IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GQEBERHA
NOT REPORTABLE
Case No.: 4132/2023
In the matter between:
VAN WILLING FUNERALS CC First Applicant
Registration No.: 2005/057593/23
CECIL BRIAN ‘JUNIOR’ VAN WILLING Second Applicant
and
VISION DIRECT 155 (PTY) LTD t/a TRANSAFRICA Respondent
JUDGMENT
EKSTEEN J:
[1] The applicants seek a final interdict restraining the respondent from passing off
their business under the name, goodwill , and reputation of the first and second
applicants, together with the further interdictory relief. The application is opposed.
[2] The first applicant, Van Willing Funerals CC (the close corporation) was
incorporated in 2005 and registered as a funeral undertaker providing funeral and
related services, which it says includes the provision of funeral policies. The second
applicant, Mr ‘Junior’ van Willing (Mr van Willing) , is the sole member of the close
corporation. The respondent is Vision Direct 155 (Pty) Limited and is a Financial
Service Provider (FSP ), licenced under the Financial Advisory and Intermediary
Services Act 37 of 2002 ( the FAIS Act), and intermediary trading under the name and
style of ‘Transafrica Group’ (Transafrica) . It is a group insurance specialist that offers a
wide selection of tailor -made insurance benefits, including long -term, short -term,
employee benefits, l egal, funeral, credit , life, hospital and cellphone insurance. It was
established in 2010 and has no involvement in the provision of funeral services , but it
does offer a comprehensive range of funeral policies which are marketed nationally
and internationally .
[3] Mr van Willing deposed to the affidavits on behalf of the applicants. He said that
the close corporation has, since its inception , primarily c onducted business in the areas
of Kariega, Addo, Kirkwood, Paterson, Despatch, Humansdorp, Kwanobuhle , and
Gqeberha , where it has developed a well -established client base. On 1 March 2023
Transafrica entered into agreements with three persons resident wit hin this region , to
whom it undertook to provide funeral policies . Mr van Willing said that it had
fraudulently done so under the name and guise of the close corporation , without
authorisation, and that the policy documentation contained a forgery of his signature .
He annexed a full set of the documentation provided to each of the three identified
individuals , and he contended that it amounted to passing off the business of
Transafrica as that of the close corporation. I shall revert to the policy docume ntation.
[4] The applicants’ complaint arises from the reference in the policy documentation
to the name of the close corporation , and the covering letter addressed to the
purchase rs together with the provision of the policy documentation. The letter was
written on the letterhead of Transafrica and has their logo and name prominently
displayed at the top of the page, and it sets out the address and contact details of
Transafrica . Thereafter, the material portion of the letter, for present purposes ,
recor ds:
‘ TRANSAFRICA FUNERAL PROVIDER
Policy Document
POLICY DOCUMENTATION
Van Willing Funerals
…
Dear …,
It is with pleasure that we forward your Van Willing Funerals policy
document to you.
Thank you for placing your confidence in Van Willing Funerals and do not
hesitate to contact us for any enquires you may wish to make.
Please ensure that you keep this letter and policy document in a safe place
at all times. The policy is issued by Van W illing Funerals . The policy is
underwritten by CENTRIQ LIFE INSURANCE COMPANY (FSP Number
7370).
…
The policy information, benefits and exclusions ar e as per the attached policy
document. Please read and study it carefully …
We trust that this will be the beginning of a long and fruitful relationship and,
should you require any assistance, kindly do not hesitate to contact us.
Yours faithfully
(Signature)
Junior Van Willing
Owner ‘
[5] Mr van Willing said that on 17 August 2023 the three purchase rs were sent SMS
messages by, or at the instance of, Transafrica confirming their policies with it, which
messages were signed off under the name of the close corporation .
[6] In addition to these three policy sales Mr van Willing said that on 8 November
2023 , Ms Annette Martin, a beneficiary of a funeral policy held with the close
corporation ,1 had received an SMS sent by, or at the instance of, Transafrica advising
her that a claim had been submitted to the claims department of the close corporation ,
and that a representative would be contacting her shortly in respect thereof. The SMS
was signed off in the name of Van Willin g Funerals.
