IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable/Not Reportable
Case no: 2026/107622
In the matter between:
OVEX (PTY) LTD Applicant in the main application
and
YONG HUI HUANG First Respondent /
First Applicant for leave to appeal
TATENDA SAMUEL NHEMACHENA Second Respondent /
Second Applicant for leave to appeal
LUME TRADE (PTY) LTD Third Respondent /
Third Applicant for leave to appeal
LUMEPAY (PTY) LTD Fourth Respondent /
Fourth Applicant for leave to appeal
Coram: ADAMS AJ
Heard: 13 August 2026
Delivered: 07 September 2026
Summary: Restraint of trade. – Leave to appeal – Applicant having protectable
interest in confidential information threatened by former employees’
involvement in competing businesses . – No reasonable prospects of success or
compelling reason for appeal. – Application dismissed with costs.
___________________________________________________________________
ORDER
________________________________________________________________
1. The first respondent’s application for leave to appeal is dismissed.
2. The second respondent’s application for leave to appeal is dismissed.
3. The third respondent’s application for leave to appeal is dismissed.
4. The fourth respondent’s application for leave to appeal is dismissed.
5. No order is made in Ovex’s application under s 18(1), read with s
18(3), of the Superior Courts Act 10 of 2013.
6. The first to fourth respondents shall pay the costs of the applications
for leave to appeal, including the costs of two counsel, on Scale C.
________________________________________________________________
JUDGMENT: APPLICATIONS FOR LEA VE TO APPEAL
________________________________________________________________
ADAMS, AJ
Introduction
[1] The first to fourth respondents apply for leave to appeal against the
judgment and order of this Court delivered on 26 June 2026. Ovex (Pty) Ltd
(“Ovex”) opposes the applications.
[2] The main application concerned the enforcement of restraint -of-trade,
confidentiality and non -solicitation undertakings contained in the employment
agreements of the first and second respondents. It also concerned related claims
against the third and fourth respondents based upon unlawful competition and
the use or threatened use of Ovex’s confidential information.
[3] The grounds of appeal are extensive and overlap considerably. The
respondents nevertheless emphasise that the claims against them were not
identical and that their applications for leave must be considered separately.
[4] That proposition is accepted. The first and second respondents’
obligations arose principally from their respective employment contracts. The
case against the third and fourth respondents rested upon their alleged
participation in unlawful competition. Each application has been considered
separately, although it is convenient to address together those grounds which
raise the same legal or factual questions.
The applicable test
[5] A judge considering an application for leave to appeal must approach the
application dispassionately and objectively. 1 The question is not whether the
judge remains persuaded that the original decision was correct, but whether the
applicant for leave has satisfied one of the requirements in s 17(1)(a) of the
Superior Courts Act 10 of 20132.
[6] The applicants are not required to establish that the proposed appeal will
necessarily succeed. They must, however, demonstrate a sound and rational
basis for concluding that another court could reasonably reach a different result.
A mere possibility of success or the repetition of arguments rejected in the main
proceedings is insufficient.
[7] The statutory threshold is not satisfied merely because the proposed
appeal is arguable or because a different conclusion is conceivable. There must
be a sound and rational basis for concluding that there are reasonable prospects
of success on appeal.
1 In Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31 March
2021) at para 10, the Supreme Court of Appeal explained that the enquiry requires a dispassionate assessment of
the facts and law to determine whether a court of appeal could reasonably arrive at a conclusion different from
that of the court of first instance.
2 Section 17(1)(a) permits leave to appeal only where the Court is of the opinion that:
(a) the appeal would have a reasonable prospect of success; or
(b) there is some other compelling reason why the appeal should be heard, including the existence of conflicting
judgments on the matter under consideration.
[8] Where reasonable prospects are not established, the Court must consider
whether there is nevertheless another compelling reason for an appeal. 3 Such a
reason may include an important question of law, conflicting judgments, an
issue of public importance or some consideration affecting the administration of
justice. The merits nevertheless remain important and are often decisive.
