Tonbridge Assets Limited and Cut Rag Processors (Private) Limited v Livera Trading (Private) Limited and Others

The applicants had successfully obtained a provisional interdict under HC 8318/16 prohibiting the respondents from selling, wrongfully and unlawfully, "RG" branded cigarettes in the Zimbabwean market, on the basis that such conduct infringed the applicants' registered trademark No. 1710/2000 in class 34 (Remington Gold trademark and logo). The provisional order also directed the respondents to recall all offending goods and authorized the sheriff to search for and remove such goods. On 5 September 2016, the respondents filed and served a notice of appeal against the provisional order, which would have the effect of suspending execution of the interim order. The applicants then approached the court on an urgent basis on 7 September 2016, seeking leave to execute the provisional order pending the appeal. The respondents subsequently withdrew their initial notice of appeal and filed another appeal on the same facts. At the hearing on 13 September 2016, the respondents' counsel sought a postponement, claiming they needed time to secure proper counsel and arguing that the initial appeal had been withdrawn. Despite the provisional order, the respondents continued to advertise and market the offending cigarettes under "RG" branding.

• Whether the application for postponement should be granted
• Whether the application for leave to execute pending appeal met the requirements of urgency
• Whether the noting of an appeal should suspend the operation of the provisional interdict
• Whether the appeal noted by the respondents had prospects of success
• Whether the balance of convenience favoured granting leave to execute pending appeal
• Whether leave to appeal was required for an appeal against an order granting an interdict

1. The noting of the appeal by the respondents jointly and severally for any one of them, in respect of the provisional order granted under High Court judgment HH 517-16 shall not suspend the operation of the interim order. 2. Any appeal by any of the respondents against this order can only be made with the prior leave of this court. 3. The costs of this application shall be borne jointly and severally by the first, second and third respondents, the one paying the others to be absolved.

The binding legal principles established are: (1) Where a provisional interdict has been granted to protect intellectual property rights, particularly registered trademarks, and an appeal is noted, the court may grant leave to execute pending appeal where the appeal lacks merit and continued suspension would cause irreparable harm to the trademark holder. (2) An application for leave to execute pending appeal in trademark infringement matters meets the requirements of urgency where delay would occasion irreparable pecuniary harm and continued infringement of registered rights. (3) The balance of convenience in intellectual property cases favours execution pending appeal where the appellant has presented no evidence to substantiate their opposition and the appeal appears to be filed merely to delay enforcement. (4) Applications for postponement that are dilatory, vexatious, and calculated to prejudice one party while favouring another should be refused in the exercise of the court's discretion. (5) Under s 43(2)(d)(ii) of the High Court Act, no leave to appeal is required for appeals against orders granting or refusing interdicts. (6) The strategic withdrawal and refiling of appeals on the same facts to delay enforcement constitutes abuse of court process.

The court made several non-binding observations: (1) MWAYERA J cited with approval the remarks of MAKARAU JP (as she then was) in Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 240, noting that "the nature of the cause of action and the relief sought are important considerations in granting or denying urgent applications" and that "some actions, by their very nature, demand urgent attention and the law appears to have recognised that position." (2) The court observed that court process by nature entails some delays, but where a matter meets the requirements of urgency, it can be entertained on an urgent basis. (3) The court noted that a postponement is not granted for mere asking but the party seeking postponement must show good cause. (4) The court observed that the respondents' conduct of filing, withdrawing, and refiling appeals "smacks of desire to take advantage of the other party" and suggested the appeals were not genuine but calculated to harass the applicants. (5) The court noted that the perverse conduct of marketing, distribution and sale offending against a registered trademark would negate the protection offered by law to holders of trademarks.

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It reaffirms the protection afforded to registered trademark holders and the court's willingness to prevent continued infringement pending appeal where the appeal lacks merit; (2) It clarifies the principles governing applications for leave to execute pending appeal, particularly in intellectual property matters where continued infringement causes irreparable harm; (3) It demonstrates the court's approach to dilatory and vexatious tactics, including strategic withdrawal and refiling of appeals to delay enforcement of court orders; (4) It applies the established principles of urgency in the context of intellectual property protection; (5) It confirms the interpretation of s 43(2)(d)(ii) of the High Court Act that no leave is required to appeal from orders granting or refusing interdicts; and (6) It illustrates the court's exercise of discretion in refusing postponements that are not made in good faith and are calculated to prejudice the opposing party.