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[2012] ZAKZDHC 80
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New Reclamation Group (Pty) Ltd v Chicks Scrap Metal (Pty) Ltd and Others (2602/11) [2012] ZAKZDHC 80 (16 November 2012)
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
Case
No: 2602/11
In
the matter between
New
Reclamation Group (Pty) Ltd
..................................................
Applicant
and
Chicks
Scrap Metal (Pty) Ltd
.............................................
First
Respondent
Robert
Jacques Thomas McClelland
...........................
Second
Respondent
Uniforum
SA
.......................................................................
Third
Respondent
JUDGMENT
Delivered on: 16 November
2012
STEYN
J
[1]
This is an application lodged by first and second respondent seeking
an order to stay the application for trademark infringement
and
passing off (‘the main application’) pending the final
determination of a review presently pending before the North
Gauteng
High Court (‘the review proceedings’), and expungement
proceedings (‘the expungement proceedings’)
presently
pending before the Registrar of Trade Marks in Pretoria in respect of
Trade Mark numbers 1998/07607-10. The aforesaid
mark is registered in
classes 35 and 37.
[2]
The applicant and the first respondent not only share a history but
both are companies that compete in the scrap metal industry.
According to the papers filed in the main application, the second
respondent was first employed by the Reclamation Group and later
by
the applicant. At the moment there is no bond between the parties
other than that they are caught up in a spiral of litigation.
[3]
The issues that require determination are:
Whether
the respondents have succeeded in showing that they have a basis in
law for the Court’s discretion to stay the proceedings.
If
so, whether the court should exercise its discretion in favour of
the respondents to grant a stay of proceedings.
(c)
Whether the respondents are
bona fide
in seeking a stay of the
proceedings.
It
was common cause that the respondents bore the onus of proving
circumstances that justify a stay of the proceedings.
[4]
Subsequent to the matter being argued, counsel for the respondents,
Ms Annandale SC, submitted the case of
Farmer’s Table (Pty)
Ltd v Kentucky Fried Chicken (South Africa) (Pty) Ltd
[2011] JOL
27552
(T) to my registrar with an explanatory note. Counsel for the
applicant, Mr Sholto-Douglas SC, in response filed a note and
commented
on the case, these comments were received by my registrar
on 12 September 2012. On 25 October 2012, more than a month after the
submissions of Mr Sholto-Douglas were received, the following
correspondence was delivered at my chambers. I consider it necessary
for reasons that will follow, to quote the entire content of the
covering letter:
’
As you
are aware, the Applicant’s attorneys, Werksmans, sent a note to
you on 13 September 2012, dealing with the correctness
and relevance
of the judgment in
Farmer’s
Table
which we felt duty bound to draw to your attention as soon as we
became aware of it, as it appeared to us to be relevant to the
issues
you have been called upon to decide.
We did not originally envisage that
a note from our counsel would be necessary. Once the note was filed
however, and we considered
what was submitted to you, we formed the
view that it was important for us to make certain submissions on
matters which arose from
the Werksmans note. We considered that these
matters were important for Your Ladyship to take into account in
interpreting the
significance and/or applicability of the
Farmer’s
Table
judgment in the present context.
To this end we sent a note through
to you asking that you take it into account. The note was also sent
to opposing counsel. Before
accepting the note, you asked that we
first seek consent from the Applicant.
We attach:
our letter to Werksmans of 16
October 2012;
the response from Werksmans dated
18 October 2012; and
our reply to Werksmans of today’s
date;
a copy of the note prepared by our
counsel on the correctness and relevance of
Farmer’s Table
.
You will note that the Applicant
objects to Your Ladyship taking our note into consideration in the
preparation of her judgment.
We submit that it is in the
interests of justice that both parties’ notes be considered in
determining the correctness and
relevance of the judgment in
Farmer’s
Table
.
We ask that Your Ladyship deal with
the matter as she sees fit.’
I
am dismayed by the fact that the representatives of the respondents
could wait six weeks before approaching my registrar to file
their
submissions. Since it had been counsel for the respondents who
considered it relevant to submit the
Farmer’s
Table
case
to me, it is not unreasonable to have expected counsel to immediately
notify my registrar that she elects to respond to the
submissions
that were made on behalf of the applicant. Nothing prevented the
respondents from submitting the
Farmer’s
Table
case
with their own comments relating to the relevancy of the case. In any
event the filing of submissions on 25 October 2012, delayed
the
delivery of this judgment. I have decided to consider the submissions
made but, in the light of the aforesaid, I am, of the
view that the
respondents should be deprived of any costs of the submissions that
were submitted on 25 October 2012. The submissions,
16 pages in
total, also far exceed what would be considered as concise heads in
this division.
