Moroka Swallows Football Club Ltd v the Birds Football Club and Others

• Jurisdiction: South Africa
• Judge: Stegmann J
• Judgment Date: 30 January 1986
• Citation: 1987 (2) SA 511 (W)
• Court: Witwatersrand Local Division

Stegmann J:

This is an application for an interdict pendente G lite. The applicant is a duly incorporated company. It has a team of professional soccer players who play in the National Soccer League (NSL) as the Moroka Swallows Team. Its players wear maroon and white. The team is also identified by a device or logo being a circle containing a representation of a bird in flight together with the words 'Moroka Swallows' above and 'Birds' below. It is the applicant's case that this team is H widely known as 'The Birds'.

The first respondent is an association. It also has a team of professional soccer players. They play in the National Professional Soccer League (NPSL) as 'The Birds'. They also wear maroon and white. The second, third and fourth respondents I are office bearers of the first respondent. The fifth, sixth, seventh, eighth and ninth respondents are professional soccer players who once contracted to play for the applicant's team and who now play for the first respondent's team.

The applicant contends that all of the respondents are committing a delict and causing the applicant damage. The delict is said to be unlawful competition. More specifically J the applicant claims that the unlawful

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A competition takes the form that the respondents are passing off their team as the team of the applicant. The applicant seeks a temporary interdict to restrain the respondents from such alleged passing off pending the outcome of the action to be instituted for permanent relief of a similar nature. If such B passing off has not been shown, the applicant seeks similar relief on the basis that the respondents must be restrained from infringing the applicant's rights by unlawful competition other than passing off.

In addition the applicant seeks temporary relief of another kind against the ninth respondent. It is based on the written contract in terms of which the ninth respondent engaged himself C to play for the applicant's team and undertook not to play for any other team without the applicant's permission. The applicant seeks an order temporarily enforcing that restraint pending the outcome of an action to be instituted for final relief of a similar nature.

There are two preliminary questions to be dealt with.

Representation of first respondent

D The first preliminary question is whether or not the first respondent is represented in these proceedings or whether it is in default. Mr Monahan claims to appear for all of the respondents. On behalf of the applicant Mr Suttner challenges his authority to appear for the first respondent. I therefore start with the facts relevant to that dispute.

E On 3 May 1985 the applicant launched the application by means of a notice of motion supported by affidavits and a notice in terms of Rule 14(9) calling on all of the nine respondents to produce a copy of the constitution of the first respondent and a list of the names and addresses of its office bearers as at a F date referred to as 'the relevant date'. That phrase is taken from Rule 14(9) itself. The Rule obviously intends those who use it to make some averment identifying the date or dates which are relevant to the particular case. The 'relevant dates' can only be dates on which the obligation of the association to the applicant or plaintiff is alleged to have been incurred. G The constitution and the office bearers as at that date or those dates are what must be disclosed by the association. Reference to the applicant's affidavits reveals that what ought to have been specified in the applicant's notice in terms of Rule 14(9) as 'the relevant' date is the date or dates on which the respondents are alleged to have passed off their team as the team of the applicant. The precise starting date is not alleged. It was at the latest 28 April 1985.

H Abraham Machele alleges (and indeed it is common cause) that on that date the respondents' team, playing as The Birds in maroon and white, played a match against The Stallions. Machele alleges that that incident was a passing off by the respondents of their team as the applicant's team. That allegation is in dispute. Nevertheless it establishes the first relevant date' for the purposes of the Rule 14(9) notice.

I The aforementioned Abraham Machele is the chairman of the applicant's board of directors. His is the founding affidavit. He deposes to the fact that the first respondent is The Birds Football Club; that it is an association of persons; and that its chairman is the second respondent whom he identifies as Ivan Willis.

J The deputy sheriff's returns of service show that on 3 May 1985, he

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served nine copies of the notice of motion and supporting A affidavits on one Ivan Willex who informed the deputy sheriff that he (and not Ivan Willis) was the second respondent. One copy was served on him in his personal capacity as second respondent and one copy was served on him in his capacity as chairman of the first respondent. Five copies were served on B him pursuant to an order granted to the applicant on 3 May 1985 by Weyers J authorising substituted service on Ivan Willex for the third, fourth, fifth, sixth and seventh respondents. The remaining two copies were served on him for the eighth and ninth respondents.