[9] The applicants rely both upon alleged reasonable prospects of success and
upon what they contend are compelling reasons for the proposed appeals to be
heard. Each basis must be assessed against the findings and order made in the
main judgment. I turn now to consider the grounds advanced by the applicants
in support of the application for leave to appeal.
Relief allegedly exceeding the notice of motion and contracts
[10] The respondents’ first principal ground is that the Court granted relief
which Ovex had not sought and which was not founded upon the employment
contracts. Ovex submits that every material component of the order was either
expressly sought in the notice of motion or founded upon the restraint,
confidentiality and non-solicitation provisions of the employment contracts.
[11] Clause 14.3.1.2 of the first respondent’s contract, and the corresponding
clause 11.3.1.2 in the second respondent’s contract, provided that for 12 months
after termination of employment the employee would not:
“directly or indirectly have an interest in any business which competes with the
Company nor … directly or indirectly engage in the prohibited fields of activity within
any country in which the Company maintains a legal presence and undertakes its
business operations, drawing customers.”
3 Section 17(1)(a)(ii) of the Superior Courts Act
[12] Prayer 2.1 of the notice of motion sought an order restraining the first and
second respondents from breaching their restraints by being directly or
indirectly engaged with the third or fourth respondents in South Africa for the
agreed restraint periods.
[13] Properly understood, the reference in the order to the respondents being
shareholders in a competing business gave effect to the contractual prohibition
against their having a direct or indirect interest in such a business. Although the
word “shareholder” does not appear in clause 14.3.1.2, a shareholding is
capable of constituting an interest in a business. The reference to shareholding
did not create a new restraint. It gave effect to the contractual prohibition
against directly or indirectly holding an interest in a competing undertaking.
[14] Clause 14.1.1 prohibited the employees from using Ovex’s trade secrets
or confidential information for their own benefit or that of another person and
required them to keep such information confidential.
[15] Prayer 2.2 of the notice of motion sought an interdict preventing
disclosure of Ovex’s confidential information and trade secrets to the third or
fourth respondents or any other person. Paragraph 2.2 of the order therefore had
a clear contractual foundation.
[16] Clause 14.2 prohibited the first and second respondents, during the
stipulated period, from persuading, inducing, encouraging or procuring any
Ovex employee to:
(a) become employed by, or interested in, a competing business;
(b) terminate employment with Ovex; or
(c) supply information acquired through employment to an unauthorised
person.
[17] Prayer 2.3 of the notice of motion mirrored those obligations. The
corresponding paragraph of the order did not extend beyond the non -solicitation
covenant.
[18] Paragraph 3 of the order followed prayer 3 of the notice of motion, save
that the relief based upon passing off Ovex’s intellectual property or website
content was omitted because the Court found that Ovex had not established
passing off.
[19] The omission of that relief demonstrates that the Court differentiated
between the causes of action and granted only the relief it considered
established. It also answers the submission that the various claims were treated
indiscriminately.
[20] The delivery-up provisions differed in formulation from prayer 4 of the
notice of motion. A difference in wording does not, without more, mean that
unclaimed relief was granted. A court may formulate an order which gives
effective and practical expression to the relief established, provided that it does
not determine a dispute the affected parties were not called upon to answer.
[21] The delivery -up and confirmatory -affidavit provisions were ancillary to
the confidentiality relief. They were intended to ensure that confidential
information was not retained or used after the termination of employment.
[22] The respondents were not required to establish that they did not possess
information. If they held none, the order required no more than confirmation of
that fact. The order did not introduce a new cause of action or impose
obligations unrelated to the case pleaded. The respondents were fully aware of
the relief sought and answered it extensively. No procedural unfairness has been
demonstrated.
[23] The contention that the order was vague, unenforceable or materially
broader than the contractual obligations does not afford the proposed appeal a
reasonable prospect of success.
