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[2021] ZAECPEHC 2
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Main Road Centurion 30178 (Pty) Ltd v Fixtrade 378 (Pty) Ltd and Others (2010/2020) [2021] ZAECPEHC 2 (21 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case No:
2010/2020
Date Heard: 11
December 2020
Date Delivered: 21
January 2021
In
the matter between:
MAIN
ROAD CENTURION 30178 (PTY)
LTD
APPLICANT
and
FIXTRADE
378 (PTY)
LTD
FIRST RESPONDENT
CHRISTO
GROBLER
SECOND RESPONDENT
THE
MINISTER: NATIONAL DEPARTMENT OF HEALTH
THIRD RESPONDENT
SOUTH
AFRICAN PHARMACY COUNCIL
FOURTH RESPONDENT
KOUGA
LOCAL
MUNICIPALITY
FIFTH RESPONDENT
HUMAN
CARE PHARMACY (PTY) LTD t/a CM PHARMACY
SIXTH RESPONDENT
THE
DIRECTOR-GENERAL: DEPARTMENT OF HEALTH
SEVENTH RESPONDENT
JUDGMENT
MULLINS
AJ
INTRODUCTION
[1]
On 1 September 2020, and in accordance with Rule 12(a)(i) of the
Eastern Cape Joint
Rules of Practice (“the Local Rules”),
the Applicant placed a certificate of urgency before a judge in
chambers in
order for the judge to consider whether to certify the
matter as urgent or not and, if so advised, to issue a directive as
to the
further conduct of the matter.
[2]
The judge in question was not satisfied that a case had been made out
for urgency
and issued the following directive:
“
1.
On perusal of the certificate of urgency, I am not persuaded that
“prima facie”
the matter is urgent. Accordingly the
Registrar may issue the papers and the application be dealt with in
the ordinary course.
2.
The application should be set down only once all the necessary
affidavits have
been filed, upon a date arranged with the DJP.”
[3]
I deal below with the further conduct of the matter and why this
became such a contentious
issue.
THE
PARTIES
[4]
The Applicant is a private company which is the holder of a pharmacy
licence issued
in accordance with
s22
of the
Pharmacy Act, 53 of
1974
, read with the Regulations thereto (“the
Pharmacy Act”
and/or
“Regulations”, as the case may be). The
Applicant trades as Oos-Kaap Pharmacy in Main Street, Humansdorp.
[5]
The First Respondent is a private company, which is the owner of a
property in Humansdorp,
also situated in Main Street, approximately
270m from the Applicant’s pharmacy (“the Premises”).
[6]
The Second Respondent is a pharmacist, who holds a licence issued by
the Fourth Respondent
to practice as such.
[7]
The Third Respondent is the National Department of Health, which
department is,
inter alia
, responsible for matters relating to
the licencing of pharmacists and pharmacies (“the
Department”). No relief
was sought against the Department
in this application.
[8]
The Fourth Respondent is the South African Pharmacy Council, a
statutory body established
in accordance with the
Pharmacy Act, whose
function is,
inter alia
, to regulate the pharmacy profession,
one of its functions being to issue licences to pharmacies and
pharmacists (“the Council”).
No relief is sought
against the Council in this application.
[9]
The Fourth Respondent is the Kouga Local Municipality, a local
municipality within
which the town of Humansdorp is situated, whose
constitutional obligation is,
inter alia
, to enforce the
legislation applicable to land use rights and building works within
its jurisdiction (“the Municipality”).
[10]
The Sixth Respondent is a private company which entity intends to
conduct the business of a pharmacy
from the Premises. The Second
Respondent is a director of the Sixth Respondent.
[11]
The Seventh Respondent is the Director-General: National Department
of Health, which official
has also been cited insofar as he/she may
have an interest in the outcome of the application.
[12]
The Sixth and Seventh Respondent’s were joined as a result of
an application for joinder
brought by the Applicant, which
application was not opposed. The reason for the joinder of the
Sixth Respondent being apparent
from what is set out below. The
Director-General was belatedly cited in that it would appear that
this official should have
been cited rather than the Department.
For this reason an amendment was also sought to cite the Department
as: The
Minister: National Department of Health.
The amendment was not opposed. For present purposes nothing
turns on
this aspect and for convenience sale I will refer to the
Third and Seventh Respondents collectively as “the
Department”.
[13]
The First, Second and, after its joinder, the Sixth Respondents
oppose the relief sought by the
Applicant. The other Respondents
elected not to enter the fray.
THE
RELIEF
[14]
The Applicant initially sought a final interdict, alternatively an
interim interdict pending
a final interdict, further alternatively an
interim interdict pending the institution of a review application.
Costs were only
sought against those Respondents opposing the
application.
[15]
Prior to the matter being argued the Applicant applied to amend its
notice of motion, which application
was not opposed, to read as
follows:
“
1.
That the First, Second and Sixth Respondents be interdicted from:
1.1.
