REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No. 232321 / 2025
In the matter between:
WINSTON SCHOEMAN Applicant
and
EVEXIA DAY INC First Respondent
EVEXIA CAPITAL (PTY) LTD Second Respondent
___________________________________________________________________
ORDER
___________________________________________________________________
1. The condonation application is granted and the respondents are to pay the
costs of that application on scale C.
2. The application is dismissed.
3. The applicant is to pay the respondents costs on scale C.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
TOLMAY J:
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
28 August 2026 _______________________
DATE SIGNATURE
2
Introduction
[1] This is an application for final interdictory relief under section 34(1)(a) of the
Trade Marks Act1, seeking to restrain the respondents from infringing the applicant’s
registered EVEXIA trade mark. The respondents have brought a conditional counter-
application, to be considered only if the main application is not dismissed. In the
counter-application they seek an order referring the matter to trial or, alternatively, to
oral evidence. They also seek interim relief interdicting the applicant, pending final
determination of the proceedings, from enforcing Trade Mark Registration No.
2016/31400 EVEXIA against them. The respondents further seek condonation for
the late filing of their answering affidavit. The condonation application is unopposed,
save that the applicant contends the respondents should pay its costs.
Background
[2] The applicant is the proprietor of Trade Mark Registration No. 2016/31400
EVEXIA, registered in class 44. The application was filed on 27 October 2016 and
the mark was registered on 29 March 2019. The first respondent, Evexia Day Inc
(registration number 2015/358558/21), was incorporated on 8 October 2015 and has
been trading as EVEXIA since then. The second respondent, Evexia Capital (Pty)
Ltd (registration number 2017/113285/07), was incorporated on 4 April 2017 and has
likewise been trading under the EVEXIA name.
[3] The applicant was an incorporator and director of the first respondent, and is
an incorporator, director and shareholder of the second respondent. The first
respondent is wholly owned by the second respondent. The respondents have used
the EVEXIA trade mark openly and continuously in relation to wellness services
since their respective incorporations. The first respondent was incorporated before
the trade mark application was filed. The respondents contend that their use of the
EVEXIA name and trade mark occurred with the applicant’s knowledge and consent.
1 194 of 1993, Section 34(1)(a) reads as follows:
1 194 of 1993, Section 34(1)(a) reads as follows:
“(1) The rights acquired by registration of a trade mark shall be infringed by-
(a) the unauthorized use in the course of trade in relation to goods or services in respect of which the trade
mark is registered, of an identical mark or of a mark so nearly resembling it as to be likely to deceive or cause
confusion…”
3
[4] The respondents continued using the EVEXIA name after the trade mark was
registered, while the applicant remained involved in their businesses. On 13 October
2025, the applicant, through his attorneys, sent correspondence purporting to
withdraw their entitlement to use the EVEXIA trade mark. The respondents have
nevertheless continued using the EVEXIA mark after that withdrawal.
Issues to be determined
[5] The issues for determination are whether the matter can be decided on the
papers, or should be dismissed alternatively, be referred to oral evidence or trial . If it
can be decided on the papers, whether the applicant was entitled to terminate the
respondents’ authority or entitlement to use the EVEXIA mark , whether the
respondents’ continued use of the mark constitutes infringement under section
34(1)(a) of the Trade Marks Act; and, if infringement is established, whether the
applicant is entitled to the final interdict sought.
Applicant’s submissions
[6] The applicant submitted that the respondents had raised no genuine, real or
bona fide dispute of fac t. In essence, the applicant argued that, as the registered
proprietor of the trade mark , he had terminated his consent to the respondents,
rendering their continued use unauthorised. On that basis, the application should be
granted and the counter-application for referral dismissed.
[7] It was argued that the answering affidavit merely identifies issues that can be
decided on the papers, because the respondents have advanced no contrary facts.
Nor do they indicate that such facts could or would be produced if the matter were
referred to trial. In relation to the issues relied on to justify a referral - namely, what
investors knew about trade mark ownership when they invested and the nature of
the consent given - the affidavit relies on unconfirmed and inadmissible hearsay
evidence.
[8] The applicant says that the respondents do not allege that the authorisation
evidence.
