1
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)
CASE NO: 2024/074554
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE: 24.04.2026
SIGNATURE OF JUDGE: J.R MEADEN
In re: the exceptions in the main action between
YUNUS MOOLLA First Excipient/First
Defendant
(Identity Number: 6[…])
IMRAAN MOOLLA Second Excipient/Second
Defendant
(Identity Number: 9[…]
YUNUS MOOLLA N.O. Third Excipient/Third Defendant
(Identity Number: 6[…])
2
IMRAAN MOOLLA N.O. Fourth Excipient/Fourth
Defendant
(Identity Number: 9[…] )
FOR THE TIME BEING THE TRUSTEES OF Fifth Excipient/Fifth
Defendant
SAFY TRUST
SPRINGS CAR WHOLESALERS (PTY) LTD Sixth Excipient/Sixth
Defendant
(Registration Number: 2008/014857/07)
HIRED BY BLACK WOMEN (PTY) LTD Seventh Excipient/Seventh
Defendant
(Registration Number: 2021/125051/07)
and
DOLLAR RENT A CAR INCORPORATED First Respondent/First
Plaintiff
THRIFTY RENT-A-CAR SYSTEM LLC Second Respondent/Second
Plaintiff
HERTZ INTERNATIONAL LTD Third Respondent/Third Plaintiff
3
JUDGMENT
MEADEN AJ
INTRODUCTION
[1] In the course and scope of the above ongoing action, I have been
presented with two opposed exception arguments, launched at the instance
of the Defendants and by way of two notices drawn in terms of Rule 23 of
the Uniform Rules of Court as well as a separate application for security for
costs again launched at the instance of the Defendants in terms of Rule 47
of the Uniform Rules of Court.
[2] This judgment and related O rder contend with the above Rule 23 opposed
exceptions.
[3] These exceptions raised by the Defendants fall into the undermentioned
categories:
3.1 The Plaintiffs’ amended Particulars of Claim “do not contain sufficient
allegations to sustain a cause of action” . These exceptions are premised
on that set out and summarised in the Notice of Exception dated 19 March
2025 and in which the Excipient/Defendants inter alia, seek that:
3.1.1 The exceptions be upheld;
3.1.2 the Plaintiffs be granted leave to amend their Particulars of Claim
and within 10 (ten) days of the court order granted;
3.1.3 costs of the exceptions on Scale C read with Rule 69 of the
Uniform Rules of Court.
4
3.2 The Plaintiffs ’ amended Particulars of Claim are “vague and
embarrassing”. These exceptions are premised on that set out and
summarised in the Notice of Exception dated 14 April 2025 and in which
the Excipient/Defendants inter alia, again seek that:
3.2.1 The exceptions be upheld;
3.2.2 the Plaintiffs be granted leave to amend their Particulars of Claim
and within 10 (ten) days of the court order granted; and
3.2.3 costs of the exceptions on Scale C , read with Rule 69 of the
Uniform Rules of Court.
[4] The Respondents have opposed all the above exceptions raised and seek
dismissal hereof, together with costs on the scale as between attorney and
client.
[5] In the course and scope of pursuing this exception application, an
interlocutory contest also ensued , in circumstances where the Defendants
were not timeously forthcoming on the presentation of their Heads of
Argument and wherein:
5.1 On 05 May 2025, the Defendants sought an extension on filing Heads of
Argument, Practice Note and Chronology relating to the exceptions and
by 16 May 2025.
5.2 Shortly hereafter and on 08 May 2025, the Plaintiffs resorted in launching
an interlocutory application to compel production by the Defendants of
their above outstanding Heads of Argument.
5.3 Then on 15 May 2025, the Defendants delivered their above Heads of
Argument (for both “ cause of action” and “ vague and embarrassing ”
categories of exceptions) and the Plaintiffs for their part persisted with the
interlocutory application and served a Notice of Set Down for hearing on
15 May 2025.
5.4 The Defendants then opposed this interlocutory application.
5
5.5 By agreement between the parties, the opposed interlocutory application
was removed from the interlocutory court rol l, with the issue of costs of
this interlocutory process then to be determined by this Court.
THE PARTIES
[6] The First, Second and Third Plaintiffs - being Dollar Rent A Car
Incorporated (“Dollar”), Thrifty Rent-A-Car System LLC (“Thrifty”) and Hertz
International Limited ("Hertz International”) are related American registered
companies operating within the Hertz Corporation. The Hertz Corporation
conducts business as an American car rental company through, inter alia ;
the brands of Hertz, Dollar Rent-A-Car and Thrifty Car Rental.
[7] The First and Second Defendants are Yunus and Imraan Moolla, adult
male employees of the Sixth Defendant. The Third and Fourth Defendants
are Yunus and Imraan Moolla N.O in their nominated official capacities as
trustees of the Safy Trust – the Fifth Defendant. The Sixth Defendant is a
sub-licensee of the Safy Trust. The Seventh Defendant is Hired for Black
Women (Pty) Ltd (“HBW”) cited by the Plaintiffs as a co- defendant in
circumstances where it is alleged that HBW utilise d the undermentioned
“Dollar” and “Thrifty” trademarks and related intellectual property and when
not entitled so to do.
[8] Dollar is the proprietor in South Africa of the undermentioned registered
trademarks:
8.1 1994/11517 “DOLLAR” in class 39 in respect of “ Transportation and
storage services including automobile vehicle renting and leasing
services”; and
6
8.2 1999/04384 “DOLLAR” in class 39 in respect of “ Vehicle rental services;
computerized online vehicle rental services conducted via a global
computer network”.
