Velocity Trade Capital (Pty) Ltd v Quicktrade (Pty) Ltd and Others (7263/2019; 5717/2019) [2019] ZAWCHC 92; [2019] 4 All SA 986 (WCC) (29 July 2019)

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[2019] ZAWCHC 92
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Velocity Trade Capital (Pty) Ltd v Quicktrade (Pty) Ltd and Others (7263/2019; 5717/2019) [2019] ZAWCHC 92; [2019] 4 All SA 986 (WCC) (29 July 2019)

Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No.s 7263/2019
and
5717/2019
Before:
The Hon. Mr Justice Binns-Ward
Dates
of hearing: 7 May and 3 June 2019
Judgment:
29 July 2019
In
the matter in case no. 7263/19 between:
VELOCITY
TRADE CAPITAL (PTY)
LTD
Applicant
and
QUICKTRADE
(PTY)
LTD
First
Respondent
HARDUS
STORM VAN
PLETSEN
Second
Respondent
VELOCITY
TRADE FINANCIAL SERVICES (PTY) LTD
Third
Respondent
and
in the
intervention applications of
Velocity
Trade Financial Services (Pty) Ltd
and
Waheed Safa
in the matter in case no. 5717/19 between:
QUICKTRADE
(PTY)
LTD
Applicant
and
VELOCITY
TRADE CAPITAL (PTY)
LTD
Respondent
JUDGMENT
BINNS-WARD J:
Introduction
[1]
The matters before the court in these
proceedings follow on from, or are related to, the result of an
application in the ‘urgents’
court by QuickTrade (Pty)
Ltd (‘QuickTrade’) against Velocity Trade Capital (Pty)
Ltd (‘VTC’).  The
application was brought under case
no. 5717/19.  QuickTrade sought, and obtained, various
heads of interdictory relief
against VTC pending the final
determination (‘including any appeals’) of an action to
be instituted by QuickTrade within
30 days.
[2]
QuickTrade
and VTC had been parties to a contract (‘the referral
contract’) concluded in March 2014 in terms of which
QuickTrade
referred those of its clients who wished to trade in contracts for
difference (‘CFDs’) to VTC.  A contract
for
difference is defined in the referral contract as ‘
a
financial instrument that changes in value by reference to
fluctuations in the price of an “underlying instrument”,

such as, for example, a share, commodity or index
’.
[1]
[3]
The
referral contract was entered into because VTC was able to provide
access to CFDs and to a software program that afforded a
platform for
dealing in them, whilst QuickTrade at that stage could not.
[2]
QuickTrade was entitled to a commission from VTC in respect of
the transactions entered into by the referred clients.  The

platform to be used for the contemplated transactions was called
‘Protrader’. Apparently unbeknown to the person
representing
QuickTrade when the referral contract was concluded,
Protrader was not operated by VTC but by its sister company, Velocity
Trade
Financial Services (Pty) Ltd (‘VTFS’).
[4]
The evidence suggests that the
approximately 15 000 clients referred to VTC in terms of the
agreement were persons who had
been enrolled as students in a
training course on CFDs offered by a training institution operated by
the managing director of QuickTrade,
one Hardus van Pletsen.
Indeed, at the time the referral agreement was concluded, QuickTrade
had not yet been formally incorporated,
and the contract was executed
(presumably in terms of
s 21
of the
Companies Act 71 of 2008
)
between VTC and van Pletsen on behalf of a company to be formed.
[5]
It seems to follow that the persons
referred to VTC were not in fact existing clients of QuickTrade in
the ordinary sense of the
word, that is persons to whom QuickTrade
rendered services.  The only service that QuickTrade would
appear to have rendered
to them was to refer them to VTC.  But
nothing turns on that.  In the supporting affidavit in VTC’s
application
in case no. 7263/19, the referred clients are
described as the ‘mutual clients’ of QuickTrade and VTC.
[6]
The practical implementation of the
referral contract entailed the referred clients in turn concluding
mandate agreements with VTC
and VTFS, respectively, to regulate the
basis upon which their transactions with those entities were to be
executed.  That
VTC and other entities related to it were to
establish discrete contractual relationships with the referred
clients, and that VTC
was not to interact with the clients as
QuickTrade’s agent, was expressly acknowledged in the
provisions of the referral
contract.
[7]
Clause 2 of the contract provided:
1.1
(sic)
Velocity Trade
[i.e. VTC]
provides
the Services and the Referrer has, from time to time, clients
requiring the Services.
2.1 Velocity Trade has agreed
to remunerate the Referrer for referring the Clients for referring
the Clients to Velocity Trade upon
the terms and conditions set out
in this Agreement.
2.2 The Parties recognize the
mutual benefit of having the Referrer promote the services of
Velocity Trade from time to time.
2.3 The
parties wish to record the terms of such arrangement in this
agreement.
Clause 1.1.8 of the contract gave
the following definition of ‘
Client
’, ‘
any
client introduced to Velocity Trade by the Referrer, which at the
time of the referral does not already have an existing relationship

with Velocity Trade
and which is accepted by Velocity Trade
as its client
’
. (Underlining supplied.)
[8]
‘
Services
’
was defined in clause 1.1.13 to mean ‘
the
non-discretional services namely Stockbroking Services which include
settlement and custody services and futures execution and
clearing
services, CFD Services, FX Services and investments in funds
services
’.
(It appears to be common ground that ‘
non-discretional
services’ denotes services provided in each case in terms of a
client’s ad hoc instruction.)  Clause 5 of the
contract
recorded that ‘
The
Parties specifically agree that Velocity Trade may contract with
various Service Providers to render the Services from time
to time
’.
‘
Service
Providers
’
was defined in clause 1.1.14 to include ‘
the
Velocity Trade Related Companies
’,
which, in turn, was defined, in clause 1.1.19, to include VTFS.
VTC was required, in terms of clause 7.3, to disclose
the nature of
its contractual relationship with QuickTrade to the referred clients,
and to include in such disclosure an explanation
‘
that
the Client, Velocity Trade and the Service Providers,
and
not the Referrer
,
[3]
are the counterparties to each purchase and sale of the products
forming part of the Services to be provided as set out in this

Agreemen
t’.
[9]
QuickTrade suggests that the disclosure
requirement in clause 7.3 was directed at confirming the maintenance
of some form of proprietary
relationship between itself and the
referred clients.  In my view, however, especially by virtue of
the emphasis in the disclosure
clause on the fact that QuickTrade
would be a stranger to contracts concluded with VTC and the ‘Service
Providers’
pursuant to the referrals, the purpose of the
required disclosure was to satisfy ethical considerations related to
the need for
transparency in respect of the appropriation of the fees
payable by clients on the transactions effected in terms of their
contracts
with VTC and the ‘Service Providers’.  This
impression is supported by the consideration that the referral
contract
was drawn up by VTC, its terms are discernibly loaded in
favour of VTC, and there is no indication in the deed that QuickTrade
had required VTC to include a provision recording any form of
proprietary connection with the referred clients.
[10]
The
income stream to QuickTrade provided for in terms of the referral
agreement comprised in essence of a share in the commissions
or fees
payable by the referred clients on the transactions they did in
respect of CFDs acquired by them from VTC.
[4]
The need for other service providers like VTFS to be engaged to
provide referred clients with the services was related to
the
limiting effects of the licensing requirements under the regulatory
legislation on VTC’s ability to do so itself.
VTC was not
a licensed financial service provider, whereas VTFS is.  A
licence is currently not required by the issuer of
CFDs, but the
business of facilitating the trading in them via access to a software
program like Protrader is, according to the
evidence, an
‘intermediary service’ that may be provided only under
licence in terms of the Financial Advisory and
Intermediary Services
Act 37 of 2002 (‘the FAIS Act’).
[11]
It is common ground that the referral
contract between QuickTrade and VTC has been terminated.  The
reason for the termination
was that QuickTrade has acquired its own
platform (‘Metatrader 5’) on which CFDs can be
traded.  Consequently
it is now able to earn a commission income
on CFD trading transactions in its own right, and is no longer
reliant on a commission
sharing arrangement such as that provided by
the referral contract to be able to generate an income from the CFD
trading activities
of graduates from Mr van Pletsen’s training
institution.  It would therefore no longer be referring clients
to VTC as
provided for in terms of the referral contract.
[12]
The question at the heart of the
application under case no. 5717/19 was the import of a clause in
the agreement (clause 14)
that was directed at regulating the
consequences of any dissolution of the parties’ contractual
arrangement.  Clause
14 of the referral contract provided as
follows, under the subheading ‘
Effect
of Termination
’:
14.1 Upon the
termination of this Agreement for whatever reason –
14.1.1 the parties
shall return all Confidential Information, documents, agreements,
specifications and other media acquired in
terms of this Agreement to
the other party;
14.1.2 all rights
granted to the Referrer [i.e. QuickTrade] by this Agreement are
withdrawn and the Referrer shall cease forthwith
to conduct any
activities authorised by this Agreement; and
14.1.3 the Referrer
will continue to receive remuneration for existing clients referred
to Velocity Trade for a period of 3 months
within which time Velocity
Trade will assist the Referrer migrate clients (sic) to a new broker
as requested by the Referrer; and
14.1.4 the rights
and obligations of the Parties in respect of all existing clients
referred to Velocity Trade by the Referrer,
save for 14.1.3 above,
shall not be affected and the provisions of this Agreement shall
apply in respect of such transactions until
all obligations in
respect of such Clients have been complied with.
[13]
QuickTrade’s contention before the
duty judge who disposed of the application in case no. 5717/19
was that clause 14.1.3
of the referral contract obliged VTC to cease
effecting new transactions with or on behalf of the referred clients
and to assist
with referring them to the trading platform now
operated by QuickTrade.  This would entail VTC and VTFS in
having to prevail
on the referred clients to cancel their existing
mandate agreements with those companies, or in any event to cease
accepting trading
instructions from them.
[14]
VTC, on the other hand, contends that the
obligation to assist in the migration of clients within the meaning
of the sub-clause
is limited to cooperating in the migration of those
clients who indicate, upon being advised of the termination of the
contract
between VTC and QuickTrade, that they wish to move their
business to a new broker designated by QuickTrade.  It rejects
what
it contends is the notion necessarily implicit in QuickTrade’s
construction of the contract that the referred clients are

proprietary to QuickTrade and susceptible to being dealt with as if
they were ‘chattels’.  It supports the correctness

of its construction of the clause by pointing out that implementing
its provisions in accordance with the interpretation that QuickTrade

seeks to apply would entail both QuickTrade and VTFS in having to
breach the terms of their respective financial service provider

