IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: 2026 - 113095
In the matter between:
TROPIC PLASTIC & PACKAGING INDUSTRY (PTY) LTD Applicant
and
DEBBIE LUBBE First Respondent
RICHESTER FOODS (PTY) LTD Second Respondent
RICHFLEX (PTY) LTD Third Respondent
Heard: 21 July 2026
Delivered: This judgment was handed down electronically by uploading on
Caselines; circulation to the parties' legal representatives by
email, and publication on the Labour Court’s website. The date
for hand-down is deemed to be 2 September 2026.
JUDGMENT
TLHOTLHALEMAJE, J
Introduction:
[1] In this application, the applicant seeks an order enforc ing a restraint-of-trade
agreement and certain undertakings made by the first respondent at the
commencement of the parties’ employment relationship. The order sought is
to interdict and restrain the Second Respondent for a period of twelve months
(1) Reportable: Yes/NO
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
from 27 April 2026 and throughout the Republic , from being employed with
the Second Respondent and/or the Third Respondent in any capacity
whatsoever; from using, disclosing or communicating the Applicant's
confidential and/or proprietary information to any person or entity, including
the Second Respondent and/or the Third Respondent, their employees,
agents or representatives; and from soliciting, canvassing or dealing with any
customer of the Applicant with whom she had contact or in relation to whom
she acquired confidential information during her employment.
[2] Only the First Respondent (Ms Lubbe) opposed the application.
The background and the Applicant’s case:
[3] The founding affidavit was deposed to by Mr Blake Anthony Walker, the
applicant’s Human Resource and Compliance Executive. He averred that t he
applicant is a manufacturer operating in the flexible plastic packaging industry,
and carries on business from Durban, KwaZulu- Natal. It operates in the
flexible packaging and plastics manufacturing sector, with a particular focus
on producing and supplying low-density polyethylene packaging materials and
related converting solutions. Its manufacturing activities include extrusion,
flexographic printing, lamination, slitting and bag converting processes,
supplying customers across, inter alia , the food, retail, industrial and
consumer goods sectors.
[4] Lubbe was employed by the applicant with effect from 3 May 2021 as Key
Accounts Technical Sales Manager. Prior to the commencement of her
employment, Lubbe had signed a written restraint of trade and confidentiality
agreement in favour of the applicant on 28 March 2021. Lubbe was also paid
a monthly “restraint of trade” fee of R3,000 as part of her remuneration
package and compensation for the existence and effect of the restraint
agreement. She handed in her resign ation from the applicant on 27 April
2026.
[5] Walker contends that the T hird Respondent (Richflex ( Pty) Ltd) is the
2026.
[5] Walker contends that the T hird Respondent (Richflex ( Pty) Ltd) is the
applicant’s direct competitor in the flexible plastic packaging industry, and is
also an associated company within the same group structure as the S econd
3
Respondent (Richester Foods (Pty) Ltd, and through or within whose structure
Lubbe was engaged. The Second and Third Respondents were cited because
Lubbe had taken up employment within their structure and/or business
operations. According to Walker, the Second and T hird Respondents were
associated companies operating as part of the same commercial structure,
with the same directing mind, operat ed from the same premises, and had
overlapping personnel and communications. Thus, to the extent that t he Third
Respondent was a direct competitor of the applicant in the flexible plastic
packaging industry, it was contended that Lubbe's engagement within the
structure of the second and third respondents f ell within the competitive field
from which she agreed to be restrained.
[6] Walker further averred that t he flexible packaging industry was highly
competitive, and that the nature of the applicant's business necessarily
involved the development and protection of confidential commercial
information, including customer relationships, pricing structures,
manufacturing methodologies, technical specifications, supplier relationships,
production capabilities and proprietary operational processes within a
competitive manufacturing sector.
[7] According to Walker, Lubbe, in her position, was based in Johannesburg and
reported to the S ales and Marketing department. Her role is said not to have
been peripheral, as she occupied a hybrid senior position integrating technical
sales, customer and system management, compliance oversight , and
operational quality management. In that role, she also serviced existing clients
and approached new clients. In addition to her role as sales manager, Lubbe
acted as the applicant's S ystems Coordinator and was responsible for the
entire integrated management system across the business. To this end, it was
contended that by virtue of her role, she had direct and extensive access to
the applicant's customer identities, pricing and margin structures, sales
the applicant's customer identities, pricing and margin structures, sales
strategies, pipelines and market intelligence, product specifications and
technical data, proprietary food- safety and quality -management systems,
supplier relationships, and operational processes.
4
[8] Walker further averred that Lubbe had unlimited access to information such
as product formulations, raw material specifications, manufacturing
processes, lamination sequencing, machinery capabilities and weaknesses,
production capacity information, customer -specific requirements, technical
tolerances, pricing and margin structures, and strategic operational limitations.
[9] Further confidential information to which Lubbe is said to have had unlimited
access to, according to Walker, included all information about the applicant's
customers and the blends, formulations, and recipes used to produce flexible
packaging for those customers. It was averred that s he knew the applicant's
top clients, who the relevant contacts at each client were, dealt with customer
complaints and their outcomes, and had full visibility into audit results and
corrective action strategies for clients, including assessments of any internal
weaknesses and risk mitigation mechanisms. According to Walker, Lubbe
was placed in a position where she acquired the applicant's most confidential
information and customer connections of obvious commercial value to any
competitor or associated competitor ; hence the enforcement of the restraint
as sought, to mitigate against any risks to the above-mentioned confidential
information.
