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[2011] ZAECPEHC 46
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Swartkops Sea Salt v Cerebos Ltd (972/11) [2011] ZAECPEHC 46; 2011 BIP 411 (ECP) (25 October 2011)
REPORTABLE
Date of argument : 29 September 2011
Date of delivery : 25 October 2011
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE HIGH
COURT, PORT ELIZABETH)
CASE NO. 972/11
In the matter between :
SWARTKOPS SEA SALT
(PTY) LTD
…..............................................
APPLICANT
and
CEREBOS LIMITED
…..................................................................
RESPONDENT
JUDGMENT
RORKE, AJ :
This application
relates to the delictual wrong of passing off.
The Applicant
(“Swartkops”) seeks an order against the Respondent
(“Cerebos”) interdicting and restraining
the latter from
passing off its braai salt as that of the former. Its complaint is
that Cerebos’ recently launched Buffalo
braai salt product has
a get up which is confusingly or deceptively similar to the get up
of Swartkops’ longstanding Marina
braai salt product. Both
Swartkops and Cerebos are competing salt producers and wholesalers.
Swartkops sells its products under
the brand “Marina”
while Cerebos sells its salt products under two different brands,
“Cerebos” and “Buffalo”.
This application
relates only to Cerebos’ “Buffalo” brand of braai
salts.
Swartkops’s braai
salt was launched in 1980 in packaging and get up which has not
changed in the more than 30 years since
its launch.
During the course of
2010 Cerebos took a decision to relaunch its Buffalo brand which had
previously been used in the colours
blue and white, which are the
primary colours of the Cerebos trade mark and Cerebos products.
Cerebos identified a need and realised
an opportunity existed to
introduce a seasonings range into the economical braai salt segment
of the market. Cerebos proceeded
to develop a low cost braai salt
product under its redesigned Buffalo trademark and used principally
the colours orange, brown
and red in relation to this product. The
product was launched, under pressure of time constraints, prior to
the December 2010
holiday season.
The launch by Cerebos
of its braai salt product in December 2010 had, by 21 January 2011,
drawn complaint from Swartkops. The
latter contended in a letter
from its attorneys that Cerebos was guilty of passing off and
demanded the immediate cessation of
this allegedly unlawful conduct.
As a consequence of this and further demands made by Swartkops on
Cerebos, Cerebos undertook
to and ultimately did change the cap of
its Buffalo braai salt; subsequently it also changed the design of
its label in certain
respects. This it did under denial that its
product passed off Swartkops’ product and without prejudice to
its rights.
Swartkops remained
dissatisfied with the Buffalo braai salt product in its new form. It
contended that Cerebos continued to pass
off its product for that of
Swartkops and it therefore launched the present proceedings seeking
interdictory relief.
Passing off protects a
trader against deception arising from a misrepresentation by a rival
concerning the trade source or business
connection of the rival’s
goods or services.
1
Passing off is wrongful
because it results, or is calculated to result, in the improper
filching of another’s trade and/or
in an improper infringement
of his goodwill and/or in causing injury to that other’s trade
reputation. Such a representation
may be made impliedly by a trader
adopting a get up for its goods which so resembles another’s
get up that it induces the
public to be confused or to be deceived
into thinking that the first trader’s goods or services
emanate from the other
trader or that there is an association
between them.
2
An applicant who seeks
relief of this kind based on an implied representation, as Swartkops
does here, must establish two things.
First, it must establish that
its get up has become distinctive of its goods or services in a
sense that the public associates
such get up with the goods or
services marketed by it. If it has done so, it has acquired the
necessary reputation. Second, it
must satisfy a Court that the get
up used by the respondent is so used as to cause the public to be
confused or deceived in the
manner described above.
3
It is to a
consideration of these two issues to which I now turn.
Reputation
Mr G E Morley SC
has argued that
Swartkops has not established a reputation in its Marina braai salt
product. A significant foundational block
for his argument is the
contention that neither the container nor its colour are capable of
attracting a reputation. In support
of this argument he refers to
Die
Bergkelder Beperk v Vredendaal Ko-op Wynmakery
4
where it was held that
according to public perception containers and shapes generally do
not serve as source identifiers. They
are perceived to be functional
and, if not run of the mill, to be decorative and not a badge of
origin. Thus, in
Reckitt
& Coleman SA (Pty) Ltd v S C Johnson & Son SA (Pty) Ltd
,
5
the Court pointed out
that purchasers of ordinary household goods know that similar goods
having different origins often have
similar containers.