licences under the FAIS Act.  Those licences preclude QuickTrade
and VTFS from providing any intermediary service other than
in terms
of their respective client mandates and furthermore preclude them
from furnishing ‘advice’.  VTC contends
that
prevailing on clients to transfer their business from VTFS’s
Protrader platform to QuickTrade’s Metatrader 5 platform
would
necessarily and unavoidably entail furnishing them with ‘advice’.
[15]
QuickTrade’s response was to say that
nothing in its understanding of the agreed basis of the consequences
of the termination
of its contractual relationship with VTC would
prohibit referred clients who expressly indicated in writing that
they wished to
retain their ties with VTC from doing so.  It has
in the proceedings before me gone further than that.  As I
understood
its counsel, QuickTrade now accepts that clients who
failed to give any instructions to terminate their contracts with
VTFS would
remain on the Protrader platform by default.
[16]
Insofar as the proper construction of
clause 14.1.3 is central to the dispute between QuickTrade and VTC,
one thing about it is
clear.  That is that whatever it was that
the parties were to do in terms of the sub-clause was to be done
within the three-
month period following upon the termination of the
referral contract.  It appears to be common ground that the
termination
date was ‘on or about 15 March 2019’.
At this stage of play, after the effluxion of the stipulated period,

its meaning can be relevant only in respect of understanding the
formulation of the order made in case no. 5717/19, or in
respect
of any claim for damages for non-compliance with provision.
[17]
The substantive relief sought by QuickTrade
in its notice of motion in case no. 5717/19 was framed as
follows:
…
orders
in the following terms:
2. Directing [VTC]
to immediately restore [QuickTrade’s] access to the Trade Desk
and Admin Terminal Portals on [VTC’s]
website
support@za.velocitytrade.com
(“the Portals”)
relating to the trading of clients referred by [QuickTrade] to [VTC]
in terms of the Referral Agreement
… (hereinafter referred to
as “the existing clients” on [QuickTrade’s]
Protrader trading platform (“Protrader”),
including but
not limited to their personal particulars, trading and trading
activities, funds, payments requests and other information
and
facilities provided by the Portals to [QuickTrade] prior to the
withdrawal of its access thereto on or about 15 March
2019.
3. Interdicting and
restraining [VTC] from rendering any Services (as defined in the
Referral Agreement) with immediate effect to
existing clients on
Protrader, save for allowing existing clients to close out exiting
[
sic
, an obvious mistyping of ‘existing’]
transactions as at the date of this order (“existing
transactions”).
4. Save for
communications with existing clients in relation to existing
transactions on Protrader and/or the Portals, [VTC] is
interdicted
and restrained from communicating with the existing clients at all by
any means, unless such communication is approved
in writing by
[QuickTrade] and is necessary to inform existing clients of their
migration to [QuickTrade] and what is practically
expected of them in
that regard.
5. The orders set
out in …, 2, 3 and 4 above shall serve as interim orders
pending the institution and the final determination
(including any
appeals) of any application or action in this Court or arbitration
proceedings in terms of the Referral Agreement
(as [QuickTrade] may
be advised) against VTC within 30 court days of the date of this
order, for an orders (sic) declaring that
the provisions of clause 14
of the Referral Agreement became operative and enforceable between
[QuickTrade] and [VTC] on the termination
of the Referral Agreement
on or about 15 March 2019 and that [VTC] is obliged to comply
therewith, that the interim relief
granted be granted as final relief
and such other relief as [QuickTrade] may be advised (sic).
[18]
VTC was the only party joined as a
respondent in the application in case no. 5717/19.
Notwithstanding that the relief
sought by QuickTrade bore directly on
the contractual relationships between VTC and the persons who had
been referred to it under
the Referral Agreement, none of those
parties (the so-called ‘existing clients’) were joined in
the proceedings.
This caused VTC to raise an objection, based
on non-joinder, to the application being entertained.  VTC also
pointed out that
the trading services rendered to the clients that
had been referred to it under the Referral Agreement were rendered
not by it,
but by VTFS, with which, as mentioned, the clients also
had discrete contractual relationships.  According to VTC, VTFS
also
rendered intermediary services to some of the referred clients
in respect of other investment opportunities besides CFDs; although,

it would seem from the figures provided in reply by QuickTrade, these
other services generated only a tiny portion of the income
generated
for VTC or VTFS by the investing or trading activities of the
referred clients.  VTC contended that VTFS was therefore
also a
necessary party in the proceedings in case no. 5717/19.
[19]
It
is a well established principle that a court will not make any order
unless every party whose rights or real interests are liable
to be
affected by it has been joined as a party or has indicated it will
abide the court’s judgment; see e.g.
SA
Riding for the Disabled Association v Regional Land Claims
Commissioner and Others
2017 (5) SA 1
(CC) at para. 10, where it was remarked ‘…
it
is a basic principle of our law that no order should be granted
against a party without affording such party a predecision hearing.

This is so fundamental that an order is generally taken to be binding
only on parties to the litigation
’.
The importance of adequate joinder is such that a court will raise
non-joinder
suo
motu
if necessary; cf.
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A), in which the Appellate Division raised a point
of non-joinder when the matter came to it on appeal.
[5]
[20]
On
25 April 2019, the duty judge made an order in case no. 5717/19
granting QuickTrade the relief sought in terms of paragraphs
2 –
5 of the its notice of motion quoted above.
[6]
The order contained the following additional provisions (in
paragraphs 5 and 7 thereof):
5. A copy of this
interim order shall be brought to the attention of and furnished to
the existing clients as defined above, by
[QuickTrade], by email to
known email addresses of such existing clients
and such
notification shall inform the existing clients that they are not
obliged to migrate to [QuickTrade’s] trading platform,
Metatrader 5,
and that they are entitled to remain on Protrader on
their written request to [Quicktrader] to remain on Protrader
, in
which event, [Quicktrader] shall forthwith in writing inform and
furnish [VTC] with such written request from the existing
client to
remain on Protrader.
7. That the costs of
this application be costs in the aforementioned application, action
or arbitration proceedings, and failing
the institution thereof that
[QuickTrade] be liable for such costs.
(Underlining in the original.)
[21]
The order granted in case no. 5717/19 was
made without the joinder of the ‘existing clients’ or
VTFS as parties to the
proceedings.  The necessary implication
is that the judge must have rejected VTC’s preliminary
objection based on non-joinder.
The terms of paragraph 5 of the
order, which were not foreshadowed in the notice of motion, seem to
have been inspired with the
rights of the affected clients in mind.
But they were not preceded by ‘a predecision hearing’
of those parties,
who had not been given notice of the application.
[22]
In
the current proceedings, under case no. 7263/19, in which VTC is
the applicant and the respondents are QuickTrade, Hardus
van Pletsen
(the managing director and allegedly the governing mind of
QuickTrade) and VTFS, respectively, the questions centrally
in
contention are the effect of the order granted in case no. 5717/19
and the proper meaning of clause 14 of the referral
contract (quoted
above).  In this connection VTC has sought the following relief
in part B
[7]
of the notice of motion:
2. An order
declaring the application under case number 5717/19 and this
application be consolidated and heard together and that
the relief
contemplated in [? this] notice of motion be considered in this
application as a matter of urgency;
3. That the interim
order granted [in case no. 5717/19] be set aside upon the
decision of the Court pertaining to the relief
set out in prayers 4
and 5 of Part B of this notice of motion;
4. An order
declaring that clause 14 of the Referral Contract … is
enforceable and valid;
5. An order
declaring that the word “assist” as reflected in the
Referral Contract imposes no more than the duty on
[VTC] to close
accounts upon receipt of the written instruction of investors who
wish to close their accounts.
The prayer for declaratory relief
in terms of paragraph 4, quoted above, is redundant because it is
common ground between the parties
that clause 14 is valid and
enforceable.  It is over its meaning that they are at odds.
Urgency
[23]
The
basis of urgency upon which this court is asked to deal with the
applications is supported by the practical consequences of
the
interim order.  A matter is urgent if the relief sought could
not be obtained effectively in proceedings heard in the
ordinary
course.  To the extent that the interim order is final in
substance, as alleged, its implementation pending the final

determination of the action instituted by QuickTrade would render the
relief sought by VTC in the current proceedings nugatory.
I am
therefore satisfied that VTC’s applications for the declaratory
relief sought in case no. 7263/19 and the contingent
consequential
relief by way of the setting aside of the order made in case no.
5717/19 were justifiably brought on urgency.
I am also
satisfied that if a case were made out for the relief sought in terms
of Part A of the notice of motion (to be described
later in this
judgment
[8]
),
its efficacy would to a material degree depend on its being obtained
without delay.  In that respect too, a sufficient case
for a
hearing on an urgent basis has been made.
Revisiting the order made
in case no. 5717/19
[24]
Assuming for present purposes that the
order made in case no. 5717/19 is indeed an interim order
properly so-called, rather
than an order having final effect, the
only basis upon which the court would ordinarily revisit it would be
in the context of altered
circumstances sufficiently germane to merit
its reconsideration.  In the absence of a proper basis to do so,
it is not open
to me to second guess an interim order made in this
court by another judge.  By contrast, if the order, despite its
tenor,
is final in effect (or if it is on any other basis
appealable), the appropriate means of impugning it is to take it on
appeal.
[25]
There are no facts bearing on the
interpretation of the contract before this court that were not before
the duty judge when the
interim order was made.  I was therefore
circumspect about entertaining the application to revisit the order
in which there
had been no relevant changed circumstances since its
grant.  Having regard to the effect of the order, which appeared
to me
to be final in substance, it occurred to me that an appeal
might be the indicated procedure if it were sought, as it is, to have

it set aside.  Indeed, QuickTrade, while somewhat equivocal
about the appealability of the order, contended that the application

for declaratory relief and a consequential revisiting of the
interdictory order was in point of fact nothing other than a
disguised
appeal.
[26]
VTC actually contended before the duty
judge when case no. 5717/19 was argued that the ostensibly
interim relief sought by
QuickTrade would, if granted, be final in
effect.  And, as I understand its heads of argument in that
matter, it contended
that the application for the interim interdict
should be adjudicated as if it were an application for final relief.
It also
relied on the effectively irreversible effect of the order
made in case no. 5717/19, if it were implemented, as the
justification
for its institution of the current proceedings before
me in case no. 7263/19 as a matter of urgency.
[27]
It is apparent, however, if regard is had
to the manner in which the relief sought in terms of Part B of its
notice of motion in
case no. 7263/19 has been structured, that
VTC, notwithstanding its contentions about the final effect of the
order made in
case no. 5717/19, seeks a declaratory order on the
meaning of clause 14 of the referral agreement as a means of thereby
engineering
a set of changed circumstances that would afford the
required platform for it to be able to ask the court to revisit and
set aside
the interdict as an interlocutory order.  It seems to
me that that course is impermissible if the order in case no. 5717/19

