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[2014] ZAWCHC 62
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Terespolsky and Another v Morituri Restaurant (Lakeside) and Others (107/13) [2014] ZAWCHC 62; 2015 BIP 182 (WCC) (30 April 2014)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT)
Case
No: 107/13
In
the matter between:
MICHAEL
DOV TERESPOLSKY
KINGA
JOLANTA BARANOWSKA
FIRST
APPLICANT
SECOND
APPLICANT
And
MORITURI
RESTAURANT
(LAKESIDE)
..................................................
FIRST
RESPONDENT
MORITURI
RESTAURANT (STELLENBOSCH
..................................
SECOND
RESPONDENT
ZENFER
THIRTY FIVE
CC
........................................................................
THIRD
RESPONDENT
ZALIOTONE
CC
.......................................................................................
FOURTH
RESPONDENT
DONALD
BALL
.............................................................................................
FIFTH
RESPONDENT
Coram
:
ROGERS J
Heard:
15 APRIL 2014
Delivered:
30 APRIL 2014
JUDGMENT
ROGERS
J:
Introduction
[1]
The present application was launched in
order to interdict alleged trade mark infringement and for related
relief, including an
enquiry into a reasonable royalty for the
infringing use. The relevant respondents have admitted the trade mark
infringement and
consented to the interdictory relief. However, they
oppose the ordering of an enquiry into a reasonable royalty. They
contend that
the remedy of a reasonable royalty is by statute in the
discretion of the court and that on the facts of this case the court
should
exercise its discretion against granting the remedy, thus
making an enquiry into the amount of the reasonable royalty
unnecessary.
Mr Salmon appeared for the applicants and Mr Morrissey
for the opposing respondents.
[2]
The trade mark in question is the name
‘Morituri’. On 25 January 2012 and in terms of s 17
of the Trade Marks Act
194 of 1993 (‘the Act’) the
registrar of trade marks advertised acceptance of an application by
the first respondent
(‘Terespolsky’) for registration of
the mark in Class 42 in relation to pizzeria restaurants. On 3 August
2012, and
in terms of s 27(2) of the Act, the mark was
registered in Terespolsky’s name, the registration period being
ten years
as from 21 July 2003. (Whether the registration has been
renewed beyond 21 July 2013 does not appear from the papers.)
[3]
The first and second respondents are cited
in terms of rule 14 as being respectively Morituri Restaurant
(Lakeside) and Morituri
Restaurant (Stellenbosch). It is now common
cause that the fourth respondent (‘Zaliotone’) and the
fifth respondent
(‘Ball’) are respectively the owners of
the Lakeside business and the Stellenbosch business. In law,
therefore, any
remedy to which the applicants are entitled lies
against Zaliotone (in respect of infringement relating to the
Lakeside business)
and Ball (in respect of infringement relating to
the Stellenbosch business). Zaliotone is a close corporation which is
held 50/50
by Ball and a business partner Mr AK Mueller (‘Mueller’).
The third respondent (‘Zenfer’) features in the
history
of the matter but is not controlled by any of the other respondents.
In view of the facts as they have emerged, the applicants
seek no
relief against Zenfer and it was not represented. Reference in this
judgment to the ‘respondents’ is to the
respondents other
than Zenfer.
[4]
It is common cause that prior to, and as at
25 January 2012, Zaliotone and Ball were using the name Morituri in
respect of the Lakeside
and Stellenbosch businesses respectively. It
is also common cause that, in respect of the Lakeside business,
Zaliotone continued
to use the name until 30 September 2012; and
that, in respect of the Stellenbosch business, Ball continued to use
the name until
10 January 2013 (the date on which the present
interdict application was served on the respondents). There is some
dispute as to
whether all infringement stopped on these respective
dates.
[5]
In summary, the respondents’
contention is that the remedies for trade mark infringement set out
in s 34(3) of the Act
confer on the court a discretion whether
or not to grant any particular remedy. They rely in that regard on
the phrase ‘may
grant… the following relief’. The
respondents say that the court should exercise its discretion against
the payment
of a reasonable royalty because the respondents had been
using the mark for some time prior to the advertising of acceptance
of
the trade mark application and were in essence after that time
innocent infringers who ceased their unlawful use before, or as soon
as, they learnt of the registration in Terespolsky’s favour.
The
facts
[6]
Terespolsky and his wife (the second
applicant) opened the well-known pizza restaurant ‘Col’Cacchio’
near the
Waterfront in November 1992. They subsequently granted
numerous franchises for the conducting of pizza restaurants under
this name.
[7]
In 1995 the applicants, using a close
corporation called Morituri CC (‘MC’), opened a pizza
restaurant in Claremont
with the name ‘Morituri by
Col’Cacchio’. They also opened a Morituri restaurant in
Tygervalley, using another
close corporation, Morituri Tygervalley CC
(‘MT’). They had in mind the possibility of granting
further franchises
under the Morituri name.
