About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 756
|
|
Cash Crusaders Franchising (Pty) Ltd v Swart and Another (85149/2017) [2018] ZAGPPHC 756 (27 February 2018)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
CASE NO: 85149/2017
DATE:27/02/2018
IN
THE MATTER BETWEEN:
CASH
CRUSADERS
FRANCHISING (PTY)
LTD
Applicant
and
THEO
EDUAN
SWART
First Respondent
CASH CONVERTERS
SOUTHERN AFRICA
(PTY)
LTD
Second Respondent
JUDGMENT (Application in terms of Section
18(1) of the Superior Courts Act)
KOLLAPEN
J:
1.
The
Applicant has approached court on an urgent basis seeking relief in
substantially the following terms:
i.
Directing
that the forms of service be dispensed with in respect of this
Application and that it be heard as one of urgency, together
with the
Application for Leave to Appeal.
ii.
That
the order granted by this Honourable Court on 17 January 2018 shall
operate pending the outcome of any appeal process instituted
by the
Respondents, including the Application for Leave to Appeal and any
appeal noted thereafter.
2.
Both
Respondents oppose the relief sought.
3.
The
application for leave to appeal against the order and judgement of
this court of the 17
th
January 2018 was heard together with this application and judgment in
that application will be delivered at the same time as this
judgment.
Whatever the outcome of that application, the relief sought in these
proceedings remains relevant in defining the rights
and interests of
the parties.
4.
Section
18(1) of the Superior Courts Act 10 of 2013 ('the Act') provides as
follows:
" Suspension of decision pending appeal
18. (1) Subject to subsections (2) and (3),
and unless the court under exceptional circumstances orders
otherwise, the operation
and execution of a decision which is the
subject of an application for leave to appeal or of an appeal, is
suspended pending the
decision of the application or appear .
5.
In
lncubeta Holdings (Pty) Ltd and
Another v Ellis and Another
2014
(3) SA 189
(GSJ) (16 October 2013),
the
Court characterised Section 18 as introducing a new dimension to the
test hitherto applied and went on to describe the test
as twofold,
the requirements being:
1.
Whether or not 'exceptional
circumstances'
exist;
and
2.
Proof on a balance of probabilities by
the applicant of-
i.
The
presence of irreparable harm to the applicant/victor, who wants to
put into operation and execute the order, and,
ii.
The absence of irreparable harm to the
respondent/loser, who seeks leave to appeal.
6.
The
Court also considered the meaning to be ascribed to the phrase
"exceptional circumstances" and in this regard adopted
the
following approach taken in
MV Ais
Mamas Seatrans Maritime v Owners, MV Ais Mamas,
&
Another
2002
(6) SA 150
(C):
1.
What
is ordinarily contemplated by the words 'exceptional circumstances'
is something out of the ordinary and of an unusual nature;
something
which is excepted in the sense that the general rule does not apply
to it; something uncommon, rare or different: 'besonder',
'seldsaam',
'uitsonderlik', or 'in hoe mate ongewoon'.
2.
To
be exceptional the circumstances concerned must arise out of, or be
incidental to, the particular case.
3.
Whether
or not exceptional circumstances exist is not a decision which
depends upon the exercise of a judicial discretion: their
existence
or otherwise is a matter of fact which the Court must decide
accordingly.
4.
Depending
on the context in which it is used, the word 'exceptional' has two
shades of meaning: the primary meaning is unusual or
different: the
secondary meaning is markedly unusual or specially different.
5.
Where,
in a statute, it is directed that a fixed rule shall be departed from
only under exceptional circumstances, effect will,
generally
speaking, best be given to the intention of the Legislature by
applying a strict rather than a liberal meaning to the
phrase, and by
carefully examining any circumstances relied on as allegedly being
exceptional.'
7.
The
Court in both
lncubeta
as
well as the full bench in
Actom
(Pty) Ltd v Coetzer and Another
(A269/2015)
[2015] ZAGPPHC 548 (31 July 2015)
accepted
the principle that in restraint cases the requirement of exceptional
circumstances would be met under circumstances if
the order was not
put into operation, the relief obtained in the main proceedings
(enforcing the restraint) would be forfeited
because the duration of
the restraint will expire before the exhaustion of the appeal
processes.