Counsel also refers to
Online
Lottery Services (Pty) Ltd v National Lotteries Board
6
where it was held that
our Courts will not easily find that descriptive words have become
distinctive of the business or products
of the person using them. By
a parity of reasoning, he argues that I should not readily find that
the colour orange has become
distinctive of Cerebos’s business
or products.
Mr Marriot
,
who appeared on behalf of Swartkops, argues that the correct
approach is to determine whether the get up, taken as a whole,
has
established the requisite reputation. He refers to the remarks of
Van Wyk J in
Stellenbosch
Farmers’ Winery v Stellenvale Winery
7
where the learned Judge
said :
“
In
passing off cases the complaint is not based upon any property right
in a mark as such; it is based on the likelihood that the
similarity
of another’s get up may mislead the public.
(
Halsbury
2
nd
ed.
Vol. 32 p.614.)
The
result is that in passing off actions the comparison is between the
whole get up of the applicant and the whole get up of the
respondent
(Halsbury 2
nd
Ed.
p.614), whereas in infringement of trademark actions enquiries are
confined to a comparison of the registered mark and with
that portion
of the respondent’s get up which is alleged to infringe the
applicant’s registered rights.
”
In
Reckitt
& Coleman
,
8
the Appellate Division
held that in assessing whether there is a likelihood of deception or
confusion it is necessary to consider
and compare the whole get up
of each of the competing products.
Those remarks appear to
have been made with reference to the second question to be decided,
that is, whether there is a likelihood
of deception or confusion.
There does not appear to me, however, to be any reason in logic or
principle why the same approach
should not be followed in respect of
the prior question, that is the question of reputation, in
circumstances where the contention
is that the get up as a whole has
acquired a reputation. It is artificial in such circumstances, I
think, to break down the component
elements of the whole get up and
then to argue that one or other or more of the component elements
themselves cannot acquire
a reputation. Such an approach appears to
me to be illogical because the public, if it is deceived, will be
deceived by the whole
get up and not by component elements thereof.
It is true that
Swartkops made much in its papers of the distinctive orange plastic
container in which its braai salt is sold.
There is repeated
reference by Swartkops to its “
original orange bottle braai
salt
.”
Mr Morley SC
argued that Swartkops, on a
proper analysis of its affidavit, relied for its reputation only on
its original orange bottle. I
am not persuaded by that argument. The
founding papers contain sufficient evidence of other distinctive
features of Swartkops’
braai salt product which entitle it to
argue, as it has done, that the get up of its product, as a whole,
has acquired a reputation.
The factual enquiry is
therefore whether the whole of the get up of Swartkops’ braai
salt product has attracted the requisite
reputation.
In this regard, Page J
said in
Cambridge
Plain AG and Another v Moore and Others
9
that :
“
Whilst
each case must be decided on its own facts, there are undoubtedly
cases where the manner and scale of use of the symbol in
question can
in itself be sufficient to warrant the conclusion that it must have
become recognised by a substantial section of
the relevant public as
distinctive of the plaintiff’s goods, services or business.
That conclusion has been drawn from such
evidence in a number of
cases. See e.g.
Haggar
Co v SA Tailorscraft (Pty) Ltd and Another
1985
(4) SA 569
(T);
John
Craig (Pty) Ltd v Dupa Clothing Industries (Pty) Ltd
1977
(3) SA 144
(T);
United
SA Brush Manufacturing Co Ltd v Kleenem Brushworks (Pty) Ltd
(CPD
16/7/78 SAPJ January 1981);
Easyfind
International (SA) (Pty) Ltd v Instaplan Holdings and Another
1983
(3) SA 917
(W).
”
I am in respectful
agreement with those views. Is there sufficient evidence before me
to warrant a conclusion that Swartkops’s
braai salt product
has become recognised by a substantial section of the public as
distinctive of Swartkops goods? This question
must, in my view, be
answered in the affirmative. The evidence concerning Swartkops’s
reputation in its braai salt product
is largely uncontested. The get
up of the original product has not been altered since it was first
launched some 31 years ago.
