A former Fidelity employee denied that he was stealing customers after he resigned.
Image: Fidelity ADT
A recent High Court ruling has clarified when employers can enforce restraint of trade agreements, and when they cannot.
In a judgment delivered in the Western Cape High Court, the court dismissed an urgent application by Fidelity Services Group to enforce a restraint of trade against a former employee who had joined a competing business.
The ruling builds on long-standing legal principles governing restraint of trade in South Africa. A case dating back to 1984 remains the definitive authority on restraint of trade in South African law.
In Magna Alloys and Research, the Appellate Division held that restraint of trade agreements are valid and enforceable unless they are shown to be unreasonable and contrary to public policy.
The court in that case found that restraint of non-compete clauses are valid unless they are unreasonable and contrary to public policy. It said that the party seeking to get out of the deal must prove that it shouldn’t be enforced – case law that continues to underpin restraint of trade disputes today.
The High Court reaffirmed this position, noting that while restraint of trade agreements are generally valid, their enforcement depends on whether they are reasonable in the circumstances.
“Contracts in restraint of trade are valid. Their enforcement however may be contrary to public policy and unenforceable if… the enforcement thereof is unreasonable,” the court said.
At the centre of the case was whether the employer had a legitimate interest that needed legal protection. The matter unwound after Fidelity Services Group and unit Fidelity ADT took a former employee, Robin Goveia, and Mach 1 Security to court to enforce the agreement.
The urgent application noted that Goveia left Fidelity in September 2025, having held positions in various geographical locations across South Africa.
“For the last 15 months of his employment, he was employed as the second applicant’s regional sales manager in the Western Cape. He appears to have extensive experience in the security industry as he commenced employment with ADT… as far back as 2004,” the judge said.
Mach 1 Security, meanwhile, has carried business for some 20 years in the Fish Hoek and Simonstown area of the Cape Peninsula – the Deep South.
“Until recently its primary business was the provision of guarding and technical services such as the installation and maintenance of alarm systems. It now also offers monitoring and response. It does not provide armed patrols,” the judgment notes.
Shortly after joining Fidelity, Goveia signed a restraint of trade that prohibited him from “being engaged or concerned directly or indirectly in a business similar to that of the second applicant or in a business which competes with the second applicant”.
This agreement, which also prevented him from poaching clients, was set to last three years and be valid across South Africa.
After leaving Fidelity last September, Goveia became a closed corporation member of Mach 1 Security in December, a month after letting Fidelity know that he was now working with Mach 1 Security.
Fidelity’s lawyers acted in February to inform Goveia that he was in breach of his restraint of trade and that he was also apparently “approaching the applicants’ customers and employees in an attempt to elicit their business or employment”. The attorneys wanted his written confirmation that he would stop doing this.
Goveia, however, denied that he was trying to poach customers and said – in a letter to Fidelity’s lawyers – that he didn’t “possess any of the applicants’ confidential information but nevertheless confirmed that he would not disseminate or distribute any such information to any third party”.
Earlier this month, Fidelity became aware that Mach 1 Security was set to launch a monitoring and response service as part of its business. This, it said, was Mach 1 Security using Goveia’s knowledge, experience, and confidential information to “springboard into a new business which competes directly with Fidelity ADT”.
Yet, the judge said that the fact that Goveia used his knowledge and experience while employed with Fidelity was the driver behind Mach 1 Security’s expansion. The court, however, said that this knowledge and experience “is not a protectable interest. It is part of his life skills, and he cannot be interdicted from using them.”
As a result, Fidelity failed in its bid, with the judge also noting that there was no evidence that it would have been negatively affected by Mach 1 Security employing Goveia.
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