About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 1245
|
|
Page Sommerville Incorporated v Van Tonder and Another (80890/2016) [2016] ZAGPPHC 1245 (11 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 80890/2016
11/11/16
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
PAGE
SOMMERVILLE
INCORPORATED
Applicant
and
JOHANN
VAN
TONDER
First
Respondent
HEALTH-WORX
MEDICAL CENTRES (PTY) LTD
Second
Respondent
JUDGMENT
Tuchten
J
:
1
In this urgent application, the applicant seeks interim interdicts to
prevent the first respondent from disclosing confidential
information
by the first respondent and to restrain the first respondent from
performing certain competitive acts for 12 months
within a six km
radius, as the crow flies, from the premises in which the applicant
conducts business. The relief is sought pending
the determination of
an application for final relief in much the same terms.
2.
The applicant provides general medical practitioner services from its
rooms at the Centurion NHC Health Centre, cnr Brakfontein
and Erasmus
Roads Louwlardia, Centurion (the NHC rooms). The first respondent
used to be one of the general practitioners who was
engaged by the
applicant as a consultant.
3.
The first respondent has parted company with the applicant,
unfortunately in circumstances of some bitterness. It is unnecessary
to deal with this aspect of the case except to say that it is common
cause that the first respondent has decided to provide consulting
services in direct competition with the applicant for the second
respondent at the latter's rooms in Raslouw, Centurion (the Raslouw
rooms).
4.
The applicant's causes of action are based on what the applicant says
is a written contract. The applicant put up a document
(the contract
document) in the applicant's founding affidavit (sworn by Dr
Sommerville-Morris) styled General Practitioner Consultancy
Agreement
which shows that the contract document was signed by the first
respondent. In it, the first respondent gave his name,
his practice
number, his academic qualification and certain other information. He
did not date the contract document. He conducted
himself in
accordance with the contract document. He thought he was bound by the
its provisions. So, apparently, did a director
of the applicant, Dr
Sommerville-Morris. The first respondent, having obtained legal
advice, denies that the contract document
constitutes a written
contract.
5.
The contract document was not signed on behalf of the applicant. Nor
does the contract document say with whom the first respondent
was to
contract. In clause 1.3.3, there is provision for the definition of
the identity of "the Company", the party with
which the
first respondent was to contract. But that clause was left blank.
6.
Clause 1.3.4 defines the "effective date", the date upon
which the first respondent was to be contractually obliged
to begin
rendering services. It reads as follows:
'Effective
date' - the first business day of the month during which the Company
commences practice at the Medical Centre,
[1]
or if the Company has already commenced practice, then the first day
of the month during which this agreement is signed.
7.
Dr Sommerville-Morris testified that the first respondent signed the
contract document on the day he started working for the
applicant as
a consultant, 1 April 2015. She and the first respondent had
previously consulted for a branch of the second respondent
in
Centurion. She says that she and the first respondent
...
elected to move to what was, at the time, a general practice run by
Ors Pillay and Moodley at the Centurion NHC Centre in April
2015.
This practice ultimately
became Page Sommerville at the time Dr Page ioined as aforesaid.
[2]
8.
But the applicant was only incorporated on 30 April 2015. And Dr Page
only joined the practice in May 2015. So on 1 April 2015,
the day
upon which the applicant says that the first respondent became bound
by the terms of the contract document, the applicant
did not exist.
So on the day the first respondent signed the contract document, he
probably could not have intended to bind himself
to the applicant.
9.
Neither Dr Sommerville-Morris nor the first respondent explains why
the contract document was not completed. I think the reason
why it
was not completed on 1 April 2015 is fairly clear. The parties did
not know at 1 April 2015 the identity of the company
for which the
first respondent was going to be consulting. They left that over for
later negotiation. Why that process of negotiation
was left
uncompleted, though, does not emerge from the papers.
10.
The failure to complete and sign the contract document causes a
problem for the applicant for several reasons. Firstly, because
clause 11.2 proclaims that the contract document constitutes the
whole agreement between them and no amendment or variation not
in
writing and signed by the parties would have any force and effect;
and clause 11.3 says that no other conditions would apply
(by
implication, to the contractual regime).
11.
So the way in which the parties legislated for the determination of
the content of their contractual relationship
precluded
them
from going outside the four corners of the contract document in order
to establish their contractual regime in relation to
the material in
the contract document. This means, I think, that even if the
applicant had contended for a contract which was partly
written (ie
embodied the provisions of the contract document) and partly oral or
tacit, which it did not, such a contention would
probably be
destroyed by the provisions of the contract document.
12.
Secondly, on the date the consultancy contract was allegedly
concluded, 1 April 2015, the applicant did not exist. So the chances
that either Dr Sommerville-Morris or the first respondent intended,
as the applicant alleges, that on that date the first respondent
would bind himself to the applicant are very remote.
13.
The prohibition against the disclosure of confidential information
and the restraint upon which the applicant relies are those
embodied
in the contract document. Counsel for the applicant disavowed any
reliance on the present papers on a cause of action
arising otherwise
than from the contract document. If the contract document does not
constitute a written agreement between the
parties, then the
applicant has no cause of action on the present papers.
14.
The requirements for an interim interdict are broadly a right (at
least established
prima facie),
an apprehension of irreparable
harm if interim relief is not granted and ultimate relief is
eventually granted, a balance of convenience
in favour of the
granting of interim relief and the absence of any other satisfactory
remedy.
15.
These factors are not to be considered in isolation but in
conjunction with one another to determine whether the court should
exercise its discretion in favour of granting interim relief.