1
Legal
Framework
[5]
In
Nestlé
(South Africa) (Pty) Ltd v Mars Inc
2
the
SCA describe the features of the plea
lis
alibi pendens
as
follows:
’
The
defence of
lis
alibi pendens
shares
features in common with the defence of
res
judicata
because
they have a common underlying principle, which is that there should
be finality in litigation. Once a suit has been commenced
before a
tribunal that is competent to adjudicate upon it, the suit must
generally be brought to its conclusion before that tribunal
and
should not be replicated (
lis
alibi pendens
).
By the same token the suit will not be permitted to be revived once
it has been brought to its proper conclusion (
res
judicata
).
The same suit, between the same parties, should be brought only once
and finally.’
3
Heher
JA succinctly dealt with
lis
pendens
as
a discretionary remedy in
Janse
van Rensburg NO v Steenkamp:
4
‘’
Lis
alibi pendens
is
a discretionary remedy. It requires a balance of the interests of the
affected parties to achieve a fair result:
cf
Van As v Appollus en Andere
1993
(1) SA 606
(C) at 610D-G. Because of the failure of the lower courts
to take the material considerations that I have identified in the
preceding
paragraphs into account, we may properly exercise the
discretion ourselves. Since I can discern no particular inconvenience
or
disadvantage to an affected investor in having to face the
liquidators in a trial action designed to recover assets for the
benefit
of creditors, the liquidators’ decision should prevail.
I therefore conclude that the plea of
lis
alibi pendens
should
not be sustained.’
5
In
Corderoy v Union Government (Minister of Finance)
1918 AD 512
Innes CJ said:
‘
Where
there has been repeated and persistent litigation between the same
parties on the same cause of action, and in respect of
the same
subject matter, a defendant should not be driven to file repeated
pleas of
res
judicata
,
or to
make
a succession of applications to stay proceedings
where
prior costs have not been paid. I think he is entitled to more
effectual protection against long-continued unsuccessful onslaughts
in respect of the same dispute. Such protection could only take the
form of a general order curtailing in some respects the plaintiff’s
ordinary rights of litigation in that matter.’
6
(My emphasis.)
[6]
It is trite that courts should exercise their right to stay
proceedings sparingly and that it should usually be exercised when
proceedings are vexatious or frivolous in nature or when a
continuance of the proceedings would result in an injustice to one
party.
7
[7]
In considering the remedy sought and how such discretion should be
exercised, I rely on
Clipsal
Australia (Pty) Ltd and others v Gap Distributors and others
.
8
The
Court referred to the discretion to be exercised in the following
terms:
’
As I
shall presently indicate, I am of the view that if the court below
did have a discretion, on equitable grounds, to stay the
contempt
application, the exercise of that discretion in favour of the
respondents was not justified and should be set aside. I
shall,
therefore, likewise assume that the court below had such a
discretion. I shall furthermore assume in favour of the respondents
that
the discretion is a discretion in the strict or narrow sense
,
ie a discretion with which this court as a court of appeal can
interfere only if the court below exercised its discretion
capriciously
or upon a wrong principle, or has not brought its
unbiased judgment to bear on the question, or has not acted for
substantial reasons,
or materially misdirected itself.’
9
[8]
As much as it is accepted that in exercising such discretion the
court may consider what is just and equitable given the specific
circumstances, it has been held that it cannot be granted on the
basis of constituting only an injustice.
10
Merits
of the application
[9]
It is necessary to refer to the facts that are common cause between
the parties, since it places this application in perspective.
The
applicant in the main application is the registered proprietor of the
trade marks CHICKS SCRAP METAL and CHICKS DEVICE. The
first
respondent launched expungement proceedings on 2 September 2010 on
the grounds of non-use of the trade marks in terms of
section 27 of
the Trade Marks Act No. 194 of 1993 (hereinafter referred to as “the
Act”), the proceedings are pending
before the Registrar of
Trade Marks in respect of Trade Mark numbers 1998/07607-10. The
applicant launched the infringement proceedings
based on trade mark
infringement, passing off and unlawful competition in February 2011
under this case number in this division.
