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[2015] ZAGPJHC 90
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Firework 1475 (Pty) Ltd v Becker and Others (36830/2014) [2015] ZAGPJHC 90 (22 May 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
Case No: 36830/2014
DATE: 22 MAY 2015
In the matter between:
FIREWORK 1475 (PTY)
LTD
.................................................................................................
Applicant
And
BECKER, CLYDE
JOHNATHAN
.............................................................................
First
Respondent
ROUX, RIAAN
JOHANNES
...................................................................................
Second
Respondent
FIRE BRAND SOLUTIONS (PTY)
LTD
.................................................................
Third
Respondent
JUDGMENT
FRANCIS J
1.The applicant had previously brought
an application (the main application) against its former employees -
the first and second
respondents - to interdict and restrain them
from disclosing confidential information to any person including the
third respondent
(their new employer); and from contacting the
applicant’s existing clients or past clients for any business,
regardless of
whether such business is directly in competition with
the applicant until 1 September 2015; and being engaged with the
third respondent
as shareholders,employees or in any other capacity
until 1 September 2015.
2.The main application was opposed by
the respondents. The matter was heard by Semenya AJ who handed a
written judgment on 12 December
2014 in terms of which he found that
it was not necessary to deal with the merits of the matter and
referred it to oral evidence
for determination on whether the first
and second respondents were employed by the applicant; whether their
contracts of employment
stood to be rectified as prayed for by the
applicant; whether they breached their employment agreements;
whether the third respondent
is in unlawful competition with the
applicant and whether the applicant has made out a case for any of
the relief that it is seeking
in the proceedings. Costs were costs
in the cause.
3. On 2 March 2015 the applicant filed
the current application stating that at the hearing of the main
application it would be seeking
an order for the following relief:
3.1 Granting the applicant leave to
file a supplementary affidavit deposed to by Wayne Lawrence Hardie,
which was attached as annexure
“A”;
3.2 Recalling the ruling made by
Semenya AJ in terms of paragraph 18 of the judgement handed down on
12 December 2014 in the main
application, in terms of which the
matter was referred to oral evidence, and directing that the matter
may be heard afresh on the
papers presently before the court.
3.3 Ordering the first, second and the
third respondent to pay costs of this application on an attorney and
client scale, jointly
and severally, the one paying the other to be
absolved;
3.4 Granting the applicant further
and/or alternative relief.
4. The basis for the aforesaid
application was that the first and second respondents had filed
supporting affidavits in an application
that was brought in the
Randburg Magistrate’s court by the deponent’s wife, one
Therese Hardie in terms of the Protection
from Harassment Act 17 of
2011 against their brother, Claude Peter Becker. Claude Peter Becker
had filed an answering affidavit
wherein he stated inter alia that
the first and second respondents were employed by the applicant and
had resigned. He also referred
to the main application.
5. An issue that was referred to oral
evidence by Semenya AJ was about who the first and second
respondents’ employer was.
In the answering affidavit filed in
the Randburg Magistrate’s Court the first and second
respondents seem to have answered
that question namely that they were
employed by the applicant. Their admission, subject to any
explanation to the contrary, appear
to contradict what they had
stated in the main application about who their true employer was.
This was one of the reasons why
the matter was referred to oral
evidence. The referral to oral evidence was correctly made since
there was a genuine dispute of
fact on the papers before Semenya AJ
about who had employed the first and second respondents.
6. At the hearing of this application
counsel for the respondents sought for the matter to be postponed to
afford the first and
second respondents an opportunity to file an
affidavit in response to what is contained in the supplementary
affidavit. This
application was served on the respondents on 19
February 2015. No reason was proffered why no application was made
for leave to
file a response to the supplementary affidavit. However
I am of the view that it will be in the interest of justice that they
should be granted an opportunity to file such affidavits.
7. The applicant in seeking to recall
the order made by Semenya AJ relied on the Constitutional Court
judgment in the matter of
President of the Republic of South Africa
and Others v South African Rugby Football Union and Others
2000 (1)
SA 1
(CC). It is trite that a referral to oral evidence constitutes
a ruling and not an order by a Judge. As such, it is open to the
court to withdraw that ruling and order that it is unnecessary to
hear oral evidence. If a party wants to recall that order, an
application will have to be made for such an order to be recalled.
Ideally such applications should be made to the judge who had
referred the matter to oral evidence. The reasons for doing so are
obvious. A referral to evidence is specific. It deals with
the
evidence that must be heard by the judge who had referred it to
evidence. This is different to the case where a matter has
been
referred to trial. There is a distinct difference between a referral
to trial and a referral to evidence. If the judge is
no longer
available to hear such evidence, the application to recall may be
heard by another judge. The judge hearing that application
is not
bound by the ruling made by an earlier judge referring the matter to
oral evidence.
8. It is not clear on the papers before
me why this application was not brought to the attention of Semenya
AJ when full arguments
were heard by him in the main application. It
is a waste of resources for both parties that another judge should
hear full arguments
that were already heard by another judge.
9. It is clear from the current
application that the applicant wishes to place new facts before a
judge for the order to be recalled.
I do not believe that it is
appropriate for me to deal with the application for a recall at this
stage since I have given the
first and second respondents leave to
file supplementary affidavits. In my view, such an application will
have to be made after
they have filed their supplementary affidavits.
This would also be in line with the relief that the applicant is
seeking in prayer
2 of its notice of motion where it is stated inter
alia that the matter is to be heard on the papers presently before
court. The
respondents’ supplementary affidavits are presently
not before court and it will be inappropriate for me to deal with the
recall application.
10. Part of the application stands to
be granted. An appropriate order as far as costs are concerned is to
reserve the questions
of costs to be determined when the matter is
re-enrolled for a hearing to recall the order made by Semenya AJ.
11. In the circumstances I make the
following order:
11.1 The application for leave to file
a supplementary affidavit by Wayne Lawrence Hardie is granted.
11.2 The first and second respondents
are granted leave to file their supplementary affidavits within five
days of date of this
order in response to Hardie’s
supplementary affidavit.
11.3 The application to recall the
order made by Semenya AJ and for it to be heard afresh on the papers
presently before court is
postponed sine die to be heard with the
main application.
11.4 Costs of this application are
reserved to be determined at the main application.
FRANCIS J
JUDGE OF THE HIGH COURT
FOR APPLICANT : H P WEST INSTRUCTED
BY MALHERBE RIGG & RANWELL INC
FOR RESPONDENTS : G V MEIJERS
INSTRUCTED BY WRIGHT ROSE-INNES INC
DATE OF HEARING : 11 MAY 2015
DATE OF JUDGMENT : 22 MAY 2015