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[2017] ZALCJHB 340
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One Capital Sponsor Services (Pty) Ltd and Another v Chellan and Others (J1572/17) [2017] ZALCJHB 340 (18 September 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: J1572/17
In
the matter between:
ONE
CAPITAL SPONSOR SERVICES (PTY) LTD
First
Applicant
ONE
CAPITAL ADVISORY (PTY) LTD
Second
Applicant
and
CALVIN CHELLAN
First Respondent
UBS SOUTH AFRICA
(PTY) LTD
Second Respondent
UBS SOUTH AFRICA
HOLDINGS (PTY) LTD
Third Respondent
UBS CORPORATE
FINANCE SOUTH AFRICA (PTY) LTD
Fourth Respondent
UBS
SWITZERLAND AG
Fifth Respondent
Heard:
8 August 2017
Delivered:
18 September 2017
Summary:
Application
to enforce restraint of trade and confidentiality agreement –
application granted
JUDGMENT
MYBURGH, AJ
Introduction
[1]
This is an
urgent application to enforce a restraint of trade and
confidentiality agreement entered into between One Capital Sponsor
Services
[1]
(“One Capital”)
and Mr Chellan
[2]
(“the
restraint”). The restraint also protects the interests of One
Capital Advisory
[3]
(which
together with One Capital comprises the One Capital Group) and it has
the right to enforce the restraint against Mr Chellan
by virtue of a
stipulatio
alteri
contained therein. The application is opposed only by Mr Chellan,
with the second to fifth respondents having undertaken to abide
the
decision of the court.
[2]
Mr Chellan
was employed by One Capital as a JSE sponsor executive. On 14 August
2015, he entered into the restraint in return
for consideration of
some R100 000 net. On 2 April 2017, Mr Chellan tendered his
resignation from One Capital in writing.
On 30 June 2017, Mr Chellan
left One Capital without serving out his full notice period, which
expired on 31 July 2017. On 3 July
2017, Mr Chellan took up
employment with UBS South Africa
[4]
(“UBS”) as a sponsor executive (with his new contract of
employment itself containing a restraint of trade). This gave
rise to
the present application.
[3]
The
application was launched on 11 July 2017 and served the next day, and
was enrolled on 28 July 2017. On the latter date, the
application was
postponed to 8 August 2017 to enable the applicants to finalise and
deliver a replying affidavit. By the time the
matter was argued on 8
August 2017, the applicants had delivered a replying affidavit and a
confidential affidavit, with Mr Chellan
having brought an application
to strike out parts of the replying affidavit (and annexures thereto)
and having objected to the
introduction of the confidential
affidavit. Further to the argument of the matter, Mr Chellan’s
attorneys brought a further
judgment to my attention on 24 August
2017 dealing with the issue of urgency, with the applicants’
attorneys having made
some submissions about it on 5 September
2017.
[4]
In addition
to the merits of the application, the following issues stand to be
determined: the issue of urgency; the application
to strike out; and
the opposition to the introduction of the confidential affidavit.
[5]
The papers
in this matter are voluminous – running to close to 700 pages,
with the parties also having filed lengthy heads
of argument. In
addressing the issues for determination, I intend to deal only with
what I consider to be the crux of them, and
do so without recounting
the evidence in any detail.
The issue of urgency
[6]
As this
court has previously held, applications to enforce restraints of
trade are – by their very nature – urgent.
[5]
No doubt mindful of this, Mr Malan (who appeared for Mr Chellan) did
not contend that the matter was
per
se
not
urgent, but rather that the urgency had been self-created.
[7]
At the
heart of this controversy is when the applicants came to know
definitively that Mr Chellan intended joining UBS on 3 July
2017: was
it on 3 April 2017 (as contended by Mr Chellan) or on 30 June
2017 (as contended by the applicants)? If the latter
date, then there
can be no issue of self-created urgency, as this application was
launched seven court days later.
