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[2022] ZAMPMBHC 83
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Brits and Another v AQS Liquid Transfer (Pty) Ltd (Leave to Appeal) (3128/2021) [2022] ZAMPMBHC 83 (27 April 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
CASE
NUMBER: 3128/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
27/04/2022
In
the matter between:-
BRITS,
DONOVAN
First
Applicant
DB
FLUID DYNAMIX (PTY) LTD
Second Applicant
and
AQS
LIQUID TRANSFER (PTY) LTD
Respondent
In
re:
AQS
LIQUID TRANSFER (PTY) LTD
Applicant
and
BRITS,
DONOVAN
First
Respondent
DB
FLUID DYNAMIX (PTY) LTD
Second
Respondent
COETZEE,
MARCO
Third
Respondent
JUDGMENT
– LEAVE TO APPEAL
GREYLING-COETZER
AJ
[1]
The applicants were unsuccessful in
warding off an urgent application by the respondent to declare that
the first applicant,
DONOVAN BRITS
(herein after “Brits”)
and the second applicant,
DB FLUID
DYNAMIX (PTY) LTD
(hereinafter “DB
Fluid”) are in contempt of court for their failure to comply
with the order by Roelofse AJ under case
number 2450/2021 granted, on
21 July 2021 (“the Roelofse order”).
[2]
Brits and DB Fluid were further
interdicted in terms of
Section 24
of the
Copyright Act 98 of 1978
from using, distributing and/or publishing the Domin8r Pumps brochure
directly or indirectly. The third respondent
MARCO
COETZEE
(hereinafter “Coetzee”)
was interdicted and restrained for the period 3 March 2021 to 3 March
2022 from either directly
or indirectly selling, repairing or
maintaining any pumps of AQS/MC customers specified in the Roelofse
order.
[3]
This court held that Brits and DB Fluid
acted in contempt of the Roelofse order and failed to discharge their
evidentiary burden.
It was also held that they made unlawful use of
the AQS copyright protected brochure when utilizing it as
the Domin8r Pump brochure. In respect of
costs and in exercising a judicial discretion, it was held that the
costs order, jointly
and severally on an attorney- and-client scale
ordered against Brits and DB Fluid, was justified in the
circumstances.
[4]
Brits and DB Fluid (collectively “the
applicants”) now apply for leave to appeal against the
declaration of contempt,
the interdict in terms of
Section 24
of the
Copyright Act 98 of 1978
and the costs order awarded against them.
They seek leave to appeal to the Supreme Court of Appeal,
alternatively the Full Bench
of this Division. The application for
leave to appeal was served and filed on 19 October 2022, shortly
after the order was granted
and simultaneously with a request for
reasons. The application for leave to appeal was filed in terms of
Rule 49(1)(b).
Pursuant to the reasons being provided to all the
parties, Brits and DB Fluid filed supplementary grounds for leave to
appeal on
2 March 2022. The applicants supplemented grounds
ostensibly also filed in terms of
Rule 49(1)(b)
, but 31 court days
after the reasons for the order was made available to the parties.
[5]
The facts of this case are set out in
the full reasons and need not be repeated herein.
[6]
Section 17
of the
Superior Courts Act 10
of 2013
regulates an application for leave to appeal from a Division
of the High Court, and reads as follows:-
“
17
LEAVE TO APPEAL
(1)
Leave to appeal my 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.
(b)
The decisions sought on appeal
does not fall within the ambit of
Section 16(2)(a)
and
(c)
where the decision sought to be
appealed does not dispose of all the issues in the case, the appeal
would lead to a just and prompt
resolution of the real issues between
the parties.
”
[7]
From a cursory reading of the notice of
application for leave to appeal it appears that the applicants
employed the old test (namely,
that there is a reasonable prospect
that another court may come to a different finding). The correct test
was relied on in the
applicants heads of argument. The standard of
reasonable prospects of success have been developed by our courts
over time. It is
now specifically set out as per paragraph 7 above.
