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Make your case in the founding affidavit
05 Nov 2019 12:00 am
An applicant must stand or fall by the allegations made in the founding affidavit and cannot make out its case in the replying affidavit.
The court will not allow new matter in reply when no case was made in the original application or if the reply reveals a new cause of action.
In this urgent applicant to enforce a purported restraint of trade agreement, Judge Windell covers several interesting issues -
(1) no valid contract of employment: suspensive condition (requirements for fulfillment);
(2) restraint of trade application in the medical healthcare industry: no protectable interest (requirements);
(3) no condonation sought for a 5th affidavit: declined as pro non scripto;
(4) case made out by applicant in replying affidavit and not in founding affidavit;
(5) classic disputes of fact / material facts withheld in founding affidavit;
(6) final interdict: requirement not met;
(7) restraint introduced by old distributor to frustrate the new distributor.