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[2022] ZAECMKHC 12
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Pinzon Traders (Pty) Ltd and Another v Clublink Pty Ltd and Others (752/2022) [2022] ZAECMKHC 12 (17 May 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
Case
No. : 752/2022
Date
Heard: 28 April 2022
Date
Delivered: 17 May 2022
In
the matter between:
PINZON
TRADERS 8 (PTY) LTD
First Applicant
MARK
WILLIAM SHELTON
Second Applicant
And
CLUBLINK
(PTY) LTD
First Respondent
ROBERT
JOHN BEER
Second
Respondent
CLICKS
RETAILERS (PTY) LTD
Third Respondent
MAKANA
MUNICIPALITY
Fourth
Respondent
JUDGMENT
RONAASEN
AJ:
Introduction
[1]
Erf [....] Makhanda (“the property”)
houses a substantial shopping complex known as Peppergrove Mall (“the
mall”). The property is owned by the first respondent. The
second respondent is the first respondent’s only director.
[2]
The first applicant occupies a number of premises
in the mall pursuant to lease agreements it concluded with the first
respondent.
In one of these premises it conducts the business of a
supermarket under the well-known brand name of Pick ‘n Pay.
[3]
On 14 May 2009 the first and second applicants, on
the one hand, and the first and second respondents on the other hand,
contracted
in writing with each other (“the 2009 agreement”)
as part of an overall settlement of various disputes between them
arising from two separate applications, in which they were on
opposing sides, and which, at the time, served before this court.
[4]
In terms of the 2009 agreement the first and
second respondents are contractually bound to the first and second
applicants that
while the first applicant remains a tenant in the
mall neither of them will directly or indirectly hold an interest in
land within
a defined area (which uincludes the property) upon which
a supermarket is developed or to be developed.
[5]
The 2009 agreement is at the heart of this
application and I shall refer to its terms in greater detail, below.
Suffice it to say
at this stage that the relief the applicants seek
in this application is underpinned by an alleged breach of of the
2009 agreement
by the first and second respondents in that the first
respondent is currently in the process of constructing a building on
the
portion the property previously described as erf [....],
Makhanda, and on an adjoining immovable property known as the
remainder
of erf [....], Makhanda (“the building”).
[6]
It is the stated intention of the first respondent
to give the third respondent occupation of a portion of the building,
for it
to operate a Clicks Store with effect from 1 April 2022 and
thereafter occupation of the entire building with effect from 1 July
2022. The applicants contend that the third respondent will be
conducting the business of a supermarket in the building. Therein,
say the applicants, lies the breach of the 2009 agreement.
[7]
The applicants contend, further, that the building
plans in terms of which the building is being constructed have not
been approved
by the fourth respondent and that therefore the
construction of the building is proceeding unlawfully. In addition it
is contended
that even if the building plans have been approved the
plans are not in compliance with the fourth respondent’s
Integrated
Land Use Scheme (“the scheme”) and that, thus,
such approval would be unlawful. The non-compliance, according to the
applicants, relates in particular to the scheme’s requirements
in respect of parking at shopping centres.
The
relief sought by the applicants
[8]
Against the abovementioned background the
applicants seek the following relief, on an urgent basis, namely
that:
8.1.
the first and second respondents be interdicted
from:
8.1.1.
leasing premises to the third respondent or
permitting the occupation of premises by the third respondent on any
other basis, on
the property, for the purpose of operating in such
premises a Clicks Store; and
8.1.2.
constructing or continuing to construct the
building on the immovable properties referred to in paragraph [5],
above;
8.2.
the abovementioned orders operate as interim
interdicts pending the final outcome of an action to be instituted by
the applicants
within 30 days of the granting of the orders in which
action the declaratory and reviewer relief foreshadowed in paragraph
3 of
the notice of motion will be pursued by the applicants;
8.3.
the first and second respondents, jointly and
severally with any of the remaining respondents who oppose this
application, pay the
costs of the application.
[9]
The first, second and third respondents oppose the
application.
