THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No : 989/2023
In the matter between:
VAN DE N BERG WATER (PTY) LTD FIRST APPELLANT
T/A OASIS WATER LYNNWOOD
CHARMAIN VAN DEN BERG SECOND APPELLANT
ADRIAAN VAN DEN BERG THIRD APPELLANT
DEON BRAAM VAN DEN BERG FOURTH APPELLANT
DEWALD JOHANNES VAN DEN BERG FIFTH APPELLANT
and
OASIS WATER (PTY) LTD FIRST RESPONDENT
OASIS WATER ASSET COMPANY SECOND RESPONDENT
(PTY) LTD
AND
Case No: 988/2023
VAN SCHALKWYK WATER CC T/A OASIS FIRST APPELLANT
WATER KIMBERLEY
ALBERTUS BAREND VAN SCHALKWYK SECOND APPELLANT
and
OASIS WATER (PTY) LTD RESPONDENT
2
AND
Case No: 1120/2023
OASIS WATER (PTY) LTD FIRST APPELLANT
OASIS WATER ASSET COMPANY (PTY) LTD SECOND APPELLANT
and
WYNAND ALBERTUS BESTER FIRST RESPONDENT
JANET BESTER SECOND RESPONDENT
Neutral citation: Van den Berg Water (Pty) Ltd t/a Oasis Water Lynnwood and
Others v Oasis Water (Pty) Ltd and Another (Case no
989/2023); Van Schalkwyk Water CC t/a Oasis Water
Kimberley and Another v Oasis Water (Pty) Ltd (Case no
988/2023); Oasis Water (Pty) Ltd and Another v Wynand
Albertus Bester and Another (Case no 1120/2023) [2025]
ZASCA 98 (4 July 2025 )
Coram: SCHIPPERS, NICHOLLS, MEYER and KGOELE JJA and
PHATSHOANE AJA
Heard: 4 March 2025
Delivered: This judgment was handed down electronically by circulation
to the parties’ representatives by email, publication on the Supreme Court of
Appeal website and released to SAFLII. The date and time for hand -down of the
judgment is deemed to be 11h00 on 4 July 2025.
Summary: Law of Contract – franchise agreement – whether post -termination
provisions enforceable – whether terms unreasonable and unjust contrary to
Consumer Protection Act 68 of 2008 – interdict – appellants ordered to return
printed materials related to franchise, signage, and to cease using business system
and intellectual property.
3
____________________________________________ ____________________
ORDER
________________________________________________________________
On appeal from: Gauteng Division of the High Court , Pretoria (Kooverjie J,
sitting as court of first instance , case no 989/2023 ).
Northern Cape Division of the High Court, Kimberley (Lever J, sitting as court
of first instance , case no 988/2023 ).
North -West Division of the High Court, Mahikeng (Petersen J, sitting as court of
first instance , case no 1120/2023 ).
Case no: 989/2023
1 The application to adduce evidence on appeal is dismissed with costs,
including the costs of two counsel , on the party -and-party scale.
2 The appeal succeeds in part.
3 The order of the Gauteng Division of the High Court, Pretoria, is set aside and
replaced with the following:
‘1. The first respondent is ordered to return to the first applicant all manuals
and other printed matter relating to the first respondent’s franchise
operation, including:
1.1 manuals, labels or printed material containing the first applicant's
names or trademarks;
1.2 printed or electronic matter relating to the franchise operation ,
previously conducted by the first respondent under the name and
style of Oasis Water; and
1.3 client lists, or data lists.
2. The first respondent is ordered to remove and return all ‘Oasis ’ signage
to the first applicant.
4
3. The first respondent is ordered to cease using or exploiting the first
applicant’s ‘Oasis ’ business system and any intellectual property owned
by the first applicant , more specifically, its know -how, trademarks, trade
secrets , and confidential information.
4. The respondents are ordered to pay 50% of the costs of this application ,
jointly and severally, on the contractually agreed scale as between
attorney and client, including the costs of two counsel where so
employed. ’
4 Save as aforesaid, the appeal is dismissed. There is no order as to costs.
Case no: 988/2023
1 The application to adduce evidence on appeal is dismissed with costs,
including the costs of two counsel , on the party -and-party scale.
2 The appeal succeeds in part.
3 The order of the Northern Cape Division of the High Court, Kimberley , is set
aside and replaced with the following:
‘1. The first respondent is ordered to return to the first applicant all manuals
and other printed matter relating to the first respondent’s franchise
operation, including:
1.1 manuals, labels or printed material containing the first applicant's
names or trademarks;
1.2 printed or electronic matter relating to the franchise operation
previously conducted by the first respondent under the name and
style of Oasis Water; and
1.3 client lists, or data lists.
2. The first respondent is ordered to remove and return all ‘Oasis ’ signage
to the first applicant.
5
3. The first respondent is ordered to cease using or exploiting the first
applicant’s ‘Oasis ’ business system and any intellectual property owned
by the first applicant , more specifically, its know -how, trademarks, trade
secrets, and confidential information.
4. The respondents are ordered to pay 50% of the costs of this application,
jointly and severally, on the contractually agreed scale as between
attorney and client, including the costs of two counsel where so
employed.’
4 Save as aforesaid, the appeal is dismissed. There is no order as to costs.
Case no: 1120/2023
1 The application to adduce evidence on appeal is dismissed with costs,
including the costs of two counsel , on the party -and-party scale.
2 The appeal succeeds in part.
3 The cross -appeal succeeds in part.
4 The order of the North -West Division of the High Court, Mahikeng , is set
aside and replaced with the following:
‘1. The first respondent is ordered to return to the first applicant all manuals
and other printed matter relating to the first respondent’s franchise
operation, including:
1.1 manuals, labels or printed material containing the first applicant's
names or trademarks;
1.2 printed or electronic matter relating to the franchise operation
previously conducted by the first respondent under the name and
style of Oasis Water; and
1.3 client lists, or data lists.
2. The first respondent is ordered to remove and return all ‘Oasis ’ signage
to the first applicant.
6
3. The first respondent is ordered to cease using or exploiting the first
applicant’s ‘Oasis ’ business system and any intellectual property owned
by the first applicant , more specifically, its know -how, trademarks, trade
secrets, and confidential information.