[8]
In the current form
Section 17
provides
that leave to appeal may be granted only where the judge is of the
opinion that the appeal
would
have a reasonable prospect of
success, or if there is some other compelling reason why the appeal
should be heard. This is a more
stringent approach than before, and
so the bar to qualify for leave to appeal has been raised. The word
“
only
”
means that leave to appeal may be granted in the stated circumstances
only. What this means practically is that a greater
measure of
certainty that a different outcome would be reached, is required.
[9]
The
court in
Mgezeni
Gasbat Nxumalo v The National Bargaining Council for the Chemical
Industry (NBCCI) and Others
[1]
conveniently summarizes the approach to an application for leave to
appeal, albeit in a labour law context, as follows:-
“
The
traditional formulation of the test that is applicable in an
application such as the present requires the court to determine
whether there is a reasonable prospect that another court may come to
a different conclusion to that reached in the judgment that
is sought
to be taken on appeal. As the respondents observe, the use of the
word ‘would’ in
s 17(1)(a)(i)
are indicative of a raising
of the threshold since previously, all that was required for the
applicant to demonstrate was that
there was a reasonable prospect
that another court might come to a different conclusion (see Daantjie
Community and Others v Crocodile
Valley Citrus Company (Pty) Ltd and
Another (75/2008)
[2015] ZALCC 7
(28 July 2015)) Further, this is not
a test to be applied lightly – the Labour Appeal Court has
recently had occasion to
observe that this court ought to be cautious
when leave to appeal is granted, as should the Labour Appeal Court
when petitions
are granted. The statutory imperative of the
expeditious resolution of labour disputes necessarily requires that
appeals be limited
to those matters in which there is a reasonable
prospect that the factual matrix could receive a different treatment
or where there
is some legitimate dispute on the law (see the
judgment by Davis, JA in Martin and East (Pty) Ltd v NUM (2014) 35
ILJ 2399 (LAC),
and also Kruger v
S
2014
(1) SACR 369
(SCA) and the
ruling by Steenkamp, J in Oasys Innovation (Pty) Ltd v Henning and
Another (C) 536/15 (6 November 2015) and also
Seatlholo and Others v
Chemical, Energy, Paper, Printing, Wood and Allied Workers Union and
Others
[2]
)
”.
[10]
In the application for leave to appeal
the grounds were in summation that:-
(a)
the court erred in declaring Brits and
DB Fluid to be in contempt, and should have found that all the
evidence put forward by the
respondent,
AQS
LIQUID TRANSFER (PTY) LTD
(hereinafter
“AQS”), was hearsay and that AQS failed to discharge the
statutory
onus
with
regard to the use of hearsay evidence;
(b)
the court erred in awarding a punitive
cost order against the applicants jointly and severally, and should
have dismissed the application
and have awarded costs against AQS;
and
(c)
the court erred in granting the
interdict in terms of
Section 24
of the
Copyright Act 98 of 1978
, and
should have found that there was no evidence which connected the
applicants to the Domin8r Pumps and/or that they had any
interest in
Domin8r Pumps and/or published the brochure complained of.
[11]
The belated supplementary grounds for
appeal, appears to have been served after service of the respondent’
heads of argument,
amplified the grounds with some specificity.
Therein it is
inter alia
relied
on that:-
(a)
the court erred in finding that:-
(i)
AQS was entitled to rely on hearsay
evidence;
(ii)
AQS complied with the requirements set
out in Section
3(1)(c)
of the
Law of Evidence Amendment Act 45 of 1988
; and
(iii)
the
hearsay
evidence
should
accordingly
be
admitted
in
the
interest of justice;
(b)
AQS failed to adequately explain its
reliance on the hearsay evidence and had therefore not complied with
the requirements of the
Law of Evidence Amendment Act 45 of 1988;
(c)
the court erred in finding that the
affidavit by the applicants were replete with bold denials, and that
Brits did not deny that
he does not compete with AQS;
(d)
the court erred in finding that there
would have been no reason for Brits to exercise a change of
directorship of the entities,
and that his reasons for doing so are
unconvincing; and
(e)
the court erred in finding that Brits
attempted to conceal his involvement in activities and hid behind
various entities, amongst
others.