Summary
of the defences raised by the first, second and third respondents
[10]
In short, the first, second and third respondents
have raised the following defences to the application:
10.1.
the application is not urgent;
10.2.
the applicants do not satisfy the requirements for
interim relief. In particular it is contended that the applicants
have not established
the existence of a right which would entitle
them to such relief. The principal contention being that the first
and second respondents
have not breached the 2009 agreement as the
business which the fourth respondent will conduct in the building is
not that of a
supermarket;
10.3.
the 2009 agreement is anti-competitive and as such
falls foul of relevant legislation in this regard and for this reason
it is void
and unenforceable;
10.4.
the failure by the applicants to join Wallace
Pharmacy as a party in these proceedings is fatal to the application.
Wallace Pharmacy,
which has hitherto conducted a pharmacy business in
the mall, has sold its pharmacy license to the third respondent;
10.5.
the building plans in respect of the building have
been validly approved by the fourth respondent and the construction
of the building
is taking place in accordance with the scheme,
particularly as regards parking.
[11]
I shall deal with these defences, individually,
below.
Salient
terms of the 2009 agreement
[12]
Clause 7 of the 2009 agreement is in the following
terms:
7.
DEVELOPMENT OF A SUPERMARKET
“
Clublink
and Beer undertake in favour of Pinzon and Shelton that for so long
as Pinzon remains a tenant of Peppergrove Mall, neither
Clublink nor
Beer (nor Beer’s family member/s nor any entity in which Beer
or family member/s of Beer hold a direct or indirect
interest) shall
within the area designated in the diagram (attached as “DS 3”)
acquire or hold an interest (whether
direct or indirect) in land upon
which a supermarket is developed or to be developed or in such
development itself. Clublink and
Beer acknowledged that the
expression “interest” shall bear the widest meaning
including the holding of an interest
through ownership, lease
(whether as a landlord or tenant), any real or personal right
(whether registrable or not), guarantor,
financier, funder or
beneficiary or director or trustee of an entity and irrespective of
whether such interest is held personally
or through a nominee/s.”
[13]
In clause 1.18 of the agreement a “supermarket”
is defined as meaning “
a
self-service shop selling foods and household goods
”
.
[14]
Clause 11.2 provides that:
“
No
indulgence, which either party may grant to the other, shall
constitute a waiver of rights and a party shall not thereby be
precluded from exercising any rights under this agreement which may
have arisen in the past or may arise in the future.”
[15]
The applicants maintain that they are entitled to
the relief sought in terms of the notice of motion as the first and
second respondents,
by allowing the development of a Clicks Store in
the building would be allowing the development of a supermarket in
the building
and hence would be in breach of the 2009 agreement. The
first, second and third respondents, in turn, argue that a Clicks
Store
is not a supermarket as defined in the agreement.
Urgency
Introduction
[16]
The question as to whether or not this application
was urgent to the extent that I could dispense with the forms and
service provided
for in the Uniform Rules and dispose of this matter
out of the ordinary course was hotly contested.
[17]
It is trite that the degree of relaxation of the
rules must be commensurate with the exigencies of the matter. In this
regard, as
a starting point, I must take into account the following
objective and undisputed facts, namely:
17.1.
it is the stated intention of the first respondent
to accommodate a Clicks Store in the building;
17.2.
to this end the third respondent has acquired the
pharmacy license of Wallace Pharmacy;
17.3.
the proposed Clicks Store will occupy substantial
floorspace in the building;
17.4.
the construction of the building is well underway;
and
17.5.
the existence of the 2009 agreement and the rights
it affords the applicants.
[18]
In
IL&B Marcow
Caterers (Pty) Ltd v Greatermans SA Ltd and Another; Aroma Inn (Pty)
Ltd v Hypermarket (Pty) Ltd and Another
1981
(4) SA 108
(C) at 112H – 113A it was held that the Court’s
power to abridge the time periods prescribed and to accelerate the
hearing of the matters should be exercised with judicial discretion
and upon sufficient and satisfactory grounds being shown by
the
applicants. The principal considerations in this regard are the
following:
18.1.
the prejudice the applicants might suffer by
having to wait for a hearing in the ordinary course;
18.2.
the prejudice that other litigants might suffer if
the applicant is given preference; and
18.3.
the prejudice that the respondents might suffer by
the abridgement of the prescribed time periods and an early hearing.