4. Each party shall bear their own costs.’
5 Save as aforesaid, the appeal is dismissed. There is no order as to costs.
6 Save as aforesaid, the cross -appeal is dismissed. There is no order as to costs.
___________________________________ ____________ ____ _____________
JUDGMENT
________________________________________________________________
Schippers JA (Nicholls, Meyer and Kgoele JJA and Phatshoane AJA
concurring )
[1] The central issue s in these three cases concern the meaning and effect of
post-termination provisions in a franchise agreement ; and whether the
respondents, Oasis Water (Pty) Ltd (Oasis) and Oasis Water Asset Company
(Pty) Ltd (Oasis Asset Company ), are entitled to interdicts founded on those
provisions. Van den Berg Water (Pty) Ltd t/a Oasis Water Lynwood ( Van den
Berg Water ) and Van Schalkwyk Water CC t/a Oasis Water Kimberley (Van
Schalkwyk Water) , the first appellants in case numbers 989/2023 and 988/ 2023,
respectively, are former franchisees of Oasis, the respondent in those cases. Oasis
concluded written franchise agreement s with Van den Berg Water in 2018 and
with Van Schalkwyk Water in 2019, to operate retail outlets which sell and
distribute water and related products under the name of Oasis or Oasis Water .
[2] In 2018 Oasis concluded franchise agreement s with Mr Wynand Albertus
Bester and M rs Janet Bester (the Besters) , also former franchisees, and the
7
respondents in case number 1120/ 2023. Where appropriate , Van den Berg Water,
Van Schalkwyk Water and the Bester s are collectively referred to as ‘the
franchisees’.
Factual background
[3] Oasis supplies bottled , filtered and purified water and other beverages. It
has been in existence for some 20 years, was one of the first water purifying and
processing companies , and is the fourth largest bottled water brand in South
Africa , with an estimated 60% of the refilling market in the country. Oasis’
holding company, Oasis Water Holdings (Pty) Ltd , is the proprietor of various
trademarks registered in terms of the Trade Marks Act 193 of 1994 , consisting of
or incorporating the word ‘Oasis’.
[4] Oasis produces its water products through a process of reverse osmosis and
ozone treatment . It asserts that this process involves a confidential and secret
combination of selected filters combined with ozone treatment of the water ,
which results in clear water that is refreshing and free from chlorine and odours.
The Oasis water product is also used to produce ice , sparkling and flavoured
water, fruit juices, iced teas and sports drinks.
[5] Oasis concludes a standardised franchise agreement with its franchisees .
By letter dated 17 February 2023 , the franchisees’ attorneys, acting for a larger
group of franchisees operat ing some 54 Oasis outlets, informed Oasis’ attorneys
that Oasis had repudiated the franchise agreements , which the franchisees had
accepted ; alternatively, that it had breached the agreement s in material respects
which entitled the franchisees to cancel them (the cancellation letter) .
[6] A few days later, Oasis’ attorneys replied to the cancellation letter. They
denied the alleged repudiation by Oasis and contended that the cancellation letter
itself, was a repudiation of the franchise agreement . Oasis reserved its right to
8
either accept such repudiation and terminate the franchise agreement or enforce
its terms. Thus, on the version of both the franchisees and Oasis, the franchise
agreement came to an end .
[7] After termination of the franchise agreements, the franchisees continued to
operate a filtered and purified water business out of the same premises , under the
name of ‘Manzi Water ’, serving the same customer s. Oasis contends that they
merely rebranded their stores from Oasis Water to Manzi Water .
[8] In March 2023 Oasis launched an urgent application against the franchisees
in the Kimberley, Mahikeng and Pretoria High Courts. The notice of motion in
each application is substantially the same . In Part A, Oasis sought the following
relief :
‘2. An interim order, pending the final outcome of the relief sought in PART B of the
notice of motion, in the alternative pending the final outcome of the relief sought in
PART B of the notice of motion by arbitration proceedings:
2.1 That the First Respondent forthwith return to the First Applicant any and all
manuals and other printed matter relating to the First Respondent’s franchise
operation, including:
2.1.1 manuals, labels or printed material containing the First Applicant’s names
or trademarks;
2.1.2 printed or electronic matter relating to the franchise operation which was
previously conducted by the First Respondents under the name and style of
Oasis Water;
2.1.3 client lists, or data lists.
2.2 That the First Respondent forthwith remove and return all “Oasis” signage to the
First Applicant.
2.3 That the First Respondent forthwith remove and return the “Oasis” water
purifying system to the First Applicant, consisting of the following:
2.3.1 the reverse osmosis purification plant;
2.3.2 the filling/dispensing tables;
2.3.3 mobile ozonation unit or ozone units;
9
2.3.4 any article bearing trademarks.
2.4 That the First Respondent forthwith cease to use or exploit the First Applicant’s
“Oasis” business system and any intellectual property owned by the First
Applicant.
2.5 That the First Respondent forthwith execute all such documents and do all such
things as are necessary to remove the name of the First Respondent from any
register relating to business names and trademarks belonging to the First
Applicant.
2.6 That the First Respondent forthwith change the appearance of the First
Respondent’s premises located at the following places to prevent the premises
being mistaken in appearance or signage by members of the public for an “Oasis”
franchised business:
. . .
2.7 That the First Respondent forthwith hand control of the First Respondent’s
franchised businesses to the First Applicant.
2.8 That the First Respondent be interdicted and restrained from use of the First
Applicant’s business system and intellectual property, including the First
Applicant’s know -how, copyright, goodwill, trade dress, trademarks, trade
secrets, as well as confiden tial information.
2.9 That the Respondents be interdicted and restrained f rom using or displaying the
Applicant’s water purification and bottling systems and equipment directly or
indirectly as part of any business enterprise.
2.10 that the Respondents be interdicted and restrained from:
2.10.1 using or divulging any of the First Applicants confidential information,
trade secrets or business model;
2.10.2 passing off the Respondents’ products and business to be that of the
Applicants;
2.10.3 using or displaying the First Applicant’s trademarks or any printed
material or poster which contains the First Applicant’s name, images of
its products, copyrighted material or slogans;
2.10.4 making any representation or statement to any third party or member of
the public to the effect that:
(a) the First Respondent has merely made a name change from that
of the Applicant;
10
(b) the products sold by the Respondents are the same or similar as
those of the Applicants;
(c) the business and other practices used by the First Respondent are
the same or similar as those used by the First Applicant or any of
its franchisees;
(d) the Respondents are entitled to sell, market and/or produce any
of the Applicants’ products and business systems;
(e) the Respondents are in any way connected to or entitled to act on
behalf of the First Applicant.’
