About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2012
>>
[2012] ZAGPJHC 28
|
|
Bartolo v Da Cruz (11/44852) [2012] ZAGPJHC 28 (7 March 2012)
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE NO: 11/44852
In the matter between:
BARTOLO,
LINDY-ANN
Applicant
and
DA
CRUZ, MANUEL JORGE MAIA
Respondent
J U D G M E N T
COPPIN J
[1] Applicant seeks an interim
interdict restraining the respondent from operating, or being
directly, or indirectly involved
in La Grotta Restaurant pending the
outcome of an action for a final interdict to be instituted by the
applicant against the respondent,
as well as attorney and client
costs. The respondent is opposing the relief sought.
[2] It is common cause that the
respondent’s close corporation sold the applicant a restaurant
business situated in
Kensington, Johannesburg. In terms of the
agreement of sale, which was concluded on the 28
th
September 2010, it was,
inter alia,
agreed that the respondent
would not operate or have an interest, either directly, or
indirectly, in a business of a similar nature
(a Portuguese
restaurant) for a period 2 (two) years within a five (5)
kilometre radius of the applicant’s business.
The two year
period, as per restraint, is to end on the 1
st
November 2012 (if the period starts from the effective date in the
contract, namely 1 November 2010). The applicant avers
that the
respondent is in breach of the restraint.
[3]
It is further not disputed that the respondent is presently involved
in a business, La Grotta restaurant, which is situated
within the 5
(five) kilometre radius of the applicant’s business. What is
disputed, mainly, is that the respondent is in
breach of the
restraint. In particular, in this regard it is in issue whether the
respondent’s involvement in La Grotta constitutes
“
operating”
or
“
having
a direct or indirect interest”
in
a similar business to that of the applicant, namely a Portuguese
restaurant. The respondent also argues that the applicant has
not
made out a case for interim relief, because she has an
alternatively
remedy, namely damages. It is further submitted that the
applicant has delayed in bringing the application, i.e failed to
act
with the requisite expedition, as contemplated in
Juta
and Company Ltd v Legal and Financial Publishing Co (Pty) Ltd
[1]
and
that this fact must count against her in the exercise of the court’s
discretion to grant an interdict.
[4] I should point out that the
reasonableness of the restraint is not in issue.
[5]
The requirements for the grant of an interim interdict are
trite.
However, there is merit in the respondent’s contention that
even though the applicant seeks interim relief in form, she actually
seeks final relief in substance and effect, if one has regard for the
remaining period of the restraint and the time it would take
for the
action, envisaged by the applicant, to be finalised. In such
circumstances the correct approach to be followed is as set-out
in
Stellenbosch
Farmers’
Winery Ltd V Stellenvale Winery (Pty) Ltd
[2]
.
In terms of this approach, where there is a dispute (i.e a genuine
dispute) as to the facts, a final interdict should only be granted
in
motion proceedings if the facts stated by the respondent, together
with the admitted facts in the applicant’s affidavit,
justify
such an order. This approach is also commonly referred to as the
application of the “
Plascon
Evans rule”
[3]
[6]
In
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[4]
Heher
JA stated;
“
recognising the truth almost
always lies beyond mere linguistic determination the courts
have said that an applicant who seeks
final relief on motion must, in
the event of conflict, accept the version set up by his
opponent unless the latter’s
allegations are, in the opinion of
the court, not such as to raise a real, genuine or bona fide dispute
of fact or are so far-fetched
clearly untenable that the court is
justified in rejecting them merely on the papers; Plascon- Evans
Paints Ltd v Van Riebeeck
Paints (Pty)Ltd 1984
(3) SA 623 (A) at
634 that E – 635 C…”.
[7]
In
Wightman
it
was also said that:
[5]
“
A real, genuine and bona
fide dispute of fact can exist only where the court is satisfied that
the party who purports to raise the
dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed”
[8] Counsel for the applicant
submitted that there are no real disputes of fact and that the
respondent’s version on
the disputed facts should be rejected.
Counsel submitted that this court should adopt the, so-called,
“robust approach”;
furthermore, that the applicant has
made-out a case for the relief sought.
[9] The two main disputes are
whether the respondent operates, or has a direct, or indirect,
interest in La Grotta and whether
La Grotta is a Restaurant similar
to that of the applicant (a Portuguese restaurant).
[10] It is not disputed that during
about February 2011 the respondent approached the applicant and her
husband with a proposal
to open another restaurant. The respondent’s
idea being to re-open a Portuguese restaurant in the same premises
from which
he had formerly conducted a restaurant under the name and
style of O’Braseiro at Lancaster Square, 141Roberts Avenue,
Kensington,
Johannesburg, which premises are situated at a distance
of about 1.8 kilometres from the applicant’s restaurant;
Further,
that the applicant and her husband did not accept the
respondent’s proposal. The respondent in response does not
dispute
the applicant’s averments in that regard, but merely
states that he came with the proposal because he was bored and when
it was refused by the applicant and her husband, nothing came of it.