[19]
The first, second and third respondents say that
the stated intention to locate a Clicks Store in the building was
conveyed to the
applicants by November 2021, by which time they had
sufficient facts at their disposal to launch proceedings if they were
so advised.
The applicants, in turn, argue that the facts placed at
their disposal in November 2021 by the first respondent showed only
that
a Clicks Store was intended be accommodated in the premises
hitherto occupied by Wallace Pharmacy, but that no lease had as yet
been concluded with the third respondent. Thus, at that time there
were not sufficient facts available to them to bring an application
which would satisfy the requirements of a temporary interdict.
[20]
It only later (in February 2022) became clear to
the applicants, so they contend, that it was the intention of the
first respondent
to accommodate a Clicks Store in substantially
larger premises than those accommodating Wallace Pharmacy to the
extent that there
would be a breach of the 2009 agreement.
Relevant
correspondence
[21]
I analyse, below, relevant correspondence
exchanged between the parties and their attorneys only insofar as
this correspondence
relates to the question of urgency.
[22]
During the latter half of 2021 there was a regular
exchange of correspondence between the first applicant and the first
respondent
regarding the possible establishment of a Clicks Store in
the mall.
[23]
On 23 July 2021 first respondent wrote to the
first applicant and said that there was no further need to discuss
the “
Clicks extension
”
as “
we have put
this plan to bed
”
.
[24]
On 30 October 2021 the first applicant, in an
email to the first respondent, recorded the first applicant’s
rights in terms
of the 2009 agreement and contended that a Clicks
Store established in the mall would be a supermarket as contemplated
in the 2009
agreement and that such establishment would accordingly
be an infringement of the first applicant’s rights in terms of
the
agreement.
[25]
The abovementioned email prompted a response from
the first respondent’s attorney on 9 November 2021 in which,
this time,
it was contended that, first, that a Clicks Store in the
mall would not be a supermarket and would not infringe the terms of
the
2009 agreement and, second, in any event the relevant provisions
of the agreement were anti-competitive. The letter included a threat
to refer the matter to the competition authorities. This threat has
never been carried out.
[26]
This letter was responded to, at length, in a
letter from the first applicant’s attorneys of 11 November 2021
in which the
first applicant’s stance was reiterated, namely
that the establishment of a Clicks Store in the mall would infringe
the first
applicant’s rights in terms of the 2009 agreement.
The letter elicited an equally lengthy response from the first
respondent’s
attorney on 15 November 2021 in which the first
respondent’s stance that the establishment of a Clicks Store in
the mall
would not infringe the first applicant’s rights in
terms of the agreement.
[27]
On 16 November 2021, in a letter to the first
respondent’s attorney, the applicants sought to be advised
whether the first
respondent or any entity in which the second
respondent had a direct or indirect interested had entered into a
lease or other agreement
in terms whereof the third respondent would
take occupation of premises in the mall and, if so, when the first
respondent would
commence work in order to make the intended premises
“fit for purpose”, or, otherwise, when the third
respondent would
take occupation of any such premises.
[28]
Some 10 days later, on 26 November 2021, the first
respondent’s attorney wrote to the first applicant’s
attorney,
inter-alia
confirming that “
Clicks
will open a subsidiary store in the present Wallace’s building
as the main store will remain in High Street where it
is presently
situated
”
.
[29]
On 14 December 2021 refer the letter was addressed
by the applicants’ attorney to the first respondent’s
attorney, the
gist of which was to the following effect:
29.1.
the applicants had reliably learnt that the first
respondent had submitted building plans to the fourth respondent for
the further
development of the mall;
29.2.
the further development would encompass the
relocation of a number of existing tenants in the mall and would
provide trading space
for a Clicks Store of at least 400 square
metres;
29.3.
thus, the statement that the third respondent
would only establish a subsidiary store in the Wallace Pharmacy
building was designed
to mislead.
