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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 19/9212

In the matter between:

GENESIS ONE LIGHTING                                                                                      Applicant

(Registration No. 2014/158269/07)

and

JAMIESON, BRADLEY LLOYD                                                                 First Respondent

STREAMLIGHT FX (PTY) LTD                                                             Second Respondent

(Registration No. 2000/003931/07)

IRON ICE (PTY) LTD                                                                                 Third Respondent

(Registration No. 2018/483945/07)

FITTINGHOFF, RODNEY GERSON                                                        Fourth Respondent

KALISH, BRAD ANTHONY                                                                        Fifth Respondent

KALISH, ROBERT LARRY                                                                       Sixth Respondent

RIVIND, JASON                                                                                   Seventh Respondent

 

JUDGMENT ON THE LEAVE TO APPEAL APPLICATION

 

MAHALELO, J:

[1] The parties in this application are for convenience, referred to as cited in the main application. This is an application brought by the seven respondents for leave to appeal the judgment and order of this court delivered on 18 March 2019.

[2] The main application concerns an order interdicting the respondents from unlawfully competing with the applicant by using the applicant's confidential information whether directly or indirectly for purposes of soliciting the business of the applicant, its clients and suppliers thereby competing with the business interests of the applicant. The order sought included that the first respondent is interdicted and directed to deliver to the applicant all documents whether in digital form or otherwise in his possession or control relating to the applicant’s business, clients and/or suppliers relating to specifications or the knowhow and/or unique selling points (“USP”) of the applicant’s products and from further disseminating or making available to any person including the second, third, fourth, fifth, sixth and seventh respondents same.

[3] On 4 April 2019 the respondents filed the application for leave to appeal the whole of the judgment and order of this court. The applicant opposed the application. They argue that the order granted is interim in nature and therefore not appealable, further that, there are no prospects of success on appeal.

[4] The respondents grounds of appeal are that;-

4.1 The reasoning adopted by the court in finding that the respondents’ version is so untenable that it can be rejected on paper is not readily apparent from the judgment. There was no basis upon which the court could have arrived at such a conclusion.

4.2 The court ought not to have concluded that the respondents’ version was farfetched and untenable that it could be rejected without evidence.

4.3 The issue whether the applicant itself actually expended resources in establishing a business relationship with Sengled is germane to the application. On the basis of the first respondent’s version the applicant should not have been granted the relief sought by it.

4.4 Assuming that the information pertaining to Sengled was indeed truly confidential, the second to seventh respondents had no duty (contractual or otherwise) to preserve the confidentiality thereof. No relief should therefore have been granted against the second to seventh respondents. Unlike the first respondent, the other respondents did not furnish the applicant with any confidentiality undertakings.

4.5 In so far as the first respondent is concerned, it is common cause that he had previously concluded a confidentiality agreement with the applicant. However, there was no restraint of trade concluded between the first respondent and the applicant. The fact that the first respondent was not subject to a restraint of trade is significant as it limits the remedies available to the applicant in the circumstances

4.6 If the first respondent breached the confidentiality undertakings by disclosing confidential information regarding Sengled to the other respondents, the only remedy available to the applicant would be to pursue a damages claim against the first respondent for breach of contract. The applicant should have not obtained the interdictory relief on this basis as the information had already been disclosed in annexure “A” to the application.

4.7 As the first respondent did not furnish any restraint of trade undertakings in favour of the applicant, there is no legal basis to prohibit the first respondent from being employed by the second and/or third respondents. In addition even if the first respondent would have furnished the applicant with an undertaking in restraint of trade, the court could only have granted an interdict to enforce the restraint for a limited period.

 

APPEALABILITY OF THE COURT ORDER

[5] It is trite that court orders that are interlocutory in nature, having no final or irreparable effect, are not appealable.[1]  It must be remembered, however, that, as Hefer JA said in Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service,[2] the passage in Zweni “does not purport to be exhaustive or to cast the relevant principles in stone”.

