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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2023/115430
And CASE NO: 2023/114803






In the matter between:

SAN MIGUEL BREWING INTERNATIONAL LIMITED Applicant

and
POWER HORSE ENERGY DRINKS GMBHG Respondent

In re:
POWER HORSE ENERGY DRINKS GMBH Applicant

(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO

________________ ___________________
Date Signature

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SAN MIGUEL BREWING INTERNATIONAL LIMITED Respondent


REASONS FOR THE ORDER MADE ON 28 OCTOBER 2025


MOSHOANA, J

Introduction

[1] Parties involved herein were embroiled in a never -ending litigation since the year
2020. As at the handing down of these reasons, there was no visible ending sight of
this litigation. It seems to be an acceptable norm that trademark litigation ought to
be conducted tortuously. Litigants in this type of litigation happily take a nonchalant
approach to finality.
[2] Let me explain why. Two applications (trademark registration opposition
proceedings) launched two years ago were enrolled for argument before the heavy
opposed motion roll beaconed by me. Literally at the eleventh hour, the respondent
in those applications launched an application seeking to stay the consideration of
those applications pending a determination of the expungem ent application placed
before the Registrar of Trade Marks . Alternatively, that the expungement
proceedings be consolidated with the two applications to be heard in this Court.
[3] The stay application was vociferously opposed by the applicants’ counsel to a point
of labelling the application to stay as a disguised postponement application. Almost
half a day was consumed hearing submissions for and against the stay application.
After hearing the submissions, this Court issued an order in the following terms:
1. The application for a stay order is dismissed.
2. The costs attendant to the application shall be costs in the cause.
[4] This Court undertook to provide reasons of the order when delivering its judgment in
the main application. The applicants w ere ready to proceed and move the
consolidated main applications shortly after the dismissal of the stay application.

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However, since the respondent had not delivered its heads of argument in the main
application, its counsel Mr Michau SC sought to be indulged until 30 October 2025
to prepare for argument on that day. As if this was carefully planned , i nstead of
preparing the heads of argument as indulged, an application for leave to appeal the
interlocutory order was delivered.
[5] On 30 October 2025, counsel for the applicants, who informed this Court that her
clients are overseas, submitted to this Court that for the purposes of ‘fairness’ she
was instructed to remove the application from the roll owing to the provisions of
section 18(1) of the Superior Courts Act, 2013. She further submitted that the order
dismissing the interlocutory stay application is suspended, thus, the stay application
is brought back from the ashes, as it were. This posture perplexed this Court beyond
measure. Why was the stay application so vociferously opposed? Why was it
labelled a postponement in disguise? This Court is left in wonderment. Nevertheless,
perhaps those were the instructions from a client overseas.

Background facts

[6] This being an in terlocutory application, a brief summation of the salient facts shall
suffice. Power Horse Energy Drinks GMBH (Powerhorse) is an international
company. In 2015, it registered two trade marks in class 32. San Miguel Brewing
International (San) which is also an international company applied to register
trademarks. Powerhorse opposed the registration of the trademarks. Ultimately, the
opposition was referred to this Court in terms of the Trade Marks Act. Powerhorse
contends that the proposed trademarks offends the provisions of section 10(12) and
or 10(14) of the Trade Marks Act. San opposed the application of Powerhorse. San
also brought an application in terms of section 27(1) of the Trade Marks Act seeking
the removal of the trademarks of Powerhorse from the register, for reasons of bona

the removal of the trademarks of Powerhorse from the register, for reasons of bona
fide non-use. This expungement application is pending before the Registrar of Trade
Marks. Various attempts were made for the parties to consent to the referral of the
expungement application to this Court. All of those attempts drew blank.

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[7] As indicated earlier, literally few days before the hearing of the opposition application,
San launched a stay application. The application was opposed by Powerhorse. As
mentioned before, the application was dismissed and the brief reasons for the order
follows hereunder.

Analysis

[8] An application to stay is effectively an application for an interim interdict. San
contends in its founding papers that the opposition and expungement applications
traverse a consideration of substantially the same issues of fact and law. Further, it
contends that a lis pendes situation exists in that same parties and same issues are
to be determined both by the Registrar and this Court. It was also contended that a
stay will avoid conflicting judgments and it will serve the interest of justice.
Importantly, San contended that should the expungement application succeed, the
injustice will be unquantifiable and irreparable. This statement was not expatiated
upon and was devoid of details as to how and the extent of the unquantifiable
irreparable harm. However Powerhorse with reference to section 28 of the Trade
Marks Act contended that the success will have no effect at all.
[9] The basic principles for the granting of a stay are (a) in the exercise of its discretion
a Court will grant a stay where real and substantial justice requires it or where
injustice would otherwise result; (b) a Court will be guided by factors usually
applicable to interim interdicts; (c) the applicant must show a well -grounded
apprehension that irreparable harm will result if a stay is not granted ; and (d)
irreparable harm will usually result if there is a possibility that the underlying causa
may be removed.
[10] The claim of Powerhorse is predicated on either section 10(12) or 10(14) of the
Trade Marks Act. Primarily, section 10 deals with unregistrable trademarks.
Powerhorse contends that the trademarks proposed to be registered are inherently

Powerhorse contends that the trademarks proposed to be registered are inherently
deceptive or the use thereof would be likely to cause confusion and if used on same
or similar goods or services, it would be likely to cause confusion. Therefore,
properly considered if opposition succeeds, all it means is that the trademarks of
San will not be registered for use.

