IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: 2026-163226
In the matter between:
BRINK’S SOUTHERN AFRICA (PTY) LTD Applicant
and
JOERN FRESE Respondent
Heard: 27 August 2026
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time
for handing-down is deemed 10h00 on 11 September 2026.
JUDGMENT
ALLEN-YAMAN J
(1) Reportable: No
(2) Of interest to other Judges: No
Signature Date
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Introduction
[1] The applicant sought to enforce a restraint of trade agreement embodied in a
contract of employment entered into between itself and the respondent on 1
April 2020.
[2] In opposing the application the respondent did not challenge the applicant’s
claim that it was required to be determined on an urgent basis, and t his court is
satisfied that the applicant made out a case for its application to be dealt with
on such basis. The application will be enrolled accordingly.
[3] In circumstances in which the applicant’s replying affidavit anticipated the
possibility of referring certain aspects of the application for the hearing of oral
evidence, this issue was canvassed with Mr Whitcutt SC, who appeared on
behalf of the applicant with Ms Tolmay, at both the outset and the conclusion of
the hearing. No application for the matter to be referred to oral evidence was
ultimately made, the applicant having satisfied itself that the application could
be determined on the papers.
Background
[4] The applicant is a logistics company, specialising in the transportation of high-
value, high -risk commodities, including precious metals and minerals, cash,
and jewellery. It’s operations extend throughout the continent of Africa.
[5] The respondent joined the applicant’s business by way of a s197 transfer, when
the applicant purchased the business of G4S International Logistics (South
Africa) (Pty) Ltd, a company in which he had been employed since 2010 as its
Regional Director, Africa. His designation in the business of the applicant was
that of Senior Director, Southern African Countries & Mining, Middle East and
Africa. As a Senior Director, he reported directly to the applicant’s Regional
Vice President, Middle East and Africa, Mr Michel Constrain.
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[6] In his position, the respondent was responsible for the applicant’s mining sector
operations throughout the African countries in which it was involved, dealt with
its customers, and was intimately involved in decision making concerning the
applicant’s business plans, operational plans , and development. To this end,
the respondent had access the applicant’s confidential information, including its
commercial, financial, and strategic information, pricing structures, contractual
arrangements, and business strategies.
[7] On 2 June 2026, the respondent tendered three months’ notice of his intention
to resign, his last working day to be 1 September 2026. Around the time of his
resignation he informed a number of the applicant’s other employees that he
intended to take up employment with one of the applicant’s competitors, but did
not specify which one. Beyond informing it that his future employment was to
be outside of Africa, he declined to divulge any further information to the
applicant, but nonetheless gave it his assurance that he would not act in
contravention of any of his contractual obligations.
[8] The applicant was not satisfied with the respondent’s response and so
launched the present application, premised on its apprehension that it was
inevitable that his future employment would result in a breach of his restraint of
trade agreement and its African business interests being damaged as a result.
[9] Correspondence was exchanged between the parties’ respective attorneys
thereafter, with the respondent’s attorney having endeavoured to assuage the
applicant’s concerns relating to the respondent’s anticipated employment by
providing the applicant with some particularity concerning the nature of the
position he intended to take up. The applicant, however, remained
unconvinced that the respondent’s intended employment would not breach his
restraint obligations.
[10] The details of the respondent’s proposed employment as set out in both his
[10] The details of the respondent’s proposed employment as set out in both his
attorney’s correspondence and his answering affidavit revealed that he was to
be employed by Ava Global Services FZCO, a company he described as being
‘incorporated in terms of the laws of the Dubai Multi Commodities Centre Free
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Zone, United Arab Emirates ’ (referred to hereafter as ‘Ava Dubai’ ). He
explained that Ava Dubai is a subsidiary of Ava Global Logistics Limited,
(hereafter referred to as ‘Ava Logistics’ ) which he acknowledged to be a
competitor of the applicant. The position he intends to occupy is that of Global
Head of Mining and Refining (excluding Africa).
Analysis
[11] Not having disputed the veracity or enforceability of the restraint agreement
itself; that the applicant has protectable interests in both its customer
connections and the confidential information of which he is aware; that he has
relationships with its customers such that he has the potential ability to
influence the decisions they take insofar as their businesses are concerned; or
that he intends, at least indirectly, to take up employment with a competitor, the
singular disputed issue on which the application rests concerns whether the
respondent’s intended employment will breach the geographical limitations of
the restraint.