[30]
The first respondent’s attorney responded to
this on 15 December 2021. The response is in fact a non-response it
simply states
that the first respondent had not concluded a lease
agreement and that it was in the process of negotiating a lease
agreement with,
presumably, the third respondent. Significantly this
letter did not deny or respond to the very clear allegation that the
first
respondent’s previous advices as to the extent of the
presence of the fourth respondent in the mall had up to then been
misleading.
[31]
On 1 February 2022 the applicants’ attorney
again wrote to the first respondent’s attorney largely
repeating what was
set out in the letter discussed in paragraph [29],
above. The letter extended an invitation to the first respondent to
disclose
its true intentions with regard to the accommodation of a
Clicks Store in the mall. The letter again called into question the
veracity
of the first respondent’s previous disclosures as to
its intentions in this regard. Suggested timeframes for the exchange
of papers in an urgent application were raised.
[32]
In his responding letter of 10 February 2022 the
first respondent’s attorney stated that its client “
denies
that it has misled your client in any way, and we confirm that
Clicks, which will operate from Wallace’s is a subsidiary
store
as the main store is double in size and remains in High Street, where
it is presently situated
”
.
Contradictorily, later in the letter, it is stated that the third
respondent would be temporarily accommodated from 1 April 2022
in the
old Capellini building and have full occupation by 1 July 2022. The
Capellini building is in a different location in the
mall to the
location of the Wallace Pharmacy.
[33]
On 2 March 2022 the applicants’ attorney
wrote in response to the abovementioned letter, recording the
discrepancies and confusion
regarding the floorspace a Clicks Store
would occupy in the mall, which is now apparent would be in excess of
600 square metres
which was substantially more than half the floor
space occupied by the third respondent’s main branch in High
Street as had
been consistently held out by the first respondent. The
letter also requested that the applicants be furnished with approved
building
plans for the extension to the mall to accommodate the
Clicks Store.
[34]
In an answering letter of 4 March 2022 it was
disclosed for the first time by the first and second respondents’
attorney that:
34.1.
“
it was initially intended that Clicks
would temporarily operate from the old premises of Wallace and
anticipated that Clicks would
then move to the area where the old
Capellini business was conducted
”
.
As stated this assertion did not feature in any prior correspondence;
34.2.
the proposed Clicks Store would, in fact, occupy
some 670 square metres in the mall.
The
first and second respondents’ opposing affidavit
[35]
The following paragraphs in the opposing affidavit
of the first and second respondents are relevant to the question of
urgency:
“
165.
I admit that WRC responded on 26 November 2021 (“annexure 14”)
and that the quoted portion is a true reflection
of what is contained
in the WRC response.
166. I deny that the
response is misleading.
167. I should explain
that the plan to accommodate Clicks in the Peppergrove Mall was a
staged process and certainly in November
2021 was still being
finalised. It was always accepted that the floorspace in the premises
currently occupied by Wallace’s
Pharmacy was too small (313
square metres) to accommodate Clicks indefinitely.
168. However, at that
stage it was envisaged that Clicks, after Wallace’s Pharmacy’s
licence was transferred to it,
would move into and trade from those
premises. It was always contemplated that Clicks would need to move
elsewhere, but no firm
plan had been decided at that time.
169. The plan, which was
only formulated later, was that Clicks would then move into the shop
space from which Capellini’s
operated, which was bigger than
Wallace’s Pharmacy then only once the Crazy Store had been
renovated for purpose, would the
Capellini’s and Crazy Store
shop space be combined to allow Clicks a total of 670 square metres
of lettable area.”
[36]
In paragraph 174 of the opposing affidavit the
first and second respondents stated that they had no obligation to
discuss their
intended arrangements regarding Clicks with the
applicants given that it was the first respondent’s view that
Clicks is not
a supermarket. They then say the following in paragraph
175 of the opposing affidavit:
“
175.
In any event, as I have said above, it was clear to the applicants
from 26 November 2021 that Clicks was moving into Peppergrove
Mall.
