Lubrequip Witbank (Pty) Ltd and others v Prolube Marketing (Pty) Ltd

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Langa J
• Judgment Date: 20 October 2022
• Docket Number: 883/2022
• Hearing Date: 26 August 2022
• Citation: 2022 JDR 3388 (MN)

Langa J:

Introduction

[1]

This is an application for leave to appeal the judgment and orders of this court handed down on 20 May 2022 against the respondents in the main application granting the applicant an interim interdict. The impugned order reads as follows in full:

"1.

Pending the institution and finalization of an action for final relief as contemplated in paragraph 3 of the notice of motion, an interim order is hereby granted in the following terms:

2.

The first to the seventh respondents are interdicted from supplying, selling, dealing in, or otherwise distributing to any person, directly or indirectly, through an agent or another third party, any lubrication pump described by such respondent or respondents and/or such third party as a "BP3" pump.";

3.

The applicant is directed to institute an action for the final relief in terms of paragraphs 3.1 to 3.1.3 of the notice of motion, or similar terms, within 20 days of this order, failing which this order in paragraph 1 shall lapse;

4

The costs of the application shall be the costs in the trial.

[2]

The grounds of appeal appear from the notice of leave to appeal and can be summarised as follows:

1.

The court erred in finding that the applicant (Prolube) has established a prima facie right to the relief sought;

2022 JDR 3388 p3

Langa J

2.

That the court erred in finding that the respondents bore the onus to produce evidence that the name BP3 belongs to Eskom or Johnston;

3

The court erred in failing to weigh up the versions in respect of the reproduction of the pump and as a result arrived at incorrect conclusion in this regard;

4.

The court erred in finding that the respondents are competing unlawfully and therefore finally disposing of this aspect;

5.

The court erred in finding that the balance of convenience favours the respondent (Prolube) and will not harm the respondents.

Applicable statutory provisions and legal principles

Section 17(1) of the Superior Courts Act 10 of 2013

[3]

It is trite that applications for leave to appeal are now governed by the provisions of Section 17(1) of the Superior Courts Act 10 of 2013 which provides as follows:

"17 Leave to appeal:

(1)

Leave to appeal may 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; (my underlining for emphasis).

(b)

the decision sought on appeal does not fall within the ambit of section 16 (2) (a); and

2022 JDR 3388 p4

Langa J

(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."

[4]

The test has clearly changed substantially from that ordained by the repealed Supreme Court Act 59 of 1959. See The Mont Chevaux Trust (IT2012/28) v Tina Goosen and Others LCC14R/2014, (3 November 2014) at para 6. Leave to appeal may therefore only be granted if the court of first instance is of the opinion that the appeal would have reasonable prospects of success or is arguable. See Hunter v Financial Services Board 2017 JDR 0941 (GP). The concept of reasonable prospects of success is succinctly dealt in S v Smith [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) para 3 where it is stated that "In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.' The respondents must therefore satisfy the court that the appeal would, not might, have reasonable prospects of success either on facts or the law.

Section 18 of the Superior Courts Act 10 of 2013

[5]

Section 18 of the Superior Courts Act ("the Act") provides:

"(1)

Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an...