[7] For these reasons , Mr van Willing contended that Transafrica had unlawfully , and
with the intention to pass off under his name and that of the close corporation , and with
the intention to infringe on the goodwill, reputation and good names of the applicants,
misrepresented an d used the ir names in the policy documentation marketed and sold
by Transafrica , without any authorisation to do so. He argued that by doing so
Transafrica had misrepresented that the funeral policies had been issued by the close
corporation, and they had , by forging his signature , fraudulently misrepresented that he
had endorsed the policies.
[8] Transafrica did not dispute the policy documentation, nor the content of the letter
or the SMSs but contended that it had occurred pursuant to an agreement between the
1 The terminology is problematic. As more fully explained later in this judgment at paras [9] and [10] the
policies are held by the insurer, in this case Centriq. The close corporation may only be authorised to
render financial services on behalf of a licenced FSP.
parties, which had been con cluded at the instance of the applicants.2 The interaction
that had occurred between them is set out below.
Background
[9] It is instructive to first consider the functions of the various players in the
conclusion of the contentious insurance agreements. All three of the policies to which I
have referred earlier were sold on 1 March 2023 and were underwritten by Centriq Life
Insurance Limited (Centriq). Centriq is the insurer, and its function is to evaluate the
risk and set the terms of the policy , and they bear the financial responsibility for the
policies. Centriq appointed Transafrica a s a binder holder to conduct binder and
intermediary functions on its behalf. A binder holder is an entity authorised by an
insurer to perform certain functions on its behalf, including the issuing of policies,
collecting premiums and handling claims. Th e binder acts under a binder agreement,
which specifies the scope and the authority granted by the insurer. The effect of a
binder agreement is to place a substantial portion of the administrative side of the
insurer’s business in the hands of the binder holder.3 In addition to being a binder
holder Transafrica also act ed as an intermediary. As adumbrated earlier , Transafrica
offered intermediary services4 on behalf of Centriq. An intermediary advises clients,
helps them to understand their insurance needs, and assists in selecting appropriate
insurance products. The functions of an intermediary constitute financial services, as
defined in the FAIS Act. No one may act or offer to act as a FSP unless they have been
issued a licence to do so.5 However, a licenced FSP may appoint a representative6
either in terms of a service contract or other mandate,7 to perform certain functions
under the licence of the FS P, on behalf of the FS P, and under the auspices of the FSP.8
3 Section 49A(1) of the Long -Term Insurance Act, 52 of 1998; and Santam Structured Insurance Limited
and Another v Pringle and Another [2024] JOL 63607 (LC) at para [13].
4 As defined in the FAIS Act.
5 Section 7(1) of the FAIS Act.
6 Section 7(1)(b) of the FAIS Act.
7 Section 13(1)(b)(i)(aa) of the FAIS Act .
8 Section 13(1)(b)(i)(bb) of the FAIS Act .
Thus, a representative may market and sell policies under the FSP’s licence and under
its control.
[10] As adumbrated earlier , Transafrica is a licenced FSP. Neither the close
corporation nor Mr van Willing is. After its incorporation , the close corporation was
initially licenced as an FSP, but its licence was withdrawn in 2014. Accordingly, the
close corporation was, in law, not entitled to sell funeral policies in its name after 2014.
It is unclear whether the close corporation sold policies thereafter and if so, on what
authority. However, on 1 July 2020 the close corporation entered into an agreement
with Structured Risk Solutions (Pty) Limited (Structured Risk) , a licenced FSP, to act as
a representative on their behalf . Thus, the close corporation was entitled, at least after
1 July 2020 , to sell funeral policies again , and Mr van Willing said that he had sold 1
671 policies in the last three years , presumably under the licence of the Structured Risk.
[11] Neither the close corporation nor Mr van Willing has entered into a service
contract or other mandate agreement authori sing them to act on behalf of Transafrica.
