About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2011
>>
[2011] ZAFSHC 210
|
|
Yung Shen Plastics v Yu Ta Bags CC and Another (2247/2011) [2011] ZAFSHC 210 (15 December 2011)
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Case No. 2247/2011
In the matter between:
YUNG SHEN PLASTICS
(Registration No 2007/025470/23)
….........................................................
Applicant
and
YU
TA BAGS
CC
( Registration No. 1999/007317/23)
….............................................
1
st
Respondent
TOPAZ DISTRIBUTION SERVICES
(Registration No. 2008/065163/23)
….............................................
2
nd
Respondent
JUDGMENT BY:
NAIDOO,
AJ
HEARD ON:
1
DECEMBER 2011
DELIVERED ON:
15
DECEMBER 2011
NAIDOO AJ
[1] The relief that the applicant seeks is the
enforcement of its copyright in certain works, as well as an
interdict restraining
the respondents from passing off products in
the applicant's get-up or which could be regarded as confusingly
similar to those
of the applicant. Mr B Knoetze represented the
applicant and Mr HJ Benade represented the second respondent. It is
evident from
the papers that the applicant pursued a number of
different legal remedies in order to obtain relief, namely a Mareva
Injunction,
an Anton Pillar order, institution of action by way of
summons and the present application (which preceded the action). The
relief
sought in the action was exactly the same as in this
application. Apart from the respondents in this application, there
was one
other party sued in the action. It appears that this
application did not proceed as the parties entered into settlement
negotiations,
with the result that the 2
nd
respondent filed a notice opposing
this application but did not file an opposing affidavit.
[2] From the papers it would appear that the
applicant and the first respondent initially concluded a settlement
agreement on
2 August 2011, one of the terms of which is that, upon
compliance with certain agreed terms, the applicant was prepared to
waive
its right to proceed with any claim against all defendants and
to withdraw pending lawsuits against such defendants. The second
respondent was included in the list of defendants so mentioned, but
was not a party to such an agreement. On 25 August 2011,
it seems
another settlement agreement was entered into between the applicant
and first respondent, as well as the third defendant
in the action,
Chin Hua Weng. The second respondent (the second defendant in the
action) was again, not a party to this second
agreement, which
superceded the eariier agreement and did not contain an undertaking
by the applicant not to proceed against
the other defendants or to
withdraw pending lawsuits against them.
[3] This application was served on the second respondent on 14 June
2011 and its notice of opposition was filed on 5 July 2011.
Settlement negotiations presumably took place thereafter, but no
indication is given in the papers whether these negotiations
included the second respondent, who appears to have had two firms of
attorneys (one in Bloemfontein and one in Pretoria) representing
it.
Default judgment was taken against the second respondent on 15
September 2011, but it seems that one of the attorneys representing
it filed a notice of intention to defend after judgment was taken,
which notice was subsequently withdrawn. The default judgment
against the second respondent appears to have been brought to the
attention of its attorney on 26 September 2011.
[4] In October 2011, the second respondent made
an offer to settle, which was not accepted by the appiicant.
Thereafter, on 10
November 2011, the second respondent declined to
increase its offer and attempts to settle the matter finally faiied.
The second
respondent, however, did not file its opposing affidavit
and on 22 November 2011, the applicant served a notice of set down
of
this application on the second respondent. The applicant's Heads
of Argument was filed on 29 November 2011 and on 30 November 2011
the second respondent filed an application for postponement of the
matter and for an order allowing it to file its opposing affidavit
by 12 December 2011.
[5] In its Heads of Argument, the applicant
indicated that it seeks only an order for costs of this application
as the other relief
was already obtained by way of the default
judgment. Mr Benade argued that the applicant should not be granted
costs in this
matter as it had already obtained judgment and an
order for costs in the action. He further argued that the
application for postponement should be granted in
order for the issue of costs to be properly ventilated. No
explanation was forthcoming
as to why the second respondent took no
action between 10 November 2011 (when settlement negotiations broke
down) and 22 November
2011 (when the notice of set down was
received), either to file an opposing affidavit in this application
or to launch an application
for rescission of the default judgment.
[6] In my view no purpose will be served in allowing a postponement
of this matter simply to argue the question of costs. The
applicant
is entitled to costs of this application, which are separate from
the costs of the action. In the absence of more convincing
reasons
for the delay, on the part of the second respondent, in filing an
opposing affidavit or in taking steps to rescind the
default
judgment, the court cannot come to its rescue.
[7] I,
accordingly, make the following order:
The Second Respondent is ordered to pay the costs of this
application.
S.
NAIDOO, AJ
Counsel for Applicant:
Adv
B Knoetze SC
instructed by:
Matsepes Incorporated
26/28 Aliwal Street
Bloemfontein
Counsel for the Resoondent: Adv HJ Benade
instructed by:
Botha Hefer incorporated
Property Park
60 Kellner Street- Suite B
Westdene
Bloemfontein