Ziphi Nkomo Consultants CC v Ziphi Nkomo One Labour Hire CC and Others (13281/2008) [2008] ZAGPHC 127 (30 April 2008)

10

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Case number: 13281/2008

Date: 30 April 2008

NOT REPORTABLE

In the matter between:

ZIPHI NKOMO CONSULTANTS CC Applicant

and

ZIPHI NKOMO ONE LABOUR HIRE CC First Respondent

ZIPHI NKOMO TRAINING SERVICES CC Second Respondent

MASAKANE FINANCIAL SERVICES (PTY) LTD Third Respondent

t/a ZIPHI NKOMO FINANCE

LJ PERSONEL MANAGEMENT (PTY) LTD Fourth Respondent

ZIPHI CLOTHING CC Fifth Respondent

LUCAS VAN DER MERWE Sixth Respondent

THE REGISTRAR OF CLOSE CORPORATIONS Seventh Respondent

JUDGMENT

______________________________________________________________

PRETORIUS J,

In this urgent application the applicant seeks urgent relief as follows:

“2. That the court issue a rule nisi returnable on 13 May 2008 calling on respondents to show cause why an order should not be issued on the terms set out in 3 below.

That pendent lite: -

First, Second and Fifth Respondents are directed to change their names alternatively that the said Respondents be directed to deregister;

First, Second, Third, Fourth, Fifth, Sixth Respondents and any legal person associated with Sixth Respondent be and are interdicted and restrained from passing off their products and services as being of Applicant or as being connected in the course of trade with Applicant by using in regard thereto a name, logo or get-up or any name; logo or get-up which is confusing or deceptively similar to that of applicant;

that the Court declare that the partnership referred to in paragraph 29 of the founding affidavit be and is hereby dissolved.

First, Second, Third, Fourth, Fifth and Sixth Respondents are directed to pay the costs of suit, jointly and severally, the one paying, the others to be absolved, on a scale as between attorney and client.

That the order in 3 above do operate as an interim order pending the return date.”

Applicant was registered on 13 March 1992 and was purchased by Mrs da Silva on 11 December 2001. There are only 2 members of the applicant being Mrs da Silva and Mr Jan Sello Modingwa.

On 26 November 2001 the pre-existing registered name of the Applicant was erroneously changed to “Ziphin Komo Consultants CC”.

On 12 December 2001 the error was corrected and the name changed to “Ziphi Nkomo Consultants CC” by CIPRO.

This name appeared on the letter heads of the applicant as can be seen from the attached letters, dated 2 and 3 April 2002 and 17 June 2003 which bear the name “Ziphi Nkomo” and the logo and symbols of the applicant. “Ziphi Nkomo” means “where are the cattle” and was created by Mrs da Silva and one Mr Patrick Motau, according to the applicant.

According to Mrs da Silva the applicant had at all times operated as a labour broker or temporary employment service. This entailed rendering a full payroll administration service, which includes sourcing and employing staff members in the name of the Applicant. Since 2001 the Applicant has been trading under the name and logo of Ziphi Nkomo Consultants CC and according to Mrs da Silva has developed substantial goodwill and a reputation under this name and logo.

Applicant employed Mr Van Der Merwe, 6th Respondent, and mr Wim de Lange to source and acquire new contracts from 2001 until 2004. Applicant entered into a joint venture agreement on 6 October 2004 with 6th respondent, and thus 4th respondent was born – LJ Personnel Management (Pty) Ltd.

This contract of joint venture / partnership, according to the Applicant, has to be rectified. The preamble, clause one, clause two, clause three, clause 4.6.1 are the clauses that should be rectified according to the applicant.

The name “Ziphi Nkomo” and other derivatives there of are the principal asset of the partnership, according to the applicant.

According to the Applicant this only vested in the joint venture / partnership pro tempore as it was only a loan to the joint venture / partnership.

This partnership / joint venture has now completely broken down according to the applicant, which fact is admitted by the sixth respondent.