is indeed final in effect, or otherwise appealable.  The reason
is that if the order in case no. 5717/19 is susceptible
to
appeal, the meaning of clause 14 of the referral contract, which was
the central issue in the matter, would be
res
judicata
and it would not be
appropriate for me to purport to revisit it on the basis invited in
the prayer for declaratory relief in the
current application.
Put differently, I think that the relief sought in the current
application might competently be entertained
only if the order in
case no. 5717/19 is not susceptible to appeal.  VTC cannot
have its cake and eat it.
[28]
There is in any event another obstacle in
VTC’s way to being able to obtain the declaratory relief that
it requires in order
to achieve its practical object of having the
order in case no. 5717/19 set aside.  QuickTrade has in the
meantime, under
case no. 7203/19 instituted the action
proceedings for the final relief contemplated in terms of paragraph 5
of its notice
of motion in case no. 5717/19.  On the
grounds that the action proceedings flow from those instituted by it
in case no. 5717/19
and the order made by the court in that
matter, it has raised an objection of
lis
alibi pendens
in respect of the
declaratory relief sought by VTC in the current matter.
[29]
The appealability of the order in case
no. 5717/19 and QuickTrade’s plea of
lis
pendens
are therefore questions that
must be determined at the outset and before this court can properly
become engaged with the merits
of the substantive relief sought in
terms of Part B of VTC’s notice of motion in the current
matter.
Appealability
[30]
The position with regard to appealability
is inherently unsatisfactory because this court’s view on the
matter is decisive
only of the question whether it should engage with
the merits of Part B of the current application, and not whether an
appeal would
actually be entertained.  I am acutely conscious
that the determination of whether the order is in fact appealable
falls to
be made not by this court, but in the first instance by the
court that deals with an application for leave to appeal (which
ordinarily
would be the duty judge who granted the interim interdict)
and ultimately, if leave is granted, whether by that court or on
further
application in terms of
s 17(2)(b)
of the
Superior
Courts Act 10 of 2013
, by the appellate court.  As I shall
illustrate presently, those courts may also have regard to other
features of the order
apart from the finality of its effect or
substance, such as the effect on its competence of the non-joinder
question and on its
legality in the context of VTC’s contention
that the order puts it (and QuickTrade) at risk of acting in conflict
with their
respective obligations in terms of the FAIS Act, in making
the determination as to appealability.  But I have to take a
view
on the appealability of the order for the purpose of deciding
whether it would be appropriate to enter into the declaratory relief,

which as I have explained, is the platform VTC seeks to obtain to
revisit the interim interdict.
[31]
Counsel
on both sides were somewhat wavering about the appealability of the
order.  My perception, when I raised it from the
bench as a
pertinent question, was that they each sought to deal with it
tactically with an eye to the strategic implications for
their
respective cases.  In fairness, however, their reluctance to
commit to an answer was to an extent understandable because
eminent
judges have acknowledged in any number of cases that appealability
can be a vexed question that has not always been answered

consistently or entirely satisfactorily.
[9]
[32]
The unsatisfactory answers that can be
forthcoming are in my view most liable to occur where there is a too
undiscriminating adherence
to established general guidelines like
those usefully and most notably distilled in
Zweni
v Minister of Law and Order
1993 (1) SA 523
(A) without sufficient account of the peculiar
circumstances of the given case or acknowledgment that the judgment
in
Zweni
expressly stated that it did not purport to lay down any immutable or
exclusive rule.  If the interests of justice are appropriately

taken into account there should not have to be unsatisfactory
answers.  What is in the interests of justice will depend on
the
peculiar features of the given case.
[33]
In
my respectful opinion, the up to date approach to appealability was
accurately summed up by Nugent JA in his concurring judgment
in
National
Director of Public Prosecutions v King
[2010] ZASCA 8
;
2010 (2) SACR 146
(SCA);
2010 (7) BCLR 656
;
[2010] 3
All SA 304
(in which the other four members of the panel, including
the principal scribe, concurred) in para. 51, where the learned
judge
reiterated a point he had made previously in the Labour Appeal
Court,
[10]
saying: ‘…
while
the classification of the order might at one time have been
considered to be determinative of whether it is susceptible to
an
appeal the approach that has been taken by the courts in more recent
times has been increasingly flexible and pragmatic. It
has been
directed more to doing what is appropriate in the particular
circumstances than to elevating the distinction between orders
that
are appealable and those that are not to one of principle
’.
The object of the appellate process is the provision or expedition of
a final resolution of the substantive issue
being litigated.  If
entertaining an appeal from a decision at first instance is likely to
satisfy that object, it must surely
be positively indicative of the
appealability of the decision in issue.
[34]
Whilst frankly acknowledging, consistently
with the position adopted by VTC before the duty judge, the respect
in which the order
made in case no. 5717/19, if implemented,
would be final in substance, VTC’s counsel expressed concern
that the quite
recent judgment of the appeal court in
Cipla
Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation and Others
[2017] ZASCA 134
; [2017]
4 All SA 605
(SCA);
2018 (6) SA 440
cast doubt on whether that rendered the order appealable.  In my
judgment that matter is distinguishable.  That case
was nowhere
nearly on all fours with the current matter.
[35]
The
order taken on appeal in
Cipla
Agrimed
was an interdict
pendente
lite
granted in the following terms in March 2016: ‘
The
respondent is interdicted from infringing claims 1 to 7, 18 to 23 and
29 of South African patent 98/10975 pending the final
determination
of the action instituted by the applicants against the respondent on
18 October 2011 …, provided that the
interdict will lapse on
the expiry date of the patent if the action has not been finally
determined by that date.
’
[11]
The pending action in that matter involved a claim by the
patent holder against Cipla Agrimed (Pty) Ltd, which was the
respondent
in the interlocutory proceedings, arising out of the
alleged infringement of the patent.  The patent in issue was due
to expire
in December 2018.  The patent holder’s action
for final interdictory relief and an enquiry into damages was being
defended
by Cipla Agrimed on the basis that the registration of the
patent was liable to be set aside on the grounds set forth in
parallel
proceedings instituted on motion by Cipla Agrimed for the
revocation of the patent.
[36]
The
litigation in
Cipla
Agrimed
,
which commenced in 2011, had taken a tortuous course.  By
agreement between the parties, Cipla Agrimed’s revocation

application had been heard separately before the patent holder’s
infringement claim came to trial.  It succeeded in
the court of
first instance, but that result was reversed on appeal in terms of an
order that, amongst other matters, expressly
certified the patent in
question as valid.
[12]
Cipla Agrimed then applied to amend its plea in the
infringement action to introduce a new ground upon which it would
seek
still to challenge the validity of the patent.  That, in
the face of the patent holder’s contention that the appeal
court’s judgment in the revocation application had rendered the
validity question
res
judicata
.
It was Cipla Agrimed’s refusal to throw in the towel after the
ultimate defeat of its application for the revocation
of the patent
that had triggered the application by the patent holder for the
interim interdict.  Cipla Agrimed’s application
to amend
its plea, which was opposed, was still undetermined when the interim
interdict was granted.
[37]
Different
from the position in the current matter, the grant of the interim
interdict in
Cipla
Agrimed
was supported by a reasoned judgment.
[13]
The judge (J.W. Louw J) favoured, albeit provisionally, the
patent holder’s contention that the validity
of the patent was
res
judicata
.
He reasoned that the respondent had been obliged to put forward all
its grounds for impugning the patent in the proceedings
that had
culminated in the appeal court and could not advance them piecemeal
in the manner it was seeking to do by amending its
plea in the
action.  The judge also considered that the balance of
convenience favoured the patent holder and he took into
account its
undertaking to pay damages to the respondent should it suffer
cognisable prejudice in consequence of the interim interdict.

There is no undertaking by QuickTrade to pay VTC damages in the
current case should its claim be dismissed in the action proceedings,

and this court does not have the benefit of insight into the duty
judge’s reasoning in respect of the balance of convenience.
[38]
The
appellant in
Cipla
Agrimed
acknowledged the interlocutory character of the interim of the
interdict
pendente
lite
and accepted that interlocutory orders were not ordinarily
appealable. In argument before the appeal court, in September 2017,

it submitted that its appeal should nevertheless be entertained
because, so it contended, the interlocutory order was final in
effect
‘
because
the action was unlikely to be determined before the expiry of the
patent on 3 December 2018
’.
[14]
There was no suggestion in
Cipla
Agrimed
,
however, that the interim interdict granted in that matter was in
substance final at the time it was made, as appears to me to
have
been the effect of the order made in case no. 5717/19.
[39]
It
is perhaps appropriate that I should at this point explain that I
consider that there can be a material difference between an
order
that is final in effect and one that is final in substance.  The
term ‘final in effect’ in the relevant
context is
something of a term of art.  It bears the connotation that the
order in question is not susceptible to alteration
by the court that
made it.
[15]
An interim order that is final in substance, on the other hand,
is one that, if it were implemented or complied with when
it was
made, would in a practical way irreversibly anticipate the
substantive effect of the remedy in issue in the pending principal

case.
[16]
There is no bright line of distinction, however.  In
King
supra, for example, the two characteristics were weighed together.
The appeal court considered the impugned order in that
case to be
appealable because it was final in substance and because despite the
fact that it was theoretically susceptible to alteration
by the court
that had made it, and therefore not final in effect, the prospect of
a situation actually arising in which it might
be so altered was
farfetched.
[17]
The appellant in
Cipla
Agrimed
,
whilst employing the term ‘final in effect’, nevertheless
did not contend that the impugned interim interdict in that
case was
final in effect in the established technical sense of the
expression.  As will appear, that was the critical consideration

in the decision of the appeal court to refuse to accept that the
impugned decision was appealable.
[40]
It appears that it might have been argued
in
Cipla Agrimed
,
on the basis of the approach adopted in
BHT
Water Treatment (Pty) Ltd v Leslie and another
1993
(1) SA 47
(W),
[1993] 3 All SA 126
, that the court of first instance
should in the circumstances have treated the application for interim
relief as if it were one
for final relief with the effect that the
resultant order should on that account be characterised as final in
effect.  But
precisely what was argued in that regard is unclear
because the court was divided in its appreciation of the character of
the argument.
Certainly, it was an argument the majority found
unnecessary to decide.  The court was unanimous, however, that
the determinative
question on the appealability of the case was
whether it was final in effect in the sense explained in
Zweni
.
It is apparent from both the majority and the minority judgments that
the court’s approach to the question on that
basis was
materially influenced by the way in which the parties in that matter
chose to argue the question of appealability.
[41]
In
the minority judgment, Rogers AJA considered that the interim
interdict had been founded entirely on the judge at first
instance’s
view of the
res
judicata
point.  Rogers AJA thought that point had been susceptible
to convenient separation and relatively expeditious final

determination by the court in which the infringement action was
pending before the other potential issues in the principal case.
He
held that in order to determine in the given circumstances whether
the interim interdict was final in effect ‘[t]
he
correct question
[was]
whether
as at 4 March 2016
[the
date on which the interim interdict was granted]
it
was clear that a final decision on the res judicata point would not
be obtained in the
[court in which the infringement action was pending]
in
time to obtain the discharge of the interim interdict before 3
December 2018
’.
[18]
Having determined, for the reason just indicated, that it was not,
the learned judge concluded that when it was made the
interim
interdict was not final in effect, and therefore not appealable.
[42]
It
is clear that the approach to the question in the minority judgment
was predicated on an assessment of the practical effect of
the
ostensibly interim order at the time it was given.  The
assessment was predicated on an ex hypothesi acceptance of the

