Bloomberg Orthopeadics & Neurosciences (Pty) Limited v Vermaak and Another (A253/06) [2007] ZAFSHC 101 (27 September 2007)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2007
>>
[2007] ZAFSHC 101
|

|

Bloomberg Orthopeadics & Neurosciences (Pty) Limited v Vermaak and Another (A253/06) [2007] ZAFSHC 101 (27 September 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Application No. : A253/06
In
the application between:
BLOOMBERG
ORTHOPEADICS &
Applicant
NEUROSCIENCES
(PTY) LIMITED
and
MARIZE VERMAAK
1
st
Respondent
FLUOROVIZION
(PTY) LTD
2
nd
Respondent
JUGDMENT:
EBRAHIM,
J
HEARD ON:
21
SEPTEMBER 2007
DELIVERED ON:
27
SEPTEMBER 2007
[1] This is an
application for leave to appeal against the whole of the judgment of
this Court dated 12 October 2006 dismissing with
costs the
applicant’s application to enforce the provisions of a covenant in
restraint of trade concluded between it and the first
respondent.
Judgment was given in favour of the 2
nd
respondent in those proceedings. The second respondent, to whom I
shall refer herein as “the respondent”, opposes the present
application for leave to appeal on the basis that the period of the
restraint having lapsed, any order or judgment sought on appeal
would
be of academic value and of no practical effect. Whilst this is
conceded by the applicant, this Court’s indulgence is sought
in
order to allow the applicant the opportunity to reverse the costs
order granted against it in the main application.
[2] In a nutshell the
applicant challenges the correctness of my finding in the main
application that the applicant had proved no
protectable interest as
a basis for alleging that it and the respondent were trade
competitors. It is further contended for by the
applicant that this
Court erred in excluding the product list produced by the applicant
consequent upon the court order compelling
it to do so for the
following reasons:
(a) that it could not on
the evidence be said that such a list had only surfaced for the first
time as part of the applicant’s case
in reply; and
(b) that
the finding that the said list referred to medical procedures rather
than medical products, was incorrect.
[3] The applicant’s
principal submissions in support of its quest for leave are twofold:
The applicant argues
that on a proper reading of the list produced it is clear that a
number of medical products marketed and sold
by the applicant as
part of its business of importing, manufacturing, distributing and
selling an extensive range of surgical orthopaedic
and neuroscience
products in the Republic, appears on the list;
Secondly, the applicant
contends that in view of the fact that the respondent had,
notwithstanding its demand for that list in order
to prepare its
answering affidavit, filed the latter prior to receiving the
applicant’s list of products, the applicant had no
option but to
deal with its list in its replying affidavit which would not have
happened had the respondent not pre-empted the
applicant by
producing its answering papers prior to the applicant having had an
opportunity to prepare and submit the product
list to the respondent
as it was called upon to do by the order of court dated 15 June
2006. The applicant argues that if this
proper procedure had been
followed, the product list would then have been very much a part of
the applicant’s founding papers
fully setting out the applicant’s
case. Instead the convoluted procedure followed by the respondent
had the effect of creating
the impression that the applicant had
chose to make out a proper case only in reply.
[4] On the basis of these
two principal submissions the applicant contends that there is a
reasonable possibility that another court
could find in favour of the
applicant on the merits. I am inclined to agree and accordingly
leave is granted to the applicant to
appeal to the Full Bench of this
Division. The costs of this application are to be costs in the
appeal.
_____________
S. EBRAHIM, J
On
behalf of applicant: Adv. P.U. Fischer Instructed by:
McIntyre
& Van der Post BLOEMFONTEIN
On
behalf of respondents: Adv. M. Welz Instructed by:
Lovius
Block BLOEMFONTEIN
/sp