However, in November 2022 Mr van Willing, acting on behalf of the close corporation,
entered into an agreement (the underlying agreement) with Transafrica in terms of
which Transafrica undertook to appoint Brijuwen CC (Brijuwen) , a close corporation
wholly owned by Mr van Willing and trading from the same premises as the close
corporation , as mand ated representative of Transafrica .9 Mr van Willing nominated
Brijuwen as the vehicle, together with twelve individuals , to be appointed as mandat ed
representatives to sell funeral policies under Transafrica’s FSP licence. Accordingly,
Transafrica provided and forwarded the un completed representative agreements (the
mandatory agreements) to Mr van Willing in the first week of December 2022. He
arranged for the agreements to be completed and signed by Brijuwen and the
nominated individua ls and returned the m to Transafrica on 7 December 2022. Mr van
Willing arranged for the training of the individual representatives, which was provided by
9 At para 48 of the replying affidavit Mr van Willing explained : ‘At all material times hereto, it was the
intention of myself and the first applicant, … in terms of the agreement between myself, on behalf of the
first applicant, and the respondent, that Brijuwen was to be appointed as the mandatory representative
of the first respondent and not the first applicant.’
Transafrica at the offices of the close corporation on 20 December 2022. All three of
the contentiou s policies were sold by individuals so nominated by Mr van Willing , in
terms of the underlying agreement concluded with Transafrica , who had been appointed
as individual representatives in terms of the mandatory agreements.
[12] As I have said, Mr van Willing facilitated the completion and signature of the
documentation for the appointment of the mandated representatives. Included in the
documentation was a certificate of ‘representative status ’ that was to be i ssued in terms
of the FAIS Act to each mandated representative . Mr van Willing completed and signed
the mandatory agreement , and the certificate of representative status , as the key
individual , on behalf of Brijuwen. A certificate of representative status was completed ,
signed , and returned in respect of one Mr Billy Williams, one of the nominated individual
representatives . It reflected that Mr Williams would function under the supervision of Mr
van Willing, while all the remaining certificates of representative status reflected that the
individual representative concerned would work under the supervision of Mr Billy
Williams. Thus, all the individual representatives reported to Mr van Willing.
Factual Disputes
[13] Mr Smit, who deposed to the affidavit s on behalf of Transafrica , said that the
representative agreements came about at the instance of Mr van Willing , who had
approached Transafrica in November 2022 to seek the appointment of the mandat ed
representatives. Mr van Willing denied this and said that it was Transafrica that had
approached the close corporation to conclude the underlying agreement. As I have
explained, Mr van Willing nominated the vehicle and the individual represent atives to be
appointed , and he facilitated the completion of the documentation , which was duly
signed on behalf of Transafrica upon receipt. Mr Smit said that in concluding the
underl ying agreement Mr van Willing had requested Transafrica to market the policies
as ‘Van Willing Funeral s’ policies. Hence the reference in the policy documents and the
covering letter. He explained that they further agreed that the close corporation would
be nominated as the beneficiary to receive the commission in respect of the sales of
funeral policies made by the mandated representatives pursuant to the agreement, and
the commissions were paid t o the close corporation.10
[14] These averments were met by a vehement but bald denial. The applicants did
not request for the matter to be referred to oral evidence in order to resolve these
disputes and Mr Paterson , who appeared on behalf of the applicants, acknowledged
that, on an acceptance of the approach set out in Plascon -Evans ,11 the averments
made by Mr Smit in this regard must prevail. Accordingly , it is accepted , for purposes of
the adjudication of this matter, that the underlying agreement arose from the initiative of
Mr van Willing and the close corporation, and that they had agreed that the policies
should be sol d as ‘Van Willing Funeral policies’, and the comm issions earned should be
paid to the close corporation.
The relief
[15] As I have said, the applicants sought a final interdict restraining Transafrica from:
‘(i) Passing off business under the name, goodwill and reputation of the
first and/or second applica nt;
(i) passing off business with the use, adoption and imitation of the trade
name of the first and/or second applicant, by sale, distribution or any
other means, in any or funeral policies marketed and sold by the
respondent; and
(ii) forging the signature of the second applicant on or any funeral policy
documentation passed off as that of the respondent.’
