Staff Association for the Motor and Related Industries v Motor Industry Staff Association and others (JA71/98) [1999] ZALAC 13 (3 August 1999)

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[1999] ZALAC 13
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Staff Association for the Motor and Related Industries v Motor Industry Staff Association and Another (JA71/98) [1999] ZALAC 13; (1999) 20 ILJ 2552 (LAC) (3 August 1999)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held at Johannesburg
Appeal Case no.: JA 71/98
In the matter between:
Staff Association for the Motor and Related
Industries
Appellant
and
Motor Industry Staff Association
First
Respondent
Registrar of Labour Relations
Second
Respondent
__________________________________________________________________________
Judgment
___________________________________________________________________________
Ngcobo AJP
[1] Two issues arose on appeal. They are:
(a) what is the nature of the appeal from the
decision of the Registrar of Labour Relations to the Labour Court as
contemplated
in section 111(3) of the Labour Relations Act No 66 of
1995 (LRA); and
b) whether the appellant’s name so closely
resembles the name or shortened name of the first respondent with
the result that
it is likely to mislead or cause confusion.
[2] These issues arose in the following manner:
the appellant, Staff Association for the Motor and Related
Industries, applied to
the Registrar of Labour Relations, the second
respondent, to be registered as a trade union. The name it proposed
to be registered
under is “Staff Association for the Motor and
Related Industries”, and its shortened name or acronym is SAMRI.
The Motor Industry
Staff Association, first respondent, objected to
the registration of the appellant.
[3] It must be mentioned here that this
application was made on 13 May 1996 and was thus made in terms of
the 1956
Labour Relations Act. It
was initially dealt with under
that Act. However, the decision to register the appellant was made
under the LRA. On appeal, as
in the court below, the parties dealt
with the matter on the footing that the appellant’s application
was properly dealt with
by the second respondent under the LRA.
Indeed, this was the proper course to follow as Item 6(1) of
Schedule 7 (Transitional Arrangements)
to the LRA provides that a
pending application for the registration of the trade union “must
be dealt with by the [second respondent]
as if the application had
been made in terms of [the LRA].
[4] Despite the said objection the second
respondent registered the appellant on 6 March 1997 and issued the
certificate of registration.
Subsequently, the registration of the
appellant was published in the Government Gazette.
[5] When the registration of the name of the
appellant came to its attention, the first respondent requested the
second respondent
to provide its written reasons for its decision to
register the appellant. This it did in terms of section 111 (1) of
the LRA.
In response, the Deputy Registrar of Labour Relations
advised the first respondent that the decision to approve the name
of the
appellant “was based upon the following reasons:
(i) the application complied with the
requirements of the Act relating to the application for
registration;
(ii) the Union’s constitution complied with the
provisions of the Act; and
(iii) the Union’s name it intended to register
did not to my mind so closely resemble the name or shortened name of
another trade
union that it is likely to mislead or cause
confusion.”
[6] Thereupon the first respondent appealed
against the decision to register the appellant to the Labour Court
in terms of section
111 (3). The appeal was directed against the
finding that the appellant’s name does not so closely resemble the
name of the first
respondent so as to mislead or cause confusion.
[7] Revelas J, before whom the matter came on
appeal, held that :
a) the nature of the appeal contemplated in
section 111(3) is an ordinary appeal in the sense of a rehearing on
the merits but
limited to the evidence or information on which the
decision under appeal was given and in which the only issue for
determination
is whether that decision was wrong or right; and
b) the name of the appellant so closely
resembles that of the first respondent that it is likely to mislead
or cause confusion.
[8] The appeal is against the said findings.
[9] Before dealing with the main issues raised in
this appeal, it is necessary to deal with certain preliminary issues
raised by
Mr Pillemer, who appeared on behalf of the appellant. He
made two preliminary submissions, firstly, that the decision
envisaged
in section 111 (3) is not a decision to register a trade
union but a decision refusing such registration; and secondly, since
it
is an applicant for registration who may be aggrieved by such a
decision, section 111 (3) may only be invoked by such applicant.