[12] The “Restricted Territory” was defined in clause 16.1 of his contract of
employment to include,
‘Every magisterial district of the Republic of South Africa in which the Company
operates, and province/state in any African country in which the Company operates.’
[13] In terms of clause 16.2 of his contract of employment the respondent accepted
the following restrictions on any employment entered into by him after the
termination of his employment with the applicant,
‘The Employee will not without the prior written consent of the Company directly or
indirectly and whether alone or in conjunction with or on behalf of any other person
and whether as a principal, shareholder, director, employee, agent, consultant, partner
or otherwise within the Restricted Territory for a period of 12 months from the
Termination Date:
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16.2.1 be employed, engaged, concerned or interested in or provide technical,
commercial or professional advice or management advice to any other
business which supplies Products or Services in competition with the
Company or the Group provided that this restriction does not apply to prevent
the Employee from either: (i ) undertaking duties or activities which are
materially different to those undertaken by him during the Relevant Period in
the performance of his duties hereunder; or (ii) holding shares or other
securities in any company which is quoted, listed or otherwise dealt in on a
recognised investment exchange or other securities market and which confer
not more than four per cent of the votes which could be cast at a general
meeting of such company; or
16.2.2 be employed, engaged, concerned or interested in any business which at any
time during the Relevant Period has supplied products or services to the
Company and/or do or attempt to do anything which causes or may cause the
supplier to cease, alter or materially to reduce its supplies to the Company; or
16.2.3 be employed, engaged, concerned or interested in any business which is or
was at any time during the Relevant Period a Relevant Customer of the
Company and/or the Group and/or do or attempt to do anything which causes
or may cause the Relevant Customer to cease or materially to reduce its
orders or contracts with the Company and/or the Group; or
16.2.4 so as to compete with the Company canvass, solicit, or approach or cause to
be canvassed, solicited or approached any Relevant Customer for the sale or
supply of Relevant Products or Services or endeavour to do so; or
16.2.5 so as to compete with the Company deal or contract with any Relevant
Customer in relation to the sale or supply of any Relevant Products or
Services, or endeavour to do so; or
16.2.6 solicit, induce or entice away from the Company or, in connection with any
business in or proposing to be in competition with the Company, employ,
business in or proposing to be in competition with the Company, employ,
engage or appoint or in any way cause to be employed, engaged or
appointed a Critical Person whether or not such person would commit any
breach of his or her contract of employment or engagement by leaving the
service of the Company; or
16.2.7 use in connection with any business any name which includes the name of
the Company or any passing off of such name.’
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[14] The respondent denied that his employment by Ava Dubai would result in his
breach of his restraint obligations. Whilst he accepted that the physical location
of his employment beyond the borders of the Restricted Territory would not of
itself suffice to place him beyond the restraint, and that any conduct on his part
involving the Restricted Territory would result in a breach thereof irrespective of
where he was physically situated, he asserted that the restraint would not be
breached by his taking up employment with a competitor outside the Restricted
Territory merely by virtue of the fact that the competitor itself has business
interests within the Restricted Territory. Mr Viljoen argued on behalf of the
respondent that to apply the term Restricted Territory to the business of the
competitor rather than to the respondent himself would have the effect of
creating a worldwide restraint.
[15] On the assumption that the respondent’s interpretation of the restraint
provisions is correct, then the issue is whether the activities he will be required
to undertake in his new position exclude any involvement or influence by him
within the Restricted Territory.
[16] On the respondent’s version he h as been employed by Ava Dubai in the
position of Global Head of Mining and Refining (excluding Africa). The
exclusion of Africa from his position arose in circumstances in which he had
brought the existence of the restraint to the attention of those with whom he
was negotiating. The Chief Executive Officer of Ava Global , Mr Christopher
Fergus, explained,
‘On this basis, and after taking legal advice on the issue, Ava Dubai and Ava Global
carefully curated the role and functions of Mr Frese so that his engagement by Ava
Dubai would not breach his restraint undertakings owed to the applicant.’
[17] Without challenging the various factual propositions contained in the
explanation advanced by the respondent, the applicant was nonetheless
explanation advanced by the respondent, the applicant was nonetheless
dissatisfied. It contended that even on the respondent’s own version, it was
apparent that the applicant’s employment with the respondent would
nevertheless breach the restraint. This was said to be so as , in the absence of
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any particularity having been provided by the respondent as to how the position
he was to take up was, in practical terms, to be divested of its African
connection, the position itself when considered in relation to the business of
both the applicant and Ava Global, would of necessity require he be involved in
the African mining business, even if only on an indirect basis.