(“the Dollar trademarks”)
[9] Thrifty is the proprietor in South Africa of the following registered
trademarks:
9.1 1978/05890 “THRIFTY” in class 39 in respect of “ Automobile rental and
leasing”;
9.2 1996/15556 “THRIFTY” in class 39 in respect of “ Transport services;
travel arrangement services; travel agencies and tourist offices; transport
and travel reservation services; arranging of tours, excursions, safaris;
automobile rental and leasing; tourist services; escorting of travellers;
services ancillary and related to all the aforegoing”;
9.3 1996/17670 “THRIFTY” in class 39 in respect of “Transport, transportation
and travel arrangement services, leasing, rental and hiring of motor
vehicles; packaging and storage of goods; services ancillary and related
to the aforegoing”; and
9.4 1999/13188 “THRIFTY” in class 39 in respect of “ Vehicle rental services;
computerized online vehicle rental services conducted via a global
computer network”.
(“the Thrifty trademarks”)
[10] It is alleged on behalf of the First and Second Plaintiffs that being nationals
of the United Stated of America and which is a signatory to the Paris
Convention, the First and Second Plaintiffs are deserving of protection
under the Trade Marks Act 194 of 1993.
FACTUAL BACKGROUND
7
[11] In the course of 2010, the First and Second Plaintiffs entered into an
International Master License Agreement ( “IMLA”) with the Safy Trust –
Fifth Defendant, duly represented by the Third Defendant - Yunus Moolla
as trustee of the Safy Trust. Per the agreement, the Safy Trust was granted
a license to operate the business of vehicle rental leasing in South Africa,
Namibia, Botswana and Mauritius and in so doing; use the trade names,
logos, service marks and trademarks of DOLLAR and THRIFTY and for
which the Safy Trust paid a monthly royalty fee.
[12] This agreement remained in place over the period 1 March 2010 - 31
December 2020 and whereupon it was extended for a further year until 31
December 2021 (excluding Mauritius).
[13] Having regard to the judgment handed down by my brother Van Oosten J
on 04 August 2022, reference was made therein on behalf of the Third –
Sixth Defendants that this IMLA agreement was renewed for a further 5
years and until the end of December 2025. This is the subject of dispute to
be dealt with in separate arbitration proceedings.
[14] Following on investigations undertaken by the Plaintiffs , it was concluded
that the Defendants had and for some time , acted in breach of the above
IMLA agreement and with that ; unlawfully competed with the Plaintiffs’
business. In so doing, this entailed the Third- Sixth Defendants utilising and
exploiting the Plaintiffs’ intellectual property without the Plaintiffs’ consent
and authorisation.
[15] This culminated in the Plaintiffs on an interim and thereafter on a final basis
on 04 August 2022 interdicting and restraining the Third – Sixth Defendants
(including the Sani Car Rental business and brand) from advertising car
rental brands bearing the Plaintiffs’ intellectual property and further ;
operating car rental businesses in competition with that of the Plaintiffs’ and
in breach of the provision on non-competition as contained in clause 204B
in breach of the provision on non-competition as contained in clause 204B
of the above IMLA Agreement. The above interdicts and res training orders
were granted out of this Court.
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[16] Hereupon, the Plaintiffs resorted in suing the Defendants for damages out
of this Court under the above case number on trademark infringement,
alternatively; unlawful competition claims and further, for unjustified
enrichment and initially, per the Plaintiffs’ Combined Summons of 05 July
2024 in the sum of USD 3,570,959.45
[17] The above action was defended and on 20 February 2025, the Plaintiffs
embarked on a very extensive and elaborate amendment of their
Particulars of Claim ; in the process inter alia, referencing a devaluation of
the Plaintiffs’ nett present value of their trademarks and intellectual property
consequent on the Defendants’ unlawful acts, including infringement of the
Plaintiffs’ trademarks.
[18] In this regard, per the Plaintiffs’ ; but for the Defendants’ unlawful acts
including infringement of the Plaintiffs’ trademarks, the nett present value of
the Plaintiffs’ trademarks and intellectual property over the period 2022 –
2035 was calculated to be USD 31, 850,819.92. However, consequent on
the above unlawful act s of the Defendants, the nett present value of the
Plaintiffs’ trademarks and intellectual property over the period 2022 – 2035,
was calculated in the amount of USD 24,875,292.84; thus, resulting in a n
alleged diminution in value of the Plaintiff s’ trademarks of USD
6,975,527.80.
[19] Taking account of the aforesaid, the Plaintiffs claim from the Defendants on
a joint and several basis, damages in the amount of USD 6,975,527.80.
[20] In formulating and presenting the above claim s for damages, the Plaintiffs
do not in their above Particulars of Claim, elaborate on how the Plaintiffs’
valuations of USD 31, 850,819.92 and USD 24,875,292.84 for the period
2022 – 2035 are calculated and arrived at , nor is any insight , explanation
and motivation provided on the above referenced period - 2022 until 2035
and which extends deep into the future.
[21] The difference between the above amounts i.e. USD 6,975,527.80 is then
[21] The difference between the above amounts i.e. USD 6,975,527.80 is then
cited as the damages suffered by the Plaintiffs, consequent on the wrongful
and intentional infringement by the Defendants of the Plaintiffs’ rights ,
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alternatively; the passing off by the Defendants of their Sani business as
that associated with the Plaintiffs’ businesses, further alternatively ; the
diversion of custom by the Defendants away from the Plaintiffs’ businesses,
further alternatively ; the Defendants’ enrichment and related
impoverishment of the Plaintiffs.
[22] Where the Plaintiffs, in instituting action proceedings under the above case
number initially raised a claim for damages covering the period 31
December 2021 – 28 November 2023 in the sum of USD 3,570,959.45; this
has in the interim been superseded with the aforesaid elaborate,
substantial and prospectively complex claim totalling USD 6,975,527.80
spanning the period 2022 – 2035 to be confirmed by the Plaintiffs’
appointed experts in due course.
