Aluxium Proprietary Limited and Others v Taskflow Proprietary Limited (A328/2024) [2025] ZAGPPHC 1014 (16 September 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1014 | Noteup | LawCite sino index ## Aluxium Proprietary Limited and Others v Taskflow Proprietary Limited (A328/2024) [2025] ZAGPPHC 1014 (16 September 2025) Aluxium Proprietary Limited and Others v Taskflow Proprietary Limited (A328/2024) [2025] ZAGPPHC 1014 (16 September 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1014.html sino date 16 September 2025 FLYNOTES: CIVIL PROCEDURE – Discovery – Computer programs and software – Copyright infringement of proprietary computer program – Requested documents were relevant and necessary for expert analysis – Discovery order did not dispose of any substantive issue in main action and was not final in effect – Request was not a fishing expedition – Need for expert evaluation of source code to determine infringement – Request for discovery relevant and justified – Appeal dismissed. REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case Number: A328/2024 (1)      REPORTABLE: YES / NO (2)      OF INTEREST TO OTHER JUDGES: YES /NO (3)      REVISED: YES/NO DATE 16/9/2025 SIGNATURE In the matter between: ALUXIUM PROPRIETARY LIMITED First Appellant ANDRE DE KOCK Second Appellant CHRISTIAN DAVID FRISCHE Third Appellant and TASKFLOW PROPRIETARY LIMITED Respondent Delivered: This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by e-mail and by uploading it to the electronic file of this matter on Caselines. The date for hand-down is deemed to be ___ September 2025. JUDGMENT MAKHOBA J, (SENYATSI J – Dissenting Judgment) AND HASSIM J [1]      The First Appellant is Aluxium (Pty) Ltd (herein referred to as “Aluxium”). The Second and Third Appellants are directors of Aluxium. The Respondent is Task Flow (Pty) Ltd (hereinafter referred to as “Taskflow”). [2]      Taskflow is the Plaintiff in the main action. In the main action Taskflow seeks an order that Aluxium be interdicted and restrained from infringing the copyright in its taskflow computer program. [3]      The court a quo ordered Aluxium subject to Taskflow concluding a written confidentiality undertaking, to discover the documents listed in Taskflow’s Rule 35(3) notice dated 14 April 2023. The court order is the subject of the Appeal before this court. 4. Grounds of appeal by the appellants. The appellants submitted as follows: 4.1.    The court a quo, whilst referring to the factual context did not actually consider the facts in the context of Aluxium’s claim of abuse. Instead, it only considered the issue of relevancy. 4.2.     The court a quo erred in finding that Aluxium required the court to determine the veracity or defence raised by the parties in the pleadings. When in fact this is not what Aluxium contended for at all. 4.3.    Aluxium’s position was simply that Taskflow is not entitled to use the discovery process to try to find evidence to make out a case in circumstances where it has no evidence and has established no legal basis justifying the entitlement to further discovery. The contextual facts that Aluxium relied on, were put up to support the fact that Aluxium simply has no evidence. 4.4     The court a quo erroneously, reasoned that Aluxium should have invoked the remedies available under Rules 28(2) or 23, in response to Aluxium’s amendments to its particulars of claim, when no such obligation rests on Aluxium and where the issue of the applicability of Rules 28(2) or 23 have no connection or relevance in a consideration of an application to compel discovery. 4.5.    The Appellant submits that, a question that requires determination in this appeal, in the context of the facts identified above is, does a plaintiff, who has no evidence whatsoever to support the allegations made in its particulars of claim, have the right to use discovery procedure in a fishing attempt to get the evidence it needs to prove its case? In this regard it asserts that this appeal court is obliged to follow the dictum in law, for example, STT Sales (Pty) Ltd v Fourie [1] and find that Taskflow’s Rule 35(3) notice is an abuse. 4.6.    The Appellant submits further that Aluxium has stated under oath that the items requested in Taskflow’s Rule 35(3) notice are not relevant to the issue on the pleadings. The court a quo erred in ordering the appellant to discover items that are not relevant to the pleadings. 4.7.    On the appealability of the matter, counsel supported the view expressed by the court a quo, that it is in the interest of justice that the appeal should be granted. [5]      Counsel for the Respondent argued that the computer programs and software requested in the third Rule 35(3) notice are relevant and it is in the interest of justice that the Appellants provide the Respondent with the information sought in the third Rule 35(3) notice. [6]      Counsel argued further that, the additional documents sought in the third Rule 35(3) notice are relevant, material and correspond with the computer programs and software which according to the particulars of claim (as amended) are adaptions and/or reproductions of the Respondent’s Taskflow computer programs and accordingly infringe the copyright in the Respondent’s Taskflow computer program. [7]      Counsel for the Respondent contended that the order of the court a quo is an interlocutory order. The onus to show that the judgment of the court a quo is appealable is on the Appellant. [8]      Counsel for the Respondent contended further that when applying the principles set out in the Zweni v Minister of Law & Order [2] Judgment, the Court Order granted by the Honourable Acting Justice Mogagabe, compelling the Appellants to discover the computer programs and software is a simple interlocutory order, which is not appealable. [9]      Counsel for the Respondent proceeded to submit that an order is deemed final and therefore appealable if