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[2022] ZAFSHC 121
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Scibit Scientific Bitware (PTY) Ltd v Potgieter (1784/2021) [2022] ZAFSHC 121 (18 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO. 1784/2021
In
the matter between
SCIBIT
SCIENTIFIC BITWARE (PTY) LTD
APPLICANT
versus
CHRISTIAAN
JOHANNES RUDOLPH POTGIETER
RESPONDENT
JUDGMENT
– APPLICATION FOR LEAVE TO APPEAL
CORAM:
NAIDOO J
HEARD
ON:
7
MARCH 2022
DELIVERED
ON:
18 MAY 2022
[1]
This is an application by the respondent for leave to appeal against
a judgment of this
court, delivered on 2 November 2021, in which the
court granted an order in favour of the applicant. The relief sought
by the applicant
was in essence the enforcement of a restraint of
trade clause in an employment contract entered into between the
parties. Adv J
Els represented the applicant and Adv WA Van Aswegen
represented the respondent.
[2]
The respondent alleges that the application should be granted as the
appeal would
have reasonable prospects of success. He assailed the
judgment on the grounds that the court erred in:
2.1
rejecting the respondent’s version that his written contract of
employment with the applicant was terminated in May 2014;
2.2
rejecting the respondent’s version that it would be
unreasonable and against public policy to enforce the restraint of
trade agreement;
2.3
not refusing to enforce the restraint of trade covenant as
the period
of restraint was unreasonable;
2.4
reading down the period of restraint.
[3]
Both counsel correctly acknowledged that Section 17 of the Superior
Courts Act 10
of 2013 (the Act), now regulates the test to be applied
in an application for leave to appeal. The relevant provisions of
section
17(1) provide as follows:
“
(1) Leave to appeal may
only
be given where the judge or judges
concerned are of the opinion that
(a) (i)
the appeal
would
have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal
should be heard, including conflicting judgments on the matter under
consideration;” (my emphasis and underlining).
[4]
The respondent also submitted that not only would the appeal have
reasonable prospects
of success but in terms of section 17(1)(a)(ii),
there is some other compelling reason why the appeal should be heard.
In this
regard the respondent averred that this matter raises a
substantial point of law, and one which is of profound importance not
only
to the respondent but to the public as well. In substantiation
of this aspect, he alleged that the court did not take into account
all the evidence, as it was obliged to do. The facts and evidence he
referred to was that the respondent took up permanent employment
with
Ocellics Software Solutions (Ocellics) in the Western Cape. The other
“fact” that the respondent referred to is
the email that
the respondent sent to Ocellics informing them that he had arranged a
meeting with the applicant’s Mr Venter
to inform him that the
respondent was leaving the applicant’s employ.
[5]
The respondent alleges that this is support for his version that he
told Venter that
he had obtained employment with Ocellics. This is in
direct contrast to the appellant’s version that the respondent
advised
Venter that he did not find suitable employment in the
Western Cape and hence returned to Bloemfontein. The evidence and
documents
filed by the applicant bears out its version. The
respondent alleges that the court did not consider the legal
substance of the
relationship between the parties after his move to
the Western Cape, and did not apply the Plascon-Evans Rule correctly.
I will
return to these aspects shortly.
[6]
Previously, an applicant was merely required to show that there is a
reasonable possibility
that another court, differently constituted,
would find differently to the court against whose judgment leave to
appeal is sought.
It is clear from section 17(I), set out above, that
the situation is now somewhat different, and an applicant for leave
to appeal
is required to convince the court that there is a
reasonable prospect of success and not merely a possibility of
success. In this
regard, both counsel referred to the matter of
The
Mont Chevaux Trust v Tina Goosen + 18 2014 JDR LCC,
where
Bertelsmann J held that:
“
It
is clear that the threshold for granting leave to appeal against a
judgment of a high court has been raised in the new Act. The
former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different conclusion….The
use of the word ‘would’ in the new statute indicates a
measure of certainty that another court will differ from the
court
whose judgment is sought to be appealed against.”
Mont Chevaux has been
followed in a number of decisions. See
Matoto v Free State
Gambling and Liquor Authority (4629/2015)
[2017] ZAFSHC 80
(8 June
2017)
, The Full Court in
Acting National Director of Public
Prosecutions and Others v Democratic Alliance (19577/2009) [2016]
ZAGPPHC 489 (24 June 2016)
also cited Mont Cheveau with
approval.
[7]
I mention that the court raised with Mr Van Aswegen during oral
argument in this application,
the fact that by the time the appeal is
heard, the 18-month restraint period would have expired, rendering
the appeal academic.
His response was that as they stood at that time
(7 March 2022, when this application was heard), the respondent’s
right
is being restricted. The respondent resigned from the
applicant’s employ on 30 September 2020 and left at the end of
October
2020. The order of this court was that the restraint of trade
clause would operate for a period of 18 months from the date of
termination
of the employment agreement. The restraint period would
have expired on 31 March 2022. Even if the termination date is deemed
to
be 31 October 2020, the restraint period would have lapsed on 30
April 2022.
[8]
The respondent simply glosses over the evidence put up by the
applicant showing that
the respondent knowingly and intentionally
continued as an employee of the applicant, whilst also being in full
time employment
with Ocellics. This latter fact was not known to the
applicant at the time. The evidence of the email correspondence,
worklogs
and the like fled by the applicant show that the respondent
even directed how the applicant should pay his salary while he was in
the Western Cape. Even on his return to Bloemfontein, he did not
disclose to the applicant the he was in full time employment in
the
Western Cape, but said that he was unable to find suitable
employment. It does not assist the respondent to now allege that
the
court was required to consider the legal substance of the
relationship between the parties. This was in fact done and in the
face of the evidence presented, the court found that the respondent’s
version was not candid and could not be accepted, leading
to the
finding that the employment contract remained in force.
Therefore, the point
of law which the respondent alleges merits the
attention of the appeal court, is not supported by the evidence put
up by the respondent.
In any event an appeal will not be heard simply
to make an order which is of academic value.
[9]
For the reasons set out in the judgment, together with what I have
said above, I am
of the view that the appeal in this matter does not
enjoy reasonable prospects of success. Furthermore, it serves little
purpose
to refer a matter for the attention of the appeal court on a
point of law that has already enjoyed judicial attention. The
judgment
deals comprehensively with the issues raised in the other
two grounds of appeal and I do not intend to repeat those here.
[10]
In the circumstances the following order is made:
10.1
The application is dismissed with costs
S
NAIDOO J
On
behalf of the Applicant:
Adv J Els
Instructed
by: Phatshoane
Henney Inc
Cor Markgraaff &
Kellner Streets
Westdene
Bloemfontein
(Ref:
JVDB/SJ/SCI2/0004)
On
behalf of the Respondent:
Adv WA Van Aswegen
Instructed
by:
Peyper Attorneys
101
Olympus Drive
Helicon
Heights
Bloemfontein
(Ref:
S Pienaar)