principle propounded in
BHT
Water Treatment (Pty) Ltd v Leslie and another
1993
(1) SA 47
(W),
[1993] 3 All SA 126
that an application for interim
relief
pendente
lite
that would be final in substance because it was clear the question in
issue would be moot by the time of determination of the principal

case should be treated as if it were an application for final
relief.
[19]
Rogers AJA held on the facts that the interim interdict in
Cipla
Agrimed
did not meet the requirements of the
BHT
test.
[43]
On the approach taken in the minority
judgment, if the practical effect could to any extent foreseeably be
remediated by the determination
of the principal proceedings, the
fact that the interdicted party might suffer irremediable prejudice
while the interim order operated
would not cognisably derogate from
its interlocutory character, and the interim order would not be final
in effect in the sense
relevant for the purposes of appealability.
In essence, Rogers AJA found no reason in the facts of the case to
deviate from
the requirement stated in
Zweni
that a decision should be final in effect for it to be appealable.
[44]
I do not recall that there was any mention
of the
BHT
test
in the argument before me on appealability in the current matter.
But it seems to me that implicit in the approach of
the minority
judgment in
Cipla Agrimed
would be a finding that the interim interdict in the current matter
would appealable if it were apparent that from the moment of
its
making it was final in substance because, as a consequence of
compliance with it, the substantive question in issue would be
moot
in the contemplated principal case.  In my assessment, that is
an approach that is closely aligned to the approach, founded
in
pragmatism and justice, applied in
King
supra.
[45]
The
other members of the court agreed with Rogers AJA that the interim
order in
Cipla
Agrimed
was not final in effect and therefore not appealable.  They
arrived at that result along different lines, however.  The
nub
of the majority’s reasoning for holding that the interim
interdict in
Cipla
Agrimed
was not appealable was founded on the judgment of Schutz JA in
Cronshaw
and Another v Coin Security Group (Pty) Ltd
[1996] ZASCA 38
;
1996 (3) SA 686
(SCA),
[1996] 2 All SA 435.
Indeed, the
majority went so far as to hold that the appellant’s argument
in
Cipla
Agrimed
was precisely the same as the argument that had been advanced in
support of appealability in
Cronshaw
.
[20]
[46]
The judgment in
Cronshaw
was, in turn, closely informed by the appeal court’s earlier
judgment in
African Wanderers Football
Club (Pty) Ltd v Wanderers Football Club
1977 (2) SA 38
(A) on the distinction between orders that are
interlocutory in form but final in effect and those which are truly
interlocutory
(so-called ‘simple’ interlocutory orders).
The judgment in
African Wanderers
discounted the influence of the prejudicial effect of the order while
it operated as a relevant factor in determining whether an
ostensibly
interim order was final in effect or simply interlocutory.  The
distinction was material for the purposes of the
case in hand in
African Wanderers
because it was contended in the appeal that a matter that had been
decided in an interim interdict application was
res
judicata
in the main proceedings,
which, of course, it could be only if the order were final in
effect.  (Ironically, at the time
African
Wanderers
was decided there was no
question that even simple interlocutory orders were appealable in
terms of s 20(2)(b) of the Supreme
Court Act 59 of 1959, the
only qualification being that the availability of an appeal could
follow only with the leave of the court.
The statutory position
was altered to that which applied when
Zweni
and
Cronshaw
were decided in terms of the amendment introduced in terms of s 7
of the Appeals Amendment Act 105 of 1982, with effect from
1 April
1983.)
[47]
The order sought to be taken on appeal in
Cronshaw
was an interim interdict granted in favour of the covenantee in a
restraint of trade agreement pending the determination of a pending

action by the covenantee for the enforcement of the restraint.
By that time interlocutory orders were, in general, no longer

appealable, even with the leave of the court.  The primary
argument advanced by the covenantor in support of the appealability

of the interim interdict was that the case was distinguishable from
African Wanderers
because
the appeal was being prosecuted with leave obtained from the Chief
Justice, after an application for leave to appeal had
been refused at
first instance on the grounds that the decision was not appealable.
The implication of the submission was
that the appealability of the
decision had thereby been put beyond debate.  Having rejected
that argument, the court concluded
that insofar as the
characterisation of the impugned order was concerned, the matter
could not be distinguished from the decision
in
African
Wanderers
, and that the allegedly
irremediable harm that the appellants contended they would suffer
while the interim interdict operated
did not suffice to make what was
undeniably an interlocutory order final in effect.  The
potential injustice that might flow
from an interim interdict was, so
it was held, a matter to be weighed by any court asked to grant one
in the exercise of its discretion
in respect of the balance of
convenience in the given circumstances, and was something that could
also be addressed by the attachment
of appropriate conditions to any
interdictory relief that might be granted.
[48]
The
approach in
Cronshaw
was premised on the characteristics of a ‘judgment or order’
in the sense of those words in s 20(1) of the Supreme
Court Act,
which were described in
Zweni
supra, at 532-533 (SALR), as being (1) final in effect, ‘final’
meaning unalterable by the court whose judgment
or order it is,
(2) definitive of the rights of the parties in that it grants
definitive and distinct relief and (3) dispositive
of at least a
substantial portion of the relief claimed in the main
proceedings.
[21]
[49]
In
Phillips
and others v National Director of Public Prosecutions
[2003] 4 All SA 16
(SCA),
2003 (2) SACR 410
,
2003 (6) SA 447
at para.
19, Howie P noted that if the decision in issue had none of
those attributes it was ‘difficult’ –
the learned
judge was not prepared to put it any higher than that – to see
how it could be appealable.  Rhetorically
posing the question
whether all of the characteristics stated in
Zweni
had to be present for a decision to be susceptible of appeal, Howie P
answered it in the negative, pointing to the fact that
the
Zweni
formulation itself contains the qualification ‘
generally
speaking
’
[22]
and
to the judgment in
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
[1996] ZASCA 2
1996 (3) SA 1
(SCA), in which the appeal court had
held that the formulation is illustrative, not immutable, and that a
decision having final
jurisdictional effect can be appealed against
even if it is not definitive or dispositive in the sense meant in
Zweni
.
[23]
[50]
In
Phillips
,
the appeal court held that a restraint order made in terms of the
Prevention of Organised Crime Act 121 of 1998
was appealable
notwithstanding that it ‘
is
only of interim operation and that, like interim interdicts and
attachment orders pending trial, it has no definitive or dispositive

effect
’.
It did so because ‘[a]
bsent
the requirements for variation or rescission laid down in
section
26(10)(a)
[
[24]
]
…
a
restraint order is not capable of being changed. The defendant is
stripped of the restrained assets and any control or use of
them.
Pending the conclusion of the trial or the confiscation proceedings
he is remediless
’.
[25]
In the court’s opinion ‘
that
unalterable situation
’,
relative as it was, made the interim order final in the sense
required for appealability.
[26]
[51]
Phillips
stands
as an illustration of two truths.  First, that it is not
necessary that all the requirements in
Zweni
be satisfied for a decision to be appealable.  Second, that the
insusceptibility of a decision to being altered by the court
of first
instance does not have to be absolute for the decision to be
considered as sufficiently final in effect to render it appealable.
[52]
Whether the interests of justice might on
the peculiar facts of the case afford good reason to depart from the
norms identified
in
Zweni
was not considered in
Cronshaw.
The question of what might be appropriate if the order at first
instance had been final in substance was also not a consideration
in
that case; although Schutz JA did note in passing (at p. 689
SALR) that prejudice ‘
which
directly affects the issue of the ultimate suit
’
was cognisable in the determination of appealability.  The
judgment in
Cronshaw
proceeded on the assumption that the court of first instance granting
an interim interdict would have had due regard to the potentially

prejudicial effect of the order on the respondent and would have paid
attention to that in weighing the balance of convenience
for the
purposes of deciding whether the grant of an interim order was
justified.  It did not consider whether an exceptional
course
might be warranted if it appeared in a given case that the first
instance court had materially misdirected itself on the
issue of the
balance of convenience.
[53]
It
is apparent that the appeal court in
Cipla
Agrimed
would have been able to see in the reasoned judgment at first
instance that Louw J had indeed paid proper attention to the

balance of convenience when he granted the interim interdict.
In that regard I think it is important to bear in mind when

considering the majority judgment in
Cipla
Agrimed
that Gorven AJA was careful to record that the argument addressed to
the court in that matter had not required of it to consider
whether
in the interests of justice an appeal should be entertained
notwithstanding that the impugned order was interlocutory and
not
final in effect.
[27]
[54]
The judgment in
Cronshaw
stressed the role of judicial policy in the determination of
appealability.  A consideration of recent judgments of the
appeal
court and the Constitutional Court makes it apparent that
judicial policy in respect of the question has in the constitutional
era become notably more nuanced and less inflexible than it was when
Cronshaw
was decided.  Section 173 of the Constitution has been
influential in this regard.  So, for example, in
Government
of the Republic of South Africa and Others v Von Abo
[2011] ZASCA 6,
[2011] 3 All SA 261
(SCA),
2011 (5) SA 262
,
Snyders JA noted in para. 17, ‘
The
complications surrounding appealability in any given instance were
recently summarised by Lewis JA in Health Professions Council
of
South Africa v Emergency Medical Supplies and Training CC t/a EMS
2010 (6) SA 469
(SCA) paras 14-19. It is fair to say that there is no
checklist of requirements. Several considerations need to be weighed
up,
including whether the relief granted was final in its effect,
definitive of the rights of the parties, disposed of a substantial

portion of the relief claimed, aspects of convenience, the time at
which the issue is considered, delay, expedience, prejudice,
the
avoidance of piecemeal appeals and the attainment of justice
’.
To similar effect was the statement in the judgment of Farlam JA
in
Philani-Ma-Afrika and Others v
Mailula and Others
[2009] ZASCA 115
;
[2010] 1 All SA 459
(SCA),
2010 (2) SA 573
concerning the
appealability of an order putting into effect an eviction order that
was subject of a pending appeal, in which the
notion that only orders
that satisfied the characteristics identified in
Zweni
were appealable was firmly rejected.  The learned judge held (in
para. 20): ‘
That belief was
erroneous. It is clear from such cases as S v Western Areas
2005 (5)
SA 214
(SCA) at paras 25 and 26 … that what is of paramount
importance in deciding whether a judgment is appealable is the
interests
of justice. See also Khumalo v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) para [8] … . The facts of this case
provide a striking illustration of the need for orders of the nature
of the execution
order to be regarded as appealable in the interests
of justice
’.
[55]
In
Director-General,
Department of Home Affairs and Another v Islam and Others
[2018] ZASCA 48
(28 March 2018) at para. 10, Maya P, in
holding that the interim interdict granted in the court a quo in that
case was
appealable, made a general observation that
‘[t]
raditionally, under common
law, an interim order was not appealable except where it was shown
that it was (a) final in effect as
it could not be altered by the
court which granted it; (b) definitive of the rights of the parties
in that it granted definitive
and distinct relief; and (c) was
dispositive of at least a substantial portion of the relief claimed
in the main proceedings.
The test has since evolved. So whilst
the traditional requirements are still important considerations, the
court may in appropriate
circumstances dispense with one or more of
those requirements if to do so would be in the interests of justice,
having regard to
the court’s duty to promote the spirit,
purpose and objects of the Constitution eg where the interim order
‘has an
immediate and substantial effect, including whether the
harm that flows from it is serious, immediate, ongoing and
irreparable
’ (footnotes
omitted).
[56]
In
DG, Home
Affairs v Islam
the respondent, a
foreigner who was married by Muslim rites to a South African citizen,
had been refused entry into this country
because he was found in
possession of a fake spousal visa.  He and his wife applied for
an order allowing his admission into
South Africa (‘the
Republic’) pending the determination of his request to the
Minister of Home Affairs, in terms of
s 8
of the
Immigration Act
13 of 2002
, to review the decision to refuse him entry or, in the
event that the Minister confirmed the decision, pending judgment in a
judicial
review application that would be launched within ten days
thereof.  The terms of the interdict granted by the court of
first
instance directed the appellants to (a) permit the respondent
to enter and remain in the Republic subject to reasonable terms and

