Business
Pick n Pay wins case against key franchisee over nearly R200m debt
- The Johannesburg High Court has ruled in Pick n Pay’s favour in the application it brought against a franchisee over a nearly R200 million debt.
- But franchisee, John. A Baladakis, is vowing to fight this and plans to appeal the judgment.
- His application for leave to appeal will be heard on Wednesday.
The Johannesburg High Court has ruled in favour of Pick n Pay in a case the JSE-listed retailer brought against one of its key franchisees over a nearly R200 million debt it is allegedly owed.
The judgment, which was handed down on Friday, also referred to some of arguments made in the legal case by franchisee John A Baladakis’s as “vague”, “frivolous” and “superficial”.
But Baladakis has vowed to fight back, saying in a statement on Sunday that he plans to appeal the court ruling that allows Pick n Pay to assume control of his stores, which generate annual turnover of more than R1.5 billion.
Baladakis, who has been a Pick n Pay franchisee for three decades and operates 10 supermarkets and nine liquor stores on the East Rand, said that Pick n Pay had already “begun to attempt to gain physical control of some of the stores” on Saturday, but that on the same day he delivered a notice of application for leave to appeal the judgment and order at the Supreme Court of Appeal.
The application, which will be heard in the Johannesburg High Court on Wednesday, “suspends the operation and execution of the order granted to Pick n Pay pending the outcome of the application and subsequent appeal”.
Baladakis, who is a past head of the Franchise Association of SA, said that, in effect, it meant the order cannot be enforced by Pick n Pay.
Contacted for comment, Pick n Pay spokesperson Tamra Veley said: “The court ruled in Pick n Pay’s favour and we respect both the court and their right to appeal.”
Ahead of the case being heard in court last week, News24 reported how Baladakis believed Pick n Pay’s implementation of a bulk discounting model six years ago put his franchise group in its current situation. In the initial reports News24 carried, Baladakis said the amount in question was R194 million. However, the amount mentioned in the court ruling was R188 million.
Baladakis told News24 previously he did not think the debt was lawful, so he decided to challenge it.
The ruling on Friday therefore came as a blow to him.
“We are extremely disappointed in the court’s ruling. Pick n Pay are attempting to forcibly gain control of our family-run business, which has been part of their success over the last three decades. The ruling was made despite the fact that the debt is a result of changes Pick n Pay itself made. Will continue to fight this matter with all the means at our disposal.”
He added the changes in the discounting model Pick n Pay introduced to its franchises in 2018 favoured sales volumes over margins and had caused financial distress and escalating debt in his business.
The changes employed by Pick n Pay in its franchised stores, according to Baladakis, had created an “unreasonable situation” contrary to the “contract the parties entered into”.
“We have done business with Pick n Pay based on a contract which provides for Pick n Pay to implement a franchise model that would allow both Pick n Pay and the franchisee to derive fair profits. This has not been the case in the past five years. We estimate Pick n Pay are generating average profits of over R100 million a year from our stores. We in turn, are losing millions a year.”
He said the dispute also raised questions about “potentially anti-competitive behaviour” on the part of Pick n Pay as it was the dominant supplier to his stores.
“We find it distressing that despite repeated attempts to resolve the debt situation between ourselves and Pick n Pay management, they have neglected to address it satisfactorily, and are pursuing an alleged debt which does not, in our view, exist. We believe there have been no breach events which could trigger Pick n Pay perfecting the debt and taking over the stores we have worked so hard to build.”
The court ruling on Friday, however, was critical of the arguments put forward in defence against Pick n Pay’s application.
As far as the debt Pick n Pay argued was owed to it, the court ruled that the respondent could not “delay the timeous and full payment of all and any monies due and payable under or in terms of agreements”.
It also said that “agreements must be complied and adhered to otherwise commercial ventures become imperilled”.
As far as the claim put to the court by Baladakis’s legal team was concerned, the court said there were two legs to it, the first being that the implementation of a new discount model by Pick n Pay in 2018 had resulted in the respondents “suffering extensive losses, which include loss of profits and additional indebtedness and interest yet to be qualified”.
The second aspect of the argument was premised on the provisions of the Competition Act which rested “on bad conduct on the part of the applicant in imposing fair, unreasonable or unjust prices”.
The court ruled that both causes of action were vague and the argument that had been presented was “superficial”.
It was particularly scathing of the argument put forward that Pick n Pay’s application contravened the Competition Act.
The court said the respondent had argued that should an order be granted in Pick n Pay’s favour, “the applicant would establish control over the business of the respondent’s as defined by the Competition Act”.
It added that Baladakis’s legal team argued that this would result in a merger between Pick n Pay and the respondent’s businesses and would therefore contravene provisions of the Competition Act “as a merger” necessitated a formal notification to competition authorities. The basis of this argument, it said was that this notification had not been delivered, and that the approval of the so-called merger had not occurred.