For all these years members of the
public throughout South Africa have been buying this particular
braai salt product in the
same container with the same get up. The
product is currently sold in more than a thousand stores nationwide.
It has enjoyed
– and continues to enjoy – significant
sales volumes. It is sold in all retail food outlets in South Africa
save
for stores in the Pick ‘n Pay group. There has been
extensive marketing of the product during this period.
Despite some criticism
by counsel for Cerebos of the evidence tendered by Swartkops with
regard to the volumes of sales of the
latter’s products in
Spar outlets, I am nonetheless persuaded that Swartkops has set out
sufficient evidence in its papers,
quite apart from the contested
evidence relevant to Spar sales, to establish the necessary
reputation in its braai salt product.
I find accordingly.
Confusion
The next issue to which
I turn is whether the get up used by Cerebos in its braai salt
product is sufficiently similar to the
get up of the braai salt
product of Swartkops as to cause confusion or deception in the
public.
10
Counsel for both
parties have referred me to a number of established principles which
I am enjoined to bear in mind when considering
this question. Before
referring to those principles it is necessary for me to state that
which seems obvious: each case must
be decided on its own facts. The
get up of the products in question in one case will almost never, if
ever, be the same as the
get up of the products in another matter.
Reference to the facts of other cases will therefore be of little or
no help in reaching
an appropriate conclusion.
A Court must notionally
transport itself from the Courtroom to the particular market place
and stand in the shoes of those who
might be expected to make use of
the goods offered by the two trade rivals.
11
The class of persons
which is likely to be the purchaser of the goods in question must be
taken into account in determining whether
there is a likelihood of
confusion or deception.
12
In
Blue
Line Manufacturing (Pty) Ltd v National Brands Ltd
13
the Court defined the
average, or ordinary, purchaser as follows :
“
When
one is concerned with alleged passing off by imitation of get up, as
is the case in the matter before us, one postulates neither
the very
careful nor the very careless buyer, but an average purchaser, who
has a general idea in his minds eye of what he means
to get but not
an exact and accurate representation of it. Nor will he necessarily
have the advantage of seeing the two products
side by side. Nor will
he be alerted to single out fine points of distinction or definition.
Nor even, as pointed out by Greenberg
J (from whom I have been
quoting) in
Crossfield
and Son v Crystalises Ltd
1925
WLD 216
at 220, will he have had the benefit of counsel’s
opinion before going out to buy. Nor will he necessarily be able to
read
simple words, as there are distressingly many people in South
Africa who are illiterate.
”
I was also referred to
the principle of imperfect recollection
14
and to the fact that a
Court must not “
peer
too closely
”
at
the similarities and differences in the get ups of the two products
because the ordinary customer would simply not undertake
that
exercise; rather the test is one of first and general impression.
15
Whilst that may be so,
it is clear from the authorities that our Courts have undertaken a
measure of critical analysis of the
differences and similarities
between the get up of the products of the two competing traders. I
refer, by way of illustration,
to the comparative analysis
undertaken by Harms AJA in
Reckitt
& Coleman
.
16
In my view, in order
for a Court to make an appropriate and correct finding, it must
undertake such an exercise – keeping
in mind, of course, the
relevant importance of the first and general impression. If a Court
does not undertake that exercise
and relies solely on a first and
general impression, it runs the risk of failing to distinguish
between unlawful passing off
and lawful competition.
It must be borne in
mind, in this regard, that an intention to compete is legitimate. An
intention to compete must therefore not
be confused with an
intention to deceive
17
and a Court must be
sufficiently astute to ensure that such confusion does not arise
when making a finding. This is so because
a manufacturer has no
monopoly in a get up. In
Distilleerderij
Voorheen Simon Rijnbende en Zonen v Rolfes, Nebel & Co
18
Gregorowski J stated :
“
These
cases make it quite clear that a trader has no monopoly in the “get
up” of his goods. However great the advantage
and merits of his
“get up” may be over that of his trade rivals, how ever
much money, time and thought he may have
expended over the designing
of the particulars, when once he has used and published them they do
not become his property but are
common property, which can be
appropriated by his rivals
provided
they do not mislead the public but make it perfectly clear that the
goods in the “get up” are not his but theirs
.
