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[2019] ZAFSHC 145
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Christians v Thomas NO and Others (2177/2019) [2019] ZAFSHC 145 (29 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2177/2019
In
the matter between:
JANICE
AVRIL
CHRISTIANS
Applicant
And
LIESEL
THOMAS
N.O
1
st
Respondent
VERNON
VAN DER WESTHUIZEN N.O
2
nd
Respondent
REGINALD
THOMAS N.O
3
rd
Respondent
(In
their capacity as trustees for the time being of the
BLOEMSEC
TRUST
)
JUDGMENT BY: MHLAMBI
J,
HEARD ON:
16 AUGUST 2019
DELIVERED
BY:
29 AUGUST 2019
APPLICATION FOR LEAVE
TO APPEAL
MHLAMBI,
J
[1]
This is an application for leave to appeal a restraint order that I
granted with costs on 06 June 2019 in terms of which the
first
respondent was ordered to immediately cease her employment with the
second respondent and not to engage in any of business
activity in
competition with the applicants within the geographical area of
Bloemfontein for a period of 8 months. The application
is opposed.
[2]
The grounds of the application for leave to appeal are set out in the
notice of application for leave to appeal as follows:
“
5. There is a
reasonable prospect that another court would find that the above
Honourable Court erred:
5.1 By not finding
that the Applicant entered into the agreement in 2018 under duress;
5.2 By finding that
the First or Third Respondents demonstrated a protectable interest in
this specific subject matter and circumstances
of this case;
5.3 By not finding
that the Applicant poses no threat (ether real or otherwise) to the
protectable interest of the Respondent;
5.4 By weighing-up the
First to Third Respondents’ protectable interest qualitatively
and quantitatively against the Applicant’s
interest to be
economically active and productive, and finding in favour of the
Respondents;
5.5 By not finding
that the enforcement of the restraint of trade in this specific
matter offends against public policy;
5.6 In finding that
the fact stated by the Applicants disclose that the restraint is
unreasonable and that the Applicant failed
to show that the restraint
is unreasonable;
5.7 In finding that
the Applicant should bear the cost of the application in toto;
5.8 In finding that
the Applicant should be liable for the cost of the postponement of
the application on 30 May 2019;
5.9 By failing to
consider the personal circumstances of the Applicant and attaching
the proper weight to it;
5.10 By granting the
application for the enforcement of the disputed restraint of trade
agreement in these specific circumstances
despite, inter alia the
particular industry, the Applicant’s position, the nature of
her involvement in the Fourth Respondent,
the absence of any
confidential information and/or trade secrets”.
[3]
The grounds of the application for leave to appeal set out in
paragraphs 5.1 to 5.6 are a rehash of the grounds raised by the
first
respondent in opposition to the relief sought by the applicant in the
application. These grounds were fully dealt with in
my written
reasons delivered on 28 June 2019. Similarly, the grounds set out in
paragraphs 5.7 and 5.8, which relate to costs,
were also addressed
fully in the reasons for judgment. Consequently, I do not consider it
necessary to repeat the said reasons
in this judgment. In oral
address, Mr Roux, on behalf of the applicant, concentrated on the
reasons mentioned in paragraphs 5.9
and 5.10 and submitted that, as
the applicant was left without resources, another court might put
enough emphasis and attach proper
weight to the applicant’s
personal circumstances and, in so doing, come to a different
decision.
[4]
Mr Grobler, on behalf of the respondent, referred to various
authorities
[1]
and submitted that
the bar for granting leave to appeal has been raised and that the
test was not whether there was a reasonable
prospect that another
court might come to a different conclusion but that there is
certainty that another court will differ from
the court whose
judgment is sought to be appealed against. Section 17(1) of the
Superior Court Act 10 of 2013 provides that leave
to appeal may only
be given where the judge or judges concerned are of the opinion that
the appeal would have a reasonable prospect
of success. In the
School
Governing Body Grey College, Bloemfontein vs Dion Scheepers and
Others
[2]
,
the following was stated:
“
This
application was predicated upon sections 17(1)(a)(i) and/or (ii).
Section 17(1)(a)(i) has not only raised the bar for applications
for
leave to appeal but also fettered the Judge’s discretion when
considering such applications. Leave to appeal may only
be given when
the Judge or Judges are of the opinion that the appeal would have
reasonable prospects of success. The word “only”
is
indicative of the fact that this section limits the Judge’s
discretion to grant leave to appeal. The Judge’s discretion
is
circumscribed because he or she may not grant leave to appeal based
on a reason other than the one mentioned in it. Considerations
such
as an applicant, for leave to appeal, having an arguable case or that
there is a possibility of success on appeal are irrelevant.”
[5]
Mr Grobler submitted further that the applicant did not seek to
overturn the decision on the basis that either it was wrong
on the
facts or on the application of the law. The leave to appeal was
sought solely on the grounds of the weight to be attached
to the
interests of the parties. This approach did not advance the
applicant’s case.
[6]
I have seriously considered the submissions made, carefully
reconsidered my judgment and have come to the conclusion that the
arguments raised by the applicant are without merit. I have
considered whether the appeal would have reasonable prospects of
success
and I am convinced that there are no reasonable prospects
that this appeal would succeed.
[7]
I therefor make the following order.
Order
The
application for leave to appeal is dismissed with costs.
______________
JJ
MHLAMBI, J
Counsel
for the defendant: Adv. LA Roux
Instructed
by: Rossouw Attorneys
119
Presindent Reitz Avenue
Westdene
Bloemfontein
Counsel
for Respondents: Adv S Grobler
Instructed
by: Honey Attorneys
Honey
Chambers
North
Ridge Mall
Bloemfontein
[1]
Hans Seuntjie Matoto vs. Free State Gambling and Liquor Authority
and others, case no: 4629/2015 FSHC Delivered on 08 June 2017
para
5; Vukani Gaming Free State (Pty) Ltd vs. Purple Dots Investments 34
(Pty) Ltd and others application number: 1064/2018
delivered on 03
June 2019 para 6.
[2]
Case No 2612/2018 FSHC delivered on 17 January 2019 para 4.