[8]
Mr
Chellan’s case of self-created urgency is based on two main
legs. Firstly, that during separate meetings held with Mr Simpson
and
Ms Carter (of One Capital) on 3 April 2017, he told them both that he
would be taking up employment with UBS with effect from
3 July 2017
irrespective of the terms of his restraint (this following his letter
of resignation of 2 April 2017). Secondly, that
from April 2017, he
was excluded from staff meetings, prevented from corresponding with
clients and excluded from price sensitive
work – this being
indicative of One Capital having known that he was joining a
competitor.
[9]
In relation
to the first leg, not only do both Mr Simpson and Ms Carter deny that
Mr Chellan made the statement in question, but
they both stand by
their recollection of their respective meetings with him – the
gist of which is that he conveyed to them
that unless One Capital was
willing to waive or amend the terms of the restraint (which it was
not), he would not be able to take
up employment with UBS and would
instead move to Cape Town. This accords with the stance adopted by Mr
Chellan on 2 April 2017
(the day before) when, in an email string
following his letter of resignation, he appears to have become
ambivalent about joining
UBS when advised that One Capital intended
to enforce the restraint.
[10]
Furthermore,
Mr Chellan’s version is also not consistent with the objective
facts. If his version were true (i.e. that he
told One Capital
unequivocally on 3 April 2017 that he would be joining UBS on 3
July 2017), One Capital would probably have
forthwith taken steps to
place him on gardening leave (as envisaged by his contract of
employment), take back his laptop and other
company property, and
communicate with him / UBS about his resignation and restraint. The
fact that One Capital did not do so on
or around 3 April 2017, and
only reacted at the end of June 2017, when it took away Mr Chellan’s
laptop and other company
property and sought to communicate with UBS,
bears out its version – it being that it was only during a
meeting on 30 June
2017 that Mr Chellan for the first time confirmed
categorically that he was leaving the employ of One Capital to start
at UBS on
3 July 2017, regardless of the terms of the restraint.
[11]
In relation
to the second leg, while steps were taken by One Capital to
transition certain work streams away from Mr Chellan during
his
notice period, this does not bear out his case that One Capital knew
as at 3 April 2017 that he was joining UBS on 3 July 2017.
As already
mentioned, if it had known, it would have placed him on gardening
leave and effectively removed him from the organisation.
Furthermore,
I accept that the steps taken by One Capital (which included
prohibiting Mr Chellan’s access to “admin”
and
“billing” folders on the server) were consistent with an
understanding on its part that Mr Chellan was serving
his notice
period, and consequently prudence dictated an extrication process
from the kinds of hands-on access that a long-term
employee would
enjoy.
[12]
I am also
not persuaded by the “horse has bolted” argument advanced
on behalf of Mr Chellan. On the authority of this
court, this is not
a bar to relief in the circumstances of this matter.
[6]
[13]
In sum, in
my view, this is not a case of an applicant sitting on its hands and
being guilty of self-created urgency. Accordingly,
I am of the view
that the matter ought to be dealt with as one of urgency.
The application to
strike out and opposition to the confidential affidavit
[14]
The
application to strike out parts of the replying affidavit (and
annexures thereto) and opposition to the introduction of the
confidential affidavit are premised on the same contention: the
contents, according to Mr Chellan, contain new matter which ought
to
have been included in the founding affidavit, with the result that
the applicants are attempting to (impermissibly) make out
a case in
reply. It warrants mention that the replying affidavit (together with
annexures) runs to some 300 pages, and the confidential
affidavit
(together with annexures) to some 200 pages.
[15]
In
Vox
Telecommunications (supra),
in
rejecting a similar contention by an employee opposing the
enforcement of a restraint, this court found as follows:
“
[18] … although it is so
that the confidential affidavit (and the replying affidavit) contains
new matter, the issue must
be placed in context. As dealt with in the
section below on the legal principles applicable to restraints of
trade, while Vox has
the onus to invoke the restraint and prove a
breach thereof, the onus then shifts to Steyn to establish that the
restraint is unenforceable
because it is unreasonable. In these
circumstances, as submitted by Mr Whitcutt SC (who appeared for Vox
together with Mr Makka),
Vox's replying affidavit (and confidential
affidavit) constitute, in effect, an answer to Steyn's case that the
restraint is unenforceable
(as opposed to a new case in reply). In
Townsend Productions (Pty)
Ltd v Leech & others
2001
(4) SA 33
(C) at 41A-D, the High Court sanctioned the very approach
adopted by Vox.”
