IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL LOCAL DIVISION, DURBAN
Case no: D8229/2024
In the matter between:
VOLTEX (PTY) LTD Applicant
and
VERNON VENKATAS First Respondent
NITHIANADHAN MOODLEY Second Respondent
MV TRANSMISSION AND DISTRIBUTION (PTY) LT D Third Respondent
ORDER
Having read the papers and after hearing counsel, the following order is made:
1. Condonation for the late filing of the applicant’s replying affidavit is
granted.
2. The rule nisi issued on 22 July 2024 is discharged.
3. The respondent s are to pay the applicant ’s costs of the application
including the costs of senior and junior counsel where so employed on
scale B .
JUDGMENT
Date delivered: 9 July 2025
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Masipa J
Introduction
[1] This is an application by the applicant for the confirmation of a rule nisi
granted on 22 July 2024, which sought to enforce a restraint of trade and related
relief against the respondent s, pending the outcome of final proceedings. The
application was unopposed when initially enrolled, and the rule nisi was granted
interdicting and restraining the first and second respondent s from competing with its
business, soliciting its customers, or making use of its confidential information for a
period of eight m onths, ending on 31 March 2025 .
[2] Opposition followed some months later, but the matter was not finalised
before the expiry of the restraint period . There is also an issue of the applicant filing
it replying affidavit out of time with a condonation application. Nothing much turns of
this and condonation is granted.
[3 At the time of the present hearing, the restraint period had lapsed, and the
relief sought in respect of the merits had become moot . Despite the period of
restraint ha ving now lapsed , the applicant nonetheless persists in seeking
confirmation of the rule nisi . Its position is that it remains entitled to such confirmation
for purposes of costs and the vindication of its rights.
Background
[4] The first and second respondent s were employed in the applicant ’s
transmission and distribution division. Before resigning, they established the third
respondent together with their spouses for the purpose of competing in the same
niche industry. The applicant brought this application on an urgent basis to protect its
interests, asserting that the respondent s were in breach of restraint and
confidentiality undertakings.
[5] The applicant contends that the respondent s held confidential knowledge of
its customer and supplier base in a niche market and that they had admitted an
intention to approach such customers following their resignation . The applicant also
asserts that the mere potential for misuse of this information justifies the restraint.
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The respondent s, for their part, deny any unlawful conduct, assert that the
knowledge they held was either general industry knowledge or obtained prior to their
employment with the applicant , and describe the application as punitive and abusive.
[6] It is apparent that there are material disputes of fact regarding the nature and
extent of any confidential information, and the protectability thereof. These disputes
would not have been capable of resolution on the papers and would have
necessitated referral to oral evidence had the matter not become moot.
Mootness
[7] It is trite that courts do not determine academic questions or grant orders
where no practical effect will result. A matter that is moot falls outside the jurisdiction
of the court unless the interests of justice demand otherwise. This principle has been
repeatedly affirmed, most notably in JT Publishing (Pty) Ltd and Another v Minister of
Safety and Security and Others .1 In applications of this nature, mootness does not
deprive the court of jurisdiction, but it may affect the justiciability of the matter.
Accordingly, an application that will have no practical effect or result, may be
dismissed on that ground alone.
[8] In President of the Republic of South Africa v Democratic Alliance and
Others2 and reiterated in Women in Capital Growth (Pty) Ltd and Another v Scott
and Others ,3 the courts affirmed that moot matters should only be determined where
the interests of justice so require, including where a judgment will have a
precedential effect or address a recurring legal issue. In this matter, no declaratory
relief is sought, and the applicant did not argue that a live controversy persists. The
order sought was linked directly to a time -bound restraint period which has since
expired. The confirmation of the rule nisi would therefore serve no enforceable
purpose. Accordingly, the merits of the matter are no longer justiciable. Although the
merits have fallen away, the issue of who should bear the costs of the urgent
application remains a live controversy .
1 JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514
(CC).
2 President of the Republic of South Africa v Democratic Alliance and Others 2020 (1) SA 428 (CC).
3 Women in Capital Growth (Pty) Ltd and Another v Scott and Others [2020] ZASCA 95.
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Costs
[9] The crux of this judgment lies in the appropriate treatment of costs in motion
proceedings. Thus, the discretion to determine costs must be exercised afresh by
this court, applying the usual principles applicable to motion proceedings where no
order on the merits is granted.
[10] The general rule is that costs follow the result. However, where the application
becomes moot before final determination, the court must consider the parties’
conduct, the reasonableness of the litigation, and whether the applicant acted
oppressively or the respondent s unreasonably withheld consent.
[11] The applicant launched the proceedings in this matter and obtained interim
relief. It thereafter persisted with the matter even when it became apparent that the
restraint period would expire before the hearing. It made overtures to the
respondent s’ attorneys offering to resolve the issue of costs. These were declined.
There is evidence that the applicant delayed in filing its replying affidavit, which may
have contributed to the lapse of the relief. However, the respondent s’ stance
asserting that they were free to approach the applicant ’s clients and denying any
enforceable confidentiality demonstrates a serious dispute which would have
required adjudication, but for the effluxion of time.
[12] It is not in dispute that the applicant was entitled to the interim relief at the
time that it was granted. The respondent s conduct therefore necessitated the
application and the incurring of costs by the applicant . The fact that the matter was
rendered moot by the respondent s’ subsequent compliance does not entitle the
respondent s to escape the costs consequences of their earlier conduct.
[13] The respondents’ allegation that the application was motivated by malice and
intended to suppress competition is not supported by the evidence on record. They
argue that, given the expiry of the restraint period, the applicant ought to have
withdrawn the application and sought recovery of costs in terms of Uniform Rule 41.
In my view, this was unnecessary. The matter was already pending before the court,
and all the relevant facts required for a determination on costs were properly before
it.
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[14] Importantly, the main relief became moot through the passage of time and
procedural delay, not because the relief was abandoned or withdrawn. The applicant
had on the face of it, a legitimate basis for seeking protection of its commercial
interests, and it was not unreasonable for it to institute the application. However, by
the time the matter was heard, there was no longer a practical or legal basis for
granting the relief save for the determination of costs which remained a live issue .
Order
[15] In the result, I make the following order:
1. Condonation for the late filing of the applicant’s replying affidavit is
granted.
2. The rule nisi issued on 22 July 2024 is discharged.
3. The respondents are to pay the applicant’s costs of the application
including the costs of senior and junior counsel where so employed on
scale B.
________________________
Masipa J
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DETAILS OF THE HEARING
Matter heard on: 11 June 2025
Judgment Date: 9 July 2025
Appearance Details:
For the applicant : Mr E Misrachi
Instructed by: Orelowitz Inc Attorneys
For the respondent s: Mr N Riley
Instructed by: S T Attorneys