Standing and the distinction between Ovex and Ovex FSP
[24] The respondents contend that parts of the relevant business were
conducted by Ovex FSP (Pty) Ltd and that Ovex consequently lacked standing
to enforce the alleged protectable interests. This issue was addressed in
paragraphs 23 and 24 of the main judgment. The contractual restraints were
directed at participation in defined prohibited fields of activity. They were not
confined to competition with a particular licence holder.
[25] Clause 14.3.2 defined the prohibited fields to include activities relating
to:
(a) crypto-asset services;
(b) crypto-asset trading platforms;
(c) crypto-asset vending-machine services;
(d) crypto-asset token issuance;
(e) crypto-asset funds or derivative services;
(f) custodial crypto-asset wallets; and
(g) crypto-asset safe-custody services.
[26] The relevant enquiry was whether the businesses with which the first and
second respondents became associated operated in, or competed within, those
prohibited fields. The first and second respondents were employed by Ovex, not
Ovex FSP. Their contractual undertakings were given to Ovex. Ovex FSP was
not the employer and had no contractual right to enforce the restraints against
them.
[27] The fact that Ovex and Ovex FSP formed part of the same group or that
Ovex FSP performed regulated functions did not deprive Ovex of its contractual
rights or its own commercial interests.
[28] Nor does the possible existence of an overlapping interest in Ovex FSP
establish that Ovex had no protectable interest. The restraint provisions were not
limited to competition with a single licensed entity.
[29] The judgment found that Ovex possessed protectable interests in its
confidential information of the kind described in paragraphs 42 and 43 of the
main judgment and, secondarily, in its customer connections.
[30] Ovex was therefore the correct party to enforce the undertakings given by
its former employees. No reasonable prospect of success has been established
on standing.
The factual disputes and Plascon-Evans
[31] The respondents contend that the Court granted final relief despite
genuine disputes of fact and failed properly to apply Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd.4 As stated in paragraph 47 of the main judgment,
it was unnecessary to determine every factual dispute in order to decide the
application.
[32] The Court relied upon the facts stated by Ovex which were admitted or
could not genuinely be disputed, read with the respondents’ own version. It was
not disputed that the first respondent had enjoyed access to information of a
highly confidential nature. The respondents’ case was principally that he had
neither misused nor retained that information.
[33] Their denial of actual misuse did not answer Ovex’s case. In proceedings
to enforce a restraint directed at confidential information, an employer need not
invariably prove that the former employee has already used or disclosed the
information. It is sufficient to establish the protectable information, the
employee’s access to it and a reasonable possibility that the information could
be used to the employer’s prejudice.
[34] That principle is recognised in IIR South Africa BV (Incorporated in the
Netherlands) t/a Institute for International Research v Hall (aka Baghas) .5 The
Court applied the same principle in paragraph 37 of the main judgment.
[35] The forensic report relied upon by the first respondent did not
conclusively dispel Ovex’s case. It addressed aspects of actual copying or use. It
4 Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd. (53/84) [1984] ZASCA 51; [1984] 2 All SA
366 (A); 1984 (3) SA 623; 1984 (3) SA 620 (21 May 1984)
5 I I R South Africa BV t/a The Institute for International Research v Hall and Another (14293/03) [2003]
ZAGPHC 7 (13 June 2003)
did not eliminate the common -cause access to the information or the prospect
that confidential information within the first respondent’s knowledge or
possession could be used in the competing enterprises.
[36] The second respondent’s position had to be evaluated in light of his
involvement with the first respondent as co-founder of the Lume entities and his
own prior access to Ovex’s business and information.
[37] The Court did not reverse the onus in paragraph 78 of the main judgment.
It recognised the practical difficulty that Ovex could not identify with certainty
every document or item of information which the respondents might have
retained.
[38] The delivery-up order catered for that uncertainty without requiring the
respondents to prove a negative. A respondent who retained no confidential
information could comply by stating that fact on oath.
[39] The respondents have not identified a material factual dispute which,
properly resolved under Plascon-Evans, would displace the cumulative
foundation of the order.
