THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not reportable
Case no: 145/2021

In the matter between:
RTS INDUSTRIES

FIRST APPELLANT
CGC INDUSTRIES (PTY) LTD

SECOND APPELLANT
CHRISTIAAN ARNOLDUS KURTZ

THIRD APPELLANT
CARL WILLIAM RICHTER

FOURTH APPELLANT
C-QUIPTECH (PTY) LTD

FIFTH APPELLANT

and

TECHNICAL SYSTEMS (PTY) LTD

FIRST RESPONDENT
LAVIRCO BELEGGINGS (PTY) LTD

SECOND RESPONDENT

Neutral citation:
RTS Industries and Others v Technical Systems (Pty) Ltd and
Another (Case No. 145/2021) [2022] ZASCA 64 (5 May 2022)
Coram:
PETSE DP and ZONDI, DLODLO and GORVEN JJA and MOLEFE
AJA
Heard:
4 March 2022
Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time
for hand-down is deemed to be 09h45 on 5 May 2022.

Summary:
Interim interdict – appealability of interim interdictory relief and refusal of
counter-application – interests of justice do not require that appeal be entertained.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Western Cape Division of the High Court, Cape Town
(Mangcu-Lockwood AJ sitting as court of first instance):
The appeal is struck from the roll.
The appellants shall jointly and severally bear the respondents’ costs, the one
paying the others to be absolved, including the costs of two counsel.

______________________________________________________________________

JUDGMENT
______________________________________________________________________
Molefe AJA: (Petse DP and Zondi, Gorven and Dlodlo JJA concurring):
[1] This appeal turns on the appealability of the order made by the
Western Cape Division of the High Court, Cape Town (the high court) on 9 March 2020
(the 2020 order), enforcing the terms of the order – granted by agreement between the
parties – on 2 June 2015 (the 2015 order). The 2020 order (per Mangcu-Lockwood AJ)
in essence, confirmed the 2015 order and ordered compliance therewith. It is against this
2020 order that this appeal is directed and is before us with the leave of this Court.

[2] The 2015 order was granted pursuant to proceedings instituted by the respondents
for relief arising from the appellants’ alleged misappropriation of the confidential
information relating to the auger manufacturing process and machinery of the first
respondent, as well as the unlawful use of such information, thereby unlawfully competing
with the first respondent.

[3] The relevant background of the 2015 order is briefly as follows. The third appellant,
Mr Christiaan Arnoldus Kurtz (Mr Kurtz), was previously employed by the first respondent
as a plant engineer and, in the course of his employment, gained intimate knowledge of
the manufacturing processes of the first respondent. He had unfettered access to the first
respondent’s technical drawings and technical data relating to the manufacturing
processes. As part of Mr Kurtz’s conditions of employment with the first respondent, he
was obliged to enter into a confidentiality undertaking and restraint of trade agreement in
favour of the first respondent.

[4] During 2009, Mr Kurtz left the employ of the first respondent. Shortly thereafter,
rumours emerged of a competitor in the market selling a product similar to that of the
first respondent. The competitor’s product was offered for sale at a lower price than that
of the first respondent. The competing entity appeared to be RTS Industries, the first
appellant, but the first respondent was not able to ascertain the identity of the individual
who was the first appellant’s controlling mind for some time. It was only in July 2014 that
the first respondent was able to confirm the involvement of Mr Kurtz with RTS Industries
and, as a result, the 2014 application, which culminated in the 2015 order, was launched.

[5] Following the launch of the 2014 application, the first respondent came into
possession of technical drawings prepared by the appellants. It was then discovered that
these drawings infringed the copyright of the first respondent in 1179 of its technical
drawings. The appellants had made reproductions and adaptations of the copyrighted
work. Subsequently, the notice of motion of the 2014 application was amended to include
a prayer for relief based on the copyright infringement of the first respondent’s technical
drawings relating to its auger machinery and equipment. It became clear from the
discovery process that the second appellant, CGC Industries (Pty) Ltd, and Mr Kurtz had
unlawfully competed with the first respondent between 2009 and June 2015. Thereupon,
they had no choice but to capitulate and accede to the 2015 order.

