Mascom interdicted from hosting Derby
Innocent Selatlhwa | Tuesday March 7, 2023 06:00
Chalegwa Mabua and his company, Botsepa Agencies (Pty) Ltd trading as Ngami Horse Racing approached court on urgency after Mascom dumped him and his Shashe Race track for a different venue and technical sponsor.
The Mascom event will be staged on the same Easter weekend as has always been the case under their partnership. Mabua was represented by Njiramanda Mbewe- Boatey, Dr Bernard Tubego-Bulawayo and Kukie Hirschfeld while Mascom was represented by Mike Rasetshwane.
Before hearing the matter, Justice Kebonang encouraged the parties to settle out of court and host the event together at least for the last time. The parties would have none of it and the matter was finally heard.
On February 22, 2023, Mascom issued a press release announcing to the public that it would be organising, managing and hosting the Mascom Derby 2023 edition, and further announcing to horse owners and riders that it had appointed a new technical partner called Botswana Horse Racing Association. According to Mabua’s court papers, this was the time when he knew and appreciated the intention of Mascom in unlawfully terminating the event and stringing him along for the year 2023.
“Coded in the press release, Mascom, instead of exiting as a title sponsor of the Mascom Derby, had essentially solicited, commandeered, superintended, and directly sponsored horse owners and riders (customers and suppliers of the applicants) into a new formation to not only compete for business with the applicants, but also to appropriate the intellectual property rights hitherto reposed in the applicants, which it has so done,” Mabua’s lawyers wrote.
They argued that the press release was announcing an ongoing infringement or intention to commit an infringement of Mabua’s copyright. Mabua prayed for an order that Mascom and or any other party or parties acting on the instruction, instigation or abatement of Mascom, be interdicted, restrained and prohibited from engaging in activities that infringe or threaten to infringe Mabua’s copyright and any neighbouring rights in the event titled “Mascom Derby” scheduled for April 8, 2023 in Maun or any other similar event in the geographic territory or temporal zone previously billed for the Mascom Derby.
The interdict was sought to be in effect pending the outcome or final determination of an action now before Justice Reuben Lekorwe wherein Mabua and his company are suing Mascom for breach of contract; intellectual property (Copyright) infringement, and unlawful competition. Mabua’s attorneys argued that their clients have a prima facie right to the specific horse- race dubbed Mascom Derby. This they said is because Mabua originally developed the idea of the horse races. “This idea has been shared by the applicant to the respondent through a proposal.
Had the applicant not shared this with the respondent, the respondent would not be able to host the race scheduled for the 8th April 2023,” they stated. Representing Mascom, Rasetshwane argued that the matter was not urgent as he was long told Mascom would not be hosting the race with him on January 30, 2023 and he sat on his right to go to court. He further argued Mabua had no right to take his client to court over the matter as he did not invent horse racing. “There is nothing original about horse racing as it is a sport from long way back all over the world. It is not his creation and it is not even true that we would use what is contained in his proposal,” Rasetshwane said.
Kebonang ruled that the matter was urgent and that with the race being Mabua’s brainchild, Mascom had no right to host a similar event. “The matter is urgent as he acted on the letter of the 22nd February timely and filed the matter. Prior to that, there was nothing arranged by Mascom or any third party. Section 30 of the Copyright and Neighbouring Act states that one can bring an interdict to stop continuing breach of work. Mascom denies, but it is clear that the horse race was his brain child. It is thus through a proposal to Mascom that was generated by him. The applicants have the right to interdict Mascom from hosting the Derby. The applicants applied for costs, but they will not be granted. The interdict is granted,” he said.