Pick n Pay gets court block on Game food store at Midlands Mall

2014-06-09 00:00

THE Midlands Mall in Pietermaritzburg will remain without a Massmart FoodCo outlet in its Game store — for now — following a temporary interdict by the North Gauteng High Court in favour of Pick n Pay Stores (PnP).

The interdict will remain in place until arbitration proceedings are finalised June 18.

In his verdict, Judge Dawie Roux explored what exactly makes a supermarket, after PnP applied to the court to stop Liberty Group Ltd and Liberty Group Properties from opening another hypermarket or supermarket; or a fruit and vegetable shop exceeding 200 square metres, or a grocery, fresh fish shop, butchery, bakery, fruit and vegetable shop and deli. PnP’s lease agreement stipulates that none of these businesses could open on PnP’s side of the mall without PnP’s written consent.

PnP also submitted an application against Masstores (Pty) Ltd, which manages the Game stores in South Africa. PnP said in a statement, Masstores intended to expand its business by selling an extensive range of perishable and non-perishable food items under the FoodCo brand within the existing Game store, which if permitted, would make the Game store a supermarket in violation of its right to exclusivity.

Masstores opposed PnP’s application. Masstores argued in court that PnP had to prove the characteristics of a supermarket, as well as that the planned extension of the Game store would constitute a supermarket.

Fourie said in his verdict that PnP had submitted photos of the Game in Rosebank, Johannesburg, which already has a FoodCo, to show how the Game store in the Midlands Mall would look should it get a FoodCo.

Fourie said the photo showed an extended range of perishable and non-perishable foods, personal care products, pet food and other household items.

This photo constitutes a prima facie indication that Mas­stores plans to expand its business in the Liberty Mall to such an extent that it could be regarded as a supermarket, which would at least attempt to unlawfully and intentionally interfere with the contractual relationship between PnP and Liberty Group Properties.

He said this was sufficient to constitute harm, as it would have the effect that PnP would not obtain the performance it was entitled to from the right to exclusivity.

The interdict also prohibits Mas­stores from interfering in the contractual relationship between Pick n Pay and Liberty Group Properties while Pick n Pay institutes a separate court case against Masstores.

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