[23] Proceeding as above, complicates the Plaintiffs’ position and this is borne
out in the ensuing schedules of exceptions raised on behalf of the
Defendants and dealt with below. Prior to introducing the above exceptions,
the Defendants on 19 March 2025 provided the Plaintiffs with Notice drawn
in terms of Rule 23(1) of the Uniform Rules of Court and in which the
Defendants recorded grounds of objection to the Plaintiffs amended
Particulars of Claim and further afforded the Plaintiffs time in which to
revisit and amend such Particulars of Claim, taking account of the
objections raised. The Plaintiffs for their part refused to revisit and amend
their Particulars of Claim further.
ISSUES FOR DETERMINATION
[24] The issues for determination are:
24.1 Whether, as the Excipients allege in their above exception notices, the
Plaintiffs’ Particulars of Claim lack sufficient allegations to sustain a cause
of action, or are vague and embarrassing, alternatively; whether as
suggested by the Plaintiffs, the issues raised by the Excipients are overly
technical and do not constitute bona fide and valid objections and
challenges as envisaged in Rule 23 of the Uniform Rules of Court;
10
24.2 the issue of costs arising and attributed to the conduct of the exceptions
by the Excipients; and
24.3 the issue of costs arising from the application to compel the
Defendant/Excipients to serve and file their Heads of Argument in both
exceptions.
THE LAW
[25] An exception is a legal objection to the opponent’s pleading complaining of
a defect inherent in such pleading. It follows that where an exception is
taken, a court must look at the pleading excepted to as it stands together
with the facts agreed to by the parties, if any.
1
[26] The scope and application of exceptions is contended with in Rule 23 of the
Uniform Rules of Court. Rule 23(1) as quoted below:
“Exceptions and applications to strike out”
(1) Where any pleading is vague and embarrassing, or lacks averments which are
necessary to sustain an action or defence, as the case may be, the opposing party
may, within the period allowed for filing any subsequent pleading, deliver an exception
thereto and may apply to the registrar to set it down for hearing within 15 days after
the delivery of such exception:
Provided that –
1 Balintulo v Mbana (79752/2019) [2025] ZAGPPHC 78 (31 January 2025) at para 6.
11
(a) where a party intends to take an exception that a pleading is vague and
embarrassing such a party shall, by notice, within 10 days of receipt of the pleading,
afford the party delivering the pleading, an opportunity to remove the cause of
complaint within 15 days of such notice; and
(b) the party excepting shall, within 10 days from the date on which a reply to the
notice referred to in paragraph (a) is received, or within 15 days from which such reply
is due, deliver the exception.”
[27] Rule 23(1) as quoted above provides for two types of exceptions, i.e. an
exception on grounds that the pleading lacks averments necessary to
sustain a cause of action and an ex ception on grounds that it is vague and
embarrassing.
[28] In order to succeed, where an exception is raised on the grounds that a
pleading lacks averments necessary to sustain a cause of action, an
excipient has the duty to persuade the court that upon every interpretation
upon which the pleading in question, including the document on which it is
based can reasonably bear; no cause of action or defence is disclosed and
failing this, the exception ought not to be upheld.
2
[29] An exception to a pleading on the ground that it is vague, and
embarrassing requires a two-fold inquiry. The first is w hether the pleading
lacks particularity to the extent that it is vague and the second is whether
the vagueness causes embarrassment of such a nature that the excipient is
prejudiced in the sense that he/she cannot plead or properly prepare for
trial. The excipient must demonstrate that the pleading is ambiguous,
meaningless, contradictory or capable of more than one meaning to the
2 Origin Global Holdings Ltd v Acorn Agri (Pty) Ltd (10317/2019) [2021] ZAWCHC 141 (30 July
2021) at para 17.
12
extent that it amounts to vagueness, which vagueness causes
embarrassment to the excipient.3
[30] In Living Hands (Pty) Ltd v Ditz 4, an overview on the scope and application
of exceptions was summarised as below:
(a) In considering an exception that a pleading does not sustain a cause of action,
the court will accept, as true, the allegations pleaded by the plaintiff to assess
whether they disclose a cause of action.
(b) The object of an exception is not to embarrass one’s opponent or to take
advantage of a technical flaw, but to dispose of the case or a portion thereof in
an expeditious manner, or to protect oneself against an embarrassment which
is so serious as to merit the costs even of an exception.
(c) The purpose of an exception is to raise a substantive question of law which
may have the effect of settling the dispute between the parties. If the exception
is not taken for that purpose, an excipient should make out a very clear case
before it would be allowed to succeed.
(d) An excipient who alleges that a summons does not disclose a cause of action
must establish that, upon any construction of the particulars of claim, no cause
of action is disclosed.
(e) An over -technical approach should be avoided because it destroys the
usefulness of the exception procedure, which is to weed out cases without
legal merit.
(f) Pleadings must be read as a whole and an exception cannot be taken to a
paragraph or a part of a pleading that is not self-contained.
(g) Minor blemishes and unradical embarrassments caused by a pleading can and
should be cured by further particulars.
3 Trope v South African Reserve Bank 1992 [3] SA 208 T at 221A-E.
4 (42728/2012) [2012] ZAGPJHC 218; 2013 (2) SA 368 (GSJ) (11 September 2012).
13
[31] In applying the aforesaid to the undermentioned exceptions raised, I refer
to the parties in these exceptions as cited in the above main action.
FIRST TO SEVENTH DEFENDANTS’ NOTICE OF EXCEPTIONS TO THE
PLAINTIFFS’ AMENDED PARTICULARS OF CLAIM – NOT CONTAINING
SUFFICIENT ALLEGATIONS TO SUSTAIN A CAUSE OF ACTION
EXCEPTION 1: JURISDICTION
[32] Per paragraph 18 of the Plaintiffs’ amended Particulars of Claim, the
Plaintiffs found the jurisdiction of this Court on the basis that:
32.1 The Plaintiffs’ causes of action arise within the area of jurisdiction of this
Court.
