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South Africa: South Gauteng High Court, Johannesburg
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2024
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[2024] ZAGPJHC 954
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Asmaljee and Another v Torga Optica (Pty) Ltd and Others (039074/2022) [2024] ZAGPJHC 954 (11 September 2024)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO
: 039074/2022
DATE
:
11-09-2024
1.
REPORTABLE: NO.
2.
OF INTEREST TO OTHER JUDGES: NO.
3.
REVISED.
11
September 2024
In
the matter between
A ASMALJEE AND
ANOTHER
Applicants
and
TORGA
OPTICAL (PTY) LTD AND OTHERS
Respondents
JUDGMENT
EX TEMPORE
WILSON,
J
:
The
applicants are former franchisees of the first respondent, Torga
Optical. They initially approached the court seeking wide-ranging
relief impugning the legality of the franchise agreement between them
and Torga. All of that relief save for one paragraph has
now fallen
by the wayside and it is not necessary for me to make any
determination as to the complaints advanced in the founding
affidavit
regarding the legality of various provisions of the franchise
agreement, or the legality of the conduct of Torga or its
agents.
This is because save for an order for the return of patient records
which I shall presently make, the other relief in the
notice of
motion no longer raises a live issue between the parties.
The applicants came to court on
essentially two complaints. The first related to a right to continue
in occupation of the property
from which the franchise was operated,
and the second related to the right to return of various patient
cards held by Torga. The
applicants no longer operate from the
property and have vacated it. It is accordingly not necessary for me
to consider the legality
of the franchise agreement as it relates to
the applicants' rights to remain in occupation of the property.
Before me today the parties are agreed
on an order that will see the applicants' patients' records returned
to them and the first
and second respondents restrained from
retaining utilising, sharing or selling them. Accordingly, whether or
not the franchise
agreement permits that, and whether or not the
first and second respondents have sought to do that notwithstanding
the provisions
of the agreement, is again no longer a live issue. In
other words, given the order by consent that I shall presently make,
the
application is moot.
The order I shall make by agreement
provides for the first and second respondent to deliver patient
cards, pre-test forms, patient
personal information, patient accounts
and email databases presently held by the first and second
respondents to the applicants.
It also again, by agreement,
interdicts and restrains the first and second respondents from using
or disseminating that information.
The only live question that remains
between the parties is who should pay the costs of the application.
This has excited a great
deal of argument.
Mr Ally, who appeared for the
applicants, submitted that the applicants are entitled to their costs
merely on the basis that this
order is now being granted by
agreement, and that the agreement to grant the order was only reached
today. It was accordingly necessary
for the applicants to come to
court to get their relief.
Mr Dobe, for the first and second
respondents, says that this is not so. He submitted that the relief
that I shall presently grant
was always available to the applicants
and was embodied in various tenders made throughout the papers.
Purely as a matter of textual accuracy
that submission cannot be sustained. There is no tender along the
lines of the order that
is now agreed to anywhere in the papers. To
be fair to him, Mr Dobe did not say that there was. He said that it
is clear from the
papers that the first and second respondents were
always willing to return the information, and that the willingness to
return
the information was indicative of an undertaking not to use
the information in any other way and to delete it from the first and
second respondents' systems.
Try as I might, I cannot see those
implications on the papers. What I see is an undertaking to return
the information. There is
no undertaking to delete it and no
undertaking not to further disseminate the information. It seems to
me that the applicants had
to come to court to get that. It is not at
all clear to me on the papers why the first and second respondents
did not make a tender
substantially in the terms that they have now
agreed to, before today. But the fact remains that they did not.
It follows that the applicants must
have their costs. Mr Ally submitted initially that those costs should
be on the attorney and
client scale, but I do not think that a
foundation has been laid on the papers for a punitive costs order in
favour of either party.
For all those reasons I make the
following order –
1 The first and second
respondents are directed to deliver up the applicants’ patient
cards, pre-test forms, patient
personal information, patient accounts
and email database (“the information”) and, for that
purpose, to take all steps
necessary to ensure that the information
can be transferred electronically to the applicant’s Eminance
optometry management
software system.
2 The first and second
respondents are to discard and/or delete any record of the
information.
3 The first and second
respondents are interdicted and restrained from –
3.1 retaining, utilising, sharing or
selling the information;
3.2 contacting or soliciting any of
the patients of the Applicants; and/or
3.3 selling the information.
4 The first and second
respondents are directed, jointly and severally, the one paying the
other to be absolved, to pay the
costs of this application, on the
party and party scale, with counsel’s costs to be taxed on
scale “B”.
WILSON, J
JUDGE OF THE HIGH COURT
11 September 2024