Thunder Cats Investments 49 (Pty) Ltd and Others v Fenton and Others

• Jurisdiction: South Africa
• Judge: Le Grange J
• Judgment Date: 12 December 2008
• Citation: 2009 (4) SA 138 (C)
• Docket Number: 9958/06
• Counsel: RS van Riet SC for the applicants. P St C Hazell SC for the respondents.
• Court: Cape Provincial Division

Le Grange J:

[1] This is an extended return day of a rule nisi granted by Yekiso J. The applicants seek an order to confirm the rule, as the respondents contravened paras 1.1, 1.3, 1.4 and 2 of an order of this court dated 16 February 2007, and are as such guilty of contempt of court. The J

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A applicants are also seeking a costs order against the first and second respondents' counsel, as the principal issues in the counter-application have been determined by other courts, including the Supreme Court of Appeal and Constitutional Court.

[2] First and second respondents opposed the application and filed a counter-application and an amended B counter-application. First respondent, who is a member of second respondent, finds himself abroad in France. It appears that first respondent's leaving the country constituted a breach of certain bail conditions in a matter where he is arraigned on several counts of fraud and theft, and pursuant thereto, a warrant for his C arrest was issued.

[3] Third respondent is eMor Trading, a close corporation trading as iTTConnect, who does business as an Internet service provider.

[4] The fourth respondent is Thomas Altman, the sole member of third respondent, who is cited in his capacity as member of third respondent D and in his personal capacity.

[5] Third and fourth respondents did not file any papers, but in an e-mail to applicants' attorney stated that they did not deem their conduct contemptuous of this court's order.

E [6] The issues for determination in this matter are firstly, whether the counter-application as amended is irregular, too late, vexatious and an abuse of the process of this court, and secondly whether the respondents are in contempt of an order of this court.

[7] On 16 February 2007 Desai J granted an order which states the F following:

'1.

The respondents are interdicted and restrained from alleging to third parties other than persons in authority who have a legitimate interest therein:

1.1

That applicants obtained the Court order granted by this Court under case No 5516/2005 by fraud.

1.2

G That the applicants are dishonest.

1.3

That the applicants are unlawfully conducting the hotel business known as Ocean View Hotel at 17 Beach Road, Strand.

1.4

That the respondents, or a concern in which they have an interest, are lawfully conducting a business which provides H restaurant, breakfast, bar, room service, conference or reception facilities or any other business save that of a letting agent of sectional title units at 17 Beach Road, Strand. In particular that:

1.4.1

They are able to conduct a restaurant and/or conference I and/or bar business and/or they are able to provide such facilities at that place.

1.4.2

Through the use of photographic or other visual materials to advertise their business at 17 Beach Road, Strand, together with the words,''hotel'', ''hotel business'', ''conference'', ''conference business'', ''restaurant'', ''restaurant business'', ''breakfast'', ''bed and J breakfast'', ''hotel service'', ''room service'' or any

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combination of the aforegoing in a manner which A conveys the impression that respondents are able to supply any of the aforesaid services at the said premises.

1.4.3

To advertise by way of photographic or other visual material and in the process display the contents of section 1 of the premises, in particular the restaurant, reception and conference areas thereof. B

1.4.4

By making available to the public respondents' telephone and fax numbers and/or email addresses and/or any other contact address as being the contact numbers of the hotel, conference and restaurant businesses being conducted at 17 Beach Road, Strand.

2.

That the respondents are interdicted from accepting bookings or C deposits in respect of the supply of conference, restaurant and bar facilities provided by the Ocean View Hotel at 17 Beach Road Strand.

3.

It is declared that the respondents are guilty of contempt of court in that they breached the rule nisi issued by this Court under the abovenamed case number dated 20 September 2006 by: D

3.1

Representing that they are conducting hotel, conference, restaurant, breakfast, reception, bar and room service facilities at 17 Beach Road, Strand.

3.2

Placing bookings in respect of, inter alia, the delivery of such services.

3.3

Accepting deposits in respect thereof. E

4.

The counter-application is dismissed.

5.

Respondents are ordered, jointly and severally, to pay the costs of this application and the costs of the application for contempt of court and counter-application.'