[8] The applicant says that the respondents do not allege that the authorisation
was granted in perpetuity . The ordinary interpretive position is that, where an
agreement is silent on duration, it may be terminated on reasonable notice. 2 The
reply also shows, so the argument went, with reference to documents, that royalties
2 Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd and Other Related Cases 1985 (4) SA 809 (A) at para 16.
4
may have been payable for use of the mark and that supports the conclusion that the
licence was terminable. The applicant contends that, because the respondents were
not the proprietors of the trade mark, they could not lawfully use it without his
consent and the respondents accept that their use was authorised by consent.
[9] The applicant contends that the view that the respondents’ open and
continuous use of the trade mark since incorporation is merely evidence of use; it
says nothing about the circumstances in which consent to use them could be
withdrawn. Nor is it material that the respondents’ operating licence was issued in
the name Evexia. The suggestion that the mark is bound up with the respondents’
identity, or that they could not exist or trade without it, is misplaced. Evexia is a
company name, not an inseparable part of the respon dent, nor does the fact that the
respondents have the trade mark in their company names have any bearing on the
licence terms.
[10] The applicant relies on the principle that g oodwill attaches to the trade mark
proprietor.3 The allegation that the applicant has brought the application for an
improper motive because he is using his ownership of the trade mark to extract a
higher price for his shares, even if it were true, would not constitute a defence as the
Trade mark infringement is objective.4
[11] The applicant submits that the respondents ’ reliance on estoppel and waiver
is untenable. The evidence does not establish a perpetual licence to use the trade
mark. Waiver also requires proof that the applicant chose to abandon his trade mark
rights, and no such evidence exists. The applicant therefore contends that he is
entitled to the relief sought.
Respondent’s submissions
[12] The respondents a rgue that, because the terms of the use agreement are
disputed, the Court must resolve that dispute before finding that their continued use
was unauthorised under section 34(1)(a). They contend that, properly interpreted in
was unauthorised under section 34(1)(a). They contend that, properly interpreted in
light of the parties’ objectively manifested intention and their conduct over several
3 Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International and
Another 2006 (1) SA 144 (CC) at para 37 – 39.
4 Puma AG Rudolf Dassler Sport v Global Warming (Pty) Ltd 2010 (2) SA 600 (SCA) at para 11 (Puma).
5
years, they acquired a right to use the EVEXIA trade mark, which the applicant could
not unilaterally withdraw in the manner he did.
[13] The respondents contend that oral evidence is required to determine what the
terms of the use agreement of the trade mark were and whether the authorisation
could have been terminated by mere notice. They also submit that use of the trade
mark was incidental to the applicant’s continued shareholding. The correspondence ,
they say, supports that contention and demonstrates the need for evidence on the
terms governing use of the trade mark. The applicant bears the onus of proving that
the trade mark use was unauthorised and mere use by another party, without more,
does not establish infringement.
[14] The respondents argue that, even if their continued use of the EVEXIA trade
mark would otherwise constitute infringement, which they deny, the applicant is
precluded from relying on it based on waiver alternatively, estoppel.
Analysis
[15] It is undisputed that goodwill in a trade mark vests in the registered proprietor.
That, however, is not the issue in this matter. The question is whether the
respondents’ continued use of the EVEXIA trade mark, after the applicant’s unilateral
withdrawal of consent, constitutes unauthorised use under section 34 of the Trade
Marks Act on the papers before the Court. It is common cause that the respondents
used the trade mark for an extended period.
[16] Section 34(1)(a) provides that a registered trade mark is infringed by
unauthorised use, in the course of trade and in relation to the goods or services for
which it is registered, of an identical mark or a mark so similar that it is likely to
deceive or cause confusion. The central issue here is whether the respondents’
continued use was unauthorised. The applicant bears the onus of proving that the
respondents’ continued use of the EVEXIA trade mark is unauthorised and therefore
respondents’ continued use of the EVEXIA trade mark is unauthorised and therefore
infringes the rights conferred by registration. In his founding affidavit, the applicant
relies only on the fact that, as registered owner, he terminated his consent to the
respondents’ use of the trade mark and therefore continued use constitutes
infringement.
