(1) Reportable: No
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(2) Of interest to other judges: No
(3) Revised: Yes
Date: 17 April 2026
SIGNATURE: ........................................................ .
CASE NUMBER: 13788/22
I n the matter between:
SOUTH AFRICAN MEDICAL ASSOCATION N.P.C. APPLICANT
and
SOUTH AFRICAN MEDICAL ASSOCIATION TRADE UNION 1 ST RESPONDENT
GERHARD VOSLOO N.O 2ND RESPONDENT
REGISTRAR OF LABOUR RELATIONS JRD RESPONDENT
I n the counter application of:
SOUTH AFRICAN MEDICAL ASSOCIATION TRADE UNION 1ST APPLICANT
GERHARD VOSLOO N.O 2ND APPLICANT
and
SOUTH AFRICAN MEDICAL ASSOCATION N.P.C. 1ST RESPONDENT
REGISTRAR OF LABOUR RELATIONS 2ND RESPONDENT
REGISTRAR OF TRADEMARKS 3RD RESPONDENT
Coram: ASL van Wyk AJ
Heard: 9 December 2024
Delivered: This judgment was handed down electronically by circulation to the parties’
legal representatives by email, by uploading the judgment onto
https://sajustice.caselines.com, and release to SAFLII. The date and time
for hand-down is deemed to be 14:00 on 17 April 2026.
ORDER
1. Leave to appeal is granted to the Full Court of the Gauteng Division of the High
Court.
2. Cost of the application for leave to appeal will be cost in the appeal.
3. Should the appeal not be prosecuted the applicant in the application for leave
to appeal shall pay the cost of the application for leave to appeal.
JUDGMENT
VAN WYK ASL (AJ)
Introduction
(1) The applicant in convention applied for a final interdict against the 1 st & 2nd
respondents in convention based on passing off and the statutory infringement
of registered trademarks in terms of the Trade Marks Act, No. 194 of 1993.
The applicant also applied for ancillary relief.
(2) The 1st & 2nd respondents delivered a counter application on the basis that the
applicant’s trademark registrations were wrongly made and / or wrongly
remains on the register as provided for in section 24(1) of the Act.
Consequently, the respondents contend that the trademark registrations are
vulnerable to expungement as provided for in section 27 of the Act.
(3) I stayed the proceedings, pending registration or rejection of the trademark
applications filed by the 1st & 2nd respondent in terms of section 14 of the Act
by the Registrar of Trade Marks.
(4) On 19 July 2024 the applicant delivered a notice of application for leave to
appeal.
Issues for determination
(5) Applications for leave to appeal are governed by rule 49(1) of the Uniform
Rules of Court and §§ 16 & 17 of the Superior Courts Act, No. 10 of 2013.
(6) In terms of rule 49(1)(b) when leave to appeal is required and it had not been
requested at the time of the judgment or order, application for such leave shall
be made and the grounds therefore shall be furnished within fifteen days after
the date of the order appealed against’.
(7) In terms of section 16(1)(a)(i) of the Act an appeal against any decision of a
Division as a court of first instance lies, upon leave having been granted if the
court consisted of a single judge, either to the Supreme Court of Appeal or to
a full court of that Division, depending on the direction issued in terms
of section 17(6). Section 17(6)(a) of the Act provides:
‘If leave is granted under subsection (2) (a) or (b) to appeal against a decision
of a Division as a court of first instance consisting of a single judge, the judge
or judges granting leave must direct that the appeal be heard by a full court
of that Division, unless they consider-
(i) that the decision to be appealed involves a question of law of
importance, whether because of its general application or
otherwise, or in respect of which a decision of the Supreme Court
of Appeal is required to resolve differences of opinion; or
(ii) that the administration of justice, either generally or in the
particular case, requires consideration by the Supreme Court of
Appeal of the decision, in which case they must direct that the
appeal be heard by the Supreme Court of Appeal."
(8) Section 17 makes provision for leave to appeal to be granted where the
presiding judge is of the opinion that either the appeal would have a
reasonable prospect of success or there is some other compelling reason why
the appeal should be heard, including whether there are conflicting judgments
on the matter under consideration.
(9) Considering the statutory and regulatory matrix, three questions for
consideration arise in the application for leave to appeal. These questions are
not distinct but interrelated. The first question is whether the applicant filed a
proper notice of application for leave to appeal which concisely and succinctly
set out the grounds upon which leave to appeal is sought. The second question
is whether the appeal would have a reasonable prospect of success or whether
there are compelling reasons which exist why the appeal should be heard such
as the interests of justice. The third question is whether the application for
leave to appeal sets out expressly why the default position of an appeal to a
full court of the Division should not prevail, as well as the questions of law or
fact or other considerations involved which dictate that the matter should be
decided by the Supreme Court of Appeal.