[16]
The finding
by the High Court in
Townsend
Productions (supra)
was this:
“
Counsel for the respondents
complained that the applicant's affidavits in reply contain new
matter and that the applicant has attempted
to make out a case in
reply. The onus is on the respondents to establish, as their defence,
that the applicant has no proprietary
interests worthy of protection,
and they were required to set out facts germane to those contentions
in their answering affidavits.
The applicant was entitled to deal
with such facts in its replying affidavits. The respondents would
have been entitled to apply
for leave to file further affidavits to
deal with the matter raised in reply by the applicant … .”
[17]
In
argument, Mr Whitcutt SC (who appeared together with Ms Bosman for
the applicants) undertook a useful analysis of the application
to
strike out parts of the replying affidavit (and annexures thereto).
Of the 24 parts that are sought to be struck out (which
constitute a
significant amount of material), 21 of them set out facts relating to
confidential information or customer connections
held by Mr Chellan,
while the other 3 parts involve a standard reply to issues raised in
the answering affidavit. On the authorities
referred to above, it was
permissible for the applicants to plead in reply facts relating to
confidential information and customer
connections held by Mr Chellan
– this being a response to his defence that the restraint is
unenforceable. In the result,
there is no merit in the application to
strike out. For the same reason, there is also no merit in the
objection to the introduction
to the confidential affidavit, which
is, in effect, the confidential part of the replying affidavit. Leave
is accordingly granted
to introduce the confidential affidavit into
evidence.
[18]
Given the
operation of the onus in relation to restraints of trade, it is
commonplace for a respondent to file a fourth set of affidavits
in
response to the applicant’s replying affidavit. The fact that
Mr Chellan did not do so places him in a difficult position,
in that,
to a large extent, the applicants’ opposition to his defence is
unanswered. Having failed in his attempt to strike
out what are
damaging allegations against him, and not having answered them, Mr
Chellan must live with the consequences.
Restraints of trade:
legal principles
[19]
Before
dealing with the merits of the application, this is a convenient
point at which to deal with the legal principles applicable
to
restraints of trade.
[7]
An
agreement in restraint of trade is enforceable, unless it is
unreasonable (and thus contrary to public policy). A restraint
of
trade will generally be considered unreasonable if it does not
protect some legally recognisable interest of the party in whose
favour it is granted, but merely seeks to eliminate competition.
[8]
[20]
A party
seeking to enforce a restraint agreement is required only to invoke
the restraint and to prove a breach of its terms (this
being the
applicant’s onus). Once this has been done, the onus is on the
respondent to prove on a balance of probabilities
that the restraint
agreement is unenforceable because it is unreasonable.
[9]
[21]
The enquiry
into the reasonableness of a restraint is a value judgment that
involves a consideration of two policy considerations,
namely the
public interest, which requires that parties to a contract must
comply with their contractual obligations, and the principle
that a
citizen should be free to engage or follow a trade, occupation or
profession of his or her choice.
[10]
[22]
In
Basson
v Chilwan
[1993] ZASCA 61
;
1993 (3) SA 742
(A) at 767C-H, the court set the following test for
determining the reasonableness or otherwise of a restraint agreement:
1)
Is there an
interest of the one party (in this case One Capital), which is
deserving of protection at the termination of the agreement?
2)
Is such an
interest being prejudiced by the other party (in this case
Mr Chellan)?
3)
If so, does
such an interest so weigh up qualitatively and quantitatively against
the interest of the latter party that the latter
(i.e. Mr Chellan)
should not be economically inactive and unproductive?
4)
Is there
another facet of public policy having nothing to do with the
relationship between the parties which requires that the restraint
should either be maintained or rejected?
Insofar as the interest
in (3) exceeds the interest in (1), the restraint would be
unreasonable and accordingly unenforceable.