When once this principle is clearly born in mind much confusion is, I
think, avoided which in many cases of “passing off”
arises. Assuming that there has been no infringement of the
trademark, the question in “passing off” actions is
whether
the respondent, where he has imitated the applicant’s
“get up”, has sufficiently differentiated his goods from
those of the applicant. Under such circumstances the respondent is
bound to make it perfectly clear that although he has adopted
the
applicant’s “get up”, the goods are his and not
those of the applicant. If he succeeds in doing this then
no
liability rests upon him and no legal right of the applicant’s
has been invaded.”
(my emphasis)
Ultimately, and perhaps
most importantly, the likelihood of deception is a matter for the
Court and a decision must not be surrendered
to any witnesses.
19
This last principle
requires some comment in light of evidence tendered by the parties
regarding the question of confusion. On
8 March one Esmerelda
Myburgh wrote to Swartkops in which she recorded an incident at a
Pick ‘n Pay outlet in Port Alfred.
She had made her purchases
and approached the till. Her companion realised that they had
forgotten to purchase braai salt. As
a consequence she ran back to
the spice aisle. (“Ek hol toe terug na die speserygang toe”.)
There she saw the orange
bottle and hurried back to the till (“…
en wikkel toe terug til toe”.) There she realised that the
product
she had in her hand was not that which she had intended
buying. I am not persuaded that much weight should be attached to
her
evidence. She was clearly in a hurry and was inattentive in her
conduct. Ms Myburgh, to my mind, was not the average purchaser
who,
in terms of
Blue Line Manufacturing
, I am required to
consider. She is rather the careless buyer whose views I am enjoined
to disregard.
There is evidence of
alleged confusion from a second purchaser, one Pieter Labuschagne,
who testified that during March this year
he was delighted to see
Swartkops’ braai salt product back on the shelves at the Port
Elizabeth Pick ‘n Pay Hypermarket.
He was more delighted when
he realised it was on a special. He says: “
I picked up the
“Marina” special but at closer “inspection”
I realised that something was not right, and
in the end I was not
sure what I was holding in my hand. Was I deceived?
”
Here, too, I am not persuaded by this evidence. Mr Labuschagne
realised, immediately upon picking up the product,
that he was
dealing with something different. He was astute enough to realise
that this may not be the Swartkops braai salt product.
It does not
seem to me that much weight can in these circumstances be attached
to his evidence either.
A further difficulty
with the evidence of both Mr Labuschagne and Ms Myburgh is that only
their evidence is tendered by Swartkops
in support of the contention
that confusion has in fact arisen. I appreciate that evidence of
confusion may be difficult to come
by. However, both Ms Myburgh and
Mr Labuschagne wrote to Swartkops describing their experiences.
Nobody else did. I do not think
that the evidence of these two
individuals over a nine month period is indicative of actual
confusion on the part of the average
purchaser. Even if my
criticisms of their evidence is unwarranted, I am ultimately
required to form my own judgment as to the
likelihood of deception.
The evidence tendered by these two witnesses is not sufficient to
persuade me that my conclusions regarding
the likelihood of
deception, which I deal with below, are wrong.
Before turning to those
conclusions, it is necessary that something be said about Mr Jeremy
Sampson, an individual with expertise
in the fields of branding,
marketing, design and communication strategy. His evidence is that
when marketing certain products
they become associated with certain
colours. He visited certain websites and two retail outlets in order
to review current brand
identities used in the salt category in
South Africa. That research was, to my mind, excessively limited in
its ambit and I place
no reliance on his evidence in reaching the
conclusions which I have.
With the aforegoing
principles in mind and without, I hope, peering too closely at the
competing products, I turn now to an examination
of them. For the
convenience of the reader, a photograph of the competing products is
annexed to this judgment and marked “A”.
That on the
left of the photograph with the Marina trade mark is the product of
Swartkops and that on the right with the Buffalo
trade mark is that
of Cerebos. As can be seen from the photograph, both products come
in orange containers which hold 400g of
salt and they are the same
height. There are, however, significant differences between the
containers. The Swartkops container
has prominent ridges, three of
them above its label and four below the label. Those ridges are
absent from the Cerebos container
which has smooth sides where the
ridges are found in the other product. The recess in the middle of
the container to which the
label is affixed is more indented in the
Swartkops product than is the case in the Cerebos product.
These differences in
the containers have the result that the profile of the respective
containers are sufficiently different,
to my mind, to distinguish
the products in the mind of the ordinary purchaser.