Did the applicant file a proper notice of application for leave to appeal
(10) The notice of application for leave to appeal must set out the grounds upon
which leave to appeal is sought. The rules do not define ‘grounds’, but
authorities seem to agree that it should be an error of law or facts alleged by
the applicant as the defect in the judgment appealed against upon which
reliance is placed to set it aside.
See for example - Xayimpi & others v Chairman, Judge White
Commission (formerly known as Browde Commission) & others
[2006] JOL 16596 (E).
(11) An appeal may also lie against the exercise of judicial discretion.
See – Knox D’Arcy Ltd and Others v Jamieson and Others 1996 (4) SA
348 (A) [also reported at [1996] 3 All SA 669 (A)].
(12) The first enquiry is accordingly whether the notice clearly and succinctly set
out in clear and unambiguous terms the incorrect findings of law or fact , or
the basis upon which it is contended that the court did not act judicially. For
an illuminating discussion on the distinction between findings of law, findings
of fact, and judicial discretion
See Media Workers Association of South Africa and Others v Press
Corporation of South Africa Limited [1992] 2 All SA 453 (A) at pages 457
– 459.
(13) Incorrect findings of fact cannot arise outside the record of proceedings
because, save in exceptional circumstances, an appeal court will not permit
disputes of fact or expert opinion to be raised for the first time on appeal.
See - Rail Commuters Action Group and Others v Transnet Ltd t/a
Metrorail and Others 2005 (2) SA 359 (CC) at 388F -389A. An applicant in
an application for leave to appeal need to show that from the text of the
decision appealed against (ipsissima verba) that an accepted fact differs from
a common cause or undisputed fact in the record of proceedings.
(14) The Constitution, legislation, the common law , and customary law are the
laws of the Republic. There is a clear hierarchy of laws, with the Constitution
being the supreme law of the Republic.
See – Section 2 of the Constitution. Common law and customary are subject
to any legislation consistent with the Constitution, that specifically deals with
it. See - Alexkor Ltd and Another v Richtersveld Community and
Others (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR
1301 (CC) (14 October 2003) at par 51.
(15) An applicant in an application for leave to appeal who relies on an incorrect
finding of law must clearly and succinctly identify the incorrect legal principle
applied by the court, and the correct legal principle that should have been
applied.
(16) This is however not the end of the enquiry, since an appeal can only be noted
against the judgment itself (i.e., the substantive order), not the reasons for
the judgment, or the way the Court arrived at the judgment.
See - Cape Empowerment Trust Ltd v Fisher Hoffman Sithole 2013 (5)
SA 183 (SCA) at 198I–J. Even if an applicant in an application for leave to
appeal succeeds in convincing the Court that it erred in fact and / or in law, it
must also show that the judgment (substantive order) would have been
different if the Court applied the correct law or facts. The notice should
therefore clearly specify what orders will be sought on appeal.
(17) In the context of a judgment , legal issues and factual issues can never truly
be separated and the question of fact must first be answered before the court
will know which legal question must be dealt with. To determine whether the
court acted judicially, a determination needs to be made with reference to all
the relevant facts and principles. If an application is based on the contention
that the Court failed to act judicially, the notice should clearly and succinctly
set out all the relevant facts and legal principles which the appli cant relies
upon, and the decision which in the result should reasonably have been made
by the Court properly directing itself.
(18) The applicants advanced six grounds in support of the application for leave to
appeal:
(18.1) I applied equities to his consideration as to whether or not to stay
the proceedings. The question of a stay involved a judicial discretion
which was to be exercised considering the facts and the law, not
equities. The applicants therefore contend that I misdirected myself
and erred in a fundamental respect. Had I not so misdirected
myself, the argument goes, and instead correctly applied the law to
the facts, I would not have granted the stay.
(18.2) I held that exceptional circumstances existed to warrant a stay of
the proceedings, on the basis that it would be nonsensical for the
respondents to be interdicted to use its trademarks whilst
proceedings were pending before the Registrar of Trademarks. The
applicant contends that those circumstances are not exceptional to
warrant delaying the determination of the application for
interdictory relief. In the circumstances it is contended that I erred.
(18.3) I failed to consider material facts , including prior findings and
likelihood of confusion. Prospects of securing registration are
remote, and registration is not an absolute defense to passing off.
The applicant contends that I exercised my discretion on a wrong
principle and the stay should have been refused.