[8]
In 1998 the applicants caused MT to sell
the Tygervalley restaurant to new proprietors and gave them
permission to use the name
Morituri (which was not yet registered as
a trade mark) in relocated premises in Durbanville. The new
proprietors subsequently
on-sold the Durbanville Morituri to Patricia
Kitson. The Durbanville restaurant closed down several years ago.
[9]
On 13 April 2001 the applicant and MC
(their vehicle for the Claremont Morituri) concluded a written
agreement for the sale of that
business to Zenfer, a close
corporation at that time controlled by Paul Leslie, who co-signed the
agreement as surety. The sale
included the goodwill of the Claremont
business and the right to use the name Morituri, subject to the
limitations contained in
clause 11. Clause 11 recorded that there was
another restaurant business trading under the name Morituri
(presumably the Durbanville
business – the applicants state in
their founding papers that no Morituri franchises apart from
Claremont and Durbanville
have as yet been granted); that the
goodwill attaching to the name was an asset of that business; and
that the seller (MC) retained
the right to use the name in respect of
that other business and any other business it might create. Zenfer
was only permitted to
use the name Morituri in respect of the
business conducted at specified premises in Claremont. Clause 12
recorded that MC’s
members intended, either personally or
through MC or through another entity, to franchise the ‘concept
and style’ of
the business then conducted at the Claremont
premises. Zenfer was thus to limit its conduct of the business to the
leased premises
and was not permitted, directly or indirectly, to
‘deal in any know-how or concept relating to the business
(which shall
include without limitation, the name, the menu, the
method of production and presentation of the food served at the
business)’.
[10]
During 2003, and unbeknown to the
applicants, Patricia Kitson’s son, Justin, filed an application
for registration of the
mark Morituri. The applicants allege in the
present proceedings that this trade mark application was unlawfully
made, since as
at 2003 MC was the owner of the Morituri mark.
[11]
Following the sale of the Claremont
business, the applicants placed MC in voluntary liquidation, prior to
which all its rights and
obligations were allegedly assigned to the
applicants. MC was deregistered in 2004.
[12]
Paul Leslie, Zenfer’s original
controller, died during March 2005. The corporation was taken over by
his widow Frances. It
appears that the applicants took the view,
first with Paul Leslie and later with his widow, that Zenfer was not
permitted to use
the name ‘Col’Cacchio’ with
reference to the Claremont restaurant. The Leslies were willing to
give up the use
of the name Col’Cacchio provided they could
have the right to open a further outlet under the Morituri name. The
applicants
refused because they had in mind to franchise Morituri
restaurants. In 2005 the applicants launched an application to
prevent Zenfer’s
use of the Col’Cacchio name. Zenfer
subsequently terminated its use of that name, after which the
Claremont business traded
simply as Morituri.
[13]
In November 2009 Knysna Hamlet &
Recreation CC (‘ KHR’), a corporation owned by Ball’s
wife, purchased the
Claremont Morituri from Zenfer. This was the
Balls’ first connection with Morituri. Ball managed the
Claremont business for
KHR. According to Ball, the Claremont business
was not profitable at the time of its purchase. He says that he was
not aware at
that stage of the agreement which MC had concluded with
Zenfer in April 2001.
[14]
By December 2010 the Claremont Morituri had
become profitable. Ball thus decided to open a Morituri outlet in
shop 15 at the Old
Bakery complex in Lakeside together with a
business partner (Mueller), using Zaliotone as the corporate vehicle.
[15]
In early 2011 the applicants heard reports
that a pizza restaurant had been opened in Lakeside under the name
Morituri. They were
not aware that Zenfer had sold the Claremont
Morituri. They assumed that the Lakeside restaurant was operated by
Zenfer. On 14
April 2011 attorneys Knowles Husain Lindsay Inc
(‘Knowles’), acting for the applicants and MC (though the
latter had
by then been deregistered), wrote to Zenfer, alleging that
the opening of the Lakeside restaurant under the Morituri name
contravened
the agreement of April 2001. An undertaking to desist was
requested. On 19 April 2011 Chennells Albertyn Attorneys
(‘Chennells’)
replied that Zenfer was not operating any
restaurant business and in particular was not operating any such
business in Lakeside.
Zenfer was thus not in a position or under a
legal obligation to give the requested undertaking.
[16]
As it subsequently transpired, Chennells
were also the attorneys for Ball and Zaliotone. Ball says that he had
learnt of the April
2001 agreement by 19 April 2011, when his
attorneys (acting for Zenfer) responded to Knowles.
[17]
On 20 April 2011 Knowles wrote to Chennells
enquiring whether anyone directly or indirectly related to Zenfer was
conducting the
Lakeside Morituri restaurant. Chennells notified
Knowles on 26 April 2011 that they were seeking instructions from
Zenfer.
[18]
One cannot help but see this as a stalling
tactic by Ball. He knew that his wife’s close corporation, KHR,
had purchased the
Claremont Morituri from Zenfer in November 2009.