The court found though that Pick n Pay had demonstrated that following this argument no “security could be perfected without obtaining merger approval”.
“This would have a drastic consequence for commercial life in South Africa as the process of merger approval typically takes months to finalise in circumstances where perfection must typically take place on an urgent basis in order to protect the commercial interests of the security holder,” said the court.
The court said this “novel approach” to the Competition Act by Baladakis’s team was unsustainable, arguing that if a “sensible and business-like” approach was applied to the matter, the definition of merger is “intended to capture only those transactions that carry the potentiality of effecting long-lasting structural changes in the relevant markets”.
It said that imposing further restraints in the business world “unduly restrains freedom of trade and competition”.
“Say, for instance, a newcomer wants to do business with the applicant. The newcomer does not have financial resources but is given the opportunity by the applicant of credit, provided the newcomer pledges its immovable assets as security. Imposing merger authorisation by the competition authorities in the event of executing security would deter opportunities to such newcomers”.
The court ruled that “bearing in mind the financial resources” of the respondent as related in the answering affidavits and that the businesses involved millions of rands, this defence in terms of the Competition Act was “opportunistic and frivolous”.
In a world in constant flux, unpredictability has become the norm: socio-political shifts, the
increasing interconnectedness of multinational companies and ever-changing and expanding
body of laws and regulations means that compliance is becoming increasingly complex. As
such, governance, risk, and compliance (GRC) has become relevant now more than ever, and
artificial intelligence-driven technology is equipping organisations to make decisions in the face of uncertainty.
Months after acquiring big data software developer Pythagoria to intensify their data intelligence offering, legal-tech pioneer Afriwise has appointed GRC juggernaut Vishala Panday to champion product innovation and solutions around compliance to empower organisations operating in Africa to navigate complex legal and regulatory landscapes.
As the Head of Compliance Services, Panday’s expertise lies in the intersection of compliance,
technology, and organisational strategy. According to Panday, Afriwise is the next natural step in her career as it presents her with a significant opportunity to consolidate and utilise her diverse and multi-faceted experience to evolve GRC practices across African industries. “I was initially drawn to Afriwise’s client-centricity and commitment to cultivating the cutting edge of legal technology. Afriwise offers a powerful combination of proprietary legal and regulatory databases, AI, and expert analysis from top legal counsel and empowers African-operating businesses to make intuitive, meaningful decisions in real-time. I am excited to apply my depth of experience to develop tailor-made fit-for-purpose client solutions that add real and tangible value to business decision-making and risk mitigation.”
Panday believes that the value derived from structured data, artificial intelligence and
technology in the realm of regulatory compliance is intrinsic to business success. In order to
remain competitive, utilising technology to make quicker and better-informed decisions is a
business imperative. “Ethics and Compliance in business can err on the side of esoteric –
executive buy-in becomes less likely when the value is not explicit, tangible, or visible. My
approach to ethics and compliance is grounded in realism; GRC outcomes must be practical,
cost-effective, realistic to implement, and most of all, business-driven,” says Panday.
Many legal teams across the globe are becoming smaller and leaner, and conversely, the
regulatory landscape is ever-changing and growing. Most organisations do not have the luxury
of additional sets of hands to process reams of legal information in order to ultimately make
business decisions. Leveraging off of structured data and AI makes it possible for lean legal and compliance functions to evolve their roles into strategic business partners by delivering
practical, high-quality, and timely information to critical business stakeholders.
Prior to joining Afriwise, Panday enjoyed a decade-long tenure as Head of Ethics and Compliance at Barloworld Equipment, where she built an ethics and compliance function from scratch using a centre-led approach cutting across all of the African jurisdictions of operation. Within her first 12 months on the job, Panday rolled out an anti-corruption programme that included the management of the whistleblowing line, and investigations into ethical violations. This programme secured her the title of “Changemaker of the Year”, and she credits the ability to sink her teeth into a whole spectrum of ethical issues within a large corporate environment to her intuitive and practical approaches to compliance.
Panday’s non-traditional modus operandi is shaped by a culmination of understanding of
business best practice coupled with her foundational legal experience. “Early on in my career, I
learnt very quickly that assessing GRC through the lens of a traditional legal practitioner was
insufficient. Traditional legal practice means that the in-house counsel or legal advisor operates at arms-length of the core business environment, operating simply as a support functionary who generally advises reactively, rather than strategize with stakeholders proactively. In order to be effective in my role as a GRC functionary, I needed to become part of the business. To enhance her business and strategic acumen, Vishala went on to pursue a BCOM in Finance early on in her career, shortly after acquiring her LLB degree, and more recently, during 2022 completed an MPhil in International Business through the Gordon Institute of Business. It is this business acumen that provides me with a more practical approach to the application of ethics and compliance within corporate settings.
