Foize Africa (Pty) Ltd v Foize Beheer BV and Others (752/2011) [2012] ZASCA 123; [2012] 4 All SA 387 (SCA); 2013 (3) SA 91 (SCA) (20 September 2012)

Foize Africa (Pty) Ltd v Foize Beheer BV and Others (752/2011) [2012] ZASCA 123; [2012] 4 All SA 387 (SCA); 2013 (3) SA 91 (SCA) (20 September 2012)

The Supreme Court of Appeal held that the foreign jurisdiction and arbitration clauses in the licensing agreement did not oust the jurisdiction of the South African court. Such clauses are subject to the court's discretion and must be raised by way of a dilatory plea, supported by affidavit, which was not done by the respondents. The court found that the high court erred in refusing interim relief based solely on the existence of these clauses and in failing to appreciate that not all respondents were parties to the agreement. The appellant established a clear right to interim relief, as its contractual rights were being infringed or threatened. The court granted the interim interdict...

Citation
[2012] ZASCA 123
Parties
Appellant: Foize Africa (Pty) Ltd; Respondent: Foize Beheer BV; Respondent: Algemeen Beheer Nederland BV; Respondent: Foize Sales BV; Respondent: Paul van Oostveen; Respondent: Leonardus Maria Winder; Respondent: Norbert Wilmering; Respondent: Mertech Telecommunications (Pty) Ltd; Respondent: Foize Europe BV (formerly Foize Trading BV); Respondent: New Generations SMS (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
20 September 2012
Case Number
752/2011
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court, Pretoria
Outcome
Appeal upheld; interim interdict granted against first to sixth and eighth respondents; high court order set aside and replaced.
Judges
Mthiyane, Cloete, Heher, Shongwe, Leach
Legal Topics
Exclusive Licensing, Interim Interdict, Foreign Jurisdiction Clause, Arbitration Clause, Piercing Corporate Veil
Commercial and Corporate Civil Procedure Exclusive Licensing Interim Interdict Foreign Jurisdiction Clause Arbitration Clause Piercing Corporate Veil

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 11 Party arguments 2
Sign in to unlock

Parties

Foize Africa (Pty) Ltd

Appellant

Foize Beheer BV

Respondent

Algemeen Beheer Nederland BV

Respondent

Foize Sales BV

Respondent

Paul van Oostveen

Respondent

Leonardus Maria Winder

Respondent

Norbert Wilmering

Respondent

Mertech Telecommunications (Pty) Ltd

Respondent

Foize Europe BV (formerly Foize Trading BV)

Respondent

New Generations SMS (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court, Pretoria

Legal Issues

  1. 1 Whether the South African court has jurisdiction to grant interim interdicts despite a foreign jurisdiction and arbitration clause in the contract.
  2. 2 Whether the interim interdict should be granted against respondents who are not parties to the licensing agreement.
  3. 3 Whether the appellant established grounds for interim relief pending final determination of the action.

Ratio Decidendi

The Supreme Court of Appeal held that the foreign jurisdiction and arbitration clauses in the licensing agreement did not oust the jurisdiction of the South African court. Such clauses are subject to the court's discretion and must be raised by way of a dilatory plea, supported by affidavit, which was not done by the respondents. The court found that the high court erred in refusing interim relief based solely on the existence of these clauses and in failing to appreciate that not all respondents were parties to the agreement. The appellant established a clear right to interim relief, as its contractual rights were being infringed or threatened. The court granted the interim interdict...

Court Disposition

Appeal upheld; interim interdict granted against first to sixth and eighth respondents; high court order set aside and replaced.

Orders

  • The appeal succeeds, with costs.
  • The order of the high court of 13 September 2011 is set aside and substituted with an interim interdict against the first to sixth and eighth respondents, restraining them from granting licences or marketing, selling, or distributing the Foize on Mobile software in South Africa until 6 December 2014.