conditions as prescribed by them, pending finalisation of the matter;
(b) re-issue his spousal visa within 21 days from the date
of the
order; and (c) if they were unable to re-issue the visa, file
affidavits stating the reasons for their non-compliance.
[57]
In that matter it was found that the
impugned order, despite being described as an interim interdict, met
‘
the traditional requirements
’
stated in
Zweni
.
But what also weighed with the court was that the order ‘
was
dispositive of the very essence of the relief
’
to be sought by the respondent in the contemplated principal
proceedings.  That, because the relevant provisions of
the
Immigration Act required
the respondent to await the Minister’s
decision outside the Republic.  The order made by the court of
first instance
was accordingly incompetent because it was contrary to
the provisions of the applicable legislation.  The appeal court
held
that because ‘…
the
interim interdict was granted in direct contravention of the
provisions of the Act, which deal with the control and regulation
of
the presence of foreign nationals in the Republic…
[and]
it disregarded the appellants’
executive powers and obligations and the requirements for its grant
were not met
’, the interdict
should not have been granted in the first place and that ‘
for
that reason alone it would be in the interests of justice to hear the
appeal
’.
[58]
Dependent on the view that could be taken
by an appellate court, similar considerations could be held
applicable in the current
matter in the context of the argument that
compliance with the interim interdict would necessarily result in
contravention of the
FAIS Act.
[59]
Returning to the facts in the current
matter.  The ‘interim’ order in case no. 5717/19
has the effect of requiring
VTC to cease providing any of the
services as defined in the referral contract to clients that were
referred to it by QuickTrade
in terms of the contract unless such
clients make a written request to QuickTrade to remain on VTFS’s
Protrader platform.
The practical effect of this, if the order
is effective, is that the referred clients who do not address such
written requests
to remain on Protrader will cease to be serviced by
VTC or its ‘related companies’.  The affected
contracts will,
moreover, not be restored
ipso
facto
if QuickTrade is unsuccessful in
the contemplated principal litigation to which the ostensibly
‘interim’ order is expressly
linked.  To my mind
this does demonstrate that the ‘interim’ order, to the
extent that it is an effective order,
is final in substance even if
it is not final in effect in the sense that it is, at least
notionally, capable of being reconsidered
by the court that made it.
[60]
I consider the order to be final in
substance because if the interim order is complied with there will
quite obviously be no affected
clients still to be migrated when the
contemplated principal proceedings come to hearing. The migration
will already have taken
place in terms of the ‘interim’
order.  The substantive question in issue between the parties
will already have
been disposed of in accordance with QuickTrade’s
interpretation of clause 14.1.3; and whether that construction is the
correct
one will therefore be academic in the principal proceedings.
(It should be remembered in this connection that QuickTrade
does not contend that it is entitled to force referred clients who do
not wish to migrate from VTFS’s Protrader platform to
its
Metatrader 5 platform to do so, with the result that those of them
who give written notice as provided for in the interim order
are not
susceptible to being migrated irrespective of the outcome of the
principal proceedings.)
[61]
Similarly, if VTC’s interpretation
were to be vindicated in the principal case, irreparable damage would
have been done because
its contractual relationships with all the
referred clients who were active traders would have been severed by
the time of the
determination of the contemplated principal case.
It would be fanciful to conceive that actively trading clients would
be
content to have their accounts with VTC held in suspension pending
the determination of potentially protracted litigation.
If the
interim order is implemented, a victory for VTC in the principal
proceedings will also be of no practical relevance.
That much
was evident when the order was made.
[62]
The only practical purpose of a decisive
determination of the import of the contested clause in the
contemplated principal proceedings
would perhaps be to afford the
foundation for a damages claim by one party against the other; which
might explain why QuickTrade
has indicated in its supplemented
answering papers in case no. 7263/19 that it intends to amend
its particulars of claim in
the action that it instituted in case
no. 7203/19 a few days after obtaining the interim order to
include a claim for damages.
[63]
I consider that regard being had to the
character of the interim order as final in substance it would be in
the interests of justice
for it to treated as appealable if it is an
effective order.  It also weighs with me in coming to that
conclusion that the
courts that will have to make the determinative
decisions on appealability in this matter may, in addition, have
regard in making
their decision to other features of the case, such
as the non-joinder question and VTC’s contention that the order
puts it
(and QuickTrade) at risk of acting in conflict with their
respective obligations in terms of the FAIS Act.  They could
regard
either or both of those features as sufficient, by themselves,
to render the order appealable.
The effect of the interim
interdict being appealable
[64]
If the order is appealable, it would
follow, in my view, that the matter of its implementation pending the
determination of an appeal
would, by law, fall to be regulated by
s 18
of the
Superior Courts Act, rather
than by me revisiting it
on the basis invited in terms of Part B of VTC’s notice of
motion in the current matter.  The
noting of an application for
leave to appeal against an order that has final effect is to suspend
the operation of the order unless
the court, on application in terms
of
s 18(3)
of the
Superior Courts Act 10 of 2013
, otherwise
directs.
[65]
QuickTrade’s counsel, relying on
s 18(2)
of the
Superior Courts Act, submitted
however that the
order would not be suspended by reason of an application for leave to
appeal or any subsequent appeal.  As
I understood the argument
it was premised on the characterisation of the order as
(i) interlocutory and (ii) not being
final in effect in the
technical sense of that term explained earlier.  There is no
dispute concerning the incidence of the
first of those attributes, at
least in respect of the form of the order.  But it is not clear
to me that the second applies.
Counsel’s argument is
predicated on the assumption that the underlined words in the phrase
‘
an interlocutory order
not
having the effect of a final judgment
’
in
s 18(2)
denote ‘
final in
effect
’ in the
Zweni
sense.  I do not accept that is so.
[66]
A decision that has the effect of a
final judgment is in truth not an interlocutory judgment or order
notwithstanding that it might
be such in form.  That indeed is
the import of an established body of jurisprudence, salient
components of which were referred
to in the majority judgment in
Cipla Agrimed
.
There is no logical basis for distinguishing orders that are dressed
up as interlocutory but are in effect final, and therefor
actually
final, from those to which
s 18(3)
applies.  And I cannot
conceive of any sensible object that the legislature could be thought
to want to achieve by drawing
any such distinction.
[67]
In my judgment
s 18(2)
is directed at
regulating the position in those exceptional cases in which an appeal
is sought to be prosecuted against a simple
interlocutory order;
cf.
Ntlemeza v Helen Suzman
Foundation and another
[2017] ZASCA 93
,
[2017] 3 All SA 589
(SCA),
2017 (5) SA 402
at para. 25 read with
para. 20.  I do not think that an order, such as the one in
the current case, that from the moment
it is made would be final in
substance, falls into that category.  In my view the latter type
of order is one to which
s 18(1)
would apply.
[68]
But even were I wrong in this regard, the
considerations that underpin my characterisation of the order in case
no. 5717/19
as one to which
s 18(1)
applies would in that
event provide sufficient reason, if there were a relevant
application, for an order in terms of
s 18(2)
to be made.
The effectiveness of the
interim order in case no. 5717/19
[69]
It will have been noticed that I repeatedly
qualified my discussion concerning the appealability of the order in
case no. 5717/19
by making it clear that it was proceeding on
the assumption that the order was an effective one.  If the
order is not effective
in a practical sense, that would be a factor
detracting from it being necessary or appropriate to characterise the
order as appealable.
There would also be little point in
entertaining the application for declaratory relief at this stage,
rather than letting
the meaning of the contentious contractual
provision stand over for determination, if necessary, in the pending
action.
[70]
The reason for the qualification concerning
the effectiveness of the ‘interim’ order is that it is
undisputed that the
referred clients trade their CFDs on the
Protrader platform operated by VTFS.  And that they do so in
terms of contracts concluded
directly with VTFS.  It was also
common cause (at least before me, although I gather QuickTrade’s
position might have
been different when the matter was argued before
the duty judge) that the ‘interim’ order does not bind
VTFS or the
clients because they were not party to the proceedings in
case no. 5717/19.  It was acknowledged by QuickTrade’s

counsel before me that this impacted materially and negatively on the
effectiveness of the ‘interim’ order that had
been
obtained.  Counsel who appeared for VTFS and one of the clients
in the intervention applications in case no. 5717/19,
which were also
enrolled for hearing before me, confirmed as much.  He made it
plain that VTFS would not be complying with
the order because it was
not bound by it.
[71]
After notice of the order was given to the
clients, about 800 of them indicated their wish to transfer their
business from the Protrader
platform to Quicktrader’s
Metatrader 5 platform.  They have already been migrated in
accordance with their wishes.
Another 500 or so have indicated
that they wish to remain on Protrader.  The vast majority of the
referred clients have not
reacted at all.  Whatever
Quicktrader’s position might have been when it sought the
interim interdict, its counsel indicated
when the matter was argued
before me that they accepted that clients who did not take active
steps to cancel their contracts with
VTFS could not be prevented from
continuing to trade on Protrader.  The current indication
therefore is that the vast majority
of the 15 000 or so clients
in contention will remain on Protrader irrespective of the order made
in case no. 5717/19.
[72]
Furthermore, paragraph 2 of the order in
case no. 5717/19, which directs that QuickTrade’s access
to the trade desk and
admin portals on the velocitytrade.com website
be restored, has to be read and understood contextually.  It
cannot be read
to extend QuickTrade’s access beyond the
three-month window period after the termination of the referral
contract in which,
on any approach, those of QuickTrade’s
clients that were amenable to being transferred to another trading
platform might
have been expected to continue trading on Protrader
before they were migrated.  Access to the portals was provided
in terms
of the contract to enable QuickTrade to monitor the referred
clients trading transactions.  It was contractually entitled to

