Court name
Supreme Court of Zimbabwe
Case number
SC 11 of 2009
Civil Appeal 18 of 2007

Caps United Football Club (Pty) Ltd v Caps Holdings Ltd (18/07) (SC 11 of 2009, Civil Appeal 18 of 2007) [2009] ZWSC 11 (17 February 2009);

Law report citations
Media neutral citation
[2009] ZWSC 11

Judgment
No. SC 11/09


Civil
Appeal No. 18/07








CAPS
UNITED FOOTBALL CLUB (PRIVATE) LIMITED v





(1)
CAPS HOLDINGS LIMITED (2) BUYMORE FOOTBALL
CLUB (3) THE ZIMBABWE FOOTBALL ASSOCIATION


(4)
THE PREMIER SOCCER LEAGUE








SUPREME COURT OF
ZIMBABWE


SANDURA JA,
CHEDA JA & GWAUNZA JA


HARARE, JUNE 12, 2007 &
FEBRUARY 18, 2009








T Biti, for the
appellant





F Mutamangira,
with him I Ndudzo, for the respondents









SANDURA JA: This is an appeal against a judgment of the High
Court which dismissed an urgent Chamber application filed
by the
appellant.







The background facts in the matter may be tabulated conveniently as
follows –






1. In 1973 Caps Holdings Limited (“Caps Holdings”) established a
football team called Caps Rovers Football Club, which was

subsequently named Caps United Football Club.







2. On 2 December 1999 the appellant company, Caps United
Football Club (Pvt) Ltd, was incorporated on the instructions of
Caps
Holdings.







3. On 28 December 1999 Caps Holdings, represented by
Edwin Robinson, and Twin Con Industrial Air (Pvt) Ltd
(“Twin-Con”),
represented by Twine Phiri, concluded a joint
venture agreement which, in relevant part, reads as follows:







“WHEREAS:







1. Caps and Twin-Con have entered into an agreement to embark on a
sports joint venture on a 50/50 basis.







2. The joint venture company shall take over the running of Caps
United Football Club and also embark on any other sports related

activities.







Now therefore in consideration of both parties agreeing on a joint
venture Caps and Twin-Con agree as follows:-







1. Twin-Con shall pay a sum equivalent to 50% of the estimated
franchise value of Caps United Football Club within 14 days
of
signing the agreement. 50% of the franchise value is set at
$900 000.00.







2. Upon receipt of the Twin-Con franchise contribution by Caps the
process of registering the joint venture Company will be initiated,

on an equal shareholding by the two parties. …







3. The current Caps United Football Club Executive is mandated to set
up the new company in full compliance with the Companies
Act in
consultation with both Caps and Twin-Con.







4. Upon registration of the new company Caps shall transfer ownership
of the Caps United Football Club franchise to the new company

including the players and other Caps United Football Club related
assets.







5. The new constituted Board of Directors shall be mandated to run
the affairs of Caps United Football Club in accordance with
the
Companies Act and general rules governing soccer in Zimbabwe.







6.-7. …







8. The name of the football team shall be maintained as Caps United
Football Club until such time as the board of the new company

revisits it.”







4. In December 2002 Caps Holdings sold its 50% stake in the franchise
of Caps United Football Club to Twin-Con. However, according
to
Twin-Con, what it purchased was not just 50% of the franchise of Caps
United Football Club but also 50% of the shares in Caps
United
Football Club (Pvt) Ltd.







5. In August 2006 Caps Holdings acquired the second respondent,
Buymore Football Club, and immediately issued a press statement

advising the football fraternity about that acquisition, and that
with effect from 1 January 2007 Buymore Football Club would
be
known as Caps Football Club.







6. The press statement issued by Caps Holdings prompted Twine Phiri,
who purported to be the chairman of Caps United Football
Club (Pvt)
Ltd, to file a court application in the High Court (Case No.
HC 7486/06), in the name of Caps United Football Club
(Pvt) Ltd,
on 1 December 2006 against Caps Holdings and Buymore Football
Club, seeking the following order –







“1. (That the) first respondent, Caps Holdings Limited, be and is
hereby barred and interdicted from unlawfully interfering with
the
goodwill, brand, colours, regalia and insignia of Caps United
Football Club and Caps United Football Club (Pvt) Ltd.







2. That the respondents be and are hereby barred from renaming
Buymore Football Club, Caps Football Club, Caps Rovers or any other

name suffixed or prefixed with the acronym Caps.