[11] The applicant avers that at the
end of April 2011 she noticed the respondent’s vehicle parked
outside the former premises
of O’Braseiro in Lancaster Square,
Kensington. Thereafter she heard rumours that the respondent will be
opening a restaurant
in Kensington, down the road from her
restaurant. She said she got a clear indication that this was indeed
so when an advertisement
appeared in a Portuguese newspaper which
states that La Grotta would be opening soon. That copy of the
advertisement is annexed
to her founding papers. It appears from that
advertisement
inter alia
that La Grotta is described as “
a
Mediterranean restaurant
”, “
Ex –
O’Braseiro
”. The advertisement is in Portuguese. The
respondent denies none of this save for the fact that La Grotta is
his restaurant.
He avers in response that an associate of his, Ms Van
Meir, offered him a position “
to assist in a new
Mediterranean restaurant venture”
and that she was the sole
holder of the interest in La Grotta Restaurant CC which operated the
restaurant; that he had no interest
directly or indirectly in the
restaurant and did not operate it, but was merely employed by it.
[12] However, the applicant also
produced the evidence of a private investigator, Mr Jacobus Heyns,
whose averments were not dealt
with at all by the respondent in his
answering affidavit. Mr Heyns states,
inter alia,
that on
Friday, the 13
th
November 2011, he telephoned La Grotta
restaurant and informed the lady who answered the telephone that he
wanted to make a reservation
for an engagement party for between one
hundred to one hundred and twenty people. She told him that he would
have to speak to the
owner. The person who then came on to the line
identified himself as Jorge Cruz. Mr Heyns said that he wanted prices
and menus
and also requested an e-mail address from Mr Cruz. The
person gave Mr Heyns two e-mail addresses, one being his private
e-mail
address and one being that of La Grotta, but said that he
preferred if Mr Heyns contacted him on his private e-mail
address.
[13] The applicant also
, inter
alia
, relies on a report dated the 7
th
November 2011,
compiled by a private investigator, Mr Johan Nel and refers
particularly to what is stated on page 3 of this report.
Mr Nel
states,
inter alia,
that the telephone numbers and cellular
phone number which appear on the La Grotta advertisement, which I
referred to earlier, are
all registered in the respondent’s
name. In response, the respondent states that in February 2009
he opened O’Braseiro
in the same premises as La Grotta;
O’Braseiro was sold as a going concern to one Da Silva during
January 2010 and the telephone
lines were transferred to him
whereafter the respondent had no interest in O’Braseiro; Da
Silva closed O’Braseiro in
January 2011 and vacated the
premises; when the owner of La Grotta decided to open a restaurant in
the same premises application
was made to Telkom for telephone lines
and the numbers were allocated; they were the same numbers previously
allocated to O’Braseiro.
While the respondent expressly admits
to the cellular phone number being his, he does not deny that the
telephone numbers in the
advertisement are all in his name. The
respondent could have dealt with this issue simply by producing the
accounts to show that
it was not in his name but in that of La
Grotta. The respondent denies that he operates, or manages, or has a
direct, or indirect
financial interest in La Grotta even though his
name appears on the advertisement of La Grotta, in which he is
described as an
“assistant”; and even though the
advertisement connects La Grotta to O’Braseiro.
[14] The respondent’s answering
affidavit lacks essential detail. He does not say exactly what he
does at La Grotta. There
is no confirmatory affidavit a by Van Meir.
No other documentary proof to corroborate what he says is annexed to
his affidavit,
save for a copy of a single page of a bank statement.
In my view the respondent’s version regarding his involvement
in La
Grotta is spurious. He has not seriously and ambiguously
addressed that issue.
[15]
The respondent relied on what was held in
Raimonde
Steel Construction Ltd and Others v Manique
[6]
concerning
the meaning of the words to “operate” and “direct
or indirect interest in”. There
the court considered the
meaning of the words “
any
interest
in any business of a similar nature”
.
In the context of the facts of that case, it was held there
that a mere employee did not have the “
interest”
contemplated
there because that “
interest”
meant
a pecuniary interest, or to have a proprietary right and did not mean
a social, or ethical interest. The employee’s
interest in his
salary did not amount to such a pecuniary or propriety interest. The
court in
Raimonde
was
not dealing with the same wording, as the clause is in the
present case. In any event, in the present case one cannot
conclude
that the respondent merely “
interested
himself”
in La Grotta. The respondent says nothing about a salary and gives no
detail of his employment, or the nature of his duties, other
than
relying on the vague description of “
assistant”
that appears next to his name in the La Grotta advertisement. It is
clear from the facts that he was involved with La Grotta from
its
inception. His link with O’Braseiro is exploited in favour of
La Grotta. He is the contact person for La Grotta. Taken
with the
uncontested evidence of Mr Heyns, it is reasonable to conclude that
the respondent is not a mere employee of La Grotta,
but that he
operates it and has a direct, or indirect, pecuniary interest in it.