[6] In terms of the 2015 consent order, the appellants recognised the confidentiality of
the first respondent’s production process for the production of auger. The order interdicted

the respondents from using this information for as long as it retained its confidentiality.
They were also interdicted from infringing the copyright of the first respondent in its artistic
works comprising its 1179 technical drawings for a period of three years from the date of
the granting of the order. The 2015 order obliged the appellants to deliver up to the first
respondent all works infringing the latter’s copyright for destruction. In addition, the
appellants were restrained from competing in the field of manufacturing, marketing and
sale of flat wire, auger and auger coiling machinery.

[7] The scheme of the 2015 order regulated the manner in which the appellants would
be free to resume competition with the respondents. Paragraph 23 of that order in clear
terms provided that upon the expiry of three years, and in the event of the appellants
manufacturing flat wire or auger or equipment for the manufacture of flat wire or auger,
such manufacture would not infringe the confidential information or copyright of the
respondents. Paragraph 24 of the order prescribes a procedure to be followed for the
determination of compliance by the appellants with paragraph 23. Experts for the parties
would independently be appointed to inspect the proposed production facility and
thereupon compile a joint report in respect of the extent to which the production facility
complies with paragraph 23 of the 2015 order. The experts would record their agreements
and disagreements, after which each party would have the opportunity of commenting on
the report, whereupon the experts would submit their final report.

[8] The 2015 order also prescribes a procedure designed to resolve disagreements
between the parties in respect of the final report. An application would be made to court,
and the court would be entitled to determine the procedures necessary to determine the
disputes. Until such time that a court had made a determination, the appellants would not
be entitled to commission the production facility.1 Evidently, and until such time that the
process had been completed, the appellants’ proposed production facility would not be
put into service for the commercial production of auger. On 22 August 2019, the

1 The meaning of ‘commission’ is:
‘order or authorize the production of [something, such as a building, piece of equipment etc]; order or
authorise (someone) to do r produce something.’ (Concise Oxford English Dictionary 12 ed (2011))

respondents discovered that the first appellant had allegedly sold auger to an Egyptian
company, Techno Max, which is one of the respondents’ existing clients. The shipment
was destined to depart on 30 September 2019. The appellants admitted to issuing a quote
(pro-forma invoice) to Techno Max, but denied issuing a stamped invoice or that a sale
was made and claimed that the invoice relied upon by the respondents was ‘a fake
[document] generated solely for the purpose of this litigation’.

[9] The respondents then launched the 2019 proceedings seeking a rule nisi
interdicting and restraining the appellants from manufacturing, processing, marketing for
sale or selling flat wire and auger, pending the completion of the process stipulated in the
2015 order. They also sought an order declaring the appellants to be in contempt of the
2015 court order and their committal to prison, alternatively payment of a fine.

[10] The appellants submitted that the lawfulness of the agreement, which culminated
in the 2015 order, was the subject of an investigation by the Competition Commission.
Further, the appellants contended that the respondents had deliberately delayed and
frustrated the appellants’ efforts to give effect to the terms of the 2015 order to prevent
the appellants from competing with them. It was the appellants’ contention that no part of
the respondents’ manufacturing process was in fact confidential, and that the prohibitions
contained in the 2015 order had ceased to be of any force and effect.

[11] On 9 March 2020, Mangcu-Lockwood AJ delivered her judgment and granted the
following order:
‘1) That an interim interdict is granted in the following terms:
1.1 Pending the finalisation of the process provided for in paragraphs 23 to 25 of the order
granted by this Court under case number 17470/14 on 2 June 2015 (the Court Order), the
respondents are interdicted and restrained from –
1.1.1 manufacturing and/or producing flat wire for purposes of manufacturing
auger;
1.1.2 manufacturing and/or producing auger;
1.1.3 marketing for sale and/or selling any flat wire and/or auger produced by
any of the respondents;

1.2 The respondents are restrained and interdicted from removing, causing or permitting
the removal of any of the unlawfully produced products from the premises situated at 6
Distillery Way, BAT Building, Paarl, Western Cape, or from any other premises where
same may be located.
1.3 Within 5 court days of the issue of this Order, the respondents are directed to furnish
the applicants with the addresses of all premises where the respondents are storing the
unlawfully produced products.
2) That the respondents are in contempt of the Court Order of 2 June 2015.
3) That the respondents are directed to pay to the applicants a fine of R450 000.00 (four hundred
and fifty thousand rand) jointly and severally, the one paying the other to be absolved, by no later
than 30 April 2020.
4) The respondents are to pay the costs of all the proceedings to date, including costs of two
counsel, save for costs relating to the respondents’ application to strike out portions of the
applicants’ founding affidavit.’
Following the notice of the current appellants’ intention to apply for leave to appeal against
the 2020 judgment, the respondents abandoned all the relief granted to them save for the
interim interdicts and the costs order.