Steven De Backer, CEO and Founder of Afriwise says that Panday’s vision will pave the way
for even greater business success. “Vishala Panday is a highly regarded GRC professional and
it is a great privilege to have her on board to develop new and innovative products and help
evolve our compliance offering. Vishala is an individual of astute moral integrity with a wealth of knowledge; she will be a guiding force to not only transform how we do business but set a new standard for the industry at large. In many ways, she feels like Afriwise’s missing puzzle piece.”
CONTACT INFORMATION
Issued on behalf of Afriwise by:
Lauren Crooks
lauren@lockandkeyconsulting.co.za
+27 82 078 7199
ABOUT AFRIWISE
Leading provider of integrated legal and regulatory intelligence solutions in Africa
Afriwise is an award-winning legal intelligence platform, transforming and democratising access to legal and regulatory information across Africa and beyond. At Afriwise, we help organisations, whatever their size, advance their business in Africa and gain a competitive advantage by providing them with business, legal, and regulatory intelligence based on technology and human expertise.
Afriwise is the result of years of experience and trust building, through close
collaboration with firms across Africa, to give you easy and instant access to the expertise and
know-how you need about local markets on the continent. Our collaboration with over 150 law
firms on the continent is further testimony of our team’s deep links within Africa. By leveraging our unparalleled database, cutting-edge NLP technology, in-house expertise, and extensive network we help solve our clients’ most pressing legal and regulatory challenges.
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Website: www.afriwise.com
BMW, Jaguar Land Rover (JLR) and Volkswagen (VW) used parts made by a supplier on a list of firms banned over alleged links to Chinese forced labour, a US congressional report has said.
At least 8,000 BMW Mini Cooper cars were imported into the US with components from banned Chinese firm Sichuan Jingweida Technology Group (JWD), according to the report by Senate Finance Committee chairman Ron Wyden’s staff.
“Automakers’ self-policing is clearly not doing the job,” the Democrat Senator said.
Jaguar Land Rover told the BBC it “takes human rights and forced labour issues seriously and has an active ongoing programme of human rights protection and anti-slavery measures”.
BMW and VW did not immediately respond to requests for comment.
Mr Wyden also urged the US Customs and Border Protection agency to “supercharge enforcement and crack down on companies that fuel the shameful use of forced labour in China”.
The report added Jaguar Land Rover had imported spare parts which included components from JWD after the company was put on the banned list.
JLR said it has now identified and is destroying any stock it holds around the world that include this component.
In February, VW said thousands of its vehicles, including Porsches and Bentleys, had been held by authorities because they had a component in them that breached America’s anti-forced labour laws.
VW had voluntarily informed customs officials about the issue, the report said.
Congress passed the Uyghur Forced Labor Prevention Act (UFLPA) into law in 2021.
The legislation is intended to prevent the import of goods from China’s north-western Xinjiang region that are believed to have been made by people from the Uyghur minority group in forced labour conditions.
JWD was added to the UFLPA Entity List in December 2023, which means its products are presumed to be made with forced labour.
China has been accused of detaining more than one million Uyghurs in Xinjiang against their will over the past few years.
Authorities have denied all allegations of human rights abuses in Xinjiang.
“The so-called Uyghur Forced Labor Prevention Act by the US is not about forced labor but about creating unemployment. It does not protect human rights but, under the guise of human rights, harms the survival and employment rights of the people in Xinjiang,” Chinese Foreign Ministry spokesperson Wang Wenbin said.
“China strongly condemns and firmly opposes this. We will take measures to resolutely safeguard the legitimate rights and interests of Chinese enterprises.”
© BBC News
Sony Group (6758.T), said on Tuesday it sees operating profit growing 5% to 1.28 trillion yen ($8.2 billion) this business year with a boost coming from its image sensors.
Sony is a major supplier of image sensors for smartphones and that business is expected to book a 40% rise in operating profit on higher sales and lower costs.
The Japanese conglomerate said it would conduct a five-for-one stock split and buy back up to 2.46% of its shares worth 250 billion yen.
It sold 20.8 million PlayStation 5 units last year, narrowly missing its revised target of 21 million units issued in February following weaker-than-expected sales over the year-end shopping season.
Sony sees profits at its gaming business rising 7% in the current year due to smaller hardware losses as it sells fewer consoles, and higher sales from its PlayStation Plus subscription service.
Known as the inventor of the Walkman and the MiniDisc, Sony has transformed from an electronics manufacturer into an entertainment and technology juggernaut spanning movies, music and games and chips.
The Japanese tech conglomerate plans a partial spin-off of its financial unit with a listing in October 2025 in order to focus on its entertainment and chips units.