In
consequence, the words “any person” in section 111 must be
construed to mean the applicant for registration.
[10] Section 111 of the LRA provides:
Within 30 days
of the written notice of a decision of the
registrar
, any
person who is aggrieved by the decision may demand in writing that
the
registrar
provide written reasons for the decision.
The
registrar
must give the applicant written reasons for the decision within 30
days of receiving a demand in terms of subsection (1).
Any person who
is aggrieved by a decision of the
registrar
may appeal to
the Labour Court against that decision, within 60 days of –
(a) the date of the
registrar’s
decision; or
(b) if written reasons for the decision are demanded, the date of
those reasons.
The Labour
Court, on good cause shown, may extend the period within which a
person may note an appeal against a decision of the
registrar
.”
[11] The validity of the preliminary submissions made by Mr Pillemer
depends upon the proper construction of the words “any person”
in section 111 (3) which echo the same expression in section 111(1).
It is trite that words in a statute must be given their ordinary
grammatical meaning unless the context indicates otherwise.
Union
Government (Minister of Finance) v Mark
1917 AD 731
at 739;
Public Carriers Association v Toll Road Concessionaries
1990
(1) SA 925
(A) at 942I - 943A. In its natural and ordinary sense,
the word “any” - unless restricted by the context - is an
indefinite
term which includes all persons to whom it relates.
(Compare
Hayne & Co v Kaffrarian Steam Mill Co Ltd
1914
AD 363
at 371.) It is a word of wide and unqualified generality.
R
v Hugo
1926 AD 268
at 271).There is no reason why a limited or
restricted meaning should be given to the words “any person” in
subsection (3).
These words in their plain ordinary grammatical
meaning include a union which seeks to object to the registration of
another trade
union on the basis that the name to which it objects
is likely to mislead or cause confusion. There is nothing to
indicate clearly
that the words under
consideration were intended to bear the restricted meaning contended
for by Mr Pillemer. The contrary appears
to be the case.
[12] What section 111 contemplates is that any
person who is aggrieved by the decision of the second respondent may
demand reasons
for the decision in terms of section 111 (1). The
applicant for registration would have received the reasons in terms
of section
96 (4) (a) which require the second respondent in the
event of a refusal to register the union, to furnish such applicant
with
the written notice of the decision and reasons for the
decision. The applicant would therefore not require any reasons.
However,
if within 30 days of the decision refusing registration the
applicant attempts to, but fails to comply with the registration
requirement,
the applicant may be content with the reasons already
furnished. If the applicant is not so content, it is open to such
applicant
to demand reasons for the subsequent refusal like “any
person” who is aggrieved by the decision of the second respondent.
[13] To construe “any person” as referring to
an applicant for registration would result in other persons who
might be aggrieved
by the decision of the second respondent being
left without a remedy under the LRA. In particular, a trade union
which might have
a legitimate complaint that the name registered so
closely resembles its name that it is likely to mislead or cause
confusion.
Yet there can be no doubt that the prohibition against
the registration of a union by a name that resembles another with
the result
that it is likely to mislead or cause confusion was,
inter alia
, intended to protect such a union. In my view, it
would require plain and unambiguous language to prevent any
aggrieved union or
person from challenging the registration under
the LRA.
[14] It seems to me that had the legislature
intended the words “any person” to mean the applicant for
registration it would
have said so as it did in section 96. Its
failure to do so, indicates that it intended these words to bear
their ordinary grammatical
meaning. Once it is determined that “any
person” is not restricted to an applicant for registration, the
words “the applicant”
in subsection (2) must, in the context of
section 111, mean an applicant for written reasons. To construe this
word otherwise would
lead to an absurdity. The result would be that
there is no time limit within which reasons are to be furnished to
other persons
who demand these in term of subsection (1) while there
is a time limit in respect of an applicant for registration.
[15] I conclude, therefore, that the decision
contemplated in section 111 is not limited to a decision refusing
registration and
that the words “any person” are not restricted
to the applicant for registration.
[16] With these preliminary issues out of the
way, I now return to the main issues presented in this appeal.