Moreover, behind the scenes Ball (through KHR) was taking steps to
see whether
he could register the Morituri trade mark. From a
document attached to the answering affidavit, it emerged that on 21
April 2011
trade mark attorneys engaged by Chennells on behalf of
Ball had reported to Chennells that there was a pending trade mark
application
in the name of Justin Kitson, which might be problematic
for a trade mark application in Ball’s name. Notwithstanding
this
warning, KHR filed a trade mark application on 26 April 2011.
This was the same date on which Chennells informed Knowles that they
were taking instructions on the question whether there was any
connection between Zenfer and the Lakeside business.
[19]
Having not heard further from Chennells,
and on the assumption that Zenfer was party to the use of the name
Morituri in connection
with the Lakeside business, Knowles on 27 June
2011 wrote directly to Zenfer alleging an infringement of the April
2001 agreement
and giving formal notice under that agreement to
remedy the breach. The applicants then ascertained that Mueller was
managing the
Lakeside business. On 30 June 2011 Knowles addressed a
further demand to him, still based on the April 2001 agreement. When
there
was no response, the applicants’ attorney phoned Mueller
who said that he was not the owner of the Lakeside business and that
he had forwarded Knowles’ letter to Ball. When Terespolsky
contacted Ball, the latter said he should deal with Ball’s
attorneys.
[20]
On 4 July 2011 Chennells wrote to Knowles
in response to the demand of 27 June 2011. Chennells said that its
client (ie Zenfer)
was not currently operating the business of a
restaurant at any premises and had no assets. Knowles were informed
that Chennells
had authority to accept service of process. Knowles
were not told that Zenfer had sold the Claremont business to KHR,
that Ball’s
wife owned KHR and that Ball managed the Claremont
business, that Zaliotone was the owner of the Lakeside business and
that Ball
owned 50% of Zaliotone.
[21]
Ball says that, in the context of the
demands made by Knowles, he took the precaution of establishing
whether the name Morituri
was registered as a trade mark in favour of
the applicants. He ascertained that there was no such registration.
(If this is a reference
to the trade mark report of 21 April 2011,
Ball would have learnt from that report that there was a pending
trade mark application,
though not in the name of the applicants but
in the name of Justin Kitson.) He also established that there were no
other restaurants
in South Africa trading under the name Morituri (ie
apart from Claremont and Lakeside).
[22]
In September 2011 the Balls caused KHR to
change its name to Morituri Restaurant CC.
[23]
In November 2011 Ball as sole proprietor
established the Stellenbosch Morituri at Wild Clover Farm just off
the R304. The applicants
do not say when they learnt of this
development.
[24]
Spurred on presumably by the opening of the
Lakeside restaurant and perhaps subsequently the Stellenbosch
restaurant, Terespolsky
took steps to have the Morituri mark
registered in his name. He must have discovered that there was a
pending application by Justin
Kitson. That application had been made
as long ago as 2003. The applicants say that Justin Kitson assigned
his pending application
to Terespolsky. It appears from a report made
by Ball’s trade mark attorneys to Chennells on 28 February 2014
that during
December 2011 Terespolsky succeeded in having himself
substituted for Justin Kitson as the applicant for registration of
the mark.
Acceptance by the registrar of this substituted application
was advertised on 25 January 2012.
[25]
In their report of 28 February 2012 Ball’s
trade mark attorneys advised Terespolsky that his application had
been provisionally
refused on the basis of Terespolsky’s prior
application. They stated that if Ball had been using the mark
Morituri for a
substantial period of time or prior to Terespolsky’s
first use, Ball could apply to have his application converted to ‘an
honest concurrent user application’ (see s 14). The cost
of this procedure was stated. The trade mark attorneys continued:
‘
Unfortunately,
as long as the abovementioned registration remains on the Register,
it will pose a direct bar to client’s application,
as the marks
are visually and phonetically similar and are used in relation to the
same services.
Please note that the
deadline for responding to the Registrar’s official action is
24 May 2012. I look forward to receiving
your further instructions
prior to this date, failing which, it will be necessary to apply for
an extension of the prosecution
period (at an additional cost) in
order to keep this application alive.’
[26]
The deadline for response was in fact 24
April 2012, being the three-month period specified in s 21 of
the Act. Ball’s
trade mark attorneys made this correction in a
letter dated 19 April 2012. They also provided cost estimates for
seeking an extension
of the objection period and for expungement
proceedings. Ball stated in his answering affidavit that, although he
was told he had
reasonable prospect of successfully expunging
Terespolsky’s substituted application, he could not afford the
cost due to
the poor performance of the Lakeside and Stellenbosch
businesses. He thus allowed his trade mark application to lapse and
did not
lodge an objection to Terespolsky’s application. As
already mentioned, the mark was registered in Terespolsky’s
name
on 3 August 2012.