The gaming sector has been hit by a slowdown with Xbox maker Microsoft (MSFT.O), last week moving to shutter studios including Tokyo-based Tango Gameworks in the latest cost-cutting measures.
Sony said in February it would lay off 900 workers at its gaming business and shutter a London studio.
Sony Pictures last week sent a letter expressing interest in acquiring Paramount (PARA.O), with private equity firm Apollo (APO.N), Reuters reported.
A deal would create a formidable Hollywood studio with a share of around 20% of the North American box office.
In the year ended March, Sony recorded a 7% fall in operating profit, due to lower profits at its life insurance business. The result was in line with estimates.
© Reuters
Business
Eskom’s energy availability factor has breached the 70% as R53 million spent on diesel last week to power Open Cycle Gas Turbines
Electricity Minister Kgosientsho Ramokgopa stated on Monday that Eskom’s Energy Availability Factor (EAF) has breached the 70%, while just over R53.4 million was spent on burning diesel to power the Open Cycle Gas Turbines (OCGT) last week.
Eskom has consistently defended it’s use of OCTG’s, saying it was only being used during morning and evening peaks to meet high electricity demand when it is necessary.
The power utility says South Africa is currently in a load shedding free environment, not because they are burning diesel to keep the lights on, but because of their extensive maintenance programme and success of their Generation Operational Recovery Plan, which was initiated in March last year.
According to Ramokgopa, who spoke during a media briefing on Monday, the EAF has breached the 70% mark and is currently tracking at 70.78%. This is the first time the EAF has breached 70% since August 2021.
For the month-to-date, the EAF is at 64,34% and year-to-date (YTD) the EAF has reached 59,92%.
Load shedding has been suspended for 47 consecutive days during which time the OCGT usage has been lower than the same time as last year. Ramokgopa said between May 5 to 11, OCGTs were in use for just four days, with just over R53 million spent on diesel on those four days.
On Monday, R23.5 million was spent on diesel to power the OCTGs, R11.9 million was spent on Tuesday and Wednesday, and R6.4 million was spent on Thursday.
Eskom said that South Africa has been without load shedding due to the utility having sufficient generation capacity from a more reliable generation fleet and has denied reports in the Mail and Guardian that it was overusing its diesel-burning OCGTs.
In April this year, Eskom spent R1.1 billion on OCGTs, producing 167.8 Gigawatt hours (GWh).
This was about 60% less than April 2023, when a staggering R3.1 billion was spent to produce 470.22GWh, the utility said.
Ramokgopa said that the OCGT load factor for April 2024 decreased significantly to 6.8% compared to last year’s figure of 19.13%.
Eskom said that its diesel budget from May to June was R5.8 billion, and only R1.16bn had been spent as of May 9, 2024, or 19.7% of the total budget.
Generation performance
The minister said that consistently good performance has come from the Kusile, Lethabo, Majuba, Matla and Medupi power stations, and these stations have helped contribute to the EAF trend.
Eskom noted that Medupi and Lethabo, specifically, have achieved a YTD EAF greater than 70% (peaking at 87.6%,) by the end of March 2024.
In terms of stations showing an improved trajectory, the minister said that the EAF has been assisted by improving performance from the Arnot, Camden, Hendrina and Grootvlei power plants.
He said suspension of load shedding is driven by an improvement in coal fleet performance, supported by solar during the day.
On Friday, Eskom said in a statement that unplanned outages have reduced by 4,400MW since April 26, 2024, due to extensive maintenance.
“Eskom’s outlook for the winter period of 2024 states it will continue to strategically utilise its peaking stations, including OCGTs – these will be dispatched during morning and evening peaks to meet high electricity demand, when necessary,” Eskom said.
‘End of load shedding is in sight’
On Monday, President Cyril Ramaphosa praised the Energy Action Plan and said that the end to load shedding is in sight.
“It is too early to say that load shedding has been brought to an end. However, the sustained improvement in the performance of Eskom’s power stations, as well as the new generation capacity we have added to our energy system gives us hope that the end of load shedding is in sight,” Ramaphosa said in his weekly newsletter.
“A renewed focus by Eskom on maintenance and the return to service of several units is now showing results. Losses due to unplanned outages have reduced by nine percent between April 2023 and March 2024, adding the equivalent of 4,400MW of capacity to our national grid,” he added.
“Better maintained and more reliable power stations have increased the country’s EAF. The EAF has been above 60% since April, compared to 53% over the same period last year.”
Ramaphosa also praised Eskom’s leadership team and highlighted the work done by the power station general managers and their teams.
“The leadership, management and staff of Eskom, particularly the power station general managers and their teams, are to be commended for their efforts. The work of the National Energy Crisis Committee, which coordinates the response across government, has also been vital. The strong partnership with business and the support of other social partners has enabled the deployment of valuable resources and expertise,” he concluded.
© IOL
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