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[2022] ZAECQBHC 16
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Bronscor CC v Allin and Another; Allin v Bronscor CC (695/2021;852/2021) [2022] ZAECQBHC 16 (26 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, GQEBERHA
REPORTABLE
/ NOT REPORTABLE
Case
No: 695/2021
In
the matter between:
BRONSCOR
CC
Applicant
and
KERRY
ALLIN
First
Respondent
STEWARTS
AND LLOYDS PROJECTS (PTY) LTD
Second
Respondent
Case
No: 852/2021
In
the matter between:
KERRY
ALLIN
Applicant
and
BRONSCOR
CC
Respondent
JUDGMENT
DA
SILVA AJ:
[1]
This
judgment concerns itself with the issue of costs as the relief sought
under case no. 695/2021 and case no. 852/2021 is now
academic. It is
trite law that in matters that have since become academic, the issue
of costs is determined by having regard to
the merits of the
matter.
[1]
[2]
Even
though the consideration of costs does not always necessitate a full
enquiry into the merits in all cases, a judgment
for costs involves a
decision on the merits and a claim for costs cannot be viewed in
isolation.
[2]
Ordinarily, I
would have had to apply my mind to the merits of the application
which applicants instituted to see if they would
have been successful
in such application.
[3]
[3]
In view of the
trite legal principle aforementioned, I shall now proceed to deal
with the facts of the two applications that served
before me.
[4]
Bronscor CC
(the applicant under case no. 695/2021 (“
the
main application
”),
seeks to enforce a restraint of trade agreement against the first
respondent, Kerry Allin (hereinafter referred to as
“
Allin
”)
and the second respondent, Stewarts and Lloyd Projects (Pty) Ltd
(hereinafter referred to as “
the
Projects
”).
[5]
Bronscor CC
contended that Allin and it had concluded a restraint of trade
agreement for a period of one (1) year. The restraint
of trade did
not mention the geographical area to which it was applicable.
[6]
Allin opposed
the main application contending, amongst others, that Bronscor CC is
not her employer more particularly that the restraint
of trade
agreement sought to be enforced was entered into between Bronscor
Group and her. As such, Bronscor CC had not established
that it had
locus
standi
.
Both Allin and the Projects also contended that Allin was employed by
Stewarts and Lloyds Holdings (Pty) Ltd (hereinafter referred
to as
“
the
Holdings
”).
As such the Holdings was joined as a party to the proceedings.
[7]
In reply to
the contention relating to
locus
standi
,
Bronscor CC averred that Bronscor Group comprised of three legal
entities, namely Bronscor CC, Bronscor (Pty) Ltd and the municipal
tendering division which falls under Bronscor (Pty) Ltd. Bronscor CC,
in reply, also averred that Allin was paid by Bronscor CC.
[8]
Allin also
opposed the application on the basis that the restraint of trade
agreement was vague and unreasonable.
[9]
Allin, in
turn, launched an application (case no. 852/2021) (hereinafter
referred to as “
the
second application
”)
against Bronscor CC seeking, in Part A to stay the main application
pending the finalization of Part B. In Part B, Allin
sought to set
aside the restraint of trade on the basis of vagueness and
unreasonableness. Allin also averred in the second application
that
Bronscor CC was not a party to the restraint of trade agreement.
[10]
The second
application was, in substance, more of a counter application, though
not a conditional one.
[11]
Having
presented the above history, I now turn to deal with the merits of
each of the applications.
[12]
I am of the
view that Bronscor CC has failed to establish its
locus
standi
in
the main application for the reason that it has not satisfactorily
proved that it was a party to the restraint of trade agreement.
Sight
should not be lost of the fact that the agreement was between
Bronscor Group and Allin. Having made this finding, I deem
that it is
unnecessary for me to deal with the merits of the enforceability of
the restraint of trade agreement at the instance
of Bronscor CC.
[13]
Thus, regard
being had to the above, the main application falls to be dismissed.
[14]
What of the
second application? In view thereof that the second application was
against Bronscor CC, whom Allin alleged was not
party to the
restraint of trade agreement, it stands to reason that Allin, too,
has failed to establish that Bronscor CC has
locus
standi
in
the second application, especially if regard is had to the fact that
Allin alleges that the restraint of trade agreement as
between her
and Bronscor Group. As such, the second application also falls to be
dismissed.
[15]
What of the
issue of costs of the respective relief sought by the parties?
[16]
Regard being
had to the above, namely that both applications would have fallen to
be dismissed for lack of
locus
standi
, I
am of the view that each party should pay their own costs.
[17]
I thus make
the following order:
(1)
Each party is
directed to pay their own costs in respect of the applications under
case no. 695/2021 and 852/2021.
AM
DA SILVA
Acting
Judge of the High Court
Appearances
:
On
behalf of the Applicant:
Adv NJ Mullins SC
Instructed
by:
GC Clark and Associates
On
behalf of the Respondent: Adv CD Roux
Instructed
by:
RC Christie Incorporated
c/o
Jacques Du Preez Attorneys
Date
Heard:
21 July 2022
Date
Delivered:
26 July 2022
[1]
Nxumalo
and Another v Mavundla and Another
2000
(4) SA 349 (D).
[2]
See
Cats
v Cats
1959
(4) SA 375
(C)
at
379H.
[3]
See
First
National Bank of G
Southern
Africa Ltd t/a Wesbank v First East Cape Financing (Pty) Ltd
1999
(4) SA 1073
(SE)
at
1079I – J.