Continuing with any construction
activities or renovation work in respect of the intended operation of
a pharmacy and clinic on
the property known as Erf 1720, Humansdorp,
Eastern Cape (“the subject property”).
1.2.
Commencing or continuing with the business
of a pharmacy and clinic from the subject property until such time as
the following approvals
have been obtained:
1.2.1.
The issuing of a pharmacy licence in terms
of
Section 22(2)
of the
Pharmacy Act, 53 of 1974
and the Regulations
promulgated in terms thereof;
1.2.2.
Consent use from the Fifth Respondent,
authorising, in terms of the Land Use Planning Ordinance, 15 of 1995
(“LUPO”)
read with the provisions of the Spatial Planning
and Land Use Management Act, 16 of 2013 (“SPLUMA”), the
land use of
a pharmacy and clinic to be operated from the subject
property; and
1.2.3.
The approval of building plans and the
issuing of an occupancy certificate in terms of Sections 4(1), 7(1)
and 14 of the National
Building Regulations and Building Standards
Act, 103 of 1997 (“the Building Standards Act”).
2.
In the alternative to paragraph 1
above,
that an interim interdict
be granted in the same terms (paragraph 1.1 and 1.2 above) pending
the final determination of an application
for a final interdict,
further alternatively
the finalisation of a review application, aimed at the review and
setting aside of:
2.1.
The pharmacy licence granted in terms of
Section 22
of the
Pharmacy Act, 53 of 1974
in respect of the subject
property;
2.2.
The registration and issuing of
registration certificate by the Fourth Respondent in respect of the
subject property.
3.
That the Fifth Respondent be directed to,
in terms of its empowering provisions, including the provisions of
LUPO, read with the
provisions of SPLUMA and the Building Standards
Act, prohibiting the First and Second Respondents from acting
unlawfully and taking
steps to prosecute such Respondents in terms of
the aforesaid empowering legislative provisions.
4.
That the First and Second Respondents be
ordered to pay the costs on the scale is between attorney and client
jointly and severally,
the one paying the other to be absolved.
5.
Further and/or alternative relief.”
[16]
By the time the matter came to be argued what work that had to be
done on the Premises had been
completed and the pharmacy in question
had opened for business. In addition, the Applicant had
launched the threatened review
application. In the circumstances the
relief sought against the Municipality had become moot, and a final
interdict was no longer
relevant or appropriate. As I understand it
the relief now being sought by the Applicant is the further
alternative relief contained
in paragraphs 2 and 4 of the amended
notice of motion.
[1]
THE
LEGISLATIVE FRAMEWORK
[17]
Pharmacists and pharmacies are governed by the
Pharmacy Act and
Regulations promulgated in accordance therewith.
[18]
According to
sec 22A
of the
Pharmacy Act the
Department may prescribe
who may own a pharmacy, the conditions of such ownership and the
basis upon which ownership may be withdrawn.
[19]
According to
sec 22(1)
of the
Pharmacy Act a
person authorized in
terms of
s22A
shall apply to the Department for a licence for
premises from which to operate a pharmacy, which shall to issue or
refuse such
licence.
[20]
According to
sec 22(2)
of the
Pharmacy Act a
person issued with a
licence shall notify the Council thereof in writing, which shall make
a record thereof.
[21]
The Regulations dealing with Ownership and Licencing of Pharmacies
(GN R533, dated 25 April 2003)
defines the various categories of
pharmacies, a “Community Pharmacy” being one of them,
which is defined as follows:
“
Community
pharmacy means a pharmacy wherein or from which some or all of the
services as prescribed in terms of regulation 18 of
the Regulations
Relating to the Practice of Pharmacy are provided to the general
public or any defined group of the general public,
but excludes an
institutional pharmacy.”
[22]
If one has reference to the Regulations Relating to the Practise of
Pharmacy (GN R1158, dated
20 November 2000), reg18 states the
following in respect of a community pharmacy:
“
18.
Except as provided for in the Medicines Act, the following services
pertaining to the scope of practise
of a pharmacist may be provided
in a community or institutional pharmacy –
…
6.
the promotion of public health in accordance with guidelines and
standards as
determined by a competent authority which includes but
shall not be limited to:
…
(b)
the provision of immunisation, mother and childcare, blood pressure
monitoring; health education;
blood-glucose monitoring; screening
tests for pregnancy; family planning; cholesterol screening tests;
HIV screening tests; urine
analysis; and visiometric and audiometric
screening tests;
…”
[23]
The relevance of this last quoted regulation, particularly
sub-regulation (b), is dealt with
below.
[24]
Reference was also made by the Applicant to a document titled
Guidance for the Issuing of Licences
for Pharmacy Premises,
(published in the Government Gazette on 22 December 2017) (“the
Guidelines”), which will also
be referred to hereunder.