[6] The question of appealability of an order made in judicial proceedings which had not yet been finalised was discussed by Nugent JA in National Director of Public Prosecutions v King,[3] where he said the following:

“There will be few orders that significantly affect the rights of the parties concerned that will not be susceptible to correction by a court of appeal. In Liberty Life Association of Africa Ltd v Niselow (in another court), which was cited with approval by this court in Beinash v Wixley [1997] ZASCA 32; 1997 (3) SA 721 (SCA), I observed that, when the question arises whether an order is appealable, what is most often being asked is not whether the order is capable of being corrected, but rather whether it should be corrected in isolation and before the proceedings have run their full course.  I said that two competing principles come into play when that question is asked. On the one hand justice would seem to require that every decision of a lower court should be capable not only of being corrected but of being corrected forthwith and before it has any consequences, while on the other hand the delay and inconvenience that might result if every decision is subject to appeal as and when it is made might itself defeat the attainment of justice.

In this case it was said on behalf of Mr King that the order is not appealable because it is interlocutory. Whether that is its proper classification does not seem to me to be material. I pointed out in Liberty Life that while the classification of the order might at some time have been considered to be determinative of whether it is susceptible to an appeal the approach that has been taken by the courts in more recent times has been increasingly flexible and pragmatic.  It has been directed more to doing what is appropriate in the particular circumstances than to elevating the distinction between orders that are appealable and those that are not to one of principle. Even the features that were said in Zweni v Minister of Law and Order to be characteristic in general, of orders that are appealable were later said by this court in Moch v Nedbank (Pty) Ltd t/a American Express Travel Services not to be exhaustive, nor to cast the relevant principles in stone.  As appears from the decision in Moch, the fact that the order is not ‘determinative of the rights about which the parties are contending in the main proceedings’ and does not ‘dispose of any relief claimed in respect thereof’, which was out of the features that was said in Zweni to generally identifying an appealable order, is far from decisive.”

[7] The matter was further discussed in two recent decisions of the Supreme Court of Appeal, Health Professional Council of South Africa and Another v Emergency Medical Suppliers and Training CC t/a EMS[4] and Government of the Republic of South Africa and Others v Von Abo[5] where the court held:

“It is fair to say that there is no checklist of requirements.  Several considerations need to be weighed up, including whether the relief granted was final in its effect, definitive of the rights of the parties, disposed off a substantial portion of the relief claimed, aspects of convenience, the time at which the issue is considered, delay, expedience, prejudice, the avoidance of piecemeal appeals and the attainment of justice.”

[8] Based on all the legal principles set out above I am persuaded that in the circumstances of the present matter, the order of this Court is susceptible to appeal.

 

SHOULD LEAVE BE GRANTED?

[9] Leave to appeal may only be granted where the court is of the opinion that:

9.1 The appeal would have a reasonable prospect of success; or there is some other compelling reason why the appeal should be heard, including conflicting judgments or the matter under consideration;

9.2 The decision sought on appeal does not fall within the ambit of section 16(2) (a)  of the Superior Court Act 10 of 2013.[6];

9.3 Where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.

[10] Having considered all the grounds of appeal I am of the view that the respondents enjoy a reasonable prospect of success on appeal.

[11] In the result leave to appeal to the full court of this division is granted.

[12] Costs in the appeal.

 

           

                                           ________________________________________

                                                                          M B MAHALELO

                                                               JUDGE OF THE HIGH COURT

                                    GAUTENG LOCAL DIVISION, JOHANNESBURG

 

 

APPEARANCES

FOR THE APPLICANT: ADV GARVEY

INSTRUCTED BY: OTTO KRAUSE INC

FOR THE RESPONDENTS: ADV SUBEL SC

ADV E RUDOLPH

INSTRUCTED BY: CHAD JACOBS ATTORNEYS

DATE OF HEARING: 07 MAY 2019

DATE OF JUDGMENT: 31 MAY 2019

 

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