Leave to adduce new evidence
[12] On the date of the hearing of this appeal, the respondents made an application in
terms of s 19(b) of the Superior Courts Act 10 of 2013 (the Act). The application was for
leave to adduce further evidence contained in the founding affidavit of their expert,
Mr Mattheus Willem Johannes Kühn (Mr Kühn) dated 25 January 2022, and ancillary
relief. The appellants opposed the application.

[13] Counsel for the respondents submitted that this application was necessitated by
the narrative advanced by the appellants in the appeal that the respondents had frustrated
the execution of paragraphs 24 and 25 of the 2015 order, alternatively that paragraphs
24 and 25 are not capable of execution. Mr Broekhuizen, the respondent’s expert, had
prior to the appellants launching their application for leave to appeal, produced his report
and the appellants’ expert, Mr Bowles had responded to the report. It was further

submitted that when the application for leave to appeal served before this Court, Mr
Broekhuizen was in the process of considering and responding to Mr Bowles’ inputs.

[14] The respondents argued that the process contemplated in paragraphs 24 and 25
of the 2015 order had been implemented and completed as the experts’ report was
finalised. The parties had, on 16 November 2021, delivered their respective commentary
on the report. The opinions, findings and conclusions of the respective experts are not
uniform but are widely divergent. Following the delivery of the experts’ final report, the
respondents launched the application under case number 17470/2014 on 30 November
2021 for the court a quo to determine the process to be followed in terms of paragraph
24 for the determination of the disputes between the parties. It is the respondents’
contention that the determination of the disputes identified in the report now fall to be
determined by the court a quo, which therefore renders the relief to set aside the
provisions of paragraphs 24 and 25 of the 2015 order moot.

[15] The respondents further submitted that it is in the interests of justice and fairness
that they be allowed to adduce further evidence and that the evidence is dispositive of
substantial issues that the appellants require this Court to determine. It was argued that
the respondents will be severely prejudiced if the false narrative of the frustration of the
implementation of the order and the purported non-executability of the 2015 order is not
addressed.

[16] Section 19 of the Act provides:
‘The Supreme Court of Appeal or a Division exercising appeal jurisdiction may, in addition to any
power as may specifically be provided for in any other law –
(a) dispose of an appeal without the hearing of oral argument;
(b) receive further evidence;
(c) remit the case to the court of first instance, or to the court whose decision is the subject of the
appeal, for further hearing, with such instructions as regards the taking of further evidence or
otherwise as the Supreme Court of Appeal or the Division deems necessary; or
(d) confirm, amend or set aside the decision which is the subject of the appeal and render any
decision which the circumstances may require.’

[17] Our Courts have laid down basic requirements to emphasise the court’s reluctance
to reopen the trial. They may be summarised as follows:2
(a) There should be a reasonably sufficient explanation, based on true allegations, why
the evidence sought was not led at the trial;
(b) There should be a prima facie likelihood of the truthfulness of the evidence;
(c) The evidence should be materially relevant to the outcome of the trial.3

[18] A court of appeal will exercise its discretion to receive further evidence on the
hearing of an appeal only if the circumstances are exceptional.4 A court of appeal should,
in the normal course, decide whether the judgment appealed from is right or wrong
according to the existing facts and not according to new circumstances. Therefore, as a
general rule, evidence of events subsequent to the judgment under appeal should not be
admitted in deciding the appeal.5 In general, a court of appeal should exercise the power
conferred by s 19(b) of the Act sparingly.6

[19] In the case of In re Certain Amici Curiae: Minister of Health and Others v Treatment
Action Campaign and Others,7 the Constitutional Court, in the context of an application
to introduce further evidence said:
‘. . . However, this is subject to the condition that such facts “are common cause or otherwise
incontrovertible” or “are of an official, scientific, technical or statistical nature, capable of easy
verification”. This rule has no application where the facts sought to be canvased are disputed.’

