H & A Manufacturing (Pty) Ltd and Another v Bower and Others (D7681/2019) [2020] ZAKZDHC 3 (7 February 2020)

H & A Manufacturing (Pty) Ltd and Another v Bower and Others (D7681/2019) [2020] ZAKZDHC 3 (7 February 2020)

The court found that there are reasonable prospects another court would differ with its decision, and therefore granted leave to appeal to the Full Court. In considering the section 18(3) application, the court applied the two-fold test: whether exceptional circumstances exist and whether irreparable harm would be suffered by the applicants if the order is not implemented, and conversely, whether the respondents would suffer irreparable harm if the order is implemented. The court determined that the applicants would suffer irreparable harm if the restraint orders were suspended, as the relief would be rendered nugatory due to the short duration of the restraints and ongoing breaches by...

Citation
[2020] ZAKZDHC 3
Parties
Applicant: H & A Manufacturing (Pty) Ltd; Applicant: H & A Creations (Pty) Ltd; Respondent: Kirk Bower; Respondent: Jerome Annamutha; Respondent: Rory Johnson; Respondent: Iconic Collective (Pty) Ltd; Respondent: Iconic Pixel (Pty) Ltd; Respondent: Harrington James & Associates (Pty) Ltd; Respondent: Print Outsource International (Pty) Ltd
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
7 February 2020
Case Number
D7681/2019
Procedural Posture
Leave to Appeal / Application for Leave to Appeal and S 18(3) Application
Outcome
Leave to appeal is granted to the first to fifth respondents. The applicants' section 18(3) application is granted, and the restraint orders operate and are implemented with immediate effect pending the outcome of any appeal. Costs of both applications are awarded against the first to fifth respondents, jointly and...
Judges
Henriques
Legal Topics
Leave to Appeal, Restraint of Trade, Execution Pending Appeal, Exceptional Circumstances, Irreparable Harm
Civil Procedure Commercial and Corporate Leave to Appeal Restraint of Trade Execution Pending Appeal Exceptional Circumstances Irreparable Harm

Case Brief

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Parties

H & A Manufacturing (Pty) Ltd

Applicant

H & A Creations (Pty) Ltd

Applicant

Kirk Bower

Respondent

Jerome Annamutha

Respondent

Rory Johnson

Respondent

Iconic Collective (Pty) Ltd

Respondent

Iconic Pixel (Pty) Ltd

Respondent

Harrington James & Associates (Pty) Ltd

Respondent

Print Outsource International (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal and S 18(3) Application

Legal Issues

  1. 1 Whether leave to appeal should be granted to the first to fifth respondents against the judgment delivered on 23 December 2019.
  2. 2 Whether the applicants have satisfied the requirements for an order in terms of section 18(3) of the Superior Courts Act, allowing execution of the judgment pending appeal.
  3. 3 Whether exceptional circumstances exist justifying immediate implementation of the restraint of trade orders.

Ratio Decidendi

The court found that there are reasonable prospects another court would differ with its decision, and therefore granted leave to appeal to the Full Court. In considering the section 18(3) application, the court applied the two-fold test: whether exceptional circumstances exist and whether irreparable harm would be suffered by the applicants if the order is not implemented, and conversely, whether the respondents would suffer irreparable harm if the order is implemented. The court determined that the applicants would suffer irreparable harm if the restraint orders were suspended, as the relief would be rendered nugatory due to the short duration of the restraints and ongoing breaches by...

Court Disposition

Leave to appeal is granted to the first to fifth respondents. The applicants' section 18(3) application is granted, and the restraint orders operate and are implemented with immediate effect pending the outcome of any appeal. Costs of both applications are awarded against the first to fifth respondents, jointly and...

Orders

  • Leave to appeal to the Full Court of this Division is granted to the first to fifth respondents.
  • The costs of the application for leave to appeal will form part of the costs in the appeal.