Nature of the appeal
[17] The problem confronting us in this regard is
essentially one of construction of section 111, in particular, the
meaning to
be given to the word “appeal” in that section. The
sense in which that word is used in the section must be determined
from
its context.
[18] It is by now axiomatic that the word
“appeal” can, as a general matter, have three connotations.
They are:
(a) An appeal in the wide sense, that is, in the
sense of a complete rehearing and adjudication of the merits with or
without additional
evidence or information;
(b) An appeal in the ordinary narrow and
technical sense referring to a rehearing on the merits, but one that
is limited to the
evidence or information on which the decision
appealed against was given and in which the only issue to determine
is whether that
decision was right or wrong; and
(c) a review, that is, a limited rehearing, with
or without additional evidence or information to determine, not
whether the decision
appealed against was right or wrong, but
whether the official who made the decision had exercised his or her
powers and discretion
honestly and properly.
Tikly and Others v
Johannes, NO, and Others
,
1963 (2) SA (T) 588 at 590F - 591A.(in which the
court considered the nature of the appeal to the revision court in
terms of section
19(5) of the Group Areas Development Act 61 of
1955);
S v Mohamed
1977 (2) SA 531
(A) at 538 D - G. (in which the court considered the
nature of the appeal in terms of section 97 of the Criminal
Procedure Act
56 of 1955, as amended, which made provision for an
appeal against the decision of a magistrate refusing bail); and
National Union of Textile Workers v
Textile Workers Industrial Union SA & Others
1988 (1) SA 925
(A), at 937 C - G, ( in which the court considered
the nature of the appeal to the Industrial Court in term of section
21 (A) of
the 1956
Labour Relations Act against
the decision of the
Industrial Council refusing membership on the Council).
[19] What must be determined in this appeal,
therefore, is which of the connotations referred to in
Tikly’s
case must be given to the word “appeal” in
section 111(3).
[20] Unlike its predecessor the LRA makes no
provision for objectors to be heard before the decision to register
the name is made.
The result is that potential objectors only become
aware of the application to register the name and the decision
thereon after
the decision had been made. In addition, there is no
provision in the LRA for requesting the second respondent to
reconsider his
decision in light of objections which may be
submitted by an objector subsequent to the receipt of the reasons
requested in terms
of
section 111
(1). What an objector is required
to do is to request written reasons for the decision in terms of
section 111
(1) and thereafter to appeal to the Labour Court in
terms of
section 111
(3). Once the objector is in receipt of such
reasons, the matter is then governed by the rules of the Labour
Court.
Rule 9
makes provision for a notice of appeal setting out
particulars of the decision appealed against, findings of facts
appealed against
including conclusions of law challenged. In
addition, the appellant is required to deliver written
representations in respect of
the appeal. The respondent may deliver
a response.
[21] What, therefore, emerges from the procedure
contemplated in the LRA is that the decision of the second
respondent will only
be based upon the information submitted by the
applicant for registration. When the matter goes to the Labour
Court, the objector
will for the first time have the opportunity to
put his or her case before a tribunal. The applicant may reply. This
procedure
effectively excludes the appeal in the ordinary sense.
There is no record. The record is only developed before the Labour
Court.
[22] Nor is the appeal contemplated in the nature
of a review. Once the second respondent is satisfied that the
applicant meets
the requirement for registration, he is obliged to
register the name of the applicant. This is the plain meaning of
section 96(3)(b)
- “if satisfied that the applicant
meets
the requirements for registration, [the registrar]
must
register the applicant....” (underlining added). As a matter of
language, the subsection is imperative. Compare:
Commercial Staff
(Cape) v Minister of Labour and another
1946 CPD 632
at 643-4.
(Construing section 4(2) of the Industrial Conciliation Act 36 of
1937 dealing with the registration of trade unions).
The first
respondent has no discretion. The enquiry before him is whether, on
the information submitted to him, the applicant meets
the
requirements for registration. This can be determined objectively by
having regard to section 95 which sets out the requirements
for
registration. The Labour Court, on appeal, must determine whether
the decision was correct and not merely to ascertain whether
the
first respondent exercised his discretion honestly and properly.
