The Labour Court in Cape Town has dismissed an urgent application by Didi Waterproofing Services (Pty) Ltd to enforce a restraint of trade and confidentiality undertakings against its former site manager, William Steven Els, and his company, Marcell Engineering (Pty) Ltd.
The court found the restraint clause vague, contrary to public policy, and unsupported by credible evidence that confidential information had been misused.
The dispute arose after Els resigned from Didi Waterproofing in September 2025, less than a year after joining the company as a site manager. Shortly after leaving, he began advertising waterproofing services through Marcell Engineering, a company he had registered years earlier but had not previously operated.
The employer sought an urgent court order preventing him from running or participating in any business within the Cape Town Metro until September 2026 and requested that he resign as a director of the company.
Before considering the merits, the court examined whether the case was urgent. Although the company initially moved quickly, Judge Tapiwa Cecilia Gandidze found that it later delayed setting the matter down for hearing while engaging in settlement discussions.
By the time the matter was argued in February 2026, nearly half of the restraint period had already passed. The court also noted that the employer had previously threatened to pursue damages claim, which undermined its argument that it could not obtain relief in the ordinary course.
At the centre of the case was a clause in the employment contract preventing Els from “establishing a new business” for a year after leaving the company.
The court held that the wording did not expressly prohibit competition. When the company asked the court to interpret the clause as banning competing businesses, the judge refused, saying this would effectively rewrite the contract. The court emphasised that a party cannot rely on the courts to fix vague contractual drafting.
The judgment went further, finding that even if the clause had been clearer, it would still be unenforceable because it sought to prevent Els from conducting any business at all. Such a restriction, the court said, would make him economically inactive and was contrary to public policy.
The judgment went further, finding that even if the clause had been clearer, it would still be unenforceable because it sought to prevent Els from conducting any business at all. Such a restriction, the court said, would make him economically inactive and was contrary to public policy.
Judge Gandidze noted that the employer’s own argument suggested Els could work for a competitor but could not start his own company, revealing that the real aim was to prevent him from becoming an entrepreneur after leaving the company.
The company also claimed Els had access to confidential pricing, customer and supplier information and would use it to compete unfairly. The court rejected these allegations, finding no evidence that he possessed or misused confidential information.
The employer failed to identify any specific proprietary techniques or processes, and the court observed that waterproofing methods were widely available, including through online tutorials. The evidence showed that Els advertised his services generally on WhatsApp and Facebook rather than soliciting the company’s clients directly.
In a pointed criticism, the court found that the employer had withheld relevant facts about discussions before Els resigned and had raised procedural objections that had no legal basis. Judge Gandidze concluded that the application amounted to an abuse of the court process and that the company should have realised the restraint would not be enforced.
Judge Gandidze ultimately ruled that the matter was not urgent, dismissed the application and ordered Didi Waterproofing Services to pay the legal costs of Els and Marcell Engineering.
sinenhlanhla.masilela@iol.co.za
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