The different profile
is enhanced by the closures or caps which are different the one from
the other not only in colour but also
in shape and therefore
profile. This, too, serves to distinguish the products to the
ordinary purchaser.
I turn to the labels.
The background of the Swartkops label is orange while that of the
Cerebos label is brown. The effect of
this is that the get up of the
former’s product is overwhelmingly orange whereas the latter’s
product has a darker
and more brown appearance. The Cerebos label
also has an area shaded black below the Buffalo trade mark and
behind the other
significant features of its label. This is not the
case with the Swartkops label. This, too, serves to distinguish the
product
to the ordinary customer.
Because, as was held in
Reckitt
& Coleman
,
20
purchasers of ordinary
household goods know that similar goods having different origins
often have similar containers, I am satisfied
that the
distinguishing features of these containers will alert the ordinary
purchaser to the fact that he or she is being confronted
with
different products.
It is true that the
trade marks “Marina” and “Buffalo” on the
two products both appear in a white oval
surmounted by a small oval
device in the same place on the respective labels. There, however,
the similarity ends. The Marina
trade mark is in blue with the words
“sea salt – seesout” immediately below it whereas
the Buffalo trade mark
is in black without any additional words. The
Marina oval device is bordered in blue while the Buffalo oval device
is bordered
in black. The smaller oval device surmounting the Marina
trade mark is a stylised wave in white on a blue background whereas
that above the Buffalo trade mark is a white buffalo against a black
background.
The different trade
marks will obviously serve to draw the attention of the ordinary
purchaser to the fact that he is dealing
with different products.
Whilst there are similarities in the overall configurations in which
the different trade marks appear,
there are nonetheless in my
opinion also sufficient differences to ensure that the ordinary
purchaser is not confused.
I turn now to the words
“
braai salt
” which appear on both products.
The use of these words is, of course, permitted because they are
merely functional and
serve the purpose of describing what product
is in fact being sold. The manner in which the words themselves is
presented, moreover,
is very different. In the Swartkops product,
the word “braai” is in brown on a white surround while
the word “salt”
is in white with a brown surround. The
words are angled and rise to the right as one reads them.
On the Cerebos product,
those words are much larger than on the other product. They are in
red and orange with a black surround.
They do not rise to the right
and the word “
braai
” has stylised flames
emerging from the top of the word. Here, too, the ordinary purchaser
will be alerted to the fact that
she or he is dealing with a
different product.
Both products have a
picture of food being cooked on a braai below the words “braai
salt”. The picture of the food
on the Swartkops product is in
brown and white and is rather subdued in its presentation. On the
other hand, the picture on the
Cerebos product is visually far more
striking and uses different colours being red, black, and an
orange/brown. Although both
pictures are of food on a braai, the
manner in which they are presented is strikingly different. There
is, to my mind, no possibility
of the average purchaser ever
confusing the one picture for the other.
Finally, below the
pictures there are further differences to be found. The Swartkops
product has the words “
with spices
” in red
with a white surround and immediately below that the legend “
an
exciting flavour for braaiers and a family favourite in the
kitchen
” in white. The Cerebos product, on the other
hand, has only the words “
shake it
” below
its braai picture. Those words are in red and mustard and have as a
border duplicate black and white lines presented
in a manner which
is suggestive of the action of shaking. There is absolutely no
similarity in respect of this aspect of the
get up of the competing
products.
I am accordingly
satisfied that Cerebos has sufficiently distinguished the get up of
its product from that of Swartkops so that
there is no prospect on
the part of the ordinary customer of either confusion. Cerebos has,
in my opinion, made it “perfectly
clear”
21
that its product is not
that of Swartkops. It follows that I find that there was no
fraudulent intent to deceive on the part of
Cerebos as was argued on
behalf of Swartkops. Whilst I have embarked upon what I consider to
be a necessary measure of critical
analysis of the get up, I have
throughout borne in mind the relative importance of a first and
general impression one experiences
when viewing the competing
products, as well as the principle of “imperfect
recollection”. I have also borne in mind
that braai salts are
a low cost product sold in an economical segment of the market.
Bearing in mind all these factors, I nonetheless
remain satisfied
that the conclusion which I have drawn is the correct one.
