IN THE HIGH COURT OF SOUTH AFRICA

In the matter between:

and

JUDGEMENT 
(Application for Leave to Appeal)

BOZALEK. J

Following my judgment and order in this matter, handed down on 15 December last, the respondent now seeks leave to appeal to the Supreme Court of Appeal, alternatively the full bench of this Division, and I refer to the parties in their capacities in the original application.

The applicant opposes the granting of leave and has brought an application in terms of Rule of Court 49(11) that, in the event leave is granted, the Court's restraining order remain operative,   or,   in   the   event  that   leave   is   refused,   but respondent petitions the SCA for leave to appeal, similarly this Court's order be made operative. It is material to both applications that the order restraining the respondent from competing with the applicant in certain respects, and from disclosing certain confidential information, will expire on 30 June 2010, ie it has no more than five months to run.

The original agreement between the parties provided for a restraint period of two years from termination of employment, and the shortened restraint period comes about as a result of the matter taking some time to come before Court and this Court's decision that the restraint should run for a period of only six and a half months. The order has not been operative since 18 December last, ie the first one and a half months of its intended operation, by reason of the virtually immediate noting of an appeal and the time taken to arrange for a hearing of this application.

"(1) When at the hearing of any civil appeal in the appellate division, or any provincial or local division of the Supreme Court the issues are of such a nature that the judgment or order sought will have no practical effect or result, the appeal may be dismissed on this ground alone."
"{3}  Save under exceptional circumstances the question whether the judgment or order would have no practical effect or result is to be determined without reference to consideration of costs."

(1)	the potentiality of irreparable harm or prejudice being sustained by the appellant on appeal, if leave to execute were to be granted;
(2)	the potentiality of irreparable harm or prejudice being sustained by the respondent on appeal, if leave to execute were to be refused;
(3)	
(4)	whether there is the potentiality of irreparable harm or prejudice to both appellant and the respondent, the balance of hardship or convenience, as the case may be.

In the present matter the applicant has a judgment in its favour, with a limited life of five months left. I regard the balance of hardship and convenience as decisive in the present case.

Without making any observation regarding whether the application for leave to appeal has been noted with some ulterior motive, I regard the respondent's prospects of success in the appeal as very limited. If the relief sought is not granted, and a petition is lodged, it is quite likely that it will ultimately be refused, or the appeal may never eventuate, or it may fail and yet the applicant will have enjoyed no substantive relief at all against the respondent, since the restraining order will have expired.

In the circumstances I consider that the applicant has made out a case for the alternative relief under Rule 49(11). The following order is then made:
(1)	

(2)	In the event that the respondent files a petition to the SCA in terms of Section 20(4)(b) of the Supreme Court Act 59 of 1959, the order of this Court dated 15 December 2009 shall remain operative.
(3)	The respondent is ordered to pay the applicant's costs in the applications for leave to appeal and to execute the judgment in terms of Rule 49(11), save in the event that the respondent successfully petitions for leave to appeal, in which event the costs of these applications shall be costs in the appeal