[40] No reasonable prospect of success arises from the factual -dispute or onus
grounds.
The requirements for final interdictory relief
[41] The respondents contend that Ovex had another satisfactory remedy
because it could institute a damages claim.
[42] A possible future claim for monetary compensation is not necessarily an
adequate alternative to the enforcement of a restraint or confidentiality
covenant. Once confidential information has been disclosed or used to target
customers or commercial opportunities, the resulting harm may be difficult to
reverse or quantify.
[43] The purpose of the interdict was preventative. Damages after the event
would not provide Ovex with equivalent protection.
[44] Final interdictory relief may be granted where an infringement has
occurred or is reasonably apprehended. It is not necessary for an applicant to
wait until the threatened harm has materialised.
[45] Another court is unlikely to find that a damages claim provided a
satisfactory alternative remedy in these circumstances.
Circumstances surrounding termination and alleged compensation
[46] The first and second respondents relied upon the circumstances in which
their employment terminated and alleged unfulfilled promises concerning
financial compensation or the purchase of their shares.
[47] Those matters were considered in paragraphs 25 to 27 of the main
judgment. They did not constitute defences to the enforcement of the
independent restraint and confidentiality covenants.
[48] A dispute concerning the termination of employment or compensation
does not, without more, extinguish contractual obligations expressly intended to
survive termination.
[49] The respondents themselves accept that their confidentiality obligations
survived termination. Their complaint therefore concerns the permissible scope
of enforcement, not the continued existence of those obligations.
The restraint enquiry
[50] The respondents contend that the Court failed to apply the established test
for the enforceability of a restraint of trade.
[51] The legal principles in Basson v Chilwan6 and Reddy v Siemens
Telecommunications (Pty) Ltd7 were addressed in paragraphs 33 and 34 of the
main judgment.
[52] The Court thereafter considered:
(a) whether Ovex had an interest deserving protection;
(b) whether that interest was threatened by the respondents;
(c) how the respective interests of the parties weighed against one another;
and
(d) whether enforcement would be contrary to public policy.
[53] The Court found that Ovex had established a protectable interest in
confidential information and that the first and second respondents’ access to that
information, together with their involvement in the new enterprises, created a
threat to it.
6 Basson v Chilwan and Others (332/1991) [1993] ZASCA 61; 1993 (3) SA 742 (AD); [1993] 2 All SA 373 (A) (17 May 1993)
7 Reddy v Siemens Telecommunications (Pty) Ltd (251/06) [2006] ZASCA 135; 2007 (2) SA 486 (SCA);
(2007) 28 ILJ 317 (SCA) (30 November 2006)
[54] The respondents’ criticism is therefore not that the restraint enquiry was
omitted, but that its outcome was unfavourable to them. That disagreement does
not demonstrate an appealable misdirection.
Delay
[55] The respondents relied upon Ovex’s alleged delay in enforcing the
restraints as evidence that no protectable interest was genuinely threatened or
that Ovex’s true purpose was to suppress competition.
[56] The delay argument was considered in paragraphs 20 and 21 of the main
judgment. The Court accepted that Ovex first obtained evidence in April 2026
concerning the public launch and activities of Lume Trade and Lumepay and
instituted proceedings thereafter.
[57] Ovex could not reasonably be expected to enforce the restraints before it
possessed sufficient evidence of conduct threatening its contractual and
commercial interests.
[58] Once the chronology accepted in the main judgment is applied, the
alleged delay does not support an inference of an ulterior motive and does not
render enforcement unreasonable.
Confidential information as the primary protectable interest
[59] The respondents submit that Ovex’s information was insufficiently
identified and included material in the public domain or information forming
part of their general skill and experience.
[60] Information does not cease to be confidential merely because individual
components may be publicly available. A compilation of information, its
organisation and the commercial insight it affords may possess a confidential
quality and value not present in its individual components.
