REPUBLIC OF SOUTH AFRICA
'
JI /
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: 2025 -082002
(1)
(2)
(3)
REPORTAB LE: ¥ES/NO
OF INTEREST TO THE JUDGES : ¥eS/NO
REVISED .
::::::::::::::::::::::::: ~
DATE 22 October 2025 SIGNATURE ............................. .
In the m atter between:
GALITO'S MOBILE (PTY) LTD
-and-
TETZ INVESTMENT (PTY) LTD
TETELO MOLEKANE CHOEU
LEHUMO RISE (PTY) LTD
X FUEL FILLING STATION
IMPERIUM FRANCHISE HOLDINGS (PTY) LTD
APPLICANT
15 T RESPONDENT
2ND RESPONDENT
3Ro RESPONDENT
4 TH RESPONDENT
5TH RESPONDENT
2
COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION
6TH RESPONDENT
Delivered
Date heard
Coram
BRESLERAJ:
22 October 2025
This judgment was handed down electronically by circulation to
the parties' legal representatives by e-mail. The date and time
for hand down of the judgment is deemed to be 22 October 2025
at 10:00 am.
22 September 2025
Bresler AJ
JUDGMENT
[1] The Applicant applies for inter a/ia the following relief:
1.1 That the dissolution and / or deregistration of the 1 st Respondent in terms of
Section 82(3) be declared void in terms of Section 83(4) of the Companies
Act, Act 71 of 2008.
1.2 Flowing from the aforesaid order, that certain ancillary relief is granted.
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1.3 Interdicting and restraining the 1st, 2nd and 3rd Respondents and all parties
related to them from:
1.3.1 Entering into a contract or continuing with any contract with a third
party, the effect of which would be to compete directly or indirectly with
the Applicant;
1.3.2 Commencing to or continuing to conduct for themselves or as
members , agents, employees of any concern which directly or directly
competes with the Applicant.
1.4 That the interdictory relief will apply up to 27 February 2026 and within a radius
of 10 km from X Fuels filling station, R579 , Ga-Moloi 187, Glencowie,
Limpopo.
[2] The case was initially enrolled for hearing on 24 June 2025 on the urgent roll. The
matter was struck due to non-compliance with the practice directives pertaining to
the uploading of urgent matters on Caselines. The issue of urgency is consequently
moot.
[3] The Applicant is a franchisor and company that runs a national chain style chicken
fast-food franchising business that, from time to time, licenses and permits dealers,
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persons, or entities to use its brand name and other benefits to franchisees for the
purpose of running the business.
[4] The 1st Respondent was such an entity until 28 February 2025. The 1st Respondent
is currently deregistered in terms of the provisions of the Companies Act, Act 71
2008 due to its failure to lodge annual returns.
[5] The 2nd Respondent, Mr TM Choeu , is alleged to be a related person as
contemplated in Sections 2(b) and (c) of the Companies Act, 2008. He also acts
or purports to act for the benefit of the 1st Respondent.
[6] The 3rd Respondent is Lehumo Rise (Pty) Ltd. Mr Choeu and Mr KP Mazziz are the
directors of Lehumo . Lehumo is also the entity which allegedly infringes the restraint
of trade provisions on the agreement forming the crux of the proceedings.
[7] The 4th, 5th and 6th Respondents are joined insofar as they may have an interest in
the outcome of the proceedings, and no pertinent relief is consequently claimed
against them.
[8] The Applicants case is premised on the franchise agreement concluded between
the Applicant and the 1st Respondent (previously known as Khom Trading). The
Applicant states that the relationship between the parties generally deteriorated
over time due to the conduct of the 1st Respondent. This resulted in a letter being
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delivered to the 1st Respondent on or about 11th of December 2024, claiming
compliance with the franchise agreement failing which further legal action will result.
[9] In lieu of the 1st Respondent's failure to comply with the said letter, a termination
letter was consequently delivered on the 28th of February 2025.
[1 0] As to the re-registration of the 1 st Respondent, the Applicant submits that severe
prejudice will follow if the 1 st Respondent is not re-instated. As the Applicant is not
in a position to lodge the said annual returns and pay the applicable fees, a court
order is the only remaining remedy available to the Applicant to enable the Applicant
to enforce its claim against the deregistered company . The Applicant consequently
relies on the power of the court to grant declaratory relief in terms of Section 83 of
the Companies Act, 2008.
[11] As to the contravention of the restraint clause, the Applicant states that the Barcelos
franchise, now being conducted from the same premises as the 1 st Respondent's
previously existing Galito's outlet, is conducted through Lehumo which is a related
person or entity to the 1 st Respondent. Barcelos is a direct competitor of Galito's.
[12] Through their related relationship, it is perceived that the terms of the franchise
agreement, with specific reference to the restraint of trade is, or will be, breached.