[11]
[23]
A further
consideration should be added, namely whether the restraint is wider
than what is necessary to protect the protectable
interest.
[12]
[24]
The
proprietary interests (see the first consideration in
Basson
(supra)
)
that can be protected by a restraint agreement are essentially of two
kinds. The first is all confidential matter which is useful
for the
carrying on of the business and which could therefore be used by a
competitor, if disclosed to it, to gain a relative advantage.
This is
sometimes referred to as “trade secrets”. The second is
the relationships with customers, potential customers,
suppliers and
others that go to make up what is referred to as the “trade
connection” of the business.
[13]
[25]
Whether
information constitutes a trade secret is a factual question. For
information to be confidential, it must be: capable of
application in
the trade or industry (i.e. it must be useful and not be public
knowledge); known only to a restricted number of
people or a closed
circle; and of economic value to the person seeking to protect
it.
[14]
It is for the
respondent to establish that he or she had no access to that
information or that he or she had never acquired any
significant
personal knowledge of, for example, the applicant’s customer
base while in its employ. All that the applicant
need show is that
there is secret information to which the respondent had access and
which in theory the respondent could transmit
to the new employer if
he or she was inclined to do so. In order to enforce the restraint,
the applicant does not have to show
that the respondent has in fact
utilised information confidential to it; it is sufficient to show
that the respondent could do
so.
[15]
[26]
Indeed, the
very purpose of a restraint agreement is that the applicant does not
wish to have to rely on the
bona
fide’s
or
lack of retained knowledge of confidential knowledge on the part of
the respondent.
[16]
Put
differently, the applicant should not have to content itself with
crossing its fingers and hoping that the former employee
will not
breach the restraint.
[17]
It
is for this reason that an application to enforce a restraint of
trade is not necessarily defeated by the respondent giving
an
undertaking that he or she will not disseminate or utilise
confidential information.
[18]
[27]
Regarding
customer connections, the need of the employer to protect its trade
connections arises where the employee has access to
customers and is
in a position to build up a particular relationship with a customer
so that when he or she leaves the employer’s
service he or she
could easily induce the customer to follow him or her to a new
business. Once that conclusion is reached and
it is demonstrated that
the prospective new employer is a competitor of the applicant, the
risk of harm to the applicant if its
former employee would take up
employment becomes apparent.
[19]
The merits of the
application
[28]
As stated
at the outset, on 14 August 2015, One Capital and Mr Chellan
entered into the restraint. The restraint provides that
for a period
of six months from the date of termination of his employment with One
Capital, Mr Chellan is restrained from being
employed by a competitor
of the applicants anywhere in South Africa. The restraint also
provides that for a period of 12 months
from the date of termination
of his employment with One Capital, Mr Chellan is restrained from
communicating with or soliciting
away from the applicants, their
clients and suppliers. Furthermore, the restraint prohibits Mr
Chellan from divulging the confidential
information of the applicants
to any third party.
The applicants’
onus
[29]
In
accordance with the legal position set out above, the applicants must
establish that Mr Chellan concluded the restraint and that
he has
breached it by taking up employment with a competitor.
[30]
The
conclusion of the restraint and the terms thereof are common cause.
Although Mr Chellan is ambivalent about the nature of the
payment of
R100 000 that he received from One Capital, it is clear that it
was a restraint of trade payment. There is also
some attempt by Mr
Chellan to suggest that he was placed under duress to sign the
restraint, in that he “felt that he had
no choice” but to
sign it, and that he did so when he did not know his true “market
value”. Allied to this, he
also states that the signing of a
restraint had never been discussed with him, and that he was
presented with a complex set of
documents and told to sign them by
the close of business the next day. All of these allegations are
dealt with comprehensively
in the applicants’ replying
affidavit, and I am satisfied that there is no merit in them. In the
circumstances, there can
be no question that Mr Chellan signed the
restraint under duress.
[31]
Turning to
the issue of whether Mr Chellan has breached the restraint, it is
common cause that Mr Chellan joined UBS on 3 July 2017.