10 The payments of commission were paid into the nominated account at Absa Bank. The ‘Notices of
Payment’ provided by Mr Smit reflect ‘payment to Van Willing Funerals’. The account , it transpired, was
in fact that of ‘Brijuwen’.
11 Plascon -Evans Paints Limited v Van Riebeeck Paints (Pty) Limited 1984 (3) SA 623 (A) at 634G -I.
[16] The cause of action , they said, was passing off . In Capital Estate12 passing off
was explained as follows:
‘The wrong known as passing off consists of a representation by one person
that his business (or merchandise, as the case may be) is that of another, or
that it is associat ed with that of another, and, in order to de termine whether a
representation amounts to passing off, one enquiries whether there is a
reasonable likelihood that members of the public may be confused into
believing that the business of the one is, or is connected with, that of another
… Whether ther e is a reasonable likelihood of such confusion arising is, of
course, a question of fact which will have to be determined in the light of the
circumstances of each case.’13
[17] It is a species of unlawful competition in trade or business and it is wrongful
because it results in , or is calculated to result in, the improper filching of someone else’
trade and/or an improper infringement of his goodwill and/or causing injury to that
other’s trade reputation.14 It usually applies where one person passes off his
merchandise as that of another, but it is not limited to goods.15
[18] In order to succeed in a claim for passing off a plaintiff is required to prove two
things, namely first, that the trademark, get up, service mark, or trade name which he or
she says has been imitated has become distinctive, that is that it has acquired wi th the
public a reputation associated with his or her goods, service or business , and secondly,
that the defendant’s conduct is likely , or is calculated , to deceive the public.16
12 Capital Estate and General Agencies (Pty) Limited and Others v Holiday Inns Inc and Others 1977 (2)
SA 916 (A).
13 Capital Estate at 929C -E. See also Hoechst Pharmaceuticals (Pty) Ltd v The Beauty Box (Pty) Ltd (in
liquidation) and Another 1987 (2) SA 600 (A) at 613D -F.
14 Williams t/a Jenifer Williams & Associates and Another v Life Line Southe rn Transvaal 1996 (3) SA 408
(A) and Pioneer Foods (Pty) Limited v Bothaville Milling (Pty) Limited [2014] 2 All SA 282 (SCA) at para 7.
15 See Law of South Africa (2nd ed) vol 2 , part 2 at 252 and the authorities referred to therein.
16 Law of South Africa vol 2 , part 2 p. 252 para 264 and the authorities set out in fn 11.
[19] The requirements for a final interdict were set out in Setlogelo17. An applicant for
an interdict is required to establish a clear right, an injury actually committed or
reasonably apprehended in respect of such right, and that he has no alternative
remed y.
The clear right
[20] As I have explained earlier , the applicants contend that their right to the relief
sought arises from the policy documentation together with the covering letter and the
SMSs that followed . The ir cause of action is passing off. In Caterham Car Sales18 the
Supreme Court of Appeal (SCA) considered the first component , namely the
reputational issue. They said at para [20]:
‘The correct question can be distilled from the judgments on passing -off of
this Court mentioned earlier … In general terms, it appears to me to be
whether the plaintiff has, in a practical and business sense, a sufficient
reputation amongst a substantial number of persons who are either clients or
potential clients of his busine ss.’
[21] The applicants contend ed that their trading name, Van Willing Funerals, has
established a substantial reputation amongst members of the public in the areas in
which they trade in relation to funeral s and all related services. Mr van Willing
explained that the business , Van Willing Fu nerals, had existed for many years prior to
the incorporation of the close corporation in 2005 , as a family business that was started
by Mr van Willing ’s grandfather in 19 38. A fter the incorporation of the close corporation
it continued to trade under the name of Van Willing Funerals , and Mr van Willing said
that the business had established a reputation for quality services over many years in
the minds of the public.
17 Setlogelo v Setlogelo 1914 AD 221.
18 Caterham Car Sales & Coachworks Limited v Birkin Cars (Pty) Limited and Another 1998 (3) SA 938
(SCA).
