In Chambers in terms of r 32 (12) of
the Constitutional Court Rules, 2016.
URGENT APPLICATION FOR LEAVE TO APPEAL
AND INTERIM RELIEF
ZIYAMBI JCC:
[1] On 2 September 2016, the High Court (MTSHIYA
J) granted a provisional order in favour of the respondents in the following
terms:-
“IT
IS ORDERED THAT:
1.
The
1st, 2nd and 3rd respondents and any person
acting through them be and are hereby interdicted from infringing on the
applicant's Trademarks No. 1710/200 in Class 34 by using the name RG or any
packaging likely to deceive or cause confusion on or in relation to any of the goods
for which the marks are registered.
2.
The
1st, 2nd and 3rd respondents and any person
acting through them be and are hereby interdicted from passing off its goods
and the same RG by the use of the applicant's Trademark Registered No. 1710/200
in Class 34.
3.
The
1st, 2nd and 3rd respondents and any person
acting through them be and are hereby interdicted from infringing on the
applicants' copyrighted products by using similar or the same artistic works as
that on the applicants packaging for its Remington Gold cigarettes.
4.
The
1st, 2nd and 3rd respondents and any person
acting through them be and are hereby ordered to deliver to the applicants, for
destruction all products, packaging labels, posters, wrapping, advertising
matter or other materials in the possession of the respondents and any person
acting through them bearing them mark RG or so nearly resembling the trademark
of the applicants.
5.
The
1st, 2nd and 3rd respondents and any person
acting through them, be and are hereby asked to account to the applicants for
all gross sales generated by the “RG” brand within 7 (seven) days of the date
of this Order.
6.
1st,
2nd and 3rd respondents jointly and severally the one
paying the other to be absolved be and is (sic) hereby ordered to pay costs of
suit on legal practitioner and client scale.
INTERIM
RELIEF GRANTED:
That pending
finalisation of this matter, an Interim Order is hereby granted in the
following terms:
1.
The
1st, 2nd and 3rd respondents and any person
acting through them be and are hereby interdicted, with immediate effect, from
carrying out any launch of the RG brand in Zimbabwe on any date until the
matter is finalised.
2.
The
1st, 2nd and 3rd respondents and any person
acting through them be and are hereby interdicted, with immediate effect, from
trading in or otherwise marketing, distributing or selling any cigarettes
bearing the packaging likely to deceive or cause confusion on or in relation to
any of the goods for which the applicants mark No 1710/2000 in Class 34 are
registered without the leave of this Honourable Court.
3.
1st,
2nd and 3rd respondents and any person acting through
them be and are hereby directed to immediately recall all goods bearing the
packaging RG, identical thereto or resembling the applicants' registered mark
No. 1710/2000 in Class 34 from any of the outlets or its sales distribution
agents to whom it may have sold or delivered such products.
4.
The
Sheriff of Zimbabwe and/or his lawful Deputies be and are hereby authorised to
search for and remove to a storage facility all goods bearing the RG mark or
identical to or resembling the applicants' registered trademark No 1710/2000 in
Class 34 from the 1st respondent's premises at No. 40 Van Praagh
Avenue, Milton Park, Harare respectively or from where ever such goods are
located.
5.
1st,
2nd and 3rd respondents jointly and severally the one
paying the others to be absolves (sic)
including the Sheriff's fees for removal and storage.”
[2]
It will be seen that the interim relief
sought has the same effect as would the final order if granted. The interim Order has immediate effect.
[3]
The applicants appealed against the
order on grounds, inter alia, that
the copyright registered does not extend to the mark “RG” (the mark currently
being used on the 1st applicant's brand of cigarettes) and protects only the
mark REMINGTON GOLD. It was alleged that no evidence was placed before the
court as to the respondents' reputation or goodwill in the mark RG, which
evidence was essential for establishing the wrong of 'passing off'. The respondents however argue that RG is used on
their brand of cigarettes as a “nickname” in conjunction with the mark
REMINGTON GOLD.
[4] Meanwhile, the respondents sought and obtained
leave from the High Court to execute the interim order. MWAYERA J, on 19
September 2016, heard the application and granted the following order:-
“1.
The noting of the appeal by the respondent[s] jointly and severally, or anyone
of them, in respect of the provisional order granted under High Court Judgment
HH 517-16 shall not suspend the operation of the interim order.
2. Any appeal by any of the respondents
against this order can only be made with the prior leave of this Honourable
Court.
3.
The costs of this application shall be borne jointly and severally by the 1st,
2nd and 3rd respondent[s], the one paying the others to
be absolved.”
