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2023
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[2023] ZAFSHC 328
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R700 Truck Stop (Pty) Ltd v Smit and Others (922/2023) [2023] ZAFSHC 328 (18 August 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case
number: 922/2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
R700
TRUCK STOP (PTY) LTD
Applicant
and
PIETER
IGNATIUS SMIT
First
Respondent
MARNU
SMIT
Second
Respondent
MELINDA
SMIT
Third
Respondent
ESTEAN
SMIT
Fourth
Respondent
HOOPSTAD
LANDBOUDIENSTE (PTY) LTD
Fifth
Respondent
CORAM:
LOUBSER, J
HEARD
ON:
11 AUGUST 2023
JUDGEMENT
BY:
LOUBSER, J
DELIVERED
ON:
18 AUGUST
2023
[1]
This is an application by the respondents for leave to appeal against
the judgement of this court
confirming the
rule nisi
issued by
Bomela, AJ with costs on an attorney and client scale. The facts and
circumstances of the matter appear from the judgement,
and will not
be repeated herein.
[2]
The application for leave is based on the
usual test, namely that there is a reasonable prospect that
another
court would come to a different conclusion. This means that leave to
appeal must not be granted unless there truly is a
reasonable
prospect of success.
[1]
[3]
On behalf of the respondents it was contended that the court has
erred in several respects in
coming to its conclusion. Even if it
could be assumed, for the moment, that there is merit in some of
these contentions, then I
am not persuaded that there is truly a
reasonable prospect that another court would come to a different
conclusion based on those
contentions. In my view, a court of appeal
would rather agree with the main findings made by this court in its
judgement as far
as material issues are concerned.
[4]
For instance, this court found that there was a multiplicity of
factual disputes between the parties
on the papers before the court,
and that it would therefore follow the guidelines laid down in
Plascon-Evans to determine whether
it could find in favour of the
applicant. I do not think that this approach can be faulted.
[5]
Further, this court found that it was not in dispute that Pienaar in
fact paid an amount of money
for the clientele when he purchased the
applicant company. It was therefore found that it would serve no
purpose to refer for oral
evidence the question whether the
R500 000.00 paid by Pienaar was for the clientele list or not.
The court also found that
the information sought by Pienaar, is still
in possession of the first respondent because he conceded that he had
taken the external
device with that information with him when he left
the applicant, and because it cannot be accepted that the information
on the
device were transferred to the applicant thereafter on 7
February 2023.
[6]
This court further found that the first respondent was not a
de
facto
director nor a shareholder of the applicant. Pienaar
therefore had the necessary
locus standi
to bring the
application on behalf of the applicant. The court concluded by
finding that the applicant is the owner of the clientele
list and the
information relating to each client, while a final order will not
prevent the respondents from trading freely. It
will only prevent
them from using the information on the clientele list in doing so. I
do not think that another court will conclude
differently on all
these findings.
[7]
It was strongly argued on behalf of the respondents that another
court will not condone the final
nature of the order made by Bomela,
AJ in the sense that it will find application
ad infinitum
.
Due to the fact that the order only has reference to a limited number
of clients and their information, I am not persuaded that
another
court would come to a different conclusion, having regard to all the
circumstances of the matter.
[8]
I therefore make the following order:
1.
The application for leave to appeal is
dismissed with costs.
P. J. LOUBSER, J
For
the applicants for leave:
Adv.
S. Grobler SC
Instructed
by:
Kruger
Venter Attorneys
Bloemfontein
For
the applicant:
Adv.
M. C. M. Pieterse
Instructed
by:
Pieter
Skein Attorneys
Bloemfontein
/roosthuizen
[1]
MEC
for Health, Eastern Cape v Mkhitha and another
[2016] ZASCA 176
par.
16