32.2 This court has already heard and adjudicated numerous applications
between the relevant parties and it would be apposite to remain in this
Court’s jurisdiction.
32.3 The Second and Fourth – Seventh Defendants’ employment, registered or
domicilium addresses fall within this Court’s jurisdiction, and
32.4 The Plaintiffs consent to the jurisdiction of this Court.
[33] The Plaintiffs do not in motivation of the allegations that the Plaintiffs’ cause
of action arose within the area of jurisdiction of this Court , then plead facts
establishing this including w here the unlawful use and display by the
Defendants of the Plaintiffs’ trademarks took place and where the damages
were suffered.
[34] Further, the Plaintiffs ’ Particulars of Claim are incomplete and in not
establishing this Court’s jurisdiction vis -à-vis the First and Third
Defendants– Y. Moolla/Y.Moolla N.O.
14
[35] Regarding the Second and Fourth – Seventh Defendants, the Plaintiffs
allege that this Court has jurisdiction over the remaining Defendants since
their “ employment, registered or domicilium addresses fall within this
Court’s jurisdiction”. Per Durofin (Pty) Limited v Henque 4257 CC 5, the
choice of a domicilium address in a contract, within the jurisdiction of the
court, is not enough to establish the jurisdiction of the said court. Also, the
Second, Fourth and Fifth Defendants being natural persons or persons
cited in their nomino officio capacities do not possess registered addresses
akin to that of corporate entities.
[36] Contrary to what is recorded in paragraph 18.2 of the Particulars of Claim,
the fact that a court has adjudicated on other applications between the
parties is not a basis upon which to found jurisdiction, given that
convenience alone is not an independent source of jurisdiction.
[37] Having regard to the Plaintiffs’ pro ffered grounds of jurisdiction as
summarised above, this is founded on the Plaintiffs’ own conclusions and
opinions as opposed to material facts and which results in the Plaintiffs’
Particulars of Claim being materially incomplete and defective.
6
[38] This exception is upheld.
EXCEPTION 2: THE REQUIREMENTS UNDER SECTION 34(1)(C) AND 35 OF THE
TRADE MARKS ACT OF 1993
[39] Ad paragraph 30 of the amended Particulars of Claim, the Plaintiffs allege
that DOLLAR and THRIFTY trademarks “can be regarded as well -known
trademarks for the purposes of sections 34(1)(c) and 35 of the Trade Marks
Act of 1993”.
[40] In raising such an allegation, the Plaintiffs seek to rely on the protection
provided by section 34(1)(c) of the Trade Marks Act.
5 (A676/2008) [2011] ZAGPPHC 93 (15 June 2011) at para 33.
6 Buchner and Another v Johannesburg Consolidated Investment Co Ltd1995 (1) SA 215 (T)
De Klerk J held as follows at 216 I – J.
15
[41] In order so to do, the Plaintiffs are required to plead actual and sufficient
facts to establish that DOLLAR and THRIFTY trademarks are well known
for purposes of sections 34(1)(c) and 35 of the Trade Marks Act.
[42] This would require the Plaintiffs to plead facts which establish the sector of
the South African population interested in the services to which these
marks relate , that the marks are well -known within South Africa a s
trademarks and regarding the persons who the P laintiffs allege have this
requisite knowledge.
7
[43] Having regard to a full conspectus of the Plaintiffs’ amended Particulars of
Claim, the above fact s are not set out and the Plaintiffs fail to set out
necessary averments t hat sustain a cause of action as envisaged in the
above relevant sections of the Trade Marks Act as applied by the courts in
South Africa.
[44] This exception is upheld.
EXCEPTION 3: THE CLAIM EXTENDS BEYOND THE CONTRACT PERIOD
[45] In paragraphs 44 and 44.2 of the Particulars of Claim, the Plaintiffs allege
that the Safy Trust violated its contractual “undertaking to not compete with
the plaintiffs, as contained in the IMLA”.
[46] Clause 204B of the IMLA, annexed to the Particulars of Claim; records that
a Master Licensee, Owner, or Master Licensee Representative shall not
participate in a competitive business with the Licensed Business for the
duration of the IMLA and for a period of one year after its termination.
7 A M Moolla Group Ltd v The Gap Inc and Others 2005 (6) SA 568 at para 18.
16
[47] The Plaintiffs allege that the violation of this undertaking occurred between
31 December 2021 to 28 November 2023, which extends beyond a period
of one year after the termination of the IMLA. In paragraphs 46 and 47 of
the Particulars of Claim, the Plaintiffs allege the IMLA terminated on either
31 December 2021 or 28 January 2022.
[48] According to the Defendants , on a clear interpretation of clause 204B, the
Safy Trust was only bound by the restrictions in that clause for a period of
one year after the termination of the IMLA. However, the
Defendant/Excipients’ obligations vis -à-vis IMLA, are not limited to that
contained in clause 204B.
[49] In having regard to the allegations pleaded in the Plaintiffs’ amended
Particulars of Claim, this Court may also simultaneously have regard to the
relevant annexures, including the IMLA agreement and aside from article
204B therein; consider that contained in articles 205A – 205D and where
IMLA records the Defendant/Excipients’ understanding and acceptance of
enduring and unlimited obligations imposed upon it by IMLA.
[50] In the formulation and presentation by the Plaintiffs of their cause of action,
should they be desirous of relying on articles 205 A -D of the IMLA, then
these need to be pleaded. Failing this, the Plaintiffs will be at risk of such
amended Particulars of Claim being excipiable on the basis that the
Particulars of Claim are incomplete, accordingly vague and embarrassing
and lacking necessary averments to sustain a cause of action.