the access only during the subsistence of the contract, and arguably
thereafter during the three-month post-termination period
provided in
terms of clause 14.1.3.  The order could not competently have
purported to confer rights on QuickTrade that it
did not enjoy under
the contract, and it would be wrong to construe it in a manner that
would undermine its competence.  The
three-month period in
question had virtually expired by the time argument in the
application was completed in early June.
As I have described at
length, the intended effect of the order was that the migration of
clients should occur within the stipulated
window period.  It
was directed (largely ineffectually, as things turned out) at
specific performance.
[73]
In the circumstances it was not altogether
clear why VTC should be so anxious to have the order revisited by way
of the current
proceedings, attended as they were by an application
by VTFS and a referred client to be permitted to intervene in case
no. 5717/19
for the purpose of prevailing on the court also to
revisit the order.  I think that part of the reason may have
been because
QuickTrade had contended in correspondence that VTC was
obliged by the interim order to prevail upon VTFS to do whatever was
necessary
to enable effective compliance with the terms of the order
that required no further trading on the accounts of referred clients

other than for purpose of ‘closing out existing transactions’.
It is also apparent that the existence of the
order and the
communications that were being addressed to the referred clients
about it were regarded by VTC and VTFS as prejudicial
to their
businesses.
[74]
The bifurcated basis for revisiting the
order inherent in the applications in case no. 5717/19 for leave
to intervene and the
application in case no. 7263/19 was, no
doubt, the principal basis for the prayer in paragraph 2 of Part
B of the notice
of motion in the latter matter for the consolidation
of the two matters.  It has fallen away for practical purposes
because,
advisedly, the intervention application by VTFS was not
persisted with, and that of the investor, Waheed Safa, not pursued
with
any vigour.  The application for ‘consolidation’
was in any event strictly speaking misguided because the matters
are
not susceptible to an integrated hearing.  What VTC actually
seeks is a determination of its application for declaratory
relief,
and pursuant thereto, if that is decided in its favour, a revisiting
of the ‘interim’ order so that it may
be discharged.
It really wants the two applications, which can only be decided
consecutively, argued together for convenience.
That has, in
effect, already happened.
[75]
In fairness to VTC it must be acknowledged
that many of the aspects in respect of which QuickTrade now
acknowledges that the interim
order is ineffectual were not clear at
the time that the application in case no. 7263/19 and the
intervention applications in case
no. 5717/19 were instituted.
Indeed, as counsel for VTFS pointed out when announcing that his
client did not persist
in its application for leave to intervene in
case no. 5717/19, had VTFS been aware in advance of the
concessions that QuickTrade
would make about the ineffectualness of
the order in its response to the intervention application, the
application would not have
been brought in the first place.
Lis pendens
[76]
This brings me to the
lis
alibi pende
ns objection, which would
ordinarily be dealt with first.  In the light of my conclusion
that the application for declaratory
relief should not be entertained
in this matter because it is sought principally in order to provide a
platform for this court
to set aside the order in case no. 5717/19
that, if it is to be impugned, should rather be taken on appeal, it
is strictly
speaking not necessary to deal with the objection.
But in case I am wrong on appealability I shall nevertheless do so.
[77]
It was not in dispute that the essential
requirements of the dilatory plea of
lis
pendens
– rehearsed and helpfully
clarified in
Caesarstone Sdot-Yam Ltd v
The World of Marble and Granite 2000 CC
and Others
[2013] ZASCA 129
,
[2013] 4 All SA 509
(SCA),
2013 (6) SA 499
–
are satisfied on the facts.  The only matter for decision in
this connection being whether this court should exercise
its
discretion against QuickTrade and decide on the proper interpretation
of clause 14 in these proceedings in case no. 7263/19,
when it
is also the central issue in the action pending in case no. 7203/19.
As I understand
Caesarstone
,
the burden of persuasion is on VTC in this regard.  The relevant
principle is that ‘[o]
nce a suit
has been commenced before a tribunal that is competent to adjudicate
upon it, the suit must generally be brought to its
conclusion before
that tribunal and should not be replicated
’
(per Nugent AJA in
Nestlé (South
Africa) (Pty) Ltd v Mars Inc
[2001]
ZASCA 76
,
2001 (4) SA 542
(SCA),
[2001] 4 All SA 315
at para. 16).
[78]
I have already identified why VTC would
seek to have the import of clause 14 declared at this stage, instead
of having to await
the outcome of the action instituted by
QuickTrade.  VTC argues that the contract is unambiguous and the
meaning of the clause
is clear.  It emphasises that in any event
there is no dispute as to the factual context in which the referral
contract was
concluded, and evidence by the principals as to what
they
regard the meaning of the clause to be is inadmissible.  It has
also highlighted that the referral contract contains a sole
memorial
clause and a recordal that the agreement was not induced by any
representations not expressly incorporated in the deed
of contract.
[79]
The declaratory relief sought in terms of
paragraph 5 of the notice of motion is directed at obtaining an
indisputably final order
in respect of the import of clause 14 of the
referral contract, which, as described, is the issue underpinning the
interim interdict.
If that question were determined in VTC’s
favour, it would anticipate the determination of most of the relief
currently sought
in QuickTrade’s action in case no. 7203/19.
It would not result in the automatic discharge of the interdictory

relief granted in case no. 5717/19 because that remedy,
according to its tenor, remains in place until the determination of

any appeal in whatever forum a final order is obtained.  It
would, however, by reason of the changed circumstances, afford
a
basis for this court to revisit the interdict.
[80]
QuickTrade contends that it would not be
appropriate to determine the proper meaning of clause 14.1.3 on
paper.  It argues
that ‘a court with the benefit of full
discovery between the parties and a full analysis of how the Referral
Agreement came
about, the factual context in which it was concluded
as well as an unravelling of the relationship between VTC and VTFS,
will be
better armed to make a final determination of the
interpretation of clause 14.1.3.
[81]
The argument that discovery might throw up
something of value to the proper construction of the contract is not
compelling.
QuickTrade has not identified anything in
particular that it would expect to become available through
discovery.  I would
imagine that both the contracting parties
would already be in possession of any documents extraneous to the
contract that might
be of relevance.  I would therefore have
expected QuickTrade to have attached such documentation to its
supporting papers
in case no. 5717/19 and its answering papers in
case no. 7263/19.
[82]
I do not agree, however, with VTC’s
contention that the meaning of clause 14 of the referral contract is
obvious.  Indeed,
the very grant of the interim interdict, which
must, as discussed, have proceeded on the basis of an interpretation
of the contract
by the duty judge at odds with that contended for by
VTC, suggests the contrary.
[83]
I do not intend to entertain the
application for declaratory relief, but shall mention just some of
the difficulties with clause
14.1.3 that lead me to believe that its
interpretation might be assisted by oral evidence about the practical
operation of the
contract and how that might be wound down. For
example, the sub-clause stipulates without qualification that
QuickTrade will continue
to receive remuneration in respect of
existing clients for three months after termination of the contract
and yet, at the same
time, contemplates the migration of those
clients to a new broker
within
that period.  That to my mind is an internal contradiction.
It certainly does not seem to support the notion that VTC
should
freeze the clients’ accounts upon termination, as the interim
order provides in accordance with the relief sought
by QuickTrade in
case no. 5717/19.  But quite what is to happen is by no
means clear.  Evidence as to the practical
implications of that
provision in the context of how the contract operated might be useful
in resolving the apparent internal contradiction.
It is equally
not clear to me how clause 14.1.4 works in conjunction with clause
14.1.3.  What are the respective rights and
obligations referred
to in clause 14.1.4?  Evidence to identify them might be of
assistance in throwing light on the meaning
of the two sub-clauses,
which, on the express wording of clause 14.1.4, were obviously
intended to be understood in conjunction
with each other.  An
insight into the practical implications of clause 14.1.4 might throw
light on the meaning of clause 14.1.3.
Evidence about the
mechanics of the migration exercise contemplated by clause 14.1.3
might also give an insight into the meaning
of the sub-clause.
[84]
The evidence before me is to the effect
that prevailing upon clients to move from one platform to another
would constitute a form
of advice, which neither QuickTrade nor VTC’s
related company VTFS, are permitted by their licences under the FAIS
Act to
furnish.  This is something that makes it difficult for
me to understand precisely how clause 14.1.3 would work.
[85]
The relief sought by VTC is that the court
should declare that ‘
that the word
“assist” as reflected in the Referral Contract imposes no
more than the duty to close accounts upon receipt
of the written
instruction of investors who wish to close their accounts
’.
It seems to me, however, at least on the face of it, that VTC would
be obliged to do that anyway in terms of its
contractual
relationships with the referred clients.  And the declaration
contended for implies a duty to react to the request
of
the
clients
, not QuickTrade.  The
sub-clause, however, requires VTC to assist
QuickTrade
,
not the clients.  I suspect that at the end of the day the
pertinent question is the meaning of the sub-clause, rather than
a
particular word in it.  It may even turn out that it is
incapable of lawful implementation.  I am not sure.  I

