that an application for
restraint of trade will be enrolled only when
the procedures have been strictly adhered to
by an applicant party. Rule 39(2) requires
that the notice of motion must provide for the
exchange of four sets of affidavits.
[12] Rule 20(1) stipulates that any party may
apply to amend a pleading or a document
other than a sworn statement. Rule 20(3)
caters for an objection by the other party.
[13] In Moolman v Estate Moolman 1 it was held
that an amendment would normally be
1 [1927] CPD 27
5
allowed unless the application is male fide or
unless the amendment would cause an
injustice to the other party.
[14] In Media 24 (Pty) Ltd v Nhleko & Another, the
Supreme Court of Appeal held that the
purpose of pleadings is to define the issues
between the parties. It emphasised that the
court will be reluctant to deny a party the right
to amend when the application is made bona
fide and provided that no injustice will result
from the amendment. Prejudice has been
found only where the opponent is worse off
than at the time of the amendment, for
example, the withdrawal of an admission can
have a detrimental effect in certain
circumstances.
[15] The Supreme Court of Appeal considered
similar principles and held in Magnum
Simplex International (Pty) Ltd v MEC
Provincial Treasury, Provincial Government
Limpopo
2 that a proposed amendment did
2 [2018] ZASCA 78
6
not introduce a separate cause of action and
that prejudice is an important factor.
[16] In Caxton Ltd v Reeva Forman (Pty) Ltd &
Another3 the Supreme Court of Appeal
confirmed that the court is vested with a wide
discretion.
[17] The Labour Appeal Court also had its say on
the issue in Association of Mineworkers &
Construction Union v Chamber of Mines
4 and
found that a court needs to exercise its
discretion judicially. The court held that:
3 [1990] ZASCA 47
4 [2024] 45 ILJ 1954 (LAC)
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“[45] A party may apply for an amendment of its pleadings at any time prior to
judgment being handed down in a matter. In determining an application for
amendment, the court must have regard to whether the amendment seeks to introduce
a new cause of action or rather to introduce new or alternative facts in support of the
original cause of action. The court may, in the exercise of its judicial discretion, grant
or refuse such an application having regard to whether the amendment sought raises a
triable issue, which would if granted allow the proper ventilation of the real dispute
between the parties, with due regard to issues of prejudice. A delay in seeking an
amendment is not in itself, in the absence of prejudice to the other party, a basis on
which to refuse the amendment. An appeal court will not lightly interfere with the
exercise of such discretion unless it is satisfied that the lower court misdirected itself or
failed in its exercise of the judicial discretion.”
Evaluation
[18] The issue before this Court is not whether the Applicant's original notice of
motion complied with Rule 39(2). It plainly did not. The notice of motion
omitted the provision for the filing of the fourth affidavit prescribed by the Rule.
The question is whether that defect is of such a nature that the application
should be struck from the roll or whether the Applicant ought to be afforded an
opportunity to cure the defect by amendment.
[19] The Respondents correctly submitted that the notice of motion constituted an
irregular step. Rule 39(2) is couched in peremptory terms and exists to
regulate the exchange of affidavits in restraint proceedings. Compliance with
the Rule is important because restraint applications are generally brought on
an urgent basis and require a structured exchange of affidavits. The Applicant
therefore initiated the proceedings by means of a defective notice of motion.
[20] The Labour Court Rules expressly provide for amendments to a pleading or a
[20] The Labour Court Rules expressly provide for amendments to a pleading or a
document other than a sworn statement. Although a notice of motion is not a
pleading in the strict sense, it is undoubtedly a procedural document
commencing application proceedings. The Rule is deliberately framed broadly
by referring not only to pleadings but also to a document. There is no
indication that a notice of motion is excluded from the ambit of Rule 20 merely
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because it does not constitute a pleading. Indeed, if procedural documents
could never be amended, Rule 20 would have little practical application
outside pleadings.
[21] A generous approach towards amendments should be followed. Amendments
should ordinarily be granted unless they are sought mala fide or unless they
occasion prejudice which cannot be cured by an appropriate order as to costs
or procedure. Amendments should generally be permitted where they facilitate
the proper ventilation of the real dispute and do not occasion irreparable
prejudice.
[22] Applying these principles, the court is unable to conclude that the proposed
amendment introduces a new cause of action, alters the factual basis upon
which relief is sought or expands the substantive relief claimed against the
Respondents. The amendment merely inserts the procedural provision
required by Rule 39(2) for the exchange of a fourth affidavit. The substantive
dispute between the parties remains precisely the same.
[23] Equally important is the absence of prejudice. The Respondents do not
suggest that the amendment deprives them of any material defence,
necessitates the gathering of additional evidence or fundamentally alters the
case they are required to meet. On the contrary, the amendment affords the
Respondents the procedural opportunity contemplated by Rule 39(2), namely
the right to deliver a fourth affidavit should they elect to do so. The
Respondents are therefore procedurally better protected after the amendment
than before it.
[24] The Respondents nevertheless contend that because the initiating process
was defective, the entire application should be struck from the roll. The court
does not agree. The purpose of an irregular -step procedure is to remove
prejudice arising from procedural irregularities. It is not intended to punish
parties for every procedural defect nor to elevate form above substance. Once
the Applicant seeks leave to amend to cure the procedural defect, the court is
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required to determine whether justice would be better served by permitting the
defect to be remedied or by terminating the proceedings altogether.
[25] Striking out the application would serve little practical purpose. The Applicant
would simply be entitled to institute fresh proceedings by filing a new notice of
motion containing precisely the same substantive allegations and seeking
precisely the same relief. Such an approach would result in unnecessary
duplication of proceedings, increased costs and further delay without
conferring any corresponding benefit upon the Respondents. Courts have
consistently discouraged procedural formalism where no substantive prejudice
is demonstrated.
[26] The Respondents have therefore failed to establish prejudice and the
procedural defect is capable of being cured entirely through amendment, and
no injustice incapable of remedy has been shown.
[27] For these reasons, the court is satisfied that the amendment is sought bona
fide, that it is directed solely at curing a procedural irregularity, that it does not
alter the nature of the dispute between the parties and that it occasions no
prejudice incapable of being addressed by an appropriate order. In the
exercise of a discretion, leave to amend should accordingly be granted.
[28] Once leave to amend is granted, the very irregularity upon which the
Respondents rely ceases to exist. The application to strike out the notice of
motion consequently becomes academic. There is no longer a defective
notice of motion before the court, but an amended notice authorised by order
of the court. The application to strike out the original notice of motion must
therefore be dismissed.
[29] The Respondents sought costs. The court has wide discretion to award costs
in terms of section 162 of the Labour Relations Act, 66 of 1995. The Applicant
successfully cured the defect and the procedural defect was minor. In light of
the requirements of law and fairness, the court is not inclined to award costs.
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[30] In the premises, the following order is made:
Order
1. The Applicant is granted leave to amend its Notice of Motion in accordance
with the application for amendment.
2. The Respondents are granted leave to deliver a fourth affidavit contemplated
in Rule 39(2) within five (5) court days of the date of this judgment.
3. The Respondents' application to declare the Applicant's Notice of Motion an
irregular step and to strike it out is dismissed.
4. There is no order as to costs
_______________
P Venter
Acting Judge of the Labour Court of South Africa.
Appearances:
For the Applicant: MS Mongo (Herold Gie Attorneys)
For the Respondent: Adv Crookes (Instructed by Pepler O’ Kennedy Attorneys)