[9] In prayers 2. 11 to 2.14 of the notice of motion, Oasis sought an order
interdicting and restraining the franchisees from : selling its products (prayer
2.11) ; using Oasis bottles or bottle caps (2.12) ; displaying any products with a
sign or label that create the impression that the franchisees’ products are those of
Oasis (2.13) ; and using the Manzi Water Exchange Programme (2.14) . In prayer 3
of the notice of motion , Oasis sought an order enforc ing the restraint of trade
provisions of the franchise agreement.
[10] In Part B of the notice of motion , Oasis and Oasis Asset Company sought
an order that if it is found that the arbitration provisions in clause 18 of the
franchise agreement apply to the relief sought , that the arbitration clause would
not affect the disputes forming the subject of the interdict applications . They also
sought a final order interdicting and restraining the franchisees from : (i) using the
Oasis business system, know -how, copyright, trade dress, trademarks, trade
secrets and confidential information ; (ii) competing unlawfully with Oasis; (iii)
making injurious falsehood s against Oasis; (iv) making use of Oasis Asset
Company’s Water Exchange Programme (the Exchange Programme) and the
copyright, confidential information and trademarks associated with the
Programme; and (v) unlawfully competing with Oasis Asset Company .
11
[11] The franchisees opposed the applications. The grounds of their opposition
can be summarised as follows :
(a) The franchisees had lawfully terminated their franchise agreements ,
essentially for the following reasons . Oasis failed to comply with the
Consumer Protection Act 68 of 2008 (CPA) and the regulations made
under it, by failing to provide management accounts relating to a marketing
fund. It implemented a ‘land grab’ strategy which required franchisees to
acquire the stores of competitors . Oasis acquired a controlling interest in
Go-Zone, a direct competitor in the water business, and competed with its
own franchisees . Oasis indicated tha t it no longer considered the franchise
model feasible and started terminating franchise agreements unlawfully.
(b) By mid -February 2023 , some 54 franchisees who collectively represented
nearly 25% of Oasis Water stores , had also terminated their franchise
agreements. The applications were launched against the franchisees
because they were the instigators of this mass exodus of franchisees.
(c) Apart from the Oasis trademark, Oasis and Oasis Asset Company do not
have any trade secrets, confidential information or other intellectual
property of commercial value.
(d) The franchisees did not unlawfully interfere with the month -to-month
contracts between Oasis Asset Company and customers of the Exchange
Programme. In terms of th is programme, customers lease a water dispenser
from Oasis Asset Company . The lease amount includes 100 litres of water
per month. The bottle used in the dispenser contains 10 litres of water and
an empty bottle can be exchanged for a bottle of water at a participating
Oasis store .
(e) The sale of purified water by the franchisees to customers under the Manzi
brand, d oes not constitute unlawful competition.
12
[12] The Pretoria High Court (Kooverjie J) granted the interim interdict sought
in prayers 2.1 to 2. 14 of the notice of motion in the Van den Berg Water
application , pending the outcome of the relief sought in Part B . The court declined
to grant an order enforcing the restraint of trade provisions . It granted Oasis costs
on an attorney and client scale as specified in the agreement.
[13] In the application against Van Schalkwyk Water, the Kimberley High
Court (Lever J) granted Oasis an interim interdict in terms of prayers 2.1 to 2.13,
and 3 of the notice of motion, pending the outcome of the relief sought in Part B .
The costs of the interim application were reserved for determination by the court
dealing with Part B of the notice of motion.
[14] The Mahikeng High Court (Petersen J) in the Bester application, granted
Oasis an interdict in terms of prayers 2.1, 2.2, 2.5 and 2.6 of the notice of motion.
It dismissed the application for the remaining relief and directed the parties to pay
their own costs.
[15] The Pretoria High Court granted Van Berg Water leave to appeal its order
to this Court. The Kimberley High Court made a similar order in favour of Van
Schalkwyk Water. In the Bester application , the Mahikeng High Court granted
the franchisees leave to appeal to this Court. It also granted Oasis and Oasis Asset
Company leave to cross -appeal against its orders refusing them relief.
The issues
[16] Before us, counsel for Oasis fairly conceded that the relief sought in
prayer 3 of the notice of motion – an interdict restraining the franchisees from
engaging in a similar operation ‘as that of the First Applicant’s business system’,
is aimed at restricting competition for a limited duration – a maximum period of
12 months. The franchisees have been trading as Manzi Water since February
2023 . It was accordingly submitted that a decision on the order enforcing the
13
restraint of trade provisions contained in the franchise agreements , would have
no practical effect or result, as envisaged in s 16(2) of the Superior Courts Act 10
of 2013.1
[17] The same applies to the interdicts granted in terms of prayers 2.7 and 2.11
to 2.14 of the notice of motion . In terms of prayer 2.7, the franchisees were
‘ordered to forthwith hand over control of the franchised businesses to [Oasis ]’.
These businesses no longer exist . The interdicts granted in terms of prayers 2. 11
to 2.14 likewise will have no practical effect. In terms of these interdicts, the
franchisees were restrain ed from: selling any Oasis products; selling bottled water
in an Oasis bottle or using an Oasis bottle cap; displaying products with a sign or
label that create the impression that the franchisees’ products are those of Oasis;
and using the Manzi Water Exchange Programme.
[18] Counsel for Oasis however submitted that the orders granted in terms of
prayers 2. 1 to 2.4 of the notice of motion will have practical effect; and possibly
also, the orders in terms of prayers 2.8 and 2.9. However , prayer 2.8 – for an
interdict to restrain the franchisees from using Oasis’ business system and
intellectual property – is a repetition of prayer 2.4, save that it is more descri ptive.
In prayer 2.9, Oasis sought an interdict restraining the franchisees from using its
water purification and bottling systems and equipment . As regards the orders
granted in terms of paragraph 2.10 relating to the use of confidential information,
trade secrets and passing off, it was submitted that these orders may still be
relevant.
[19] Thus, the remaining issues raised by the appeals are the following:
(a) The franchisees’ application to adduce evidence on appeal.
1 Section 16(2) (a)(i) of the Superior Courts Act 10 of 2013 provides:
‘When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical
effect or result, the appeal may be dismissed on this ground alone.’