6
[17] In Rage Distribution (Pty) Ltd v Rage Footwear 1999 CC and Another 5, the
Court held that, where a trade mark proprietor alleges infringement after terminating
a licence or permission to use the mark, the infringement enquiry requires the Court
first to determine the existence, nature and terms of that licence. Only then can it
decide whether the subsequent use was unauthorised. The Court confirmed that a
trade mark licence is simply an authorisation to use the proprietor’s monopoly rights,
and that such a licence may be written, oral or inferred from the parties’ conduct. 6
Where the terms of the use agreement are disputed, the Court must resolve that
dispute before determining whether the respondents’ continued use was
unauthorised under section 34(1)(a).
[18] In deciding whether the respondents’ continued use of the EVEXIA trade mark
was authorised in terms of the use agreement the Court should consider the
intention as objectively manifested by the parties’ words and conduct, within the
factual matrix applicable to their contract.7Oral evidence will be required to determine
the conditions governing the respondents’ use of the trade mark, having regard to
the parties’ conduct in performing their obligations. 8 The applicant’s argument that in
the absence of proof of use in perpetuity, he was entitled to withdraw consent, does
not bear scrutiny. It is an oversimplification of the matter and loses sight of the fact
that the respondents may still prove the existence of terms of use that may exclude
unilateral withdrawal of consent.
[19] The respondents also rely on waiver , alternatively estoppel and argues that
objectively considered, the applicant’s conduct is inconsistent with an intention to
insist that the respondents’ use was merely a temporary indulgence capable of being
withdrawn at will. The applicant’s conduct objectively considered may convey that
the respondents are entitled to continue using the EVEXIA trade mark as part of the
the respondents are entitled to continue using the EVEXIA trade mark as part of the
parties’ ongoing commercial relationship. Waiver or estoppel may be proven if
evidence is led based on the allegations made in the answering affidavit.
5 (037824/2023) [2026] ZAGPPHC 511.
6 Id. Par23-24.
7Unica Iron and Steel (Pty) Ltd v Mirchandani 2016 (2) SA 307 (SCA) at para [21]; Investec Bank Ltd v Erf 436
Elandspoort (Pty) Ltd and Others 2021 (1) SA 28 (SCA) para [29].
8 Rane Investments Trust v Commissioner, South African Revenue Service 2003 (6) SA 332 (SCA) 346 at para
[27].
7
[20] In Kootbodien and Another v Mitchell’s Plain Electrical Plumbing and Building
CC and Others9, the Court dealing with the test for waiver stated as follows:
“ The test for the waiver is succinctly set out as follows in Road Accident Fund v
Mothupi 2000 (4) SA 38 (SCA) at 49H: 'The test to determine intention to waive has
been said to be objective (cf Palmer v Poulter 1983 (4) SA 11 (T) at 20C –
21A; Multilateral Motor Vehicle Accidents Fund v Meyerowitz 1995 (1) SA 23 (C) at
26H – 27G; Bekazaku Properties (Pty) Ltd v Pam Golding Properties (Pty) Ltd 1996
(2) SA 537 (C) at 543A – 544D). That means, first, that intention to waive, like
intention generally, is adjudged by its outward manifestations (cf Traub v Barclays
National Bank Ltd; Kalk v Barclays National Bank Ltd 1983 (3) SA 619 (A) at 634H –
635D; Botha (now Griessel) and Another v Finanscredit (Pty) Ltd 1989 (3) SA 773
(A) at 792B – E); secondly, that mental reservations, not communicated, are of no
legal consequence ( Mutual Life Insurance Co of New York v Ingle 1910 TS 540 at
550); and, thirdly, that the outward manifestations of intention are adjudged from the
perspective of the other party concerned, that is to say, from the perspective of the
latter's notional alter ego, the reasonable person standing in his shoes.'”10
This confirms that intention is determined by a party’s outward conduct and
statements, not by unexpressed reservations, which have no legal effect. Those
manifestations must be assessed from the standpoint of the other party.
[21] The respondent’s standpoint was that t he applicant’s understanding of the
basis on which the trade mark was used is set out in a letter from his attorneys dated
1 April 2025, which states:
“Evexia Capital was permitted to use the trademark free of charge, as an incidence
of his shareholding.”
This the respondents say is indicative of the fact that the use of the trade mark is
linked to the applicant’s shareholding.
linked to the applicant’s shareholding.
[22] The letter expressly admits that the respondents were authorised to use the
trade mark. It identifies the legal basis for that authority, according to the applicant,
as his shareholding in Evexia Capital. It does not state that the permission was
revocable at the applicant’s election, or that it could be withdrawn unilaterally while
that shareholding continued. It is common cause that the applicant remains a
shareholder. His own explanation is therefore consistent with the respondents’ case
9 2011 (4) SA 624 (WCC).