What stands
to be considered is whether there is a competitive interface between
UBS and the applicants. Although Mr Chellan attempts
to dispute the
applicants’ assertion that UBS is a direct competitor of One
Capital and One Capital Advisory in the provision
of JSE sponsor
services and corporate advisory services, there is no merit in his
denial. On an overall conspectus thereof, the
evidence clearly
demonstrates that UBS offer the same or similar services and
accordingly competes with the applicants. By taking
up employment
with UBS, Mr Chellan is thus clearly in breach of his restraint. The
applicants have discharged their onus in this
regard.
[32]
Mention
should be made under this head that Mr Chellan also attempts to
suggest that his functions and duties at UBS are “materially”
different from those that he carried out while employed by One
Capital – the contention being that he will only be employed
in
the UBS corporate advisory division, while he only worked as a JSE
sponsor executive while at One Capital. The contention is
aimed at
creating the impression that Mr Chellan will not be able to assist
UBS to compete against One Capital. Again, there is
no merit in this.
Firstly, in circumstances where there is a clear competitive
interface between One Capital and UBS, the nature
of the duties and
functions which Mr Chellan will perform at UBS is irrelevant, because
it is impossible for One Capital to police
his actions after he has
taken up employment with UBS. Secondly, and in any event, it is
abundantly clear that Mr Chellan will
perform duties as a JSE sponsor
executive while employed at UBS. Of particular significance here is
that Mr Chellan’s contract
of employment with UBS – which
he failed to produce despite a rule 35(12)
[20]
notice having been issued by the applicants – reflects that he
was appointed by UBS as a “sponsor executive”.
Mr Chellan’s
onus
[33]
The
applicants having acquitted themselves of their onus, Mr Chellan now
bears the onus to show why the restraint should not be
enforced, i.e.
that the restraint is unreasonable and thus unenforceable. In order
to do so, Mr Chellan must establish that
he had no access to
confidential information, and that he never acquired any significant
personal knowledge of or influence over
the clients of the applicants
during his employment with One Capital.
[21]
In relation to the latter, it is enough for the enforcement of the
restraint if it is established that trade connections through
customer contact exist and that they can be exploited by Mr Chellan
when employed by a competitor, such as UBS.
[22]
[34]
To begin
with, it is useful to consider Mr Chellan’s duties and
responsibilities while employed by One Capital. As mentioned
above,
the applicants conduct business in the provision of JSE sponsor
services, and corporate advisory services. A JSE sponsor
provides JSE
listed companies (all of whom must have a JSE sponsor) with a wide
range of services relating to their JSE listing.
In order to carry
out these services, JSE sponsors interact with their clients on a
daily basis so as to keep abreast of their
activities and ensure
compliance with JSE listing requirements. JSE sponsors, such as the
applicants, employ JSE approved sponsor
executives, such as Mr
Chellan, to provide sponsor services to their clients.
[35]
Mr Chellan
commenced employment with One Capital in 2014 as a graduate trainee.
In August 2015, he was appointed as a permanent
employee, and in
March 2016, having passed the relevant JSE exams, he was appointed as
a JSE approved sponsor executive. (He held
this position until he
left the employ of One Capital on 30 June 2017.) Although Mr Chellan
seeks to downplay his role at
One Capital and paint himself as a very
junior employee with a marginal involvement in the business, the
evidence reflects that
as a permanent employee, and certainly in the
18 months prior to his departure from One Capital, he was fully
immersed in both
parts of One Capital’s business. He had full
access to the confidential information of the applicants and full
exposure to
their clients, such that he could establish relationships
with them (see further below). In short, Mr Chellan was by no means
an
insignificant employee.
[36]
Focusing
now on Mr Chellan’s access to the applicants’
confidential information, the applicants assert that, during
his
employment with One Capital, he had,
inter
alia
,
full access to the contents of One Capital’s centralised
computer server and the files contained thereon (save for
administrative,
accounting and employee information files). This
included access to client mandates, proposals for confidential
transactions, proprietary
information (such as information relating
to unique transaction structures, financial models, etc), and contact
information and
details of key clients and business associates. While
Mr Chellan attempts to suggest that he did not have access to the
server,
the replying and confidential affidavits – which went
unanswered by Mr Chellan – establish this as being untrue. I am
satisfied that the information in question is confidential and
strategic, and could cause harm to the business of the applicants
if
it fell into the hands of a competitor.