[3]
16.
So the applicant has established at best for it a weak
prima
facie
case. But that is not
all. There are further problems in the way of the applicant. What the
applicant wants to protect is its alleged
proprietary right in the
physician/patient relationship between the first respondent and his
patients. I shall accept for present
purposes that there is such a
protectable interest vesting in the applicant, on the authority of
Ntsanwisi v Mbombi,
a
case decided in this court,
[4]
although I personally have reservations about the public interest in
preventing patients from consulting the medical practitioner
of their
choice.
17.
But on the applicant's own version, the disclosure of the identities
and the contact details of the first respondent's patients
to the
second respondent has already taken place. On about 19 October 2015,
at least 13 patients were shown to have received electronic
text
messages from a mobile device telling them that the first respondent
had left the NHC and was to join Health-Worx-Raslouw
as from 31
October 2015.
18.
I take judicial notice of the fact that medical practitioners are
generally reluctant to communicate with their patients on
their
private cellphones. So it is unlikely that the second respondent had
these particulars of his patients on his private phone.
I think the
probabilities are that he gave the applicant's data base, or part of
its data base, to the second respondent. And that
the second
respondent used this information to contact the first respondent's
patients.
19.
But on this analysis, the alleged damage has been done. There is
nothing left to interdict. An interdict is not designed to
punish
past wrongdoing but to prevent future wrongdoing.
20.
The final problem, as I see it, with the applicant's case relates to
the calculation of the distance between the NHC rooms and
the Raslouw
rooms. The prohibition is on practising within 6 km of the NHC rooms,
as the crow flies. I take it that "as the
crow flies" means
the shortest distance between two points on the earth. The evidence
put up by the applicant in its founding
affidavit was that Dr
Sommerville-Morris used the well known Google Maps application to
determine that the Raslouw rooms were 5,23
km from the NHC rooms. The
first respondent countered with evidence that he had used an
electronic application called Free Map
Tools, which indicates exact
distances between physical addresses, and had determined that the two
suites of rooms were 6,035km
apart. In reply, the applicant put up
the evidence of a town planner who used both Google Earth and "ortho
rectified
imagery provided by National Geo-Spatial Information ..., a
component of Department of Rural development and Land Reform" to
calculate a 6km radius around the NHC rooms. The town planner
concludes that the two suites of rooms are within 6km of each other
but does not give the distance he found between the two suites or say
whether the results were the same according to both applications.
Nor
does he discuss whether there is any margin for error.
21.
As to margin of error: I assume that the electronic tools used by all
the witnesses in calculating distance rely on signals
from satellites
circling the earth which are equipped with and use hardware, software
and computing power to make the calculations.
How accurate are these
calculations? Are they more accurate over shorter distances or over
longer distances? Is there a range of
possible distances built into
the answers given by the electronic tools? None of this is explained.
22.
And then there is the problem that the person doing the measurements
must identify a point on his or her computer screen as
corresponding
to the starting point for the measurement. This was probably done by
making a mouse click after placing the cursor
on a point on the
measurer's computer screen which the measurer judged from the
electronic image corresponded to the NHC rooms
and then repeating the
process in relation to the Raslouw rooms. I should think that, in
context, a difference of less than a millimetre
in where the cursor
should be positioned in each case would make a significant difference
to the outcome of the calculation. How
much allowance, if any, should
be made for measurer error? If the exercise is repeated several
times, will the same result be yielded?
None of this is explained.
23.
I think that it would be unfair to the first respondent to dismiss
his evidence of distance as untrue. He was called upon, in
an urgent
application to answer the evidence of a lay person, using a popular
electronic application. He countered with his own
lay evidence. He
could not have been expected, in these circumstances, to deal with
expert evidence which was only put up in reply.
For all these
reasons, I therefore find that the applicant's evidence is, in the
present context, not more probable than that of
the first respondent
in relation to distance.
24.
I shall accept that the balance of convenience favours the applicant
although the first respondent will suffer significant prejudice
if he
is restrained. This is because he would not be able,
pendente
lite,
to work in the environment of his choosing and attend there
to the needs of patients who had come to trust his medical judgment.
Against that, there is the possibility of the first respondent
working for the second respondent at its rooms in another part of
Centurion which all agree is outside the 6km radius. Inthe
applicant's favour is its right to protect its proprietary right in
weakening the very connection between the first respondent and his
patients. If the applicant does not get interim relief, its
right to
achieve the weakening of this connection would be significantly
attenuated.
25.
But having weighed up all the factors, particularly the applicant's
weakness in relation to the establishment of a right and
the absence
of a preponderance of probabilities in the applicant's favour in
regard to distance together the prejudice to the respective
parties,
I have come to the conclusion that I should not exercise my
discretion in favour of the grant of an interim interdict.
I take
into account in the exercise of this discretion that the applicant
can, if it wishes, sue for damages. The respondents will
have records
of any consultations held in alleged breach of the restraint
provisions in the contract document and proof of the
alleged breaches
and of any damages suffered by the applicant will be relatively easy
to prove. The applicant would probably not
have to call the patients
as witnesses to prove its case.
26.
I therefore make the following order:
The
application is dismissed with costs
NB
Tuchten Judge of the High Court 8 November 2016
[1]
The "Medical Centre" is the NHC rooms.
[2]
My emphasis
[3]
For a full exposition of the law on this topic see Afrisake NPC and
Others v City of Tshwane and Others, a judgment delivered
in this
Division on 14 March 2014 under case no 74192/2014 paras 8-10
[4]
Reported apparently only at
[2005] JOL 14202
T.