There remains one
further argument advanced by Mr Marriott on behalf of Swartkops to
consider. He refers to
PPI
Makelaars and Another v Professional Provident Society of South
Africa
22
where Harms JA quoted
with approval from the decision of
Broderick
and Bascom Rope Co v Manoff
23
where the Court held
that :
“
The
due protection of trade marks and similar rights requires that a
competitive business, once convicted of unfair competition
in a given
particular, should thereafter be required to keep a safe distance
away from the margin line – even if that requirement
involves a
handicap as compared with those who have not disqualified themselves.
He argued that Cerebos
was required to keep a safe distance away from the margin line by
virtue of the fact that it had launched
its product with a
particular get up which it had subsequently changed by virtue of the
demands made upon it. I am not persuaded
by this argument. I have
not had the benefit of reading the
Broderick
case, but the
reference to a conviction for unfair competition in the passage
which has been quoted suggests to me that what
is required is that
there be a formal finding in some form or another that a person has
made herself or himself guilty of unfair
competition before she or
he will have to keep a safer distance away from the margin line.
Here there is no question of such
a finding having previously been
made nor is there any basis for it to be made in these proceedings.
As I have indicated earlier
in this judgment, Cerebos made the
earlier changes to the get up of its product without acknowledging
that it was obliged to
do so and without prejudice to its rights.
But even if I am wrong, in this regard, and that Cerebos was as a
matter of law required
to go significantly further away from the
margin line than would otherwise have been the case, the get up of
its product is so
different for the reasons which I have identified
that I nonetheless remain satisfied, notwithstanding this
“handicap”,
that Cerebos has sufficiently distinguished
its product from that of Swartkops.
The following order is
accordingly issued :
47.1 The application is
dismissed, with costs.
_________________________
S C RORKE
Acting Judge of the High
Court of South Africa
20 October 2011
Appearances :
For the Applicant: Mr G
Marriott
Instructed by Smith
Tabata Attorneys
For the Respondent: Mr G
E Morley SC
Instructed by Mike Nurse
Attorneys
1
Online
Lottery Services v National Lotteries Board
2010
(5) SA 349
(SCA) at para [37]
2
Jenifer
Williams & Associates v Life Line Southern Transvaal
[1996] ZASCA 46
;
1996 (3) SA 408
(AD) at 418 D – G
3
Jenifer
Williams
(
supra
)
at 418 G – I
4
[2006] ZASCA 5
;
2006
(4) SA 275
SCA at para [8]
5
1993
(2) SA 307
(AD) at 317 F
6
supra
at paras [37] to [39]
7
1957
(4) SA 234
(C) at 240 C – E
8
At
317 C
9
1987
(4) SA 821
(D) at 837 D – F
10
Adcock-Ingram
Products Ltd v Beecham SA (Pty) Ltd
1977
(4) SA 434
(W) at 437 F – 438 A;
Cambridge
Plan AG and Another v Moore and Others
1987
(4) SA 821
(D) at 838 B;
Reckitt
& Coleman
(
supra
)
at 315 B
11
Oude
Meester Groep Beperk and Another v SA Breweries Ltd
1973 (4) SA 145
(W) at 161 C – E;
John
Craig (Pty) Ltd v Dupa Clothing Industries
1977
(3) SA 144
(T) at 153 G
12
Reckitt
& Coleman
(
supra
)
at 315 F – G
13
2001
(3) SA 884
(SCA) at para [3]
14
Sea
Harvest Corporation (Pty) Ltd v Irvin & Johnston Ltd and
Another
, Unreported decision by
Cloete AJ in the Western Cape High Court, Cape Town, under Case No
2966/10 delivered on 17 March 2011
15
Sea
Harvest
(
supra
)
at paras [31] and [32];
Plascon-Evans
Paints v Van Riebeeck Paints Ltd
1984
(3) 620 (AD) at 640 G – 641 E
16
At
318 C – G
17
Reckitt
& Coleman
at 318 C
18
1913
WLD 3
at p9; See also
Blue Line
Manufacturing
(
supra
)
at para [4]
19
Reckitt
& Coleman
(supra
)
at 315 D
20
At
317 F
21
Distilleerderij
Voorheen Simon Rijnbende en Zonen
(
supra
)
at p9;
Blue Line Manufacturing
(
supra
)
at para [4]
22
1998
(1) SA 595
(SCA) at 605 C – D
23
[1930]
41 F (2) d 353 at 354