In this regard, clause 15.3.4 of the agreement specifically mentions involvement as
members , agents or employees of any other concern. Likewise, clause 15.5 of the
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franchise agreement contemplates persons related by blood or marriage or entities
with whom the 1st Respondent or its sureties are associated.
[13] On the aforesaid basis, the Applicant thus surmises that it is entitled to the
interdictory relief against the 1st, 2nd and 3rd Respondents.
[14] The Application was opposed by the 2nd and 3rd Respondents only. From the onset,
the 2nd and 3rd Respondents took the view that they are not bound by the provisions
of the franchise agreement as they were not parties thereto. As such, they can
therefore not be bound by the provisions of the said franchise agreement.
[15] It is however admitted that the Lehumo concluded a franchise agreement with
Barcelos. This franchise business commenced on the 17th of May 2025. The 2nd
and 3rd Respondents furthermore submit that Barcelos has been in existence in
excess of 30 years and thus utilizes its own material, products and training. Lehumo
does not conduct the Barcelos franchise anywhere near a Galito's franchise.
[16] The 2nd and 3rd Respondent also pertinently states that the 2nd Respondent did not
sign as a surety, nor did the previous director of 1st Responden t sign as a surety.
The said franchise agreement is thus not binding on either the 2nd or the 3rd
Respondent.
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[17] It stands to be noted that the Applicant, in reply, mentioned that there is in fact
another Galito's within approximately 6 km (thus less than 1 O km) from where the
3rd Respondent is now conducting the Barcelos franchise.
[18] This Court is called upon to determine:
18.1 Whether the Applicant has a protectable interest susceptible to final
interdictory relief;
18.2 Whether the 2nd and 3rd Respondents are related persons/ entities and thus
bound by the provisions of the agreement;
18.3 Whether the 1 st Respondent should be re-instated.
The law on re-registration:
[19] The provisions pertaining to the re-registration of companies are trite.
[20] Once the 1st Respondent has been re-registered, the 1st Respondent will require an
opportunity to respond to the proceedings. It is thus evident that no final relief can
be granted against the 1 st Respondent at this stage.
[21] As will appear from what has been stated herein after, there is no need to ascertain
if a case has been made out as the Applicant is not endeavouring the enforce the
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restraint of trade against the 1st Respondent. The relief is aimed at the conduct of
the 2nd and 3rd Respondent.
Is the 2nd and Jrd Respondent bound by the provisions of the franchise agreement?
[22] It is common cause that the 2nd and 3rd Respondents are not parties to the franchise
agreement. The Applicant submitted that the provisions of the restraint of trade
agreement cannot simply be circumvented by registering a new company .
[23] To explicate that position of the parties, one must have due regard to the franchise
agreement and terms thereof. Was it intended by the terms of the agreement that
unknown and unidentified third parties automatically be bound by the provisions of
a written agreement?
[24] Clause 15.5 of the agreement reads as follows:
'If any person to whom the franchisee or any of the sureties is related, whether
by blood or by marriage, or any entity or other business concern with whom
the franchisee or any of the sureties is directly or indirectly associated by
common or substantially similar ownership, management or directorship or
where the ownership, management of directorship are substantially controlled
by the same group of companies or relatives, conducts any acts described in
clause 15.3, such act shall be deemed to have been committed by the
franchisee and I or sureties directly.'
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[25] The Court has the following concerns with this clause: it is evident from the said
clause that the intention was to specifically prohibit the 'franchisee' and its 'sureties'
from conducting business in competition with the Applicant. The franchisee and the
sureties cannot be involved directly or indirectly in any such competing business.
In casu, this is not the case. The 2nd and 3rd Respondents are neither the erstwhile
franchisee nor did they bind themselves as sureties.
[26] It is evident that there is no contractual relationship between the Applicant and the
2nd and 3rd Respondent. In this Court's view, a person that is not a party to a contract
cannot be deemed to be bound thereby unless such a person displayed a manifest
consent or, by his conduct, an intention to abide by the terms of the agreement.
This will constitute a form of silent or implied contract. This is not the case of the
Applicant on the papers before court and needs not further examination.
[27] In the absence of any factual synopsis intimating a silent or implied contract, a
person cannot be bound to the terms of an agreement concluded between other
parties.
[28] The approach of the Applicant in electing the contractual route (as opposed to a
delictual approach) is thus fatally flawed. The fact that the 2nd and 3rd Respondents
might be related as contemplated in the Companies Act, 2008 is insufficient in its
own to create contractual liability.
