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IN THE HIGH COURT
OF BOTSWANA HELD AT LOBATSE

UAHLB-000066-12

DATE:
01 APRIL 2013

IN THE MATTER
BETWEEN:

SIMPLY BOTSWANA
(PTY)
LTD………………………………………………………………………..APPLICANT

AND

GLOBAL MEDIA
INCORPORATION (PTY)
LTD………………………………………….RESPONDENT

Attorney Mr D. M.
Mthimkhulu for the Applicant

Attorney Mr B.
Molatlhegi with Attorney Ms A.M. Seru for the Respondent

RULING

TAU J.

1. This is an
application brought on urgency basis for an order in the following
terms:

a) That a rule nisi
to issue returnable on a date to be set by court for an order that:

i) This matter be
heard as urgent dispensing with the normal rules of service and
process.

ii) The continued
use of the name Simply Botswana duly registered and issued by the
Registrar of Companies by the Respondent be
declared unlawful.

iii) The court
grants an order interdicting the Respondent or any of its agents from
carrying out any operations and/or business
under the name Simply
Botswana.

iv) The Respondent
should not shut down its website www.simplybotswana.com, its face
book account with a facebook page going by
the name “Simply
Botswana” and any other forms of advertising using the name
Simply Botswana.

v) Respondent be
ordered to pay costs of this application on attorney and own client
scale.

2. The Respondent
field a notice to raise points in limine and they were couched as
follows:

a) The Applicant has
failed to demonstrate that the matter is urgent and therefore is a
candidate of Order 12 Rule 13 of the rules
of court.

(i) The applicant
failed to set out circumstances which demonstrate that it cannot be
afforded substantial redress at a hearing
in due course.

b) Ex facie
Applicant’s founding papers, the Applicant has failed to
demonstrate the Respondent’s locus and/or the inter
link
between the cause of complaint, the subject of the orders sought in
relation to the Respondent.

c) The Applicant has
failed to demonstrate that:

i) It has a prima
facie right in law

ii) Its right has
been infringed or is likely to be infringed by the Respondent.

iii) It is likely to
suffer irreparable damage if the interdict is not granted.

iv) The balance of
convenience favours the granting of an interdict.

3. The application
was argued on the 12th of December 2012 and I dismissed it with costs
and undertook to furnish reasons at a later
date. These are the
reasons.

4. The facts in
brief are that the Applicant is trading by the name Simply Botswana
(Pty) Ltd carries its business of manufacturing,
distribution and
selling of souvenirs for Botswana. The Applicant has launched a
facebook page which has attracted a number of
clients in order to
market itself. On the 16th November 2012, the Applicant’s
Directors found an advert strip on the Global
Post Newspapers
advertising that Simply Botswana provide online booking and
reservations and also sell premier arts and crafts
online. The
Directors call the number which appeared on the advert and it was
answered by a person who said Global Media Incorporation.
Upon
checking with the Registrar of Companies there was no other company
registered as Simply Botswana except the Applicant.

5. I will first deal
with the point on locus standi. The Respondent argued that there was
no link between Global Media and the company
complained of. The
Respondent said they had informed the Applicant about this, that the
fact that when the Applicant called the
number they found and the
person who answered said Global Media could not be stated as a fact
that she was infact watering for
Global Media especially as when the
Directors reached that office they did not find any sign that the
offices belonged to Global
Media.

6. Locus standi goes
to the substance of the Applicant’s entitlement to come to
court. Failing to establish locus standi renders
the proceedings
fatal because the issue of

locus standi goes to
the root of the validity of the legal proceedings. In Tsheto
Distributors v Botswana Breweries (Pty) Ltd and
Another [2001] 2 BLR
183 Lesetedi J said:

“An Applicant
or litigant who fails to make averments which are necessary to show
that he has locus standi does so at his
own peril for locus standi
forms the very basis upon which his presence before court draws its
life.”

7. The court also
said in Monaloukos v Ramacha [2010] 3 BLR 131 that:

“Establishment
of locus standi in any proceedings is of cardinal importance and
where a party fails to establish it that is
fatal to the
proceedings.”

