Independent Newspapers
Woolworths. Photo by Simphiwe Mbokazi
North Coast businessman Haresh Ouderajh says a court judgment against him should be nullified because the presiding acting judge, who is also a practising advocate, had acted against him in another matter.
In an urgent court application recently, Ouderajh said Acting Judge Anton de Beer, who presided over his case against Woolworths, had allegedly taken on a case against him while the judgment was outstanding.
He said he wanted to apply for leave to appeal against the judgment – which found against him – but he wanted another judge to hear it because there might be “reasonable perception, suspicion or apprehension of bias”.
“Senior counsel has expressed the view to my attorney that the judgment of Acting Justice (Anton) de Beer is a nullity by reason of this turn of events,” he said.
Ouderajh made these allegations in his recent urgent interdict application before Judge Fikile Mokgohloa in the Durban High Court in which he successfully restrained Woolworths from stopping him from trading at his franchise in KwaDukuza pending his intended application for leave to appeal against Judge de Beer’s judgment.
The dispute came before Judge de Beer in April when Ouderajh – through his company, Dula Investments – accused Woolworths of trying to bully him into shutting down the KwaDukuza shop, saying he was entitled to a five-year extension on his 10-year franchise agreement.
Woolworths said it would not extend the lease because of operational breaches to the contract.
In a judgment delivered on May 8, Judge de Beer found against Ouderajh, saying Woolworths should not be contractually “shackled” to him. He also referred to Ouderajh’s conduct in his dealing with Woolworths officials and said the principles of good faith and “ubuntu”, to which Ouderajh laid claim, were a two-way street.
In his affidavit in the interdict application before Judge Mokgohloa, Ouderajh said following the De Beer judgment, Woolworths had given him until the beginning of June to “wind down” and shut up shop.
He had then discovered an “unusual and disturbing” event, in that “Advocate de Beer SC” had accepted a brief to act against him in another, separate civil matter in the KwaDukuza Magistrate’s Court on May 6, 2013.
He now wanted the judgment nullified and believed he should be allowed to continue trading in the meantime.
In an interview with The Mercury last week, Ouderajh said the parties had agreed that the case should start afresh.
“We approached the judge president and obtained a new date in September. The case will be argued again on the present papers before a new judge,” he said.
Woolworths said, however, it had not yet made a decision on whether it would agree to the setting aside of the De Beer judgment.
“We are in consultation with our legal team. In principle, however, our view remains that Dula Investments did not fully meet the obligations of the franchise agreement.” – The Mercury