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The law on Restraint of trade and unlawful competition:
[29] The conclusion of the franchise agreement and the specific provisions relevant to
the restraint of trade is not in dispute. Nor did the Respondents dispute the clauses
on the basis that same is unreasonable or against public policy. Their defence is
mainly premised on the basis that they were not contracting parties and thus not
bound thereby. As stated herein before, this defence finds favour with this Court for
the evident reason that there is no contractual relationship between the Applicant
and the 2nd and 3rd Respondents.
[30] The question remains if the Applicant has disclosed sufficient information to deduce
that the 2nd and / or 3rd Respondent is unlawfully competing with the Applicant.
[31] In South African law, there is a broad category of conduct that is generally described
as 'unlawful competition' which falls under the category of 'delict'. The activities
complained of must be 'unlawful' in some way . In commerce , free trade and
competition are fundamental. However, certain types of conduct go beyond the
bounds of free trade and competition, usually with the intention of gaining an
advantage over a competitor in an unfair or unlawful manner.1
[32] The general principles of unlawful competition have been stated in The Concept
Factory v Heyfl supra and includes inter a/ia the following:
1 Von S eidel, Intellectual Property, Johnathan Ball Publishers on 61 - 62
2 The Concept Factory v Heyl 1994 (2) SA 105 (T)
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i. As a general rule, every person is entitled to carry on his trade or
business in competition with his rivals. However, such competition
must remain within lawful bounds.
ii. To succeed, the Applicant must establish all the requisites of Aquilian
liability, including proof that the defendant has committed an unlawful
act;
iii. The lawfulness or unlawfulness of an act of competition may be
determined by the application of certain criteria which includes fairness
and honesty in competition (which requires that regard be had to bona
mores and the general sense of justice in the community) and
questions of public policy which may be of importance in a particular
case, such as the importance of free market and of competition in our
economic system).
[33] In the case of G/enwest Batteries (Pty) Ltd v Van der Heyden and Others3 the
Court held that a related person, not being a party to the restraint agreement, can
be held to the provisions of the said restraint agreement. The justification for this
finding is that the competition will amount to intentionally assisting in breaching the
undertaking. Such assistance is wrongful and can thus be interdicted.4
3 1991 (1) SA 727 (T)
4 See p 729 with reference to lsaacman v Miller 1922 TPD 56 at 61 and Atlas Organic Fertilizers (pty)
Ltd v Pikkewyn Ghwano (pty) Ltd and Others 1981 (2) SA 173 (T) at 202E - H.
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[34] The crux of this decision however refers to an intentional and unlawful interference
in a contractual relationship that constitutes a delict. This is not the basis of the
case of the Applicant against the 2nd and 3rd Respondents. Moreover, the issue of
infringing an exclusive trading rights was again confirmed not to be part of the
general principles of Aquilian law in the decision rendered by the Constitutional court
in Masstores (Pty) Ltd v Pick N Pay Retailers (Pty) Ltd. 5 More specifically, the
Court remarked as follows:
'[33] The protection of the general right to goodwill is recognised by our law,
but it is not this general right that Pick n Pay seeks to protect; it is
its exclusive right to trade in terms of its lease with Hyprop that it
seeks protection for. Our law does not usually recognise this kind of exclusive
right as worthy of general protection. The reason lies in the fact that the
underlying purpose of the law of unlawful competition is to protect free
competition, not to undermine it by making it less free. Our courts have often
acknowledged the need for protection of free competition as an important
policy consideration when assessing the unlawfulness of competitive conduct
by confirming the need for free and active competition or by taking into account
that by prohibiting competition an unlimited monopoly will be bestowed upon
the complainant.'
5 2017 (1) SA 613 (C C }
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[35] In this Court's view, the Applicant has presented insufficient evidence to make out
a case premised on Aquilian liability. The Applicant wants to protect an exclusive
right to trade which is generally not permissible in South African law. No case is
made out to deviate from the generally accepted norm.
(36] On this basis the application must fail. There is not reason why the cost order should
not follow the outcome of the proceedings. Having regard to inter alia the nature of
the proceedings, the comp lexity of the matter and the importance thereof to the
parties, costs to counsel are warranted on Scale C .
Order:
[37] In the result the following order is made:
37.1 The application is dismissed.
37 .2 The Applicant is ordered to pay the 2nd and 3rd Respondents' costs
inclusive of costs to counsel on Scale C.
M BRESLERAJ
ACTING JUDGE OF THE HIGH COURT,
APPEARANCES:
FOR THE APPLICANT
INSTRUCTED BY
FOR THE 2ND AND 3RD
RESPONDENTS
INSTRUCTED BY
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LIMPOPO DIVISION, POLOKWANE
Adv. L Mokwena
Thomson Wilkes
Sandton
kimrie@thomsonwilkes.co.za
nthabiseng@thomsonwilkes.co.za
Adv. APJ Eis SC
Couzyn Hertzog & Horak
Pretoria
ferdie@couzyn.co.za
coreen@couzyn.co.za