THE
APPLICANT’S CASE
[25]
According to the Applicant the following are the relevant background
facts:
(a)
On 18 August 2020 the Applicant’s director,
one Nel, heard a rumour about a competing pharmacy and clinic that
intended to
conduct its business from the Premises;
(b)
As the Premises are zoned Business 1, which does
not permit the operation of a clinic, this would be in contravention
of LUPO and
SPLUMA, as (according to the Applicant) a clinic does not
fall within the permitted land use rights. Attached to the
Applicant’s
papers is the zoning certificate for the Premises,
which sets out what is permitted under Business 1;
(c)
On 20 August 2020 the Applicant’s attorneys
sent a letter to the Department complaining that, unbeknown to the
Applicant,
a licence to operate a pharmacy from the Premises had been
issued, that the Applicant had a vested interest which had been
ignored
and that it intended lodging an appeal against the decision.
The Applicant also requested copies of all the relevant documentation
in order to lodge the appeal;
(d)
On the same day a lengthy letter was sent to the
First and Second Respondents stating,
inter
alia
, that:
(i)
It was their instructions that the First and
Second Respondent intended to establish a pharmacy “
with
an adjoining clinic”
on the Premises;
(ii)
The Applicant had established that,
prima
facie
, the intended pharmacy/clinic had
unbeknown to the Applicant been irregularly sanctioned by the
Department, that the licence had
been issued to the Applicant’s
detriment and was in conflict with the Regulations to the Act;
(iii)
As soon as the relevant documentation was
provided the Applicant intended to appeal the decision to grant a
licence, which appeal
the Applicant had good reason to believe would
be successful, which would have the effect of suspending the licence;
(iv)
In addition, the Premises from which the
pharmacy/clinic was to operate had not been suitably zoned for such
purposes and if the
business commenced an interdict would be sought;
(v)
The First and Second Respondents were called upon
to give a written undertaking that the business would not commence
until:
(aa)
The appeal had been finalised;
(bb)
The land use rights had been amended accordingly;
(cc)
The building plans complied with the relevant laws;
(vi)
In the event of the First and Second Respondents
failing to give the undertaking an urgent application would be
launched for an
interdict;
(vii)
The First and Second Respondents were warned that
the continuation of their actions was at their own risk;
(e)
There was no response to the above letter of
demand from either the First or Second Respondent;
(f)
The Applicant subsequently established that there
was no appeal available to it;
(g)
The Applicant also believed, again erroneously as
it turns out, that the proposed pharmacy was to be called the Human
Care Pharmacy;
(h)
As the
requested documentation was not forthcoming, on 21 August 2020 the
Applicant made an application to the Department in accordance
with
the Promotion of Access to Information Act, 2 of 2000 (“PAIA”);
[2]
(i)
On 25 August 2020 the Applicant’s attorney
addressed further correspondence to both the Department and the
Council conceding
that the Applicant had no right of appeal,
complaining about the process that had been adopted and requesting
the information /
documentation previously demanded. There was, once
again, no response;
(j)
According to the Applicant the Council’s
website did not reflect that the First and Second Respondents had
been issued with
the requisite licence to operate a pharmacy and in
this regard attached a print-out from the Council’s website;
(k)
The Applicant also took photographs of the
interior of the Premises, which it alleges proved that there was
on-going renovations
and construction work taking place;
(l)
On 28 August 2020 the Applicant’s attorneys
addressed a further letter to the First and Second Respondents,
inter
alia
, recording that the undertaking had not
been forthcoming and that unless it was given by 31 August 2020 its
instructions were to
bring an urgent interdict for the necessary
relief;
(m)
The First and Second Respondents ignored this
letter of demand as well.
[26]
With reference to the Act and Regulations thereto the Applicant
submitted that the First and
Second Respondents were in breach
thereof, in that:
(a)
The licence had not been registered with the
Council within 30 days of the approval thereof by the Department as
required by reg
8(4) of the Regulations relating to Ownership of
Pharmacies;
(b)
The pharmacy had not commenced business within 90
days of the registration of the licence as required by clause 4.7 of
the Guidelines.
[27]
The Applicant also attacked the registration by the Council of the
licence in the first place,
this being the basis of the intended
review in that, in accordance with reg 7(2) of the Regulations
relating to ownership an applicant
must satisfy the Department that
there is a need for a pharmacy in the area.
[28]
To this end, in accordance with the Guidelines, which deals with the
criteria to be taken into
account before a licence will be issued:
(a)
A licence will not be issued for the
establishment of a pharmacy within 500m of an existing community
pharmacy;
(b)
A licence will not be issued for a pharmacy where
the population density in an urban area does not warrant it, the
formula being
one pharmacy per 5000 people;
(c)
The relationship between the proposed pharmacy
and the number and proximity of other pharmacies must be taken into
account.
[29]
The Applicant alleges that the licence was issued and registered in
contravention of all three
of the above criteria and that the
decision stands to be reviewed and set aside.