The size of the premises into which Clicks was purported to be moving
can have had no relevance to the fact that on their
version, Clicks
is a supermarket. Either Clicks constitutes competition, or it does
not; the applicants cannot have their cake
and eat it.”
Discussion
[37]
The letter of 26 November 2021 emanating from the
first and second respondents’ attorney was unequivocal in the
following
respects:
37.1.
the first respondent had at that stage not yet
entered into a lease agreement with the third respondent; and
37.2.
the third respondent would open a subsidiary store
in the building then occupied by the Wallace Pharmacy.
[38]
The applicants, in my view, quite correctly state
that on the facts set out in the preceding paragraph they would not
have been
successful at that time in seeking a temporary interdict.
On the first and second respondents’ version the third
respondent,
in November 2021, had not acquired any rights to occupy
space in the mall.
[39]
The explanation offered by the first and second
respondents in the portions of their opposing affidavit referred to
above is to
the effect that it was always the intention that a Clicks
Store would be accommodated in larger premises in the mall to the
extent
of almost 700 square metres was not conveyed in the November
2021 correspondence and was only conveyed in correspondence in
February
2022.
[40]
Thus, only in February 2022 did the applicants
become aware that it was the stated intention of the first respondent
that a Clicks
Store would occupy substantial retail space in the
mall. Clearly therefore the contentions advanced in paragraph 175 of
the first
and second respondents’ opposing affidavit, quoted
above, do not hold water, as:
40.1.
on their version, the third respondent, in
November 2021, had acquired no rights to occupy premises in the mall;
40.2.
the size of the retail operation to be conducted
by the third respondent in the mall, in terms of floorspace, would
have been a
crucial consideration for the applicants. The larger
floorspace to be occupied by a Clicks Store is indicative of the fact
that
the third respondent did not intend only conducting a pharmacy
business in the mall, but rather an extended retail business.
[41]
Once the applicant became aware of the first,
second and third respondents’ true intentions they proceeded
with alacrity to
launch this application. The prejudice the first
applicant might suffer by having to wait for a hearing in the
ordinary course
is obvious. That would allow sufficient time for a
Clicks Store to become established in the mall and, at best, the
first applicant
would be left with a damages claim which would be
difficult to quantify. Irs ability to enforce its rights in terms of
the 2009
agreement would be compromised if not eliminated.
[42]
I am therefore satisfied that this application is
one of sufficient urgency to warrant the truncation of the time
periods prescribed
in the Uniform Rules. The first, second and third
respondents responded comprehensively to the application and any
prejudice they
may have suffered as result of the truncated time
periods is outweighed by the consequences which would have ensued if
the applicants
had to wait for a hearing in the ordinary course.
Have
the applicants made out a case for a temporary interdict
General
[43]
In
Eriksen Ltd v
Protea Motors and Another
1973 (3) SA
685
(A) at 691C-G the following was stated in respect of the
requirements for a temporary or interim interdict:
“
The
granting of an interim interdict pending an action is an
extraordinary remedy within the discretion of the Court. When the
right which it is sought to protect is not clear, the Court’s
approach in the matter of an interim interdict was lucidly laid
down
by Innes JA in
Setlogelo
v Setlegelo
1914
AD 221
at 227. In general, the requisites are:
a)
a right which, ‘though
prima
facie
established, is open to some
doubt’;
b)
a well-grounded apprehension of irreparable
injury;
c)
the absence of an ordinary remedy.
In
exercising its discretion, the Court weighs,
inter-alia
, the
prejudice to the applicant if an interdict is withheld against the
prejudice to the respondent if it is granted. This is sometimes
called the balance of convenience. The foregoing considerations are
not individually decisive, but are interrelated; for example,
the
stronger the applicant’s prospects of success the less the need
to rely on prejudice. Conversely the more the development
of ‘some
doubt’, the greater the need for the other factors to favour
him. The Court considers the affidavits as a
whole, and the
interrelation of the foregoing considerations, according to the facts
and probabilities. Viewed in that light the
reference to a right
which, ‘though
prima facie
established, is open to some
doubt’ is apt, flexible and practical, and needs no further
elaboration.”
