First Pharmacy CC v Shoprite Checkers (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Yekiso J
• Judgment Date: 13 February 2009
• Docket Number: 17682/08
• Court: Cape Provincial Division
• Hearing Date: 04 February 2009
• Citation: 2009 JDR 0119 (C)

Yekiso J:

[1] This matter came before me on the return date of a rule nisi granted by Moosa J on 9 December 2008. The rule nisi is a sequel to an application, on notice of motion issued out of this Court, on an urgent basis, on 2 December 2008 for the relief set out in the notice of motion.

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[2] On 9 December 2008, Moosa J granted a rule nisi, returnable on Thursday, 5 February 2009, in the following terms:

"That a Rule Nisi do issue, calling upon Respondents to show cause, if any, on or before 5 February 2009, why a final order should not be made:

[1.1]

Interdicting and restraining First Respondent from operating a pharmacy or dispensing scheduled medicines or conducting the business of a dispensary of pharmaceutical or health products upon the premises of Shoprite Centre, corner of Vryburger and Tafelberg Streets, Bothasig, Western Cape ("the premises");

[1.2]

Interdicting and restraining First Respondent from advertising or publishing in any medium or form, its impending or intended operation of a pharmacy or dispensary of scheduled medicines or pharmaceutical or health products upon the premises;

[1.3]

First respondent forthwith remove any and all such advertising material displayed upon or near the premises;

[1.4]

Ordering First Respondent to pay the costs of the application;

[2] That paragraphs 1.1, 1.2 and 1.3 above operate as an interim interdict pending the final determination of this application."

[3] The applicant's cause of action is based on an alleged unlawful interference by the first respondent of the applicant's sole right to trade and to undertake the business of a pharmacy and dispensary in pharmaceutical and health products at the Shoprite Centre shopping complex, Bothasig by procuring for itself a similar right to trade and to

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undertake the business of a Medrite Pharmacy and dispensary in pharmaceutical and health products in the same business complex.

THE PARTIES

[4.1] The applicant is First Pharmacy CC, a close corporation duly incorporated in terms of the Close Corporation Act, 69 of 1984 and carrying on the business of a pharmacy and dispensary of scheduled medicines, pharmaceutical and health products at Shoprite Centre, corner of Vryburger & Tafelberg Streets, Bothasig, Western Cape. It is represented in these proceedings by its sole member in the person of Mohamed Allie.

[4.2] The first respondent is Shoprite Checkers (Pty) Ltd, a limited liability company incorporated in terms of the Companies Act, 61 of 1973, carrying on business as a supermarket at Shoprite Centre, corner of Vryburger & Tafelberg Streets, Bothasig, Western Cape and having its head office at Old Paarl Road, Brackenfell, Western Cape.

[4.3] The second respondent is Ziningi Properties (Pty) Ltd, similarly a limited liability company incorporated in terms of the Companies Act, 61 of 1973 and ostensibly carrying on trade in the letting of commercial properties. Its domicilium citandi et executandi in terms of the contract

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between it and the applicant is Deloitte & Touche House, Block A, Ground Floor, 181 Hoosen Haffejee Street, Pietermaritzburg, in the province of Kwazulu Natal.

CHRONOLOGY OF EVENTS

[5] On 8 December 2003 and at Brackenfell, Western Cape, the first respondent concluded a lease agreement with Jean A de Klerk CC ("de Klerk CC") in terms of which de Klerk CC leased the premises situate at and known as Shops 8 – 11 Shoprite Centre, corner of Vryburger & Tafelberg Streets, Bothasig, Western Cape. The lease agreement was for the duration of three (3) years commencing on 1 November 2003 and terminating on 31 December 2006. On basis of the aforementioned lease agreement, de Klerk CC carried on business as a pharmacy in the aforementioned premises under the name and style of "Bothasig Apteek/Pharmacy".

[6] Clause 15.1 of the lease agreement confers on de Klerk CC a sole right to trade and to undertake the business of a pharmacy. It reads as follows:

"There shall, for the duration of the lease, be no other pharmacy in the shopping centre, nor will any other person, excluding medical doctors, be entitled to dispense 'scheduled medicines' as defined in the Medicines Control

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Act, 1965. Bothasig Apteek shall have the sole right to operate as a pharmacy."

[7] Sometime before 18 October 2005 and, during the currency of the lease between it and de Klerk CC, the first respondent sold the entire business complex comprising Shoprite Centre, Bothasig, to the second respondent. At the time of the conclusion of the agreement of sale between it and the second respondent, the first respondent was the landlord to de Klerk CC in terms of a lease agreement concluded between it and de Klerk CC. At the time of the conclusion of the agreement of sale between the first and the second respondent, the lease...