[30]
The Applicant submitted that it had satisfy the requirements for an
interim interdict, in that:
(a)
As the owner of a pharmacy in Humansdorp it has a
prima facie
right, if
not a clear right, to enforce the provisions of the Act and
Regulations;
(b)
If the interdict is not granted the Applicant
stands to suffer irreparable harm in that the existence of another
pharmacy 270m away
will have a devastating effect on it and its
financial survival will be at stake;
(c)
The balance of convenience favours granting the
relief sought in that the review application has good prospects of
success;
(d)
These no alternative remedy in that proving a
damages claim will be impossible to do.
THE
FIRST RESPONDENT’S OPPOSITION
[31]
The First Respondent’s opposition to the application is quite
simple:
(a)
It is the owner of the Premises and in that
capacity it concluded a lease agreement with the Second Respondent;
(b)
It denies “
in the
strongest possible way”
that it intends
to operate a pharmacy from the Premises jointly with the Second
Respondent.
[32]
In short, it is the First Respondent’s case that its only
connection to the matter is that
it is the owner of the Premises,
which premises it has leased to the Second Respondent. It has nothing
to do with the application
for a pharmacy licence and the operation
of a pharmacy from the Premises.
[33]
The First Respondent also denied that the proposed pharmacy would be
in breach of the land use
rights applicable to the Premises and that
any construction work was taking place.
[34]
I must add that the First Respondent’s opposing affidavits were
filed before the amendment
to the notice of motion. Despite
pointing out to the Applicant that its only involvement was as the
landlord of the Second
Respondent, the Applicant still sought costs
against it on the basis that the First Respondent should not have
opposed the application
in the first place.
[35]
In the circumstances the First Respondent submitted that the
Applicant should pay its costs.
THE
SECOND RESPONDENT’S OPPOSITION
[36]
At the outset the Second Respondent opposed the application on the
basis that the Applicant had
laboured under the erroneous belief that
the licence had been issued to him in his personal capacity, whereas
it had in fact been
issued to Human Care Pharmacy (Pty) Ltd (which,
as stated above, was subsequently joined as the Sixth Respondent).
Had the Applicant
awaited the outcome of its PAIA application it
would have been aware of this and it had, in effect
, “jumped
the gun”.
[37]
The Second Respondent submitted that on this basis alone the
application against him stood to
be dismissed with costs.
[38]
Dealing with the Applicant’s allegations on the merits the
Second Respondent stated that
the Sixth Respondent:
(a)
Would not be operating a clinic, only a community
pharmacy;
(b)
Was in possession of all the necessary statutory
approvals in order to commence trading;
(c)
Had not contravened LUPO or SPLUMA and the
intended business fell within the Municipality’s definition of
Business 1.
[39]
As proof that the licence had been duly issued and registered the
Second Respondent attached
the following documents:
(a)
A licence issued by the Department in the name of
Human Care Pharmacy (Pty) Ltd t/a CM Pharmacy;
(b)
A registration certificate issued by the Council
in the name of CM Pharmacy in the community pharmacy category;
(c)
A registration certificate issued by the Council
reflecting the Second Respondent as the “
Responsible
Pharmacist”
of CM Pharmacy
;
(d)
A printout of the Council’s website
reflecting the registration of CM Pharmacy.
[40]
As for the failure to commence business within 90 days of
registration, the Second Respondent
states that the certificate only
came to hand on 23 June 2020 and, largely due to Covid-19 related
reasons the shopfitting of the
Premises had been delayed, hence it
was not possible to open the business timeously. An extension
would in any event be applied
for.
[41]
The Second Respondent deals with the criteria in the Council’s
Guidelines in some detail.
While disputing the Applicant’s
interpretation thereof he makes the point that the Guidelines are
merely what they purport
to be – guidelines – and do not
have the force of law.
[42]
Which criteria were more important in considering a licence was also
in dispute. The Applicant
alleged it was the distance factor,
the Second Respondent the population factor.
[43]
A sharp dispute of fact emerged in respect of the number of community
pharmacies in Humansdorp.
According to the Applicant there are six
community pharmacy serving a population of 28 928 people. Not so,
alleges the Second Respondent,
on the basis that two of these are
doctors practices, two are situated in hospitals and one is a
government clinic, the sixth being
the Applicant’s business.
Thus, according to the Second Respondent, the only other existing
community pharmacy in Humansdorp
is that of the Applicant’s
business.
[44]
I should add that by the time the matter was argued the work on the
Premises had been completed
and CM Pharmacy had commenced trading. It
was the Applicant’s argument that it did so at its own risk.
THE
SIXTH RESPONDENT’S OPPOSITION
[45]
Having been joined as a party to the proceedings the Sixth
Respondent’s opposition mirrored
that of the Second Respondent.
In addition thereto the Sixth Respondent stated the following:
(a)
On 19 October 2020 the it was granted a temporary
occupation certificate by the Municipality, valid for six months, and
it opened
its doors on the same day;
(b)
It services approximately 70 customers a day and
fills chronic/recurring subscriptions for approximately 100 people;
(c)
It holds stock of approximately R450,000.00,
which has a limited shelf life;
(d)
It employs four people;
(e)
It has average monthly expenses of approximately
R80,000.00.