(18.4) I based my determination on 'honest concurrent use' in the absence
of admissible evidence supporting this determination. The applicant
contends that I accordingly misdirected myself.
(18.5) I granted a stay in circumstances where the facts demanded that I
should have dealt with the interdictory relief sought. The applicant
contends I erred in failing to do so.
(18.6) I failed to grant an unopposed amendment which was sought by
the applicant. The applicant argues that by refusing the amendment
I fundamentally erred.
(19) The notice of application for leave to appeal does not expressly state whether
leave to appeal is sought on the basis that there are reasonable prospects of
success on appeal, or that compelling reasons exist why leave to appeal should
be granted. In their heads of argument, the applicants contend that there are
reasonable prosects of success on appeal.
(20) I am satisfied that the application for leave to appeal sets out the grounds
upon which leave is sought ; and the proposed appeal will not lie against the
reasons for the Court’s judgment but against the substantive order.
(21) As I read the notice the grounds are not based on incorrect findings of fact or
law, but against the court’s purported failure to act judicially. The grounds are
directed against the substantive order, and I am satisfied that the grounds are
clearly and succinctly set out in the notice . I therefore find that there is a
proper application for leave to appeal before me.
Reasonable prospect of success or compelling reasons why the appeal should
be heard
(22) In considering the application for leave to appeal I am guided by the criteria
laid down in Ramakatsa v African National Congress [2021] JOL 49993
(SCA) at par 10.
‘[10] Turning the focus to the relevant provisions of the Superior Courts
Act (the SC Act), leave to appeal may only be granted where the
judges concerned are of the opinion that the appeal would have a
reasonable prospect of success or there are compelling reas ons
which exist why the appeal should be heard such as the interests
of justice. This Court in Caratco, concerning the provisions of
section 17(1)(a)(ii) of the SC Act pointed out that if the Court is
unpersuaded that there are prospects of success, it mu st still
enquire into whether there is a compelling reason to entertain the
appeal. Compelling reason would of course include an important
question of law or a discreet issue of public importance that will
have an effect on future disputes. However, this C ourt correctly
added that "but here too the merits remain vitally important and
are often decisive". I am mindful of the decisions at High Court level
debating whether the use of the word "would" as opposed to
"could" possibly means that the threshold for granting the appeal
has been raised. If a reasonable prospect of success is established,
leave to appeal should be granted. Similarly, if there are some other
compelling reasons why the appeal should be heard, leave to appeal
should be granted. The test of reasonable prospects of success
postulates a dispassionate decision based on the facts and the law
that a court of appeal could reasonably arrive at a conclusion
different to that of the trial court. In other words, the appellants in
this matter need to convince this Court on proper grounds that they
have prospects of success on appeal. Those prospects of success
must not be remote, but there must exist a reasonable chance of
succeeding. A sound rational basis for the conclusion that there are
prospects of success must be shown to exist.’
(23) As I’ve already indicated the proposed appeal will be against the court’s
purported failure to exercise its discretion judicially. The standard of
interference and the test was authoritatively discussed in the well-articulated
judgment of Khampepe J in the matter of Trencon Construction (Pty)
Limited v Industrial Development Corporation of South Africa
Limited and Another (CCT198/14) [2015] ZACC 22; 2015 (5) SA 245 (CC);
2015 (10) BCLR 1199 (CC) (26 June 2015) at par 83 - 89.
[88] When a lower court exercises a discretion in the true sense, it would
ordinarily be inappropriate for an appellate court to interfere unless
it is satisfied that this discretion was not exercised:
". . . judicially, or that it had been influenced by wrong principles or
a misdirection on the facts, or that it had reached a decision which
in the result could not reasonably have been made by a court
-
properly directing itself to all the relevant facts and
principles"74 (footnote omitted).
An appellate court ought to be slow to substitute its own decision
solely because it does not agree with the permissible option chosen
by the lower court.
[89] In Florence, Moseneke DCJ stated:
"Where a court is granted wide decision -making powers with a
number of options or variables, an appellate court may not interfere
unless it is clear that the choice the court has preferred is at odds
with the law. If the impugned decision lies within a ran ge of
permissible decisions, an appeal court may not interfere only
because it favours a different option within the range. This principle
of appellate restraint preserves judicial comity. It fosters certainty
in the application of the law and favours finality in judicial decision-
making."75’
Applicant’s argument
(24) It is submitted that there are important errors made by Acting Justice Van
Wyk, as encapsulated in the Application for Leave to Appeal. It is also
submitted that there are reasonable prospects of an appeal court deciding
differently. Indeed, there are reasonable prospects of an appeal court
reasoning that the First Respondent should act lawfully whilst its “spes”
incubates – if ever to give birth to a defence that will justify its unlawful
conduct to continue.