14
(b) Whether a decision on the interdicts granted in terms of paragraphs 2.1,
2.2, and 2.4 of the notice of motion , will have any practical effect.
(c) Whether the interdicts sought in terms of paragraphs 2.3, 2.9 and 2.10 of
the notice of motion, were properly granted.
(d) Costs.
The application to adduce evidence on appeal
[20] The franchisees have applied to adduce substantially the same evidence on
appeal in all three cases. This evidence essentially comprises a list of former Oasis
franchisees conducting business under the Manzi brand as at April 2024; a copy
of a document dated 6 November 2023 , showing that Oasis , in an action instituted
against the Besters in the Mahikeng High Court , claims R1 million as a penalty
arising from a franchise agreement concluded in 2020 ; an affidavit by the
franchisees’ attorney confirming th e institut ion of that action ; and a termination
letter dated 2 October 2015 sent by Oasis to Oasis Water Table View (the 2015
letter) . In the application by the Besters to adduce evidence on appeal, they also
seek an order that a supplementary affidavit which was consi dered in the Van den
Berg and Van Schalkwyk applications, be admitted. This h owever is unnecessary,
since that affidavit concerns issues that do not have to be decided on appeal.
[21] It is trite that the power to admit evidence on appeal is exercised sparingly
and only in exceptional circumstances.2 This is because of the need for finality;
the undesirability of allowing a litigant who has been remiss in produc ing
evidence , to do so late in the day; and the need to avoid prejudice.3 The applicant
must furnish a suitable explanation for its failure to adduce the evidence in the
2 S v N 1988 (3) SA 450 (A); Ibex RSA Holdco Ltd and Another v Tiso Blackstar Group (Pty) Ltd and Others
[2024] ZASCA 166; 2025 (2) SA 408 (SCA) para 28.
3 Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 359 (CC), 2005
BCLR 301 (CC) (Rail Commuters ) paras 41 -43.
15
court below, and demonstrate that the evidence is reliable, weighty and material
and presumably to be believed.4
[22] The franchisees have not met these requirements. The evidence sought to
be adduced is neither weighty nor material. The updated list of Manzi businesses
which were former Oasis franchisees, is irrelevant to the issues decided by the
High Courts. So too, the action instituted against the Besters in which Oasis
claims payment of R1 million , and the attorney’s affidavit confirming this . The
2015 letter, containing Oasis’ opinion as to what constitutes its intellectual
property and protectable interests , and a statement that it has the right to buy
equipment from a franchisee upon termination of a franchise agreement, is
likewise irrelevant. These issues must be decided according to the terms of the
franchise agreement.
[23] Aside from this, the evidence sought to be adduced is not substantial .
Neither would it have any impact on the outcome of the cases . For these reasons,
the application to adduce evidence on appeal is refused with costs .
The interdicts in paragraphs 2.1, 2.2 and 2.4 of the order
[24] The relief sought in Part A of the notice of motion was for interim
interdicts, pending the final outcome for the relief sought in Part B. A preliminary
issue is whether the interdicts granted in terms of prayers 2.1 to 2.4 are interim or
final. An interim interdict is a court order preserving the status quo pending the
final determination of the rights of the parties. It does not finally determine th ose
rights.5 Whether an interdict is interim or final depends on its effect on the issue,
not upon its form.6
4 Coleman v Dunbar 1933 AD 141 at 162 para 3, affirmed in Rail Commuters fn 3 para 43.
5 See 11 Lawsa 2 ed at 418 para 401 and the authorities collected in fn 1.
6 Apleni v Minister of Law and Order and Others; Lamani v Minister of Law and Order and Others [1989] 1 All
SA 71 (A) ; 1989 (1) SA 195 (A) , affirmed in National Gambling Board v Premier , KwaZulu -Natal , and Others
2002 (2) SA 715 (CC) ; 2002 (2) BCLR 156 (CC) para 50 ; South African Moto r Industry Employers’ Association
v South African Bank of Athens Ltd 1980 (3) SA 91 (A) at 96H.
16
[25] The interdicts granted in terms of prayers 2.1 to 2.4 and 2.9 of the notice
of motion , are final in effect. In terms of these interdicts t he franchisees were
ordered to return all printed matter relating to the franchise operation to Oasis; to
return all Oasis signage and its water purifying system; to cease using the Oasis
business system and intellectual property ; and to cease using the Oasis water
purification and bottling systems. None of these orders is directed at preserving
the status quo , pending the determination of the relief sought in Part B of the
notice of motion . Further, t hese interdicts will not be reconsidered in deciding
whether Oasis is entitled to the relief in Part B .
[26] Since the orders granted in terms of prayers 2.1 to 2.4 and 2.9 are final in
effect, Oasis was required to establish a clear right ; and an issue such as the
balance of convenience does not arise.7 A further consequence of their status as
final interdicts is that the Plascon -Evans rule applies ,8 and disputes of fact
essentially fall to be determined on the respondents’ version, unless it is far -
fetched or untenable.
[27] Harms JA affirmed this rule in Zuma :9
‘Motion proceedings, unless concerned with interim relief, are all about the resolution of legal
issues based on common cause facts. Unless the circumstances are special they cannot be used
to resolve factual issues because they are not designed to determine proba bilities. It is well
established under the Plascon -Evans rule that where in motion proceedings disputes of fact
arise on the affidavits, a final order can be granted only if the facts averred in the applicant ’s
(Mr Zuma ’s) affidavits, which have been admit ted by the respondent (the NDPP), together with
the facts alleged by the latter, justify such order. It may be different if the respondent ’s version
consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably
implausible, far -fetched or so clearly untenable that the court is justified in rejecting them
merely on the papers.’
7 Lawsa fn 5 para 401; Masuku v Minister van Justisie en Andere 1990 (1) SA 832 (A) at 840-841.
8 Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 635B -C.
9 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) ; 2009 (1) SACR
361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) para 26.
