Brits and another v AQS Liquid Transfer (Pty) Ltd (Leave to Appeal)

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Greyling-Coetzer AJ
• Judgment Date: 27 April 2022
• Docket Number: 3128/2021
• Hearing Date: 07 March 2022
• Citation: 2022 JDR 3384 (MN)

Greyling-Coetzer AJ

[1]

The applicants were unsuccessful in warding off an urgent application by the respondent to declare that the first applicant, DONOVAN BRITS (herein after "Brits") and the second applicant, DB FLUID DYNAMIX (PTY) LTD (hereinafter "DB Fluid") are in contempt of court for their failure to comply with the order by Roelofse AJ under case number 2450/2021 granted, on 21 July 2021 ("the Roelofse order").

[2]

Brits and DB Fluid were further interdicted in terms of Section 24 of the Copyright Act 98 of 1978 from using, distributing and/or publishing the Domin8r Pumps brochure directly or indirectly. The third respondent MARCO COETZEE (hereinafter "Coetzee") was interdicted and restrained for the period 3 March 2021 to 3 March 2022 from either directly or indirectly selling, repairing or maintaining any pumps of AQS/MC customers specified in the Roelofse order.

[3]

This court held that Brits and DB Fluid acted in contempt of the Roelofse order and failed to discharge their evidentiary burden. It was also held that they made unlawful use of the AQS copyright protected brochure when utilizing it as the Domin8r Pump brochure. In respect of costs and in exercising a judicial discretion, it was held that the costs order, jointly and severally on an attorney-and-client scale ordered against Brits and DB Fluid, was justified in the circumstances.

[4]

Brits and DB Fluid (collectively "the applicants") now apply for leave to appeal against the declaration of contempt, the interdict in terms of Section 24 of the Copyright Act 98 of 1978 and the costs order awarded against them. They seek leave to appeal to the Supreme Court of Appeal, alternatively the Full Bench of this Division. The application for leave to appeal was served and filed on 19

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Greyling-Coetzer AJ

October 2022, shortly after the order was granted and simultaneously with a request for reasons. The application for leave to appeal was filed in terms of Rule 49(1)(b). Pursuant to the reasons being provided to all the parties, Brits and DB Fluid filed supplementary grounds for leave to appeal on 2 March 2022. The applicants supplemented grounds ostensibly also filed in terms of Rule 49(1)(b), but 31 court days after the reasons for the order was made available to the parties.

[5]

The facts of this case are set out in the full reasons and need not be repeated herein.

[6]

Section 17 of the Superior Courts Act 10 of 2013 regulates an application for leave to appeal from a Division of the High Court, and reads as follows:

"17

LEAVE TO APPEAL

(1)

Leave to appeal my only be given where the judge or judges concerned are of the opinion that

(a)

(i)

the appeal would have a reasonable prospect of success; or

(ii)

there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.

(b)

The decisions sought on appeal does not fall within the ambit of Section 16(2)(a) and

(c)

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."

[7]

From a cursory reading of the notice of application for leave to appeal it appears that the applicants employed the old test (namely, that there is a reasonable prospect that another court may come to a different finding). The correct test was relied on in the applicants heads of argument. The standard

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Greyling-Coetzer AJ

of reasonable prospects of success have been developed by our courts over time. It is now specifically set out as per paragraph 7 above.

[8]

In the current form Section 17 provides that leave to appeal may be granted only where the judge is of the opinion that the appeal would have a reasonable prospect of success, or if there is some other compelling reason why the appeal should be heard. This is a more stringent approach than before, and so the bar to qualify for leave to appeal has been raised. The word "only" means that leave to appeal may be granted in the stated circumstances only. What this means practically is that a greater measure of certainty that a different outcome would be reached, is required.

[9]

The court in Mgezeni Gasbat Nxumalo v The National Bargaining Council for the Chemical Industry (NBCCI) and Others [1] conveniently summarizes the approach to an application for leave to appeal, albeit in a labour law context, as follows:-

"The traditional formulation of the test that is applicable in an application such as the present requires the court to determine whether there is a reasonable prospect that another court may come to a different conclusion to that reached in the judgment that is sought to be taken on appeal. As the respondents observe, the use of the word 'would' in s 17(1)(a)(i) are indicative of a raising of the threshold since previously, all that was required for the applicant to demonstrate was that there was a reasonable prospect that another court might come to a different conclusion (see Daantjie Community and Others v Crocodile Valley Citrus Company (Pty) Ltd and Another (75/2008) [2015] ZALCC 7 (28 July 2015)) Further, this is not a test to be applied lightly - the Labour Appeal Court has recently had occasion to observe that this court ought to be cautious when leave to appeal is granted, as should the Labour Appeal Court when petitions are granted. The statutory imperative of the expeditious resolution of labour disputes necessarily requires that appeals be limited to those matters in which there is a reasonable prospect that the factual matrix could receive a different treatment or where there is some legitimate dispute on the law (see the judgment by Davis, JA in Martin and East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC), and also Kruger v

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S 2014 (1) SACR 369 (SCA) and the ruling by Steenkamp, J in Oasys Innovation (Pty) Ltd v Henning and Another (C) 536/15 (6 November 2015) and also Seatlholo and Others v Chemical, Energy, Paper, Printing, Wood and Allied Workers Union and Others [2] )".

[10]

In the application for leave to appeal the grounds were in summation that:-

(a)

the court erred in declaring Brits and DB Fluid to be in contempt, and should have found that all the evidence put forward by the respondent, AQS LIQUID TRANSFER (PTY) LTD (hereinafter "AQS"), was hearsay and that AQS failed to discharge the statutory onus with regard to the use of hearsay evidence;

(b)

the court erred in awarding a punitive cost...