[51] While annexures are part of the pleading, such annexures cannot replace
the requirement for a clear and concise statement of material fact being
present in the Plaintiffs’ amended Particulars of Claim and an omission
here prejudices the Defendants’ ability to plead. The raising of an exception
vis-à-vis the application of the articles 205 A – 205 D is not referenced in
the amended Particulars of Claim but introduced rather in the Plaintiffs’
the amended Particulars of Claim but introduced rather in the Plaintiffs’
Counsel’s Heads of Argument , falls outside of the four corners of the
amended Particulars of Claim and I will not deal further herewith.
[52] This exception is accordingly dismissed.
17
EXCEPTION 4: THE FAILURE TO SET OUT A CLAIM IN DELICT
[53] Per paragraphs 53 – 56 of the Plaintiffs’ amended Particulars of Claim, the
Plaintiffs introduced claims for unlawful competition against the Defendants
and which is not limited to the Fifth Defendant.
[54] This constitutes a claim in delict and including for pure economic loss.
[55] In framing the Plaintiffs’ amended Particulars of Claim, this has been
prefaced on the existence of the above IMLA agreement and the
contractual obligations flowing therefrom. In Trio Engineering Products Inc
v Pilot Crushtec International (Pty) Ltd, it was held that t he position in our
law may be summarised as follows:
(a) A breach of contract is not, without more, a delict.
(b) Where parties have chosen to regulate their relationship under a contract, the
contractual rights and obligations undertaken will not ordinarily permit recognition of a
delictual duty and which is at variance with the contract.8
[56] Having regard to the content and scope of the Plaintiffs ’ amended
Particulars of Claim, the Plaintiffs’ have not pleaded facts that give rise to
separate legal duties on the part of the Defendants and which fall outside of
that of contract (as framed in IMLA) and which then extend the Defendants’
liability including in delict. To rely on claims arising in delict, the P laintiffs
are required to plead facts that establish all the elements of delict i.e.
conduct, negligence or fault, wrongfulness, causation and the loss suffered
particularly when the claim involves pure economic loss. 9 Delictual liability
is imposed by law, thus the Plaintiffs must plead facts showing that a legal
8 16/16836) [2018] ZAGPJHC 61; 2019 (3) SA 580 (GJ) (22 March 2018) at para 29.
9 Asante Body Corporate v Portland Beleggings (Pty) Ltd and Another (14495/2023) [2024]
ZAWCHC 275 (20 September 2024) at para 11.
18
duty was owed by the Defendants and which is distinct from contractual
obligations arising.
[57] Consequent hereon, the Plaintiffs have failed to plead facts necessary to
establish a cause of action in delict and in upholding this exception and this
will no doubt significantly reduce the scope of the case made out by the
Plaintiffs.
[58] This exception is upheld.
EXCEPTION 5: THE FAILURE TO ESTABLISH DILUTION
[59] Per paragraph 43.3 of the Particulars of Claim, the Plaintiffs alleged that the
conduct of the Defendants resulted in “ the devaluation of the Dollar and
Thrifty intellectual property in South Africa”. This is a legal conclusion.
[60] As a matter of law, the devaluation or dilution of a trademark occurs in two
ways: by blurring or by tarnishment. Here, the Constitutional Court in Laugh
It Off Promotions CC v South African Breweries International held:
“…Blurring takes place when the distinctive character or inherent uniqueness of
the trademark is weakened or reduced. Tarnishment occurs where unfavourable
associations are created between a well -known registered trademark and the
mark of the unauthorised user. In a case of tarnishment, the object of the
protection appears to be the repute, the good selling name of the mark.”10
[61] While accepting as true in th e assessment of this exception, the Plaintiffs’
allegations regarding the resultant devaluation of the DOLLAR and
THRIFTY trademark in South Africa; what is clearly missing ex facie the
Plaintiffs’ Particulars of Claim, are facts which establish either:
(a) the basis on which the conduct of the D efendants created an
unfavourable association in respect of the Plaintiffs’ trademarks; and
(b) the basis on which the conduct of the Defendants resulted in an
impairment of the good selling name of the mark.
10 2006 (1) SA 144 (CC) at para 41.
19
[62] The Supreme Court of Appeal in T rope v South African Reserve Bank 11
held that it is not sufficient to plead a conclusion of law without pleading the
material facts giving rise to it.
[63] In the absence of the provision of the above factual matrix by the Plaintiffs,
the allegations of dilution and devaluation are bald and this renders the
Plaintiffs’ above claim incomplete and excipiable.
[64] This exception is upheld.
EXCEPTION 6: THE CONDICTIO FURTIVA
[65] In the alternative and ad paragraphs 57 - 60 of the Plaintiffs’ amended
Particulars of Claim, the Plaintiffs introduc es and places reliance on the
condictio furtiva.
[66] The condictio furtiva is a remedy the owner of or someone with an interest
in a thing, has against a thief and his heirs for damages. It is generally
characterised as a delictual action. It is, of course, required that the object
involved be stolen before the condictio can find application. The law
requires for the crime of theft – not only that the thing should have been
taken without belief that the owner ... had consented or would have
consented to the taking, but also that the taker should have intended to
terminate the owner’s enjoyment of his rights or in other words to deprive
him of the whole benefit of his ownership.
12
[67] In introducing reference to the condictio furtiva, the Plaintiffs have omitted
to set out necessary particulars in which they allege:
(a) That the Defendants have stolen the Plaintiffs’ trademarks, alternatively;
that the D efendants in bad faith received the P laintiffs’ trademarks
which have been stolen;
11 1993 (3) SA 264 (A).