17
[28] The founding affidavit states that the rights of Oasis to the interdicts are
founded on the contractually agreed post -termination rights and its common law
right to protection against unlawful competition. The post -termination rights are
contained in clause 20 of the franchise agreement , which , inter alia , provides:
‘20.3 Upon termination of this agreement for any reason whatsoever:
20.3.1 all rights which may have vested in the franchisee in terms of this agreement will
immediately and automatically revert to the franchisor and/or the franchisor’s nominee;
20.3.2 the franchisee will return immediately to the franchisor any and all manual and other
printed matter relating to the franchise operation, remove and return all signage to the
franchisor, as well as return of the Oasis water purifying system, consisting of the
following:
20.3.2.1 the reverse osmosis purification plant;
20.3.2.2 the filling/dispensing tables;
20.3.2.3 mobile ozonation unit or ozone units;
20.3.2.4 any article bearing Trade marks
and will immediately cease to use or exploit the Business system and any Intellectual
property owned by the franchisor.’
[29] Oasis submits that its rights under the franchise agreement were infringed
as follows. A fter cancellation of the agreement, the franchisees dishonestly
misused the advantage they obtained as franchisees, inter alia, by passing off to
springboard their competing business, Manzi Water . They unlawfully retained
and used the Oasis business system , intellectual property and the Exchange
Programme by dishonest means . They continue to provide an identical service
and product to the same client base, from the same premises , in the same way
they did when they were Oasis franchisees, by simply substituting the Oasis
Brand with the Manzi Brand.
[30] The franchisees submit that the post -termination provisions of the
franchise agreement are unenforceable, having regard to the right of freedom of
18
trade and occupation in s 22 of the Constitution ,10 and the right to property in
s 25.11 They further submit that the post -termination provisions are unenforceable
as contemplated in the CPA , because they constitute unconscionable conduct
under s 40(1) (c);12 unfair, unreasonable or unjust contract terms under s 48(1);13
and prohibited transactions under s 51(1) (i).14
[31] The franchisees also submit that they do not have any trade secrets,
confidential information or other intellectual property of Oasis , which has
commercial value . They say that they did not unlawfully interfere with the month -
10 Section 22 of the Constitution provides:
‘Freedom of trade, occupation and profession
Every citizen has the right to choose their trade, occupation and profession freely. The practice of a trade,
occupation or profession may be regulated by law.’
11 Section 25 of the Constitution states , inter alia:
‘Property
(1) No one may be deprived of property except in terms of law of general application, and no law may permit
arbitrary deprivation of property.
12 Section 40(1) (c) of the CPA provides:
‘(1) A supplier or an agent of the supplier must not use physical force against a consumer, coercion, undue
influence, pressure, duress or harassment, unfair tactics or any other similar conduct, in connection with any -
. . .
(c) negotiation, conclusion, execution or enforcement of an agreement to supply any goods or services to a
consumer .’
13 Section 48(1) of the CPA states:
‘(1) A supplier must not -
(a) offer to supply, supply, or enter into an agreement to supply, any goods or services -
(i) at a price that is unfair, unreasonable or unjust; or
(ii) on terms that are unfair, unreasonable or unjust;
(b) market any goods or services, or negotiate, enter into or administer a transaction or an agreement for the
supply of any goods or services, in a manner that is unfair, unreasonable or unjust; or
(c) require a consumer, or other person to whom any goods or services are supplied at the direction of the
consumer -
(i) to waive any rights;
(ii) assume any obligation; or
(iii) waive any liability of the supplier,
on terms that are unfair, unreasonable or unjust, or impose any such terms as a condition of entering into a
transaction. ’
14 Section 5 1(1)(i) of the CPA provides:
‘(1) A supplier must not make a transaction or agreement subject to any term or condition if -
. . .
(i) it expresses, on behalf of the consumer -
(i) an authorisation for any person acting on behalf of the supplier to enter any premises for the purposes of
taking possession of goods to which the agreement relates;
(ii) an undertaking to sign in advance any documentation relating to enforcement of the agreement,
irrespective of whether such documentation is complete or incomplete at the time it is signed; or
(iii) a consent to a predetermined value of costs relating to enforcement of the agreement, except to the
extent that is consistent with this Act .’
19
to-month contracts between Oasis Asset C ompany and the Exchange Programme
customers.
[32] Given that a n order enforcing the restraint of trade provisio ns in the
franchise agreements will have no practical effect, it is unnecessary to consider
the defence that the restraint of trade clause is unenforceable because it infringe s
s 22 of the Constitution . The same applies to the defence based on s 25 of the
Constitution , namely that the order granted in terms of prayer 2.7 of the notice of
motion th at the franchisees hand over control of the ir franchised business es to
Oasis , constitutes an arbitrary deprivation of property.
[33] In any event, the constitutional defences were impermissibly raised for the
first time , on appeal . It is settled that a challenge based on a constitutional
provision must be properly pleaded. A party must place before the court
information relevant to that challenge to inform the opposing party of the case it
is called upon to meet and enable it to present fa ctual material and legal argument
to meet that case. The opposing party must be left in no doubt as to the nature of
the case it has to meet, and the relief sought.15 So, the franchisees cannot rely on
s 22 or s 25 of the Constitution to defeat a claim by Oasis that they return the
water purifying system, as sought in prayer 2.3 of the notice of motion.
[34] I now turn to the orders granted in terms of prayers 2.1, 2.2 and 2.4 of the
notice of motion. On either parties’ version the franchise agreement came to an
end in February 2023 , albeit that this did not come about by mutual consent. What
is clear, is that the parties expressly agreed that the termination of the agreement
‘for any reason whatsoever’, would trigger the rights in clause 20.3.
15 Prince v President of the Law Society of the Cape of Good Hope and Others 2002 (2) SA 794; 2002 (3) BCLR
231 (CC); 2002 (1) SACR 431 (CC) .
20
[35] The franchisees undertook to immediately return all manuals and other
printed material relating to the franchise operation, and to remove and return all
signage to Oasis, on termination of the agreement . They failed to do so. The
evidence shows that they continued to use the Oasis signage , stationery and
marketing material in several of their outlets .
[36] The franchisees’ submiss ion that they do not have any trade secrets or
confidential information relating to the franchise d business , is unsustainable on
the evidence. So too, their submission that Oasis does not have a business system,
particular know -how or trade secrets. These are defined in the franchise
agreement, with which the franchisees undertook to comply.
[37] Clause 3.11 of the agreement defines the ‘franchised business’ . It means ,
inter alia, the operation of retail outlets ; the franchised business as described in
the operation al procedures and training manual ; and know -how (which includes
but is not limited to all confidential, technical, commercial or business
information relating to the use of the business system or operation of the
franchised business ).
