Cronshaw and Another v Coin Security Group (Pty) Ltd

• Jurisdiction: South Africa
• Judge: E M Grosskopf JA, F H Grosskopf JA, Harms JA, Schutz JA and Plewman AJA
• Judgment Date: 28 March 1996
• Docket Number: 410/94
• Hearing Date: 19 March 1996
• Counsel: A Mendelow QC for the appellants. S L Joseph for the respondent.
• Court: Appellate Division

F Schutz JA:

After conclusion of argument this Court ordered that the appeal be struck from the roll with costs. These are the reasons which were to follow.

The first appellant ('Cronshaw') was formerly employed by the respondent ('Coin') subject to a restraint of trade. He is now employed by the second appellant ('Fidelity'). G Coin and Fidelity are competitors. The former obtained interim interdicts against Cronshaw and Fidelity, inter alia forbidding the continued employment of Cronshaw in breach of the restraint, pending the determination of the trial. Leave to appeal against these interdicts was refused by the Court a quo, Barkhuizen AJ, on the ground that the H grant of the interim orders was not appealable. Leave to appeal was granted pursuant to a petition addressed to the Chief Justice.

Prior to the hearing of the appeal counsel were requested to consider the relevance of the decision in African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA 38 (A) on the question of the appealability of an order granting an interim I interdict. In argument Mr Mendelow, for the appellant, did not contend that this case was wrongly, even less, clearly wrongly, decided. He confined himself to the submission that it is distinguishable, on the ground that whereas leave to appeal was granted in the case before us, in that case there had been no leave (the reason being that at the relevant time there was a right of appeal in trial cases emanating from the Supreme Court). The J questions before us

Schutz JA

A are, accordingly, whether the two cases may be distinguished, and if not, whether the ratio in African Wanderers is decisive in this appeal.

Whether leave to appeal is required, and if yes, in which cases, are questions that have been answered differently by a variety of statutes over the years. No end would be served B by reviewing the history. The purpose of leave is to limit appeals to those that have reasonable prospects of success: Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A) at 561D-E. In itself the grant of leave does not prejudge the appeal. Where appealability is the issue on appeal (as it was in this case) the same applies. Therefore, to say what is trite, the fact that leave has been granted on a C question of appealability (even by this Court) does not mean that the decision in respect of which leave is given is indeed appealable. Leave is entirely extraneous to the enquiry now before us, which is whether the grant of an interim interdict is appealable. I fail to see how a case dealing with that question is rendered unworthy of consideration, or incapable of binding operation, merely because before it was decided the procedural sifting process D depending upon prospects did not have to...