[61] The information identified in the judgment included customer
information, account balances, transaction activity, treasury positions, custody
infrastructure, trading accounts, SQL exports and downloaded corporate
records.
[62] That information extended beyond the first and second respondents’
general skill and experience. It concerned Ovex’s internal operations and
commercial position and was capable of benefiting a competitor.
[63] The Court did not find that every item of information known to the
respondents was confidential. It identified particular categories of internal
commercial and technical information falling within the contractual
confidentiality clauses.
[64] The submission that the confidentiality order was impermissibly general
or unsupported by a protectable interest does not carry a reasonable prospect of
success.
Customer connections
[65] The respondents submit that the Court conflated confidential information
with customer connections and found a protectable customer connection
without evidence that either former employee could carry Ovex’s customers
away in his pocket.
[66] Properly understood, the judgment did not find that Ovex had proved the
conventional form of close personal customer connection described in Rawlins v
Caravantruck (Pty) Ltd.
[67] Ovex’s principal case was not that the respondents had established
personal influence over particular customers . Its case was that the respondents
possessed confidential customer information, including customer identities,
account balances, transaction activity and related commercial information,
which could enable the new businesses to target Ovex’s customers.
[68] The primary protectable interest was therefore confidential information.
Any customer-connection interest was secondary.
[69] Ovex was required to establish at least one recognised protectable
interest. Its failure, if any, to establish the conventional personal -customer
connection would not displace the separate finding that its confidential
information constituted a protectable interest.
[70] The proposed appeal would therefore not succeed merely because an
appellate court might express the customer-connection aspect differently.
The delivery-up order
[71] The respondents contend that there was no proof that they retained
confidential information and that the delivery-up order was vague and incapable
of proper compliance.
[72] Properly understood, paragraphs 78 and 79 of the main judgment explain
that the delivery -up order was not punitive. It was intended to ensure that
confidential information to which the first and second respondents had enjoyed
access was not retained or used after termination.
[73] Ovex could not know with certainty what information had been copied or
retained. That uncertainty was not a reason to deny effective relief where access
to and possession of confidential information had been established.
[74] Paragraph 4 of the order identified the types of information concerned.
The order did not require the respondents to surrender information which was
public, belonged to them personally or constituted their general knowledge and
experience.
[75] If the respondents possessed no responsive information, they were
required only to say so on oath. That does not amount to requiring them to
prove a negative or reversing the onus.
[76] The delivery-up ground does not afford the proposed appeal a reasonable
prospect of success.
Non-solicitation
[77] The respondents submit that there was no evidence that the first or second
respondent solicited Ovex’s employees and that the approach made by an
independent recruiter was insufficient.
[78] The approach was common cause and had to be considered in its factual
context, including the formation of the competing businesses and the purpose of
the contractual non-solicitation clause.
[79] A non-solicitation clause is preventative rather than punitive. Ovex was
not obliged to wait until an employee had terminated employment and joined a
competing enterprise before seeking to enforce the covenant.
[80] The Court considered the relevant evidence cumulatively in paragraphs
70 and 71 of the main judgment. The respondents have not demonstrated a
reasonable prospect that another court would reject the inference drawn from
that evidence.
The first respondent’s explanation and forensic report
[81] The first respondent relied upon his explanation for information removed
from his laptop and upon an independent forensic report.
[82] The material issue was not confined to the dates upon which individual
documents were downloaded or deleted. It was common cause that the first
respondent had access to and possession of Ovex’s information and was bound
not to disclose or use it.
[83] Ovex explained the confidential character of the relevant information in
its founding papers. It also explained that the proceedings were instituted after
the discoveries made in April 2026 concerning the launch and activities of the
Lume entities.
[84] The forensic report was addressed in reply because it had been introduced
by the respondents. It did not eliminate the first respondent’s access to
confidential information or establish that none could be retained or used.
[85] The weight attached to the report does not provide a reasonable prospect
of appellate interference.
The second respondent
[86] The second respondent submits that Ovex made no case that he had
breached or threatened to breach his confidentiality undertaking.