[18] In consideration of this, the first observation which may be made is that this
court is unable to discern any real distinction between Ava Global and Ava
Dubai. N or has it been advised as to the nature of Ava Dubai’s business,
insofar as it is a subsidiary of Ava Global and is said to be a distinct and
discrete entity. Despite the juristic division of the companies, it is evident that
there is an interconnectedness between them such that certain employees of
one are employees of both and the reporting lines cross both companies. As
regards the respondent’s specific position, despite his contract of employment
being with Ava Dubai, it is also evident that the functions of his employment will
extend to Ava Global.
[19] Other employees identified by the respondent hold equally ambiguous positions
within the two entities . Mr Christopher Fergus is both the CEO of Ava Global
and ‘an employee’ of Ava Dubai. Although unspecified, the respondent having
referred only to ‘Ava’, it appears that the other individuals who are to assume
responsibility for Ava Global’s African operations form part of Ava Global’s
employee complement. On the respondent’s own version, the people to whom
those responsible for Africa a s well as himself are to report , being either the
Chief Commercial Officer or the Chief Operations Officer, are both employed by
Ava Global. Moreover, prior to his own appointment by Ava Dubai, negotiations
to that end took place with both Ava Dubai and Ava Global.
[20] The respondent attached what was said to be an organogram of ‘the various
[20] The respondent attached what was said to be an organogram of ‘the various
persons who are required to manage Ava Globa’s African operations.’ The
organogram relied on by the respondent in substantiation of his assertions that
he is to be kept away from Ava Global’s mining operations not only bears no
indication that it is one approved by either Ava Global or Ava Dubai (nor was it
said by the respondent to have been either entities’ official organogram ) but it
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positions the respondent, an individual who is to be employed by Ava Dubai,
amongst several other individuals who are employed by Ava Global . Of those
he identified, he appears to be the only individual who is employed exclusively
by Ava Dubai. Whilst Ava Global and Ava Dubai are obviously at liberty to
structure their business’ in any manner they deem suitable, the placement of
the respondent within Ava Global’s reporting structure coupled with the stated
purpose of his role links his position at Ava Dubai inextricably with the business
of Ava Global.
[21] The further difficulty with the conflation of the two entities and the excision of
responsibility for the African mining sector from the respondent’s portfolio of
responsibilities was the respondent’s statement that,
‘Ava Dubai does not perform any functions within Africa. The African functions are
conducted through Ava Global LLC, being an entity based in the United States of
America.’
If that proposition is correct, and the respondent had been employed by Ava
Dubai to perform services solely for that entity, there would have been no
reason to exclude the continent of Africa from his functions.
[22] That his services are to be performed on behalf of Ava Global, notwithstanding
his employment by Ava Dubai , was confirmed by the job summary he provided
in relation to the position. This clearly expressed the primary responsibility of
his position to be to Ava Global, and to that end, it elaborated the functions for
which he is to bear responsibility.
‘The Global Head of Mining holds executive responsibility for defining and executing
Ava Global Logistics’ strategic growth agenda in the mining and refining sector.’
His key responsibilities will entail:
- Leading the development of Ava Global’s global commercial strategy for the
mining and refining verticals, aligned with its long term vision and financial
objectives;
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- Driving global revenue, client retention, and market share growth within the
mining and refining supply chains (including mining, refining, trading,
storage, and distribution);
- Building and managing relationships with stakeholders across the mining
and refining business chain, from miners to vault operators;
- Identifying market trends, regulatory development and emerging customer
needs;
- Leading commercial negotiations, strategic partnerships, and key account
strategies with a view to enhancing Ava Global’s competitiveness;
- Providing executive oversight of the sales pipeline and operational
execution, so as to ensure, inter alia , accurate forecasting and client
satisfaction;
- Recruiting, mentoring and leading a global team across commercial, client
services and logistics functions;
- Ensuring that all commercial activities are aligned to Ava Global’s
governance, compliance and security protocols; and
- Representing Ava Global at global industry forums, regulatory meetings and
client engagements.
[23] How the African mining sector was to be separated from his own work was
explained by the respondent with reference to the following structural
arrangements,
‘My role at Ava Dubai will not require me to perform any functions in respect of the
African market in a direct or indirect manner. Contrary to the suggestions made by the
applicant, Ava Global engages several other persons who will be solely responsible for
Ava Global’s African operations.