On 18 March 2011 the first
respondent launched a review application in the North Gauteng High
Court, seeking an order to set aside
the Registrar’s decision
to renew the applicant’s trade mark registration.
[10]
In my view the issue is procedural in nature and is it necessary to
determine whether the respondents, who are applying for
the relief
sought, have succeeded in showing that the requirements for a stay of
the proceedings have been met.
[11]
The respondents in the main application, applicants in this
application, premise their application on the fact that the same
disputes that underline the pending proceedings and the same legal
issues which arise therefrom need to be raised in the main
application which will not only increase the costs of the litigation
and result in delay but will cause multiple hearings in different
fora on the same questions of fact and law. Ms Annandale submitted
that the review proceedings should be decided first so that
the
question of proprietorship can be determined and then the
infringement can proceed on a proper basis.
11
Ms
Annandale in dealing with the applicable principles to be applied
submitted the following:
’
In the
present case, although all the litigation relates to the same subject
matter and raises similar legal questions, the same
relief on the
same cause of action is not sought in all the other proceedings and
so a plea of
lis
alibi pendens
could
not properly be raised. We submit that the similarities however
render the situation analogous to that of
lis
alibi pendens
insofar
as the availability of a stay of proceedings is concerned.’
In
the supplementary heads, dated 25 October 2012, Ms Annandale however
contends:
’
It is
pertinent in this context to recall that the Applicant argued at the
hearing of this matter that there was no true lis pendens
because the
parties in the expungement application are different to those in the
infringement application. However, the Applicant
now concedes that
the Registrar of Trade Marks can be joined in the main application
(and will have to be if there is a counter-claim
for expungement),
which then will leave only the Second Respondent (quite obviously
incorrectly cited in the main application)
and Uniforum (with no
interest in the litigation and least of all in the expungement
proceedings) as the remaining parties that
do not feature in the
expungement application. The Applicant’s own argument,
therefore, demonstrates an effective
lis
pendens
.’
I
shall return to these contentions when I deal with the issue of
lis
pendens.
In
addition it was argued that the factual and legal issues which arise
in all of the pending proceedings, constitute exceptional
circumstances warranting a stay of the main application pending the
finalisation of the review and expungement proceedings.
[12]
Ms Annandale submitted in the note filed 25 October 2012 that the
factors in the
Farmer’s Table
case are on all fours with
those that arose
in casu
. It has been submitted that Weyers J
in
Farmer’s Table
was not dealing with a case of
lis
pendens
in the strictest sense. I shall return to this issue. She
further submits that the circumstances
in
casu
are more
special than those that warranted the stay in the Farmer’s
Table case. In addition a distinction is drawn between
a true
lis
pendens
and an effective
lis pendens
. It is then argued
that the applicant succeeded in showing that there is an effective
lis pendens
.
[13]
An analysis of the
Farmer’s Table
case shows however
that
lis pendens
was specifically relied upon,
in casu
the applicant is however not relying on
lis pendens.
Mr
Sholto-Douglas, correctly in my view, distinguishes the
Farmer’s
Table
case by drawing attention to the chronology of the
different applications. The following is stated in his written
submissions:
’
In the
Farmer’s
Table
case
KFC sought the stay of the main application pending the determination
of the lis that had arisen prior to that application,
namely the
expungement proceedings. In casu, however, the Respondents seek a
stay of the main application pending not only the
expungement
proceedings, but also the review proceedings which, it is common
cause, arose
after
the
main application.’
The
facts of the
Farmer’s Table
case reveal that KFC had
detailed the prejudice suffered in the papers should a stay not be
granted.
In
casu
the respondents failed to demonstrate
any prejudice in the event of the stay not being granted. I am
therefore satisfied that the
Farmer’s Table
case is
distinguishable from the present matter. I shall now turn to the
issues that were originally argued.
Lis
alibi pendens
[14]
The respondents submitted at the time of the matter being argued that
a true defence of
lis
alibi pendens
cannot
be raised but in their supplementary heads contended that it
succeeded in showing that there is effective
lis
pendens.
In
my view to succeed in raising
lis
pendens,
it
would be required to show that the litigation relates to the same
dispute between the same parties before the same tribunal or
two
different tribunals with equal competence to end the dispute.