think I have said enough to indicate that I consider that providing
the answer might be facilitated by oral evidence.  That
would
have been reason enough, if it had been necessary to get that far, to
uphold the
lis pendens
objection.
[86]
In the result, the relief sought in
paragraphs 3 and 5 of Part B of the notice of motion in case no.
7263/19 will be refused.
[87]
I do not propose to make a costs order at
this stage.  I would prefer to do so after the final
determination of the principal
proceedings in case no. 7203/19.
A consideration that weighs with me in that regard is that the
application may not
have been launched had QuickTrade made its
position about the essential ineffectualness of the order in case
no. 5717/19 clear
at an earlier stage.  That is an aspect
that might incline me towards making no order as to costs.  On
the other hand,
were QuickTrade to succeed in the principal
proceedings, I might look more favourably on awarding them their
costs in respect of
this part of the current proceedings.  I
would prefer to keep an open mind on the question for the time
being.  The parties
will therefore be given leave to enlist the
matter of costs for determination by me when that stage has been
reached, or in the
event that those proceedings are not prosecuted to
a conclusion, (which strikes me as a realistic possibility) as soon
as it becomes
clear that they will not be.  It can be decided
after consultation with me at that stage whether any further argument
on costs
should be by way of written or oral submissions.
The applications by VTFS
and Waheed Safa for leave to intervene in case no. 5717/19
[88]
As mentioned, the application by VTFS was
not persisted with.  I have already noted that the order in case
no. 5717/19
was not binding on either VTFS or the referred
clients.  I accept, however, that VTFS was concerned about the
effect of the
order on it in view of the attitude that QuickTrade
adopted in correspondence in which it was suggested that VTC was
obliged to
procure VTFS’s compliance with the order.  Both
of the applicants for leave to intervene were also concerned by the
effect of the literal effect of paragraphs 3 and 5, which might be
read to freeze the referred clients’ trading accounts.
By
the time the matter was ripe for argument, QuickTrade had clarified
its understanding of the effect of the order and made it
clear that
it now appreciated that it was essentially nugatory.
[89]
During argument, QuickTrade’s counsel
also indicated that QuickTrade would have no objection to an order
being made declaring
that Mr Safa (the investor who sought to
intervene) was not prohibited from acquiring CFDs from VTC.
What applied to Mr Safa
would obviously hold good for all of the
other referred clients.  I have no intention, however, of making
an order that has
not been sought on the papers.  It is
sufficient for me to record counsel’s clarification in the body
of the judgment.
That, together with the acknowledgment by all
concerned that the order in case no. 5717/19 has no effect on
the clients’
ability to continue trading on VTFS’s
Protrader platform, makes it clear that if there ever were a need for
Mr Safa
to be granted leave to intervene, there no longer is.
[90]
I think it would be fair in all the
circumstances that the intervention applications should be dismissed
with no orders as to costs.
The relief sought in Part A
of the notice of motion in case no. 7263/19
[91]
VTC sought the following substantive relief
in Part A of its notice of motion in case no. 7263/19: An order
–
1.
that QuickTrade and the second respondent
(Mr van Pletsen) are interdicted and restrained from defaming VTC;
2.
that QuickTrade and the second respondent
are interdicted and restrained from competing unlawfully with VTC;
3.
that QuickTrade and the second respondent
are interdicted and restrained from stating, publishing,
communicating or in any way disseminating
statements which repeat, or
which convey similar assertions to, the following:
3.1 “They can’t trade
for any clients we referred to them and the clients must be
transferred UNLESS they specifically
chose to stay with VT”;
3.2 “When I told them that
I bought a Metatrader 5 License they stopped paying QuickTrade
its commissions and they tried
to hijack the clients”;
3.3 “I don’t think
they have the R25 million.  I am going to do everything I
can to put them out of business”;
3.4 “We’re going to
teach Velocity Trade a lesson”;
3.5 That Protrader clients are
obliged or compelled to close their Protrader accounts;
3.6 That Velocity Trade entities
are charging R500.00 as a withdrawal fee to clients who close their
accounts;
3.7 That Velocity Trade’s
clients are not clients of Velocity Trade and that such clients may
not continue to trade with Velocity
Trade;
3.8 That Velocity Trade has
ceased paying what is owed to QuickTrade.
The relief sought in Part A was
initially sought in the form of a rule
nisi
operating as an
interim interdict pending the return date.  But in the event by
the time the matter was argued QuickTrade
had filed a full answer and
the application was argued on both sides as one for a final order.
[92]
The instances identified in sub-paragraphs
3.1 to 3.8 of the relief sought by VTC as described in the preceding
paragraph relate
to actual or alleged statements by Mr van Pletsen.
The statements were made in the course of a WhatsApp conversation
with
one Nhlanhla Ndlovu, a former business associate, on 26 April
2018 soon after the order in case no. 5717/19 had been made,
and
in bulk emails to referred clients, dated 26 March and 28 April
2019, respectively.  There was also an exchange
of emails on 28
and 29 April 2019 between VTC and a client who had received an
SMS message, apparently from Mr van Pletsen,
giving the client to
believe that VTC would charge a fee of R500 for the closure of the
client’s account.  They were
put up as the basis for the
interdictory relief sought by VTC in the wide and undefined terms
stated in paragraphs 1 and 2 of the
order sought as described in the
preceding paragraph.
[93]
The statements in the bulk email to which
VTC takes exception are:
i.
‘
Velocity Trade is hijacking
QuickTrade’s clients.
’
(Bold print in the original.)
ii.
‘
By continuing to trade on Protrader
you assist Velocity Trade to act unlawfully and you may soon find
yourself in a position where
Velocity Trade’s Protrader is
interdicted from rendering new trading facilities to you.’
[94]
The statements fall to be assessed in the
context of the email as a whole.  It went as follows:
From: [a no
reply email address] On behalf of Hardus Van Pletsen
Sent: Tuesday, 26
March 2019 08:39
To: [a referred
client’s email address]
Subject:
QuickTrade – Notification regarding Velocity Trade
(Protrader).
Dear [referred
client]
As a QuickTrade
client, you have the right to know certain facts.
You received 2
emails from Velocity Trade, stating that QuickTrade will no longer be
referring its clients to Velocity Trade to
trade on their Protrader
platform.
This is correct.
QuickTrade took this
step for very specific reasons:
·
QuickTrade recently
became a Licensed Provider of the Metatrader 5 trading platform
(MT5), which is used by more than a million
people.
·
MT5 is now available
for Installation to all QuickTrade’s clients,
existing
and new.  We therefore no longer need Velocity Trade or its
Protrader platform as the “middleman”.  As you
know,
using a “middleman” increases costs and leads to
inconvenience.
·
QuickTrade specifically
chose the MT5 trading platform since, in our view, it better suits
the needs of our clients and of our business;
·
Existing QuickTrade
clients, who are Protrader users, encountered many administrative
frustrations with the Protrader platform,
just like QuickTrade did.
QuickTrade’s
contract with Velocity Trade has now been terminated.
Velocity Trade’s
emails to QuickTrade’s existing clients, creating the
impression that they may continue trading on
Protrader under their
Client Agreement is a breach of its contract with QuickTrade.
As per the contract,
termination compels Velocity Trade to migrate existing QuickTrade
clients using Protrader , to QuickTrade.
QuickTrade has
instructed Velocity Trade to move its clients to QuickTrade.
Velocity Trade is
hijacking QuickTrade’s clients.
Velocity Trade has
revoked QuickTrade and our clients’ access to the Tradedesk
system, which QuickTrade used to track its
clients’ trading
performance.  This means that they have made it impossible for
us to support clients using the Protrader
platform, through our
Trading Mentors.
Clients can
therefore no longer do withdrawal requests via Tradedesk, they are
frustrated when they request withdrawals from their
trading account
by having to send an email to: support@za.velocitytrade.com
It is your money;
Velocity Trade can’t stop you from making a withdrawal.
Email the FSCA with a complaint if you have
the same experience using
this email address: fsca@whistleblowing.co.za
By continuing to
trade on Protrader you assist Velocity Trade to act unlawfully and
you may soon find yourself in a position where
Velocity Trade’s
Protrader is interdicted from rendering new trading facilities to
you.
The following is
important:
·
You only became a
Protrader user, because QuickTrade referred you to Velocity Trade.
·
Moving to MT5 will
strengthen your relationship with QuickTrade.  We will be able
to provide you with Support and Training.
[95]
In
my judgment the only arguably objectionable content in the email is
the statement that ‘Velocity Trade is hijacking QuickTrade’s

clients’.  The word ‘
hijack
’,
used in the context it was employed, bears strong connotations of
dishonesty or criminality.
[28]
That in my view goes beyond the sort of expression of opinion that
might be justifiable as ‘fair comment’ in
the established
meaning of that concept in the law of defamation.
[29]
The imputation of dishonesty on the part of VTC was not a reasonable
imputation to advance in circumstances where the factual
premise is a
dispute about the construction of a clause in the referral contract.
The assessment of the intention behind
the statement falls to be seen
in the context of Mr van Pletsen’s other related conduct in
regard to the dispute with VTC,
namely his declared intention to run
a hostile campaign so that once he was ‘done, no one will want
to stay with’ VTC.
And, as I shall discuss presently,
that campaign has been demonstrated to have included the deliberate
publication of false information
about the manner in which VTC dealt
with clients wishing to close their accounts.  Seen in the
broader context, the imputation
of dishonesty appears to have been
calculated to put VTC in a bad light with the referred clients so as
to make them uncomfortable
with doing business with the company
because of its attributed lack of probity.  The statement was
not only defamatory, but,
in an unacceptable manner, directed at
furthering the competitive object of prevailing on clients to close
their accounts with
VTC and move to QuickTrader’s trading
platform.
[30]
[96]
I
have approached the matter in the preceding paragraph on the basis of
QuickTrade’s defence of ‘fair comment’

notwithstanding my doubts that that defence is applicable in the
circumstances because the subject matter in issue does not strike
me
as being one of public interest.  In my view, the appropriate
basis for justification of the adverse comment in the bulk
email was
that it was made on a privileged occasion:  One on which
QuickTrade had a right or interest in making the statements
to
persons who had a similar right or interest in receiving them.
But the proper categorisation of the defence makes no difference
to
the reason for not upholding it. That applies equally irrespective of
the labelling.
[31]
[97]
Some of the statements made by van Pletsen
in his WhatsApp conversation with Ndlovu are undoubtedly defamatory
of VTC; others are
merely his relaying to his then friend of his
understanding of the content and import of the order that QuickTrade
had obtained
in case no. 5717/19, or telling him that VTC had
not paid its most recently due commission payment to QuickTrade
(which was
true, although VTC said that it was because the amount was
still in the course of being computed).  The statements
identified
in subparagraphs 3.1, 3. 5 and 3.7 in paragraph [91]
above are supportable on a reading of the order.
There was nothing secret about the order and van Pletsen was entitled
to
discuss it with whomsoever he wished.  There is also no basis
upon which van Pletsen can be prevented from expressing the opinion