[10] Walker further averred that upon Lubbe’s resignation during April 2026, she
had specifically informed him that the Second Respondent approached her
with an offer of employment . The applicant became aware on 30 April 2026
that Lubbe had taken up, alternatively intended imminently to take up,
employment with the S econd Respondent, alternatively an associated entity
within the same group as the Second Respondent. The applicant's attorneys
addressed correspondence to Lubbe, reminding her of her restraint -of-trade
undertakings. In the correspondence, Lubbe was afforded until 4 May 2026 to
give undertakings that she would not breach the terms of her restraint of trade
give undertakings that she would not breach the terms of her restraint of trade
undertakings by, inter alia, taking employment with the Second Respondent or
any other competing entity.
[11] Following further correspondence and another deadline, Lubbe responded on
6 May 2026, expressly stat ing that she was aware of the restraint -of-trade
undertakings. She confirmed that she had commenced employment with the
5
Second Respondent in its Food Safety D epartment with effect from 4 May
2026, and indicated to whom she directly reported. She further requested a
copy of her signed contract of employment and declined to give any
undertakings as sought by the applicant.
[12] There were further exchanges between the attorneys for the applicant, Lubbe,
and the third respondent, inclu ding additional deadlines within which Lubbe
was to provide undertakings, failing which this application would be la unched.
However, no such undertakings were forthcoming. It is against this
background that the Court was approached with this urgent application.
Lubbe’s opposition:
[13] From both the answering and supplementary answering affidavits, Lubbe
does not dispute the existence of the restraint and confidentiality agreement
she voluntarily si gned, which formed part of the employment relationship.
Lubbe further conceded that , after her resignation, she took up employment
with the S econd Respondent, with effect from 1 May 2026 , as Food Safety
Management System Manager . She did not dispute that the T hird
Respondent is a direct competitor of the applicant in the flexible packaging
industry. She confirmed that t he employment relationship with the second
respondent was terminated on 8 May 2026. In its letter confirming the
termination, the second respondent indicated that it was a ‘precautionary and
commercial step’ in light of the circumstances brought to its attention and to
avoid unnecessary disputes between the parties concerned.
[14] Lubbe den ied that she was ever employed by the third respondent , and
contended that her employment was only with the second respondent , which
was not a competitor . She contended that the two entities were separate
businesses, and that the f act that they shared ownership did not make them
one entity. This was so because the Second Respondent was a confectionery
manufacturer, whilst the T hird Respondent was a packaging company with
manufacturer, whilst the T hird Respondent was a packaging company with
separate management, operations , and activities. She denied a ny breach of
the restraint undertakings , since the Second Respondent was not a
competitor and , further, since she never worked for the T hird Respondent.
6
She averred that as at the date of the hearing of the application, she was
unemployed.
[15] Lubbe denied that she occupied a strategic role involving customer s and
confidential information. She contended that 98% of her tasks related to food
safety systems, and that she had limited responsibilities in sales and limited
customer management . She denied having broad access to confidential
information or being a gatekeeper and custodian of any such information. She
further denied that she was in possession of any proprietary confidential
information, or had unrestricted access to pricing, profit margins , finance or
product formulation . She further contended that she managed only a few
customers and had no influential customer relationships or control over
customer accounts. She denied having solicited the applicant’s customers at
any stage after the termination of the employment relationship.
[16] To the extent that Lubbe’s appointment with the second respondent was brief,
Lubbe denied that its termination was due to attempts to avoid restr aint
proceedings. She contended that the termination was a ‘ precautionary
commercial decision’ and was not due to breach of the restraint or guilt. The
termination of the employment with the S econd Respondent on 8 May 2026 ,
according to Lubbe, made the urgent application moot , as the relief sought
had already been achieved.
Preliminary points:
[17] In opposing the application, Lubbe had raised four preliminary points. The first
was raised under the provisions of Rule 3(1) of the Rules of this Court
1, which
was, however, and wisely so, abandoned at the commencement of the
proceedings.
(i) Challenge to authority:
1 Which provide;
3. Seat where proceedings must be initiated and court sittings;
(1) Unless the Judge President directs otherwise, proceedings must be
initiated at the seat of the cour t nearest the place where the dispute
which is subject matter of the proceedings arose."
7
[18] The second preliminary point pertained to Walker’s authority to depose to the
founding affidavit. Lubbe had contended that no resolution from the
applicant's board of directors was annexed to the founding affidavit, which
authorised Walker to institute and prosecute the application on the applicant 's
behalf or to act on its behalf. She contended that any instruction that Walker
had given to any legal representative to act on behalf of the applicant in these
proceedings was similarly invalid.
[19] A notice in terms of Rule 7(1) of the Uniform Rules of Court 2 was
subsequently s erved. Lubbe specifically relied on Minister of Water and
Sanitation v Clackson Power(Pty) Ltd and Another 3, in questioning the
authority of Walker, and with specific reference to whether he was properly
authorised to instruct the applicant’s attorneys of record.
