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2021
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[2021] ZAGPJHC 537
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Ocular Technologies (Pty) Ltd and Others v C X Engage (Pty) Ltd and Others (20/26709) [2021] ZAGPJHC 537 (7 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 20/26709
REPORTABLE:
YES
/ NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED.
05.10.21
In
the matter between:
OCULAR
TECHNOLOGIES (PTY) LTD
First Applicant
VELOCITY
IMPORTS (PTY) LTD
Second Applicant
LUTCHMAN;
PREEMISH SHASHIKANT
Third Applicant
and
C
X ENGAGE (PTY)
LTD
First Respondents
A
I VISION CONSULTING (PTY)
LTD
Second Respondent
DINAT;
EBRAHIM
Third Respondent
DINAT;
BILKEES
Fourth Respondent
JUDGMENT
CRUTCHFIELD
AJ:
[1]
The applicants seek leave to appeal in
terms of section 17 of the Superior Courts Act, 10 of 2013 (‘the
Act’), against
the aspects of the judgment applicable to the
relief referred to by them in their application for leave to appeal,
in respect of:
1.1
the dismissal of the Anton Piller
order;
1.2
the dismissal of the applicants’
application for a variation of the order dated 28 November 2020;
and
1.3
my award of costs against the applicants,
including the costs of 3 counsel (including senior counsel) where so
employed.
[2]
The application for leave to appeal (‘leave
application’) was opposed by the respondents.
[3]
The applicants at the hearing of the leave
application, did not advance arguments addressing the application for
leave in respect
of the order dismissing the application for a
variation.
[4]
The applicants contended a reasonable
prospect of success on appeal. Two arguments were raised by the
applicants that I seek to
deal with herein.
[5]
The
applicants relied upon
Non-Detonating
Solutions
[1]
to base their contention that a
prima
facie
cause
of action is not required in an Anton pilar application. The
threshold is low and it is not a question of probabilities.
[6]
In respect of the two causes of action
raised against CX Engage (Pty) Ltd (‘CX’) and the third
respondent, Dinat (‘Dinat’),
the applicants made out a
case in respect of the diverting of Ocular’s biggest customers,
particularly in respect of Tracker
and Bayport and that CX’s
response thereto was evasive and sketchy.
[7]
Furthermore, that the reasons provided by
CX as to why Ocular’s clients left it does not negate the
existence of the applicants’
cause of action.
[8]
The difficulty with the applicant’s
contentions in this regard is that the respondents’ version in
respect of Tracker
and Bayport is not sketchy or evasive as alleged.
The applicants did not show that those clients left Ocular pursuant
to anything
done by CX, and, they are not customers of CX. That
response of the respondents is not evasive nor sketchy.
[9]
The reasons furnished by the respondents in
respect of why clients left Ocular, serves in this instance to
demonstrate that the
clients did so not because of conduct on the
part of CX.
[10]
Ocular relied on two alleged errors of fact
in the judgment, at paragraphs 52 and 65 thereof. The consequence of
the error at paragraph
52 allegedly was that it demonstrated that a
prima facie
case
was made by the applicant.
[11]
The error was to the effect that contrary
to that stated by me in paragraphs 52 and 65, Ocular did allege that
Farhaan shared the
SLA with Dinat. I disagree that the
applicants made such allegation. The reference provided by the
applicants in the papers
does not state that alleged by the
applicants this regard.
[12]
The alleged errors of fact are however not
relevant in that the 2019 SLA was alleged by the respondents to be
outdated with reference
to the test for confidential information,
which I accepted. The latter test, that for information to be
confidential it must have
an economic value, is generally accepted in
our caselaw as correct.
[13]
As to Farhaan sharing the SLA with Dinat, I
remain of the view that the pricing structure at the relevant time
would have been outdated,
(it lay with the applicant to furnish
evidence to the contrary which they did not do), the pricing
structure formed part of Dinat’s
own body of knowledge and he
would not have needed the SLA to be aware of Ocular’s pricing
and know-how.
[14]
One
of the references to the economic value component of the test that I
referred is the judgment
[2]
of
Advtech
Resourcing (Pty) Ltd t/a Communicate Personnel Group v Koen
.
[3]
although the case deals with restraints. That reference by me does
not constitute the application of an incorrect legal test to
the
facts that will serve as grounds for an application for leave to
appeal.
[15]
Whilst
Advtech
deals with restraints of trade, it also
deals with the requirements for confidentiality in respect of
documents and it was to that
extent that I referred to the judgment.
[16]
Costs, in and of themselves, are not
grounds for an appeal.
[17]
In my view, there is no basis for leave to
appeal to be granted given that there is no reasonable prospect that
another Court will
come to a different outcome.
[18]
The applicants correctly aargued that the
costs order in respect of three counsel was not consistent with
the fact that the
respondents did not continue to use three counsel.
Insofar as there is insufficient clarity in my order in this regard,
the order
should be understood to state and refer to the respondents’
costs of three counsel, where three counsel were so employed.
That
was the intention of the order and takes into account the fact that
the respondents did not utilise the third counsel after
the relevant
rule of the JSA was brought to their attention.
[19]
In the circumstances the application for
leave to appeal is dismissed with costs.
A
A CRUTCHFIELD SC
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered:
This judgement was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically
by circulation to
the Parties / their legal representatives by email and by uploading
it to the electronic file of this matter
on CaseLines. The date of
the judgment is deemed to be 7 October 2021.
Counsel
for the applicants:
Mr Y Alli
Instructed
by:
Vally & Chagan Attorneys.
Counsel
for CX Engage, Ibrahim
Dinat
and Bilkees Dinat:
Mr G kairinos SC
Instructed
by:
Jordaan & Wolberg Attorneys.
DATE
OF THE HEARING:
19 August 2021
DATE
OF JUDGMENT:
7 October 2021
[1]
Non-Detonating
Solutions (Pty) Ltd v Durie & Another
2016
(6) SA 445
(SCA) (‘Non-Detonating Solutions’).
[2]
Para
[54]
[3]
Advtech
Resourcing (Pty) Ltd t/a Communicate Personnel Group v Koen
2008
(2) SA 375
(C) (‘Advtech’)