In my view the applicant has made out a case in
that regard.
[16] I am also of the view that the
respondent’s version regarding whether La Grotta is a similar
restaurant to that of the
applicant’s is spurious. He does not
dispute that La Grotta is serving the same fare as the applicant’s
restaurant.
He is clearly in a position to know what fare the
applicant’s restaurant was serving that his restaurant did not
serve. The
linking of O’Braseiro, which was a Portuguese
restaurant, to La Grotta, is not just because of the location. A
combination
of that link; La Grotta’s advertisement to
the Portuguese community and the publication of the respondent’s
involvement
in La Grotta was clearly intended to induce in the minds
of those at whom the advertisement was aimed and directed at, that
this
was a continuation of the old business – O’Braseiro.
[17]
The requirements for the grant of a final interdict are trite. The
applicant must show a clear right, an injury actually committed,
or
reasonably apprehended and the absence of another, available and
satisfactory remedy
[7]
.
[18] The applicant’s rights, in
terms of the restraint, are not in issue. The respondent’s
conduct constitutes a breach
of the restraint. The applicant has made
out a case of an injury committed, or reasonably apprehended. The
respondent’s submission
that damages are a satisfactory
alternative remedy, because the applicant has already stated that she
has had a twenty per cent
loss, cannot be upheld. Damages in cases of
breach of restraint are often notoriously difficult, if not
impossible to prove, therefore
a restraint is agreed upon in the
first place. The respondent’s continued involvement in La
Grotta is a continuing violation
of the restraint.
[19] Regarding the exercise of my
discretion: My discretion in the grant of a final interdict is linked
to the question whether
the applicant’s rights can be
adequately protected by any another remedy. In my view it cannot be.
The delay in bringing
the application was explained by the
applicant. I am of the view that the grant of the interdict at this
stage will not cause any
inequity and the exercise of the restraint
at this stage will not amount to unconscionable conduct on part of
the applicant. The
respondent was aware of the restraint throughout.
The applicant has not acquiesced in the conduct of the respondent.
The respondent,
on the other hand, has not been frank and forthcoming
with clear and unambigious facts regarding the true nature and extent
of
his involvement in La Grotta. La Grotta is clearly in competition
with the applicant‘s restaurant. A mindful of the fact that
an
interdict would have implications for the applicant, if he has a
pecuniary interest in La Grotta, but that he has brought
upon
himself by his failure to comply with the restraint that he has
voluntarily agreed to.
Pacta servanda sunt
.
[20] The applicant has asked for costs
on an attorney and client scale. Taking all the facts and
circumstance into account, I am
of the view that an ordinary costs
order is justified.
[21] In the circumstances I grant an
order;
21.1 Interdicting and restraining the
respondent until 1 November 2012 from operating and/or from being
interested, directly or
indirectly, in the La Grotta restaurant,
since it is situated within a radius of five kilometres
from the applicant’s
restaurant premises;
21.2 Directing the respondent to pay
the costs of this application.
P COPPIN
JUDGE OF THE SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
COUNSEL FOR THE APPLICANT ADV J H
JOSEPHSON
INSTRUCTED BY MICHAEL DANSKY
COUNSEL FOR THE RESPONDENT ADV E
L THERON
INSTRUCTED BY ROSSOUW LESIE INC
[1]
1969
(4) SA 443
(C) at 445 C - F, confirmed in
National
Council of Societies for the Prevention of Cruelty to Animals v
Openshaw 2008 (
5)
SA 339
(SCA) at 345 H - 346 C paras [16] and [17] where it was held
that the standard is “
maximum
expedition”.
[2]
1957
(4) SA 234
(C).See
also
BHT Water Treatment (Pty) Ltd v Leslie and Another
1993
(1) SA 47
(W) at 55 A-E; referred to with approval in
Reddy
v Siemens Telecommunications (Pty) Ltd 2007 (2)
SA
486 SCA at 491 par [4]
[3]
After
its application in
Plascon
– Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3)
SA
623
(A) at 634 H- 635 B
[4]
[2008] ZASCA 6
;
2008
(3) SA 371
at par
[12]
[5]
At
375 G par [13]
[6]
1972
SA 422 (P)
[7]
Setlogelo
v Setlogelo
1914 AD 221
; V&A Waterfront Properties (Pty) Ltd v
Helicopter and Marine Services (Pty) Ltd
2006
(1) SA 252
(SCA)