[20] I agree with the applicant’s contentions that the Rule 7 challenge is
misconceived in view of the basis of that challenge. In this case, it is the
applicant’s attorneys that had instituted and prosecuted the application on the
instructions of the respondent. Walker merely deposed to the founding
affidavit, and there was no need for authorisation in that regard in line with
Ganes and Another v Telkom Namibia Ltd4, where it was held that
“It is irrelevant whether Hanke had been authorised to depose to the
founding affidavit. The deponent to an affidavit in motion proceedings need
not be authorised by the party concerned to depose to the affidavit. It is the
institution of the proceedings and the prosecution thereof which must be
authorised.”5
2 Which provides;
“7(1) Subject to the provisions of subrules (2) and (3) a power of attorney to act need
not be filed, but the authority of anyone acting on behalf of the party may, within ten days
after it has come to the notice of the party that such person is so acting, or with the leave of
the court on good cause shown at any time before judgment, be disputed, whereafter such
the court on good cause shown at any time before judgment, be disputed, whereafter such
person may no longer act unless he satisfied the court that he is authorised to act, and to
enable him to do so the court may postpone the hearing of the action or application.”
3 (4438/2023) [2024] ZAWCHC 87; 2024 (5) SA 280 (WCC)
4 (608/2002) [2003] ZASCA 123; [2004] 2 All SA 609 (SCA); 2004 (3) SA 615 (SCA); (2004) 25 ILJ
995 (SCA).
5 At para 19
8
[21] It was correctly pointed out on behalf of the applicant that the preliminary point
rested on a basic conflation, to the extent that the authority of the applicant’s
attorneys to institute and prosecute the application is not challenged. It follows
that the challenge ought to be dismissed.
(ii) Urgency.
[22] The third preliminary point related to the urgency of the matter. The
application was initiated on 20 May 2026. The matter initially came before the
Court on 19 June 2026, and was removed from the roll for unclear reasons.
Although in the answering affidavit Lubbe sought to contest the urgency of the
application, this was not seriously pursued during argument. However, for the
sake of completeness on the issue of urgency, the applicable principles in that
regard are trite as can be gleaned from now familiar authorities
6.
[23] Under Rule 38 of the Rules of this Court, an applicant seeking urgent relief
must in her founding affidavit, set out the reasons for urgency; why urgent
relief is necessary; and the reasons why the requirements of the rules were
not complied with. Aligned to these requirements is that an applicant cannot
claim urgent relief where, on the facts and circumstances of the case, it is
apparent that the urgency claimed is self -created. Further considerations the
Court must take into account when considering urgent relief are the interests
of the respondent party, and any prejudice it may suffer if the matter is
disposed of on an urgent basis. Equally important is whether , based on the
facts and circumstances of the case, it can be said that an applicant will not
be afforded substantial redress in due course if the application was brought to
Court by way of an ordinary non-urgent procedure. Where an applicant fails to
establish that substantial redress is not available in due course, the matter
must be struck from the roll
7.
6 See Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31
ILJ 112 (LC) at para 18 ; Tshwaedi v Greater Louis Trichardt Transitional Council [2000] 4 BLLR 469
(LC) at para 11; Dynamic Sisters Trading (Pty) Limited and Another v Nedbank Limited [2023]
ZAGPPHC 709 (21 August 2023) ; Luna Meubel Vervaardigers v Makin and Another 1977 (4) SA 135
(W) at 136H-137F); Ntozini and Others v African National Congress and Others [2018] ZAGPJHC 415
at para 10.
7SARS v Hawker Air Services (Pty) Ltd [2006] ZASCA 51; 2006(4) SA 292 (SCA)
9
[24] Lubbe had contended that the urgency claimed in this case was self -created
in view of the fact that she had since terminated her employment with the
Second Respondent, thus rendering the application moot. She contended that
there was no longer any ongoing threat, breach or imminent harm to invoke
the urgent jurisdiction of the Court. She further contends that the urgency
sought was based on assumptions and speculation that she may disclose
confidential information in future, and further that no practical effect would
follow from the relief sought.
[25] The applicant contended that applications to enforce restraint of trade
agreements were inherently urgent in nature. Since the inherent nature of
urgency in such matters cannot be disputed because of their time- bound
character, similarly, there is an obligation on the applicant to satisfy the Court
that the requirements of urgency are met. Equally so, an applicant must have
acted with the necessary haste to prevent any harm that the restraint sought
to protect. At the same time, it is equally acknowledged that the haste with
which an applicant approaches the court is not on its own determinative of
urgent relief.
[26] In this case, there can be no doubt that upon the applicant having become
aware of Lubbe’s employment with the second respondent and the former had
not given the undertakings sought, it had, as evinced from the background set
out above, acted with the necessary alacrity. Furthermore, it can be accepted
that urgency arises out of the need not only to enforce the restraint
agreement, which was not disputed in this case, but also to protect the
proprietary interests through the restraint. This is so because once an ex -
employee is shown to have breached the restraint, one cannot seriously
speak of substantial redress being available to an applicant in due course.
[27] The issue of mootness in view of the common cause fact that the employment
relationship between Lubbe and the Second Respondent was terminated as
relationship between Lubbe and the Second Respondent was terminated as
at the hearing of this matter , will be addressed in detail further below.
However, to the extent that Lubbe had in opposition to the application
persisted with her contention that the S econd Respondent was not a
competitor, or that she possessed no capacity to share or disclose any of the
10
applicant’s proprietary interests, and further to the extent that the restraint
remains extant, I am of the view that there is no basis for any conclusion to be
reached that the urgency claimed in this case is self -created. The Court will
therefore treat the matter as urgent.
(iii) Mootness:
[28] This issue arose in light of the common cause fact that the employment
relationship between Lubbe and the second respondent was terminated prior
to this matter being enrolled for a hearing. It is trite that courts do not
determine academic questions or grant orders where no practical effect will
result. A matter that is moot falls outside the jurisdiction of the court unless the
interests of justice demand otherwise8.