[38] The ‘business system ’ is defined in the franchise agreement as meaning the
system of operating the franchise d business recorded in the agreement , and/or the
operational procedures and training manual. The agreement defines ‘intellectual
property ’ as including know -how, goodwill, trade dress , trade marks and trade
secrets.
[39] This is not a case where the franchisees received confidential information
and trade secrets in circumstances where they ought to have appreciated that they
were confidential. Rather, the franchisees not only expressly agreed that they
would retain as confidential, the intellectual property and busin ess system of
Oasis , but also that they would obtain a written confidentiality document from
21
their employees or agents to whom the operational procedures and training
manual were disclosed . Van den Berg Water concluded four franchise agreements
in 2018 . Van Schalkwyk Water concluded a renewal franchise agreement in 2019.
The Besters concluded two franchise agreements in 2019 and 2022 respectively.
All the franchise es conducted Oasis franchise s until February 2023 .
[40] What is more, the cancellation letter states:
‘Our clients hereby undertake as follows:
a. To remove all OASIS WATER trademarks, signage and other related OASIS WATER
brand elements from all its premises, within a period of 7 (seven) business days from date
of this correspondence;
b. To refrain from using the OASIS WATER trademarks in future (subject to the above grace
period to remove all signage and branding); and
c. To refrain from using any OASIS WATER know -how or confidential information.’
[41] Thus, on their own showing the franchisees obtained know -how and
confidential information as a result of the Oasis franchise . This is consistent with
their contractual undertaking s to conduct the franchise in accordance with its
operational procedures and training manual , and to maintain the confidentiality
of its business system and intellectual property. Oasis ’ know -how, trade secrets
and confidential information , such as its pricing structures and margins,
marketing strategies, client base records and information, and sales strategies and
marketing endeavours , obviously do not constitute information easily accessible
from public sources , or information of a trivial character .
[42] Acco rdingly, the franchisees’ submission that they did not gain access to
confi dential informatio n, such as Oasis’ know -how, business system and
operational procedures , is far-fetched or cl early untenable; and may safely be
rejected on the papers. And t he evidence shows that they did not comply with the
22
undertaking in th eir cancellation letter. The Oasis trademark was still being used
in various outlets of the franchisees. They retained the client base records and
information relating to operational procedures, and used these to contact
customers of Oasis, informing them that the Manzi brand offers the same service
and quality . Indeed, this is common ground. The y used the same marketing and
pricing strategies as Oasis, in selling Manzi Water. One of the franchisees
contacted a desktop publisher used by Oasis, to design custom labels for its brand,
which was refused.
[43] It follows that the interdicts in paragraphs 2.1, 2.2 and 2.4 of the order will
have practical effect . The Mahikeng High Court was correct in granting the
interd icts in paragraphs 2.1 and 2.2 of its order. However, it erred in not granting
the interdict sought in prayer 2.4 of the notice of motion , on the ground that this
relief was inextricably linked to the restraint of trade order sought in prayer 3 of
the notice of motion. That is not so , for the reasons advanced above.
[44] The franchisees’ reliance on s 40(1) (c) of the CPA is misplaced. There is
no evidence that Oasis used ‘coercion, undue influence, pressure, duress or
harassment, unfair tactics or any other similar conduct’, in the conclusion or
enforcement of any of the franchise agreements . Section 51(1) (i) of the CPA is
no longer relevant, since Oasis concedes that an order authorising it to take
control of the franchised business, will have no practical effect.
[45] For the above reasons, the relief sought in paragraphs 2.1, 2.2 and 2.4 of
the notice of motion, was correctly granted by the Pretoria and Kimberley High
Courts. Consequently, the franchisees’ appeal against those orders, is dismissed.
The appeal by Oasis against paragraph 2.4 of the order of the Mahikeng High
Court succeeds. The cross -appeal by the f ranchisees against paragraphs 2.1 and
2.2 of the order of the Mahikeng High Court, is dismissed.
23
The interdicts sought in prayers 2.3 and 2.9 of the notice of motion
[46] In prayer 2.3 of the notice of motion , Oasis sought the return of the water
purification system consisting of purification plants, filling/dispensing tables,
ozone units and article s bearing trademark s. Oasis rightly, does not allege
ownership of this equipment. Instead , this relief is squarely based on clause 20.3.2
of the franchise agreement .
[47] Clause 7.3.2 of the franchise agreement require s a franchisee to ‘purchase
all its equipment, fittings and accessories ’ from suppl iers recommended by Oasis .
It provides that upon termination of the agreement for whatever reason, the
equipment , fittings and accessories ‘can only be sold to an existing franchisee, an
approved b uyer of the franchised business or be sold to the franchisor at its then
fair market value’ . However, Oasis has not exercised the option to buy the
equipment and consequently, has not tende red any payment for it.
[48] The definition of a ‘consumer’ in the CPA includes ‘a franchisee in terms
of a franchise agreement’ . Section 48(1) provides that a supplier must not
conclude an agreement to supply goods or services on terms that are unfair,
unreasonable or unjust;16 or require a consumer to assume any obligation on such
terms.17 Clause 20.3.2 of the franchise agreement is a violation of these
provisions. The agreement requires the franchisees to purchase the Oasis water
purification system ; and authorises its sale to another franchisee or to Oasis itself
upon termination of the agreement . In either event, the franchisees would be
entitled to the proceeds of the sale. But clause 20.3.2 also grants Oasis the right
to obtain the water purifying system and its components , free of charge , on
termination of the agreement for whatever reason. This plainly , is a term that is
unreasonable and unjust. Apart from this, clause 20.3.2 is incurably ambiguous
and falls to be construed against Oasis, in accordance with the contra proferentem
16 Section 48(1) (a)(ii) of the CPA.
17 Section 48(1) (c)(ii) of the CPA.
24
rule (an ambiguous contract term should be construed against the drafter of the
contract) .18 In short, Oasis did not make out a case for the relief sought in prayer
2.3 of the notice of motion.
[49] The interdict sought in prayer 2.9, restrains the franchise es from using or
displaying the Oasis water purification system and equipment as part of any
business enterprise. Oasis presented evidence of numerous instances where the
same kiosks, refill tables , water purification and ozonation systems as those used
by Oasis, were being used in the various outlets of the franchisees , after the
cancellation letter had been sent. The franchisees’ however adduced evidence
showing that the water purification systems and equipment used by Oasis, are not
unique ; that they are widely used in the industry; that Oasis procures these
products from third parties; and that some franchisees purchased their purification
systems and refill tables directly from suppliers. It cannot be said that this
evidence is plainly i mplausible , and any factual dispute on this aspect falls to be
determined on the franchisees’ version .