[22] I pause to record that in the founding papers the applicants had made no
mention of their agreement with Transafrica and contended that Transafrica had
unlawfully and fraudulently misrepresented that Mr van Willing had endorsed the
policies and that they had acted with the intention to infringe on the goodwill, reputation ,
and good name of the applicants. In this regard it has been held that where a party had
acted with fraudulent intent , it may not be necessary to prove reputation.19 Upon receipt
of the answering affidavit , in which Mr Smit had introduced reference to the various
contractual relationships that I have referred to earlier, the applicants sought to file a
supplementary founding affidavit , which was not objected to, in order to establish their
reputation, no doubt because the case for the alleged bad faith on the part of
Transafrica had been considerably undermined. Indeed, I do not consider , for the
reasons fully set out later, that there can be any merit in the suggestion that the
misrepresentation was calculated to deceive. However, for purposes of interdict
proceedings , it is not necessary to allege either an intention to deceive or negligence.20
[23] I revert to the issue of reputation. Mr van As, who appeared for Transafrica
argued that the applicants had not established the kind of reputation that has to be
proved for purposes of passing off. In seeking to establish the reputation of the close
corporation , Mr van Willing annexed numerous newspaper articles , published over time
allegedly reflecting the standing of the close corporation in the eyes of the public, and of
Mr van Willing’s father , to his supplementary founding affidavit . Most of the articles
were not dated nor is the publication in which they appeared iden tified, and in some
instances , they were entirely illegible. Similarly , a nu mber of ‘testimonials’ , allegedly
received from clients, have been annexed, but none of the authors have deposed to
supporting or confirmato ry affidavits. These documents do not advance the applicants’
case. However, at least one article published in the Evening Post newspaper , which
was widely circulated in the Eastern Cape, in January 1993 does record Mr van
Willing’s father as the owner of ‘ one of the largest funeral undertaking firms’ in the
region. This does lend support to Mr van Willing’s evidence on oath.
19 Appalsamy v Appalsamy and Another 1977 (3) SA 1082 (D) at 1086.
20 See Kenitex Africa (Pty) Limited v Coverite (Pty) Limited and Others 1967 (3) SA 307 (W).
[24] Mr van Willing said that when his grandfather died in 1970 , the business had
already established a reputation as a minority non -white funeral parlour , and that his
father had run the business thereafter, still under the family name. As I have said, the
close corporation was registered in 2005 , and it continued wit h the business.
[25] Transafrica has raised nothing to gainsay the reputation of the close corporation ,
and I consider that the applicants have established its reputation and that of the trade
name, ‘Van Willing Funerals’ , in the minds of the public in relat ion to funeral services
within the area where it trades . The same cannot be said of Mr Van Willing ’s reputation
in the industry. He became a member of the close corporation after his father died in
2020 , and there is no evidence of his involvement in the industry before that. At best ,
the evidence shows that he has sold 1671 funeral policies over the past three years.
[26] The second question that arises is whether the defendant’s conduct was likely to ,
or was calculated to , deceive the public. Deception, whether conscious or unintentional,
is the gist of the action21 and the test is whether, in the light of all the circumstances of
the case, there is a reasonable likelihood that ordinary members of the public, or a
substanti al section of them, might be confused or deceived into believing that the
business or the merchandise of Transafrica is the same as, or is connected with , that of
the applicants.22 This is not a legal conclusion, but a question of fact , and while
evidence indicating that people have actually been deceived may not be essential , it
may in some cases be decisive .23 In the present case the applicants relied on the sale
of three funeral policies. None of the purchasers attested to supporting affidavi ts and
the applicants did not allege that the purchasers had been confused or deceived in any
manner . Similarly, M s Martin, the alleged recipient of the SMS on 8 November 2023,
did not attest to a confirmatory affidavit and it was not alleged that she had been
confused or deceived.
21 Blue Lion Manufacturing (Pty) Limited v National Brands Limited 2001 (3) SA 884 (SCA) at para 4.
22 Brian Boswell Circus (Pty) Limited and Another v Boswell -Wilkie Circus (Pty) Ltd 1985 (4) SA 466 (A) at
478; Pioneer Foods at para 7 ; and Van der Walt and Midgley: Principles of Delict (4th ed) at 90.