[29] In Normandien Farms (Pty) Limited v South African Agency for Promotion of
Petroleum Exportation and Exploitation (SOC) Limited and Others 9, the
Constitutional Court held that mootness is when a matter “no longer presents
an existing or live controversy”, and that the doctrine was based on the notion
that judicial resources ought to be utilised efficiently and should not be
dedicated to advisory opinions or abstract propositions of law, and that courts
should avoid deciding matters that are “abstract, academic or hypothetical”.
The Constitutional Court acknowledged that mootness was not an absolute
bar to the justiciability of an issue, and that the overriding consideration was
whether the interests of justice require the determination of the dispute. The
Court had discretionary power to entertain even admittedly moot issues,
where the interests of justice, and further taking into account inter alia ,
whether any order will have some practical effect either on the parties or on
others; the nature and extent of the practical effect that any possible order
might have; and the importance of the issue.
8 President of the Republic of South Africa v Democratic Alliance and Others (CCT159/18) [2019]
ZACC 35; 2019 (11) BCLR 1403 (CC) ; 2020 (1) SA 428 (CC) ; Women in Capital Growth (Pty) Ltd
and Another v Scott and Others (1193/2019) [2020] ZASCA 95 (20 August 2020) at para 15; JT
Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others (CCT49/95) [1996]
ZACC 23; 1996 (12) BCLR 1599 (CC); 1997 (3) SA 514 (CC) at para 15; National Coalition for Gay
and Lesbian Equality and Others v Minister of Home Affairs and Others (CCT10/99) [1999] ZACC 17;
2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC)
9 (CCT195/19) [2020] ZACC 5; 2020 (6) BCLR 748 (CC); 2020 (4) SA 409 (CC) at paras 47 - 50
11
[30] Against the above principles, the Court appreciates that the order sought by
the applicant in this case is directly linked to a time- bound period under the
restraint of trade agreement, which was still in force. Lubbe had already
secured employment with an entity that the applicant considered a competitor,
thereby breaching the agreement. Despite requests and deadlines, she had
not given the undertakings sought . It can thus not be doubted that the
termination of the employment relationship with the second respondent was
only triggered after the appli cation was initiated, and after Lubbe had refus ed
to give any undertakings . Clearly the application was necessary . More over,
the fact that , in persisting with her opposition, Lubbe had contended that her
employment with the second respondent did not constitute a breach of the
restraint, and that the applicant’s case was based on speculation, further adds
credence to the necessity of the application and the need to consider whether
the interdict sought is appropriate.
[31] As recently stated by the Labour Appeal Court in Downard and Others v
Hudaco Trading (Pty) Ltd
‘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. If the injury is one that ‘occurred 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’
10
[32] Without questioning Lubbe’s bona fides for now, the applicant cannot in these
circumstances trust that a possibility of the infringement complained of may
not be repeated prior to the expiry period of the restraint. In my view, the
applicant is correct in pointing out that a live controversy exists. To the extent
that Lubbe disputes any breach or denies that the second respondent is a
that Lubbe disputes any breach or denies that the second respondent is a
competitor, there is a live legal issue that requires determination. There is
therefore no doubt that should the order sought be granted, this would have a
significant practical effect in relation to the proprietary interests sought to be
10 (A2025/153574; A2025/153556) [2026] ZALAC 29 (30 July 2026) at paragraph 43
12
protected. I am of the view that the interests of justice dictate that the
application be determined.
The legal framework and evaluation:
[33] The principles applicable to disputes pertaining to enforcement of restraint-of-
trade agreements need no introduction. It is trite that such agreements are
generally enforceable, unless they are found to be unreasonable or unlawful.
It is therefore for the applicant seeking enforcement to not only establish the
existence of the contract sought to be invoked, but also to demonstrate the
breach thereof. Once a contract and its breach are established, it will be upon
the ex-employee seeking to avoid the restraint provisions to demonstrate, on
the balance of probabilities, that the restraint agreement is unenforceable
because it is unreasonable, unlawful, and against public policy.11
[34] To the extent in this case, it was submitted on behalf of Lubbe that the
applicant had not discharged its onus regarding the reasonableness of the
restraint provisions, the Labour Appeal Court i n Ball v Bambalela Bolts
(Pty)Ltd and Another12 has held that;
‘In Reddy v Siemens Telecommunications (Pty) Ltd, it was held that the
reasonableness of a restraint could be determined without becoming
11See Experian South Africa (Pty) Ltd v Haynes and another (Experian) (48711/2011) [2012]
ZAGPJHC 105; 2013 (1) SA 135 (GSJ); (2013) 34 ILJ 529 (GSJ) ; Reddy v Siemens
Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA) ; Sibex Engineering Services (Pty) Ltd v Van
Wyk and Another 1991 (2) SA 482 (T) at 502 J – 503 B; See Headnote in Magna Alloys and Research
(SA) (Pty) Ltd v Ellis 1984(4) SA 874 (A) where the following is stated:
“The approach, followed in many South African judgments, that a covenant in restraint of
trade is prima facie invalid or unenforceable stems from English law and not our common
law, which contains no rule to that effect. The position in our law is that each agreement
law, which contains no rule to that effect. The position in our law is that each agreement
should be examined with regard to its own circumstances to ascertain whether the
enforcement of the agreement would be contrary to public policy, in which case it would be
unenforceable. Although public policy requires that agreements freely entered into should be
honoured, it also requires, generally, that everyone should be free to seek fulfilment in the
business and professional world. An unreasonable restriction of a person's freedom of trade
would probably also be contrary to public policy, should it be enforced.