[44]
The
Setlogelo
requirements for an interim interdict were
reaffirmed by the Constitutional Court in
National
Treasury and Others v Opposition to Urban Tolling Alliance and Others
2012 (6) SA 2
to 3 (CC) at [50].
[45]
Clause 7 of the 2009 agreement affords the
applicants a clear right in terms of which it may by way of specific
performance prevent
the first and second respondents from allowing a
supermarket to be developed in the mall. The question which then
remains is whether
the proposed Clicks Store to be operated by the
third respondent satisfies the definition of a supermarket in clause
1.18 of the
agreement. Obviously this is not something which I have
to decide definitively at this stage. I only need to consider
whether,
prima facie
,
the applicants have shown this to be the case.
[46]
In considering whether or not the proposed Clicks
Store would be a supermarket I am mindful of the approach formulated
in
Spur Steak Ranches Ltd and Others v
Saddles Steak Ranch, Claremont and Another
1996
(3) SA 706
(C) at 714E-F, as follows:
“
The
proper approach is to take the facts set out by the applicants
together with any facts set out by the respondents, which the
applicants cannot dispute and to consider whether having regard to
the inherent probabilities the applicants should not on these
facts
obtain final relief at the trial.”
[47]
The applicants have in some detail set out and
described the products sold by the third respondent, other than
products sold in
the context of a pharmacy, which products they
contend are foods or household goods.
[48]
In response the first and second respondents
persist with a general denial that a Clicks Store would be a
supermarket. They further
contend that almost all the goods referred
to by the applicants are sold also by other vendors in the mall.
Quite what the relevance
of this is, is not clear. No detail is
however furnished as to the size or extent of the operations of the
other vendors mentioned.
[49]
The third respondent in a bald denial disputes
that the products listed by the applicants as being foods or
household goods are
in fact such. There is further an admission by
the third respondent that it sells foods and household goods but that
these account
for a small portion of the third respondent’s
business. For the purposes of detreminig this application that
admission is
telling.
[50]
In my view the applicants have established on a
prima facie
basis
that the proposed Clicks Store will be engaged in the sale of foods
and household goods and would thus be a supermarket as
defined in the
2009 agreement.
The
first respondent’s building plans
[51]
In terms of a supplementary affidavit filed by the
first respondent it is contended that the two immovable properties on
which the
construction of the building was proceeding have now been
consolidated. I shall proceed from the assumption that this is indeed
so.
[52]
To support the contentions of the first respondent
that the building plans in respect of the building had been approved
by the fourth
respondent, a further affidavit was handed up, during
the course of argument, emanating from a Ms Gcobisa Mfeti, to the
following
effect:
52.1.
she describes herself as being the building
control officer of the fourth respondent, appointed as such in terms
of section 5 of
the National Building Regulations and Building
Standards Act, 103 of 1977 (“the Act”);
52.2.
she has the delegated authority to approve
building plans;
52.3.
her signature appears on the building plans in
respect of the building, annexed to the opposing affidavit of the
first and second
respondents;
52.4.
her signature on the plans evidences her approval,
in her official capacity, of the building plans in respect of what
she describes
as the “
Clicks
Building
”
.
[53]
Section 4(1) of the Act states in mandatory terms
that no person shall without the prior approval in writing of the
local authority
in question, erect any building in respect of which
plans and specifications are to be drawn and submitted in terms of
the Act
[54]
Section 6 of the Act sets out the functions of
building control officers, which, in terms of section 6(1)(a), are
to:
54.1.
make recommendations to the local authority in
question, regarding any plans, specifications, documents and
information submitted
to such local authority in accordance with
section 4(3) of the Act;
54.2.
ensure that any instructions given in terms of the
Act by the local authority question are carried out;
54.3.
inspect the erection of a building, and any
activities or matters connected therewith, in respect of which
approval referred to
in section 4(1) of the Act was granted;
54.4.
report to the local authority in question,
regarding non-compliance with any condition on which approval
referred to in section
4(1) of the Act was granted.
