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IN THE COMPANIES TRIBUNAL OF SOUTH AFRICA
Case no: CT02839/ADJ/2026
In the matter between:
Makgoba Asset Management Company (Pty) Limited Applicant
And
Makgoba Trading Group (Pty) Limited
(Registration No 2024743183/07) First Respondent
And
Companies and Intellectual Property Commission Second
Respondent
Presiding Member of the Companies Tribunal: HLALELENI KATHLEEN DLEPU
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Date of Decision: 04 September 2026
Decision and Reasons
1. INTRODUCTION
1.1. The Applicant is Makgoba Asset Management (Pty) Limited with registration no
2014/245753/07 a company incorporated in terms of South African Company
Laws, having its registered office at Boekenhoutbult, Mooketsi, Limpopo 0825.
The Applicant is the proprietor of statutory and common law rights in t he
“MAKGOBA” and “MAKGOBA AFRICA’’ trademarks.
1.2. The First Respondent is Makgoba Trading Group (Pty) Limited a company duly
incorporated in accordance with the company laws of the Republic of South
Africa with registration number 2024/ 743183/07 having its registered address at
795 Stateng Section, Ramaomokokastad, Mogwase, 0195
1.3. The Second Respondent is the Companies and Intellectual Property
Commission (CIPC) established by Section 185 of the Companies Act with its
address at DTI Building, Block F, Meintjies Street, Sunnyside, Pretoria.
2. THE APPLICATION
2.1. The Applicant brought this application brought in terms of Section 160 of the
Companies Act for an order as follows:
2.1.1. That the First Respondent to change its name and any other trademark to
one which does not incorporate and is not confusingly and/or deceptively
similar to the Applicant’s MAKGOBA and MAKGOBA AFRICA
2.1.2. In the event that the First Respondent fails to comply with the order set
out in paragraph 2.1.1 above within 60 days ,the Second Respondent be
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directed, in terms of Section 160 (3) (b)(ii) read w ith Section 14(2) of the
Companies Act ,to record the First Respond ent’s registration number
followed by (Pty) Ltd as the Respondent’s interim company name on the
Companies Register.
2.1.3. The Applicant be granted further and/or alternative relief.
2.2. The Applicant has also sought a default order in respect of the First
Respondent’s company name Makgoba Holding Group ( Pty) Limited, and the
application is based on Section 11 and 160 read with Regulation 153 of the
Companies Act 71 of 2008.
2.3. The Applicant has an interest in the name of the First Respondent within the
meaning of Section 160(1) of the Act to file this Application to the Companies
Tribunal. The Applicant’s interest will appear from the facts which were initiated
and documented by the Applicant in its affidavit in particular, the Applicants
trademark rights in and to the “MAKGOBA ” and “MAKGOBA AFRICA:”
trademark.
3. THE BACKGROUND TO THE APPLICATION FOR JUDGEMENT BY DEFAULT
3.1. In April 2025 the Applicant instructed the Attorneys of record to object to the
name Makgoba Holding Group (Pty) Limited and the Applicant’s Attorneys of
record sent a letter of demand to the First Respondent calling on them to cease
using the name Makgoba Holding Trading(Pty) Limited and to make an
application to change its name to one not including MAKGOBA or any mark
confusingly or deceptively similar to MAKGOBA AFRICA trademark.
3.2. On the 2 May 2025 and 7 October 2025 the Applicants Attorneys of record
followed up with the First Respondent by email and telephonically, to no avail.
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3.3. The Attorneys of Record contacted the sole director of the First Respondent, Ms
Letebele Queen Mafologela telephonically highlighting the infringement and
requesting that the First Respondent to provide an alternative email address so
that they could send a letter of demand to her. Ms Mafologela agreed that she
would voluntarily apply to the CIPC voluntarily change its name to one that do
not consist of or contain the Applicants ’ MAKGOBA and MAKGOBA AFRICA
trademarks or confusingly similar thereto.
3.4. On the 9 January 2026,the Applicant Attorneys of Record contacted Mr More
telephonically and Mr More informed them that the company was closed ,and
that he had sent an email to the Second Respondent informing it of this regard
on the 23 February 2026 the Applicants Attorney of Record follow ed up with Mr
More via WhatsApp, to no avail. Despite several follow ups noting came to
fruition.
3.5. The Applicant submits that it instructed its attorneys of recor d to launch an
application in terms of Section 11 (2) and 160 0f the Act , the application was
launched on the 9 July 2026 the affidavit was deposed to by Thupane Joseph
Makgoba deposed to on the 19 June 2026 ,and a was proof of service effected
by the Sheriff of Mankwemadikwe and the as proof that the documents were
delivered in accordance with the Act.