[37]
Turning to
Mr Chellan’s access to customers and trade connections of the
applicants, it is the applicants’ case that,
during his
employment with One Capital, Mr Chellan was exposed to and developed
close relationships with all of the applicants’
JSE sponsor
clients. Mr Chellan, on the other hand, downplays his involvement and
interaction with the applicants’ clients,
describing it as
“very limited” and effectively clerical in nature, and
denying, for example, that he attended board
meetings of clients and
travelled with them or that he was involved in client roadshows.
Again, Mr Chellan’s version is demonstrated
as being untrue in
the unanswered replying and confidential affidavits. Indeed, the
affidavits from Sovereign Foods and Northam
Platinum (two of the
applicants’ clients) and other documents attached to the
replying affidavit and the confidential affidavit,
again, call into
question not only the veracity of Mr Chellan’s case, but his
credibility. On a conspectus of the evidence,
I am satisfied that Mr
Chellan, in fact, held close and meaningful relationships with the
applicants’ clients.
[38]
Finally,
consideration should be given to the risk of harm to the applicants
(this already having been established in respect of
Mr Chellan’s
access to confidential information). On the papers, I am not
persuaded by Mr Chellan’s contention
that he has no
capacity to influence the placement of business. To the contrary,
given the relationships that he has developed,
it is not
inconceivable that he will use them to secure a move from the
applicants to UBS. The fact that this has not occurred
to date is
clearly not determinative.
[39]
In the
light of the above, and having regard to the remaining considerations
in
Basson
(supra),
I
am of the view that Mr Chellan has fallen well short of satisfying
the onus of establishing that the enforcement of the restraint
would
be unreasonable.
Order
[40]
In making
the order that I shall make, I do not intend repeating the decisions
that I have already made above regarding the urgency
of the matter,
the dismissal of the application to strike out, and the granting of
leave to introduce the confidential affidavit.
It should also be
mentioned that I intend calculating the duration of the restraints of
6 and 12 months, respectively, to run from
31 July 2017, as this
was the date upon which Mr Chellan’s notice of termination
ought to have expired – he having
left the employ of One
Capital prematurely on 30 June 2017.
[41]
In all the
circumstances, an order is made in the following terms:
1)
The first
respondent is interdicted and restrained until 31 January 2018, and
in each province of South African from directly or
indirectly and in
any capacity whatsoever, being associated or concerned with or
interested or engaged in:
1.1)
the business of the second to fifth respondents or any one of them;
and
1.2)
any business which competes with, or which provides services which
are similar to,
or compete with the business of the applicants, in
the provision of JSE sponsor and corporate finance services, as
provided for
in clause 2.1.3 read with clauses 4.1 and 4.1.1 of the
restraint of trade and confidentiality agreement that was concluded
between
the first applicant and the first respondent on 14 August
2015 (“the restraint”).
2)
The first
respondent is interdicted and restrained until 31 July 2018, and in
each province of the Republic of South Africa from
directly or
indirectly and in any capacity whatsoever:
2.1)
communicating with or furnishing any information or advice, or
soliciting, interfering
with or enticing, or endeavouring to entice
away from the applicants any business client as defined in paragraph
2.1.4 of the restraint
(“business client”), or business
supplier as defined in paragraph 2.1.8 of the restraint (“business
supplier”),
for the direct or indirect purpose of inducing,
persuading or encouraging the business client or business supplier to
cease being
a customer or supplier of the first and second applicants
and/or to become a customer or supplier of any restricted business;
2.2)
soliciting orders from any business client for the business products
as defined in
paragraph 2.1.6 of the restraint or any restricted
products as defined in paragraph 2.1.27 of the restraint (“products”)
and/or the business services as defined in paragraph 2.1.7 of the
restraint and/or any restricted services as defined in paragraph
2.1.28 (“services”);
2.3)
canvassing business in respect of the products or services from any
business client;
2.4)
selling or otherwise supplying any products to any business client;
2.5)
rendering any services to any business client; and
2.6)
soliciting appointment as a distributor, licensee, agent or
representative of any
business supplier in respect of any products
and/or services.
