When clients follow a former representative to a new financial services provider, the timing and the number of transfers may raise suspicions. But they do not, without evidence of active conduct by the representative, prove that the clients were solicited. As a recent judgment by High Court in Bloemfontein shows, an employer seeking to enforce a non-solicitation restraint must establish active solicitation by the former employee.
Sasha Lee van den Berg (first respondent) worked for the applicant the case, Alec Levin Insurance and Investment Brokers (Pty) Ltd, from January 2022 until February 2026. Initially employed as an administrative assistant, she concluded a new employment agreement in July 2025 when she became a representative in its short-term insurance advisory division. The agreement contained a restraint of trade.
She resigned on 29 January 2026 and began working for Williams Maree Finansiële Adviseurs (second respondent) on 28 February. A number of clients whose portfolios she had managed subsequently transferred their business to the new FSP, where she continued to service them.
Alec Levin initially brought an urgent application, which was struck from the urgent roll for lack of urgency and later heard in the ordinary course. It sought a final interdict preventing Van den Berg from soliciting or canvassing business from its clients, rendering services or advice to them, or otherwise doing business with them.
Solicitation requires active conduct
The brokerage relied primarily on the timing and number of the transfers. However, the extent of the client portfolios Van den Berg had managed while employed by the brokerage was not placed before the Court.
The brokerage produced no evidence that it had contacted the clients to establish how their decisions arose, and provided no affidavits, emails, messages, or call records showing that Van den Berg had approached or encouraged them to transfer their business.
Van den Berg denied soliciting the clients. She relied on a farewell email informing them that a suitable and competent replacement had been appointed to manage their affairs. Her evidence also included broker declarations recording the clients’ independent decisions to move and confirmatory affidavits in which the named clients said they had approached her and had not been solicited. Several were relatives or close personal connections.
She also relied on the brokerage’s account of telephone conversations indicating that certain clients had moved because they were satisfied with the service she had previously provided. In addition, some clients had multiple business interests, which did not necessarily represent separate client relationships.
Drawing on earlier decisions, the Court said solicitation is active by nature. It referred to authority defining solicitation as approaching another person with a request or plea and to the proposition that there is no such thing as “passive solicitation”. A transfer may therefore amount to solicitation if the former employee encouraged, induced, facilitated, or otherwise actively pursued the client’s move. Who initiated contact is relevant but not decisive.
There was a genuine and material dispute of fact about what had occurred. Because Van den Berg’s version was supported by direct evidence from the clients and could not be rejected as false or clearly untenable, the brokerage failed to prove solicitation in proceedings for final relief.
No finding on the restraint’s enforceability
That finding determined how far the Court needed to take the restraint-of-trade enquiry.
An employer seeking to enforce a restraint must establish the restraint provisions and prove a breach. If the employer establishes a breach, the employee then bears the onus of showing that the restraint is unreasonable, unlawful, or contrary to public policy.
The Court accepted, as an intermediate step in its analysis, that customer connections may constitute a protectable proprietary interest, particularly in financial services, where goodwill and client relationships are important commercial assets. That did not establish a breach. Because the solicitation alleged in the founding affidavit had not been established, the Court did not proceed to determine whether the restraint was reasonable and enforceable.
The judgment therefore neither upheld nor invalidated the broader restrictions in Van den Berg’s agreement.
Why the Court distinguished Adviceworx
The brokerage argued that an earlier judgment supported an inference of indirect solicitation despite the clients having made the initial approaches.
In Adviceworx (Pty) Ltd and Another v Roux and Others, the Labour Court confirmed that solicitation is not necessarily excluded because a client made the initial approach. That case involved several employees leaving for a direct competitor, substantial client movement, evidence of engagement from which indirect solicitation could be inferred, and a restraint that expressly prohibited indirect solicitation.
In Van den Berg’s case, there was no comparable evidence of a group of employees departing for a competitor or of conduct directed at procuring the brokerage’s clients. The restraint also did not contain the same express prohibition against indirect solicitation. Van den Berg, moreover, produced direct evidence from the clients that they had approached her independently. Viewed together, the circumstances did not support the inference advanced by the brokerage.
Broader relief was not supported by the founding case
The contractual provisions addressed not only solicitation and canvassing but also rendering services or advice to, and doing business with, the brokerage’s clients, making them broader than the case advanced in the founding affidavit.
The Court emphasised that the founding affidavit had advanced the alleged breach “consistently and exclusively” as solicitation. The brokerage had expressly disavowed an attempt to prevent Van den Berg from working for a competitor and said its case was directed at stopping her from soliciting clients to terminate their relationships with it. It was bound by the case made in its founding papers.
Although the amended notice of motion sought to prohibit broader categories of conduct, the brokerage had not pleaded a separate case that merely servicing or doing business with independently departing clients breached the restraint. Because affidavits in motion proceedings serve as both the pleadings and the evidence, the broader amended relief could not substitute for an allegation of breach that was absent from the founding affidavit.
The Court did not decide whether a properly pleaded claim based on those additional restrictions would have succeeded. That would have required consideration of the contractual provisions, the supporting evidence, and whether the restrictions were reasonable and enforceable.
Damages formula provided an alternative remedy
The employment agreement provided for a source or reference fee equal to three times the annual commission the brokerage earned from a client who terminated an insurance policy, investment, or business relationship with it after the employee breached the restraint.
In a letter dated 12 March 2026, the brokerage invoked the provision and said it would provide Van den Berg with a schedule of the amounts payable.
The Court considered this issue separately from its finding on solicitation. Even assuming, for the purposes of argument, that Van den Berg’s servicing of the former clients constituted a breach, the brokerage had not established that damages would be an inadequate remedy.
The affected clients were identifiable, the brokerage should have known the annual commission earned from them, and the contract supplied a fixed multiplier for calculating the amounts claimable. The Court therefore found that the compensation was ascertainable and that the brokerage had not established the absence of an adequate alternative remedy, one of the requirements for a final interdict.
The Court dismissed the application and ordered the brokerage to pay Van den Berg’s costs.
Practical implications for employers
Luway Mongie, a partner at Bowmans, and Bongani Mtotoba, a senior associate at the same law firm, say the judgment offers important practical guidance for employers seeking to protect customer connections through non-solicitation restraint provisions.
They advise employers to obtain evidence of active conduct before seeking to enforce a non-solicitation restraint. Relevant material may include emails, WhatsApp messages, call records, client communications, and affidavits showing how contact began and whether the former employee encouraged or facilitated a transfer.
Second, 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, they say.