3.6. To date the First Respondent has not responded and their conduct is prejudicial
to the Applicant .The Applicant instructed its Attorneys of Record to proceed to
file the main application in terms of Section 11 read with section 160 of the
Companies Act ordering the First Respondent to cease using the name
Makgoba Trading Group (Pty) Limited , and to undertake to make an application
to change its name to one not including Makgoba and Makgoba A frica
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trademark or any confusingly similar mark. The Applicant submits that there is
good cause for the relief in terms of Section 11(2) of the Companies Act.
3.7. On the 17 August 2026 ,with the supporting affidavit deposed to by Dale Timothy
Healy ,the Applicant lodged an application in terms of Section 160 name of the
Companies Act requesting the Tribunal to grant an order that the name Makgoba
Trading Group(Pty) Ltd 2024 /743183/07 be changed on the basis that it is
contrary to Section 11 (2) of the Act .The Application was served by email
attached to the Applicants affidavit.
3.8. To date, neither the First Respondent nor anyone acting on its behalf has
responded to the application nor oppose it.
3.9. I am satisfied that the applicant has made out a case for the main application to
be considered by default against the First Respondent.
4. THE APPLICANTS CASE
4.1. The order is sought due to the following reasons:
4.1.1. The Applicant is the proprietor of amongst others , various South African
registered trademarks namely:
(i) Trademark; MAKGOBA AFRIKA Registration no 2016/09583
Class 31
(ii) Trademark; MAKGOBA AFRIKA Registration no 2021/26085
Class 35
(iii) Trademark; MAKGOBA AFRIKA Registration no 2021/26086
Class 39
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(iv) Trademark; MAKGOBA AFRIKA Registration no 2021/26087
Class no 43
4.2. The above trademarks are still valid and enforceable; copies of the trademark
register pages obtained from the Registrar of Trademarks was attached to the
Applicants affidavit. The Applicants trademarks have been registered for several
decades prior to the incorporation of the First Respondent.
4.3. It is important to note that the Applicant has consistently upheld a legacy of
excellence, in agricultural operations on community land, specifically farms on
which avocado production has been established, it has also registered
trademarks Makgoba and Makgoba Afrika in relation to avocados and related
to logistics and operational services in both domestic and international markets.
The reputation and goodwill attached to the Makgoba and Makgoba Afrika
trademarks is an asset of considerable commercial value and importance to the
Applicant. The Company was incorporated and registered its first trademark in
2021, several years before the incorporation of the Firs t Respondent whose
incorporation was in 2024.
4.4. The First Respondent ’s Company name Makgoba Trading Group offends the
provision of Section 11(2) (a)(iii) in that it is identical to or the same as the
Applicant’s Makgoba and Makgoba Afrika trademark registration which
incorporation was done several years ago.
4.5. In support of this application the Applicant attached f ounding affidavit in the
name of Thupane Joseph Makgoba and supporting affidavit of Dale Timothy
Healy and confirmatory affidavits of Keandra Char leigh Anthony and
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Abongiwe Buthelezi , setting out the facts upon which the Applicant relies on
duly authorised by resolutions.
5. APPLICABLE LAW
5.1. SECTION 160(1) OF THE COMPANIES ACT PROVIDES THAT
“any other person with an interest in the name of a company, may apply to
the Companies Tribunal in the prescribed manner and form for a
determination whether the name, or the reservation, registration or use of
the name, or the transfer of any such reservation or registration of a name,
satisfies the requirements of this Act”.
5.2. Section 160(2)(b) of the Companies Act provides that:
“An application in terms of Subsection (1) may be made … on good cause
shown at anytime after the date of the reservation or registration of the
name that is the subject of the application, in any other case”.
5.3. Sections 11(2) (a)(iii), 11 (2)(b)(iii); and 11(2)(c ) (i) of the Companies Act, in as
far as they are applicable, read as follows:
“(2) The name of a company must
(a) not be the same as –
(i) …
(ii) …
(iii) a registered trade mark belonging to a person other than the
company or a mark in respect of which an application has been
filed in the Republic for registration as a trade mark or a well -known
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trade mark as contemplated in section 35 of the Trade Marks Act,
1993 (Act No. 194 of 1993), unless the registered owner of that
mark has consented in writing to the use of the mark as the name
of the company.
