Businesswoman gains small victory in Nandos war

Mpho Mokwape | Thursday June 19, 2014 16:31

 

On Tuesday, Judge Key Dingake ruled that several documents and paragraphs supporting Nandos’ and Ibrahim Khan’s replying affidavit, be struck out as they constituted the construction of an entirely new case.

Nandos Holdings Botswana and its franchise holder, Ibrahim Khan have been entangled in a war with Gampone over control of the restaurant’s Palapye outlet.  Nandos has filed an urgent application for Gampone and her company, Jago Productions, to stop using the Nandos brand, saying the franchise agreement has expired.

In the latest round, Gampone wanted the High Court to stay the urgent application and instead strike out portions of the replying affidavit and its supporting documents.

On Tuesday, Dingake said when put together paragraphs in the replying affidavit clearly constructed an “entirely new case” which was prejudicial to Gampone as she could not respond to it.

“It seems to be that some of the paragraphs quoted appear innocuous standing alone, but linked to the others complete a puzzle whose net effect is to construct an entirely new case that is at odds with the applicant’s case in the founding affidavit,” he said.

“It is very clear to me that in the paragraphs complained of, the applicant seeks to construct an entirely new case and veers away from its case in the founding affidavit, which he cannot do in the reply.

“In the paragraphs complained of, the applicant asserts a new case that if allowed to stand would be prejudicial to the respondent in that she cannot respond thereto.”

Part of the “new case” identified by Dingake deals with a 10-year master franchise agreement between Nandos and Khan’s son beginning on May 1, which prohibits the engagement of sub-franchises.

Dingake said while the court could exercise its discretion in allowing new evidence in a replying affidavit, this is applied where “applicants could not have known of such issues at the time of deposing to the founding affidavit”.

“I am satisfied that the new evidence/case forms the essential aspect of the case of the applicant and is evidence based on facts which, if they indeed existed, ought to have been known to the applicant,” Dingake said.

“Therefore, they should have been raised in the founding affidavit and it is therefore imperative that the new evidence sought, be struck out.”

Earlier in the matter, on behalf of Gampone, Dutch Leburu argued that his client never had the occasion or opportunity to deal with the allegations in the documents brought by Nandos and Ibrahim Khan as new evidence.

He asked that the affidavits brought to support the new evidence be struck out on the basis that some paragraphs constitute new matters and that they contradict the evidence set out in the founding affidavit.

Representing Nandos Holdings Botswana, Sidney Pilane had said the affidavits were not new material at all but rather supplements, which they were compelled to make in rebuttal, so as to deal with accusations made by Gampone in her supplementary affidavit.