12
In
the present matter there is an expungement application before the
Registrar of Trade Marks, which is not a tribunal with equal
competence to end the dispute between the parties concerned. It is
also necessary to consider the proceedings that relate to the
review
application before the North Gauteng Court. The review proceedings
have been brought by the first respondent against the
applicant and
three other parties (who are not parties to the infringement
proceedings). A consideration of the parties to the
review
proceedings shows that neither the second respondent nor the third
respondent are parties to the review proceedings. It
is therefore
abundantly clear that any finding on the issue by the North Gauteng
High Court would not be binding on the second
and third respondent in
the infringement application.
Simply
put, seen in the context of
lis pendens
, the findings of the
Court in the review application would not bring an end to the dispute
between the present parties in this
matter.
It
cannot be ignored that the review application was launched a month
after the applicant launched its infringement proceedings
before this
Court. An examination of the review proceedings and the expungement
proceedings, coupled with the infringement and
passing off
application, results in a finding that the applicant had failed to
show that there is
lis pendens
either in its narrow sense or
an effective
lis pendens.
As
in the
Nestlé
case I am not persuaded that the
proceedings pending before the North Gauteng High Court or before the
Registrar of Trade Marks
are proceedings pending before an equally
competent tribunal since each of the aforementioned tribunals have
its own peculiar functions,
powers and authority.
Vexatious
proceedings
[15]
On behalf of those applying for the stay it has been submitted that
the institution of further proceedings between the same
parties
relating to the same subject matter whilst the first proceedings are
pending is
prima
facie
vexatious.
It
is evident from the papers filed on behalf of the applicant, that is
the founding affidavit as well as replying affidavit, that
no case
has been made out that the infringement proceedings are vexatious.
The concept
prima
facie
in
the law of evidence has always been understood to mean “evidence
upon which a court, applying its mind reasonably could
or might find
for the plaintiff”.
13
The
respondents go as far as to submit that since the trademarks are the
very subject of litigation pending elsewhere, similar considerations
arise as to the applicability of a stay which is available in respect
of vexatious proceedings. In order to determine whether the
applicant
has made out a case for the stay to be granted on the basis of the
infringement application being vexatious it is vitally
important to
consider the applicable legal principles that find application.
In
African
Farms and Townships Ltd v Cape Town Municipality
14
the
Court in a concurring judgment, defined vexatious as:
’
An action
is vexatious and an abuse of the process of Court
inter
alia
if
it
is obviously unsustainable
.
This must appear as a certainty, and not merely on a preponderance of
probability. Ravden v Beeten,
1935 CPD 269
at p. 276; Burnham v
Fakheer
1938 NPD 63.
’
15
(My emphasis.)
There
is no evidence before me that warrants the conclusion that the
infringement application is devoid of any merit and that the
infringement application is unsustainable. Moreover it cannot be said
that the applicant in the infringement application is not
bona
fide
in
bringing the application or that it does not have an interest in the
relief sought.
16
I
am not persuaded on the papers that either on the facts or in law
that the applicant in instituting the infringement proceedings
was
vexatious. Although the respondents rely on the proceedings as
vexatious in terms of the common law, it is useful to consider
the
type of conduct that would be defined as vexatious, by considering
section 2 of the Vexatious Proceedings Act No. 3 of 1956
(as amended)
which
inter
alia
defines it as:
’
[T]he
Court is satisfied that the said person has persistently and
without
reasonable ground
instituted
legal proceedings in any Court or in any inferior court …’
(My emphasis.)
In
my view neither the founding affidavit nor the replying affidavit
serve as sufficient proof that the infringement application
is
vexatious in nature.
Abuse
of process?
[16]
Pivotal to this enquiry is whether the applicant by instituting the
infringement proceedings abused the court process. In determining
this it is necessary to focus on the fact that currently the
applicant is the registered proprietor of the trade marks CHICKS
SCRAP METAL and CHICKS DEVICE. It is further trite that the trade
mark remains valid until declared invalid. The expungement
proceedings
are still pending before the Registrar. Is it possible
that the claim to protect ones’ trademarks could be regarded as
an
abuse of the court process? In
Western
Assurance v Calderwall’s Trustee
,
17
the
Court held:
’
Every
Court has an inherent right to prevent an abuse of its process in the
forum of frivolous or vexatious litigation. (Reichel
v Magrath,
14 AC
665)
’
18
In
Beinash
v Wixley
19
Mohamed
CJ considered whether the issue and service of a subpoena constituted
an abuse of the process of Court and remarked succintly:
’
What does
constitute an abuse of the process of the Court is a matter which
needs to be determined by the circumstances of each
case.