2 See Pepkor Holdings Ltd and Others v AJVH Holdings (Pty) Ltd and Others; Steinhoff International
Holdings NV and Another v AJVH Holdings (Pty) Ltd and Others [2020] ZASCA 134; [2021] 1 All SA 42
(SCA); 2021 (5) SA 115 (SCA) para 49
3 Johannesburg Society of Advocates and Another v Nthai and Others [2020] ZASCA 171; 2021 (2) SA 343
(SCA); [2021] 2 All SA 37 (SCA), the Supreme Court of Appeal refused to receive further evidence which
amounted to mere surplusage para 115.
4 Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd [1993] 1 All SA 259 (A); 1993 (1) SA 77 (A).
5 Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd and Others [1992] 4 All SA 453 (A); 1992 (2)
SA 489 (A) at 507D.
6 Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 359 (CC)
at 388F-389A.
7 In Re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign
and Others 2002 (10) BCLR 1023 (CC); 2002 (5) SA 713 (CC) para 8.

[20] The evidence in Mr Kühn’s founding affidavit that the applicants seek to introduce
on appeal is clearly controversial. It is not only disputed by the respondents but is also
not germane to the issues raised in this appeal. Accordingly, there is no basis for its
admissibility. Therefore, the application to adduce such evidence falls to be dismissed.

Appealability of the March 2020 order
[21] I now turn to the question whether the 2020 order is appealable. On this score it
bears mentioning that I am alive to the fact that this Court is under no obligation to
entertain an appeal against an unappealable order merely because the appellants were
granted leave to appeal by this Court. If we find that the 2020 order is not appealable,
then it will not be necessary to deal with the merits of the appeal.

[22] As already indicated above, what gave rise to this appeal was the 2015 order
granted by agreement between the parties. The respondents sought to ensure
compliance with the 2015 order. It was not in dispute that the appellants were in breach
of that order in that they were manufacturing and selling flat wire and auger before
completion of the process envisaged in paragraph 24 of the 2015 order. The March 2020
order is manifestly an interim interdict pending the finalisation of the process provided for
in paragraphs 23 to 25 of the 2015 order.

[23] The crux of the matter is firstly, whether this order was ‘final in effect’ and was
therefore appealable even if its stated character was interim. Secondly, whether the
interests of justice warrant that an appeal against the order in issue should be entertained.
Our courts have established that an interim order may, if the interests of justice in a
particular case so dictate, be appealable.8 The constitutional standard for appealing an
interim order when it best serves the interests of justice was reiterated by the
Constitutional Court in City of Tshwane Metropolitan Municipality v Afriforum and Another.
There the Constitutional Court emphasised that ‘[i]f appealability or the grant of leave to

8 Philani-Ma-Afrika and Others v Mailula and Others [2009] ZASCA 115; 2010 (2) SA 573 (SCA) para 20.

appeal would best serve the interest of justice, then the appeal should be proceeded with
no matter what the pre-Constitution common law impediments may suggest’.9

[24] Whether or not an interim order is appealable is fact-specific. This was affirmed in
South African Informal Traders Forum v City of Johannesburg,10 where the Constitutional
Court held that when determining whether it is in the best interests of justice to appeal an
interim order, the court must have regard to and weigh carefully all relevant
circumstances. The factors that are relevant or decisive in a particular instance, will vary
from case to case.

[25] The appellants’ complaint is that the high court failed to issue a rule nisi
(operating in part as an interim interdict) in circumstances where this was the only relief
which the respondents had sought at the hearing of this matter. In support of the
complaint, the appellants submitted that the relief granted in paragraphs 1.3 and 2 of
the 2020 order was final in effect. It is common cause that the respondents had
abandoned the relief in paragraph 2.11 Different considerations apply in respect of
paragraph 1.3.

[26] The appellants’ argument, in essence, is that had the 2020 order taken the form of
a rule nisi, returnable on a specified date, such an order would have afforded the
appellants the opportunity to deliver such further affidavits as they considered
appropriate. And to the extent that the court was minded to grant relief as it did, it was
obliged to apply the Plascon-Evans12 rule in assessing the evidence. Had the court done
so, it was argued, all factual disputes would be determined on the basis of the appellants’

9 City of Tshwane Metropolitan Municipality v Afriforum and Another [2016] ZACC 19; 2016 (9) BCRL 1133
(CC); 2016 (6) SA 279 (CC) para 41.
10 South African Informal Traders Forum and Others v City of Johannesburg and Others; South African
National Traders Retail Association v City of Johannesburg and Others [2014] ZACC 8; 2014 (6) BCLR 726
(CC); 2014 (4) SA 371 (CC) para 20.
11 Paragraph 2 stipulates ‘[t]hat the respondents are in contempt of the Court Order of 2 June 2015’.
12 Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd [1984] 2 All SA 366 (A); 1984 (3) SA 623
(A); 1984 (3) SA 620.