23 See Royal Beech -nut (Pty) limited v United Tobacco Co Limited 1992 (4) SA 118 at 126E -F; and
Pioneer Foods para 23.
[27] As I have said, the close corporation’s certificate of incorporation reflects that it
carries on business as a funeral undertaker and related services. Neither it nor Mr van
Willing is licenced as a FSP and they are not permitted by law to sell funeral policies in
their own name. They do so on behalf of a licenced FSP by virtue of a mandate
agreement , and, as adumbrated earlier , it is unclear whether they had done so from
2014 to 2020. Transafrica conducts business as insurance specialists , offering a variety
of tailor -made insurance benefits, including funeral policies. It is not a funeral
undertaker. In considering whether t here is a reasonable likelihood of confusion in the
mind of the public, the absence of a common field of activity is a factor to be taken into
account.24 In this matter there is no common field of activity, save that the close
corporation sells funeral po licies on behalf of Structured Risk, but the question remains
whether in all the circumstances of the case there is a reasonable likelihood that
confusion of the kind mentioned may arise in the minds of ordinary members of the
public , and it is a factual one.
[28] That brings me back to the policy documentation. Throughout the policy
documentation the insurer is unequivocally identified as Centriq Life Insurance.
Included in the documentation that the applicants rely on in each of the three policies
was a doc ument headed in bold print ‘ Important Information – please read carefully
– disclosure and other legal requirements ’. The document identifies Transafrica as
the FSP and sets out the contact details of Transafrica, which are the same as those
reflected on the covering letter. It records that Transafrica is an authorised FSP in
terms of the F AIS Act and that it accepts liability for all financial advice and intermedia ry
services provided by their representative. It discloses that Transafrica is a binder holder
in terms of a binder holder agreement with the insurer, Centriq, and thereby earns a
binder fee of 9,43% of the gross written premium for binder services perfor med, which
includes claims settlement. Accordingly, the documentation provided together with the
covering letter unequivocally discloses the role of Transafrica and Centriq in t he
transaction. It is true that the policy documentation refers to the polici es as ‘Van Willing
24 Capital Estate 929F -G.
Funerals ’ policies, but explains that they are provided and underwritten by Centriq.
Thus, the role of the entities is clearly explained in the documents , and Mr van As
argued accordingly, that no confusion in the minds of ordinary members of the public
could arise.
[29] The information expressly provided does not detract from the clear terms of the
covering letter and the trade name ‘Van Willing Funerals’ used in identifyin g the policy.
The use of the name constitutes an express repres entation, a t best for Transafrica, that
there is an association between the policies and the business of the clo se corporation25
which, ordinarily , is likely to give rise to confusion of the k ind mentioned in the minds of
the public within the area whe re the close corporation trades. However, to found a case
of passing off , and in particular for an interdict, the representation must be both false
and una uthorised.26 The underlying agreement , and the mandat ory agreements, are
set out earlier. It was by agreement between the parties and thus by consent that the
policies were sold as Van Willing Funerals policies.27 The agreement was concluded in
November 2022 , and the three contentious po licies were sold early in 2023. The
covering letters were all dated 22 April 2023 and the date of inception of each policy is
reflected as 1 March 2023. Mr Smit said that no furt her policies were sold under the
mandatory agreements after 8 March 2023. Thus, the representation reflected in the
policy documentation and the covering letter was authorised at the time it was made.
An authority of this nature may, of course, be withdr awn at any time and a demand was
made by Van Willing Funerals in September 2023 calling on Transafrica to stop using
their name in any further policy documentation, which they said was a
misrepres entation ma de without authority. For the reasons set out ea rlier I have
concluded that the repres entations were authorised at the time and Transafrica have
not sold any further policies in the name of the close corporation since the letter of
demand.
25 See Jenifer Williams at 418D -E.
26 Amler’s Precedents of Pleadings (9th ed) p. 291.
27 See Nino's Coffee Bar & Restaurant CC v Nino's Italian Coffee & Sandwich Bar CC and Another;
Nino's Italian Coffee & Sandwich Bar CC v Nino's Coffee Bar & Restaurant CC 1998 (3) SA 656 (C) at
para [40].