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[11] On the other hand, the expungement application is aimed at removal from the
register on ground of non-use. For San to succeed with such an application it has to
show that (a) the mark was registered by Powerhorse without bona fide intention to
use in relation of goods or services; (b) that was as a matter of fact no bona fide use
of the mark and; (c) a specified period of years had passed without bona fide use. It
is common cause that the expungement application was launched on 25 April 2022.
In terms of section 28 of the Act; the operating date should San succeed would be
25 August 2022. Should San wish to have an earlier date of operation, San must
satisfy the Registrar or a Court that grounds existed at an earlier date than 25 April
2022.
[12] There is no evidence before this Court to demonstrate that an application supported
by grounds to satisfy the Registrar was placed before him. In the absence of that
evidence and on application of the Plascon Evans rule, it must be so that the
operative date will be 25 April 2022, which operative date has no irreparable harm
effect as averred by Powerhorse. In any event the removal which as section 27(2)
of the Act provides is defeated by (a) in relation to goods or services if it is shown
that the trademar k is used or proposed to be used in relation to such goods or
services. Powerhorse averred that there is sufficient evidence of use to discharge
the onus contemplated in section 27(3) of the Act.
[13] Regard been had to the above exposition, this Court was not satisfied that the
requirements for a stay order were met by San. Thus, it was inappropriate for this
Court to have exercised its discretion by granting the stay. In fact, given the timing
of the application, there is merit in a submission that the application was a
postponement application in disguise. The argument by Michau SC that section
28(1)(b) of the Act does not require some form of an application before another date

28(1)(b) of the Act does not require some form of an application before another date
of operation is ordered , is without merit. Where a party is required to satisfy that
grounds existed, such implies an application in order for the Registrar or a Court to
make a finding for an earlier date.
[14] Michau SC placed heavy reliance on a case before a single judge, which he
erroneously submitted that it was the decision of the Supreme Court of Appeal until
he was graciously corrected by h is opponent. The case is that of Farmer’s Table

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(Pty) Ltd v Kentucky Fried Chicken (South Africa) (Pty) Ltd 1. Regarding Farmer’s
Table, this Court takes a view that it is distinguishable from the facts of the present
case. Weyers J accepted various authorities cited therein that a stay must be
granted in the clearest of cases. I agree with the conclusions reached in those cited
authorities.
[15] Weyers J was persuaded that Kentucky was faced with a very real possibility of
prejudice. Before me, San failed to demonstrate any real risk of prejudice. No details
were provided by San in its founding papers. The principle of lis pendes as discussed
in Farmer’s Table was considered by the learned Steyn AJ in New Reclamation
Group (Pty) Ltd v Chicks Scrap Metal (Pty) Ltd 2. There , Farmer’s Table was
distinguished. The learned Steyn AJ expressed himself in the following terms:
“[13] …The facts of the Farmer’s Table case revealed that KFC had detailed
the prejudice suffered in the papers should a stay not be granted. In casu the
respondents failed to demonstrate any prejudice in the event of the stay not
being granted. I am therefore satisfied that the Farmer’s Table case is
distinguishable from the present matter…”
[16] To the extent that lis pendes is relied on, I am in agreement with the sentiments
expressed by Steyn AJ that the defence of lis pendes operate in respect of dispute
resolution bodies of the same status. In casu the expungement pends before the
Registrar whilst the opposing application pends in this Court. The deeming
provisions referred to by counsel for San in section 53(2) of the Act does not elevate
the status of the Registrar to that of a Court. The deeming provisions relates to
parties as opposed to the status of the Registrar vis-à-vis that of a High Court. The
outcome to be reached by this Court and the Registrar are not similarly aligned. The
one would lead to a refusal to register due to the provisions of section 10. The other
would lead to a removal , due to bona fide non use , from register on a date

would lead to a removal , due to bona fide non use , from register on a date
contemplated in section 28(1) of the Act.
[17] Last issue to be dealt with is that of locus standi to continue with the expungement
application should the opposition application be granted. Counsel for San forcefully

1 Case number 9763/88 dated 19 October 1988 wrongly cited by LexisNexis as [2011] JOL 27552 (SCA).
2 2012 JDR 2195 (KZD).

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argued that should San be prevented to register its mark because of the legal
position outlined in section 10, San will no longer be an interested person referred
to in section 27(1) of the Act and that will mark the end of the pending expungement
application. With considerable regret I do not agree. In law , locus standi simply
means a standing in law. Once a standing in law is acquired it cannot be lost until
the proceedings are completed. The phrase interested person can in the context of
section 27(1) include any person desiring to compete with a trademark holder even
if such a person is not an applicant for a trademark.
[18] Accordingly, there is no merit in a submission that the opposition of a trademark
proceedings cannot proceed whilst the expungement application awaits
determination. There is no discerni ble relationship between the two applications.
They are capable of running side by side and no conflicting decisions are possible
to be made in respect of them. Just because in Farmer’s case a similar order was,
in the exercise of judicious discretion, granted, it does not axiomatically follow that
as a matter of c ourse where expung ement of a trademark is bro ught, a stay
application is inevitable. Where the requirements of a stay are not met, the applicant
like here must fail. In Farmer’s, the main application was that o f interdicting the
infringement and passing off. Discernibly, a relationship betwe en an infringement ,
passing off and expungement seem clear. In OUTA, the Constitutional Court refused
to grant an interdict pending a review because of the misalignment between the
harm and the review application. The same principle finds application in this
instance.
[19] It was for all the above reasons that the application for a stay was dismissed. This
being an interlocutory application, it was appropriate to make an order that costs be
in the cause.




____________________________
GN MOSHOANA

8

JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA



APPEARANCES:

Counsel for the Applicant: R Michau SC and J Booyse
Instructed by: Ron Wheeldon Attorneys, Johannesburg
Counsel for the Respondent: Poala Cirone
Instructed by: Spoor & Fisher, Centurion
Date of the hearing: 28 October 2025
Date of Reasons: 4 November 2025