Commercial Law Index

Application focused on the poor conditions and lack of maintenance and repair of the roads network of the farming communities of the Eastern Cape and the socio-economic effects that follow. The applicants sought a structural interdict against the respondents which would have the effect of declaring them legally obliged to repair roads in the province, along with an order that the obligations be complied with and the submission of reports illustrating the steps to be taken to fulfil the obligations.

Upon objection by the respondents, the court considered whether a structural interdict was appropriate in such circumstances and whether a constitutional or statutory basis for seeking such an interdict existed. The court held that there was a constitutional and statutory basis for a structural interdict.

According to s 125(2)(a) of the Constitution the premier, along with the executive council, exercise executive authority through the implementation of provincial legislation, thus failure to repair roads meant that the rights to education and access to health care were indirectly affected. In addition, s 3 of the act encompasses an obligation to use power which rests only on the MEC or persons delegated thereby.

Accordingly, the application and draft order of the applicants were both substantially successful as time frames were included by the court. A comprehensive order is set out in para 48 of the judgement. The first and second respondents were ordered to pay costs of application, including all reserved costs.

The applicants sought a temporary injunction against the respondents implementing or enforcing regulations 3(1), 4(4), 20(1), and 20(2) of the National Council of Sports Regulations until the disposal of related litigation. The applicants sought to prevent the implementation of the regulations on the grounds that they were the result of illegal, irrational and unconstitutional action on the part of the Minister of Sports. Implementation of the regulations, it was contended, would irreparably affect the operations and fundamental rights of National Sports Associations.

The court set out the requirements for an injunction: unless granted, the damage occasioned would be such that an award of damages would not adequately compensate the applicant; the applicant must show that their case has a probability of success; if the court is in doubt, the application will be decided on the balance of convenience; and the applicant must prove that the aim of the injunction is to maintain the status quo until the determination of the whole dispute.

Whether there was a prima facie case with a probability of success, the court held that it must be satisfied the claim is not frivolous or vexatious, and that there is a serious question to be tried. The court found that this ground was met.

As regards the grounds of irreparable damages, the court held that the applicants succeeded on this ground. In terms of the requirement of balance of convenience, the term meant that if the risk of doing an injustice is going to cause the applicant to suffer, then the balance of convenience favours them to be granted the application. The court held that the applicant met their case and allowed the application on this ground. The applicant was granted the temporary injunction.

The court considered an application under 0.37 rr.1 and 9 of the Civil Procedure rules (S.1,65-3) for a temporary injunction restraining the defendant from carrying out any work on the suit premises. 

The applicant was the registered proprietor of the premises, although the leases had expired on the land, the title had not been cancelled. 

The court found that granting a temporary injunction is an exercise of judicial discretion and the purpose of the granting is preserving matters in status quo until the question to be investigated can be finally disposed of. 

The conditions for a grant of injunction are that there must be a prima facie (meaning on the face of it) case with a probability of success, if irreparable harm will be suffered which cannot be compensated adequately by an award for damages and if in doubt, it will be declined on a balance of convenience. 

Irreparable injury does not mean there must not be physical possibility of repairing the injury, but that the injury is substantial or material. 

The court found that if a prima facie case with a probability of success was proved, the plaintiff would be likely to suffer irreparable damages and the balance of convenience was in favour of the plaintiff as he was likely to suffer more damages than that of the defendant. 

Application granted. 
 

Trademark – Infringing mark resembles with the plaintiff’s mark – Infringement proved

The plaintiff was a registered owner of "Feathers" sanitary pads and claimed that the defendant imported "Featlhers" sanitary pads to be sold in Uganda. The court considered whether the plaintiff had exclusive use of a trademark which was infringed by importation and sale of a product.

The court held that s 36 of the Trade Marks Act grants exclusive use of a mark, which is infringed if a person who is not the owner of that mark uses it and causes confusion to average consumers. Civil proceedings may be instituted in terms of s 79(1). According to ss 79(3) and (4), the grant of an injunction does not affect a claim of damages, direct loss of sales and consequent loss of profits as well as the depreciation of the goodwill. Section 81(1) provides that one available form of relief is an account of profits to the plaintiff.

The court found that the plaintiff had exclusive use of the trademark. Despite the minor differences the goods were the same visually, conceptually, phonetically and belonged to the same class of goods. Therefore, concluded that the goods would likely confuse reasonable consumers. The defendants were guilty of infringement of the trademark by selling and importation of the sanitary pads. The plaintiff did not deal with the actual loss of sales, and no evidence was adduced to show that the counterfeit goods were circulating in Uganda.

The plaintiff's complaints were upheld. The court granted costs, ordered the destruction of the impounded goods, permanent injunction and general damages.

The applicant sought an order for a temporary injunction against the intended sale of a mortgaged property pending final disposal of a suit pending. The applicant's complaint was that his inability to service the loan was a result of the respondent's freezing of his account which made it impossible for him to perform his obligations under the credit facilities agreement.

The main issue was whether the applicant had established sufficient grounds to have the temporary injunction granted.

The court held that there were certain preconditions which a litigant had to meet before the court exercised its discretion to grant an application; for example demonstration that the applicant stood to suffer irreparable loss requiring the court’s intervention before the applicant’s legal right was established and proof of greater hardship and mischief suffered by the applicant if the injunction was not granted than the respondent will suffer if the order is granted.

The court also held that the conditions set out must all be met. Meeting one or two of the conditions will not be sufficient for the purpose of the court exercising its discretion to grant an injunction.

It is settled law that courts will only grant injunctions if there is evidence that there will be irreparable loss which cannot be adequately compensated by award of general damages. The court concluded that particulars of irreparable loss had not been given for the court's exercise of its discretion in the applicant's favour and so the application was dismissed.