Shelter Incorporated (Private) Limited v Sheltersol Holdings (Private) Limited & 4 Ors

### Preamble
1
HH 628-18
HC 4906/17
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SHELTER INCORPORATED (PRIVATE) LIMITED

versus

SHELTERSOL HOLDINGS (PRIVATE) LIMITED

and

SHELTERSOL FINANCE (PRIVATE) LIMITED

and

SHELTERSOL PROPERTY DEVELOPMENT (PRIVATE) LIMITED

and

SHELTERSOL MANUFACTURING (PRIVATE) LIMITED

and

THE REGISTRAR OF COMPANIES, HARARE

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 19 July 2018 & 10 October 2018

Opposed Matter

K Kachambwa with Chingoma, for the applicant

Advocate T Mpofu, for the respondents

TAGU J: This is an application for change of name made in terms of s 24 (2) of the Companies Act [Chapter 24.03] as well as under the common law. The purpose of this application is basically to seek an order-

Directing the first to the forth respondents to change their registered names from their present names (Sheltersol Holdings (Pvt) Ltd, Sheltersol Finance (Pvt) Ltd, Sheltersol Property Development (Pvt) Ltd and Sheltersol Manufacturing (Pvt) Ltd respectively to such other names as do not contain the word “Shelter” in them.

Failing compliance with paragraph (a) above, that the fifth respondent be directed and authorized to delete the names of the first to the forth respondents from the register of company names.

An order interdicting the first to the forth respondents from utilizing trade and registered names containing the word “shelter” in them, and

An order that the respondents pay the applicant’s costs of suit.

The applicant alleges that it was incorporated in 1984 under the name Cyvern Clothing Manufacturing (Private) Limited. In 1999 it changed its name to Rutima Land Development (Pvt) Ltd. Then on 4 May 2007 it again changed its registered name from Rutima Land Developers (Pvt) Ltd to Shelter Incorporated (Pvt) Ltd and trading as Shelter Zimbabwe. In or around June 2016 it discovered that on 17 March 2015 the first to the forth respondents were registered under the names Sheltersol Holdings (Pvt) Ltd and Sheltersol Manufacturing (Pvt) Ltd respectively.

The applicant’s complaint is that s 24 (2) of the Companies Act [Chapter 24.03] provides that no person may register a company using a name which is identical to that of a registered company or one which resembles that of a registered company with the probability of deceiving the public.

In their opposition to the application the respondents took two points in limine. The first point in limine was that the applicant was not properly before the court. The second point in limine was that there are two other companies using the English word “Shelter” ahead of the applicant.

The applicant urged the court to dismiss the points in limine.

I will examine closely whether or not the points in limine have merit before I deal with the merits of the matter. If I find that the points in limine have merit that will be the end of the matter. In the event that I find that the points in limine have no merit I will proceed to deal with the merits of the case.

IS THE APPLICANT PROPERLY BEFORE THE COURT

The main basis upon which the application is based is that respondents’ conduct is in breach of the substantive provisions of section 24 (2) of the Companies Act [Chapter 24.03]. The section provides as follows:

“No name shall be reserved and no company shall be registered by a name which is identical with that for which a reservation is current or with that of a registered company or a registered foreign company or a private business corporation registered under the Private Business Corporations Act (Chapter 24.11) or which so nearly resembles any such name as to be likely to deceive unless the registered company or registered foreign company or private business corporation, as the case may be, is in liquidation and signifies its consent to the registration in such manner as the Registrar may require.”

Section 24 of the Companies Act is therefore, a self-contained code. It makes provisions for the remedies that exist should the allegation be made that a prior name registration has been violated. It provides that for any breach of s 24 (2) of the Act provisions of subsection 7 must be activated. Subsection 7 provides as follows-

“If the Registrar, after due inquiry and considering any evidence that may be placed before him, considers that a company is registered, whether originally or by reason of a change of name, by a name which –

In his opinion, is likely to mislead the public or to cause offence to any person or class of persons or is suggestive of blasphemy or indecency; or

he considers to be in conflict with the provisions of this section or undesirable for any other reason;

he may order the company in writing to change its name, and the company shall thereupon do so within a period of six weeks from the date of the written order or such longer period as the Registrar may see fit to allow,

Provided that the Registrar may not make such an order if a period of more than twelve months has elapsed since the date of the registration of the company or the change of name of the company, as the case may be.”

In my view the power to order change of a registered name on the basis that it is in conflict with a prior registration reposes in the fifth respondent. Thus if the applicant was genuinely aggrieved and wished to protect its prior registration as it alleges, it should have approached the Registrar and not this court. Subsection 9 guarantees the company affected the audi alteram partem before the registrar can make a decision. The registrar is therefore accordingly equipped with sufficient powers to conduct an enquiry to hear evidence and to make findings of fact. That is not primarily the role of this court. Subsection 8 on the other hand makes it clearer that if a subsection 7 order is issued and disobeyed, the matter assumes a criminal dimension and the company so disobeying must answer a charge in a criminal court. In terms of subsection 10 the Registrar is given the same powers as those of a Commissioner appointed in terms of the Commissions of Inquiry Act, and the effect of those provisions is to give the Registrar the same kind of powers as would be exercised by this court when hearing a civil matter. Lastly, subsection 11 provides more importantly that-

“Any person who is aggrieved by an order of the Registrar in terms of subsection (5) may appeal to a judge of the court who may refer the matter to court for argument.”