Ava’s current Global Head of Mining will become the Director of Mining when I
commence my duties with Ava Dubai. The Director of Mining will manage all mining
relationships globally, including in Africa and will report directly to Ava’s Chief
Commercial Officer, as I will.
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Ava’s Regional Business Development Director, Africa, will continue in that role. He
also reports directly to Ava’s Chief Commercial Officer. Furthermore, Ava’s
Operations Director for Europe, Middle East and Africa (EMEA) will report to Ava’s
Global Director of Operations who will, in turn, report directly to Ava’s Chief Operations
Officer.’
[24] In amplification of this explanation, having asserted that his work was to
exclude any and all involvement in the Ava Global’s interests in the African
mining sector, he detailed how this would apply in practical terms
‘I will have no access to the pricing, pipeline, client lists, commercial data, or any other
aspects of Ava Global’s African operations;
I will have no input into, oversight of, or strategic responsibility for Ava Global’s African
operations; and
Ava Global’s African mining, business development, and operations functions report
directly to Ava Global’s Chief Commercial Officer or Chief Operations Officer, and not
to me.’
[25] Disregarding for the moment the lines of reporting, and considering only the
identified functions and the functionaries to whom they have been attributed, on
the respondent’s own version:
- The Director of Mining will manage all Ava Global’s mining
relationships; and
- Ava’s Regional Business Development Director, Africa, will continue to
develop new business in Africa.
In the absence of any challenge by the applicant to th e intended structure as
explained by the respondent (which is not inherently implausible) this court
must accept that the respondent will have no direct involvement with either Ava
Global’s mining customers and suppliers or the development of its business
within the African mining sector by virtue of his employment with Ava Dubai.
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[26] However, without a further explanation by the respondent regarding the manner
in which it is intended that he perform the functions identified in the job
description itself so as to exclude all involvement by him in Ava Global’s
interests in the African mining and refining sector, the inescapable conclusion is
that, at the very least, in the execution thereof he will be required to participate
indirectly.
[27] The job description provided by the respondent is the only evidence of the
functions which he will be required to perform in the role. The job description
does not evince that any of the functions of the role have been adjusted so as
to accommodate the respondent’s obligations in relation to the restraint.
Although his job title is that of ‘Global Head of Mining and Refining (excluding
Africa)’, no similar exclusion appears in relation to the actual heading of the
document. More importantly, consideration of the functions and responsibilities
intrinsic to the position reveals that these are unlimited in relation to the entirety
of Ava Global’s mining operations. For example, he is to be responsible for
‘defining and executing Ava Global Logistics’ strategic growth agenda in the
mining and refining sector,’ and he will also be required to develop and execute
Ava Global’s commercial strategy for the mining and refining sector. Moreover,
of the individual responsibilities identified in the job description, not one
expressly excludes from its application Ava Global’s interest in the mining and
refining sector in Africa and none appear to be capable of implementation if
Africa is excluded, as every responsibility is global. Accordingly, despite the
excision of ‘Africa’ from the respondent’s job title, none of the functions of the
work he will be required to perform appear to have been curtailed in any way so
as to exclude Africa from their application.
[28] Given that the performance of the functions by the incumbent necessar ily
[28] Given that the performance of the functions by the incumbent necessar ily
entails consideration of the entirety of Ava Global’s business within the mining
and refining sector , there is no self -evident means by which consideration of
the African sector can be excluded. In the absence of any explanation as to
how the purpose of the role could be achieved without reference to Ava
Global’s African market, this court is constrained to conclude that by taking up
the position in question and performing the functions associated therewith, the
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respondent will of necessity be required to involve himself with considerations
relating and relevant to the African mining and refining market. Accordingly,
whilst this court accepts that the respondent will not be directly involved in Ava
Global’s African mining and refinery operations as these functions have been
allocated to other employees, his indirect involvement in A va Global’s interests
in the African market will be the inevitable consequence of his performance of
the global functions required of the role in question.
[29] In the result, this court finds that the intended employment of the respondent by
either Ava Dubai and / or Ava Global in the position of Global Head of Mining
and Refining (excluding Africa) would be in breach of clause 16.2.1 of his
contract of employment with the applicant dated 1 April 2020.