[87] Properly understood, the judgment found that the first respondent in
particular had access to Ovex’s confidential information. It did not, however,
follow that the second respondent’s position was legally or factually irrelevant.
[88] The second respondent had been employed by Ovex and was subject to
his own contractual obligations. He aligned himself with the first respondent in
establishing the Lume entities and acted with him in advancing those
businesses.
[89] Their relationship and shared commercial undertaking were relevant in
determining whether Ovex’s confidential information could be used for the
benefit of the new enterprises.
[90] The case was not based solely upon association. It included the second
respondent’s own obligations, access and participation in the businesses which
posed the apprehended threat.
[91] Another court would not reasonably conclude that no case was
established against the second respondent.
Unlawful competition and the third and fourth respondents
[92] The third and fourth respondents emphasise that they were not parties to
the employment contracts and could not be bound by the restraints undertaken
by the first and second respondents.
[93] The Court did not treat them as contracting parties. The cause of action
against them was unlawful competition through their use or likely use of
confidential information obtained from Ovex’s former employees.
[94] In IIR South Africa v Hall , the Court recognised that an interdict may be
granted against a third-party competitor where it is making use of, or is likely to
make use of, the former employer’s confidential information or trade secrets,
whether knowingly or innocently.
[95] The first respondent was the chief executive officer of Lume Trade and
had enjoyed access to Ovex’s confidential information. He was consequently in
a position to use that information to advance Lume Trade.
[96] The relationship between the respondents, their involvement in the Lume
entities, the nature of the competing activities and the information available to
the former employees supported Ovex’s apprehension that its confidential
information could be used by or for the benefit of those entities.
[97] The interdict against unlawful competition was based upon that
reasonably apprehended use. It was not dependent upon proof that the third or
fourth respondent had already exploited a particular document.
[98] The dismissal of the passing -off claim does not undermine the unlawful -
competition relief. Passing off and the misuse of confidential information are
distinct causes of action with different requirements.
[99] The fact that the Court rejected passing off but upheld the
confidentiality-based unlawful -competition claim demonstrates that it
distinguished between the separate causes of action.
[100] The third and fourth respondents have not established a reasonable
prospect that an appellate court would find that no proper case was made out
against them.
Costs in the main application
[101] The respondents challenge the order that they pay the costs of the main
application jointly and severally.
[102] A costs order involves the exercise of a judicial discretion. An appellate
court will not readily interfere unless the discretion was not exercised judicially,
was influenced by a material misdirection or produced a result no reasonable
court could have reached.
[103] The reasons for the costs order were given in paragraph 84 of the main
judgment. Although the causes of action were not identical, the respondents
opposed the application together, relied upon substantially overlapping evidence
and made common cause on the principal issues.
[104] Ovex achieved substantial success. The fact that it did not succeed on
passing off did not require a mathematical apportionment of costs.
[105] The respondents have not demonstrated the exceptional circumstances
required for appellate interference with the costs order.
The Varejes judgment
[106] The respondents rely upon the judgment of Holderness J in Ovex (Pty)
Ltd v Luc Varejes and Lume Trade (Pty) Ltd 8 (“The Varajes judgment”) as an
allegedly conflicting judgment and, consequently, a compelling reason for an
appeal.
[107] The Varajes judgment was considered and distinguished in paragraphs 54
to 58 of the main judgment.
[108] There are superficial similarities between the two matters. Ovex was the
applicant in both; Lume Trade was involved; similar restraint and
confidentiality clauses were considered; and portions of the general commercial
background overlapped.
[109] Those similarities do not establish conflicting judgments. Restraint and
confidentiality disputes are fact -sensitive. The role of each employee, the
information to which that employee had access, the manner of departure and the
subsequent conduct must be considered.
