URGENT
CHAMBER APPLICATION
MUTEMA
J: The 1st
respondent owns a building formerly known as Toppers Building,
situate at corner Fort Street and 13th
Avenue, Bulawayo [the premises].
Applicant
leased the premises for several years carrying on the business of
manufacturing and retailing school uniforms and other items of school
wear. During that period applicant was wholly owned by the directors
of 1st
respondent.
In
about 2007 the then directors of applicant sold their entire
shareholding in the applicant to applicant's current directors, viz
Mohamed Zakariya Patel and Daud Isa Patel. The business was sold as a
going concern.
The
parties also concluded a restraint of trade agreement wherein it was
agreed that the former shareholders would, for a period of five
years, not engage in any school uniform manufacture and retail in
competition with the applicant.
The
applicant continued trading from the premises under a five year lease
agreement.
Subsequently,
the parties got embroiled in several acrimonious legal battles whose
culmination was the conclusion of an out of court settlement on 30
October, 2012 which was imbued with a Magistrates' Court order –
annexure “B”.
Pursuant
to paragraph 1 of the consent order, applicant vacated the premises
on 31 January 2014 and handed over the premises to 1st
respondent.
Upon
retaking possession of the premises 1st
respondent immediately put on display in the shop windows various
types of uniforms for different schools in alleged direct
contravention of the terms of paragraph 5 of the consent order,
annexure “B”.
That
paragraph 5 reads as follows:
“5.
The plaintiff [1st
respondent herein] shall not, directly or indirectly, after 31st
January, 2014 and on the entire property described in paragraph 1
above, sew and/or sell school wear and/or raw materials thereof or
school related products for a period of 5 years from 31 January 2014.
…”
Alarmed
by this development, applicant's legal practitioners wrote a letter
to 1st
respondent protesting at the unlawfulness of its actions and
demanding that it removes the displayed uniforms from the shop
windows.
This
letter was responded to by 4th
respondent on behalf of 1st
respondent on 6 February, 2014 stating inter
alia that they were
only displaying the uniforms and not selling them so therefore there
was no contravention of paragraph 5 of the consent order.
Applicant,
however, contends that the real reason for displaying the uniforms is
that across the road from the premises there is a shop called Totally
Uniforms owned by 2nd
respondent which is conducting the business of retailing school
uniforms.
2nd
respondent is wholly owned by the directors of 1st
respondent.
What
happens is that if a customer enters the premises enquiring about the
displayed uniforms 1st
respondent's staff refers the customer to Totally Uniforms across
the road to buy. This, according to applicant amounts to 1st
respondent directly and indirectly manufacturing and selling school
uniforms in breach of paragraph 5 of annexure “B”.
Further,
the applicant contends, the premises are well known and generally
associated with the manufacture and sale of school uniforms of
virtually all schools in Bulawayo and the Matabeleland region if not
throughout the country. The mention of the name Toppers is naturally
linked to the premises. The name Totally Uniforms is displayed boldly
and prominently in red on 2nd
respondent's premises. The name somewhat resembles applicant's
trading name Toppers Uniforms.
What
the respondents are doing is all intended to hoodwink the school
uniform buying public into thinking that applicant is still operating
from the premises and that 2nd
respondent is somehow associated with applicant – some form of
passing off.
The
foregoing is the reason why applicant filed the urgent chamber
application whose interim relief sought is:
“Pending
the finalization of this matter, applicant is granted the following
interim relief:
1.
1st,
3rd,
4th
and 5th
respondents be and are hereby ordered and directed to remove all
school uniforms and any other type of school wear on display in the
shop windows of or anywhere inside the premises formerly known as
Toppers Building situated at 129A Fort Street/13th
Avenue, Bulawayo.
2.
1st,
2nd,
3rd,
4th
and 5th
respondents be and are hereby interdicted and prohibited from
manufacturing, selling and advertising for sale in any manner
whatsoever including referring customers to 2nd
respondent any school wear, raw materials or any school related
products from the aforesaid premises.”
Mr
Siphuma,
who said was standing in for Mr Lubimbi
who is seized with
the matter but is still at the Lupane Magistrates' Court, said his
instructions were to raise the point in
limine that the
matter was not urgent for the following reasons:
Applicant
once filed an ex parte
application in the Magistrates' Court on 20 May, 2012 in case
number 2721/12 wherein it was alleged that some of the respondents
herein had violated the court order granted by consent (annexure
“B”). That application was dismissed on 12 November, 2013.
Thereafter applicant issued summons in the Magistrates' Court under
cover of case number 8616/13 against 1st
respondent herein raising the same issues. That litigation is still
pending and is at plea stage of the pleadings.
In
the event, applicant is precluded from approaching this court three
months after the plea was filed alleging that the matter is urgent.
Applicant
deliberately omitted to disclose this information in its founding
affidavit thereby hiding lack of urgency in the matter by omission.