There
can be no all-encompassing definition of the concept of ”abuse
of process”
.
It can be said in general terms, however, that an abuse of process
takes place where the procedures permitted by the Rules of
the
Court
to facilitate the pursuit of the truth are used for a purpose
extraneous to that objective.
(Standard
Credit Corporation Ltd v Bester and Others 1987 (A) SA 812 (W) at
820A-B; Taitz The Inherent Jurisdiction of the Supreme
Court (1985)
at 16.)’
20
(My emphasis.)
[17]
Applying the aforesaid dicta to the circumstances of the present case
where the applicant instituted the infringement proceedings
to
protect what is lawfully its property, i.e. the trade marks, cannot
be labelled as a process aimed at not pursuing the truth.
It is also
not a process instituted for an extraneous purpose and objective.
There is not a single piece of evidence in support
of the submission
that the applicant’s conduct in the main application is an
abuse of this Court’s procedures or processes.
Prejudice
[18]
As much as the first respondent attempted to demonstrate any
prejudice in its replying affidavit
21
it
was apparent at the time when the matter was argued that Ms Annandale
could do no better than rely on what is stated in the replying
affidavit of the first respondent, which reads as follows:
‘
Finally,
the applicant contends that the respondents have not demonstrated any
bona fide prejudice if the stay is not granted. The
extraordinary
submission amounts to this:
it would not be prejudicial to
the respondents to be interdicted from trading, perhaps for several
years, using marks they have
adopted in good faith without there
being any possibility of any confusion or deception between the
goods and services of the
applicant and those of the respondents;
the respondents should be put to
the expense of removing all signage, advertising and promotional
material, order forms, business
cards, websites, catalogues, price
lists and any other material bearing the CHICKS marks, re-brand the
business at great expense,
lose the benefit of the reputation the
first respondent has already built up in the marks since March 2010
and then, if in
due course it is found that all of this was wholly
unwarranted, that it should then again be put to the expense of
re-branding
itself as Chicks and suing the respondents for all of
the damages it has suffered in the intervening period.’
Mr
Sholto-Douglas has argued that not only is it procedurally
impermissible to introduce the grounds for prejudice for the first
time in the reply, the facts relied upon amount to mere speculation
that should not persuade this Court in granting the stay of
the
infringement proceedings. I agree that the respondents failed to
specify the prejudice that they would suffer should the stay
not be
granted.
22
Exceptional
Circumstances
[19]
The applicants finally submitted that exceptional circumstances exist
in
casu
that
warrant the exercise of this Court’s discretion in its favour.
In the supplementary heads, dated 25 October 2012, the
respondents
aver that the review proceedings constitute the main proceedings and
that the review proceedings necessarily arose
after the infringement
proceedings and that in itself it constitutes a special circumstance.
I fail to understand the rationale
for it to be regarded as
exceptional given the facts before me. Once more this submission is
contained in the note filed after
the matter was heard which leaves
this Court in an invidious position, since it is raised at a time
when the respondent is deprived
of the opportunity to respond to it
but more importantly when this Court is deprived of the opportunity
to pose questions to counsel
and to ask clarification.
23
In
my view not much turns on this issue. In any event I am not persuaded
that there is an exceptional circumstance that weighs in
favour of
granting a stay of the proceedings.
At
the time of the matter being argued the applicant urged this Court to
consider its discretion to grant a stay of proceedings,
based upon
consideration of convenience and the determination of what is just
and equitable.
24
Whilst
this Court is mindful of its constitutional obligation to develop the
common law in the interests of justice,
25
it
remains questionable, given the stakes and interests that are at risk
whence dealing with trade marks, whether there is any reason
to
deviate from previous practices. This Court cannot overlook the fact
that the applicant in the infringement proceedings is the
proprietor
of the trade marks in question. The SCA has adopted Lord Diplock’s
rules
26
and
it is necessary to repeat the first rule, which is relevant:
’
(1) The
fact that the
mark
is entered upon the register is
prima
facie
evidence
of the validity of the original registration
and of
the right of the registered proprietor to the exclusive use of the
mark, subject however, to the rights of concurrent user
by any
registered proprietor of an identical mark or one nearly resembling
it. ’
27
(My emphasis.)
