Bloomberg Orthopaedics & Neurosciences v Vermaal and Another (A457/2007) [2009] ZAFSHC 51 (23 April 2009)

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[2009] ZAFSHC 51
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Bloomberg Orthopaedics & Neurosciences v Vermaal and Another (A457/2007) [2009] ZAFSHC 51 (23 April 2009)

FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A457/2007
In
the appeal between:
BLOOMBERG
ORTHOPAEDICS &
Appellant
NEUROSCIENCES
and
MARIZE
VERMAAK
First
Respondent
FLUOROVIZION
(PTY) LIMITED
Second
Respondent
_____________________________________________________
CORAM:
HANCKE,
AJP
et
RAMPAI,
J
et
C.J.
MUSI, J
_____________________________________________________
HEARD
ON:
20
APRIL 2009
_____________________________________________________
JUDGMENT
BY:
HANCKE,
AJP
DELIVERED
ON:
23
APRIL 2009
_____________________________________________________
[1] This
appeal is against the judgment of Ebrahim J delivered on 12 October
2008 and pursuant to which leave was granted to the
appellant to
appeal to the
Full
Bench of this Court. The appeal arises from an application launched
by the appellant to enforce a restraint of trade undertaking
given by
the first respondent in favour of the appellant.
[2] On
18 August 2005 the appellant obtained an interim interdict
,
in terms of the restraint undertaking, which
inter
alia
restrained the first respondent from,
inter
alia
,
“being involved or engaged in” the business of the second
respondent in competition with appellant for a period of six months.

The interim interdict furthermore interdicted and restrained the
second respondent from employing the first respondent in its
business
for a similar period of time.
[3] The application was
postponed several times until the matter was finally argued on 28
September 2006. That is more than a year
after the launch of the
application.
[4] As
far as the first respondent is concerned, it appears that she did not
oppose the application and never entered into an employment
contract
with the second respondent, although discussions relating to possible
employment took place.
[5] It
is important to note that having regard to the first respondent’s
date of resignation being 10 August 2005, as well as
a six month
restraint period calculated as from date of termination of her
employment, the six month restraint period was to expire
on 10
February 2006. It is therefore clear that the judgment on appeal
would be of academic value only and Mr. Fischer, on behalf
of the
appellant, conceded that costs had since become the only issue.
[6] It
is therefore necessary to have regard to section 21A of the Supreme
Court Act, 59 of 1959, which deals with the powers of
a Court of
Appeal, which reads as follows:
“
(1) When at the
hearing of any civil appeal to the Appellate Division or any
Provincial or Local Division of the Supreme Court the
issues are of
such a nature that the judgment or order sought will have no
practical effect or result, the appeal may be dismissed
on this
ground alone.
.....
(3) Save under
exceptional circumstances, the question whether the judgment or order
would have no practical effect or result, is
to be determined without
reference to consideration of costs.”
[7]
The
said section is aimed at alleviating the heavy work load of Courts of
Appeal. It breaks away from the vague concepts of “abstract”,

“academic” or “hypothetical” as criterion for the exercise of
the power of a Court of Appeal not to hear an appeal. It
sets a
positive test namely, whether the judgment or order will have a
practical effect or result?
PREMIER,
PROVINSIE MPUMALANGA, EN 'N ANDER v GROBLERSDALSE STADSRAAD
1998 (2) SA 1136
(SCA) at 1141 D – F. See also
RAND
WATER BOARD v ROTEK INDUSTRIES (PTY) LTD
2003 (4) SA 58
(SCA) at 61 D – E;
COIN
SECURITY GROUP (PTY) LTD v SA NATIONAL UNION FOR SECURITY OFFICERS
AND OTHERS
[2000] ZASCA 137
;
2001 (2) SA 872
(SCA) at 875 A – B.
[8] In
PORT
ELIZABETH MUNICIPALITY v SMIT
2002 (4) SA 241
(SCA), Brand JA stated the following at 246 – 247
par. [7]:
“
[7] It can be
argued, I think, that s 21A is premised upon the existence of an
issue subsisting between the parties to the litigation
which requires
to be decided. According to this argument s 21A would only afford
this Court a discretion not to entertain an appeal
when there is
still a subsisting
issue
or
lis
between the parties the resolution of which, for some or other
reason, has become academic or hypothetical. When there is no longer

any issue between the parties, for instance because all issues that
formerly existed were resolved by agreement, there is no 'appeal'

that this Court has any discretion or power to deal with. This
argument appears to be supported by what Viscount Simon said in
Sun
Life Assurance Company of Canada v Jervis
[1944] AC 111
(HL) at 114, when he said, with reference to facts very
similar to those under present consideration:
'.
. . I think it is an essential quality of an appeal fit to be
disposed of by this House that there should exist between the parties

a matter in actual controversy which the House undertakes to decide
as a living issue.'
Consequently, he
found that in a matter where there was no existing
lis
between the parties the appeal should be dismissed on that ground
alone.”
[
9] Mr.
Fischer submitted, on behalf of the appellant, that exceptional
circumstances as envisaged by section 21A(3) existed in view
of the
dilatory manner in which the second respondent dealt with the whole
application knowing fullwell that, by the time not only
the
application to compel had been finalised, but also the date by which
the answering affidavit had been filed, the six months
restraint
period would have expired. He submitted that the second respondent
was entirely responsible for such delay and/or postponements

resulting in the eventual arguing and finalising of the merits of the
application no longer having any practical effect and/or
result.
[10] As
far as the second respondent’s application in terms of Rule 35(12)
is concerned and although it delayed the finalisation
of the
application, it appears from the papers that it was substantially
successful. It is not clear from the papers that the
second
respondent was entirely responsible for all the postponements.
However, the Court
a
quo
implicitly
found that the second respondent was not. Mr. Fischer’s argument
that there was
mala
fides
present on the part of the second respondent is therefore not
justified.
[11] Be
that as it may, it is clear from the papers that there is no longer
any “subsisting issue” or “
lis
”,
or “a matter in actual controversy” or “a living issue” to be
decided. See
PORT
ELIZABETH MUNICIPALITY v SMIT
,
supra
,
at 247 par. [7]. The appeal can, therefore, not succeed.
[12] Consequently
the appeal is dismissed with costs.
________________
__
S.P.B.
HANCKE,
AJP
I
agree.
___________
___
M.H.
RAMPAI,
J
I agree.
__________
C.J. MUSI, J
On
behalf of the appellant: Adv. P.U. Fischer
Instructed
by:
McIntyre
& Van der Post
BLOEMFONTEIN
On
behalf of the
respondent: Adv. A.J.R. van Rhyn SC
Instructed
by:
Lovius
Block
BLOEMFONTEIN
/sp