There are numerous factual disputes on the papers, according to the respondent. The first dispute is whether the name “Ziphi Nkomo” was created by Mrs da Silva. Mr Van Der Merwe contends that, in any case, he has used “Ziphi Nkomo” as a brand name with the full knowledge of Mrs da Silva at all times.

A further dispute is whether the Shoprite contract belongs to applicant or to the fourth or sixth respondent. A further dispute by the sixth respondent is neither he nor mr de Lange were appointed as sales agents or representatives of the applicant.

The rectification of the contract is also strongly denied by the sixth respondent. According to the respondent the ownership of the name is in dispute and cannot be resolved on the papers without oral evidence.

The further contention by respondent is that the name Ziphi Nkomo Hub Guest House CC was used with the express consent of mrs da Silva on behalf of the applicant.

It is also in dispute who designed the insignia and distinguishing symbols of Ziphi Nkomo.

It is also denied that van der Merwe registered the second respondent without the knowledge of mrs da Silva on behalf of the applicant.

A further dispute is whether the first and fourth respondent’s are competing in the same field with applicant – respondent denies it.

Therefore counsel for the respondent requested the court to refer the matter for trial, as theses disputes are material and relevant to the use of the name Ziphi Nkomo.

In Moosa Bros and Sons (Pty) Ltd v Rajah 1975 (4) 87 (D&CLD) Kumleben J found:

“To summarise my conclusions on the legal arguments raised:

As a matter of interpretation, there is nothing in the language of Rule 6 (5) (g) which restricts the discretionary power of the Court to order the cross-examination of a deponent to cases in which a dispute of fact is shown to exists.

The illustration of “genuine” disputes of fact given in the Room Hire case at p. 1163 do not – and did not purport to – set out the circumstances in which cross-examination under the relevant Transvaal Rule of Court could be authorised. They a fortiori do not determine the circumstances in which such relief should be granted in terms of the present Rule 6 (5) (g).

Without attempting to lay down any precise rule, which may have the effect of limiting the wide discretion implicit in this Rule, in my view oral evidence in one or other form envisaged by the Rule should be allowed if there are reasonable grounds for doubting the correctness of the allegations concerned.

In reaching a decision in this regard, facts peculiarly within the knowledge of an applicant, which for that reason cannot be directly contradicted or refuted by the opposite party, are to be carefully scrutinised.”

In Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 on 235 Van Wyk J found:

“…where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant’s affidavits justify such an order… Where it is clear that facts, though not formally admitted, cannot be denied, they must be regarded as admitted.”

In Plascon-Evans Paints Ltd v van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) Corbett JA found on 634 and 635:

“It seems to me, however, that this formulation of the general rule, and particularly the second sentence thereof, requires some clarification and, perhaps, qualification. It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact (see in this regard Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163 - 5; Da Mata v Otto NO 1972 (3) SA 858 (A) at 882D - H). If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under Rule 6 (5) (g) of the Uniform Rules of Court (cf Petersen v Cuthbert & Co Ltd 1945 AD 420 at 428; Room Hire case supra at 1164) and the Court is satisfied as to the inherent credibility of the applicant's factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks…”

This court cannot find on the papers and evidence before it, that the factual disputes can be resolved in motion proceedings. It is quite clear that these disputes are real, relevant and material.

A rule nisi, as requested by the Respondent, will not solve the problem, as the factual disputes will remain and a court will not be able to make a finding on the papers.

After I have read all the papers, applicant’s heads of argument and listened to both counsel for the applicant and the respondent, I am of the opinion that this matter should be referred to trial as suggested by counsel for respondent.

I make the following order:

The application is referred to trial;

The notice of motion shall stand as a simple summons;

The answering affidavit shall stand as a notice of intention to defend;

A declaration shall be delivered within 20 days of this order;

The uniform rules of court thereafter apply;

Cost of the application is reserved for the trial court to determine.

______________________

Judge Pretorius (Ms)

Case number : 13281/2008

Heard on : 22 April 2008

For the Applicant / Plaintiff :

Instructed by : Wendy Swart

For the Respondent :

Instructed by :

Date of Judgment : 30 April 2008