Section
51 of the Act echoes the same:
‘
51
Registration to be
prima
facie
evidence
of validity
In all legal proceedings relating
to a registered trade mark (including applications under section 24)
the fact that a person is registered as the proprietor of
the trade mark shall be
prima facie
evidence of
the validity of the original registration
of the trade
mark and of all subsequent assignments and transmissions thereof.’
(My emphasis.)
Inasmuch
as it was argued on behalf of the respondents that if a stay is not
granted the first respondent would be deprived of a
tactical
advantage to which it would be entitled to, the opposite is also
true, that is, a granting of a stay of the infringement
proceedings
would have the effect that the applicant would be deprived of
protecting what is lawfully regarded as its property.
It has to be
accepted that the whole purpose of registering a mark is to enforce
that right should it be infringed.
[20]
I am not convinced that there is a need to develop the law or the
principles that apply to a stay of proceedings.
28
The
facts of this application are not as such to call for a
re-examination of the procedural principles. The principles remain
sound and in accordance with justice. After a careful consideration
of all the issues raised by the respondents in applying for
the stay,
I am not persuaded that they are entitled to the relief sought.
Given
the pending proceedings in the
fora
earlier
listed, I am not convinced that it can be found that the respondents
were not
bona
fide
in
bringing this application. It is possible that they were delaying the
main application but there is no certainty, not even on
a balance of
probabilities.
Order
[20]
The application is dismissed with costs, such costs to include the
costs of two counsel.
__________________________
Steyn
J
Date
of Hearing: 10 August 2012
Date
of Judgment: 16 November 2012
Counsel
for the applicant: Adv Sholto-Douglas SC
Adv
BJ Vaughan
Instructed
by: Werksmans
Counsel
for the respondents: Adv Annandale SC
Instructed
by: Adams & Adams
1
See
Practice Directive 9.4.1 of the KwaZulu Natal Division.
2
2001
(4) SA 542
(SCA).
3
Ibid
at para [16].
4
Janse
Van Rensburg and others NNO v Steenkamp and another; Janse Van
Rensburg
and
others NNO v Myburgh and others
2010
(1) SA 649
(SCA).
5
Ibid
at par [35]
6
Ibid
at 518
.
7
See
Cilliers et al Herbstein and van Winsen: The Civil Practice of the
High Courts of
South Africa, 5
th
ed (2009) Vol 1 at 306
et seq
.
8
2010
(2) SA 289 (SCA).
9
Ibid
at para 19.
10
See
Belmont
House (Pty) Ltd v Gore and Another NNO
2011
(6) SA 173
(WCC) at
para
9.
11
See
para. 29 of first and second respondents’ heads of arguments.
12
See
Nestlé
supra
at para 17.
13
See
Schwikkard and Van der Merwe ‘Principles of Evidence’
(2009) 3
rd
ed,
Juta, at
578. Also
Mazibuko v
Santam Insurance Co Ltd
and another
1982 (3) SA 125
(A)
at 132 -133. CF Schwikkard op cit at 20.
14
1963
(2) SA 555
(AD).
15
Ibid
at 565D-E.
16
Cf.
Van Deventer v Reichenberg and Another
1996 (1) SACR 119
(C)
at 128.
17
1918
AD 262.
18
Ibid
at 273.
19
1997
(3) SA 721 (SCA).
20
Ibid
at 734F-H.
21
See
para. 30 at 550-551.
22
Cf.
The
Farmer’s Table
case at page 9.
23
See
para. 2
supra.
In
the light of all the delays caused I do not consider it prudent to
ask the parties to file further heads, which is an option
in some
cases.
24
See
Belmont House (Pty) Ltd
supra
at para.
9.
25
See
Minister of Public Works v MXN
Development Construction CC
[2007[ JOL
20434
(C)
at para. 11.
26
See
General Electric Co v The General
Electric Co Ltd
[1972] 2 All ER 507
(HL);
Luster
Products
Inc v Magic Style Sales CC
1997 (3) SA 13
(A) and
SAFA v
Stanton
Woodrush
(Pty) Ltd t/a Stan Smidt &Sons
and another
2003 (3)
SA 313
(SCA).
27
Ibid
at 324A-B.
28
Cf.
Minister of Public Works v MXN Development
supra
at
para 11.