12 Chetty v Italtile Ceramics Ltd (668/2011) [2012] ZASCA 170; 2013 (3) SA 374 (SCA) (28
November 2012) at para 10.
20
(b) that the Plaintiffs are, or were deprived of their ownership or of the sole
use of the trademarks; and
(c) that the Plaintiffs would be so deprived until 2035.13
[68] Consequently, the Plaintiffs’ amended Particulars of Claim lack necessary
averments to sustain a cause of action based on the conductio furtiva and
are excipiable.
[69] This exception is upheld.
EXCEPTION 7: THE EXTENSION OF THE CONDICTIO FURTIVA
[70] The Plaintiffs, in the alternative to the above condictio furtiva cause of
action further plead, per paragraph 61 of the amended Particulars of Claim;
that the Court should extend the enrichment claim relied on by the P laintiffs
“to the present claim and cause of action.”
[71] The court in PRASA Corporate Real Estate Solutions v Community
Property Company Ltd 14, explained that a party seeking an extension of
any condictiones must make out a case for it in the circumstances. Here, it
was held that:
“These judgments are therefore not authority for the proposition that a plaintiff is now
entitled to rely upon general assertions to support a claim for unjustified enrichment. They
recognise the need, where necessary, to focus attention on the essential elements which
may give rise to liability. They by no means excuse a plaintiff from pleading and
establishing a proper basis upon which enrichment liability made [sic] be founded. That is
the approach adopted in several cases which have come before this Court. In each
instance it has considered whether the requirements of one or other of the established
condictiones, upon which reliance was placed, were met, or could be met by extension.”
[72] In introducing reference to an extension of the condictio furtiva, the
Plaintiffs have then omitted to set out comprehensive particulars in which
they:
13 Propshaw (PTY) LTD v Karoo -Osche, Vryburg (PTY) LTD and Another (1808/16) [2018]
ZANWHC 45 (20 September 2018) para 11.
14 384/2023) [2024] ZASCA 35 at para 26.
21
(a) Plead facts in support of the extension sought;
(b) plead any basis in law in support of the extension sought; and
(c) allege in what manner and to what extent , this extension must be made
to the present claim or cause of action.
[73] The Plaintiffs were thus required to plead sufficient facts to establish why
the condictiones ought to be extended. The Plaintiffs have failed here so to
do and have also failed to plead the facts to meet the requirements of one
or other of the established condictiones rendering the amended Particulars
of Claim excipiable.
[74] This exception is upheld.
EXCEPTION 8: THE DATE OF ENRICHMENT
[75] Per paragraphs 57 - 67 of the Particulars of C laim, the P laintiffs allege a
claim based on the doctrine of unjustified enrichment and wherein the
Plaintiffs allege that the Defendants have been enriched in an amount of
USD 6 975 527.08, calculated in respect for the period between 2022 and
2035.
[76] The established position i n South African law is that the extent of
enrichment is determined at the date of the commencement of the action. 15
This is defined as the moment summons is issued or served.
[77] The Plaintiffs' claim was instituted on 5 July 2024 (date of issue out of this
Court of the Combined Summons), alternatively, 20 February 2025 (date of
service of amended pages to the Particulars of Claim) and thus, any
amounts claimed beyond that date in terms of the doctrine of unjustified
enrichment are bad in law and are thus excipiable.
[78] The Plaintiffs' claim as framed in the amended Particulars of Claim is
excipiable in that the Plaintiffs cannot, in terms of the doctrine of unjustified
15 McCarthy Retail Ltd v Shortdistance Carriers CC 2001 3 SA 482 (SCA).
22
enrichment, make out a claim beyond the date on which the P laintiffs’ claim
was instituted.
[79] This exception is upheld.
[80] Accordingly, r egarding the exceptions raised relating to the Plaintiffs’
amended Particulars of Claim failing to disclose a cause of action,
excepting for exception 3, the remaining exceptions are upheld.
FIRST TO SEVENTH DEFENDANTS’ FURTHER NOTICE OF EXCEPTION TO
THE PLAINTIFFS’ AMENDED PARTICULARS OF CLAIM – VAGUE AND
EMBARASSING EXCEPTIONS
EXCPETION 1: “AFFILIATED PERSONS” UNDER THE COMPANIES ACT
[81] In paragraph 15.4 of the amended Particulars of Claim, the Plaintiffs allege
that the Seventh Defendant (“Sani”) is owned by and therefore controlled
by one or more of the other Defendants.
[82] In paragraph 16 of the P articulars of C laim, the P laintiffs allege that the
“Safy Defendants” (1st – 5th Defendants) and SCW ( 6th Defendant) ar e
“inextricably linked to the business of Sani ” and that “ these entities are
classified as related or affiliated persons in terms of the Companies Ac t”
and that “they share the same controlling minds and personalities.”
[83] In paragraphs 53, 57, 63, and 72.1 of the amended Particulars of Claim, the
Plaintiffs refer to Sani as being the business of “the Defendants”.
[84] Relationships between related or inter -related persons are dealt with in
section 2 of the Companies Act 16, which establishes several different
grounds on which persons, both natural and juristic, may be regarded as
related for the purposes of the Companies Act.
16 71 of 2008.
23
[85] Here, the Plaintiffs have not made any reference to specific sections of the
Companies Act nor pleaded any facts, alternatively ; sufficient facts to
establish on what basis the P laintiffs allege that the D efendants are related
or affiliated persons as envisaged in the Companies Act. The above
allegations contained in paragraph 16 of the amended P articulars of Claim
are conclusory only.
[86] In Yannakou v Apollo Club17, it was recorded that:
“Here, if he relies on the particular section of a statute, he must either state the number of
the section and the statute he is relying on or formulate his defence sufficiently , clearly so
as to indicate that he is relying on.”