[27]
Zaliotone closed the Lakeside Morituri at
the end of September 2012 due to poor trading conditions. Zaliotone
has not traded since
then and has no assets.
[28]
The present application was issued on 8
January 2013 (without further correspondence relating to the
registered trade mark) and
was served on 10 January 2013. The
respondents say that it was only on receipt of the application that
they learnt that the Morituri
mark had been registered in
Terespolsky’s name. Ball says he immediately caused the
Stellenbosch restaurant to change its
name to Wild Clover. He also
changed the theme of the restaurant from a pizzeria to a country
pub/bistro. The menus, decor, signage
and wine lists all changed. He
also instructed Inetimagery, the firm that managed the website for
the Claremont Morituri, to remove
all references on that website to
Morituri Stellenbosch.
[29]
In relation to the Lakeside restaurant, the
applicants alleged that infringing use continued beyond 30 September
2012. They referred
in that regard to Morituri signage which remained
on the external wall of the complex in which the restaurant had been
located
(the Old Bakery) and apparently also on the glass window of
the restaurant premises themselves. In his answering affidavit Ball
said that the Lakeside premises were rented by Zaliotone from a
landlord and that it was for the landlord to remove the signage
after
the restaurant closed. In a supplementary answering affidavit
delivered on 11 April 2014 Ball stated that the signage at
Lakeside
had now been removed and that a new restaurant called The Italian
Kitchen (with which the respondents had no connection)
was trading
from the premises.
[30]
In relation to the Stellenbosch restaurant,
the applicants alleged in their replying papers that particulars of
the Stellenbosch
Morituri business still appeared on the website of
the Claremont Morituri. They annexed two website printouts. They also
alleged
(based on a telephone call or calls made by their attorney)
that staff at the Stellenbosch restaurant would confirm, if asked,
that the restaurant was Morituri.
[31]
In a supplementary answering affidavit Ball
said that he had given instructions to the website manager in January
2013 to remove
all references to the Stellenbosch restaurant. He had
assumed this was done but noticed during May 2013 that there were
still some
residual references. The website manager again made
changes but failed, according to Ball to ‘remove the “Contact”
tab’ which directed a user to the pages annexed by the
applicants. Ball noticed this and again requested Inetimagery to
remove this and any other residual references. He followed this up
with the website manager on 29 September 2013. He says that the
respondents’ counsel raised the matter with him again in the
course of preparing argument. On 8 April 2014 he emailed the
website
manager in some exasperation. On the same day the website manager
tendered apologies, stating that they were under the
impression that
all references had been removed and that this had now been done.
[32]
Regarding the manner in which the
Stellenbosch staff responded to telephonic enquiries, Ball said in
his supplementary answering
affidavit that the lack of detail made it
difficult for him to answer. He stated that his restaurant’s
telephone was answered
by saying that the restaurant was Wild Clover
and that the latter was not a front for Morituri. He added that
because Wild Clover
used to be called Morituri, it would not be
unusual for that to be explained to a caller if there was a query.
[33]
On the morning of the hearing the
applicants filed a supplementary affidavit from their attorney, to
which was attached a photograph
taken on the R304 towards
Stellenbosch. This showed a brown road signboard with emblems for a
wine estate and a restaurant and
with the names ‘Wild Clover
Farm’ and ‘Morituri’. Because the respondents had
not had opportunity to answer
the implied allegation of continued
infringement, I requested counsel to place before me an agreed
statement concerning the signboard.
Although there was not complete
agreement as to what should be filed, it appears to be common cause
that the signboard is 150 m
from the entrance to the Wild Clover
farm; that it was erected prior to the institution of the current
proceedings; that it was
erected by the South African Roads Agency
Limited (‘SANRAL’) on application by Ball; that the sign
is owned by SANRAL
and is located on a road reserve owned by SANRAL;
that the respondents are not entitled without permission to interfere
with the
sign; and that neither side has requested SANRAL to remove
or alter the sign. Ball adds, in the affidavit recording these agreed
facts, that another signboard can be seen in the photograph in the
distance. The latter signboard is at the entrance to the farm
and
advertises the restaurant as Wild Clover, making no reference to
Morituri. (In the statement of agreed facts it was said that
the
SANRAL signboard was erected around the time the Stellenbosch
restaurant started trading ‘in October 2012’. I sought
clarification and was advised – by agreement – that this
was a typographical error and that the Stellenbosch restaurant
opened
in October/November 2011.)
Relevant
provisions of the Act
[34]
Section 33 of the Act states that no person
shall be entitled to institute any proceedings under s 34 in
relation to a trade
mark not registered under the Act but that
nothing in the Act affects the right of any person at common law to
bring an action
against another. (Apart from reference to the
contract of April 2001, the applicants relied only on the Act for
relief. In particular,
they did not allege passing-off.)
