South Africa: North Gauteng High Court, Pretoria

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 59301/2014

DATE: 17 SEPTEMBER 2014

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between

TRUVELO MANUFACTURERS (PTY) LTD.........................................................................APPLICANT

and

HATTINGH ROJEAN................................................................................................FIRST RESPONDENT

HATTINGH RODNEY..........................................................................................SECOND RESPONDENT

MORKEL AND CROUSE RIFLEMAKERS

(JHB) (PTY) LTD......................................................................................................THIRD RESPONDENT

JUDGMENT

KUBUSHI, J

[1] The applicant approached this court by way of an urgent application in which he sought to enforce a restraint of trade agreement. The first and second respondents were formerly employed by the applicant in terms of a service agreement and they both resigned from their employment. The first and second respondents are now employed by the third respondent. Such employment, according to the applicant, is in contravention of the service agreement in particular a restraint of trade clause in the service agreement.

[2] The matter was initially set down for hearing on 2 September 2014 in the urgent court but was eventually heard on 4 September 2014. The notice of motion was signed on 8 August 2014 and served on 11 August 2014. The respondents were afforded time to notify the applicant’s attorney of their intention to oppose the application by 15 August 2014 and to file their answering affidavits by 22 August 2014. It is common cause that the respondents did not to comply with the time lines set by the applicant and only filed their answering affidavit on 1 September 2014.

[3] When the parties appeared before me, they were in agreement that the matter should be postponed to afford the applicant an opportunity to file a replying affidavit to the respondents’ answering affidavit. The time agreed to by the parties was for the matter to be postponed to the 16 September 2014 and for the applicant to file its replying affidavit by 11 September 2014.

[4] What remained in issue, which this court had to determine, was: whether the respondents should be settled with the costs of the postponement resulting from the late filing of their answering affidavit; and, whether the applicant should be granted interim relief until 16 September 2014 in terms of the notice of motion.

[5] The submission by the applicant’s counsel was that the respondents should be ordered to pay for the wasted costs of the postponement because they occasioned the postponement. They had time from 11 August 2014 to 15 August 2014 within which to file their papers but opted to regard the application as not urgent. By filing their papers on 1 September 2014, they did not afford the applicant enough time within which to reply thereto, so he argued.

[6] The contention by the respondents’ counsel was that the respondents were not obliged to comply with the timelines set out in the notice of motion because they did not regard the application as urgent. According to counsel, the court must first determine urgency before it can be said that the respondents filed their papers out of time.

[7] Counsel for the applicant submitted that I need not concern myself with the issue of urgency at that stage. However, counsel for the respondents’ contention was that urgency must come into play if the applicant persisted with its claim for interim relief. According to counsel the matter was not urgent.

[8] Actually, the judgment has been overtaken by events. This matter having been postponed to 16 September 2014, should have by now served before another court. My initial view was that the two issues presented for my determination could not be decided without considering and deciding on the issue of urgency. My conclusion, as such, is that the court which determines the issue of urgency is best suited to determine who of the parties should be settled with the costs of postponement and whether interim relief should be granted or not.

[9] In the premises, I order that the two issues be reserved for determination in the court hearing the main application.

EM KUBUSHI

JUDGE OF THE HIGH COURT

APPEARANCES:

HEARD ON THE: 02 SEPTEMBER 2014

DATE OF JUDGMENT: 17 SEPTEMBER 2014

FOR APPLICANT: ADV A BOTHA, instructed by DE BEER JANSE VAN

VUUREN INC

FOR FIRST & SECOND RESPONDENTS: ADV SWANEPOEL, instructed by VOGEL

INCORPORATED

c/0 MICHAEL BURGER ATTORNEYS