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[2016] ZAGPPHC 986
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Higher Education Transformation Network NPO Registration 116-851 v Thekisho and Others (19300/16) [2016] ZAGPPHC 986 (28 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Reportable:
No
Of
interest to other judges: No
Case
Number: 19300/16
Date:
28/10/2016
In
the matter between:
HIGHER
EDUCATION TRANSFORMATI ON NETWORK
NPO
REGISTRATION
1
1
6-851
Applicant
and
LUCKY
LEMPIDITSE
THEKISHO
First Respondent
HENDRICK
YINGWANE
MAKANETA
Second Respondent
EMMANUEL
LEKGAU
Third Respondent
TEBOGO
MOGSOANA
Fourth Respondent
HENDRICK
SEKEPE THOBEJANE
Fifth
Respondent
HIGHER
EDUCATION TRANSFORMATION NETWORK
NPC
REGISTRATION
2016046790/08
Sixth
Respondent
THE
COMMISSIONER: COMPANIES &
INTELLECTUAL
PROPERTY COMMISSION
Seventh
Respondent
MINISTER
OF TRADE &
INDUSTRY
Eight
Respondent
JUDGMENT
Swartz
AJ
[1]
The applicant seeks final interdictory relief against the first to
sixth respondents for
the
alleged unlawful and fraudulent usurping and public
misrepresentations committed by the respondents, using
the name and
trademark of the applicant. An
interim
order was granted against the respondents by this court on 1 April
2016.
[2]
The deponent to the affidavit on
behalf of the applicant, Reginald
Legoabe ("Legoabe"), avers that he is the Executive
Director of the applicant. The applicant is an independent
non-profit
network of graduates and alumni from various higher education and
further education institutions
in South
Africa, committed to the transformation of
higher education. Its aim is to collaborate
with government, tertiary
institutions, the private sector and developmental agencies to
improve access to and the quality
of education, amongst
other. The name and logo of the applicant is registered with the
Department of Trade and Industry.
[3]
The first and second respondents were co-founders and Board
members of the applicant, who were removed from the Board
of the
applicant on 23 January 2016. Legoabe avers that after the removal of
the first and second respondents from the Board of
the applicant,
they unlawfully and fraudulently applied for the trademark of the
applicant on 27 January
2016,
registered a non-profit company (the
sixth respondent) on 3 February 2016, using
the name and
trademark of the applicant and commenced misrepresentations
against the applicant. The applicant seeks a final
interdict against
the first to sixth respondents. It was submitted that despite the
interim order of 1 April 2016, interdicting
the respondents, it
continued to ignore the order.
[4]
The applicants submit that, should the application for final relief
not be granted, the applicant, its membership, trademark,
reputation
and its lawful Directors stand to be severely prejudiced. It is
exposed to the risk of litigation, due to
"fraudulent,
irresponsible and slanderous public statements being issued by the
first, second, sixth and seventh respondents
in its name". The
first respondent has been issuing press statements on behalf of the
applicant and issuing written correspondence
using a fraudulently
amended letterhead and trademark of the applicant to the applicant's
strategic stakeholders and partners.
Despite demand to desist, the
first, second and sixth respondents are continuing to act as though
they are the duly elected and
appointed officials of the applicants.
Over-and-above this, the first, second and sixth respondents "have
further proceeded
to fraudulently register a non-profit company
without the permission of the applicant's Board on 3 February 2016,
named Higher
Education Transformation Network".
[5]
In his answering affidavit on behalf of the respondents, Lucky
Thekisho ("Thekisho") submitted that there is a factual
dispute in the papers which cannot be ventilated or decided on paper.
He avers that the respondents are the legitimate leaders
of the
Network and that, Legoabe is neither a member nor an Executive
Director of the Network. It was submitted that the
matter be referred
to trial for oral evidence.
[6]
It is trite that, in order to succeed with an application for final
interdictory relief, the applicant must prove
conduct on the part of the respondent
which could either actually be taking place
or which is reasonably feared will
occur in future; the respondent's conduct
actual or
threatened, must be wrongful; the applicant should have no
other remedy and, for interim interdictory relief, the
balance of
convenience should favour the applicant. See in this regard,
Setlogelo v Setlogelo
1914 AD 221
at 227.
[7]
In my view, the answering affidavit of Thekisho is nothing but a bare
denial. In paragraph seven of the founding affidavit it
is submitted
that the first, second and sixth respondents have on 3 February 2016
fraudulently registered a non-profit company
unlawfully, similarly
named "Higher Education Network in a bid to provide a fraudulent
corporate veil designed
for public
misrepresentation and fraudulent transactions”. The
respondents have on 27 January 2016 applied
to register the existing
logo and trademark of the applicant. This was formally objected to on
22 February 2016. In
his answering affidavit Theklsho
unsuccessfully attempts an explanation and merely states that, in
essence, there was no malicious
Intent on his part.
[8]
The applicant has proven a dear right; that the conduct of the
respondents is wrongful , harmful; that they have no other remedy
and
that they face the real danger of irreparable harm should final
interdictory relief not be granted. I see no reason why this
matter
should be referred for oral evidence. There is no real dispute of the
relevant facts on paper.
[9]
In the result, the following order is made:
9.1
The rule
nisi
by Moseame AJ on 1 April 2016 is confirmed;
9.2
The decisions and/or any consequential
resolutions, commitments
and statements arising from the
respondent's "Extraordinary General Meeting" which was held
on 27
th
of February 2016 under the banner of the applicant
is permanently set aside.
9.3
The first to sixth respondents are permanently interdicted and
restrained from continuing
to incite:
9.3.1
the public;
9.3.2
existing and potential members of the applicant; and
9.3.3
publicly misrepresenting themselves as the lawful Directors of the
Higher Education Transformation
Network (NPO 116-851);
9.4
The
first,
second,
fifth
and
sixth
respondents
are permanently
i
n
terdicted
from the
continued
usage
of
the
unauthorized
HETN
Facebook
page
l
ocated
online at
h
ttps:/
/www.facebook.com/HETN-on-the-New
s-
1665771617934719/
.
9.5
The first, second, fifth and sixth respondents are permanently
interdicted from the
continued unauthorised public and private usage
and Issuing of media statements using the name and logo/trademark of
the applicant.
9.6
The first, second, fifth and sixth respondent are permanently
interdicted from holding
any further meetings and/or collection
of funds/resources in the name of the applicant.
9.7
The first to sixth respondents are permanently Interdicted from
utilizing the newly
registered non-profit company
(NPC) named Higher Education Transformation Network with a
registration no 2016
/046790/08 and interdicted from pretending
to act on behalf of the applicant.
9.8
The seventh and eight respondents are ordered to deregister the
non-profit company
registered as Higher Education Transformation
Network (HETN) under registration no 2016 /046790/08 registered on
the 3n1 of February
2016.
9.9
The seventh and eight respondents are ordered to deregister the
fraudulent trademark
application no 2016 /02178 lodged by the first
respondent on the 27
th
of January 2016.
9.10
The first, second and fifth respondents are ordered to pay the costs
of this application on the
party-and-party scale.
E.L.
SWARTZ ACTING
JUDGE
OF THE HIGH COURT
CASE
NO: 19300/16
HEARD
ON: 17 October 2016
FOR
THE APPLICANT: ADV. T. MOLEA
INSTRUCTED
BY: Erich H. Louw Attorneys
FOR
THE RESPONDENT: ADV. MATSETELA
INSTRUCTED
BY:
DATE
OF JUDGMENT: 28 October 2016