[35]
Section 34(1) lists the conduct which
constitutes an infringement of the rights acquired by registration of
a trade mark. In general
terms, a trade mark is infringed by the
unauthorised use, in relation to the goods or services in respect of
which the mark is
registered, of a mark which is identical or closely
similar to the registered mark.
[36]
Section 34(3) states that where a trade
mark registered in terms of the Act has been infringed, a high court
having jurisdiction
‘may grant the proprietor the following
relief, namely …’. This is followed by a list comprising
(a) an
interdict; (b) an order for removal of the
infringing mark from all material or for the delivery-up of material
from which
the mark cannot be separated; (c) ‘damages,
including those arising from acts performed after advertisement of
the acceptance
of an application for registration which, if performed
after registration, would amount to infringement of the rights
acquired
by registration’; (d) ‘in lieu of damages,
at the option of the proprietor, a reasonable royalty which would
have
been payable by a licensee for the use of the trade mark
concerned, including any use which took place after advertisement of
the
acceptance of an application for registration and which, if
taking place after registration, would amount to infringement of the
rights acquired by registration’.
[37]
Section 34(4) states that, for purposes of
determining the amount of any damages or reasonable royalty, the
court ‘may direct
an enquiry to be held and may prescribe such
procedures for conducting such enquiry as it may deem fit’.
Uncontentious
matter
[38]
It is common cause, in relation to the
Lakeside restaurant, that Zaliotone infringed Terespolsky’s
registered mark over the
period 3 August 2012 to 30 September 2012
and that Zaliotone’s use of the mark over the period 25 January
2012 to 2 August
2012 would have been an infringement of
Terespolsky’s rights if the mark been registered during that
period.
[39]
It is common cause, in relation to the
Stellenbosch restaurant, that Ball infringed Terespolsky’s
registered mark over the
period 3 August 2012 to 10 January 2013 and
that his use of the mark over the period 25 January 2012 to 2 August
2012 would have
been an infringement of Terespolsky’s rights if
the mark been registered during that period.
The
duration of the infringement
[40]
Whether Zaliotone and Ball infringed the
mark beyond the dates 30 September 2012 and 10 January 2013
respectively is in dispute.
The applicant seeks final relief. The
Plascon-Evans
rule
thus applies to material dispute of fact.
[41]
In my view, the applicants have failed to
establish an infringement beyond the dates admitted by the
respondents.
[42]
A mark is only infringed by use of the mark
in the course of trade in relation to goods or services in respect of
which the mark
is registered. Insofar as the Lakeside business is
concerned, I must accept that the restaurant closed down altogether
at the end
of September 2012. I need not decide whether the continued
depiction of a trade mark on premises belonging to a landlord after
the termination of the tenant’s lease can be said to constitute
use of that mark
by the tenant
.
It is enough to say that after 30 September 2012 the mark as it
appeared at the Lakeside premises was not used by Zaliotone ‘in
the course of trade in relation to goods or services’ in
respect of which the mark is registered. Until 30 September 2012
the
mark was used by Zaliotone in the course of its pizza restaurant
trade. After that date Zaliotone did not conduct any trade.
[43]
In regard to the Stellenbosch restaurant, I
cannot on the papers reject Ball’s version regarding the change
in the name and
style of his Stellenbosch restaurant as from 10
January 2013 and concerning the steps taken by him to remove all
reference to Morituri
from the website. While infringing use does not
require that the user should be aware that the mark has been
registered, there
cannot in my view be ‘use’ unless the
user wittingly deploys the mark. In the present case, Ball did not on
his version
intend to use the mark beyond 10 January 2013. The
references to Morituri on the website were unintended residual
references of
which Ball was not initially aware and which he took
prompt steps to excise when he became aware of them. This is
confirmed by
the fact that as from 10 January 2013 his Stellenbosch
restaurant was called Wild Clover, not Morituri. Given this change,
there
would have been no purpose in continuing to use the name
Morituri in the course of the trade of that restaurant.
[44]
The scanty allegations regarding the manner
in which the Stellenbosch restaurant’s phone was answered do
not show that Ball
was using the name Morituri in the course of the
trade of his Stellenbosch restaurant. It is not alleged that he
himself answered
the telephone in this manner authorised his
employees to do so. He stated in his affidavit the instructions his
staff had received.
At most, one might surmise that in response to a
query a random member of staff said (not inaccurately) that the
restaurant previously
traded as Morituri.
[45]
Regarding the road signboard, I am not
convinced that the late allegations in that regard should be
received. The signboard existed
prior to the launching of the present
application. A drive to the Stellenbosch restaurant would have
revealed its existence. There
is no explanation for the late adducing
of the evidence about the signboard. In any event, the parties are in
agreement that the
sign is not owned by nor under the control of
Ball. Given that his Stellenbosch restaurant is no longer even
trading under the
name Morituri, I do not consider that the continued
existence of the signboard can be said to constitute an infringement
of Terespolsky’s
mark by Ball.
