C of A(CIV)NO.22/2201
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:-
BANTU FOOTBALL CLUB APPELLANT
LESOTHO FOOTBALL ASSOCIATION 1st RESPONDENT
POPO MATSOARA 2nd RESPONDENT
MONTOELI RANTLO 3rd RESPONDENT
MAHLOMOLA MATSOARA 4™ RESPONDENT
REFILOE MEFANE 5™ RESPONDENT
LEHLOHONOLO MOHALE 6™ RESPONDENT
LEMOHANG MOKAKE 7th RESPONDENT
MOITHERI LEPHOI 8™ RESPONDENT
KABELO RAMOLULA 9th RESPONDENT
MOHANOE MOTELETSANE 10™ RESPONDENT
MOTOLO MAKEFE 11TH RESPONDENT
SECHABA RAMALEFANE 12th RESPONDENT
CHAKA MONARE 13™ RESPONDENT
TIEHO THEJANE 14th RESPONDENT
REMI MOHOTLANE 15™ RESPONDENT
ROVERS F.C. 16th RESPONDENT
9,11 April 2002
Use of club name - right to exclusive use of a registered name under s. 7 (!) of the Societies Order, 20 of 1966 - passing off
Coram: Steyn, P.
This case concerns a claim by the appellant football club to the exclusive use of its name.
Its genesis is an urgent application for various interdicts and declaratory orders. The relief, claimed in the form of a rule nisi, was for orders that:
"(a) The Respondents herein shall not be interdicted forthwith from going ahead with a football game between Rovers Football Club, and a Club that goes under the name of Bantu Football Club in Mafeteng on the 11th February zuui;
The 1st Respondent herein shall not be directed forthwith to suspend any games in which a club named Bantu Football Club or Bantu F.C. is fixtured pending the outcome hereof;
The 2nd to 15th Respondents inclusive shall not be interdicted from holding themselves out as players of a team they call Bantu Football Club or Bantu F.C. and which is affiliated to the 1st Respondent herein;
The Applicant herein shall not be declared the only team to lawfully use the name Bantu Football Club and or Bantu F.C. in the entire Lesotho;
The 1st Respondent shall not be directed to remove the name of Bantu F.C. from its fixtured games for the year 2001;
The 1st to 15th Respondents inclusive shall not be directed to pay costs hereof;
The Applicant shall not be granted further and or alternative relief.
That prayers 1,2 (a) and (b) operate with immediate effect as interim orders of court."
This relief was duly granted. On the return day, however, Mofolo J. held that he did not "[hesitate] to dismiss this application and accordingly the rule is discharged with costs." Against that order the appellant now appeals.
The appellant's case is simply stated in its founding affidavit. It alleged that is a universitas, a football club with the name of Bantu Football Club, but also referred to as Bantu F.C. This the respondents admitted in their answering affidavits. The appellant also alleged that in the 2000 football season it was registered (under this name) with the first respondent, itself a registered association responsible for football administration in Lesotho. This the respondents also admitted. The appellant then details what it asserts was a flawed election of the first respondent's executive - a matter disputed by the respondents -which resulted in a decision by the appellant not to participate in
fixtures arranged ostensibly on behalf of the first respondent, until that issue was resolved.
The appellant accordingly wrote to the first respondent, advising it "that we bring to your attention that we are aware that are some cohorts who are claiming to be members of the [appellant] who have invited your goodselves to [the appellant's] grounds under the mentioned auspices..........".
The letter concluded by asking the first respondent not to accede to this invitation.
The appellant's case was that
"there cannot be two Bantu Football Clubs in this country. The only lawful Bantu Football Club is the one of whose executive committee I am a member, and that Club has resolved through its lawful executive committee not to participate in the first respondent's affairs.
The first respondent is thus lawfully obliged to cancel the unlawful and unauthorized fixturing of the [appellant) in its matches."
What the first respondent had done was to draw up league logs and arrange fixtures for a group of soccer players - the second to fifteenth respondents - under the appellant's name. One such fixture was with the sixteenth respondent, another football club.
Much of the answering affidavit comprises a misdirected and irrelevant dealing with the legitimacy or otherwise of the election of the first respondent's executive. I have already noted important admissions of the appellant's key allegations. The further allegations quoted in paragraph  above are not effectively traversed. Indeed, the response is that "[w]hether or not there are two or more Bantu Football Clubs... is really a domestic problem of [the appellant].....[the appellant) suffers no harm or prejudice......In any event [the appellant has] no exclusive right to the name Bantu Football Club .... If in fact Deponent's faction considers that it is their club faction of Bantu Football Club which has been fixtured, all they have to do is not to honour such fixture".
The judgment of the court below is in material respects not readily comprehensible. Thus the learned judge considered that "[the appellant] would hold that a rival organization to [the first respondent] be allowed to walk away from [the first respondent] not only with the players but also with the team's name". "The question", the court went on, "is whether [appellant's] establishment of FA [sic] does not amount to walking away from [the first respondent] and whether by so walking away and forming a rival association the [appellant] can be allowed by this court to also walk away with the name Bantu Football Association [sic]. As I see things, the [appellant] Bantu Football Association
[sic] is a breakaway group from [the first respondent]" (emphasis supplied),
In my view, the judgment of the court below is wholly deficient in its grasp of the facts and its application of basic legal principle.
On the papers, it is apparent, the appellant's claim to the exclusive use of its name had two bases. The first is that it had had, and used, the name since its foundation in 1937. It was registered under that name, at least by the time of the return day of the application. Its registration was, indeed, protected in terms of s.7 (1) (c) of the Societies Act, 20 of 1966. On that basis alone it had an exclusive right to its name, and was entitled to the relief sought.
It was also so entitled on another basis. This is that the second to fifteenth respondents, in collusion with the first and sixteenth respondents, were wrongfully and unlawfully passing themselves off as the appellant. The papers allege confusion, and indeed the risk of bloodshed between the appellant's supporters and those of the second to fifteenth respondents. The denials by the latter are bare and unconvincing, such as to warrant being dismissed on the papers (Jacobs en 'n Ander vs Waks 1992 (1) SA 521 (A) at 533 I).
The learned judge failed to appreciate that the appellant is a club; not (as he repeatedly said) an association; that it was common cause that (for more than 60 years) it had had its name; that both by statute and common law, no one else could use that name; that the appellant's withdrawal from the first respondent was irrelevant to the appellant's entitlement to continue to use its name as a football club.
In these circumstances the common law requirements for passing off are met. The appellant has, in relation to its activities as a football club, a business reputation. The two other elements of what has been termed the "classical trinity" for passing off - a misrepresentation and damage - appear from the papers (see generally Caterham Car Sales & Coachworks Ltd vs Birkin Cars (Pty) Ltd 1998 (3) 938 (SCA) at 947 A-G). The judgment displays no understanding of this.
The appeal succeeds, with costs. The judgment and order of the court a quo are set aside, and replaced with this order:
"The rule nisi is confirmed, with costs."