8 OVEX (Pty) Ltd v Varajes and Another (Western Cape Division, Cape Town) case no 2026-124280 [18 June
2026]unreported
[110] Varejes did not leave Ovex to establish a competing business. He took up
a regulatory role at Lume Trade. Although he had access to operational
information as Ovex’s chief operating officer, the evidence did not establish
conduct comparable to that of the respondents in the present matter.
[111] By contrast, the first and second respondents left Ovex and co -founded
the Lume entities. The evidence concerned their deletion or downloading of
Ovex information and, in the case advanced by Ovex, post-termination access to
its Fireblocks trading accounts. The character of the information and the
conduct relied upon differed materially.
[112] The respondents seek to transpose findings made on the evidence in
Varejes—concerning the absence of proof of use, the age of information and
attenuation of any threat—to the materially different evidence in this matter.
[113] A different outcome on different evidence does not amount to a
conflicting judgment for purposes of s 17(1)(a)(ii). The respondents have not
identified an inconsistent rule of law adopted in the two judgments.
[114] Nor do superficial similarities concerning the parties, the contractual
wording, legal representation or timing give rise to lis alibi pendens or issue
estoppel. The material parties, evidence and issues were not identical.
[115] The Varejes judgment consequently does not constitute a compelling
reason why the proposed appeal should be heard.
Constitutional and public-interest grounds
[116] The respondents invoke the rights to dignity, freedom of trade and a fair
hearing in ss 10, 22 and 34 of the Constitution. They also rely upon alleged
reputational harm and the novelty of the industry.
[117] The fact that restraint litigation affects commercial freedom and may
carry reputational consequences does not, without more, create a constitutional
issue requiring appellate determination.
[118] The respondents were represented, filed extensive evidence and argument
and were afforded a full opportunity to meet Ovex’s case. Their disagreement
with the Court’s conclusions does not establish an infringement of s 34.
[119] Nor does the relatively novel commercial setting render the governing
law unsettled. The application was decided under established principles
governing contract, restraint of trade, confidential information, unlawful
competition and final interdictory relief.
[120] No question of public importance or constitutional principle has been
identified which independently compels an appeal.
Conclusion
[121] I have reconsidered the judgment dispassionately and from an objective
standpoint. The issue is not whether I remain persuaded of its correctness, but
whether any respondent has demonstrated a sound and rational basis upon
which another court could reasonably reach a different result.
[122] Having considered the position of each respondent separately and
objectively, I am not persuaded that any of the proposed appeals would enjoy a
reasonable prospect of success. Nor has any respondent established another
compelling reason why an appeal should be heard. The applications for leave to
appeal must accordingly be refused.
The s 18 application
[123] Ovex also sought an order under s 18(1), read with s 18(3), of the
Superior Courts Act directing that the order in the main judgment operate and
be executed pending the determination of any application for leave to appeal or
appeal.
[124] The respondents submitted that the s 18 application should be considered
only if leave to appeal were granted. Ovex did not persist in seeking
determination of that application in the event that leave was refused by this
Court.
[125] Since the applications for leave to appeal fall to be dismissed, and Ovex
does not persist with its s 18 application at this stage, it is unnecessary to
determine whether the requirements of exceptional circumstances and
irreparable harm under s 18 have been established. No order will be made in
that application.
Order
[126] The following order is made:
1. The first respondent’s application for leave to appeal is dismissed.
2. The second respondent’s application for leave to appeal is dismissed.
3. The third respondent’s application for leave to appeal is dismissed.
4. The fourth respondent’s application for leave to appeal is dismissed.
5. No order is made in Ovex’s application under s 18(1), read with s
18(3), of the Superior Courts Act 10 of 2013.
6. The first to fourth respondents shall pay the costs of the applications
for leave to appeal, including the costs of two counsel, on Scale C.
_____________________________
M. F. ADAMS
Acting Judge of the High Court
Appearances
For applicant: A. Smalberger SC
R. Fitzgerald
Instructed by: R. Gootkin, Werksmans Attorneys
For respondents: R. Stelzer SC
Instructed by: H. Theron, Hanekom Attorneys Inc