See also Chindi and
another v Phala No and another 1993 BLR 126.

8. In the case at
hand the Applicants averred that they called the number they found on
the advert and the person who answered said
“Global Media”
and when they got to the offices they found the names Simply
Botswana. Upon close scrutiny of the allegations
made in the founding
affidavit. It is clear that the allegations which are crucial in the
determination of the issues before court
are based on hearsay
evidence which is inadmissible. The Applicant failed to file
confirmatory affidavits of the people who answered
to prove that
infact the Respondent is trading under the name Simply Botswana. The
Applicant has therefore failed to make averments
which are necessary
to show that the Respondent has locus standi. The applicant having
failed to establish locus standi of the
Respondent therefore the
proceedings are rendered fatal. On that point alone the proceedings
will be dismissed.

9. I will however
proceed to consider whether or not the Applicant have satisfied the
requirements of Order 12 Rule 12 (2) of the
High Court Rules.

10. On urgency, the
Applicant argued that the continued use of the name Simply Botswana
would cause confusion among members of the
public and affects the
good will and reputation of the Applicant. Applicant further said
that the use of the name has resulted
in loss of income to the
Applicant and would result in massive investors going down the drain
resulting in the Applicant being
saddled with huge debits. The
Applicant further said that as a result it will suffer substantial
prejudice through loss of profits
due to the confusion caused by the
use of the name Simply Botswana by the Respondent.

11. On a proper
reading of Order 12 Rule 12 (2) of the High Court Rules it is
evidence that for an Applicant to succeed under this
subrule, both
requirements stipulated therein must be satisfied, to wit, the
Applicant shall set forth explicitly:

a) The circumstances
which he or she avers render the matter urgent; and

b) The reasons why
he or she could not be afforded substantial redress at the bearing in
due course.

12. See Raisi v
Chairman Linkokwing University and another [2010] 3 BLR 171. The
Applicant has in my view not satisfied the requirements of Order 12
Rule 12 of the High Court Rules. The Applicant first discovered
the
advert on the 16th November 2012 and he only brought an application
on the 12th December 2012. If at all the continued use
of the name
resulted in loss of income and loss of investors he could have acted
promptly. The Applicant’s assertion that
the use of the name
affects its good will and reputation and that it would result in loss
of income is speculative and unsubstantiated.
On that basis the
alleged urgency is self-created. There is also nowhere in the
founding papers of the Applicant that reasons are
provided why the
Applicant cannot be afforded substantial redress at the hearing in
due course. As it is imperative for an Applicant
to comply with both
requirements, non¬

compliance angers
badly for the Applicant. I therefore find merit in the argument that
the Applicant’s apparent urgency is
self-created.

13. Even if my
conclusions on the issue of urgency were wrong, which in my view are
not, I am not satisfied that the requirements
of an interim interdict
have been met by the Applicant. The requirement are that the
Applicant must establish (a) a prima facie
right, though open to some
doubt (b) a well-grounded apprehension of irreparable harm if the
interim relief is not granted (c)
that the balance of convenience
favours the Applicant; and (d) that he has no other satisfactory
remedy. See Sidhu & another
v Singh & another [2010] 2 BLR
565.

14. Although the
Respondent conceded that the Applicant has a prima facie right due to
the fact that it is registered in Botswana,
it urges the court to
find that the Applicant has not satisfied the other requirements. I
find merit in the argument of the Respondent
because the Applicant
has only stated unsubstantiated allegations that it would lose its

reputation as
goodwill and income if the intention relief is not granted. Also the
balance of convenience could not favour it as
it has not established
the Respondent’s locus standi. As I indicated earlier it has
also failed to show that it has no other
satisfactory remedy.

15. In the
circumstances of this case I find that the Applicant has not proved
urgency and the application is therefore dismissed
with costs.

DELIVERED IN OPEN
COURT AT LOBATSE ON THE 01 DAY OF APRIL 2013.

T. TAU JUDGE

Masire Mthimkhulu
Attorneys – Legal practitioner for the Applicant

Monthe Marumo &
Co- Legal practitioner for the Respondent

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