THE APPLICATION
[5] This application is brought as an urgent
chamber application for leave to appeal to the Constitutional Court against
para 2 of the Order of MWAYERA J on the grounds that the order, restricting as it
did the applicants' right of appeal, violates the applicants' constitutionally
protected right of access to the courts as enshrined in S 69 of the
Constitution. The applicants seek, by way of relief, the following Order:
“1. The operation of the order of the High Court
granted under case number HC 8318/16 be and is hereby stayed pending
determination of this matter and the eventual filing of applicants' appeal in
the Constitutional Court.
2. Applicants are granted leave to file an
appeal against the Order of MWAYERA J issued under case number HC 9057/16.
3. The applicants shall file their appeal with
the Registrar of the Constitutional Court within two (2) days of this order
being served upon them.
4. First and second respondents shall bear the
costs of this application.”
[6]
It
was stated in the certificate of urgency that:
“- By reason of
its violation of the applicants' right of access to the courts as protected by
s 69 of the Constitution, the order of MWAYERA J was invalid;
- The
grant of this application would have an effect on whether the possibly invalid
order is to be executed.
- The appeal, on the basis of which the
application was brought, had been withdrawn prior to the hearing of the matter
and that therefore the actual appeal which is now pending is not the subject of
any application;
- The relief sought cannot be afforded in terms
of the normal process otherwise any eventual grant of the application will be
hollow.”
[7]
Regarding
the propriety of the Order, the applicants alleged that although the chamber
application for leave to execute was served upon Messrs Atherstone & Cook
who are its legal practitioners of record and who had represented the applicants
in the main matter and noted the appeals from the order of MTSHIYA J, the
notice of set down for the hearing in chambers was served at the applicants'
place of business when the deponent to the founding affidavit was out of the country.
It is only at about 2pm on 13 September 2016, during the course of enquiry with
the clerk to MWAYERA J as to the progress in the matter, that the applicants' legal
practitioner became aware that the application was set down for 3pm on the same
date. The applicants' legal practitioner appeared before the Judge and
requested that the matter be deferred to secure counsel's attendance but this
failed and he was forced to present argument failing which the matter would be
dealt with as unopposed.
[8]
It was alleged, further, that the Order
was constitutionally invalid and the applicants stood to suffer closure of
their business and consequent loss of millions of dollars on the basis of that
invalidity.
[9]
The
Order, it was averred, was in breach of the provisions of ss 56 (1), 69 (2), 69
(3) and 69 (4) of the Constitution of Zimbabwe.
SUBMISSIONS
IN OPPOSITION
[10] The
application was opposed by the respondents who raised various points, in limine, the most pertinent ones being
that:-
- The
applicants should have exhausted domestic remedies namely, an appeal to the
Supreme Court; alternatively, the applicants ought to have proceeded in terms
of s 85 (1) of the Constitution.
- The
application was defective in that no affidavit by the applicants' legal
practitioners was attached in support of the averments made by the applicant.
DISPOSITION
[11] As I
understood Mr Mpofu's submissions, the Order of MWAYERA J was wrong.
However, even if the applicants were to appeal against it to the Supreme Court,
the relief of stay of execution would not be available to them in view of the
wording of the Order. Such relief, it was submitted, could only be granted by
this Court pending the determination of an appeal before it.
[12]
The
difficulty I have with the relief sought is that there are other remedies
available to the applicants. The sole reason advanced for bringing the matter
before the Constitutional Court is that the remedy of stay of execution which
is sought herein is not available in the High Court or the Supreme Court. I do
not think the reason advanced is adequate.
[13]
Decisions
of this Court have indicated that where there are other remedies available, an
applicant must pursue those remedies before approaching the Constitutional
Court. If the applicants' grievances may
be remedied by proceedings in another court, that is the route that the applicants
must take.
[14]
If,
as the applicants contend, the Order of MWAYERA J restricting their right of
appeal is wrong, the proper course is to appeal directly against that Order to
the Supreme Court. That Court would be in a position to deal with any interlocutory
applications pending the determination of the appeal before it.
[15]
In my view, no good reason has been
advanced as to why leave to appeal to the Constitutional Court should be
granted. While the criticism advanced against the propriety of para 2 of the Order
may contain some merit, there is, available to the applicants, another avenue
for the vindication of its rights.
[16]
The
application is, therefore, dismissed with costs.
Atherstone
& Cook, applicants' legal practitioners
Kantor & Immerman, respondents' legal
practitioners