3. (That) Caps Holdings (Private) Limited (sic) be and is
hereby interdicted from the use of the colours green and white,
together with the acronym CAPS in respect of any football
team that
it may own or sponsor and register to play with the Premier Soccer
League and or with the Zimbabwe Football Association
in any division.







4. That (the) respondents jointly and severally pay the other to be
absolved pay costs of suit sic).”







The court application was opposed by the respondents.







7. About six-and-a-half weeks after filing the court application,
Caps United Football Club (Pvt) Ltd filed an urgent Chamber
application in the High Court (Case No. HC 241/07) on 16 January
2007 against Caps Holdings, Buymore Football Club, the
Zimbabwe
Football Association and the National Premier Soccer League, seeking
the following order:







“1. That pending complete resolution by the courts of case number
7486/06, the first and second respondents be and are hereby
barred
from using the name CAPS Football Club and renaming Buymore Football
Club by any other name that has the acronym CAPS in
it.







2. (That) pending the resolution of case number 7486/06 the second
respondent, Buymore Football Club, and indeed (the) first respondent,

be and is (sic) hereby barred and interdicted from unlawfully
and interfering (sic) with the goodwill, brand, colours,
regalia and insignia of CAPS United Football Club and CAPS United
Football Club (Pvt) Ltd.







3. (That the) first and second respondent (sic), jointly and
severally, each paying the other to be absolved, pay costs of suit
calculated on a scale as between attorney and
client.”







8. The urgent Chamber application was heard on 19 and 22 January
2007, and on 24 January 2007 the learned Judge in the court

a quo held that the matter was not urgent, and that in
any event there were disputes of facts which could not be resolved on
the papers.






Aggrieved by that decision, Caps United Football Club (Pvt) Ltd
appealed to this Court.







There are two main issues for determination in this appeal. The
first is whether the learned Judge in the court a quo
correctly concluded that the matter was not urgent; and the second is
whether there were disputes of fact which could not be resolved
on
the papers without doing any injustice to the parties.







Dealing with the issue of urgency, the learned Judge in the court
a quo said the following at pp 8-9 of the
cyclostyled judgment (judgment no. HC 214/07):







“It is my considered opinion that this matter is not urgent. It
is not in dispute that the 2007 soccer season will commence
at the
beginning of February 2007. I am made to understand that the case
HC 7486/06 will not have been heard before the
soccer season
starts. I am, however, made to understand that only heads of
argument by both parties are yet to be filed before
the matter can be
set down for hearing as an opposed matter. … I am advised further
that the fixtures list has not yet been
released by the fourth
respondent. It was therefore unknown when exactly the two teams
were going to meet in competitive football
in the league. … The
fact that the soccer season will start in early February 2007 does
not mean that the two teams will
meet in February 2007. The date on
which the two teams will meet remains unknown until the fixtures list
is released. As long
as the above position is correct, this
application cannot be considered urgent. The date on which the two
teams would meet is
important in considering whether or not the
matter is urgent because, as I was made to understand by the parties,
ugly scenes in
the terraces in the stadium would only occur if the
two teams meet each other. I was made to understand that it was at
such meetings
that fans of the two teams would fight for the name of
their team and for their colours, etc …”.







In my view, the learned Judge’s reasoning cannot be faulted.
The matter was obviously not urgent. The parties should have
simply
filed their heads of argument in the main court application (i.e.
case no. HC 7486/06) and proceeded to have it set
down for
hearing.







Having concluded that the matter was not urgent, the learned Judge
went on to deal with the issue as to whether the matter could
be
resolved on the papers, although it was not necessary for him to do
so. On that issue the learned Judge said the following
on p 6
of the cyclostyled judgment:






“It is my considered opinion that there are a lot of material
disputes of fact in this matter which make it impossible for this

court to grant any relief. How can this court grant the applicant
the relief it sought when the authority of Mr Twine Phiri
to
represent (the) applicant is being questioned? There is a serious
dispute on who is the applicant and who owns it. If Mr Phiri

is not the major or simple shareholder in (the) applicant, this whole
application collapses. It means he cannot depose to a founding

affidavit in (the) applicant’s cause.”







Once again, in my view, the learned Judge’s reasoning cannot be
faulted.







In the circumstances, the appeal is devoid of merit and is,
therefore, dismissed with costs.



















CHEDA JA: I agree



















GWAUNZA JA: I agree



















Honey & Blanckenberg, appellant's legal practitioners



Mutamangira, Maja & Associates, respondents' legal
practitioners