[50] There is nothing in the franchise agreement which suggests that Oasis
supplies unique water purification and bottling systems and equipment to its
franchisees. On the contrary, franchisees are responsible for carrying all
necessary equipment and shopfitting , and are required to purchase all equipment ,
fitting s and accessories detailed in the operational procedures and training
manual , from suppl iers recommended by Oasis . Franchisees may also acquire
equipment and accessories from any other supplier, provided that ‘franchisor
requirements or specifications are fully adhered to’. Indeed, the answering
affidavit states that the re are about four main suppliers of water purification
systems; that Oasis did not prescribe a particular system; and that franchisees
18 Cairns (Pty) Ltd v Playdon & Co, Ltd [1948] 3 All SA 107, 1948 (3) SA 99 (A) at 122 -3; R H Christie and G B
Bradfield Christie’s Law of Contract in South Africa 8 ed (2022) at 277 -278.
25
were free to choose both the system and the supplier to be used in running the
franchise. This is the clearest indication that Oasis does not have unique or novel
water purification and bottling systems or equipment , supplied to or required to
be used by franchisees . What is more, e quipment and accessories may be sold to
a third party after removal of the Oasis brand, if Oasis or a fran chisee is not
interested in buying them.
[51] For the above reasons, the relief sought in paragraphs 2. 3 and 2.9 of the
notice of motion, should not have been granted by the Pretoria and Kimberley
High Courts. Consequently, the franchisees’ appeal against those orders is
upheld .
Prayer 2.10 of the notice of motion
[52] This issue can be dealt with briefly. The relief sought in prayer 2.10 is
essentially an interdict to restrain the franchisees from competing unlawfully with
Oasis and Oasis Asset Company by using the Exchange Programme; and passing
off their products and services as being those of Oasis. Given that Oasis accepts
that the franchisees have been trading as Manzi Water since February 2023 ; that
the order restraining the franchisees from engaging in a similar operation as the
Oasis business system, has been overtaken by events; and that a decision on th at
order will have no practical effect , the relief sought in prayer 2.10 is no longer
relevant.
[53] In any event, the assertions in the founding affidavit that Oasis developed
a water purification process using a secret combination of specifically selected
filters combined with Ozone treatment of the water, has no t been established in
evidence. These assertions were denied and rebutted by the franchisees , who
presented evidence showing that Oasis does not prescribe a combination of filters;
and purified water is produced by filtering municipal water through a process of
26
reverse osmosis an d ozonation, comprising six steps widely used in the industry .
And as stated, franchisees were free to choose their water purification system.
[54] The Exchange Programme, and specifically the allegation relating to the
development of a 10-litre purpose -built bottle in collaboration with Polyoak and
Plastic Innovations, constitutes inadmissible hearsay. Neither is the 10 -litre bottle
sold exclusively to Oasis. Further, the evidence shows that the Exchange
Programme is neither unique nor innovative – it was copied from the website of
Primo Water Exchange, a firm in the United States. In addition, the Programme
cannot be regarded as a system – the dispenser is not unique and was bought from
a third party; and several competitors of Oasis offer a water exchange programme .
Again, the version of the franchisees on this score, is neither far -fetched nor
untenable and must be accepted.
[55] The allegation that the franchisees are passing off the ir water shop and
Change Your Manzi business as being that of Oasis, h as likewise not been
demonstrated in evidence. The name , get-up or trade mark used by the franchisees
is not reasonably likely to confuse or deceive the public into thinking that their
goods and services emanate from Oasis, or that there is an association between
those goods and the services and business conducted by Oasis.19 On the contrary,
Oasis demonstrated in annex es to the founding papers that the franchisees had
informed consumers as follows: ‘We are no longer associated [with] or part of
the Oasis Water Franchise Group. We are part of a new water Retail and
Distribution Group called MANZI (short for water in Zulu)’.
[56] Finally on this issue, there are no facts in the founding papers that support
a case of unlawful competition in relation to the ‘water shop business ’. The high
watermark of Oasis’ case in this regard is its assertion that it developed a unique
19 Williams t/a Jenifer Williams & Associates and Another v Life Line Southern Transvaal 1996 (3) SA 408 (A)
at 418 F-H.
27
purification process consisting of a secret combination of selected filters ,
combined with ozone treatment. As stated, this claim is unsustainable on the
evidence .
[57] Further, i n asserti ng that the franchisees are operating the same business ,
in the same way and servicing the same customers, Oasis overlooks two crucial
facts. First, the franchisees have not copied nor appropriated an Oasis product or
business values .20 They are not selling Oasis water as if it were their own product.
What is being sold is municipal water , which is filtered in a process used by all
water shops and water purification businesses , utilising purification plants and
equipment that are freely available in the market and sold by third parties . In
addition , at a meeting in September 2021 , Oasis’ main deponent , Mr Ignatius du
Preez, informed Mr Bester that there was nothing unique about Oasis franchises
and the only thing that differentiates them is their brand. Mr du Preez admits
attending that meeting, but says that he ‘cannot recall’ the discussion. Second, the
business built up by a franchisee, even in a general sense, is not the business of
the franchisor; and the customer connections built up by the franchisee whilst
using the franchisor’s name, must be regarded as the franchisee’s ‘property ’,
subject to t he rider that cross -referred customers cannot be regarded as trade
connections built up by the franchisee.21
[58] For the above reasons, the relief sought in paragraph 2.10 of the notice of
motion, should not have been granted by the Pretoria and Kimberley High Courts.
Consequently, the franchisees’ appeal against this order succeeds.
20 Taylor & Horne (Pty) Ltd v Dentall (Pty) Ltd 1991 (1) SA 412 (A) at 421F -G.
21 U-Drive Franchise Systems (Pty) Ltd v Drive Yourself (Pty) Ltd and Another 1976 (1) SA 137 (D) at 142E -G.
Although this was said in the context of a restraint of trade agreement, the position is in principle no different in
relation to unlawful competition.