Also,
in paragraph 34 of its founding affidavit, applicant avers that it
has no alternative remedy yet the summons alluded to above constitute
an alternative remedy.
I
must say that the timing of the raising of the point in
limine was a poor
technique in litigation on the part of Mr Siphuma.
A
point in limine
must be timeously raised even where no opposing papers have been
filed such as in casu.
One cannot raise it after the other party had finished making
submissions on the merits.
Be
that as it may, the point in
limine is
ill-conceived.
If
the ex parte
application alleged to have been dismissed was under cover of case
number 2721/12 as stated by Mr Siphuma,
then that averment cannot be true because that case number relates to
the consent order granted on 30 October, 2012 (annexure “B”).
That order does not exhibit dismissal of any ex
parte application.
Over
and above that, the parties in that suit were only 1st
respondent as plaintiff and applicant as defendant.
Further
the parties in the summons in case number 8616/13 are only applicant
as plaintiff and 1st
respondent as defendant and the cause of action therein is hinged on
alleged contempt of court of the consent order of 30 October, 2012
(annexure “B”).
The
allegations therein are that defendant breached the consent order by
leasing part of the premises to As Busy As A Bee and Tamara Fashions
which entities were into manufacturing of school wear.
That
relief sought against 1st
respondent only cannot ground lack of urgency and/or alternative
relief against the 2nd
– 5th
respondents cited in the present application. The respective reliefs
being sought in the two instances are totally disparate in nature and
the harm alleged in the present application being of a continuing
nature, the point in
limine has no leg to
stand on.
Now
regarding the merits, the requirements for the granting of a
temporary or interim interdict are trite. They are that:
1.
the right sought to be protected is clear; or
2.(a)
if it is not clear, it is prima
facie established,
even though open to doubt; and
(b)
there is a well-grounded apprehension of irreparable harm if the
relief is not granted and the applicant ultimately succeeds in
establishing his right; and
3.
the balance of convenience favours the grant of the relief; and
4.
there be no other satisfactory remedy.
See
Enhanced Communication
Network (Pvt) Ltd v
Minister of
Information, Posts & Telecommunications
1997 (1) ZLR 342 (HC).
I
am satisfied in casu
that from a reading of paragraph 5 of annexure “B” as read with
what applicant alleges respondents are doing (which respondents have
not meaningfully challenged – in fact 4th
respondent's letter on behalf of 1st
respondent does not at all dispute the display of school uniforms at
the premises), the right sought to be protected is quite clear, let
alone prima facie
established and a well-grounded apprehension of irreparable harm is
exitant if the relief is not granted.
Two
legal concepts arise from the applicant's allegations namely breach
of restraint clause agreement and passing off.
Regarding
restraint of trade, respondents' interpretation of paragraph 5 of
annexure “B” is too simplistic and narrow.
They
say paragraph 5 of annexure “B” restrains sale of school uniforms
but they are only displaying and that is not selling.
From
what applicant is alleging there will be need for the court to invoke
the Mischief of Rule of statutory interpretation in order to get
behind the mischievous smoke screen created by the respondents.
The
respondents surprisingly remained mum on why they would indulge in
displaying those school uniforms in the display windows if they are
not doing so for sale. What benefit would they derive out of that?
Certainly the likelihood of fooling the general public into thinking
that applicant is still operating from the premises to its
irreparable financial prejudice, having paid $300,000 for goodwill
when purchasing the business, cannot be discounted.
The
CR 14 produced by Mr Siphuma
shows that 4th
respondent is a common denominator as he is also a director of 1st
respondent. It has not been disputed that 4th
and 5th
respondents are directors of 1st
respondent who also wholly own 2nd
respondent.
So
the contention that some of the respondents cited in this application
were mis-joined is a lame duck.
In
Saybrook (1978) (Pvt)
Ltd and Anor v
Girdlestone
1986 (2) ZLR 185 (SC) the court held that it must be satisfied in
respect of passing off, that the conduct complained of is calculated
to pass-off other goods as those of the complainant or at least to
produce confusion in the minds of probable customers as would likely
to lead to the other goods being bought for the complainant's.
In
casu the conduct
complained of by applicant seems to have that likelihood.
Regarding
the balance of convenience, it clearly favour the grant of relief
sought.
The
respondents stand to lose nothing if the relief is granted if they
are surely not embarking upon the conduct complained of while on the
other hand, if the relief is refused, the applicant would suffer
immeasurable financial prejudice that is difficult if not impossible
to quantify.
I
have already dealt with the fourth requirement relating to absence of
satisfactory remedy above so it should not detain me by regurgitating
it.
In
the result, I am satisfied that the applicant has succeeded in
establishing the requirements for an interim interdict. The
application is accordingly granted with costs.
Messrs
Moyo & Nyoni, applicant's legal practitioners
Kenneth
Lubimbi & Partners, respondents' legal practitioners