THE
APPLICANT’S RESPONSE
[46]
As already alluded to above, as a result of what emerged from the
opposing affidavits the Applicant
was obliged to bring a joinder
application to reflect the Sixth Respondent as a party to the
proceedings and also an application
to amend the notice of motion.
[47]
Insofar as the Regulations / Guidelines are concerned the Applicant
attached a letter from the
Department refusing an application for a
pharmacy in the town of Brits on the basis that, firstly, it was
within 500 meters of
other pharmacies and, secondly, the population
density did not warrant another pharmacy.
[48]
Other than that, nothing new emerged from the Applicant’s
replying affidavits.
THE
CASE AGAINST THE FIRST RESPONDENT
[49]
The Applicant initially believed that the First and Second
Respondents where in some sort of
partnership. What led it to
believe this is not known. In fact, the First Respondent is the owner
of the Premises and it
had concluded a lease agreement with the
Second Respondent. That is its only connection to the matter.
[50]
Notwithstanding this error on its part, was the Applicant in any
event entitled to interdict
the First Respondent continuing with the
alleged “
construction activities or renovation works”
in respect of the Premises? I do not believe so. Even if the
works in question were being done without the necessary planning
permission – and there is no evidence that this is so –
the Applicant, whose own premises are 270m away, does not explain
the
basis upon which it had
locus standi
to compel the
Municipality to take steps to prevent the works from continuing and
to have the First Respondent prosecuted from
contravening the law.
[51]
In any event, not only does the First Respondent deny doing
construction and renovation work
at the Premises, the Applicant’s
own photographs used in support of this allegation do not bear this
out. The First
Respondent (and the Second Respondent) states
that the work that was being done amounted to shopfitting –
shelves and the
like. This is what the photographs depict. The
Premises had previously been a showroom for a motor dealership and
the internal
lay-out was being altered to house a pharmacy. This
does not amount to construction/renovation works requiring planning
permission
from the Municipality. No structural work is proved
and in the circumstances no case has been made out against the First
Respondent. It is therefore not necessary to consider whether the
requirements for an interim interdict have been met in respect
of the
First Respondent.
THE
CASE AGAINST THE SECOND / SIXTH RESPONDENTS
[52]
The case against the Second / Sixth Respondents is premised on the
allegations that the Department
and/or the Council had committed a
material irregularity in approving the pharmacy licence, which
decision stands to be reviewed
and set aside.
[53]
Secondly, the Applicant alleges that the pharmacy, which apparently
includes a clinic, would
be in breach of LUPO and SPLUMA.
[54]
In the circumstances the Applicant sought an interim interdict
prohibiting the pharmacy from
operating pending the review
application.
[55]
For the reasons set out below I am of the view that the Applicant
failed to make out a case.
REQUIREMENTS
FOR AN INTERIM INTERDICT
[56]
The requirements are trite law. See
LF Boshoff
Investments (Pty) Ltd v Cape Town Municipality
1969 (2) SA
256
(C)
at 267 A – F.
[57]
The Applicant submitted that as an owner of a pharmacy in Humansdorp
it had established a
prima facie
right to ensure that another
pharmacy is legally entitled to open its doors in opposition to it.
[58]
Insofar as a reasonable apprehension of harm is concerned, the
Applicant’s papers are to
a large extent generic in nature. The
Applicant states that its business has only just started breaking
even and that any further
competition will have a devastating effect
on it. In the main the Applicant relies on the allegation that
Humansdorp is already
over-traded.
[59]
As for the balance of convenience, it was argued that this favoured
the Applicant and that the
Second / Sixth Respondent had commenced
trading at their own risk and could not be heard to complain if they
were ordered to close
pending the outcome of the review.
[60]
The Applicant argued that it had no alternative remedy in that it
would be nigh on impossible
to prove its damages in due course. It
was argued that it would not be possible to attribute any loss of
income to the opening
of the new business.
[61]
I am satisfied that the Applicant established a
prima facie
right. As the owner of an existing pharmacy it is entitled to
take steps to ensure that the proposed new business complied
with all
the legal requirements in order to do so.
[62]
I am not satisfied that the Applicant will suffer irreparable harm if
the interim interdict is
not granted. Its case in this regard
essentially amount to a bald allegation that the business has only
just started breaking
even. No details are forthcoming in
support of the Applicant’s financial position. In fact,
it would appear that
when it comes to commercial pharmacies,
Humansdorp is under-represented. At the very least there is a
genuine dispute of
fact in this regard.
[63]
I am also not satisfied that the balance of convenience favours the
Applicant. Granted,
the Second/Sixth Respondent’s carried
on setting up the pharmacy despite the threat of an application to
interdict them.
But the Second Respondent had concluded a lease
with the First Respondent, which came with financial obligations.
