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.