[55]
Section 7 of the Act provides that a local
authority, having considered a recommendation of a building control
officer in terms
of section 6(1)(a) in respect of an application for
the approval of building plans and having satisfied itself that the
application
in question complies with the requirements of the Act and
any other applicable law, shall grant approval in respect of such
plans.
[56]
The provisions of the Act are clear. In respect of
building plans the sole function of the building control officer is
to make recommendations
to the local authority concerned.
Construction of buildings can only proceed in terms of plans approved
by the local authority
which approval is to be furnished by the local
authority in writing. These functions fall within the sole purview of
the local
authority and the Act contains no provisions which allow
for the delegation of these functions to the building control
officer.
If one considers the clearly delineated functions of
building control officers on the one hand and local authorities on
the other
hand in the Act it is impossible to conceive that a local
authority could delegate its functions in terms of the Act to the
building
control officer. If that were to happen one would find the
anomalous situation where a building control officer would be acting
on his/her own recommendations.
[57]
No written approval of the plans by the fourth
respondent appears in the papers.
[58]
Thus, I am satisfied that at the very least the
applicants have demonstrated on a
prima
facie
basis that the construction of
the building is proceeding in the absence of a valid written approval
of the required building plans
by the fourth respondent. The
applicants would have good prospects of setting aside, on review the
alleged approval of the plans
by the building control officer.
Compliance/non-compliance
with the scheme
[59]
The applicants contend that the construction of
the building is not in accordance with the scheme and will result in
the mall, which
is a shopping centre as referred to in the scheme,
being non-compliant with the requirements of the scheme in particular
with regard
to parking.
[60]
Even on the version of the first and second
respondents it would appear that the parking arrangements at the mall
are inadequate
and deficient and thus not in accordance with the
scheme. This position is not addressed or will not be improved by the
construction
of the building. Therefore the building plans in respect
of the building, if approved, have not validly been approved in the
absence
of compliance with the scheme. If not yet approved they
cannot be approved until there is compliance with the scheme.
[61]
Here also I am satisfied that the applicants have
established the requirement of a
prima
facie
right.
Do
the applicants have a reasonable apprehension of irreparable and
imminent harm
[62]
Clause 7 of the 2009 agreement seeks to avoid a
certain kind of harm for the first applicant. If the first and second
respondents
are allowed to avoid their obligations in terms of this
clause the harm the clause was intended to avoid would ensue and may
be
irreversible.
[63]
Clause 7 creates rights for the applicants which
they are entitled to enforce by way of an action for specific
performance. If they
were not allowed to preserve their position by
way of an interim interdict pending the determination of such an
action the ability
to obtain specific performance, which is a
discretionary remedy, would in all likelihood fall away if the third
respondent, pending
the conclusion of an action, were allowed by the
first and second respondents to establish itself in the mall contrary
to the terms
of the 2009 agreement.
[64]
The applicants have in great detail set out the
harm the first applicant would suffer if an interim interdict is not
granted. Generally
their assertions in this regard have been met with
vague denials by the first, second and third respondent Considering
these facts
and on an objective basis the applicants have established
that they have an apprehension of irreparable harm.
Do
the applicants have an alternative remedy
[65]
It is difficult to conceive of an alternative
remedy available to the applicants. As stated the harm which the 2009
agreement seeks
to avoid is best prevented by an action for specific
performance. That right could be lost in the absence of an interim
interdict.
I have already held that the applicant should be allowed
to preserve their position by way of an interim interdict pending an
action
for specific performance.
[66]
An action for damages in due course is unlikely to
address the harm the applicants seek to avoid. The computation of
damages would
be extremely difficult in this case.
The
balance of convenience
[67]
The requirements for an interim interdict are
interrelated. What I have said above about these requirements also
applies to the
question of the balance of convenience.
[68]
The first and second respondents bound themselves
to the terms of the 2009 agreement. It is clear that they are now
disgruntled
with the strictures placed on them by the provisions to
which they freely agreed.
[69]
In my view the balance of convenience favours the
preservation of the position created by the 2009 agreement by way of
an interim
interdict. The rights enjoyed by the applicants in terms
of the 2009 agreement pre-date any rights which the third respondent
may
in the meantime have obtained and are therefore stronger rights
in law.
