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[2022] ZANCHC 16
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O' Donovan v Kuruman Radiators CC in re: Kuruman Radiators CC v O' Donovan and Another (1283/2021) [2022] ZANCHC 16 (25 February 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No: 1283/2021
Heard: 31/01/2022
Delivered: 25/02/2022
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In the matter between:
DEBBIE
O’
DONOVAN
Applicant
and
KURUMAN
RADIATORS CC
Respondent
In re:
KURUMAN
RADIATORS CC
Applicant
and
DEBBIE
O’
DONOVAN
1
st
Respondent
BSSC
RADIATORS (PTY)
LTD
2
nd
Respondent
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
Mamosebo J
[1]
On 17 September 2021 I confirmed the interim order (rule
nisi)
issued out of this Court by Lever J on 29 June 2021 by:
1.1
Interdicting and restraining Ms O’Donovan for a period of 12
(twelve) months from 01 June 2021, and
within a radius of 200km from
Kuruman, to accept and hold any employment with any person, firm,
group, partnership or association,
including the second respondent
(BSSC Radiators (Pty) Ltd) which competes with the business of the
applicant.
1.2
Interdicting and prohibiting Ms O’Donovan from performing any
of her duties in terms of her employment
with BSSC Radiators during
the period and within the area as stated in the preceding paragraph.
1.3
Interdicting and prohibiting Ms O’Donovan from directly or
indirectly disclosing any confidential information
with respect to
the business of the applicant, to any other person or business,
including BSSC Radiators.
1.4
Ordering both Ms O’Donovan and BSSC Radiators to pay the costs
of the application, including costs of
29 June 2021, jointly and
severally the one paying the other to be absolved.
[2]
Ms O’Donovan is now seeking leave to appeal to the Full Bench
of this Division
against the whole of my judgment and orders. Kuruman
Radiators, did not oppose the application but filed a Notice to Abide
the
decision.
[3]
The application is brought in terms of s 17(1)(a) of the Superior
Courts Act
[1]
Counsel submitted
in argument that the appeal would have reasonable prospects of
success. It is trite, following the
Mont
Chevaux Trust (IT2012/28) v Tina Goosen and 18 Others
[2]
confirmed by the Supreme Court of Appeal in
MEC
for Health, Eastern Cape v Mkhitha
[3]
that
the bar has been raised and the word ‘would’ indicates a
measure of certainty that another court will differ from
the court
whose judgment is sought to be appealed against.
[4]
The grounds upon which Ms O’Donovan relies as set out in the
notice of appeal
in seeking leave are that I erred in:
4.1
Failing to properly apply the test set out in Plascon-Evans in regard
to disputes of fact which arose in the
papers:
4.2
Following the approach set out by Wallis AJ in the matter of
Den
Braven SA (Pty) Ltd v Pillay & Another
2008 (6) SA 229
(D)
regarding the court being permitted to insert what it considers to be
reasonable terms into an agreement rather than the approach
set out
by the Supreme Court of Appeal in the 2012 matter of
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4)
SA 593
(SCA);
4.3
Failing to give appropriate consideration to the
decreasing value of the trade connections established by the
application during the period of her employment;
4.4
Failing to consider the nature of the proprietary interest claimed by
the respondent;
4.5
Failing to consider the nature of the arrangements entered into
between the respondent and its clients when
assessing the value of
the proprietary information claimed by the respondents;
4.6
Failing to appreciate the considerable differences in the businesses
of BSSC Radiators (Pty) Ltd and Kuruman
Radiators; and
4.7
granting a cost order against the second respondent (BSSC Radiators
(Pty) Ltd) notwithstanding that it did
not oppose the application.
Ground 1: Failing to
apply the Plascon-Evans principle
[5]
As early as para 5 of the main judgment I referred to the
Plascon-Evans principle
and the fact that it was common cause between
the parties that disputes of fact existed. However, they were soluble
on the papers
as they stood. This follows that when I dealt with the
matter I was mindful of such existence and the approach to be
followed and
duly applied the principle.
Ground 2: Following
Den Braven
and not the
Natal Joint
approach
[6]
At the commencement of his submissions for leave to appeal Mr
Whitcutt SC, for the
Applicant, conceded the existence of the
restraint of trade agreement between Kuruman Radiators and Ms
O’Donovan. The main
judgment has dealt with Ms O’Donovan’s
denials pertaining to whether the contract existed or not. Mindful of
the principle
that a party seeking to enforce a contractual right in
restraint of trade bears the
onus
to prove the existence of a
contract and infringement of such a right, I was persuaded by the
explanation furnished on behalf of
Kuruman Radiators in respect of
the existence of a contract. Mr Whitcutt also conceded that there is
competitiveness and urged
this Court to consider the overlap
carefully in determining the kind of restraint required.
[7]
The
Supreme
Court of Appeal, per Wallis JA, in the
Natal
Joint
judgment
[4]
cautions judges as follows to when interpreting documents or
statutes:
“
[18]
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary rules of
grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material known
to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the light
of all these
factors. The process is objective not subjective.”
The
issue before me regarding the restraint of trade agreement did not
pertain to its interpretation but whether it existed or not
for
purposes of its enforcement. Therefore, Mr Whitcutt’s argument
that I did not observe the principle of
stare
decisis
when following
Den
Braven
[5]
and not the
Natal
Joint
judgment
has no merit.