[12]
It
was argued on behalf of AQS that the notice of application for leave
to appeal was fatally defective and the application should
be struck
from the roll. AQS contended that the initial application for leave
to appeal contained only overly broadly stated grounds,
which render,
on the strength of matters such
Songono
v Minister of Law and Order
[3]
and
the authorities referenced therein, to be fatally defective for
non-compliance with Rule 49(1)(b). In substantiation it was
argued
that the
mala
fides
of
Brits and DB Fluid is evident in the lapse of time since the
application for leave to appeal was filed, as at expiry of the 15-day
period provided for in Rule 49(1)(b) no supplementary grounds for
appeal had been filed, nor had Brits and DB Fluid pressed to
have
this application heard at the earliest opportunity that the court
could accommodate.
[13]
The aforesaid argument should be
considered in light of the applicable factual position being that the
applicants did supplement
their grounds for appeal, however it was
done after the lapse of the time period allowed therefor. I am not
convinced that the
matter should be struck from the roll. But it
raises the question whether the belated supplementary grounds are
before court, absent
an application for condonation. The belated
delivery of the supplementary grounds was not raised by the
respondent. As such and
absent a complaint of prejudice these
supplementary grounds are considered.
[14]
It is contended on behalf of the
applicants that the totality of the evidence against them were
hearsay, and that AQS had failed
to discharge its statutory
onus
with regard to the use of hearsay
evidence and AQS failed to provide an adequate explanation for its
reliance on the hearsay evidence.
The applicant does not state in
what respect the statutory onus was not discharged.
[15]
AQS dealt with the reasons why it sought
admission of the hearsay evidence, which reasons were canvassed in
the reasons for the
order. They were considered and found to be
sufficient. But this was not considered in a forlorn manner. The
reasons were considered
in conjunction with the statutory provisions
of Section 3(1)(c) and on the strength of the decision of
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma and Others
2021 (11)
BCLR 1263
(CC) par [20] to [23] (“Zuma Judgment”). There
in it was held that hearsay evidence may be admitted into evidence in
contempt proceedings (such as the application which was before
court), provided that it meets the requirements of
Section 3
of the
Law of Evidence Amendment Act 45 of 1988
.
[16]
In terms of
Section 3(1)(c)
a court has
to have regard to:
16.1
the nature of the proceedings,
16.2
the nature of the evidence,
16.3
the purpose of which the evidence is
tendered,
16.4
the probative value of the evidence,
16.5
the reasons why the evidence is not
given by the person upon whose credibility the probative value of
such evidence depends,
16.6
any prejudice to a party which the
admission of such evidence might entail and
16.7
any other factor which should, in the
opinion of the court, be taken into account.
[17]
Should the court having considered
aforesaid be of the opinion that such evidence should be admitted in
the interest of justice
is shall be so admitted. In evaluating the
evidence relied on by the respondent amplified by the fact that the
matter was found
brought and found to be urgent, I remain of the view
that the hearsay evidence tendered ought to have been admitted in the
interest
of justice.
[18]
It was argued on behalf of the
applicants that despite the discretionary nature of the inquiry in
respect of subsection (c), the
factors therein are joined by the
conjunctive “
and
”.
But any decision which does not specifically take into account the 6
other factors set out in that subsection, will not
constitute a
proper application of its provisions.
[19]
All
of the above was present and considered before the finding that the
hearsay evidence as tendered by AQS ought to be admitted.
Neither of
the applicants raised any real and material prejudice in respect of
the hearsay evidence. Furthermore, the applicants
had the opportunity
to fully consider and answer thereto. The urgent application was
served on both the applicants on
27
August
2021.
The
applicants
filed
their
answering
affidavit
approximately a month later.
[4]
In addition, the applicants filed a further affidavit, wherein they
enjoyed a further opportunity to raise prejudice if any and
answer to
the allegation they regard as hearsay. After careful consideration, I
am not persuaded that this court exercised is discretion
incorrectly
when it admitted the hearsay evidence.