[30] I turn to the SMS sent to Ms Martin on 8 November 2023. The SM S
acknowledged the receipt of a claim under the policy in issue , and it promised that a
representative would contact the claimant shortly thereafter. It is not in dispute that the
SMS emanated from Transafrica, but Mr Smit explained that as financial advi sor and
approved FSP licence holder for all the policies sold by the mandated representatives
Transafrica was required, in terms of the Insurance Act, the FAIS Act, and the Policy
Holder Protection Rules28 to contact an d service the policy holders. Claims , he said,
were normally submitted to Transafrica’s management representative, who was then
obliged to forward the claims to Transafrica on behalf of the policy holders. Transafrica
then evaluate d and pa id the claims directly to the beneficiary on behalf of the insurer.29
Mr Smit declared that the process had been followed since the signing of the mandatory
representative agreements. This accorded with the ‘important information’ , referred to
earlier, provided together with the policy documentation and related to a policy sold as a
Van Willing Funerals policy during the subsistence of the mandate.
[31] To summarise, I consider that the applicants have established that the trade
name of the close corporation, Van Willing Funerals, was known in the market and had
acquired a public reputation within the areas in which they conduct their operations.
There i s no evidence to support a conclusion that Mr van Willing (Mr Junior van Willing)
had developed a similar reputation, as distinct from the close corporation, in the trade.
However, by the conclusion of the mandatory agreements with Transafrica the close
corporation and Mr van Willing had consented to, and encouraged, the use of the trade
name in the sale of funeral policies underwritten by Centriq.
[32] I do not lose sight of the signature reflected at the foot of the covering letter. It is
not a forgery, i n the sense of an imitation, and the signature applied to the document
bears no resemblance to that of Mr van Willing. However, as demonstrated earlier, it is
identified as being that of Mr van Willing. Mr Smit acknowledged that it was an error.
He expla ined that the covering letter was a computer -generated document and it ought
28 Issued in terms of s 62 of the Long -Term Insurance Act 1998 .
29 See para 9 above.
to have reflected the details of Transafrica at the foot of the page. He said that it had
been a bona fide error and that it had been corrected. The applicants argued that the
signature, so identified, on the covering letter created the impression with the public that
the second applicant had endorsed such policies. As adumbrated earlier, the second
applicant has not demonstrated a reputation of his own, in the sense required in a case
of passing off. His reputation in the minds of the public is bound to that of the close
corporation. In concluding the underlying agreement, the applicants had authorised
their representation that the policies were endorsed by and associated with the close
corporation. Accordingly, the applicants have not demonstrated a clear right to relief
sought in the notice of motion.
Injury actually committed or reasonably apprehended
[33] Mr van Willing contended that the conduct of Transafrica was likely to r esult in
members of the public being confused, or misled, to believe that policies marketed and
sold by Transafrica were authorised, issued, and endorsed by the applicants. This, he
argued, would result in substantial prejudice to their established goodwi ll, reputation,
and name, which would consequently lead to significant financial and reputational
damage.
[34] As I have demonstrated, by concluding the underlying agreement the applicants
did authorise and endorse the sale of the Centriq policies as Van Willi ng Funerals
policies. In any event, while an applicant for an interdict is not required to prove actual
prejudice, they must show that loss is likely to result.30 I have referred earlier to Capital
Estate where it was said that the absence of a common field of activity will not always
bar a party from obtaining relief for passing off as the crucial question in every case is
whether there is a reasonable likelihood of confusion. However, the SCA proceeded to
observe:
