Judgment No. HB 46/14

                                                                                                                             Case No. HC 509/14

TOPPERS UNIFORMS (PVT) LTD

Versus

HYDE PARK INVESTMENTS (PVT) LTD

And

TOTALLY UNIFORMS (PVT) LTD

And

AHMED HASSEN MOHAMMED ESAT

And

NKANI KHOZA

And

ZULEKA ESAT

IN THE HIGH COURT OF ZIMBABWE

MUTEMA J

BULAWAYO 7 & 13 MARCH 2014

H. Moyo for the applicant

N. Siphuma for the respondents

URGENT CHAMBER APPLICATION

            MUTEMA J:     The 1^st respondent owns a building formerly known as Toppers Building, situate at corner Fort Street and 13^th 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 1^st 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 1^st respondent.

            Upon retaking possession of the premises 1^st 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 [1^st respondent herein] shall not, directly or indirectly, after 31^st 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 1^st 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 4^th respondent on behalf of 1^st 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 2^nd respondent which is conducting the business of retailing school uniforms.  2^nd respondent is wholly owned by the directors of 1^st respondent.  What happens is that if a customer enters the premises enquiring about the displayed uniforms 1^st respondent’s staff refers the customer to Totally Uniforms across the road to buy.  This, according to applicant amounts to 1^st 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 2^nd 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 2^nd 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.      1^st, 3^rd, 4^th and 5^th 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 129 A Fort Street/13^th Avenue, Bulawayo.

2.      1^st, 2^nd, 3^rd, 4^th and 5^th respondents be and are hereby interdicted and prohibited from manufacturing, selling and advertising for sale in any manner whatsoever including referring customers to 2^nd 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 1^st 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 1^st respondent as plaintiff and applicant as defendant.  Further the parties in the summons in case number 8616/13 are only applicant as plaintiff and 1^st 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 1^st respondent only cannot ground lack of urgency and or alternative relief against the 2^nd – 5^th 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 4^th respondent’s letter on behalf of 1^st 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 4^th respondent is a common denominator as he is also a director of 1^st respondent.  It has not been disputed that 4^th and 5^th respondents are directors of 1^st respondent who also wholly own 2^nd 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