[46]
Even if the matters mentioned above
constituted infringing use in relation to the Lakeside and
Stellenbosch restaurants respectively,
the use would on the facts be
so trivial and of such insignificance in relation to any trade as to
be disregarded as
de minimis
.
The
interdict
[47]
In a notice filed on 16 January 2013 the
respondents stated, after recording certain facts, that they abided
the relief sought by
the applicants in paragraph 1, 2 and 4 of the
notice of motion. Paragraphs 1 and 2 of the notice of motion sought
interdicts based
on infringing use as contemplated in paras (a) and
(b) of s 34(1). For present purposes there is no material
difference between
these two interdicts. Paragraph 4 of the notice of
motion sought to interdict contraventions of clause 12.1 of the
agreement of
April 2001.
[48]
Since Mr Morrissey for the respondents did
not in argument oppose the making of orders in terms of these
paragraphs, I shall grant
them. It may be doubted, however, whether
an interdict was warranted in relation to Zaliotone and the Lakeside
business, given
that it ceased operating more than three months
before the launching of the application and that the application was
not preceded
by any demand based on the registered mark. The
applicants knew when they launched the current proceedings that the
Lakeside restaurant
had closed though Terespolsky claimed in the
founding affidavit that it might be ‘reopened at any stage’.
[49]
It is also doubtful whether the conduct of
Zaliotone and Ball in relation to the Lakeside and Stellenbosch
businesses respectively
could be said to have contravened clause 12.1
of the April 2001 agreement. The parties to that agreement were MC,
the applicants
and Zenfer. On the assumption that the purchaser of
Zenfer’s business, namely KHR, became bound by the terms of the
agreement,
it is not apparent to me on what basis Zaliotone or Ball
likewise became bound. Clause 12.1 of the agreement was an
undertaking
by Zenfer from doing certain things directly or
indirectly, including ‘conduct or holding through a company,
close corporation,
corporate entity or agent’. The applicants
may have thought when they launched proceedings that Zenfer was
involved in the
Lakeside and Stellenbosch businesses but that was
incorrect. There is no allegation, nor does it appear to be likely,
that Zaliotone
or Ball were agents of Zenfer’s successor, KHR,
even though there was a link between them.
Removal
or delivery-up
[50]
The respondents did not, in their notice of
16 January 2014, deal with paragraph 3 of the notice of motion, which
sought relief
for removal/delivery-up as contemplated in s 34(3)(b)
of the Act. I did not understand Mr Morrissey to oppose the grant of
this relief, which he said would follow from the grant of the
interdicts.
[51]
Whether there is still in existence any
material to which an order for removal/delivery-up could apply does
not appear. Mr Morrissey
did not accept that any such material did
exist. Because the respondents did not in argument oppose the order,
I shall grant it,
but it will naturally apply only to the extent that
any such material does exist. Having regard to what I said earlier,
the order
will not apply to the signage on the landlord’s
premises in Lakeside nor to the SANRAL signboard on the R304. I have
no doubt
that the applicants will be able, with the respondents
cooperation, to have that signage removed by the relevant
controllers.
Payment
of a reasonable royalty
The
legal position
[52]
In paragraphs 5 and 6 of the notice of
motion the applicant’s seek an order directing the first and
second respondents (in
law, Zaliotone and Ball respectively) to pay
Terespolsky a reasonable royalty for their respective use of the
Morituri mark; and
an order for an enquiry into the reasonable
royalty, with directions for the conducting of the enquiry as the
court may deem fit.
[53]
If Terespolsky is entitled to a reasonable
royalty as contemplated in s 34(3)(d), s 34(4) expressly
sanctions the procedure
of ordering an enquiry into the amount of the
reasonable royalty. That is a procedure well known in the field of
intellectual property
(see
Cadac (Pty)
Ltd v Weber-Stephen Products Co & Others
2011
(3) SA 570
(SCA) paras 10-15).
[54]
Mr Salmon for the applicants argued that,
once infringing use had been established, a right to damages or, at
the election of the
proprietor, a reasonable royalty followed as a
matter of course. Mr Morrissey, on the other hand, submitted that the
liability
of the infringer for damages or a reasonable royalty was
not a strict liability. He did not argue that the proprietor needed
to
prove
dolus
or
culpa
on
the model of a delictual action. He argued instead for the existence
of an equitable discretion, based on the use of the word
‘may’
in the introductory part of s 34(3).