Money was
also being spent on fitting out the Premises. As far
as the Second / Sixth Respondents were concerned the application for
a licence to operate a pharmacy was properly completed and granted.
Although the Applicant alleged that the relevant licence
was obtained
in an irregular and/or improper manner, no proof was forthcoming and,
as I understand it, the Applicant’s gripe
is with the
Department. The review application will in all probability take
many months to be finalised and, realistically,
will only be argued
in the second half of 2021. Given all these factors I am not
satisfied that the balance of convenience
favours an interim
interdict, particularly in the light of my views in respect of
irreparable harm and an alternative remedy.
[64]
Finally, I am not satisfied that the Applicant does not have an
alternative remedy. The
fact that it may be difficult to prove
damages in due course, which I accept, is not sufficient grounds for
rejecting a damages
claim. The process of discovery should give
the Applicant a very good idea as to how much business it has lost to
the new
pharmacy, if any. A plaintiff is not obliged to prove
its delictual damages with precision and to the last cent. See
Esso Standard SA (Pty) Ltd v Katz
1981 (1) SA 964
(AD)
at 969 H – 970 H.
[65]
Finally, the Court always has a discretion whether or not to grant an
interim interdict.
Given what has been stated above I am not
inclined to exercise that discretion in favour of the Applicant.
[66]
In conclusion, I find that the Applicant has not made out a case for
an interim interdict.
DISPUTES
OF FACT
[67]
In addition to having failed to satisfy the requirements for an
interim interdict, the Applicant
faces another hurdle: material
disputes of fact.
[68]
By way of example:
(a)
The Applicant alleges that the relevant licences
were obtained and/or granted in an irregular / improper manner.
The Second
/ Sixth Respondent deny this and in support of this denial
attach the relevant documents issued by the Department and the
Council.
On the face of it these certificates are valid until
set aside. There are allegations, but no evidence before me of
any irregularity;
(b)
The Applicant alleges that the Second / Sixth
Respondents intend conducting a clinic from the Premises. This
is denied, being
asserted that the business is a community pharmacy.
What amounts to a clinic was never properly dealt with. If one
has reference to reg 18(6)(b) of the Regulations Relating to the
Practise Pharmacy (quoted above), the activities recorded therein
are
akin to what a clinic might offer. Presumably the Applicant’s
pharmacy is entitled to offer the same services.
Whether these
services offend the land use rights was never established. Even
if a clinic is not permitted, the Applicant’s
case is based on
a bald allegation, which is denied;
(c)
The Applicant alleges that the Premises are not
appropriately zoned. This is denied and in support thereof
states that a temporary
occupation certificate had been issued to it
by the Municipality;
(d)
There are also disputes as to the interpretation
of the Regulations and Guidelines and what weight is to be attached
thereto. This
is something I cannot decide at this stage as it
will be pre-empting the review application.
[69]
I am not in a position to resolve any of these disputes. Based
on the Plascon-Evans rule
they must be decided in the Second / Sixth
Respondent’s favour.
[70]
The disputes of fact can be partly attributed to the fact that the
Applicant did not do its homework
beforehand. It rushed to
Court without first confirming the correctness of the information
available to it. For example,
it initially cited the First
Respondent on the basis that it was going into a pharmacy business
together with the Second Respondent.
This was patently
incorrect. Had it waited for the outcome of the PAIA
application it would have been in a much better position
to assess
the merits of the matter.
[71]
In the circumstances the relief sought against the Second / Sixth
Respondent must also fail.
COSTS
[72]
All three Respondents pray for costs on an attorney and client scale.
[73]
There is merit in the argument that the application was brought with
the ulterior motive of preventing
an opposition business from
opening. While motive may have no bearing at the review stage
where only the legality of the
decision is at stake, at this stage I
am of the view that it is relevant. The Applicant’s case
is premised on the desire
to stifle a rival business.
[74]
In my view the application was ill-advised and in the circumstances
an attorney and client costs
order is warranted.
COSTS
DE BONIS PROPRIIS
[75]
The First and Second Respondents both brought an application for an
order that the costs occasioned
by the matter having been set down on
Tuesday, 8 September 2020 be paid by the Applicant’s attorney,
Jan Adriaan Venter,
de bonis propriis
, on an attorney and
client scale.
[76]
The events unfolded as follows:
(a)
The Applicant intended to bring the urgent
application on Tuesday, 10 September 2020;
(b)
When the duty judge ruled that the matter was not
urgent, on 2 September 2020 the Applicant’s attorneys filed a
notice removing
the matter from the roll for 10 September 2020 and
re-enrolling it on the unopposed roll for Tuesday, 8 September 2020.
The
Applicant’s attorney alleged that this was done
“
provisionally
”
and on the advise of the Registrar;
(c)
This notice was served on the Respondents
together with the application papers (as I understand it);
(d)
Both the First and Second Respondents filed
notice of opposition on the same day, i.e., 2 September 2020;
(e)
On 3 September 2020 the Second Respondent’s
attorneys addressed a letter to the Applicant’s attorney
requesting more
time in which to file opposing papers. The
Applicant’s attorneys would only agree thereto if the Second
Respondent
gave an undertaking that it would not persist with its
intention to open a pharmacy (pending the finalisation of the
matter).