The point I am trying to bring home is that the matter can only come before this court pursuant to an appeal. There is no law or provision which allows applicant to approach the court in the first instance enforcing rights derived from prior registration. The applicant is alive to this fact because it cited the case of Veld Cliff Engineering Limited t/a Firematic Consulting Engineers v Firematic Engineers (Private) Limited & Ors HB- 20-14 where it was held that:		“The applicant upon realizing that the Respondents were then using a name that is likely

to cause it prejudice or harm, should have first sought to find protection in the remedies

available to it like Section 24 (7) of the Companies Act through lodging of a complaint

with the Registrar.”

Our courts therefore, insist on the exhaustion of these domestic remedies. In Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (SC) the court dealt with domestic remedies and noted:

“In Tutani v Minister of Labour & Ors 1987 (2) ZLR 88 (H) at 95D, MTAMBANENGWE J observed that where domestic remedies are capable of providing effective redress in respect of the complaint and, secondly; where the unlawfulness alleged has not been undermined by the domestic remedies themselves, a litigant should exhaust his domestic remedies before approaching the courts unless there are good reasons for not doing so. The same approach was applied by SMITH J in Musandu v Chairperson Cresta Lodge Disciplinary and Grievance Committee HH- 115-94 (not reported) ; and was referred to with approval by MALABA J in Moyo v Forestry Commission 1996 (1) ZLR 173 (H) at 191D - 192B. I respectfully endorse it.”

Similarly in Manyonda & Ors v Post & Telecommunications Corporations 1999 (2) ZLR 81 (HC) the following appears-

“Where domestic remedies provide effective redress in respect of the complaint and where the unlawfulness alleged has not been undermined by the domestic remedies themselves, the applicants should exhaust such remedies unless there are good reasons or special circumstances for applying to this court.”

In casu applicant should have demonstrated the existence of exceptional circumstances. It did not do so.

Equally the applicant was alive to the fact that the proviso to subsection 7 makes it clear that it must approach the fifth respondent within 12 months of the date of the registration of the offensive name. The offensive name went through a public statutory process which applicant did not object to. When one considers the emails and the internet content on which applicant places reliance, it is clear that applicant became aware of the respondents before the 12 months ran out. Indeed applicant also accepts that the respondents who hit the ground running ran a massive media campaign introducing themselves. Applicant accordingly had the time and opportunity to approach the registrar. It did not do so.

The proviso to subsection 7 says:

“Provided that the Registrar may not make such an order if a period of more than twelve months has elapsed since the date of the registration of the company or the change of name of the company, as the case may be.”

Applicant does not explain why this route was not followed. This strict compliance with provisions of subsection 7 cannot be dispensed with. Compare Mupamhadzi 2007 (1) ZLR 253 and Courtesy Connection (Pvt) Ltd & Anor v Mupamhadzi 2006 (1) ZLR 479. Anything done contrary to statute would be null and void- see Rateyiwa v Kambuzuma Housing Co-operative HH-52-07; Mavindidze v Mavindidze & Anor HH-43-10, Metro Western Cape (Pty) Ltd v Ross 1986 (3) SA 181 (AD) at 188-189, York Timbers Ltd v Minister of Water Affairs & Forestry & Anor 2003 (4) SA 477 (T).

For the above reasons the application can be dismissed on the basis that it is not properly before the court for failing to exhaust domestic remedies first.

ARE THERE TWO OTHER ENTITIES USING THE NAME SHELTER AHEAD OF APPLICANT?

The applicant was incorporated in the year 1988 under the name Cyvern Clothing Manufacturers (Private) Limited. It was only in the year 2007 that it changed its name to Shelter Incorporated (Pvt) Ltd and traded as Shelter Zimbabwe. The applicant accepts that well before its incorporation as Cyvern an entity which does its kind of business which is called Shelter Afrique had already been incorporated in the year 1985 although the respondents say it was incorporated in the year 1982. The applicant further accepts that in the year 2002 Dialogue on Shelter which is involved in the same kind of business came into existence some five years before it started using the same name Shelter Incorporated. Therefore in the business of property development applicant is the third entity to use a name which has the word “Shelter” as a component. The other two entities cited above have not complained.

In Nissan Motor Co. et al. v Nissan Computer Corp. et al. 378 F.3d 1002 (9th Cir, 2004).cert. denied (2005) the court is reported inter alia as having held;

“Because issues of fact existed as to whether Nissan Motor’s mark was in fact famous in 1991, the Ninth Circuit denied plaintiff’s motion for summary judgment on the dilution claim. In this regard, the Court noted, among other things, that the word Nissan was used as a trade mark or trade name for 190 businesses unaffiliated with plaintiffs, is a common Israel name, is the name of a month in the Jewish calendar, as well as the name of the month of April in Arabic.”

On this view the applicant in casu cannot claim exclusivity in the use of the English name “Shelter”. For this reason again this application is not properly before the court.

In the result I will uphold the points in limine and dismiss the application with costs on a higher scale since it amounts to an abuse of court process without dealing with the merits.

IT IS ORDERED THAT

The application be and is hereby dismissed.

The applicant to pay costs of suit on a legal practitioner and client scale

Dube, Manikai & Hwacha, applicant’s legal practitioners

Kantor & Immerman, 1st to 4th respondents’ legal practitioners