[20]
The applicant bemoans the finding that
the applicants’ answering affidavit was replete with bold
denials. The applicants have
throughout their answering affidavit
utilized the phrase that “
the
contents hereof are denied for those reasons stated in this answering
affidavit
”. This phrase has
been employed to answer to various individual and grouped material
factual allegations as alleged by AQS.
It was argued by the
applicants that such a statement is enough to answer to specific
allegations. I cannot agree with this contention.
As much as it has
become customary to utilize cross-referencing or referrals, where
same is done, it has to be done with specificity
and be preceded by a
statement of the material facts a respondent relies on in answer to
the applicant’s allegations.
[21]
For example, in answer to the
allegations by AQS that Brits has made an identical copy of AQS’
brochure by substituting the
name with the name Domin8r Pumps. That
AQS came into possession of said brochure from Barberton Mines, which
is a customer with
whom Brits and DB Fluid dealt with on AQS’
behalf prior to the termination of the agreement between the parties.
That Barberton
Mine received the Domin8r Pump brochure from Brits.
To this the applicant’s answered
that “(t)
he contents hereof are
denied for those reasons stated in this answering affidavit
.”
Further that there is no reference to Brits and/or the DB Fluid on
the brochure. There would be no reason for DB Fluid
and/or Brits to
produce any brochure, as Brits and/or DB Fluid does not trade in such
products.
[22]
Aforementioned
leaves
the
court
to
guess
what
portion
of
the
answering affidavit should be considered
in as answer to the various factual allegations made by AQS. Even
scrutinizing the introductory
paragraphs (where you would ordinarily
expect the version of a respondent such as the applicants’
version to be set out)
preceding the
ad
seriatim
response do not deal with
these allegations.
[23]
On Brits’ own version, he was a
director of a company which holds the trademark for Domin8r Pumps,
which directorship he divested
himself of shortly after the Roelofse
order, and which is hence forth ostensibly run by his father.
Considering this the allegations
highlighted above were to be dealt
with fully and frankly in order to be regarded as seriously disputed.
Absent this, it is
a
bold denial. It was inter alia expected of the applicants to explain
how Barberton Mine could come to be in possession of a pump
brochure
displaying the name and trademark of Domin8r pumps, a trademark
belonging to a company wherein Brits was a director till
after the
Roelofse order and which is now run by his father.
[24]
Aforementioned is but one of the
examples of the bare denials employed by the applicants. I am not
persuaded that another court
would come to a different conclusion.
[25]
It is also contended on behalf of the
applicants that this court erred in interdicting the applicants in
terms of
Section 24
of the
Copyright Act 98 of 1978
, as there was no
evidence linking the applicants to the Domin8r Brochure. The
documentary evidence showed that the brochures of
Domin8r Pumps and
AQS were identical. A copy of the Domin8r brochure was provided to
AQS by its customer (Barberton Mines). It
was alleged and admitted by
Brits that he registered a domain with the name “
D
Pumps
”, but failed to answer
to the allegation that D Pumps stands for Domin8r Pumps.
[26]
It is common cause that Domin8r was a
registered trademark which is owned by Amanzi Solutions. Amanzi
Solutions is one of the companies
from which Brits resigned as
director shortly after the granting of the Roelofse order. Brits was
replaced
as
director
of
Amanzi
Solutions
by
his
elderly
father.
So
too, Paul Maritz is a director of Amanzi
Solutions, who owns the Domin8r registered trademark (on Brits’
version). Notwithstanding
Brits merely denies that Paul Maritz has
any connection to either of the applicants and only requested DB
Fluid to store items
for him.
[27]
On a conspectus of the evidence, the
applicants are sufficiently linked to Domin8r Pumps. I am unpersuaded
that an appeal on this
ground would have a reasonable prospect of
success.
[28]
The cost order as made against Brits and
DB Fluid is that of attorney-and- client. This cost order was made on
the strength of the
judicial discretion, and relying upon the
principles laid down in the
Zuma
judgment (
supra
).