Acceptance of public policy as the criterion means that, when a party alleges that he is not
bound by a restrictive condition to which he had agreed, he bears the onus of proving that
the enforcement of the condition would be contrary to public policy. The Court would have to
have regard to the circumstances obtaining at the time when it is asked to enforce the
restriction. In addition, the Court would not be limited to a finding in regard to the agreement
as a whole, but would be entitled to declare the agreement partially enforceable or
unenforceable.”
12 JA 23/11) [2013] ZALAC 14; [2013] 9 BLLR 843 (LAC); (2013) 34 ILJ 2821 (LAC) at para
13
embroiled in the issue of onus. This could be done if the facts regarding
reasonableness have been adequately explored in the evidence and if any
disputes of fact are resolved in favour of the party sought to be restrained.
If the facts, assessed as aforementioned, disclose that the restraint is
reasonable then the party, seeking the restraint order, must succeed, but if
those facts show that the restraint is unreasonable, then the party, sought
to be restrained, must succeed. Resolving the disputes of fact in favour of
the party sought to be restrained involves an application of the Plascon-
Evans rule.’
[35] The purpose of enforcing restraint provisions, as restated in Sibex, is not to
curtail the freedom of a former employee to do the work for which they are
qualified, because doing so would be unreasonable, contrary to the public
interest, and therefore unenforceable on public policy grounds. This is
particularly where it can be demonstrated by the ex -employee that at the time
enforcement was sought, the restraint wa s directed solely to the restriction of
fair competition and that the restraint wa s not at that time reasonably
necessary for the legitimate protection of the ex -employer’s protectable
proprietary interests,
[36] From the above principles, it follows that in deciding whether a restraint of
trade agreement ought to be enforced, the Court must strike a balance
between the sanctity of a contract, and the freedom of ex-employees’ ability
and right to trade thei r labour, occupation, and professional skills as protected
in section 2213 of the Constitution of the Republic14.
[37] At the core of enforcement of restraint of trade is whether, as stated in Basson
v Chilwan and Others (Basson)15, a party seeking to enforce a restraint of
trade has established protectable interest s in the form of confidential
information which is of value for the carrying of business for both the ex -
employer and its competitors (i.e., trade secrets) and/or trade connections 16.
employer and its competitors (i.e., trade secrets) and/or trade connections 16.
13 The Constitution of the Republic of South Africa, 1996.
14 See also Labournet (Pty) Ltd v Jankielsohn and Another (Jankielsohn) (2017) 38 ILJ 1302 (LAC) at
para 40 – 41.
15 1993 [3] SA 742 (A) at 767 C -H. See also Backsports (Pty) Limited v Motlhanke and Another
(Backsport)(Reasons) (JA2025/091548) [2025] ZALAC 50; [2026] 1 BLLR 8 (LAC); (2026) 47 ILJ 529
(LAC)
16 See also Jankielsohn at para 41
14
Against these interests, in Basson, it was further held that the questions to
consider when assessing the reasonableness of restraint of trade provis ions
are;
(a) Whether such interests were being prejudiced by the other party
(b) If so, whether such interest s so weigh up qualitatively and quantitatively
against the interest of the latter party that the latter should not be
economically inactive and unproductive?
(c) Whether there is another facet of public policy having nothing to do with the
relationship between the parties, but which requires that the restraint
should either be maintained or rejected?
[38] Of equal relevance in the determination of reasonableness is the duration of
the restraint, the reasons for the restraint, the geographical area to which the
restraint applies, and whether the restraint goes further than is necessary to
protect the interests claimed17.
[39] To the extent that the applicant seeks final relief, it must satisfy the
requirements in that regard. Thus, it must demonstrate a clear right; an actual
or reasonably apprehended infringement of that right; and the absence of an
adequate alternative remedy18.
Existence of the restraint of trade and breach:
[40] Lubbe does not dispute the existence of the restraint agreement and
undertakings. Against these undertakings, Lubbe was further paid a monthly
restraint allowance.
17 See also Kwik Kopy (SA) (Pty) Ltd v van Haarlem and Another 1999 (1) SA 472 (W) at 484E . See
also Backsport at para 28 where it was held that;
‘The enquiry into reasonableness has been refined and elaborated on in cases
such as Reddy and Basson. The enforceability of a restraint essentially hinges on
the nature of the activity that is prevented, the duration of the restraint, and the
area of operation of the restraint. In particular, the determination of
reasonableness is, essentially, a balancing of interests that is to be undertaken at
the time of enforcement and includes a consideration of ‘ the nature, extent and
the time of enforcement and includes a consideration of ‘ the nature, extent and
duration of the restraint and factors peculiar to the parties and their respective
bargaining powers and interests’’
18 Setlogelo v Setlogelo 1914 AD 221 at p227.
15
[41] The nature of the restraint and undertakings is extensively covered under
Clause 2 of the agreement. Effectively, Lubbe undertook, for a period of one
year from the termination of her employment and throughout the Republic of
South Africa, not directly or indirectly to be employed by, interested in,
engaged in, or concerned with any concern manufacturing, selling or
rendering the applicant's prescribed services. She further undertook not to
solicit or deal with prescribed customers and not to use or disclose the
applicant's confidential information.