Commercial Staffs (Cape) v Minister of Labour and another
,
supra at 643 - 644. This effectively eliminates the appeal being a
review.
[23] Mr Pillemer submitted that the word
“satisfied” in section 96 (4) must be interpreted to mean “if
in the opinion of the
respondent”. In my view, having regard to
the context in which this word occurs, this word means no more than
that the second
respondent must determine whether the requirements
for registration have been meet with. It does not import any
discretion on the
part of the second respondent.
[24] In my view the absence of the record, the
lack of procedure for lodging objections with the second respondent,
the absence
of power on the part of the second respondent to
reconsider the decision in the light of objections, and the lack of
discretion
on the part of the second respondent, show that the
appeal contemplated in section 111 (3) is an appeal in the wide
sense. It is
a complete rehearing and adjudication of the merits
with or without additional evidence or information. This procedure
allows the
objectors who were not parties before the second
respondent to present such evidence or information as they may wish
to place before
the Labour Court in support of their objections.
[25] Mr Pillemer relied heavily upon the
decision in
Shenker v The Master,
1936 AD 136
, in particular,
the passage which occurs at page 139, for the contention that the
“appeal” was merely a review. In
Tikly’s
case, Trollip
J, as he then was, considered a similar argument and rejected it. I
can do no more than repeat what he said on that
occasion:
“
Sec. 34 (2) of the Administration
of Estates Act empowers the Master to appoint ‘such person as he
deems fit and proper to be
executor dative’; and sec. 107 provides
that,
inter alia
,
every appointment by the Master was subject to ‘appeal or review
by’ the Court which could confirm, set aside or vary it.
In
Shenker’s
case the
Appellate Division held that in relation to an appointment under
sec. 34 (2) “appeal” means in effect merely a review
of the
Master’s appointment because sec. 34 (2) committed that
appointment so entirely to the Master’s discretion that it could
never have been contemplated by the Legislature that the Court could
and should under sec. 107 re-try the merits of the appointment
and
substitute its own appointment for that of the Master (pp. 146-7).
That decision, therefore, turned on the particular wording
of the
Administration of Estates Act. In the present case, in my view, for
the reasons given above, sec. 19 and the regulations
clearly enact
that the revision court on appeal must rehear the matter on the
merits and substitute its own determination for that
of the
valuators.
Shenker’s
case is therefore obviously distinguishable.”
The aforegoing passage applies equally to the
argument advanced by Mr Pillemer.
[26] I conclude, therefore, that the decision of
the court below on the first issue was wrong. The appeal
contemplated in section
111 (3) is an appeal in the wide sense of a
complete rehearing and adjudication on the merits with or without
additional evidence
or information.
The
resemblance between the appellant’s name and the first
respondent’s name
[27] In terms of section 95(4):
“
Any trade union...that intends to
register may not have a name or shortened form of the name that so
closely resembles the name
or shortened form of the name of another
trade union...that it is likely to mislead or cause confusion.”
[28] What the LRA seeks to prevent is the
registration of a trade union by a name that so resembles that of
another trade union
that there is a reasonable likelihood that the
one union may be confused for the other. Whether there is a
reasonable likelihood
of such confusion arising is, of course, a
question of law which will have to be determined in the light of the
facts of each case.
[29] The question to be decided in this appeal
is, therefore, whether the appellant’s name so closely resembles
that of the first
respondent so as to mislead or cause confusion.
The meaning of the words “is likely to mislead or cause confusion”
and the
general principles governing their application to the facts
of a particular case have not earlier been considered by the Labour
Courts or this court.
[30] However, a phrase substantially similar to
the one at issue in this appeal occured in section 44 (1) (a) of
the Trade Marks
Act 62 of 1963, which has since been repealed by the
Trade Marks Act 194 of 1993
. That section provided that rights
acquired by registration of a trade mark shall be infringed by:
“
(a) unauthorised use as a trade mark in
relation to goods ... in respect of which the trademark is
registered, if the mark so nearly
resembling it as to be likely to
deceive or cause confusion.”