(25) The following in this regard (and, in not dissimilar circumstances) was stated
by Van Dijkhorst J in Abdulhay M Mayet:
“I accept that I have a discretion to stay these proceedings pending the
respondents' application in terms of s 14 of the Act, but at best for the
respondents this discretion is to be exercised sparingly and in exceptional
circumstances. Fisheries Development Corporation of SA Ltd v Jorgensen and
Another; Fisheries Development Corporation of SA Ltd v AWJ Investments
(Pty) Ltd and Others 1979 (3) SA 1331 (W) at 1340D - 1341A. There are no
exceptional circumstances in this case.
The law of trade marks will fall into desuetude should every infringer be
allowed to defend himself by saying: I know that I am acting unlawfully, but
bear with me; there is a possibility that my actions may become lawful.
The proper course for such infringer would be to comply with the law and
desist from infringing until the application to legalise such use is successful. I
refuse a stay of proceedings.”
(26) The primary basis for the grant by Acting Justice Van Wyk of the stay is that it
would be equitable. This is a mistaken premise, for equity does not form part of
the determination as to whether a stay should be granted. Here is what Streicher
ADP stated in Clipsal in this regard:
“….dealing with a request that an action should be stayed in the exercise of the
court's 'inherent discretion to avoid injustice and inequity' Nicholas J said at
1340B - D: 'The Courts do not however act on abstract ideas of justice and equity.
They must act on principle. Cf the Western Assurance Co case supra at 275. And
see the remarks of Innes CJ in Kent v Transvaalsche Bank 1907 TS 765 at 773 -
774:
"(The appellant) also asked us to stay the proceedings on equitable grounds,
urging that we had an equitable jurisdiction under the insolvency law. The Court
has again and again had occasion to point out that it does not administer a
system of equity, as distinct from a system of law. Using the word 'equity' in its
broad sense, we are always desirous to administer equity; but we can only do
so in accordance with the principles of the Roman -Dutch law. If we cannot do
so in accordance with those principles, we cannot do so at all.'
Nicholas J then proceeded to deal with the application on the assumption that
the court had the power to grant a stay of the proceedings on equitable grounds
and concluded that 'even if it had the power to do so' a case had not been made
out for such a stay.
(27) As I shall presently indicate, I am of the view that if the court below did have a
discretion, on equitable grounds, to stay the contempt application, the exercise of
that discretion in favour of the respondents was not justified and should be set
aside. I shall, therefore, likewise assume that the court below had such a
discretion. I shall furthermore assume in favour of the respondents that the
discretion is a discretion in the strict or narrow sense, ie a discretion with which
this court as a c ourt of appeal can interfere only if the court belo w exercised its
discretion capriciously or upon wrong principle , or has not brought un biased
judgment to bear on the question , or ha s acted for substantial reasons , or
materially misdirected itself
19
(28) It is clear from this dictum that there is no discretion to be exercised on the basis
of equity. The premise of the decision by Acting Justice Van Wyk was therefore
crucially erroneous. An appeal court would not apply principles of equity. It is also
clear that the discretion to be exercised is a strict discretion and is one that must
be based on principles of our law. One of the overriding principles when it comes
to considering the grant of a stay, or not, is whether there are exceptional
circumstances justifying denying what is in reality the exercise by a party of its
Constitutional right of access to justice.
(29) Acting Justice Van Wyk recognised that there must be exceptional circumstances
for the exercise of the power to grant a stay. However, the learned Acting Justice
did not find any exceptional circumstances. He merely held the view that it would
be non-sensical for interdicts to be granted, when the First Respondent might
obtain registration of the trademarks at some later stage. This ‘view’ runs contrary
to several considerations. First, it is in conflict with the rationale espoused by Van
Dijkhorst J in Abdulhay M Mayet, supra, namely that any infringer can apply for
registration and then seek a stay. As his Lordship reasoned, the law of trademarks
would fall into desuetude if this were to hold otherwise. These are hardly
circumstances of any sort to which to pay cogniscance, let alone exceptional
circumstances.
20
(30) Next, the facts before the Court do not sustain the view. The circumstances said
to be exceptional must exist as a matter of fact. The trademark applications filed
by the First Respondent are not on the basis of honest concurrent use and will
most likely never be accepted by the Registrar including in the face of the
Applicant’s entries in the Register. Therefore, there is no factual premise for the
consideration of whether the circumstances are exceptional. The claimed
circumstances do not exist at all. This has indeed happened. The trademark
applications have been refused and will only be accepted by the Registrar if the
Applicant consents - which it will not do.