[42] The ‘prescribed services’ are defined in clause 1.2.5 of the agreement to
mean: ‘any services which are rendered by the Company in the ordinary
course of business carried on by it during any part of the Employment Period;
and/or manufacturing and providing customers with a range of flexible plastic
and packaging and other related products.’
[43] Lubbe contended that there was no breach in view of the fact that she did not
take up employment with the third respondent, which is a direct competitor of
the applicant . She further con tends that since her employment with the
second respondent was brief , she never divulged or utilised the applicant’s
confidential information, or solicited its clients. She submits that her access to
confidential information during her employment relationship with the applicant
was overstated, and that her expertise was part of her own skills and
experience, and not the applicant’s proprietary interest.
[44] She contends that, in any event, her employment with the second respondent
was not in breach, as the latter was not a competitor. She conceded that there
was common ownership of the second and third respondents, but contended
that the entities were distinct and separate businesses, with separate
operations, management and activities . According to Lubbe, the second
respondent is a confectionery manufacturer, importer and wholesaler , and did
respondent is a confectionery manufacturer, importer and wholesaler , and did
not manufacture or supply flexible packaging products, which activities fell
outside of ‘Prescribed Services’ as defined in the agreement. She contended
that even if the second respondent employed her , such employment would
not trigger the restraint provisions.
16
[45] The applicant had correctly pointed out that Lubbe’s attempts at distinguishing
between the second and third respondents were indeed artificial, contrived,
and lacking in substance. Undisputed facts are that the two entities operate as
part of the same commercial structure and from the same premises .
Furthermore, they have overlapping operational
personnel/management/directorship, and communications , as well as
business activities . They also operate within the same flexible plastic
packaging sector, utilise comparable manufacturing and converting
processes, and compete for substantially similar categories of customers
requiring customised packaging solutions.
[46] Against the comparable, overlapping and intertwined business operations
between the two entities, I fail to appreciate how Lubbe can seriously contend
that they are distinct and unrelated, and that her employment with the second
respondent could not therefore have triggered the restraint provisions , which
prohibit her employment by any concern rendering ‘Prescribed Services’ as
defined in clause 1.2.5 of the agreement.
[47] The invariable conclusion is that , by taking up employment with the second
respondent, albeit for a brief period, Lubbe indeed breached the restraint of
agreement. Accordingly, the applicant had indeed established a clear right to
the final relief sought. The applicant has correctly pointed out that Lubbe’s
employment with the second respondent clearly created a clear and
foreseeable risk to its proprietary interests , particularly given the direct
operational overlap between the two entities.
Protectable interests:
[48] The only issue is whether , resulting from the provisions of the restraint of
trade agreement, and in the light of the specific proprietary interests identified
by the applicant, these are worthy of any protection. This Court recently, in
Vanhattan Lifting CC v Herselman and Another (Vanhatten)19, and with
Vanhattan Lifting CC v Herselman and Another (Vanhatten)19, and with
reference to other authorities, summarised what constitutes proprietary
interests that are worthy of protection as follows;
19 (2026/106176) [2026] ZALCJHB 206 (7 July 2026)
17
“[35] Confidential information would be: (a) Information received by an
employee about business opportunities available to an employer; (b)
information that is useful or potentially useful to a competitor, who would
find value in it; (c) Information relating to proposals, marketing or
submissions made to procure business; (d) information relating to price
and/or pricing arrangements, not generally available to third parties; (e)
information that has actual economic value to the person seeking to protect
it; (f) customer information, details and particulars; (g) information the
employee is contractually, regulatory or statutory required to keep
confidential; (h) Information relating to the specifications of a product, or a
process of manufacture, either of which has been arrived at by the
expenditure of skill and industry which is kept confidential; and (i )
information relating to know-how, technology or method that is unique and
peculiar to a business. Importantly, the information summari sed above
must not be public knowledge or public property or in the public domain. In
short, the confidential information must be objectively worthy of protection
and have value.
[36] Trade connections as an interest worthy of protection would be
where the employee has access to customers and is in a position to build
up a particular relationship with the customers so that when he or she
leaves employment and becomes employed by a competitor, the employee
could easily or readily induce the customers to follow the employee to the
new business. Whether the employee can be seen to have the ability to
exert this kind of influence, is dependent upon: (a) the duties of the
employee; (b) the employee’s particular personality and skill; (c) the
frequency and duration of contact between the employee and the
customer(s); (d) the nature of the relationship between the employee and
the customer(s) and in particular whether the relationship carried with it a
the customer(s) and in particular whether the relationship carried with it a
notion of trust and confidence; (e) the knowledge of the employee
concerning the particular requirements of the customer and the nature of
its business; (f) how competitive the rival businesses are, and (d) the
nature of the product or services at stake.
[37] The seniority of the employee concerned is also an important
consideration where it comes to evaluating the existence of a protectable
interest. The more senior the employee, the more likely it is that the
18
employee would be entrenched with what can legitimately be considered to
be a protectable interest based on the above two considerations. Seniority
is not just the level of the employee in the organization of the erstwhile
employer, but also includes factors such as the length of service, position,
influence, knowledge, expertise, nature of duties, relationships and even
the particular person of the employee.”
[49] In Experian, it was further held that;
“It is trite that the law enjoins confidential information with protection.
