Mike Kapesa and Shadreck Honde and Jeremiah Mabhosvo and Cloud Mutanho v Odious Makoma and Fungayi Nyadowa and Ephraim Nyadowa and Allain Grand

### Preamble
1
HH 422-12
HC 7900/11
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MIKE KAPESA

and

SHADRECK HONDE

and

JEREMIAH MABHOSVO

and

CLOUD MUTANHO

versus

ODIOUS MAKOMA

and

FUNGAYI NYADOWA

and

EPHRAIM NYADOWA

and

ALLAIN GRAND

HIGH COURT OF ZIMBABWE

MUTEMA J

HARARE, 26 July 2012.

Opposed Application

C.Chinyama, for the applicants

M.Nkomo, for the 1st, 2nd and 3rd respondents

No appearance for the 4th respondent

MUTEMA J:	What happened prior to this application is briefly this:

In case number HC 2795/11, the first three respondents herein obtained a provisional order on 21 March, 2011 against the fourth respondent herein which inter alia provided that “pending the finalization of the applicants’ claim against the respondent, the respondent be and is hereby barred and interdicted from making or selling an (sic) offering for sale or exporting any and all of the articles listed in the schedule hereto attached.” The provisional order was confirmed on 4 April, 2011.  The effect of it was to authorise the deputy sheriff to retain the listed items in his possession, thus interdicting the fourth respondent herein and his agents from continuing with the alleged infringement of the first three respondents’ copyright in the contentious artefacts (the listed items)

pending determination of copyright ownership in case number HC 4018/11 which has since been instituted.  The fourth respondent herein’s agents include the four applicants herein.  The applicants in casu have applied for a joinder as parties in HC 4018/11.

It is pertinent to note that in HC 2795/11 applicants herein deposed to supporting affidavits in support of the fourth respondent in casu’s notice of opposition and opposing affidavit.  This is also confirmed in para 6 of first applicant’s founding affidavit in the instant case.

The four applicants in this case want an order to the effect that the order granted under HC 2795/11 be and is hereby rescinded with costs being borne by the first to third respondents.  The basis of the draft order sought is said to be order 49 Rule 449 (1) (a) and (b) of this court’s civil Rules 1971.  The contention is that, the first to third respondents intentionally decided not to cite the first to fourth applicants in HC 2795/11 as parties even though the respondents knew that the applicants would be affected by the provisional order, resulting in that order being erroneously granted in applicants’ absence.  Further, so the contention went, the first to third respondents, in HC 2795/11 perpetrated a fraudulent non-disclosure of material facts which if they had been brought to HLATSHWAYO J’s attention, the interim order would not have been granted.

Whilst it is difficult to fully comprehend the alleged material facts, the scanty ones can be gleaned from para 12.1 of first applicant’s founding affidavit.  It avers that “The third and fourth applicants started to do small birds and small birds on stick in 2002 as appears on orders from fourth respondent to the third and fourth applicants.  The third and fourth applicants would work on these artifacts per design given to them by the fourth respondent and to the fourth respondent’s satisfaction.  They were producing red robbins, red tail, sitelle, momusou single and on sticks from 2002-2006.  Thereafter, the fourth respondent opted for bigger pieces and he gave the small pieces to the second respondent to produce small birds and second respondent would do these small birds again per fourth respondent’s design and specification.  The fourth respondent in fact gave the template to the second respondent.”

The applicants, in the peroration of their argument stated that the interim order impacted on them negatively in the sense that they can no longer do any work and can no longer supply on order, to the fourth respondent creations which do not at all belong to the first to third respondents.

The fourth respondent herein adopted a watching brief and undertook to abide by the decision of the court.

Now, Rule 449 (1) (a) and (b) provides:

“(i) The court or a judge may, in addition to any other power it or he may have, mero

motu or upon the application of any party affected, correct, rescind, or vary any

judgment or order-

That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission.”

I am not persuaded at all that Rule 449 (1) (a) and (b) is applicable in casu.  Firstly if one closely looks at the operative part of the Anton Piller order by HLATSHWAYO J, viz para 10, it clearly demonstrates two aspects.  It is an interim order pending the determination of an action for alleged infringement of copyright on the merits.  The determination of that action will be done in case No. HC 4018/11, which at the time of hearing of this application was at the stage of awaiting pre-trial Conference date.  In para 10 of first applicant’s founding affidavit, the applicants confirm that they have since applied for a joinder in that matter.  The Anton Piller order complained of was simply meant to curtail the risk of continued alleged

infringement of the copyright pending the finalization of the main matter on the merits.  There was therefore no need to cite the applicants in the interim order.  Since the applicants are now parties in the main matter, they shall have their day in court.

Secondly, para 10 of the interim order is unequivocal as regards who it operates against.  It is only the fourth respondent who was/is barred from making, selling, offering for sale or exporting the allegedly infringing artifacts pending determination of the main matter.  The fact that the applicants were employed by the fourth respondent to perpetuate the alleged infringement did not warrant their citation as parties in the provisional order sought.  In his opposing affidavit in case number HC 2795/11 the fourth respondent made no secret that he has employed/contracted about 50 sculptors who produced his designs using his material.

Regarding the allegation of fraudulent non-disclosure of material facts by the first to third respondents, I find this both naïve and idle.  Paragraph 12.1 quoted above is limited to only the third and fourth applicants and second and fourth respondents.

It therefore has no bone to chew with the first and third respondents.  And first and second applicants are not on the radar.

Even then, the averments therein do not tell the court that the third and fourth applicants were the designers of the artifacts but the fourth respondent was.  The issue before HLATSHWOYO J was that it was the fourth respondent who was allegedly infringing the first to third respondents’ copyright and that some other people were making the disputed artifacts on behalf of fourth respondent.  The order made does not affect applicants in their personal capacities but only affects them as agents or employees of fourth respondent.

At the end of the day the pith of the subject matter in case number 2795/11 had nothing to do with the applicants to warrant their citation.  The court in that case was quite aware via the pleadings filed that there were other people being used by fourth respondent in the alleged infringement of first to third respondents’ copyright.  There was not a jot or tille of fraudulent non-disclosure of material facts by the first to third respondents which if they had been placed before the court the Anton Piller order would not have been granted.  Over and above that the contention of the alleged non-citation of the applicants is puzzling to say the least.  I say so because the applicants knew about the urgent chamber application and relief it sought and its consequential impact on them.  But what did the applicants do?  They decided to depose to supporting affidavits in support of fourth respondent’s opposition of the application.  That was in March, 2011 and five months later in August, 2011 they thought it wise to lodge the current application for rescission of the provisional order confirmed in April, 2011 whose requirements in the grant and confirmation the first to third respondents had satisfied.  The bottom line is that the applicants are in effect seeking to have the interdict against fourth respondent rescinded which basically amounts to challenging the relief granted to first to third respondents on behalf of the fourth respondent.  This the court cannot allow.

In the result, the application has no shred of merit and it is hereby dismissed with costs on the scale of legal practitioner and client.

Chinyama and Partners, applicant’s legal practitioners

Donsa Nkomo and Mutangi Legal Practice, 1st to 3rd respondents’ legal practitioners

Venturas and Samkange, 4th respondent’s legal practitioners