28
Costs
[59] Oasis was successful in the Pretoria and Kimberley High Court s. Its
reasons for not prosecuting the appeal in relation to the orders in its favour in
those cases, are reasonable , and due to a change in circumstances beyond its
control. Subject to what is stated below, t here is no reason why it should be
deprived of its costs in the High Court s, on the contractually agreed scale , in case
numbers 989/2023 and 988/2023 .
[60] However, the same cannot be said of Oasis Asset Company. Although its
Exchange Programme was made available to the franchisees, it has no contract
with them and consequently, no entitlement to attorney -client costs . The
application by both Oasis and Oasis Asset Company for an order in terms of
prayers 2.3, 2.7, 2.9, 2.10 and 2.14 of the notice of motion, ought not to have been
granted by the relevant High Courts. Moreover, Oasis Asset Company failed to
establish passing off or unlawful competition in respect of its Exchange
Programme. However, a separate costs order against it on a party -and-party scale
would be im practical and create confusion. Therefore, an order that the applicants
in case numbers 989/2023 and 988/2023 are entitled to 50% of their costs, is in
my view, appropriate and fair.
[61] The Mahikeng High Court in case number 1120/2023, granted Oasis an
order only in terms of prayers 2.1, 2.2, 2.5 and 2.6 of the notice of motion.
Although the court failed to make an order of attorney and client costs in terms
of the franchise agreement, Oasis was not substantially successful in those
proceedings. Consequently, there is no basis to interfere with the costs order of
the Mahikeng High Court.
[62] Oasis has not achieved substantial success on appeal in case number
1120/ 2023. Equally, the franchisees were largely unsuccessful in their cross -
29
appeal . In these circumstances , fairness dictates that there should be no order
regarding the costs of appeal in case number 1120/ 2023.
[63] That leaves the costs of appeal in case numbers 989/2023 and 988/2023.
The franchisees lodged an appeal in these cases. It is true that Oasis was
compelled to oppose it to preserve the orders granted in its favour. However, this
factor is not decisive . On the other hand, the franchisees were successful in that
the order in paragraph 2.3 was overturned; and several orders which Oasis had
obtained in the High Court, such as the handing over of their businesses, passing
off, unfair competition and that they be restrained from using the Manzi Water
Exchange Programme, was not proceeded with. In the circumstances, the
appropriate order is that e ach party be liable for their own costs.
Order
[64] The following order is made:
Case no: 989/2023
1 The application to adduce evidence on appeal is dismissed with costs,
including the costs of two counsel , on the party -and-party scale.
2 The appeal succeeds in part.
3 The order of the Gauteng Division of the High Court, Pretoria, is set aside and
replaced with the following:
‘1. The first respondent is ordered to return to the first applicant all manuals
and other printed matter relating to the first respondent’s franchise
operation, including:
1.1 manuals, labels or printed material containing the first applicant's
names or trademarks;
1.2 printed or electronic matter relating to the franchise operation ,
previously conducted by the first respondent under the name and
style of Oasis Water; and
30
1.3 client lists, or data lists.
2. The first respondent is ordered to remove and return all ‘Oasis ’ signage
to the first applicant.
3. The first respondent is ordered to cease using or exploiting the first
applicant’s ‘Oasis ’ business system and any intellectual property owned
by the first applicant , more specifically, its know -how, trademarks, trade
secrets, and confidential information.
4. The respondents are ordered to pay 50% of the costs of this application,
jointly and severally, on the contractually agreed scale as between
attorney and client, including the costs of two counsel where so
employed.’
4 Save as aforesaid, the appeal is dismissed. There is no order as to costs.
Case no: 988/2023
1 The application to adduce evidence on appeal is dismissed with costs,
including the costs of two counsel , on the party -and-party scale.
2 The appeal succeeds in part.
3 The order of the Northern Cape Division of the High Court, Kimberley , is set
aside and replaced with the following:
‘1. The first respondent is ordered to return to the first applicant all manuals
and other printed matter relating to the first respondent’s franchise
operation, including:
1.1 manuals, labels or printed material containing the first applicant's
names or trademarks;
1.2 printed or electronic matter relating to the franchise operation
previously conducted by the first respondent under the name and
style of Oasis Water; and
1.3 client lists, or data lists.
31
2. The first respondent is ordered to remove and return all ‘Oasis ’ signage
to the first applicant.
3. The first respondent is ordered to cease using or exploiting the first
applicant’s ‘Oasis ’ business system and any intellectual property owned
by the first applicant , more specifically, its know -how, trademarks, trade
secrets, and confidential information.
4. The respondents are ordered to pay 50% of the costs of this application,
jointly and severally, on the contractually agreed scale as between
attorney and client, including the costs of two counsel where so
employed.’
4 Save as aforesaid, the appeal is dismissed. There is no order as to costs.
Case no: 1120/2023
1 The application to adduce evidence on appeal is dismissed with costs,
including the costs of two counsel , on the party -and-party scale.
2 The appeal succeeds in part.
3 The cross -appeal succeeds in part.
4 The order of the North -West Division of the High Court, Mahikeng , is set
aside and replaced with the following:
‘1. The first respondent is ordered to return to the first applicant all manuals
and other printed matter relating to the first respondent’s franchise
operation, including:
1.1 manuals, labels or printed material containing the first applicant's
names or trademarks;
1.2 printed or electronic matter relating to the franchise operation
previously conducted by the first respondent under the name and
style of Oasis Water; and
1.3 client lists, or data lists.
32
2. The first respondent is ordered to remove and return all ‘Oasis ’ signage
to the first applicant.
3. The first respondent is ordered to cease using or exploiting the first
applicant’s ‘Oasis ’ business system and any intellectual property owned
by the first applicant , more specifically, its know -how, trademarks, trade
secrets, and confidential information.
4. Each party shall bear their own costs.’
5 Save as aforesaid, the appeal is dismissed. There is no order as to costs.
6 Save as aforesaid, the cross -appeal is dismissed. There is no order as to costs.
_______ ___________
A SCHIPPERS
JUDGE OF APPEAL
33
Appearances:
For appellant s: G Kairinos SC with J Butler
Instructed by: Smith & Van Wyk, Pretoria
Honey & Partners Incorporated , Bloemfontein
For first and second
respondent s: P G Cilliers SC with R J Groenewald and R Modua
Instructed by: Adams & Adams Attorneys, Pretoria
Phatshoane Henney Incorporated, Bloemfo ntein