30 See Van Heerden and Neethling: Unlawful competition at p. 194.
‘The related question whether damage can arise in a case where businesses
are not carried on in a common field, is likewise one of fact. Regard must be
had to the facts of each particular case, and it cannot be accepted as
axiomatic that damag e cannot arise where there is no common field
of activities. …’31
[35] The activities of the close corporation and Transafrica have been described
earlier. The nature of their business activity differs, but there is an area overlap. The
close corporation, albeit as representative of Structured Risk, sells funeral policies i n the
areas in which they conduct funeral undertakings. I have referred earlier to various
newspaper articles annexed to Mr van Willing’s supplementary affidavit in order to
establish the reputation of the close corporation. In one of the undated article s which
allegedly appeared in an undisclosed publication the history of the family business was
described. It record ed that Mr van Willing’s father had realised that members of the
public laboured under the misconception that if they had purchased a funer al policy
from an undertaking firm they were obliged to use the services of those undertakers to
perform the burial. The article proceeded to explain how Mr van Willing (Senior) had
walked from door to door to advise the public that an insured was entitle d to use the
proceeds of a funeral policy held with any firm in order to engage the services of Van
Willing Funerals. This remains the legal position , and whereas neither Transafrica nor
Brijuwen are funeral undertakers any policy sold under the name of Van Willing
Funerals is likely to result in the engagement of the close corporation to perform these
functions. This, no doubt, underlies the close corporation’s request that the policies
should be sold as ‘Van Willing Funerals’ policies , and, from this p erspective the close
corporation is bound to benefit.
[36] The loss arising from filching of trade could arise only from the deprivation of
commissions which flow from the sale of policies. But, in this case, Mr van Willing had
nominated Brijuwen and the indi vidual representatives, all of whom function under the
supervision of Mr van Willing. As I have said , the agreement reached was for the
31 Capital Estate 929F -H.
commissions to be paid to the close corporation. Accordingly, there is no loss of
commission, albeit that the account number nominated for the payment of the said
commission is that of Brijuwen.
[37] As adumbrated earlier the applicants contend that the conduct of Transafrica will
result in prejudice to their well -established goodwill, reputation , and name, which Mr van
Willing said would lead to significant financial and reputational damage. The
misappropriation of a business ’s trade name may infringe the right to goodwill of the
business concerned in two ways. First, it may injure or damage the reputation or good
name of the performance of the aggrieved party , usually referred to as disparagement .
This is the case where the perpetrator’s performance is of a bad or an inferior quality
and the public, because of their contact with this performance, lower their assessment
of the aggrieved party’s performance as a result of the association between the
performances. Secondly, there is a danger that the conduct complained of may lead to
the dilution of the advertising value of the aggrieved party’s trade name.32 In this case
the appli cants have not alleged any poor or inferior quality product or service. It is not
contended that the policy underwritten by Centriq is inferior to any other, nor has there
been any suggestion of poor or inferior service by Transafrica to policy ho lders. I do not
consider that a case has been made for disparagement and the applicants could hardly
rely on dilution where they themselves have authorised the policies to be marketed as
‘Van Willing Funerals’ policies. Accordingly , I do not consider tha t the applicants have
demonstrated a reasonable apprehension of harm.
Costs
[38] Mr van As urged me to make a punitive costs order against the applicants. In
support thereof he alluded to the applicants’ failure to disclose in its founding affidavit
the contractual relationship which gave rise directly to the mandatory agreements
appointing th e representatives who sold the contracts. He drew attention to the failure
on the part of the applicants to provide confirmatory affidavits by the purchase rs of the
32 Unlawful Competition p. 209.
three contentious policies or any of the authors of the ‘testimonials’ annexed to the
supp lementary founding affidavit in respect of the alleged reputation of the close
corporation. He categorised the application as ‘frivolous’ and argued that the applicants
had attempted to rely on selective and unsubstantiated evidence. Whilst there may be
merit in many of these submissions , I do not consider that they justify the categorisation
of the application as ‘frivolous’ and, in the exercise of my discretion I do not think that a
punitive costs order is justified.
[39] In the result:
1. The application is dismissed.
2. The applicants, jointly and severally, the one paying the other to be absolved, are
directed to pay the respondent’s costs , the costs of counsel to be taxed on Scale
B.
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For Applicants : Adv N Paterson
Instructed by: Karsans Inc
GQEBERHA
For Respondent: Adv E van As
Instructed by: Bennecke Thom Inc
c/o Van Heerden Attorneys Inc
GQEBERHA
Date Heard: 2 May 2025
Date Delivered: 17 June 2025