Whether information constitutes a trade secret is a factual question. For
information to be confidential it must be capable of application in the trade
or industry, that is, it must be useful and not be public knowledge and
property; known only to a restricted number of people or a close circle; and
be of economic value to the person seeking to protect it (see Townsend
Productions (Pty) Ltd v Leech and Others 2001 (4) SA 33 (C) at 53J -54B,
Mossgas (Pty) Ltd v Sasol Technology (Pty) Ltd [1999] 3 All SA 321 (W) at
333F)”
20.
[50] To the extent that Lubbe’s employment relationship with the second
respondent was brief, it is correct that there is no discernible evidence
advanced by the applicant that she had solicited its customers, nor was there
any evidence to demonstrate that indeed she had shared the applicant’s trade
secrets with the second respondent or with any other entity. The enquiry,
however, does not end at that point; more specifically, it has been concluded
that Lubbe had already breached the restraint by being employed by the
second respondent, whose business and operations are intrinsically linked to
the third respondent, which is a competitor.
[51] Lubbe, however, further contends that the applicant failed to identify any
genuine proprietary interest in her possession that was under threat, and
submits that enforcement was intended merely to eliminate competition rather
submits that enforcement was intended merely to eliminate competition rather
than to protect legitimate business interests . As to whether Lubbe was in a
position to threaten the applicant’s proprietary interest, as already pointed out
in Vanhatten, is an issue that must be assessed against a variety of factors,
20 At para 19
19
including, but not limited to, her position and primary functions whilst in its
employ.
[52] From the pleadings and amongst a variety of disputes that Lubbe sought to
raise, it does not appear to be seriously disputed that she occupied a senior
and strategically key position as Key Accounts Technical Sales M anager, and
had also acted as the applicant’s System Coordinator. In those positions, she
was responsible for the applicant’s entire integrated Food Safety Management
System. She maintained and updated controlled system documentation,
including policies, procedures, work instructions, forms, and controlled
documents. She managed audit and certification processes, interacted with
customers regarding audits, questionnaires and certification requirements ,
and participated in quality and operational management processes . She
managed key customers’ accounts and technical matters and advised them
on material selection, product performance, packaging solutions , and
compliance requirements.
[53] Notwithstanding her contentions that she was not the ‘sole custodian’ or
‘gatekeeper’, it was not seriously disputed that s he had full access to
documents relevant to her systems coordinator role. She had participated in
risk assessments and supplier -related functions and engaged with service
providers. In the course of her employment and given her senior position, she
acquired valuable confidential information, trade secrets, and customer
connections, including client databases, supplier information, pricing
structures, and strategic business information.
[54] Against the above factors, which are not seriously in dispute, at the core of
Lubbe’s opposition is the breadth of access to confidential information related
to trade secrets and customer connections , rather than whether she had
access at all. Lubbe had, however, sought to downplay her role, let alone her
access to proprietary knowledge. It is , however, significant to observe that
access to proprietary knowledge. It is , however, significant to observe that
notwithstanding her denials in relation to her detailed exposure to any
confidential information, Lubbe does not challenge the confidential nature of
the information that she was exposed to, nor does she raise any factor that
disputes that such information has actual economic value to the applicant.
20
[55] Regarding the need to protect customer connections, it is trite , emanating
from a long line of authorities , that to deserve protection, the party seeking
enforcement must establish that such connections exist, and that they are of
such a nature that the ex -employees would be able to exploit them , and
influence/induce customers to follow them to the competitor .21 Again, Lubbe
does not challenge the importance and proprietary nature of the customer
information she was exposed to, other than the extent of that exposure.
Based on the not seriously disputed facts as already summarised elsewhere
in this judgment, it is apparent that such customer connections exist, and that
they are of such a nature that Lubbe would be able to exploit them to the
prejudice of the applicant.
[56] Lubbe’s mere contention that she did not deal with the applicant’s prescribed
customers, without specifically outlining which of those customers she dealt
with to dispel any customer connections, clearly emphasises form over
substance. This is particular ly having regard to the nature of her position,
responsibilities and engagements with customers whilst employed by the
applicant. Indeed, her denials in the light of the undisputed facts are not only
mala fide but are also far-fetched.
[57] Against the principles set out in Experian22 and other authorities, the
undisputed facts and the background to this application make it apparent that
Lubbe was in deed exposed to the applicant’s proprietary knowledge and
interests. Since Lubbe had already breached the restraint by being employed
by the second respondent , it is not for applicant to rely on her good faith that
she would not exploit such knowledge to the applicant ’s detriment. Two
significant factors fortify this observation.
[58] The first is that upon it being discovered that Lubbe was employed by the
second respondent, and before the hearing of this application, the applicant
second respondent, and before the hearing of this application, the applicant
had proposed to the second and third respondents that they would consent to
21See Esquire System Technology (Pty) Ltd t/a Esquire Technologies v Cronjé and another (2011) 32
ILJ 601 (LC) ; Continuous Oxygen Suppliers (Pty) Ltd t/a Vital Aire v Meintjes and another (2012) 33
ILJ 629 (LC) at para 34; Rawlins and Another v Caravantruck (Pty) Ltd [1992] ZASCA 204; 1993 (1)
SA 537 (A) , at 541 C-H
22 At para 21- 22
21
an order preventing them from employing or engaging Lubbe during the
restraint period. This proposal was not accepted.