[55]
I was told that this is not a question on
which there is any authority in South Africa (though I was referred
to
LA Group Ltd & Another v B &
J Meltz (Pty) Ltd & Others
[2005]
JOL 15756
(T), para 59 of which perhaps suggests, albeit in brief and
oblique terms, the existence of a discretion). In England, whose
intellectual
property law has had a considerable influence on South
African law, the right of a trade mark proprietor to damages for
infringement
appears to be strict. The fact that the infringement was
innocent is not a good answer. The proprietor may, as an alternative,
claim an account of profits but this is an equitable remedy which the
court may in its discretion withhold (see
Gillette
UK Ltd & Others v Edenwest Ltd
[1994]
RPC 279
at 289-294, where the authorities are reviewed; see also
Kerly’s
The Law of Trade Marks and
Trade Names
15
th
ed (2011) paras 20-147 and 20-154; Cornish
et
al Intellectual Property – Patents, Copyright, Trademarks and
Allied Rights
7
th
ed (2010) para 2-41). An English court will generally only refuse an
enquiry into damages if it is quite clear that no damages
have been
suffered so that the enquiry would be futile.
[56]
However, English intellectual property law
does not present a consistent pattern on the question of liability
for damages. In regard
to patents, registered designs and copyright,
the relevant legislation provides for a right to damages but gives an
express defence
to an infringer who proves that at the date of
infringement he was not aware, and had no reasonable grounds for
supposing, that
the patent, design or copyright existed (see s 61
of the Patents Act of 1977, s 9(1) of the Registered Designs Act
of
1949 and s 97(1) of the Copyright, Designs and Patents Act of
1988, as discussed in
Halsbury’s
Laws of England
5
th
ed Vol 79 (2008) ‘
Patents and
Registered Designs’
paras 545 and
549,
Halsbury’s Laws of England
5
th
ed Vol 23 (2013) ‘
Copyright’
paras 953 and 966 and Cornish
op
cit
para 2-39).
[57]
The English Trade Marks Act of 1994 does
not contain a similar express protection for the innocent infringer.
However, and as far
as I can discern, the view in English law that
the innocent infringer is liable for damages is not the result of the
interpretation
of a statutory provision similar to our s 34(3)
but flows from an application to trade mark rights of the English
common law
relating to the tort of violation of another’s
property rights (see Cornish
op cit
para
2.41; in regard to the strict liability for the tort of conversion,
see
Clerk & Lindsell on Torts
20
th
ed (2010) para 17.72; and see also paras 55.01 – 55.02 for the
authors’ introductory remarks on intellectual property
rights).
English law also imposes a strict liability for the tort of
passing-off (see
Gillette UK supra
at
291-293; Wadlow
The Law of Passing-off:
Unfair Competition by Misrepresentation
4
th
ed (2011) paras 5-050 – 5-051). English law is thus not a safe
guide to the question whether liability for damages for trade
mark
infringement in South Africa is strict.
[58]
The position is complicated in England by
regulation 3(1) of the Intellectual Property (Enforcement etc)
Regulations
2006, SI 2006/1028
(‘the Regulations’), which
give effect to article 13 of the European Union’s Enforcement
of Intellectual Property
Rights Directive of 29 April 2003 (‘the
Directive’). The Directive in turn reflects the European
Union’s implementation
of the provisions of the World Trade
Organisation’s TRIPS Treaty (the Treaty on Trade-related
Aspects of Intellectual Property
Rights including Trade in
Counterfeit Goods – ‘the Treaty’). The general
effect of these instruments is to require
that the proprietor of a
trade mark be given a remedy of damages where the infringer knew or
had reasonable grounds to know that
he was infringing the registered
mark. The Treaty and Directive do not say that domestic law may not
provide for liability for
damages going beyond these circumstances;
what the instruments require is that damages should be available at
least in these circumstances.
In English law the position thus seems
to be that, where the circumstances of infringement are as described
in the Regulations,
the right to damages is governed by the
Regulations; and that in other circumstances domestic English law
will apply. As noted,
the domestic English law provides for a strict
liability for damages for infringement of trade marks, so that in
practice the Regulations
would only be germane to a claim for damages
if the method of quantification differed. The domestic law of other
countries might
limit the liability to the circumstances contemplated
in the Treaty and Directive. (See, generally, Cornish
op
cit
paras 1-23 and 2-03 and Kerly
op
cit
para 20-147.)
[59]
In South Africa there is likewise no
consistent pattern in the legislation relating to remedies for the
infringement of intellectual
property rights:
[a]Section
65(3) of the
Patents Act 57 of 1978
states that the proprietor
‘shall’ (not ‘may’) be entitled to various
remedies, of which one is damages.
But this is subject to protection
for the innocent infringer in
s 66(1)
, which is essentially the
same protection as in the English legislation previously mentioned.
[b]Section
24(1) of the
Copyright Act 98 of 1978
states that in an action for
copyright infringement ‘all such relief by way of damages,
interdict, delivery of infringing
copies … [etc] shall be
available to the plaintiff as is available in any corresponding
proceedings in respect of infringements
of other property rights’.
This appears to make the common law relating to the infringement of
property rights applicable
inter alia
to a claim for damages
for breach of copyright. However,
s 24(2)
again provides the
innocent infringer with express protection against a claim for
damages, essentially in the same terms as the
English legislation.