that QuickTrade ‘will teach [VTC] a lesson’.  No-one
is under any obligation to pretend that there is any love
lost
between the two companies, or to refrain from remarking on their
hostile relationship or intention to compete fiercely for
the
exclusive custom of clients they once shared.
[98]
I would not have been inclined to exercise
the court’s discretion in favour of granting interdictory
relief arising out of
the statement by van Pletsen in the course of
his conversation doubting that VTC would be able to account to
clients for the R25 million
(VTC says it was
actually R17 million) held in trust.  The statement
was undoubtedly seriously defamatory because
of its primary
implication that VTC had misappropriated trust funds and secondary
implication that VTC was bankrupt, or at least
illiquid.  But
the fact that this statement was made in the course of a conversation
between friends and business associates
was no indication by itself
that it was likely to be repeated to the client-investors or the
world at large, which is the sort
of situation to which interdictory
relief is appropriately directed; damages being the indicated remedy
for wrongs already committed.
[99]
VTC’s counsel sought to persuade me
to a different view with reference to an email, dated 29 April
2019, from one of
the clients addressed to van Pletsen and VTC, the
body of which read as follows:
To my knowledge and
my agreement with you was no legal payment is involved if you are no
longer interested.  You promised to
trade for me but you did not
deliver the service.  Now you are bankrupt so you want to cover
your problem.  You also
promised to trade for me.  Where is
the money that I paid to join??????  Then you can tell me all
this nonsense you are
talking about
I have not found the email, which
was annexed to VTC’s replying papers, particularly
illuminating.  It is incoherent.
And it is by no means
clear whether the accusations of bankruptcy and possible
misappropriation of money contained in it were levied
against VTC or
QuickTrade or both.  It is apparent from other correspondence
attached to VTC’s supplementary replying
affidavit that the
circularisation of the terms of the court order in QuickTrade’s
above-mentioned bulk email, perhaps foreseeably,
has caused
considerable confusion in the minds of a number of clients.
That has probably been detrimental to both companies.
It is a
consequence of the litigation in case no. 5717/19.  I am
not satisfied that the evidence establishes that QuickTrade
or van
Pletsen have been putting into general circulation that VTC has
misappropriated trust money.
[100]
VTC did, however, put up evidence
establishing that QuickTrade had put it about by means of SMSs sent
to at least some of the referred
clients that VTC was charging
clients who wished to close their accounts a fee of R500.  This
was having a demonstrably unsettling
effect on VTC’s customer
relationships, and the allegation was false.
[101]
QuickTrade has sought to explain itself by
asserting in answer that the ‘information was obtained from
clients’.
In my judgment the baldly stated answer is an
insufficient explanation.  It is unsupported by any
corroborative detail.
One would expect QuickTrade in the
circumstances to be able to identify the alleged sources of the
information with particularity,
and to do so in its answering
affidavits.  It cannot escape notice that the false information
was spread by SMS more or less
contemporaneously with the intimation
by Mr van Pletsen in the course of his aforementioned WhatsApp
conversation with Mr Ndlovu
that he intended to wage a campaign
against VTC by email and SMSs to the referred customers, at the end
of which, he believed,
no client would be prepared to remain with
VTC.
[102]
In my judgment VTC has succeeded in this
respect in proving an instance of unlawful competition by QuickTrade
and, in the light
of van Pletsen’s intimations to Ndlovu, a
reasonable apprehension that QuickTrade might persist in its unlawful
conduct by
disseminating falsehoods about VTC’s business
practices.  It is entitled to interdictory relief to prevent any
continuance
of the unlawful conduct.
[103]
Counsel for QuickTrade and Mr van Pletsen
argued that as only the former, and not the latter, was in
competition with VTC it would
be inappropriate for any interdictory
relief based on the delict of unlawful competition to be granted
against van Pletsen.
I do not agree.  It is quite clear on
the evidence that van Pletsen is the driving mind behind QuickTrade’s
campaign
against VTC and its principal agent in the execution
thereof.  He is as answerable as his principal is for the
consequences
of his unlawful conduct on its behalf and is just as
susceptible as the company to a prohibitory interdict to stop its
continuance.
[104]
Costs will follow the result in respect of
the relief granted in respect of Part A of the notice of motion.
I think that the
employment of two counsel was reasonable in the
circumstances, and QuickTrade’s counsel did not argue to the
contrary.
For the assistance of the taxing master I would
indicate that in my estimation about 40% of the time spent in the
hearing of argument
was taken up in respect of the relief sought in
terms of Part A of the notice of motion.
Order
[105]
The following order is made:
1.
In respect of the relief sought in terms of
Part A of the notice of motion in case no. 7263/19:
(a)
Leave is granted in terms of rule 6(12)
dispensing with the forms, service and time periods provided in the
rules of court and for
the application to be heard as a matter of
urgency.
(b)
The first and second respondents are hereby
interdicted from competing unlawfully with the applicant by way of
publishing any false
information about the applicant’s business
practices.
(c)
The first and second respondents shall be
liable jointly and severally, the one paying, the other being
absolved, to pay the applicant’s
costs of suit including the
fees of two counsel.
2.
In respect of the relief sought in terms of
Part B of the notice of motion in case no. 7263/19:
(a)
Leave is granted in terms of rule 6(12)
dispensing with the forms, service and time periods provided in the
rules of court and for
the application to be heard as a matter of
urgency.
(b)
The application is refused.
(c)
Costs shall stand over for later
determination on the basis explained in paragraph [87]
of
the judgment.
3.
In respect of the applications by Velocity
Trade Financial Services (Pty) Ltd and Waheed Safa, respectively, for
leave to intervene
in case no. 5717/19:
(a)
The applications are refused.
(b)
There shall be no orders as to costs.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Counsel for Velocity Trade
Capital (Pty) Ltd:

Mark Seale SC
Megan de
Wet
Attorneys for Velocity Trade
Capital (Pty) Ltd:

Hayes Incorporated
Cape Town
Counsel for QuickTrade (Pty)
Ltd and
Hardus Storm van
Pletsen:

George Kairinos SC
Blane
Hansen
Attorneys for QuickTrade (Pty)
Ltd and
Hardus Storm van
Pletsen:

W.P. Steyn Attorney
Johannesburg
De Klerk
Van Gend
Cape Town
Counsel for the applicants for
leave to intervene:
Naudé
de Wet
Attorneys for the applicants
for leave to intervene:
Roelf van der Merwe Robertson
Durbanville
Hayes
Incorporated
Cape Town
[1]
In
clause 1.1.4.  The Johannesburg Stock Exchange website defines
a CFD as ‘
an
agreement to exchange the difference in value of a particular asset
between the time at which a contract is opened and the
time at which
it is closed
’;
https://www.jse.co.za/trade/derivative-market/equity-derivatives/single-stock-derivatives/contracts-for-difference
(accessed
on 14 July 2019).  An article on the Investopedia website
explains ‘
A
contract for differences (CFD) is an arrangement made in financial
derivatives trading where the differences in the settlement
between
the open and closing trade prices are cash settled. There is no
delivery of physical goods or securities with CFDs
’;
https://www.investopedia.com/terms/c/contractfordifferences.asp
(accessed
on 14 July 2019).
[2]
The
deponent to VTC’s founding affidavit in case no. 7263/19
explained that VTC might be compared to a public company that
issues
shares and the software platform to the stock exchange on which a
person allotted such shares might trade them.
[3]
Underlining
supplied.
[4]
See
clause 8 read with the definition of ‘remuneration’ in
clause 1 and Appendix 1 to the deed of agreement.
[5]
It
seems to me that inasmuch as the trading services on the Protrader
platform that QuickTrade sought to stop were rendered by
VTFS, and
not VTC, the relevant defence should have been one of misjoinder,
not non-joinder.  But in the context of the
current proceedings
that is a question that bears only on the effectiveness of the order
in case no. 5717/19; a matter to
which I shall come later in
this judgment.
[6]
In
paragraph [17].
[7]
I
shall address Part A of the notice of motion in case no. 7263/19
later in this judgment.  It goes to certain interdictory
relief
sought against QuickTrade and Mr van Pletsen based on allegations of
defamation and unlawful competition.
[8]
In
paragraph [91].
[9]
See,
for example,
Cronshaw
and Another v Coin Security Group (Pty) Ltd
[1996] ZASCA 38
;
1996
(3) SA 686
(SCA),
[1996] 2 All SA 435
at 438 (All SA),
Minister
of Safety and Security and Another v Hamilton
2001
(3) SA 50
(SCA) at para. 4 and
Van
Niekerk and Another v Van Niekerk and Another
[2007] ZASCA 116
, 2008 (1) SA 76 (SCA),
[2008] 1 All SA 96
at
para. 5.  In
Zweni
v Minister of Law and Order
1993 (1) SA 523
(A),
[1993] 1 All SA 365
, at 531 (SALR), Harms AJA
observed that ‘[t]
he
issue whether a decision is an appealable “judgment or order”
is complicated by a number of factors and has been
the subject of a
large number of judgments over many years
’.
[10]
In
L
iberty
Life Association of Africa Ltd v Niselow
(1996) 17 ILJ 673 (LAC).
[11]
It
seems clear from the minority judgment and implicit in the majority
judgment that all of the members of the court in
Cipla
Agrimed
interpreted the expression ‘
finally
determined
’
in the impugned order to mean the final determination at trial; in
other words they do not appear to have understood it
to include the
determination of any subsequent appeals as expressly provided in
paragraph 5 of the order in case no. 5717/19
in the current
matter.
[12]
In
Merck
Sharpe Dohme Group v Cipla Agrimed (Pty) Ltd
[2015] ZASCA 175
;
2016 (3) SA 22
(SCA).
[13]
See
Merck
Sharp Dohme Corporation and Others v Cipla Agrimed (Pty) Ltd
[2016] ZAGPPHC 465 (8 April 2016).
[14]
Cipla
Agrimed
at
para. 21.
[15]
See
point 8 in
Zweni
supra, at pp. 532-533 (SALR).
[16]
In
Cipla
Agrimed
,
at para. 40, Gorven AJA appears to accept that there is no
difference for the purposes of appealability between an ostensibly

interim order that is ‘final in effect’ and one that is
final in substance.  The impugned decision in issue
in that
matter was neither.
[17]
See
King
supra, at paras. 43 (per Harms DP) and 52 (per Nugent JA).
[18]
Id
.,
at para. 26.
[19]
Appealability
was not an issue in
BHT
;
nor was it in
Reddy
v Siemens Telecommunications (Pty) Lt
d
[2006] ZASCA 135
;
2007 (2) SA 486
(SCA), in which
BHT
was referred to with approval.
[20]
In
para. 47.  (Rogers AJA noted his disagreement with that
characterisation of the argument at para. 31.)
[21]
It
seems to be established that the word ‘
decision
’
in s 16 of the currently applicable
Superior Courts Act 10 of
2013
has exactly the same import as the words ‘
judgment
or order
’
did in
s 20(1)
of the repealed Supreme Court Act; see e.g.
Firstrand
Bank Limited t/a First National Bank v Makaleng
[2016] ZASCA 169
(24 November 2016), at paras. 10-15, and
Neotel
(Pty) Ltd v Telkom SA Soc Ltd and others
[2017] ZASCA 47
(31
March 2017), at paras 12-13.
[22]
Zweni
supra,
at p. 536A-C (SALR).
[23]
In
Moch
v Nedtravel
the
appeal court held that an order refusing an application for a
judge’s recusal was appealable notwithstanding that it
in was
in no way dispositive of the question in issue in the litigation.
[24]
Section
26(10)(a) provides:
A High Court
which made a restraint order—
(a) may on
application by a person affected by that order vary or rescind the
restraint order or an order authorising the seizure
of the property
concerned or other ancillary order if it is satisfied—
(i) that the
operation of the order concerned will deprive the applicant of the
means to provide for his or her reasonable living
expenses and cause
undue hardship for the applicant; and
(ii) that the
hardship that the applicant will suffer as a result of the order
outweighs the risk that the property concerned
may be destroyed,
lost, damaged, concealed or transferred;
[25]
At
para. 22
[26]
Id.
[27]
See
Cipla
Agrimed
at para. 37.
[28]
The
Oxford
Dictionary of English
defines the verb ‘
hijack
’
as follows: ‘unlawfully seize (an aircraft, ship, or
vehicle) in transit and force it to go to a different
destination or
use it for one's own purposes:
a
man armed with grenades hijacked the jet yesterday
. • steal
(goods) by seizing them in transit:
the
UN convoys have been tamely allowing gunmen to hijack relief
supplies
. • take
over (something) and use it for a different
purpose:
he argues
that pressure groups have hijacked the environmental debate
.’
[29]
Cf.
The
Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others as
Amici Curiae)
[2011]
ZACC 11
,
2011 (4) SA 191
(CC),
2011 (8) BCLR 816
at para. 81 and the
earlier authority cited there in the footnote references.
[30]
I
take a different view of the use by van Pletsen of the word
‘hijacking’ in his WhatsApp conversation with Ndlovu.

I am not persuaded that it was uttered there with same motive or
purpose that it appears to have been employed in the bulk email
to
the referred clients.
[31]
Cf.
Basner
v Trigger
1946 AD 83
at 95.