CIV/APN/46/83

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

MULTIMEX
BUSINESS CONSULTANTS Applicant

(Pty)Ltd

v

BERT
SCHUBERT Respondent

JUDGMENT,

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 7th March,
1983

This is
the return date of a rule nisi granted to applicant against
tespondent calling upon him to show cause why:

1. Respondent
   shall not be interdicted from operating and doing trade business in
   the business premises of Applicant at Shop No.S5
   situated at Block
   No.S at Sebaboleng Trade and Industrial Centre, Maseru.

   
   

2. Respondent
   shall not be restrained from interfering with Applicant's business
   operations at the business site mentioned in Para.l(a)
   supra.

   
   

3. Respondent
   shall not be ordered to return and restore to Applicant, certain
   Invoices

   
   

4. in
   the name of Applicant from various creditors.

   
   

5. Respondent
   shall not be ordered to return to Applicant cheque books for the
   Account of Qiloane Fruit and Vegetables, a branch
   trade name of
   Applicant.

   
   

6. Respondent
   shall not be directed to vacate forthwith the business and office
   premises of the Applicant.

   
   

7. Respondent
   shall not be ordered to pay costs of this application."

   
   

On the
papers before me this application must be dismissed with costs. The
crux of the applicant's(Multimex Business Consultants(Pty)Ltd
case is
that the trade names

2

Qiloane,
and/or Makoanyane Investments are the applicant's property or brain
child and the respondent has been usurping these. On
balance of
probabilities the respondent was one of the promotors, perhaps the
most active one, amongst a group of persons, who
included the
managing director(Mrwebi) and at least one other director and a
shareholder of the applicant.

Neither
Qiloane or Makoanyane Investments have been incorporated into a
company, or formed into a partnership or registered as a
business
name. Everything concerning these two outfits is yet "in
formation" although Qiloane has been trading in the
purchase and
sale of fruits and vegetables for some two or three months under the
umbrella of the applicant (apparently without
any written agreements
but for a contribution of R75 towards expenses) who had offices
(phone, telex etc...) and storage facilities
as well as a licence to
trade and at the material time the respondent had not. Suppliers of
fruits and vegetables appear to have
addressed at least some of the
correspondence to the applicant.

It is
clear that the applicant, as a limited company, was not doing
particularly well and Mrwebi the managing director thereof (and
other
shareholders as well) were of the view that Qiloane, trading in
fruits and vegetables, had better prospects of success. Indeed
the
affidavits and documents show that at any rate Mrwebi the managing
director of the applicant, in a personal capacity, did some

promotional work, perhaps not so much as the respondent's, to put
Qiloane on its feet but differences having occurred the applicant

launched this application, not on his behalf, but as. the
representative of the applicant, claiming the "ownership"
of Qiloane's business of which group of promoters he formed a part,
but only a part.

There are
far too many disputes about the facts and it is impossible to resolve
these on papers. By the return date (which was anticipated)
things
appear to have changed also on the ground and some of the applicant's
premises used by Qiloane (by virtual grace and favour
of the
applicant when major differences had not developed) formally leased
by Bedco to applicant have now been leased by Bedco
to

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respondent
using the name Qiloane and Qlloane(Pty)Ltd as if such an entity has
been incorporated or formed into a partnership. I
am skeptical about
Bedco's move as also about respondent's moves since the application
was launched. In particular if the applicant
has been thrown out from
the premises by Bedco aided and abetted by respondent there might
well be an act of spoliation for which
there is a remedy. If
applicant has suffered damages or seeks other relief where viva voce
evidence is necessary as seems to be
the case he is at liberty to sue
by way of action in the normal way.

Since the
main argument of the applicant is that it "owns" Qiloane
has not been established even on balance of probabilities,
I find no
justification to grant relief as matters stand, and as I intimated
earlier the application must be dismissed with costs.

CHIEF
JUSTICE

7th
March, 1983

For
Applicant : Mr. Jobodwana

For
Respondent: Mr. Buys