Herps N.O. and Others v Ward and Others (10711/19) [2019] ZAGPPHC 1102 (7 March 2019)

Herps N.O. and Others v Ward and Others (10711/19) [2019] ZAGPPHC 1102 (7 March 2019)

The court found that exceptional circumstances existed justifying the institution of the application without prior demand, and that the applicants had acted in good faith. The documentary evidence and correspondence indicated, on the probabilities, that Neighbiz Holdings (Pty) Ltd was intended to be the proprietor of the copyright in the NEIGHBIZ Application. The requirements for an interim interdict were satisfied: the applicants established a prima facie right, irreparable harm was likely if the respondents proceeded, and the balance of convenience favoured the applicants. The court exercised its discretion to grant the relief sought, pending determination of the copyright ownership at...

Citation
[2019] ZAGPPHC 1102
Parties
Applicant: Francois Jeremias Herps, N.O.; Applicant: Andries Petrus Pretorius, N.O.; Applicant: Charmaine Herps, N.O.; Applicant: Aileen Marie Guest; Applicant: Cynthia-Ann Benzinger; Applicant: Clariss Vynessa Geogia Landman; Applicant: Peter Erich Benzinger; Applicant: Robert Paul Hoare; Respondent: Jennifer Ann Ward; Respondent: Kenneth Graves Cram; Respondent: Christie-Mari du Plessis; Respondent: John Louis Davis; Respondent: Neighbiz Holdings (Pty) Ltd; Respondent: Neighbiz SA (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 March 2019
Case Number
10711/19
Procedural Posture
Urgent Application / Interim Interdict Application Prior to Trial
Outcome
Interim interdict granted in favour of the applicants; prayers 1 to 7 of the notice of motion are granted. The order does not bar or serve as a defence to any damages claims by the respondents.
Judges
H.J Fabricius
Legal Topics
Derivative Action, Interim Interdict, Copyright Ownership, Companies Act Section 165, Balance of Convenience
Commercial and Corporate Intellectual Property Derivative Action Interim Interdict Copyright Ownership Companies Act Section 165 Balance of Convenience

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Parties

Francois Jeremias Herps, N.O.

Applicant

Andries Petrus Pretorius, N.O.

Applicant

Charmaine Herps, N.O.

Applicant

Aileen Marie Guest

Applicant

Cynthia-Ann Benzinger

Applicant

Clariss Vynessa Geogia Landman

Applicant

Peter Erich Benzinger

Applicant

Robert Paul Hoare

Applicant

Jennifer Ann Ward

Respondent

Kenneth Graves Cram

Respondent

Christie-Mari du Plessis

Respondent

John Louis Davis

Respondent

Neighbiz Holdings (Pty) Ltd

Respondent

Neighbiz SA (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Interim Interdict Application Prior to Trial

Legal Issues

  1. 1 Whether the applicants should be granted leave to institute proceedings in the name and on behalf of Neighbiz Holdings (Pty) Ltd under section 165(5) of the Companies Act.
  2. 2 Whether the requirements for an interim interdict have been satisfied to prevent the respondents from launching or infringing the NEIGHBIZ Application and its copyrighted works.
  3. 3 Who is the prima facie proprietor of the copyright in the NEIGHBIZ Application pending trial.

Ratio Decidendi

The court found that exceptional circumstances existed justifying the institution of the application without prior demand, and that the applicants had acted in good faith. The documentary evidence and correspondence indicated, on the probabilities, that Neighbiz Holdings (Pty) Ltd was intended to be the proprietor of the copyright in the NEIGHBIZ Application. The requirements for an interim interdict were satisfied: the applicants established a prima facie right, irreparable harm was likely if the respondents proceeded, and the balance of convenience favoured the applicants. The court exercised its discretion to grant the relief sought, pending determination of the copyright ownership at...

Court Disposition

Interim interdict granted in favour of the applicants; prayers 1 to 7 of the notice of motion are granted. The order does not bar or serve as a defence to any damages claims by the respondents.

Orders

  • Leave is granted to the applicants to bring proceedings in the name and on behalf of Neighbiz Holdings (Pty) Ltd under section 165(5) of the Companies Act.
  • Non-compliance with section 165(2) is condoned insofar as necessary.