[87] The Plaintiffs have pleaded no facts to allow the Defendants to determine
which portion of section 2 of the Companies Act is relied upon by the
Plaintiffs, alternatively ; recorded sufficient facts establishing that the
Defendants are related or affiliated persons as envisaged in the Companies
Act. This renders the P laintiffs’ Particulars of C laim incomplete, vague and
embarrassing.
[88] This exception is upheld.
EXCEPTION 2: CONTRADICTORY PLEADING REGARDING THE IMLA
[89] In paragraph 46 of the P articulars of C laim, the Plaintiffs allege that IMLA
was not renewed and expired on 31 December 2021 and was thus of no
force and effect. However, in paragraph 47 of the P articulars of Claim, the
Plaintiffs allege that “in addition to the expiry/lapse of the IMLA, Dollar and
Thrifty on 28 January 2022 and in writing to the Safy Trust and the first
defendant, cancelled the IMLA ”, this being a date after the alleged date of
expiry pleaded in paragraph 46.
[90] These paragraphs are contradictory and therefore vague and embarrassing
in that the P laintiffs allege both the termination of the IMLA by effluxion of
time and the cancellation of the IMLA by the P laintiffs after that date. If the
17 1974 (1) SA 614 (A) at 623 G – H.
24
agreement lapsed by virtue of the effluxion of time, then there is no
agreement to subsequently cancel. In this regard, a contradictory pleading
is inherently excipiable on the basis that it is vague and embarrassing, as
set out above.
[91] The Defendants are prejudiced by the contradictory pleading in that they
cannot plead to the allegations regarding the end-date of the IMLA, which is
relevant to the determination of the “ Period” and “Further Period” (as
defined in paragraphs 44 and 45 of the particulars of claim) and which
determination is material to the Plaintiffs’ case against the
Excipient/Defendants.
[92] This exception is upheld.
EXCEPTION 3: THE CONFUSING ENTANGLEMENT OF THE SEPARATE
DEFENDANTS
[93] In paragraph 49 of the amended P articulars of C laim, the P laintiffs plead
that the Defendants “collectively and/or individuall y” committed wrongful
and unlawful acts in breach of the Plaintiffs’ rights. In addition to this, in
paragraph 50, the Plaintiffs plead that “the defendants” have wrongfully and
unlawfully used and displayed the DOLLAR and THRIFTY trademarks “in
the course and scope of their business ”. In paragraph 51, the P laintiffs go
on to allege that the “conduct of the defendants” constitutes an infringement
of the rights of Dollar and Thrifty.
[94] These pleadings are vague and embarrassing in that the P laintiffs fail to
plead and identify whether the Defendants jointly operated “ a business ”,
and if so, what “ business” was operated by the D efendants and which of
the Defendants are alleged to have operated that “business”.
[95] The issue of the D efendants’ alleged control and operation over “the
business” is material to the P laintiffs’ claim founded on alleged trademark
infringement and thus goes to the root of the Plaintiffs’ cause of action.
[96] The pleadings forming the subject of this exception are vague and
embarrassing and prejudicial to the Defendants in that the D efendants
25
cannot make out the basis on which the P laintiffs seek to hold the various
Defendants accountable and liable in terms of the trademark infringement
claims.
[97] This exception is upheld.
EXCEPTION 4: COMPUTATION OF DAMAGES
[98] The Plaintiffs compute their alleged damages in the amount of
USD 6 975 527.08 being the difference between that alleged as the nett
present value of the P laintiffs’ trademarks and intellectual property for the
period 2022 until 2035, but for the alleged conduct of the D efendants in the
amount of USD 31 850 819.92 (“the Notional Value”) and the nett present
value of the P laintiffs’ trademarks and intellectual property consequent on
the alleged unlawful conduct of the Defendants in the amount of
USD 24 875 292.84 (“the Actual Value”).
[99] Further, in paragraphs 52, 56, 62, and 67 of the amended P articulars of
Claim, the Plaintiffs plead that the amount of USD 6 975 527.08 “ will be
finally calculated by the P laintiffs’ experts” resulting in the above cited
amounts not being final and conclusive, with further expert calculation to
follow in due course.
[100] The Plaintiffs have failed to explain why the damages claimed ought to be
calculated over the period 2022 until 2035.
[101] Other than present ing the above amounts, the Plaintiffs’ amended
Particulars of Claim contain no facts on how the various amounts referred
to aforesaid are made up and quantified. The damages claimed by the
Plaintiffs are very specific and to the cent however, these amended
Particulars of Claim disclose no facts which enable the Defendants to
ascertain how the above specific amounts are made up and quantified and
then in assessing the quantum of the damages claimed.
[102] Without this, the Defendants are placed at a distinct disadvantage in
understanding the compilation and quantification as well as in establishing
the reasonableness of the P laintiffs’ claim. This actually aggravates t he
26
Defendants in pleading over on the Plaintiffs’ claim and further in giving
consideration to any settlement proposal. Pleading over on entirely arbitrary
valuations as summarised above that span an extended period 2022 –
2035 and in the manner that the Plaintiffs present such damages claim ,
renders the Plaintiffs’ Particulars of Claim materially incomplete, vague and
embarrassing.
[103] The Plaintiffs’ amended Particulars of Claim do not meet the requirements
of Rule 18(10) of the Uniform Rules of Court. The court in Van Niekerk v
Premier of the Province of the Western Cape
18 found that the Plaintiffs’
failure to provide the Defendants with the information which they required to
assess the quantum of the damages claim ed occasioned significant
prejudice to the Defendants. This is clearly the position here.
[104] This exception is upheld.
