O'Donovan v Kuruman Radiators CC

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: MC Mamosebo J
• Judgment Date: 25 February 2022
• Docket Number: 1283/2021
• Hearing Date: 31 January 2022
• Court: Northern Cape Division
• Citation: 2022 JDR 1978 (NCK)

Mamosebo J:

[1]

On 17 September 2021 I confirmed the interim order (rule nisi) issued out of this Court by Lever J on 29 June 2021 by:

2022 JDR 1978 p2

Mamosebo J

1.1

Interdicting and restraining Ms O'Donovan for a period of 12 (twelve) months from 01 June 2021, and within a radius of 200km from Kuruman, to accept and hold any employment with any person, firm, group, partnership or association, including the second respondent (BSSC Radiators (Pty) Ltd) which competes with the business of the applicant.

1.2

Interdicting and prohibiting Ms O'Donovan from performing any of her duties in terms of her employment with BSSC Radiators during the period and within the area as stated in the preceding paragraph.

1.3

Interdicting and prohibiting Ms O'Donovan from directly or indirectly disclosing any confidential information with respect to the business of the applicant, to any other person or business, including BSSC Radiators.

1.4

Ordering both Ms O'Donovan and BSSC Radiators to pay the costs of the application, including costs of 29 June 2021, jointly and severally the one paying the other to be absolved.

[2]

Ms O'Donovan is now seeking leave to appeal to the Full Bench of this Division against the whole of my judgment and orders. Kuruman Radiators, did not oppose the application but filed a Notice to Abide the decision.

[3]

The application is brought in terms of s 17(1)(a) of the Superior Courts Act [1] Counsel submitted in argument that the appeal would have reasonable prospects of success. It is trite, following the Mont Chevaux Trust (IT2012/28) v Tina Goosen and 18 Others [2] confirmed by the Supreme Court of Appeal in MEC for Health,

2022 JDR 1978 p3

Mamosebo J

Eastern Cape v Mkhitha [3] that the bar has been raised and the word 'would' indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.

[4]

The grounds upon which Ms O'Donovan relies as set out in the notice of appeal in seeking leave are that I erred in:

4.1

Failing to properly apply the test set out in Plascon-Evans in regard to disputes of fact which arose in the papers:

4.2

Following the approach set out by Wallis AJ in the matter of Den Braven SA (Pty) Ltd v Pillay & Another 2008 (6) SA 229 (D) regarding the court being permitted to insert what it considers to be reasonable terms into an agreement rather than the approach set out by the Supreme Court of Appeal in the 2012 matter of Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA);

4.3

Failing to give appropriate consideration to the decreasing value of the trade connections established by the application during the period of her employment;

4.4

Failing to consider the nature of the proprietary interest claimed by the respondent;

4.5

Failing to consider the nature of the arrangements entered into between the respondent and its clients when assessing the value of the proprietary information claimed by the respondents;

4.6

Failing to appreciate the considerable differences in the businesses of BSSC Radiators (Pty) Ltd and Kuruman Radiators; and

4.7

granting a cost order against the second respondent (BSSC Radiators (Pty) Ltd) notwithstanding that it did not oppose the application.

2022 JDR 1978 p4

Mamosebo J

Ground 1: Failing to apply the Plascon-Evans principle

[5]

As early as para 5 of the main judgment I referred to the Plascon-Evans principle and the fact that it was common cause between the parties that disputes of fact existed. However, they were soluble on the papers as they stood. This follows that when I dealt with the matter I was mindful of such existence and the approach to be followed and duly applied the principle.

Ground 2: Following Den Braven and not the...