MOYO
J: This is an application wherein applicant seeks an order in
terms of Section 24(13) of the Companies Act [Chapter 24:03].
Applicant is Veld Cliff Engineering (Pvt) Ltd t/a Firematic Consulting
Engineers. First Respondent is Firematic Consulting Engineers (Pvt) Ltd.
2nd and 3rd Respondents are directors in the 1st
Respondent. The facts of the matter which are not in dispute, are that 1st
Respondent used to be a director in the Applicant. 3rd
Respondent used to be an employee and a branch manager in the Applicant.
Since January 2005 the Applicant's company used the trading name Firematic
Consulting Engineers. On 17 July 2012, 1st Respondent was
registered. On 18 July 2012, 3rd Respondent resigned from the
Applicant. On 30 August 2012, 2nd Respondent resigned from the
Applicant. From 2005 the Applicant Company used the trading name
Firematic Consulting Engineers for all purposes as evidenced by Annexure A
being the VAT registration certificate with the Zimbabwe Revenue
Authority. Applicant's case is that 2nd and 3rd
Respondents registered a company in a name that the Applicant company is
trading in and they are engaged in exactly the same business that the Applicant
company is engaged in. Applicant contends that 1st
Respondent's name is thus likely to mislead the public and cause economic harm
to the Applicant. On the other hand, Respondents contend that Section 24
(13) of the Companies Act provides that “The court”, meaning applicant
should have proceeded by way of a court application not a chamber
application.” This view is incorrect as the definition of
court is not given in the Companies Act [Chapter 24:03] and in the High Court
rules, Order 1 Rule 3 thereof the rules specifically state that “in these
rules”, so that meaning can not be extended to a situation beyond the High
Court civil rules. It is in these rules that the definition of a court
application and a chamber application are given.
Respondents further contend that applicant has alternative remedies in the form
of either instituting an action of passing off, or proceeding in terms of
Section 24(7) as read with Section 24(10) of the Companies' Act [Chapter
24;03]. Respondents further contend that Applicant is not registered as
Firematic Consulting Engineers but that 1st Respondent is, therefore
Applicant has no claim whatsoever to a name they did not protect through
registration with the Companies office.
Section 24 (13) of the Companies Act [Chapter 24:03] provides as follows:-
“The
court may, at any time, on application by any person, order a company to change
its name within such period as may be specified by the court on the grounds
that the name of the company.
(a)
is likely to mislead the public or gives so misleading an indication of the
nature of its activities as to be likely to cause harm to the public, or
(b)
is likely to cause damage to any other person.”
Respondents contend that applicant has an alternative remedy either through the
common law action of “passing off” or in terms of Section 24(7) of the
Companies Act [Chapter 24:03].
Section 24 (7) of the Companies Act
provides as follows:-
If
the Registrar, after due enquiry and considering any evidence that may be
placed before him, considers that a company is registered whether originally or
by reason of a change of name, by a name which:-
(a)
in his opinion, is likely to mislead the public or to cause offence to any
person or class of persons or is suggestive of blasphemy or indecency, or
(b)
he considers to be in conflict with the provisions of this Section, or
undesirable for any other reason, he may order the company in writing to change
its name, and the company shall thereupon do so within a period of six weeks
from the date of the written order or such longer period as the Registrar may
see fit to allow:
Provided
that the Registrar may not make such an order if a period of more than 12
months has elapsed since the date of the registration of the company or the
change of name of the company, as the case may be.”
1st
Respondent was registered on 17 July 2012, this application was brought on 15
January 2013, well within the 12
months given to the Registrar to act in terms of Section 24(7) of the Companies
Act [Chapter 24:03].
It is the Respondent's contention that Applicant has not satisfied the
requirements of an interdict as they have an alternative remedy in terms of
Section 24(7) of the Companies' Act. In the case of ZESA staff Pension
fund v Mushambadzi SC 57/02 ZIYAMBI AJA (as she then was), stated the
requirements for a final interdict as follows:
(1)
a clear right which must be established on a balance of probabilities,
(2)
irreparable injury actually committed or reasonably apprehended.
(3)
the absence of a similar protection by any other remedy.
The applicant upon realising that the Respondents were then using a name that
is likely to cause it prejudice or harm, should have first sought to find
protection in the remedies available to it like Section 24(7) of the Companies
Act through lodging of a complaint with the Registrar as in seeking a final
interdict applicant would be expected to meet all the requirements of an
interdict, including the absence of any other protection.
Applicant's counsel unfortunately fails to address the third requirement for an
interdict, that is to say that Applicant did not have an alternative remedy at
the time that these proceedings were instituted.
In the answering affidavit, ad para 2.3 wherein the issue of the
availability of an alternative remedy was raised, applicant simply says:-
“This
is a matter which is so peculiar by the Respondent's apparent desire to mislead
the public through the case of Applicant's trading name that the Applicant had
no choice but to resort to the relief sought. Applicant reserves the
right to choose the most appropriate remedy and it is for the court not the
Respondent to determine whether or not such a remedy is sustainable at
law.”
Applicant's counsel, in his submissions does not address fully the aspect of
the non-availability of another remedy. Whilst the Applicant may have
satisfied the 1st two requirements for an interdict, as correctly
pointed out by CHATUKUTA J, in the case of Chirenje v Vendifin Investments
P/L and others HH 4/05, the Applicant has a duty to satisfy all the
requirements for an interdict, not some of them. It is the totality of
all the three requirements that would win the Applicant an interdict in this
court. Therefore, even if Applicant does satisfy the 1st two
requirements for a final interdict, but the third requirement of a lack of any
other alternative remedy is not satisfied. This clearly means that
the Applicant would have failed to show or prove before this court on a balance
of probabilities that he is entitled to the relief of a final interdict.
Refer to Mabhodho Irrigation Group v Kadye and others HB 8/03, L. R
Boshoff Investments Pty Ltd v Capetown Municipality 1969(2) SA 256 (c) at
267 A- F. This remedy does not fall within the mould of ordinary judicial
remedies.
Accordingly, I find that the Applicant has failed to show before this court
that he is entitled to the final interdict sought as he has not fully
challenged the availability of, nor averred the absence of an alternative
remedy. For this reason alone, this application accordingly fails.
The provisional order granted by this court on 16th January 2013 is
as a result discharged with costs.
Messrs. T.
Hara and partners,
applicant's legal practitioners
Messrs Moyo and Nyoni, respondent's legal practitioners