10 Id. Par.50.
8
that the authority to use the EVEXIA trade mark arose from the parties’ commercial
and shareholder relationship. That explanation gives rise to a genuine dispute about
the legal basis on which the respondents acquired the right to use the trade mark ,
whether that right was intended to endure for as long as the applicant remained a
shareholder in Evexia Capital; whether the authority could be withdrawn unilaterally;
and whether, on the facts, the respondents’ continued use became “unauthorised”
for purposes of section 34(1)(a) of the Trade Marks Act.
[23] The applicant bears the onus of proving that the respondents’ continued use
of the EVEXIA trade mark is unauthorised within the meaning of section 34(1)(a) of
the Trade Marks Act. Registration alone does not render every use by another party
infringing. Where the proprietor initially authorised the use , the decisive enquiry is
whether that authority was lawfully terminated.
[24] The applicant does not explain why the authority said to arise from his
shareholding ended while that shareholding continued, or on what legal basis he
could unilaterally withdraw it. Th is makes clear that the applicant’s case rests on his
status as the registered owner of the trade mark and his asserted entitlement to
withdraw consent. The issue, however, is not that straightforward.
[25] As recognised in Rage Distribution,11 the Court must determine whether the
parties commonly intended the agreement to be terminable. The respondents’
version is that use of the mark was not terminable at will and that, even if termination
was competent, it could not take effect without having taken regard to the corporate
arrangement and shareholder interests.
[26] After years of acquiescence and express acknowledgment of the
respondents’ entitlement, it may well be inequitable to allow the applicant to contend
that use by the respondents has become unauthorised, without first establishing that
that use by the respondents has become unauthorised, without first establishing that
the legal basis for that entitlement was lawfully terminated. The applicant’s own
conduct precludes him from asserting that the respondents’ continued use of the
EVEXIA trade mark is unauthorised.
11 Id paras.117-119.
9
[27] An analysis of the papers and the parties’ arguments shows that genuine and
bona fide disputes of fact exist that cannot be determined on the papers. The dispute
centres on whether the applicant was entitled to terminate consent to use the trade
mark and whether the respondents’ continued use was unauthorised. It is well
established that disputes of fact should not be resolved solely on probabilities arising
from contradictory affidavits. 12 In Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd13 it was explained that:
“… where there is a dispute as to the facts a final interdict should only be granted in
notice of motion proceedings if the facts as stated by the respondents together with
the admitted facts in the applicant’s affidavit justify such an order …”
In this instance the facts do not justify the granting of a final interdict.
[28] The terms and conditions governing use of the trade mark are disputed, and
the respondents’ continued use depends on the parties’ common intention. The
applicant persisted in contending that no bona fide dispute of fact exists, and that the
matter should be decided on the papers. Therefore, the appropriate order is that the
application is dismissed.
[29] The respondents argue that the applicant’s persistence with the application
was vexatious in the extended sense of the term. They submit that it unnecessarily
required the delivery of an answering affidavit and argument, despite the disputes
being apparent before the answering affidavit was filed. They therefore contend that
the applicant should pay costs on the attorney -and-client scale. I am however not in
agreement with the view that the application was vexatious even if the application
was ill-conceived and will therefore only grant costs on a party and party scale.
[30] The following order is made:
1. The condonation application is granted, and the respondents are to pay
the costs of that application on scale C.
2. The application is dismissed.
the costs of that application on scale C.
2. The application is dismissed.
3. The applicant is to pay the respondents costs on scale C.
12 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1162.
13 1984 (3) SA 623 (A) at 634.
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____________________________
R TOLMAY
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This judgment was prepared and authored by the judge whose name is reflected and
is handed down electronically by circulation to the parties/their legal representatives
by email and by uploading it to the electronic file of this matter on CaseLines. The
date for hand-down is deemed to be 28 August 2026.
APPEARANCES:
For the Applicant : Adv CW Pretorius
Instructed by : Hahn & Hahn Attorneys
For the Respondents : Van der Merwe and Associates
Instructed by : Adv HP Wessels
Matter heard on : 12 August 2026
Judgment date : 28 August 2026