The Second Respondent refused to give such an
undertaking and stated that it would be filing opposing papers and
also applying
for a postponement of the matter;
(f)
On the basis that the matter would “
in
all probability
” be opposed by the
Second Respondent, the Applicant’s attorney notified the duty
judge that it would not be necessary
to read the papers, which he did
on Friday, 4 September 2020. What is important about this
development is that neither the
First nor the Second Respondents were
informed thereof;
(g)
The First Respondent filed opposing affidavits
electronically on 4 September 2020 and the Second Respondent on 6
September 2020;
(h)
On becoming aware of the opposing papers on
Monday, 7 September 2020 the Applicant’s attorney addressed a
letter to the First
and Second Respondent’s attorneys informing
them that due to the fact that it had become opposed the matter,
which had “
tentatively
”
been enrolled for the 8
th
,
would be removed from the roll, costs to be costs in the cause, it
not being necessary for the Respondents to appear;
(i)
Neither Respondent was happy with this proposal
and both appeared on the 8
th
,
briefing counsel. They wanted the matter struck off the roll
with costs;
(j)
The presiding judge made an order that the matter
be removed from the roll, costs to be determined.
[77]
I should add that the above sequence of events is to a large extent
the Applicant’s version,
which I accept for present purposes.
[78]
What I do not understand, and which was never adequately explained,
is why the duty judge’s
directive was not followed. There
is nothing ambiguous or unclear about the directive. It says in
plain language:
(a)
The matter is not urgent;
(b)
The Registrar may issue the papers and the
application is to be dealt with in the ordinary course;
(c)
The application is to be set down only once all
the necessary affidavits are filed, on a date to be arranged with the
Deputy Judge
President.
[79]
One cannot read into the directive, as the Applicant argued that:
“…
the Registrar may
issue the papers
as is
and the application be dealt with in the ordinary course.”
[The words “
as
is”
being imported by the Applicant’s
legal representative].
[80]
As for the advice given to the Applicant’s attorney by the
Registrar (the identity the
person in that office not being known), I
can only surmise that, the advice having been given telephonically,
whoever gave it did
so in ignorance of the directive. It is
unconceivable that the Applicant’s attorney would have been
advised to set
the matter down on the next available motion court day
in direct defiance of the clear wording of the directive.
[81]
The Applicant’s attorney apparently also received similar
advice from counsel (on 1 September
2020 already), who is also not
named. If this advice was indeed given, it was wrong.
[82]
What the Applicant’s counsel also submitted in argument is that
although the matter had
not been certified as urgent “
the
notice of motion endures, and the timeframes set out therein remain
unchanged”
(para 16 of the heads of argument dealing with
costs).
[83]
This is absolutely not the case and it demonstrates a total lack of
understanding of Local Rule
12.
Before
any papers are
issued by the Registrar a certificate of urgency has to be placed
before a judge in chambers who considers the matter
based on the
certificate alone. Depending on the judge’s ruling the
papers may then be issued. Thus, it is only
on receipt of the
judge’s decision as to the further conduct of the matter that
the notice of motion can be finalised.
It frequently happens in
practise that the notice of motion has to be redrafted in order to
take the judge’s directive into
account. This is such a
case.
[84]
I am also bemused at the submissions that the matter was set down for
8 September 2020 “
provisionally”
and/or
“
tentatively”
. There is nothing equivocal
about the notice of removal and re-enrolment. The body of the
notice reads:
“
BE
PLEASED TO TAKE NOTICE THAT the Application enrolled for the 10
th
of September 2020 is hereby removed and re-enrolled on the unopposed
motion roll of 8 September 2020”.
[85]
What is tentative or provisional about that? In fact, when the
Second Respondent’s
attorney requested a postponement for more
time in order to file papers, he was advised that this would only be
agreed to if an
undertaking was forthcoming. Given this
response the only conclusion to be drawn is that the matter would be
proceeding on
the 8
th
irrespective.
[86]
I am equally bemused by the Applicant’s attorney’s
submission (to the Second Respondent’s
attorney’s letter
dated 3 September 2020) that, notwithstanding a notice of intention
to oppose, a matter remains unopposed
until the answering affidavits
are filed as stipulated in the notice of motion. While it is
trite that in an urgent application
a respondent would be
well-advised to comply with the Applicant’s unilaterally
imposed time limits, once a notice of opposition
is filed the matter
is opposed, irrespective of whether answering affidavits are
forthcoming in due course.
[87]
To make matters worse, when this letter was written the Applicant’s
attorney knew that
urgency had been rejected and a directive issued
as to the further conduct of the matter, yet he still demanded that
the Respondents
comply with the Applicant’s unilaterally
imposed time limits.
