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[2016] ZAGPPHC 115
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Rolfes PWM (Pty) Ltd v Golding (3579/2016) [2016] ZAGPPHC 115 (1 April 2016)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case number: 3579/2016
Date: 01/04/2016
Not reportable
Not of interest to other judges
Revised
In the matter between:
ROLFES PWM (PTY)
LTD APPLICANT
And
ROBERT WILLIAM
GOLDING RESPONDENT
JUDGMENT (APPLICATION FOR LEAVE TO
APPEAL)
PRETORIUS
J,
APPLICATION FOR LEAVE TO APPEAL
(1)
The court granted a
restraining order against the respondent on 12 February 2016.
The respondent now applies for leave to
appeal the order and the
judgment. The parties are cited as they were in the main application
for purposes of convenience.
(2)
I have considered all the
arguments by counsel, both written and oral, I find that there is a
possibility that another court may
come to a different conclusion on
the facts and leave to appeal should be granted. The parties,
in these exceptional circumstances,
are entitled to approach the
registrar to have the matter heard on an urgent basis by the full
bench of this division.
APPLICATION BY APPLICANT
(3)
The applicant is applying
to this court that paragraphs 2 and 3 of the original order must be
immediately implemented should leave
to appeal be granted.
(4)
The applicant is seeking
relief in terms of section 18 of the
Superior
Court Act, 10 of 2013
.
This application by the applicant is brought to restrain the
respondent to contact approximately 150 of the applicant’s
customers. It is common cause that the respondent is currently
employed by G-Chem, where both his father and uncle are working.
G-Chem is in direct competition with the applicant.
(5)
The original application
was launched as the respondent had approached one of the applicant’s
clients and did a presentation,
in the same field as he had worked
for the applicant namely to FNB, Fairlands. This lead to the urgent
application.
(6)
The applicant argues that
exceptional circumstances exist in the present application as it
takes between 18 to 24 months for a full
bench appeal to be heard.
Therefore, according to the applicant, the urgent order of 12
February 2016 will be of no value
as the restraint of trade will have
expired by the time the appeal is heard. The applicant further
submits that it would
suffer irreparable harm should the court grant
leave to appeal and not grant the relief sought pending the outcome
of the appeal.
(7)
The further argument is
that the respondent will not suffer irreparable harm should the order
be implemented, as, if the respondent
is successful on appeal, he can
sue for loss of earnings.
(8)
The respondent avers that
he will suffer irreparable harm as, according to him he was only
employed in Gauteng Central and therefore
the order of the whole of
Gauteng is too wide.
(9)
The respondent submits
that if the application is granted he will have to relocate to the
Cape Province, which will cause him irreparable
harm, as he will only
be able to return to Gauteng in November 2017, after the restraint
has lapsed.
(10)
The respondent has made a
tender, which was confirmed in court that he will not approach any of
the approximately 150 customers
of the applicant whose identity he
will have been notified of by the applicant in writing within the
geographical area of the jurisdiction
of the High Court of Gauteng
Local Division, Johannesburg.
(11)
The applicant did not
accept the tender and informed the respondent in a letter, dated 1
March 2016, that the respondent “
is
acutely aware of the prescribed customers”
.
(12)
In the case of
Incubeta
Holdings (Pty) Ltd and Another v Ellis and Another 2014(3) SA 189
(GJ)
, Sutherland J
dealt extensively with section 18 and found in paragraph 22:
“
Necessarily,
in my view,
exceptionality
must be fact-specific. The circumstances which are or may be
'exceptional' must be derived from the actual predicaments
in which
the given litigants find themselves
.
I am not of the view that one can be sure that any true novelty has
been invented by s 18 by the use of the phrase. Although that
phrase
may not have been employed in the judgments, conceptually the
practice as exemplified by the text of rule 49(11), makes
the notion
of the putting into operation an order in the face of an appeal
process a matter which requires particular ad hoc sanction
from a
court. It is expressly recognised, therefore, as a deviation from the
norm, ie an outcome warranted only 'exceptionally'.”
(Court’s emphasis)
(13)
I agree with Sutherland
J’s finding that procedural delays, although not due to the
fault of any of the litigants, is sufficient
to create exceptional
circumstances. Therefor the applicant has met the first
requirement.
(14)
The respondent will be
able to sue for damages, whilst the applicant’s damages if the
restraint order is suspended pending
the outcome of an appeal will be
irreparable. The respondent’s damages will be
quantifiable.
(15)
Under these circumstances,
if I allow the tender to be implemented, the finding in the original
judgment will be of no value to
the applicant
(16)
The applicant has complied
with the section 18 test on both legs and therefore the application
should succeed.
(17)
Accordingly, the order is:
1.
Leave to appeal is granted
to the Full Bench of the Gauteng Division.
2.
Paragraphs 2 and 3 of the
order under the aforesaid case number – dated 12 February 2016
– are immediately implemented
notwithstanding leave to appeal
such order having been granted.
3.
Costs of the leave to
appeal will be costs in the appeal.
4.
Costs of the application
for the immediate implementation of paragraphs 2 and 3 of the order
of 12 February 2016 must be paid by
the respondent.
5.
The parties are entitled
to seek an urgent allocation for the hearing of the appeal from the
registrar.
_____________________
Judge C Pretorius
Case number: 3579/2016
Matter heard on: 30 March 2016
For the Applicant: Adv. FJ Erasmus
Instructed by: VDT Incorporated
For the Respondent: Adv. J Blou SC
Instructed by: Cyril Ziman &
Associates
Date
of Judgment: 1 April 2016