[8] Pursuant to this order the respondents were granted leave to appeal F to the Supreme Court of Appeal. On 28 March 2007 Desai J ordered that the court order dated 16 February 2007 be enforced pending the outcome of the appeal to the Supreme Court of Appeal. This order by Desai J was also attacked by the respondents.

[9] First and second respondents' counter-application was framed as G follows:

'(a)

That the interim relief granted by his Lordship Mr Justice Yekiso on 11 July 2007 be set aside;

(b)

that the further relief set out in Applicants' notice of motion dated 11 July 2007 be refused;

(c)

that the interlocutory order granted in terms of rule 49(11) by his H Lordship Mr Justice Desai under the above case number on 28 March 2007 be set aside with costs on the attorney and client scale;

(d)

that Applicants are interdicted from unlawfully interfering with the conduct by First and Second Respondents of Second Respondent's hotel business, by any of the following acts - I

(i)

interfering with guests booked and/or placed in hotel units/rooms at 17 Beach Road, Strand (''the premises'') by Second Respondent, including by demanding of them, and/or suggesting to them, that they should pay any representative of First Applicant for such accommodation or for alternative accommodation offered to them in the premises by First J

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A Applicant, other than for any services other than room accommodation actually supplied to any such guest by First Applicant in terms of any arrangement made with First Applicant by such guest, by the unit holder of the relevant room/unit, or by Second Respondent;

(ii)

disseminating false information about Respondents to First B Respondent's guests and/or suppliers and/or clients and/or business contacts and/or any other third parties with whom/which Respondents may wish to do business in connection with Second Respondent's hotel business, such false information to include, but not be limited to conveying or C implying to any of such parties any of the following:

(aa)

that Second Respondent sold its hotel business to Applicants or any entities controlled by any of them;

(bb)

that Second Respondent no longer does business at 17 Beach Road, Strand;

(cc)

that Strand Beach Hotel at 17 Beach Road no longer exists;

(dd)

D that First Respondent has been fired;

(ee)

that Respondents or either of them cannot book guests into the premises;

(ff)

that either of Respondents' website is false;

(gg)

that Respondents or either of them have issued or will issue fake booking confirmations;

(hh)

E that Respondents or either of them has, or would in the future,''set'' anyone''up'' and/or is dishonest;

(ii)

that Respondents or either of them have made a ''victim'' of any prospective hotel guest;

(jj)

that Respondents or either of them have been or would ever be guilty of''hotel booking scams''.

(e)

F that Applicants are interdicted from accepting deposits and/or bookings and/or payments for accommodation and/or providing accommodation in respect of any rooms/units booked by Second Respondent;

(f)

that Applicants are interdicted from holding First Applicant out to be Second Respondent for the purposes of obtaining payment of G any moneys at all, including but not limited to obtaining payment of moneys due to Second Respondent and/or for the purposes of in any way diverting and/or attempting to divert to any of the Applicants or any of their agents, servants or representatives, deposits, accommodation payments and/or any other moneys due to Second Respondent;

(g)

H that Applicants are interdicted from holding First Applicant out to be Second Respondent by flighting, either directly or through any third party, and/or allowing or encouraging any internet website or web link whose web address and/or web information contains the words''Strand Beach Hotel'' or any words calculated to cause confusion in the public mind and/or create the impression that any I business conducted or associated with First Applicant is linked in any way in the course of trade with First Respondent's Strand Beach Hotel business;

(h)

that Applicants are interdicted from making use of any of Strand's intellectual property, including but not limited to the photographs and other material uplifted from Strand's current website and J incorporated into Thunder's current website;

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(i)

that Applicants are interdicted from selling Unit 1 of the premises A (whether separately from or together with Unit 3 of the premises or any other unit) upon terms that do not disclose to the purchaser(s) that First Respondent claims to be entitled to be restored to possession of Unit 1 thereof pursuant to its rights under the provisions of the lease referred to in the evidence in Cape High Court Case No 5516/05, unless First Respondent's consent is first B obtained in writing to a relaxation of this interdict upon such terms as First Respondent may agree with Second and Third Applicants on behalf of the seller;

(j)

that the said Unit 1 shall be sold together with its hotel operating contents, save that such...