(the respondents in the high court) version, and the appellants would have succeeded in
their opposition.

[27] The appellants’ argument is, in my view, without any merit. On a proper
interpretation of paragraph 1.3 of the 2020 order, it is ancillary to that granted in paragraph
1.1 and the remainder of the relief is evidently interim. The order stands, pending the
finalisation of the process provided for in paragraphs 23 and 25 of the 2015 order. Where
both parties are before the court; the issues raised have been fully ventilated; and an
order granted, which clearly endures only until paragraphs 23 and 25 of the 2015 order
have been complied with, there is no point in issuing a rule nisi.13

[28] In International Trade Administration Commission v SCAW South Africa (Pty)
Ltd,14 the Constitutional Court, in the course of addressing the controversy about whether
the order under consideration was appealable, remarked:
‘In this sense, the jurisprudence of the Supreme Court of Appeal on whether a “judgment or order”
is appealable remains an important consideration in assessing where the interests of justice lie.
An authoritative restatement of the jurisprudence is to be found in Zweni v Minister of Law and
Order which has laid down that the decision must be final in effect and not open to alteration by
the court of first instance; it must be definitive of the rights of the parties; and lastly, it must have
the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.
On these general principles the Supreme Court of Appeal has often held that the grant of an
interim interdict is not susceptible to an appeal.
The “policy considerations” that underlie these principles are self-evident. Courts are loath to
encourage wasteful use of judicial resources and of legal costs by allowing appeals against
interim orders that have no final effect and that are susceptible to reconsideration by a court a
quo when final relief is determined. Also allowing appeals at an interlocutory stage would lead to
piecemeal adjudication and delay the final determination of disputes.’15

13 Bosman NO v Tworeck en Adere 2000 (3) SA 590 (C); See also Turquoise River Incorporated v
McMenamin and Others 1992 (3) SA 653 (D) at 658A.
14 International Trade Administration Commission v SCAW South Africa (Pty) Ltd [2010] ZACC 6; 2010 (5)
BCLR 457 (CC); 2012 (4) SA 618 (CC) paras 49 & 50.

[29] The question before Mangcu-Lockwood AJ was simply whether the appellants
complied with the 2015 order. Evidently, until the process ordained in paragraph 24 is
completed, the proposed production facility of the appellants will be out of service for the
commercial production of auger. Considering the evidence relating to background facts
and ‘surrounding circumstances’, it is clear that the 2020 order was not final in effect and
was thus open to alteration by the court of first instance. All of this means that, in my view,
the order of the high court is not appealable. In such an instance, the appropriate order
is that this application be struck from the roll. As for the question of costs, the failure of
the appellants to have the appeal heard requires that they bear the costs jointly and
severally.

[30] In the circumstances, I make the following order:
The appeal is struck from the roll.
The appellants shall jointly and severally bear the respondents’ costs, the one
paying the others to be absolved, including the costs of two counsel.

___________________
DS MOLEFE
ACTING JUDGE OF APPEAL

Appearances

For the appellants:

G S Myburgh SC appearing R D E Gordon
Instructed by:

Faure & Faure Inc., Paarl

Symington De Kok Attorneys, Bloemfontein

For the first respondent:
R M Robinson SC appearing with F W Landman
and M de Wet
Instructed by:

Nabal Attorneys, Durbanville

Webbers Attorneys, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

5 May 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
RTS Industries and Others v Technical Systems (Pty) Ltd and Another (145/2021) [2022] ZASCA 64
(5 May 2022)
Today the Supreme Court of Appeal (SCA) handed down a judgment striking down a matter from the
roll, with costs, an appeal against the Western Cape Division of the High Court, Cape Town (the high
court).

The issues before the SCA were whether the 2015 order was ‘final in effect’ and was therefore
appealable even if its stated character was interim; and secondly, whether the interests of justice
warranted that an appeal against the order in issue should be entertained.

This appeal turns on the appealability of the order made by the Western Cape Division of the High
Court, Cape Town (the high court) on 9 March 2020 (the 2020 order), enforcing the terms of the order
– granted by agreement between the parties – on 2 June 2015 (the 2015 order). The 2020 order
confirmed the 2015 order and ordered compliance therewith.