The meaning of the phrase “as to be likely to
deceive or cause confusion” and the general principles governing
its application
to the facts, was frequently canvassed in courts.
See
International Power Marketing [Pty] Ltd v Searles Industrials
[Pty] Ltd
,
1983 (4) SA 163
(T) at pp. 165G - 170B, (in which
Margo J, delivering the judgement of the Transvaal Provincial
Division, gave a full review of
the legal principles applicable to
such an issue);
Plascon-Evans Paints Ltd v Van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 640G - 641E.
It seems to me, therefore, that some assistance
may be derived, by way of analogy, from cases which have considered
the meaning
of that phrase in the context of section 44(1) of the
Trade Marks Act 62 of 1963. The general principles governing its
application
to the facts of each particular case provide a useful
guide.
[31] In
Plascon-Evans Paints Ltd v Van
Riebeeck Paints
, supra, at 640G - 641E, Corbett JA, as he then
was, summarised the main legal principles as follows:
“
In an infringement action the
onus
is on the
plaintiff to show the probability or likelihood of deception or
confusion. It is not incumbent upon the plaintiff to
show that every
person interested or concerned (usually as customer) in the class of
goods for which his trade mark has been registered
would probably be
deceived or confused. It is sufficient if the probabilities
establish that a substantial number of such persons
will be deceived
or confused. The concept of deception or confusion is not limited to
inducing in the minds of interested persons
the erroneous belief or
impression that the goods in relation to which the defendant’s
mark is used are the goods of the proprietor
of the registered trade
mark, ie the plaintiff, or that there is a material connection
between the defendant’s goods and the
proprietor of the registered
mark; it is enough for the plaintiff to show that a substantial
number of persons will probably be
confused as to the origin of the
goods or the existence or non-existence of such a connection.
The determination of these questions
involves essentially a comparison between the mark used by the
defendant and the registered
mark and, having regard to the
similarities and differences in the two marks, an assessment of the
impact which the defendant’s
mark would make upon the average type
of customer who would be likely to purchase the kind of goods to
which the marks are applied.
This notional customer must be
conceived of as a person of average intelligence, having proper
eyesight and buying with ordinary
caution. The comparison must be
made with reference to the sense, sound and appearance of the marks.
The marks must be viewed as
they would be encountered in the market
place and against the background of relevant surrounding
circumstances. The marks must
not only be considered side by side,
but also separately. It must be borne in mind that the ordinary
purchaser may encounter goods,
bearing the defendant’s mark, with
an imperfect recollection of the registered mark and due allowance
must be made for this.
If each of the marks contains a main or
dominant feature or idea the likely impact made by this on the mind
of the customer must
be taken into account. As it has been put,
marks are remembered rather by general impressions or by some
significant or striking
feature than by a photographic recollection
of the whole. And finally consideration must be given to the manner
in which the marks
are likely to be employed as, for example, the
use of name marks in conjunction with a generic description of the
goods.”
(See also
International Power Marketing (Pty)
Ltd v Searles Industrials
(Pty) Ltd
, supra, at pp. 165G
- 170B.)
[32] While in certain cases the dominant feature
of each mark may be the determining factor, the true rule is a
broader one, namely,
that the comparison is to be made between the
main idea or impression left on the mind by each name, having regard
to any essential
or salient or leading or striking feature or
features in each.
(International Power Marketing v Searles
Industrial
, supra, at 168 H.) When the court is called upon to
consider resemblance between the two names, it must be mindful of
the fact
that the advantages which it has after considering
arguments from Counsel and the ample time for full consideration,
comparison
of the two names carry their own dangers. These
advantages may cause the court to look at the names with greater
care than they
would be looked at by those whose probable reactions
the court is required to assess and with far keener awareness of
similarities
and dissimilarities than such people would probably
have as they go about their daily lives. See
Laboratoire
Lechartre SA v Armour-Dial Incorporated
,
1976 (2) SA 744
(T) at
746B - H.
[33] With these legal principles as a guide, I
now turn to the facts.