EXCEPTION 5: ALLEGATIONS MADE THAT ARE IRRECONCILABLE WITH THE
CONDICTIO FURTIVA
[105] In paragraph 57.2 of the P articulars of C laim, the Plaintiffs allege that the
“Safy defendants and SCW unlawfully removed the P laintiffs' Dollar
trademarks and Thrifty trademarks , transferred same to Sani and made it
possible for Sani to utilise and exploit the Dollar trademarks and Thrifty
trademarks…”.
[106] The Plaintiffs' pleaded case in respect of its alleged claim under the
condictio furtiva is premised on the unlawful removal and transfer of those
trademarks from the Plaintiffs to Sani. However, at the same time, in
paragraphs 20 and 23 of the P articulars of Claim, the Plaintiffs allege that
Dollar and Thrifty are the proprietors of those trademarks and further, at
18 18563/18) [2020] ZAWCHC 128 (15 October 2020) at para 25.
27
paragraph 31 of the P articulars of C laim, allege that the P laintiffs are still
the owners of those trademarks.
[107] An unlawful transfer of trademarks does not undo lawful proprietorship of
the trademarks and in such circumstances, the Plaintiffs will continue to
remain the owners of these trademarks.
[108] This exception is dismissed.
[109] Accordingly, regarding the exceptions raised relating to the Plaintiffs’
amended Particulars of Claim being vague and embarrassing, excepting
exception 5, the remaining exceptions are upheld.
[110] The above exceptions have been raised shortly after the production by the
Plaintiffs of their amended Particulars of Claim. These exceptions are
timeous and the bulk of which are well -grounded. The Plaintiffs enjoy the
opportunity of revisiting and where apposite, amending and supplementing
particulars of claim and consequent upon the Defendants’ raising of the
aforesaid exceptions.
INTERLOCUTORY APPLICATION TO COMPEL THE DEFENDANTS’
PRODUCTION OF HEADS OF ARGUMENT ON EXCEPTION
[111] When one has regard to the chronology of action proceedings launched
under the above case number over the period 05 February 2025 ( when the
Plaintiffs’ served notice of its proposed amendments to its Particulars of
Claim) to 16 May 2025 ( when the Defendants delivered their consolidated
Heads of Argument relating to the exceptions raised on the Plaintiffs’
amended Particulars of Claim ); it is clearly apparent from this chronology
that the litigants were intensively engaged in the pursuance of this action.
[112] Following on the Defendants objecting to the Plaintiffs’ amended Particulars
of Claim back on 19 March 2025 and the Plaintiffs in turn then refusing to
further amend their Particulars of Claim ; the Plaintiffs in consider ing the
Defendants’ Notices of Exception for their part then proceeded to present
28
their Heads of Argument on the vague and embarrassing exceptions on
02 May 2025 and on exceptions relating to no cause of action on 15 May
2025.
[113] The Defendants in turn requested a short extension in the presentation of
their Heads of Argument - to 16 May 2025 and which appears was not
affirmed by the Plaintiffs. Instead, on 08 May 2025, the Plaintiffs resorted in
launching an interlocutory application to compel production of the
Defendants’ Heads of Argument. This was then followed with a Notice of
Set Down of this Interlocutory A pplication by the Plaintiffs on 15 May 2025.
The Defendants then presented their consolidated Heads of Argument on
16 May 2025.
[114] The exceptions were then ripe for argument before court. However, the
Plaintiffs persisted with its above Interlocutory Application and which was
then vigorously opposed and this begs the question, to what end and given
that the Defendants’ Heads of Argument were filed as of record?
[115] With the production by the Defendants of their Heads of Argument on 16
May 2025, but for the issue of costs on interlocutory application, the
remainder of the relief sought in the Interlocutory Application had been
given effect to and became moot.
ORDER
[116] Accordingly, having read the papers filed as of record and having heard
argument from legal counsel, I make the undermentioned Order:
1. Regarding the exceptions raised on behalf of the Defendants relating to the
amended Particulars of Claim failing to disclose a cause of action; excluding the
third ground of exception raised, the remaining exceptions are upheld.
2. Regarding the exceptions raised on behalf of the Defendants relating to the
amended Particulars of Claim being vague and embarrassing; excluding the fifth
ground of exception raised, the remaining exceptions are upheld.
29
3. The Plaintiffs are granted leave to amend their Particulars of Claim and within 15
(fifteen) days of the date of this Order upholding the exceptions and where the
Plaintiffs wish to revisit and cure the deficiencies identified therein.
4. Should the Plaintiffs fail to amend their Particulars of Claim as aforesaid, the
Defendants are entitled to approach this Honourable Court on supplemented
papers dismissing the Plaintiffs’ causes of action affected by the granted
exceptions.
5. The costs of on exception are granted against the Plaintiffs in favour of the
Defendants on the attorney and client scale, including that of two legal counsel on
scale C as referred to in Rule 69 of the Uniform Rules of Court.
6. Regarding the interlocutory application resorted to by the Plaintiffs to compel the
Defendants to produce their Heads of Argument, the Plaintiffs are awarded the
wasted costs only attributed to this interlocutory application.
______________
MEADEN JR
ACTING JUDGE OF THE HIGH COURT,
GAUTENG DIVISION, JOHANNESBURG
For Excipient/Defendants: Adv. A Rafik Bhana SC/
Adv. Suhail Mohamed
Instructed by: Knowles Husain Lindsay Inc
For Respondent/Plaintiffs: Adv. Anthony Stein SC/
Adv. Anthonie Jansen Van Vuuren
Instructed by: Bowman Gilfillan Inc.
Date of Hearing: 5 - 6 February 2026
Date of Judgment: 24 April 2026
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This judgment was handed down electronically by circulation to the parties and or
parties' representatives by email and by being uploaded to CourtOnline/ CaseLines.
The date and time for the hand down is deemed to be 12 h00 on this 24th day of April
2026.