(b) not be confusingly similar to a name, trademark, mark, word, or
expression contemplated in paragraph (a) unless-
(i) …
(ii) …
(iii) in the case of a name similar to a trademark or mark referred to in
paragraph (a)(iii), the company is the registered owner of the
business name, trademark, or is authorised by the registered owner
or to use it; or …
(c) not falsely imply or suggest, or be such as would reasonably
mislead a person to believe incorrectly, that the company – (i) is part of, or
associated with, any other person or entity…”
5.4. The question is whether the First Respondent’s name and the Applicant’s
trademark are confusingly similar as envisaged in Section 11(2)(b) (iii) read with
Section 11 (2)(a)(iii) of the Companies Act.
5.5. The Applicant is best known in the Agricultural commodities Avocado, and
logistics marketed and sold under its Makgoba and Makgoba Afrika brand
name and was es tablished in 2016 and this brand has become an integral par t
of avocado exporters from South Africa to around the world, and several of its
products can be purchased in South Africa.
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5.6. MAKGOBA and MAKGOBA AFRIKA registered trademarks and name are of
exclusive use by the Applicants and also protected under the common law ,
and although the nature of the Fir st Respondent’s Company is not known or
clear, the use of the Applicant’s name by the First Respondent is confusingly
similar to the Applicant’s name and trademarks . This elevates the risk of
confusion between the Applicant’s trademark and the First Respondent’s name,
products, and services in the marketplace.
5.7. I further agree that the confusion and/or deception, can lead to injury to the
Applicant’s business. This is particularly so when it is taken into account that the
Applicant has absolutely no control whatsoever on the quality and type of goods
sold and services rendered by the Company.
5.8. In Plascon-Evans Paints (TVL) Ltd. V Van Riebeeck Paints (Pty) Ltd.
(Plascon-Evans, CORBETT JA quoted MARGO J, delivering the judgment in
International Power Marketing (Pty) Ltd v Searles Industrials (Pty) Ltd. 1983(4)
SA 163 (T), as follows on the meaning of the words “as to be likely to deceive or
cause confusion”.
“the main legal principles relevant to the decision of the instant case may
be briefly summarised as follows: -
In an infringement action the onus is on the plaintiff to show the probability
or likelihood of deception or confusion.... it is enough for the plaintiff to
show that a substantial number of persons will probably be confused as to
the origin of the goods or the existence or non- existence of such a
connection … the comparison must be made with reference to the
sense, sound and appearance of the marks. The marks must be
viewed as they would be encountered in the marketplace and against the
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background of relevant surrounding circumstances. The marks must not
only be considered side by side, but also separately. It must be
borne in mind that the ordinary purchaser may encounter goods,
bearing the defendant’s mark, with an imperfect recollection of the
registered mark and due allowance must be made for this. If each of
the marks contains a main or dominant feature or idea the likely impact
made by this on the mind of the customer must be taken into account. As
it has been put, marks are remembered rather by general impressions or
by some significant or striking feature than by a photographic recollection
of the whole. And finally, consideration must be given to the manner in
which the marks are likely to be employed as for example, the use of
name marks in conjunction with a generic description of the goods”.
5.9. CORBETT JA: stated further at paragraph 47 in Plascon Evans “…in my view, a
purely verbal comparison is not enough. As I have said, in cases such as this the
Court must transport itself to the marketplace and try to visualize how customers
of the goods, in relation to which the marks are used, would react.”
6. FINDINGS
6.1. I find that the Applicant has shown good cause to bring this application under
section 160 of the Companies Act.
6.2. I further find that the First Respondent’s name is so confusingly similar to the
Applicant’s trademark that is falsely implies or suggests that, or reasonably
mislead a person to believe incorrectly, that the Company is part of, or
associated with, the Applicant in contravention of section 11(2)( c) of the
Companies Act.
6.3. Considering the conspectus of the case cited above and the guidance from the
above case, I conclude that the First Respondent’s name runs afoul of the
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provisions of sections 11(2)(b)(iii) read with section 11(2)(a)(iii) and Section
11(2)(c)(i) of the Companies Act.
7. ORDER
I hereby grant the following relief by default judgement:
7.1. The First Respondent is ordered to change its name to one which does not
consist of, or incorporate, the mark MAKGOBA and MAKGOBA AFRIKA , or
any other mark which is confusingly and/or deceptively similar to the Applicant’s
MAKGOBA and MAKGOBA AFRIKA trademark.
7.2. The Second Respondent is directed to change the name of the First Respondent
to its registration number, in the event of the First Respondent not complying
with point 7.1 above within 3 months from the date of this order; and
7.3. The Second Respondent notify the First Respondent within 14 days of this order.
7.4. No order as to costs.
H K Dlepu Member or the Tribunal