3)
The first
respondent is interdicted and restrained from divulging or using the
confidential information of the first and second
applicants to any
third party including the second to fifth respondents.
4)
The first
respondent shall pay the first and second applicants’ costs of
the application, including the costs of two counsel.
_______________________________________
Myburgh,
AJ
Acting
Judge of the Labour Court of South Africa
Appearances
For the applicants: Adv C
Whitcutt SC with Adv P Bosman instructed by Cliffe Dekker Hofmeyr Inc
For the first respondent:
Adv L Malan instructed by Bowman Gilfillan Inc
[1]
The first applicant.
[2]
The first respondent.
[3]
The second applicant.
[4]
The second respondent.
[5]
Vox Telecommunications (Pty) Ltd v
Steyn & another
(2016)
37
ILJ
1255 (LC) at para 11;
ARB Electrical
Wholesalers (Pty) Ltd v Grove & others
(C335/14) [2014] ZALCCT 31 (3 June 2014) at para 20;
Pinnacle
Technology Shared Management Services (Pty) Ltd & another v
Venter & another
(J1095/15)
[2015] ZALCJHB 199 (14 July 2015) at para 6.
[6]
Vox Telecommunications (supra)
at
para 10.
[7]
See for an exposition thereof:
New
Justfun Group (Pty) Ltd v Turner and Others
(J786/14) [2014] ZALCJHB 177 (14 May 2014);
ARB
Electrical (supra); Shoprite Checkers (Pty) Ltd v Jordaan &
another
(2013) 34
ILJ
2105 (LC);
Vox
Telecommunications (supra).
[8]
New Justfun Group
(supra)
at para 8;
ARB Electrical
(supra)
at para 25;
Vox
Telecommunications (supra)
at
para 25.
[9]
New Justfun Group
(supra)
at para 9;
ARB Electrical
(supra)
at para 26;
Vox
Telecommunications (supra)
at
para 26.
[10]
Ball v Bambalela Bolts (Pty) Ltd
and another
[2013] 9 BLLR
843
(LAC) at para 15;
Vox
Telecommunications (supra)
at
para 27.
[11]
New Justfun Group
(supra)
at para 10;
ARB Electrical
(supra)
at para 27;
Shoprite (supra)
at para 23;
Ball (supra)
at para 16;
Vox
Telecommunications (supra)
at
para 28.
[12]
Shoprite (supra)
at para 24;
Vox
Telecommunications (supra)
at
para 29.
[13]
New Justfun Group
(supra)
at para 11;
ARB Electrical
(supra)
at para 28;
Vox
Telecommunications (supra)
at
para 30.
[14]
Townsend Productions (supra)
at
53J-54B;
Vox
Telecommunications (supra)
at
para 31.
[15]
New Justfun Group
(supra)
at para 13;
Vox
Telecommunications (supra)
at
para 31.
[16]
New Justfun Group
(supra)
at para 13;
Vox
Telecommunications (supra)
at
para 32.
[17]
ARB Electrical (supra)
at para 30;
Vox
Telecommunications (supra)
at
para 32.
[18]
New Justfun Group
(supra)
at
para 20;
Vox
Telecommunications (supra)
at
para 32.
[19]
New Justfun Group
(supra)
at para 12;
ARB Electrical
(supra)
at para 29;
Vox
Telecommunications (supra)
at
para 33.
[20]
Of the High Court Rules.
[21]
Rawlins & Another v
Caravantruck (Pty) Ltd
[1992] ZASCA 204
;
1993 (1) SA 537
(A) at 542F-543A.
[22]
Den Braven SA (Pty) Ltd v Pillay &
Another
2008 (6) SA 229
(D) at paras 17-18.