[34] Viewed side by side the names exhibit marked
similarities. Comparison must, however, not be confined to viewing
the names side
by side. I must transport myself notionally to the
industry where they will be used and ask myself whether the average
use is
likely to lead to confusion. Here I must take into
consideration the relevant surrounding circumstances such as the way
the unions
are referred to in the industry, that the two trade
unions will be organising in the same industry and in closely
associated industries
and that the first respondent has been
organising in the industry for some 45 years.
[35] The dominant features or ideas conveyed by
each name centre around “staff association” and “motor
industry”. Both convey
the impression of a staff association
which operates in the motor industry. This is the main idea or
general impression conveyed
by each name. It is true, the difference
between the two names are, firstly, the word order; and secondly,
the words “and related”.
Indeed these differences were
emphasised by Mr Pillemer who also added that their visual
appearance and their length differ. In
my view, these are matters of
detail. They do not detract from the general impression conveyed by
both names. One must make due
allowance for imperfect recollection.
In all probability, what is likely to remain in the mind of an
average person are the words
“staff association” and “motor
industry”. The difference between them is, in any event, a detail
scarcely striking the
average person with the force their
similarities generate: what people are likely to remember is that
they are dealing with a staff
association for the motor industry.
The only staff association for the motor industry of which they are
aware is the second respondent
- a factor which broadens the margin
of confusion. Indeed, according to the first respondent, on the day
of the publication of
the registration of the appellant, an official
of the first respondent’s bargaining council contacted their
Durban offices to
enquire about the “new Staff Association in the
Motor Industry”.
[36] Mr Pillemer, submitted that small
differences should be decisive in this case because the names are
descriptive. The similarities,
he contended, in the names are
inevitable because both unions organise in the same industry and
their names must reflect the industry
in which they organise. The
likelihood of confusion is greatly reduced, he submitted, by the
word order and the words “and related”
in appellant’s name.
Their visual appearance and the length of the names differ, he
maintained.
[37] I accept that there is bound to be
similarities where both unions organise in the same industry since
their names would be
descriptive of the industry in which they
operate. Here the appellant organises workers in the automotive
manufacturing industry,
clause 5 of its constitution says so. Had
the appellant used automotive manufacturing in its name, this would
have been sufficiently
descriptive of the industry in which it
operates and would have significantly reduced the risk of confusion.
Instead it chose to
use a broad description covering a wider area
than that in which it operates. In the result the broad description
is not only misleading
but it is likely to confuse.
[38] Mr Pillemer relied, for the proposition that
small differences should matter here because the names are
descriptive, upon two
cases namely,
Office Cleaning Services v
Office Cleaning Association
[1944] 2 All ER 269
(CA) and
African
Market Agency v Union Market Agency
1926 CPD 245.
I must sound a
note of caution at the outset. A preoccupation with decided
authorities in cases of this nature is likely to obscure
the fact
that cases depend upon a simple legal principle and that they depend
upon the facts of each particular case. The legal
principle at issue
here is whether the name of the appellant so closely resembles that
of the first respondent as to mislead or
cause confusion.
[39] The cases relied upon by Mr Pillemer are
distinguishable on the facts. In the
Office Cleaning Services
case, the enquiry was whether the word “association” when used
in connection with the descriptive words “office cleaning”
is
sufficient to distinguish them from the name “Office Cleaning
Services, Ltd”. The court found that the word “association”
bears no resemblance in appearance or sense to the word “services”.
That is the ratio for the decision.
African Market Agency
case, is similarly distinguishable on the facts. There, the
comparison was between the use of “African” as opposed to
“Union”
as a distinguishing feature. The court found that there
could be no objection to the use of the word “union” and that
the words
“market agency” were merely descriptive of the
business carried on by the applicant in that case. The word “union”
did
not bear any resemblance to the word “African” and,
therefore, there could be no objections to use of the word “union”.
[40] Accordingly, I conclude that the name “Staff
Association for the Motor and Related Industries” so closely
resembles the
name “Motor Industry Staff Association” that it is
likely to mislead or cause confusion.
[41] In the event the appeal is dismissed with
costs, such costs to include costs of the application for leave to
appeal.
____________________
Ngcobo
AJP
I
agree
____________________
Froneman
DJP
23