[70]
In the absence of the preservation of the rights
created by the 2009 agreement the applicants may lose, irreversibly,
the ability
to enforce those rights. Thus, the balance of convenience
favours the applicants.
The
allegations that the 2009 agreement falls foul of competition
legislation
[71]
The assertions in respect of the alleged
anti-competitive nature of the 2009 agreement were not pressed in
argument before me. During
argument I put it to counsel for the
parties that this issue could in due course be raised as a defence to
any action instituted
by the applicants by the first and second
respondents and would best be determined by the hearing of evidence.
Counsel did not
disagree with my proposition in this regard.
Is
the failure by the applicants to join Wallace Pharmacy fatal to this
application
[72]
The third respondent has chosen not to enlighten
me as to the terms of its agreement with Wallace Pharmacy. All I
really know is
that the third respondent has purchased its pharmacy
license.
[73]
On the facts available to me Wallace Pharmacy has
relinquished its right to trade in the mall, in favour of the third
respondent.
There is nothing before me which shows how Wallace
Pharmacy will be affected in the event of my granting an interim
interdict.
It has not been demonstrated to me that Wallace Pharmacy
has a direct and substantial interest in the subject matter of the
present
proceedings.
[74]
Thus, the failure by the applicants to join
Wallace Pharmacy ass a party in these proceedings is not fatal to
their application.
Costs
[75]
In terms of the order I intend to make the
applicants will have achieved success in respect of the relief they
sought in terms of
this application. In terms of prayer 4 of the
notice of motion the applicants ask that I direct the first, second
and third respondents
to pay the costs of this application, jointly
and severally.
[76]
The Full Bench of this Division in
EMS
Belting Co of SA (Pty) Ltd and Others v Lloyd and Another
1983 (1) SA 641
(ECD) at 644H held that the costs
of an interim interdict should only be granted to a successful
applicant in exceptional circumstances.
The success achieved by a
successful applicant for a temporary interdict is of a limited and
temporary nature, often based on the
balance of convenience and
obtained even despite a serious dispute of facts on the papers. It is
implicit in an order granting
a temporary interdict that such order
and the relief consequent thereon will fall away should the applicant
be unsuccessful in
the trial. It would, in such a case, be unjust to
compel the defendant in the trial to pay the costs of an interdict to
which the
applicant/plaintiff may subsequently be shown to have been
not entitled.
[77]
No case was made as to to the existence of
exceptional circumstances which would allow me to depart from the
general rule established
by the Full Bench and by which I am bound.
Conclusion
[78]
Thus, I make the following order:
1.
The first and second respondents are interdicted
from:
1.1
leasing premises to the third respondent or
permitting the occupation of premises by the third respondent on any
other basis, on
erf [....] Makhanda for the purposes of
operating a Clicks Store in such premises; and
1.2
constructing (or continuing to construct) the
building on that portion of the immovable property which was formally
designated as
erf [....] Makhanda and/or the remainder of erf
[....] Makhanda.
2.
The orders in terms of 1, above shall operate as
an interim interdict pending the determination of an action to be
instituted by
the applicants within 30 days of this order for the
relief foreshadowed in paragraph 3 of the notice of motion.
3.
The
costs of this application will stand over for determination by the
court hearing the trial contemplated in 2, above.
O
H RONAASEN
ACTING
JUDGE OF THE HIGH COURT
Appearances
:
Counsel
for Applicants:
Adv EAS Ford SC
Adv JG
Richards
Instructed
by: Rushmere
Noach Attorneys
c/o
Netteltons Attorneys
Counsel
for First and Second Respondents:
Adv A Beyleveld
SC
Adv G
Brown
Instructed
by:
Wheeldon
Rushmere & Cole Inc.
Counsel
for Third Respondent: Adv
SH Cole SC
Instructed
by: Werksman
Attorneys
c/o
De Jager and Lordan Inc.
Date
heard: 28
April 2022
Date
delivered: 17
May 2022