[30] The interests which the applicant seeks to protect through the mechanism of
the enforcement of the restraint for a period of 12 months are its customer
connections and its confidential information. As explained below, i t appears
that such period will not be necessary , and to apply the restraint for its full
duration would be accordingly be unreasonable.
[31] Insofar as the applicant’s customer connections are concerned, the applicant
did not suggest that the relationships formed by the respondent in the course of
his employment with it were such that he would be in a position to attract their
business to Ava Global or Ava Dubai by virtue of no more than those
relationships. By all accounts, although his dealings with the applicant’s
business associates were both direct and of a duration commensurate with the
length of his own employment with the applicant , they were not alleged to be of
a personal nature.
[32] As to its confidential information, the nature thereof was detailed under the
applicant’s confidential affidavit. Reference being had to the document
applicant’s confidential affidavit. Reference being had to the document
identified as ‘CA11’, it is evident that a number of factors cause some instability
within the African market . These factors include issues such as the sensitivity
of South Africa’s currency to external influences, political instability in West
Africa, unanticipated changes to the West African regulatory environment, and
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unforeseen changes to both custom procedures and security requirements.
Given that the various aspects of the mining and refining business in the region
are prone to change, it does not appear that any confidential information to
which the respondent was privy whilst employed by the applicant will be of any
commercial value for a full twelve months.
[33] It is accordingly the conclusion of this court that a period of six months ought to
suffice so as to both negate the value of any confidential information to which
the respondent was exposed whilst employed by the applicant, and to afford
the successor in the respondent’s role an opportunity to become fully
acquainted and form relationships with the applicant’s business associates in
the African market. The period of the restraint will be reduced accordingly.
[34] On the further relief sought by the applicant in its Notice of Motion concerning
both the retention by the respondent and the potential transmission of the
applicant’s confidential information to third parties, nothing before this court
indicates that the respondent has either retained any of the applicant’s
confidential information or that he has, or intends to, disseminate confidential
information to others. Equally, albeit that a number of other senior employees
resigned shortly before the respondent himself did so, nothing suggests that he
was instrumental in or influenced their decision to do so. Likewise, the
requirements for an interdict in relation to use, or potential use by the
respondent of the applicant’s identity have not been established. There is
accordingly no basis to grant the applicant the orders it sought in regard to
these aspects of its claim.
Costs
[35] The applicant asked for an order of costs. It is not difficult to appreciate how
the respondent might initially have understood that the restraint of trade would
not have prevented him from taking up employment in Dubai. As nothing
not have prevented him from taking up employment in Dubai. As nothing
vexatious or malicious appears to have informed his decision to take up
employment elsewhere, or to oppose this application, and now being obliged to
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endure a six month period of unemployment, this court is not of the view that
the interests of justice would be served by requiring him to bear a costs order.
Order
1. The provisions of the Rules for the conduct of proceedings in the Labour Court
relating to the times and manner of service are dispensed with and the matter is
dealt with as one of urgency in terms of Rule 38.
2. The respondent is interdicted and restrained for a period of 6 (six) months from
1 September 2026, and within every magisterial district of the Republic of South
Africa in which the applicant operates, and every province/state in any African
country in which the applicant operates from:
2.1 being employed, engaged, concerned or interested in or providing
services to any business which supplies p roducts or services in
competition with the applicant or the Brinks Group; and
2.2 canvassing, solicit ing, or approaching any Relevant Customer of the
applicant for the sale or supply of Relevant Products or Services (as
defined in the contract of employment concluded between the applicant
and respondent, dated 1 April 2020), or endeavouring to do so; and
2.3 dealing or contracting with any Relevant Customer of the applicant in
relation to the sale or supply of any Relevant Products or Services (as
defined in the contract of employment concluded between the applicant
and respondent, dated 1 April 2020), or endeavouring to do so.
3. The respondent is interdicted and restrained from disclosing, using or divulging
any confidential information or trade secrets of the applicant in any manner
whatsoever to any third party.
4. The applicant is granted leave to remove its confidential affidavit deposed to by
Mr Michel Constrain on 20 July 2026 from the court record and / or court file.
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5. Each party is to bear their own costs.
________________________
K. ALLEN-YAMAN J
Judge of the Labour Court of South Africa
Appearances
Applicant:
Mr C Whitcutt SC, with Ms E Tolmay
Instructed by Cliffe Dekker Hofmeyr Inc
Respondent:
Mr H M Viljoen
Instructed by Cowan-Harper-Madikizela Attorneys