On 8 May 1985 Messrs Ramsay, Webber and Co, attorneys, delivered a notice of intention to oppose on behalf of all nine respondents. The second to ninth respondents have all delivered C affidavits and there is no doubt that they are before the Court. The only question relates to the first respondent. On 15 May 1985 the respondents' attorney delivered a reply to the applicant's notice in terms of Rule 14(9). According to such reply the first respondent has no written constitution and its office bearers were the second, third and fourth respondents D and one Stanley Gamsu. Having regard to the context I have already mentioned, that reply reflects the position as at 28 April 1985. There is nothing to suggest that the position had changed between that date and 3 May 1985, when the respondents were cited and served. It is therefore clear that the first respondent, which is alleged to be liable for infringement of the applicant's rights, is an association of which the second, E third and fourth respondents had declared themselves and Stanley Gamsu to have been the office bearers at the relevant times, being 28 April 1985 (when one specific incident of the alleged passing off occurred) and 3 May 1985 (when these proceedings were instituted). Since then some changes may have F occurred. The changes cannot affect the rights of the applicant against the respondents it has cited.

On 9 May 1985 the Registrar of Companies registered a company with the name 'The Birds Football Club (Pty) Ltd'. His records show that the sole shareholder and director is Jeanette Neppe. On 15 May 1985 the second respondent produced a document entitled 'Extract of resolution of The Birds Football Club G (Pty) Ltd held at Johannesburg on 10 May 1985'. The second respondent has signed that document purporting to act in the capacity of a director and purporting to certify the document as a true extract.

In his affidavit deposed to on 15 May 1985 the second respondent claims that he is a director of The Birds Football H Club (Pty) Ltd and that such company 'owns' and manages the first respondent. He alleges further that the document entitled 'Extract of resolution' is evidence of a resolution adopted by the company. The terms of the resolution (if such it is) are that the company is to oppose an application by the applicant for an interdict against the company, that the second I respondent as a director is authorised to sign all documents and do all things necessary to give effect to such opposition and that the attorneys' firm of Ramsay, Webber and Co is authorised to act for the company.

On 20 May 1985 Machele deposed to a replying affidavit on behalf of the applicant. The affidavit was duly delivered later that day. In it Machele sets out the facts that, according to J the records of the Registrar

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A of Companies, The Birds Football Club (Pty) Ltd had not been registered when the proceedings were instituted (so that such proceedings were not instituted against that company); and that in any event the sole shareholder and director of The Birds Football Club (Pty) Ltd is Jeanette Neppe. On the B last-mentioned ground he challenges the validity of the second respondent's claim to be a director and also of the document purporting to be an extract of a resolution of the company certified by the second respondent in his alleged capacity as director.

On 22 May 1985 F S Steyn AJ granted an order which the Registrar has set out as follows:

'It is ordered:

1.

That leave be granted to applicant to file supplementary answering affidavits until (and including) 30 May 1985.

2.

That leave be granted to the respondent to file supplementary reply until 7 June 1985.

3.

That the parties are to index and paginate until 11 June 1985.

4.

D That the applicant pay the costs of postponement taxable only on conclusion of case.'

Mr Monahan and Mr Suttner have informed me that the parties are in agreement that a mistake occurred in the drawing up of that order. In para I the word 'applicant' should be 'respondents' E and in para 2 the word 'respondent' should be 'applicant'. The respondents were therefore given the opportunity, to supplement their affidavits in the light of the applicant's replying affidavit delivered on 20 May 1985. The second respondent took the opportunity and deposed to a further affidavit on 30 May 1985. In it he does not challenge the allegation that the F records of the Registrar of Companies show that the sole shareholder and director of the Birds Football Club (Pty) Ltd is jeanette Neppe nor does he allege that she transferred her shares or in any...