it resolves the main issues in the case, leaving no further matters for the court to decide. On behalf of the Respondent, it was argued that on this basis alone the appeal is to be dismissed. [10]    The reason furnished by the court a quo why it granted an application for leave to appeal is summarised in par 12 of the Judgment granting leave to appeal as follows: [3] “… the nature and extent or broadness of the order, more particularly compelling the appellants to discover further computer programs and software as set out or sought in paragraphs 2 and 3 as foreshadowed in the Notice in terms of Rule 35(3) dated 14 April 2023, which have no relevance or reference to the pleadings i.e. the particulars of claim herein, dictate that the order should nevertheless be appealable in the interests of justice.” Legal principles applicable [11]     In Zweni v Minister of Law & Order [4] , the Supreme Court of Appeal resolved that unless an interlocutory order has a final and definitive effect on the main action, it is not a judgment or order and is accordingly not appealable. The SCA held that a judgment or order is a decision which, as a general rule, has three attributes: (i)       The decision must be final in effect and not susceptible to alterations by the court of first instance. (ii)      It must be definitive of the rights of the parties, i.e. it must grant definite and distinct relief; and (iii)      It must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.” [12]    In Tshwane City v Afriforum and Another [5] the court said the following: “… unlike before appealability no longer depends largely on whether the interim order appealed against has final effect or is dispositive of a substantial portion of the relief claimed in the main application. All this is now subsumed under the constitutional interest of justice standard. The overarching role of interest of justice considerations has relativised the final effect of the order or the disposition of the substantial portion of what is pending before the review court, in determining appealability.” [13]    In National Treasury and others v Opposition to Urban Tolling Alliance and Others [6] , the court held that; “ whether an interim order has a final effect or disposes of a substantial portion of the relief sought in a pending review is a relevant and important consideration. Yet, it is not the only or always decisive consideration. It is just as important to assess whether the temporary restraining order has an immediate and substantial effect, including whether the harm that flows from it is serious, immediate, ongoing and irreparable.” [14]    In United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others [7] , the Constitutional Court in my view re-affirmed the decision in Zweni [8] . The court further said that an interlocutory order will be appealable “ if its effect is such that it is final and definitive of any issue or portion thereof in the main action.” The court added that, “But now the test of appealability is the interest of justice [9] .” [15]    In the UDM [10] matter the Constitutional Court found that it was in the interest of justice that the matter was appealable because the interdictory relief in question resulted in the infringement of the right to freedom of expression. [16]    In this matter before us, the Respondent has given an explanation why it wants the documents in question. The purpose of the request for discovery is to instruct an expert to consider the source code of the Appellant’s computer programs and software, and to provide an opinion on whether or not the Appellants computer programs and software infringe that of the Respondent as pleaded. [17]    In my view the request for discovery by the Respondent does not in any way have a final and definitive effect on the main action and in terms of the Zweni [11] decision it is not appealable. [18]    It must however be established, whether it was in the interest of justice to grant leave to appeal. [19]    In their heads of argument for leave to appeal, the Appellants submitted that the order of the court a quo was final in effect, because it is not susceptible to alteration by the trial court. It has the attributes of a final order and is appealable [12] . [20]    In my view the Appellants failed to show why the order of court a quo is final. In contrast I am of the view that discovery in this matter will enable the Respondent to prepare itself for the main trial. It is in my view not a fishing expedition. [21]    The harm that will flow to the Respondent should the Appellant fail to discover will be irreparable [13] . [22]    It is further my view that, the court a quo should have found that, it was not in the interest of justice to grant leave to appeal and that the order was not appealable. [23]     It appears to me that, the computer programs and software requested in the third Rule 35(3) notice is relevant and it is in the interest of justice that the Appellants provide the Respondent with the information sought in the third Rule 35(3) notice. [24]    I make the following order: 24.1.   The appeal is dismissed with costs on Scale “C”, which costs should include both junior and senior counsel’s fees, where so employed. D. MAKHOBA J JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA S.K. HASSIM J JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA Date of Hearing: 03 September 2025 Judgment delivered: 17 September 2025 Appearances For the appellants: Adv R. Michau SC Adv P.P. Ferreira For the respondent: Adv P. Cirone [1] 2010 (6) SA 272 (G55). [2] 1993 (1) SA 523 (A). [3] Vol 4, Judgment Leave to Appeal at p.340 at par 12 of the Judgment. [4] Id. [5] 2016 (6) SA 279 (CC) at par40-41. [6] 2012 (6) SA 223 (CC) at para 25. [7] 2023 (1) SA 353 (CC) at para 41. [8] Id. [9] Id para 43. [10] Id para 45. [11] Id. [12] Caselines 020-47 para 10. [13] UDM v Outa Id para 25. sino noindex make_database footer start