The third appellant, Mr Christiaan Arnoldus Kurtz (Mr Kurtz), was previously employed by the first
respondent as a plant engineer and, in the course of his employment, gained intimate knowledge of the
manufacturing processes of the first respondent. He had unfettered access to the first respondent’s
technical drawings and technical data relating to the manufacturing processes. As part of Mr Kurtz’s
conditions of employment with the first respondent, he was obliged to enter into a confidentiality
undertaking and restraint of trade agreement in favour of the first respondent.

In 2009, Mr Kurtz left the employ of the first respondent. Shortly thereafter, rumours emerged of a
competitor in the market selling a product similar to that of the first respondent. The competitor’s product
was offered for sale at a lower price than that of the first respondent. The competing entity appeared to
be RTS Industries, the first appellant, but the first respondent could not ascertain the identity of the
individual who was the first appellant’s controlling mind for some time. It was only in July 2014 that the
first respondent was able to confirm the involvement of Mr Kurtz with RTS Industries, and as a result,
the 2014 application, which culminated in the 2015 order, was launched.

Following the launch of the 2014 application, the first respondent came into possession of technical
drawings prepared by the appellants. It was then discovered that those drawings infringed the copyright
of the first respondent in 1179 of its technical drawings. The appellants had made reproductions and
adaptations of the copyrighted work. It became clear from the discovery process that the second
appellant, CGC Industries (Pty) Ltd, and Mr Kurtz had unlawfully competed with the first respondent
between 2009 and June 2015. Thereupon, they had no choice but to capitulate and accede to the 2015
order.

In terms of the 2015 consent order, the appellants recognised the confidentiality of the first respondent’s
production process for the production of auger. The order interdicted the respondents from using this
information for as long as it retained its confidentiality. They were also interdicted from infringing the
copyright of the first respondent in its artistic works comprising its 1179 technical drawings for a period

of three years from the date of the granting of the order. The 2015 order obliged the appellants to deliver
up to the first respondent all works infringing the latter’s copyright for destruction. In addition, the
appellants were restrained from competing in the field of manufacturing, marketing and sale of flat wire,
auger and auger coiling machinery.

The respondents then launched the 2019 proceedings seeking a rule nisi interdicting and restraining
the appellants from manufacturing, processing, marketing for sale or selling flat wire and auger, pending
the completion of the process stipulated in the 2015 order. They also sought an order declaring the
appellants to be in contempt of the 2015 court order and their committal to prison, alternatively payment
of a fine.

On the date of the hearing of this appeal, the respondents made an application in terms of s 19(b) of
the Superior Courts Act 10 of 2013 (the Act) for leave to adduce further evidence and ancillary relief.
On this point for leave to adduce new evidence, the SCA  found that a court of appeal should, in the
normal course, decide whether the judgment appealed from was right or wrong according to the existing
facts and not according to new circumstances. Moreover, the SCA found that  the evidence in Mr Kühn’s
founding affidavit that the applicants seek to introduce on appeal was clearly controversial. It was not
only disputed by the respondents but was also not germane to the issues raised in this appeal.
Accordingly, there was no basis for its admissibility. As a result, the SCA found that the application to
adduce such evidence fell to be dismissed.

In dealing with the question of whether the 2020 order was appealable, the SCA held that on this score,
it bore mentioning that this Court was alive to the fact that it was under no obligation to entertain an
appeal against an unappealable order merely because the appellants were granted leave to appeal by
this Court. Moreover, If it found that the 2020 order was not appealable, then it would not be necessary
to deal with the merits of the appeal.

In addition, the SCA held that what gave rise to this appeal was the 2015 order granted by agreement
between the parties. The respondents sought to ensure compliance with the 2015 order. The SCA held
that it was not in dispute that the appellants were in breach of that order in that they were manufacturing
and selling flat wire and auger before completion of the process envisaged in paragraph 24 of the 2015
order. According to the SCA, the March 2020 order was manifestly an interim interdict pending the
finalisation of the process provided for in paragraphs 23 to 25 of the 2015 order.

Finally, the SCA found that, evidently, until the process ordained in paragraph 24 was completed, the
proposed production facility of the appellants would be out of service for the commercial production of
auger. Furthermore, considering the evidence relating to background facts and ‘surrounding
circumstances’, it was clear that the 2020 order was not final in effect and was thus open to alteration
by the court of first instance. Hence, the SCA held that all of this meant that, in its view, the order of the
high court was not appealable. As a result, the SCA held that in such an instance, the appropriate order
was that this application be struck from the roll.
~~~~ends~~~~