8.
This
is precisely the case here. If the order is not put into operation
then in all likelihood the remaining period of the restraint,
some
fourteen months, will have expired or substantially elapsed by the
time any appeal process is concluded. In such circumstances
the
relief obtained in the judgment of the 1i h of January 2018 would
largely be of academic value.
9.
My
view is that that factor in itself would constitute exceptional
circumstances and while Mr Hollander, for the Respondents, accepted
that as the proper statement of the law, he nevertheless contended
that there were circumstances that would distinguish this matter
from
those that served before the Courts in
lncubeta
and
Actom,
and they included that there was
no evidence of prejudice suffered by the Applicant, no evidence that
it lost customers, and that
some six months of the restraint period
had already elapsed .
10.
As
a matter of law I am not convinced that there is any basis for the
consideration of these factors given the approach taken in
lncubeta
and
Actom
that the fact that the relief
will be forfeited will constitute exceptional circumstances. If
however I am wrong then I am not in
any event persuaded that those
considerations in any way stand to dislodge the conclusion of
exceptional circumstances.
11.
In
the circumstances and as required by Section 18(4)(i) of the Act I am
satisfied that exceptional circumstances exist and they
are that the
relief that the Applicant succeeded in obtaining on the 1th of
January 2018 will be forfeited if the order of the
1t h of January
2018 is not put into operation, as the restraint period will probably
expire before the expiration of the appeal
processes.
12.
On
the second requirement relating to irreparable harm, it is clear that
if the order is not put into operation then the Applicant
will suffer
irreparable harm as the risk of the passing on and use of its
confidential information will remain alive. On the other
hand the
first Respondent will not suffer irreparable harm on account of the
following considerations:
a)
The
restraint only prevents him effectively from taking up employment
with the second Respondent. He has considerable experience
in the
retail industry and is free to seek employment in the open market
with very limited restriction.
b)
There
is no evidence that he will suffer financial hardship during the
period of the restraint. While his complaint is that he will
be
rendered unemployable, he does not go so far to suggest he will be
financially prejudiced during this time.
c)
The Applicant has agreed to pay the
current salary of the first Respondent until April 2019 into its
attorney's trust account for
onward transmission to the Applicant in
the event he is successful with any appeal process he embarks upon.
This will considerably
moderate any harm he may suffer financially.
13.
I
am accordingly satisfied that both requirements as contemplated in
Section 18 of the Act have been met and that a proper case
has been
made out for the relief sought.
Order
14.
In
the circumstances I would make the following order:
I.
An
order is granted in terms of Section 18 of Act 10 of 2013, directing
that the order granted by His Lordship Mr Justice Kollapen
on 17
January 2018 shall operate pending the outcome of any appeal process
instituted by the Respondents, including the application
for leave to
this court or any higher court, against the order granted by His
Lordship Mr Justice Kollapen on 17 January 2018.
II.
Any
appeal which the Respondents may wish to bring in terms of Section
18(4) of Act 10 of 2013 shall be instituted by the filing
of a notice
of appeal within 5 days of the date hereof, failing which the
Respondents' right of appeal in terms of Section 18(4)
shall lapse in
which event the Respondents shall pay the costs of this application
jointly and severally, which costs shall include
the costs of senior
counsel, the one paying the other to be absolved.
III. It
is noted the Applicant irrevocably undertakes to pay the salary which
the First
Respondent would have received from the Second Respondent
during the period from the date hereof until the appeal referred to
in
paragraph 1 above is finalised, if such appeal is determined in
favour of the First Respondent.
N KOLLAPEN
JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
HEARD
ON: 23 February 2018
FOR
THE APPLICANT: Adv. A Oosthuizen SC
INSTRUCTED
BY: Ashersons Attorneys (ref.: S Zackon)
(Correspondent
Attorneys: Jacobson & Levy Inc (ref.: Jonathan Levy/K4504))
FOR
THE RESPONDENTS: Adv. L Hollander
INSTRUCTED
BY: Thomson Wilks Inc (ref.: S Thomson/Mat13897)
(Correspondent
Attorneys: Barnard Inc & Pretorius Le Roux)