[88]
Even if the duty judge had not given a directive as to the further
conduct of the matter the
Applicant would not have been entitled to
set the matter down on 8 September 2020. This was not an
unopposed application
which could be brought
ex parte
in
accordance with Rule 6(4). After urgency was rejected, and in
the absence of a directive, the application would have had
to have
been brought in accordance with Rule 6(5), in which sub-rule the time
limits for the filing of a notice of opposition,
answering affidavits
and replying affidavits are set out. Only once all the papers are
filed is a matter ready to be set down for
hearing on the opposed
roll, which is done by applying to the Registrar for a date.
[89]
In conclusion, whether as a result of the duty judge’s
directive, or in accordance with
Rule 6(5), what the Applicant’s
attorney should have done was to replace the notice of motion with
one that conformed with
Form 2 of the First Schedule to the Rules.
[90]
Costs
de bonis
propriis
are not awarded lightly and
such an order is limited to cases where an attorney has been
dishonest, has behaved improperly or has
acted with gross
negligence. A flagrant disregard for the Rules may also
qualify. See
Immelman v Loubser en n Ander
1974 (3) SA 816
(A)
;
Napier v Tsaperas
1995 (2) SA 665
(A)
.
[91]
In
South Africa Liquor Traders Association & Others v
Chairperson, Gauteng Liquor Board & Others
2009 (1) SA
565
(CC)
, at [54] the Constitutional Court summed the issue up as
follows:
“
An
order of costs de bonis propriis is made against attorneys where a
court is satisfied that there has been negligence in a serious
degree
which warrants an order of costs being made as a mark of the court’s
displeasure. An attorney is an officer
of the court and owes a
court an appropriate level of professionalism and courtesy.”
[92]
Ultimately, as with any costs order, it remains in the discretion of
the Court, judicially exercised.
See
Stainbank v SA
Apartheid Museum at Freedom Park & Another
2011 (10)
BCLR 1058
(CC).
[93]
The Applicant’s attorney played fast and loose with the Rules.
His attitude after
urgency was denied defies explanation. Not
only were his actions after the duty judge’s directive was
handed down inexplicable,
he put the First and Second Respondents to
a great amount of trouble, both of whom had to scramble in order to
file papers as a
matter of extreme urgency, only to be told on Monday
the 7
th
that the matter would not be proceeding. In
the circumstances the First and Second Respondents cannot be faulted
for briefing
counsel to appear on the 8
th
.
[94]
The Applicant’s attorney’s attitude after all the dust
had settled (as it were) also
defies explanation. He persisted
that he had acted correctly and even argued that the Respondents’
attorney should
pay the costs
de bonis propriis!
Had the
Applicant’s attorney given the matter sober reflection and
conceded that he had acted incorrectly I might have had
some sympathy
for him.
[95]
I am accordingly satisfied that the Applicant’s attorney should
bear the costs of 8 September
2020
de bonis propriis
, such
costs to be on an attorney and client scale.
[96]
Up to midday on the 7
th
the First and Second Respondents
were of the reasonable belief that they would be arguing an opposed
motion the following day.
In the circumstances I intend to
award the costs on the basis that the matter was before Court as an
opposed application.
CONCLUSION
[97]
The following order will issue:
(a)
The application is dismissed;
(b)
The Applicant is ordered to pay the First, Second
and Sixth Respondents’ costs on an attorney and client scale;
(c)
The Applicant’s attorney, Jan Adriaan
Venter, is ordered to pay the First and Second Respondent’s
costs occasioned by
the appearance in Court on 8 September 2020
de
bonis propriis
on an attorney and client
scale, such costs to be on an opposed basis.
N.J.
MULLINS
ACTING
JUDGE OF THE HIGH COURT
Obo
the Applicant:
Adv’s JA Venter and DJ Van Heerden
Instructed
by:
ADRIAAN VENTER ATTORNEYS & ASS
Lady Brooks
Building, Ground Floor
14-12
th
Street, Menlo Park, PRETORIA
c/o DTS Attorneys
103 Cape Road
Mill Park
PORT ELIZABETH
Obo
the First Respondent:
Adv. P Du Toit
Instructed
by:
NEL MENTZ STEYN ELLIS INC.
14 Bureau Street,
HUMANSDORP
c/o JACQUES DE
PREEZ ATTORNEYS
96 Mangold
Street, Newton Park
PORT ELIZABETH
Obo
the First and Sixth Respondents:
Adv. LA Ellis
Instructed
by:
JORDAAN & SMITH ATTORNEYS
8 High Street,
PLETTENBERG BAY
c/o GOLDBERG &
VICTOR ATTORNEYS
12 Graham Street,
North End
PORT ELIZABETH
[1]
Whether the omission in paragraph 4 that the Sixth Respondent also
be responsible for costs is an oversight is not clear.
The
issue was not addressed in argument.
[2]
The application was launched before the PAIA request was finalised.