(31) In any event, “exceptional” means rare, unusual, special, out of the ordinary.16
As it said, “the exception proves the rule”. If the filing of trade mark applications
justified a stay of interdict proceedings – on account of the possibility (it cannot
be stated any higher than this) that registration might result at some stage down
the line and thereby grant a defence to infringement - this would never be
exceptional for it could/would happen in every case. Thus, the circumstances of
such applications cannot (even as a matter of logic) be exceptional.
(32) Accordingly, it is submitted that there existed no rationale basis for the decision
by Acting Justice Van Wyk. An appeal court would not come to the same conclusion
(including because it cannot).
21
(33) I am satisfied that there are reasonable prospects that an appeal court would
interfere with the way in which I exercised my discretion and accordingly that
leave to appeal should be granted.
Appeal to a full court of the Division or to the Supreme Court of Appeal
(34) Section 17(6) (a) of the of the Superior Courts Act, No. 10 of 2013 provides:
‘If leave is granted under subsection (2) (a) or (b) to appeal against a decision
of a Division as a court of first instance consisting of a single judge, the judge
or judges granting leave must direct that the appeal be heard by a full court
of that Division, unless they consider-
(ii) that the decision to be appealed involves a question of law of
importance, whether because of its general application or
otherwise, or in respect of which a decision of the Supreme Court
of Appeal is required to resolve differences of opinion; or
22
(ii) that the administration of justice, either generally or in the
particular case, requires consideration by the Supreme Court of
Appeal of the decision, in which case they must direct that the
appeal be heard by the Supreme Court of Appeal."
(35) With regards to the considerations whether an appeal should be granted to
the SCA Ranchod J, in a unanimous full court decision in the matter of
Member of the Executive Council for Co -operative Governance,
Human Settlements and Traditional Affairs (COGHSTA) and Others v
Mogalakwena Municipality and Another (89657/2014) [2016] ZAGPPHC
1167; 2017 (2) SA 464 (GP) (10 November 2016) expressed himself as follows:
‘[14] The corresponding provisions of the Act's predecessor, the Supreme
Court Act 59 of 1959 (the previous Act), form part of the
circumstances attendant upon the coming into existence of the
Act and must also be taken into account. In MTN Service Provider
(Pty) Ltd v Afro Call (Pty) Ltd it is stated that section 20(2) of the
previous Act makes it clear that the primary court of appeal from a
single judge of the High Court lies to the Full Court unless questions
of law or fact or other considerations invol ved dictate that the
matter should be decided by the SCA, allowing for a deviation from
the norm. The provisions regarding the court to which leave to
23
appeal must be granted from a single judge are effectively the same
in section 20(2) of the previous Act and section 17(6)(a) of the Act
and as a result the principle stated in MTN Service Provider is in my
view still applicable.
[15] As was the case in MTN Service Provider the inappropriate granting
of leave to appeal to the SCA was deprecated in Shoprite Checkers
(Pty) Ltd v Bumpers Schwarmas CC and Others as well as Swart v
Heine. It can safely be assumed that when formulating sections
17(6)(a) and 18(4)(ii) this approach formed part of the material
known to the legislature as is clear from the use of the words "must"
and "unless" in the introductory part of Section 17(6)(a). This i s a
further indication that the intention of the legislature is that in the
event of an appeal against a decision of a single judge "the next
highest court" is the Full Court regard being had to the default
position which may be changed when the circumstan ces in sub -
sections 17(6)(a)(i) and (ii) prevail.’
(36) The application for leave to appeal should set out expressly why the default
position of an appeal to a full court of the Division should not prevail, as well
as the questions of law or fact or other considerations involved which dictate
that the matter should be decided by the SCA, allowing for a deviation from
24
the norm. The notice of application for leave to appeal does not address the
issues enunciated in §17 of the Act and there is accordingly no basis why leave
to appeal is sought to the SCA, as opposed to a full court.
Conclusion
(37) On a conspectus of all the issues raised I propose to grant the application for
leave to appeal t o a Full Court of the Gauteng Division of the High Court of
South Africa in Pretoria.
Date of hearing:
Date of judgment:
APPEARANCES:
Applicants:
ASL VAN WYKAJ
Acting Judge of the High Court
9 December 2024
17 April 2026
Adv O Salmon SC
25
Instructed by: McRobert Inc.
1st & 2nd Respondents: Adv R Michau SC
Instructed by: Serfontein Viljoen & Swart Attorneys