[59] A second consideration is that, as at the hearing of these proceedings , Lubbe
had refused to give any form of undertaking and persisted in her incorrect
contention that the second respondent wa s not a competitor . In these
circumstances, it was neither incumbent upon the applicant to enquire into
Lubbe’s bona fides nor to demonstrate that she is mala fides , before being
allowed to enforce the restraint agreement. The applicant need not further
demonstrate that Lubbe has in fact utilised its confidential information; all that
the applicant and the court must be satisfied with i s that Lubbe could utilise
such information. Accordingly, I am satisfied that the applicant has
demonstrated its proprietary interests to which Lubbe had access and that
they are worthy of protection.
[60] To the extent that Lubbe challenged the period and scope of the restraint, her
main contentions were that the combined effect of the geographical scope
and duration of the restraint rendered it unreasonable and contrary to public
policy. She submitted that the restraint we nt beyond what was required to
protect any legitimate proprietary interests, and operated primarily to eliminate
competition from her, and imposed a disproportionate burden on her ability to
secure employment in the area of her expertise.
[61] Lubbe’s main contention as above was that the duration and area of the
restraint went beyond the ambit of what was required to protect any legitimate
proprietary interests . This can only confirm that , contrary to her primary
contention, these interests do indeed exist. It could not, however, be seriously
disputed that the applicant serviced its customers and clients and supplied
products to those clients national ly. Its national customers included major
retailers such as Albany Bread, Sunbake, Sasko, Woolworths, Rainbow
retailers such as Albany Bread, Sunbake, Sasko, Woolworths, Rainbow
Chickens, and PepsiCo, to whom Lubbe was exposed during her
employment.
[62] Weighed up qualitatively and quantitatively against the applicant’s interests,
clearly Lubbe is not prevented from being economically active and productive.
22
Even from her own pleadings, it can be discerned that alternative employment
opportunities exist , including, amongst others, Food Safety Management
positions outside the flexible packaging industry, Quality Assurance and
Management positions in non-competing businesses, and any other industries
unrelated to competing flexible packaging operations.
[63] There is no basis therefore for any conclusion to be reached that the restraint
rendered her economically inactive for the period of the restraint , as it is
confined to competing flexible packaging business or associated competitive
structures, albeit for a limited period. Furthermore , the Court cannot agree
that the restraint is merely meant to eliminate competition, particularly in light
of its limited scope. Against these conclusions, it cannot therefore be argued
on behalf of Lubbe that there is another facet of public policy having nothing
to do with the relationship between the parties, but which requires that the
restraint should be rejected.
[64] Upon a consideration of all the factors , the Court is satisfied that the applicant
is entitled to final relief as sought. The applicant has demonstrated a clear
right that is likely to be infringed or prejudiced, in circumstances where Lubbe
persists in her view that the second respondent is not a competitor . An injury
is reasonably apprehended should the second respondent employ her , and
clearly the applicant cannot speak of any other satisfactory remedy being
available to it . Against these conclusions, it follows that the applicant is
entitled to the relief it seeks.
Costs:
[65] It is my view, having considered the facts and background to this application,
that this matter ought not to have reached this stage. Upon Lubbe’s
employment with the second respondent having been terminated, and for
whatever reason the latter had proffered, she ought to have reconsidered her
position in opposing this matter. Once that employment relationship was
position in opposing this matter. Once that employment relationship was
terminated, Lubbe ought to have realise d that she could not possibly mount a
bona fide defence genuinely based on legitimate legal grounds . This was
even more so since her opposition did not raise genuine disputes of fact
23
regarding the enforceability and reasonableness of the restraint . Furthermore,
contrary to Lubbe’s views, and in view of the contractual nature of the dispute
before the Court, the provisions of section 162(1) of the LRA f ind no
application. Accordingly, the ordinary principle that costs must follow the result
must apply. In my view, an award of costs of the application is deemed
appropriate.
[66] Accordingly, the following order is made;
Order:
1. The applicant’s non-compliance with the normal time limits for service
is condoned.
2. The First Respondent’s preliminary point on the authority of the
deponent to depose to the founding affidavit is dismissed.
3. The late filing of the First Respondent’s Supplementary Heads of
Argument is condoned without any order as to costs.
4. The First Respondent’s defence of mootness is dismissed.
5. The First Respondent is interdicted and restrained from being
employed with the Second Respondent and/or the Third Respondent
and shall not in any capacity whatsoever, including as proprietor,
partner, director, shareholder, employee, consultant, contractor,
financier, agent, representative, assistant, trustee or beneficiary of a
trust or member of a close corporation, directly or indirectly, carry on or
be interested or engaged in or concerned with the Second
Respondent, the Third Respondent, or any company, firm, partnership,
close corporation, trust, undertaking or concern which carries on
business in competition, directly or indirectly, with the business as
carried on by the Applicant, for a period of twelve months from 27 April
2026 within the Republic of South Africa.
24
6. The First Respondent is interdicted and restrained from using,
disclosing or communicating the Applicant's confidential and/or
proprietary information to any person or entity, including the Second
Respondent and/or the Third Respondent, their employees, agents or
representatives.
7. The First Respondent is interdicted and restrained from soliciting,
canvassing or dealing with any customer of the Applicant with whom
she had contact or in relation to whom she acquired confidential
information during her employment with the Applicant, for a period of
twelve months from 27 April 2026.
8. The First Respondent is ordered to pay the costs of this application on
the party and party Scale A.
___________________
Edwin Tlhotlhalemaje
Judge of the Labour Court of South Africa
25
APPEARANCES:
For the Applicant: W N Shapiro SC , instructed by
Macgregor Erasmus INC.
For the First Respondent: Mr F rederick Johannes Swartz of
FJ Swartz Attorneys