Absent any specific indication as to how and to which extent such
discretion was not judicially exercised.
[29]
An
award of costs is in the discretion of the court, and such
discretion, as we all know, has to be exercised judicially.
[5]
It
is further a trite principle that costs follow the event.
[6]
[30]
It
Hotz
and Others v University of Cape Town
[7]
it
was stated by the Constitutional Court that where an appeal court
considers interfering with a cost order of the High Court,
it stands
to follow a cautionary approach. This being so, as a court of appeal
may have a different view on whether the cost award
was just and
equitable. “
However,
it shall be careful not to substitute its own view for that of the
High Court because it may, in certain circumstances
be inappropriate
to interfere with the High Court’s exercise of discretion
.”
[8]
[31]
Having regard to the nature of the
matter and specifically that set out above, I am not persuaded that
another court will find that
this court erred in ruling on costs as
it did. The attorney-client cost order in the circumstances of this
case was
within
the
boundaries
of
this
court’s
discretion
and
justified
by
the
applicants conduct and findings made.
[32]
It was argued that there is no evidence
that Brits acted
mala fide
or
unlawful in resigning as director of the various companies, and that
Brits was mindful of the Roelofse order and therefore divested
himself of all connections to all the entities referred to by AQS.
Considering the evidence before court, it only begs one question:
Why, if Brits never competed with AQS, nor intended to do so, and
considered himself bound by the Roelofse order, would Brits divest
himself from the various directorships? It makes no sense. The
explanation that Brits was mindful of the Roelofse order and that
is
the reason why he distanced himself, is simply not plausible.
[33]
It is argued that this court erred in
finding that Brits attempted to conceal his involvement and
activities in selling pumps like
the ones of AQS, in breach of the
Roelofse order, as there is no evidence to support such a finding. On
a conspectus of the evidence
as supplemented by the hearsay evidence,
and Brits’ entanglement in the web constructed for the purpose
of selling the pumps
which were purchased, the finding is
justifiable.
[34]
The finding of this court that the
applicants had failed to provide specificity in respect of
shareholding is challenged. It is
argued that the applicants fully
disclosed all their business dealings, including shareholding and
directorships of Brits.
It
appears that the aforesaid contention is misconstrued. The reasons
for the judgment fully deal with the fact that Brits failed
to
produce any documents in substantiation for the allegation in respect
of his shareholding. It would not have been cumbersome
for the Brits
to provide the shareholders register in proving that which he
alleges. The issue of the change of directorships and
shareholding is
central in the matter, and as such it is required of the applicants
to fully, effectively and adequately deal with
such an allegation.
[35]
In the circumstances the applicants have
failed to satisfy the requisite test for leave to appeal to be
granted.
ORDER
1.
The the application for leave to appeal is dismissed with costs.
GREYLING-COETZER
AJ
DATE
OF HEARING:
7
March 2022
DATE
OF JUDGMENT:
27
April 2022
FOR
THE APPLICANTS:
N Riley
Instructed
by
Bolus Attorneys
c/o
Tollig Attorneys
E-mail:
marthinus@tollig.co.za
FOR
THE RESPONDENT: A
Bishop
Instructed
by Dewey
Hertzberg Levy Inc
c/o
Kruger and Partners
E-mail:
yasteyn@knprok.co.za
[1]
JR 1170/2013 (unreported)
[2]
2016 37 ILJ 1485 (LC)
[3]
1996 (4) SA 384 (E
[4]
The exact date of filing being unknown, as no filing sheet forms
part of the records. However, although the answering affidavit
was
not dated, the commissioner of oath’s stamp indicates it to
have been deposed to on 20 September 2021.
[5]
Ferreira v Levin and Others; Vryenhoek and Others v Powell N.O. and
Others 1996 (2) SA 621 (CC)
[6]
Khumalo and Another v Twin City Developers (Pty) Ltd and Others
[2017] ZASCA 143
[7]
2018 (1) SA 369 (CC)
[8]
2018 (1) SA 369
(CC) at par [28]