Ground 3: the
decreasing value of trade connections; Ground 4: the nature of the
proprietary interest; Ground 5: the nature of the
arrangements
entered into between the respondent and its clients when assessing
the value of the proprietary information and Ground
6: the
considerable differences in the businesses of BSSC Radiators (Pty)
Ltd and Kuruman Radiators.
[8]
I deal with grounds 3-6 collectively. For the submission pertaining
to the decreasing
value of trade connections see the main judgment
para 24 and 46. In as far as the nature of the proprietary interest
is concerned,
refer to the main judgment paras 29, 30, 32 and 34.
[9]
When counsel made submissions for confirmation of the rule nisi
extensive arguments
were advanced
in
respect of the differences in operations of the two companies,
namely, Kuruman Radiators and BSSC Radiators. The averment that
95%
of Kuruman Radiators’ income
was
derived from the mining industry, which business is acquired
on tender and that BSSC Radiators has no interest in battery rooms as
well as the rest of the differences as set out in the affidavits were
comprehensively argued in the opposed motion and now repeated
when
leave to appeal is sought. Mr Whittington,
for
the Respondent, conceded the overlapping in his submissions which is
also conceded by Mr Whitcutt. In invoking
Den Braven
Van
Niekerk SC had submitted that nowhere is it said that the overlapping
must be 100% for the Court to find that the companies
are
competitors, a submission I found to be persuasive.
Ground 7: Costs
[10]
On 20 August 2021 when Mr Van Niekerk SC appeared as counsel for
Kuruman Radiators, seeking confirmation
of the rule
nisi,
a
draft order was handed up contingent upon the applicant being the
successful party. Consequently
an order
of costs was made against both respondents though BSSC Radiators did
not oppose the application. The cause of action was
a contractual
claim against Ms O’Donovan. This finding is attacked by the
Applicant, Ms O’Donovan, when applying for
leave to appeal.
[11]
The following remarks by Harms JA in
Thompson
v South African Broadcasting Corporation
[6]
are
instructive:
“
[6]
It is also necessary to have regard to the object of the rule
permitting a party to have the costs reconsidered
if costs were not
argued at the oral hearing. This appears also from Firestone at 307G
– H:
‘
Where
counsel has argued the merits and not the costs of a case (which
nowadays often happens since the question of costs may depend
upon
the ultimate decision on the merits), but the Court, in granting
judgment, also makes an order concerning the costs, it may
thereafter
correct, alter or supplement that order (see Estate Garlick’s
case
1934 AD 499).
The reason is (see 503 -5) that in such a case the
Court is always regarded as having made its original order “with
the implied
understanding” that it is open to the mulcted party
(or perhaps any party “aggrieved” by the order –
505)
to be subsequently heard on the appropriate order as to costs.’”
[12]
The position as spelt out in
Firestone
South Africa (Pty) Ltd v Gentiruco AG
[7]
goes
as follows:
“
The
Court may correct a clerical, arithmetical or other error in its
judgment or order so as to give effect to its true intention….
This exception is confined to the mere correction of an error in
expressing the judgment or order; It does not extend to altering
its
intended sense or substance. Kotze JA made this distinction
manifestly clear in [West Rand Estates Ltd v New Zealand Insurance
Co
Ltd
1926 AD 173
at 186 – 7], when, with reference to the old
authorities, he said:
‘
The
Court can, however, declare and interpret its own order or sentence,
and likewise correct the wording of it, by substituting
more accurate
or intelligent language so long as the sense and substance of the
sentence are in no way affected by such correction;
for to interpret
or correct is held not to be equivalent to altering or amending a
definitive sentence once pronounced.’”
[13]
Regard being had to the aforementioned authorities and principles,
the Court can always be approached
for the reconsideration of the
part of the order where it ordered costs to be paid jointly and
severally the one paying the other
to be absolved, particularly since
the BSSC Radiators was not a party to the proceedings and cannot be
mulcted in costs. This can
be done on mere notice to the other
parties (as opposed to a substantive application) by BSSC Radiators
(Pty) Ltd in Chamber. The
intention was to order costs against Ms
O’Donovan as the opposing party.
[14]
However, this ground alone cannot be the premise from which the
appeal must succeed. It therefore
follows that this application
stands to fail.
[15]
The respondent, Kuruman Radiators, did not oppose the application for
leave and I therefore make
no order as to costs.
[16]
Resultantly, I make the following order:
1.
The application for leave to appeal is
dismissed.
2.
BSSC Radiators (Pty) Ltd, if so advised,
may bring an application on notice to the affected parties to have
the costs order against
it corrected.
M.C.MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicant:
None
On
record:
c/o Engelsman, Magabane Inc
For
the Respondent: Adv. C Whitcutt SC
Adv. Dean Whittington
Instructed
by:
LVH Attorneys
c/o Duncan & Rothman
[1]
10 of 2013
[2]
LCC14R/2014
at para 6
[3]
[2016]
ZASCA 176
(25 November 2016) at paras 16 – 17
[4]
Natal
Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593
(SCA)
[5]
Den
Braven SA (Pty) Ltd v Pillay and Another 2008 (6) SA 229 (D)
[6]
[2000] ZASCA 76
;
2001 (3) SA 746
(SCA) at 749 para 6
[7]
1977 (4) SA 298
(A) at 307C - G