An employer seeking to enforce such a restraint must establish active solicitation by the former employee.
The facts
Sasha van den Berg was employed by Alec Levin Insurance and Investment Brokers (Alec Levin), a short-term insurance advisory and intermediary services provider, from January 2022 until February 2026.
After being initially engaged as an administrative assistant, in July 2025, she concluded an employment agreement as a representative in Alec Levin’s short-term insurance advisory division, which contained a restraint of trade covenant.
Van den Berg resigned on 29 January 2026 and commenced employment with Williams Maree Finansiële Adviseurs (Williams Maree) with effect from 28 February 2026. A number of clients whose portfolios she had managed at Alec Levin subsequently moved their business to Williams Maree, where Van den Berg continued to service them.
Mia de Jager and Shannon Busacker 19 Aug 2026 Alec Levin alleged that Van den Berg had breached her restraint and invoked clause 21.6.3.1 of her employment agreement, which provided for the payment of damages in the event of a breach.
Alec Levin subsequently approached the High Court for a final interdict. Although the application was initially brought on an urgent basis, it was struck from the urgent roll for lack of urgency and was later heard in the ordinary course.
Ultimately, Alec Levin sought to restrain Van den Berg from soliciting or canvassing business from, rendering services or advice to, or otherwise doing business with, any of its clients.
Was there solicitation?
Alec Levin’s case was largely inferential. It relied on the timing and number of clients who had moved to Williams Maree and invited the High Court to infer that Van den Berg had solicited them. However, it produced no emails, messages, call records or affidavits from clients demonstrating that she had approached them.
Van den Berg denied soliciting Alec Levin’s clients.
In support of her version, she relied on a farewell email informing clients that a suitable and competent replacement had been appointed to manage their affairs, evidence of telephone conversations that indicated that clients moved because they were satisfied with the service she had provided, broker declarations recording that the clients had independently elected to move to Williams Maree, the fact that several of the clients were family members or close personal connections, and confirmatory affidavits from each of the named clients stating that they had approached her and had not been solicited.
Dhevarsha Ramjettan and Thobile Ndaba 31 Jul 2026 The High Court confirmed that an employer seeking to enforce a restraint bears the onus of establishing a breach. Once a breach is established, the employee bears the onus of demonstrating that the restraint is unreasonable and therefore unenforceable.
The High Court also accepted that customer connections may constitute a protectable proprietary interest, particularly in the financial services industry, where goodwill and client relationships are important commercial assets.
Importantly, however, the High Court held that solicitation requires active conduct.
The mere fact that a client transfers its business to a former employee or the former employee’s new employer does not, without more, establish solicitation.
Even where the client makes the initial approach, there must be some conduct by the former employee demonstrating that the client’s move was encouraged, induced, facilitated or otherwise actively pursued.
The High Court distinguished Adviceworx (Pty) Ltd and Another v Roux and Others (Adviceworx), relied upon by Alec Levin, in which the principle was reaffirmed that solicitation is not necessarily excluded merely because the initial approach emanated from the client.
Among other things, Adviceworx involved several employees leaving for a direct competitor, substantial client movement, evidence of engagement with clients from which the acting judge concluded that there had been, at the very least, indirect solicitation, and a restraint that expressly prohibited indirect solicitation.
On the evidence before it, the High Court found that there was a genuine and material dispute of fact as to whether Van den Berg had solicited Alec Levin’s clients. Her version was supported by direct and uncontradicted evidence from the clients themselves and could not be rejected as false or clearly untenable.
Accordingly, Alec Levin had not established that Van den Berg had breached the restraint.
The High Court further found that, because Alec Levin’s founding affidavit had advanced a case based on solicitation, it could not obtain broader relief restraining Van den Berg from doing business with its clients where the alleged solicitation had not been proved.
Rosalind Davey and Chloë Loubser 4 Dec 2025 Key takeaways for employers
The judgment offers important practical guidance for employers seeking to protect customer connections through non-solicitation restraint provisions.
Firstly, client movement does not, without more, establish solicitation.
Before seeking to enforce a restraint, employers should ensure that there is evidence of active conduct by the former employee. This may include emails, WhatsApp messages, call records, client communications or affidavits demonstrating how contact was initiated and whether the employee encouraged or facilitated the client’s move.
Secondly, the wording of the restraint is critical.
If the intention is to prohibit not only direct solicitation, but also indirect solicitation, dealings with clients or the provision of services to former clients regardless of who initiates contact, the restraint should expressly provide for this. A prohibition against solicitation alone may not afford the broader protection an employer intends.
