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[2012] ZAWCHC 272
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Credit Temps (Pty) Ltd and Others v Your Move Personnel, Credit Temps (Pty) Ltd and Others v Your Move Personnel (13218/2009, 14160/2009) [2012] ZAWCHC 272 (6 June 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
Case no: 13218/2009
CREDIT TEMPS
(PTY) LTD
....................................................................
1
st
Applicant
DANIEL
TERBLANCHE N.O.
in his capacity as
joint liquidator of CR Solutions Cape Town (Pty) Ltd
.........................................................................................
2
nd
Applicant
E
A BEDDY N.O,
in his capacity as
joint liquidator of.
CR
Solutions Cape Town (Pty) Ltd
..........................................................
3
rd
Applicant
v
YOUR MOVE
PERSONNEL
................................................................
1
st
Respondent
WADE NEVILLE
JANION
..................................................................
2
nd
Respondent
HOLLY JANION
.................................................................................
3
rd
Respondent
MISTRAL ANN
JANION
.....................................................................
4
th
Respondent
WEB-ACTIVE
(PTY) LTD
...................................................................
5
th
Respondent
PREMIER
ATTRACTION 426 CC t/a WEB-ACTIVE
.........................
6
th
Respondent
And
Case
no: 14160/2009
CREDIT TEMPS
(PTY) LTD
....................................................................
1
st
Applicant
DANIEL
TERBLANCHE N.O.
in his capacity as
joint liquidator of
CR
Solutions Cape Town (Pty) Ltd
.........................................................
2
nd
Applicant
E
A BEDDY N.O.
in his capacity as
joint liquidator of
CR
Solutions Cape Town (Pty) Ltd
..........................................................
3
rd
Applicant
CINDY
SHAMLEY
4
th
Applicant
NEIL
DORMEHL
5
th
Applicant
v
YOUR MOVE
PERSONNEL
1
st
Respondent
WADE
NEVILLE JANION
2
nd
Respondent
HOLLY JANION
3
rd
Respondent
MISTRAL ANN
JANION
4
th
Respondent
WEB-ACTIVE
(PTY) LTD
5
th
Respondent
PREMIER
ATTRACTION 426 CC t/a WEB-ACTIVE
6
th
Respondent
LEANDRIE
LE ROUX
7
th
Respondent
Court
:
Acting Judge J I Cloete
Heard
:
6 June 2012
Delivered:
6 June 2012
JUDGMENT
Application for Leave to Appeal
CLOETE
AJ
:
I
have carefully considered the notice of application for leave to
appeal and the arguments of counsel. I would also like to thank
counsel for their submissions.
It
is trite that in order for leave to appeal to be granted, an
applicant must show that there is a reasonable prospect of success
on appeal: see
inter alia
Pharmaceutical
Society of South Africa & Others
v Tshabalala-Msimang & Another NNO
2005 (3) SA 238
(SCA) at 262D. The test is not whether the case is
arguable or fairly arguable, unless the word “arguable”
is used
in the narrow sense that there is substance in the argument
advanced on behalf of the applicant: see
inter
alia
Rood
v Broderick
Properties
Ltd
1962 (2) SA 434
(T) at 435C-F.
In
my view the respondents have not raised anything new of substance in
their application for leave to appeal. I have already
dealt in
detail with my findings and the reasons therefor in my judgment in
the court a quo in relation to the grounds advanced
by the
respondents, save for one ground which I deal with hereunder. My
views remain unchanged and I have nothing further to
add.
In
regard to the ground not dealt with in my judgment, namely that the
restraint against the fourth respondent is in any event
unenforceable since it is alleged to be vague as to its geographical
area of operation, this was neither raised by the respondents
in
their papers nor was it raised in the respondents’ heads of
argument filed on their behalf. It was raised for the first
time in
the court a
quo
during argument by
:
their counsel, who was of the view that his submissions were not
only to be made on the cases put forward by the parties in their
papers. I made it clear to him that 1 disagreed with that approach,
not least since, the applicants had not been afforded the
opportunity to deal therewith. He thereafter did not pursue that
submission or his contentions relating to the geographical area
of
the restraint with any degree of conviction. It was for these
reasons that I did not consider it necessary to deal in my judgment
in the court a
quo
with this ground now advanced.
That
having been said, I am satisfied that the respondent has no
reasonable prospect of success on appeal and that there is no
substance in the arguments advanced on their behalf for this purpose
in the sense set out in the
Rood
case.
In the result the application for
leave to appeal is dismissed witK costs^ including the costs of two
counsel.
J
I CLOETE