First Pharmacy CC v Shoprite and Checkers (Pty) Ltd and Another (17682/2008) [2008] ZAWCHC 93 (11 December 2008)

First Pharmacy CC v Shoprite and Checkers (Pty) Ltd and Another (17682/2008) [2008] ZAWCHC 93 (11 December 2008)

The applicant established a prima facie right to operate a pharmacy exclusively in the shopping centre based on the lease agreement with the second respondent, which replicated the exclusivity clause from the predecessor's lease. The conduct of the first and second respondents in granting and receiving rights to operate a pharmacy, in contravention of the applicant's exclusivity, was found to be illegal, irregular, and indefensible. The applicant demonstrated a well-grounded apprehension of irreparable harm due to the first respondent's economic power and the risk of being forced out of business. The balance of convenience favoured the applicant, who had operated the pharmacy for many...

Citation
[2008] ZAWCHC 93
Parties
Applicant: First Pharmacy CC; Respondent: Shoprite and Checkers (Pty) Ltd; Respondent: Ziningi Properties (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 December 2008
Case Number
17682/2008
Procedural Posture
Urgent Application / Interim Interdict (rule Nisi) Application
Outcome
Interim interdict granted in favour of the applicant; first respondent restrained from operating a pharmacy in the shopping centre pending return date.
Judges
Moosa
Legal Topics
Exclusive Use Clause, Lease Agreement, Interim Interdict, Collusion, Irreparable Harm
Land and Property Commercial and Corporate Exclusive Use Clause Lease Agreement Interim Interdict Collusion Irreparable Harm

Case Brief

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Parties

First Pharmacy CC

Applicant

Shoprite and Checkers (Pty) Ltd

Respondent

Ziningi Properties (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Interim Interdict (rule Nisi) Application

Legal Issues

  1. 1 Whether the applicant is entitled to an interim interdict restraining the first respondent from operating a pharmacy in the shopping centre.
  2. 2 Whether the applicant has a prima facie right to exclusivity under the lease agreement.
  3. 3 Whether the applicant faces irreparable harm if interim relief is not granted.

Ratio Decidendi

The applicant established a prima facie right to operate a pharmacy exclusively in the shopping centre based on the lease agreement with the second respondent, which replicated the exclusivity clause from the predecessor's lease. The conduct of the first and second respondents in granting and receiving rights to operate a pharmacy, in contravention of the applicant's exclusivity, was found to be illegal, irregular, and indefensible. The applicant demonstrated a well-grounded apprehension of irreparable harm due to the first respondent's economic power and the risk of being forced out of business. The balance of convenience favoured the applicant, who had operated the pharmacy for many...

Court Disposition

Interim interdict granted in favour of the applicant; first respondent restrained from operating a pharmacy in the shopping centre pending return date.

Orders

  • Prayer 1 of the notice of motion is granted.
  • Prayer 2 of the notice of motion is granted, returnable on or before 5 February 2009, including prayers 2.1, 2.2, and 2.3.