Consumer Watch

Wendy Knowler fights for your rights...

carmel-rickard
July 7 2011 at 11:20

First things first: I must declare the strong personal interest of my stomach in what follows. It’s the story of a dispute between two restaurant owners in Grahamstown, a dispute that, to most outsiders, amounts to little more than an expensive territorial spat.

To Judge Cecil Sangoni, the presiding officer in the Grahamstown High Court the issues involved were trite and insignificant, so much so that he took barely 12 pages to deal with the matter and then marked the decision “not reportable” – a convention indicating other judges are unlikely to find the matter of much interest and that it wouldn’t make the law reports.

For many residents of Grahamstown who need to eat out, however, the fate of every restaurant in that city is of great and immediate interest. I’ve just spent a term at Rhodes and quickly realised that if you’re after an urban-style café society it would be a good idea to look elsewhere – Franschhoek, for example. But Grahamstown is nevertheless food-obsessed.

It’s a city largely dependent on the local academic community, particularly pupils from schools and students from Rhodes University, and during term time that community needs to feed itself.

Perhaps it was the memory of many recent hungry lunchtimes and the inevitability of more to come next term that made me read the outcome of litigation between two restaurateurs in the city with more than usual attention.

The story concerns the old Bella Vita restaurant and B&B on High Street. Its owner, Antoinette Twynham, sold the business a year ago to Liza Caporossi, and as part of the deal the two women agreed on a restraint of trade. For the three years after the sale, Twynham was not to be involved in any capacity in any business “similar to that” of her old business; she agreed that she “(would) not compete with the Purchaser in any form of restaurant/coffee shop business” and stated that she regarded this as “reasonably necessary to preserve and to protect the goodwill of the business”.

Since then, however, there have been many changes. Caporossi has changed the name (now La Trattoria), the decor, the ambience – and the menu. Formerly, at the Bella Vita, patrons could choose between “oxtail, chicken, curry, brinjal bake, butternut, sweet potato, spinach, salads, desserts etc”; now, according to an interview with Caporossi in a local newspaper, La Trattoria offers “a menu of real Italian food made by real Italians from real family recipes”. 

Twynham has, meanwhile, opened a sushi bar called Twing in Peppergrove Mall along African Street, two streets down from High Street and just as convenient for students as La Trattoria. Caporossi objected and her lawyers wrote to Twynham saying she had to quit. In reply, Twynham’s attorneys argued that her Japanese-style sushi bar was not in competition with a self-proclaimed authentic Italian restaurant, so the restraint of trade did not apply.

They also argued that Bella Vita had been so completely changed that “nothing remains to be protected by the restraint”. 

In the view of the judge, however, despite the changes to Bella Vita/La Trattoria, it was still in the restaurant business, as was Twynham. According to its owner, Twing served meals, and even if a large part of the business was takeaway that “does not exclude it from the definition of a restaurant”, the judge said.

“There is no basis to exclude (Twynham’s) business from the effect of the restraint of trade clause, merely because (her) meals are of Japanese style and (Caporossi’s) meals are of Italian style.”

Adamant that the restraint applied and had to be honoured, the judge therefore ordered that for three years from the date of the sale, Twynham was banned from involvement in any activity “similar to the business of a restaurant or coffee shop” within 3km of Bella Vita/La Trattoria.

Since that judgment was delivered, Twynham has declared that she will appeal. As of this week, Twing was still operating in Peppergrove Mall and there was every sign that it was likely to continue at least until the appeal is finalised.

Grahamstown eateries have a precarious hold on life.

Whatever happens to the Twing appeal, Grahamstown’s other restaurant owners and the city’s hungry students – and staff – will be watching with interest.

 http://carmelrickard.posterous.com

 

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