[c]
Section 35(3)
of the
Designs Act 195 of 1993
provides that the
plaintiff in infringement proceedings ‘shall’ (not ‘may’)
be entitled
inter alia
to damages or a reasonable royalty in
lieu of damages at the plaintiff’s option. There is no express
protection for the innocent
infringer.
[d]
Then there is s 35(3) of the Trade Marks Act, which numerically
was the immediate predecessor of the
Designs Act and
was assented to
on the same date.
Section 35(3)
uses the word ‘may’ in
relation to the listed remedies and contains no express protection
for the innocent infringer.
[60]
I mention all of this because, although the
applicants are not claiming damages but a reasonable royalty, Mr
Morrissey argued that
the entitlement to claim a reasonable royalty
‘in lieu of damages’ means that, if the proprietor cannot
show an entitlement
to claim damages, he likewise cannot claim a
reasonable royalty. His submissions were directed at showing that the
right to claim
damages was a discretionary remedy and that, if the
court would on the particular facts decline in its discretion to
award damages,
a claim for a reasonable royalty would likewise be
doomed to fail.
[61]
I do not think that this linking of the
remedies is correct. After all, the entitlement to claim a reasonable
royalty has been conferred
precisely because it may be impossible for
the proprietor to prove that he has suffered damages (see
Puma
AG Rudolf Dassler Sport v Global Warming (Pty) Ltd
2010
(2) SA 600
(SCA) para 12; see also
LAWSA
2
nd
ed Vol 29 (2013) Vol para 248). I do accept, though, that if a claim
for damages and a claim for a reasonable royalty are discretionary
remedies, the circumstances which would cause a court to withhold the
remedy of damages might also justify the withholding of the
remedy of
a reasonable royalty but this would not invariably be so.
[62]
If it were necessary to decide the question
in this case, I would be inclined to think that a claim for damages
in respect of infringing
use after registration of the trade mark is
a delictual claim and that the plaintiff would thus need to allege
and prove either
dolus
or
culpa
(this
is the view expressed in Webster & Page
The
South African Law of Trade Marks
paras
12.56 – 12.57). Whatever the position may be in English law,
our common law does not without more confer a right to
damages
against a person who has damaged or interfered with another’s
property. The defendant’s conduct must not only
be wrongful;
there must also be fault (see Van der Walt & Midgley
Principles
of Delict
3
rd
ed para 62 and note 8 read with para 103).
Section 34(3)(c)
does not
expressly exclude the common law requirements. The fact that they are
not expressly mentioned does not mean they do not
apply. A statute is
not taken to amend the common law beyond its clear terms. (Similarly,
in relation to the remedy of an interdict
mentioned in
s 34(3)(a)
,
the usual requirements for a final or interim interdict as the case
may be would need to be satisfied.) I prefer this approach
to Mr
Morrissey’s proposition that damages for infringement of a
registered mark constitute a discretionary remedy.
[63]
The position may be different if the
plaintiff additionally claims damages arising from acts performed
after advertisement of the
acceptance of his trade mark application
but prior to its registration. It is difficult to apply the delictual
analysis to that
situation because it is not
per
se
wrongful (at least in terms of the
Act) for a person to use a mark during this period. Infringement can
only occur in respect of
a registered mark (s 34(1)). On the
other hand, it would be absurd to apply strict liability to the
earlier period if the
liability after registration is fault-based.
The awarding of damages in respect of the pre-registration period,
being a remedy
of a kind which our common law would not recognise, is
more properly regarded as a matter of discretion. In other words, in
respect
of this remedy there is no reason not to give the word ‘may’
in the introductory part of s 34(3) its ordinary meaning.
[64]
Whatever the position may be in regard to
damages, I have already said that I do not accept Mr Morrissey’s
submission that
the proprietor may only claim a reasonable royalty if
he has shown an entitlement in principle to the remedy of damages.
However,
the fact that the proprietor may elect to claim a reasonable
royalty in lieu of damages does not mean that, if he makes the
election,
he must not establish whatever the Act requires for the
granting of that relief. The express conferral by s 34(3)(d) of
an
election to claim a reasonable royalty in lieu of damages means
[i] that the proprietor is given a remedy which he would not
at
common law have had; [ii] that the proprietor cannot be required
to prove damages; [ii] and that if he elects to claim
a reasonable
royalty he cannot concurrently claim damages. (In English trade mark
and passing-off law the position is similar.
The plaintiff may elect
to claim damages or an account of profits but not both. The fact that
he may claim an account of profits
in lieu of damages does not mean
that the court must order an account of profits. As noted, the right
to an account of profits
is regarded as a discretionary equitable
remedy which might be refused in circumstances where damages could
not be refused.)
[65]
Since the claim for a reasonable royalty
(both post-registration and during the pendency of the advertised
application) is a remedy
which would not exist at common law, I
see no reason not to give the word ‘may’ in the
introductory part of s 34(3)
its usual meaning of conferring a
discretion. Since the claim does not constitute delictual relief,
fault in the form of
dolus
or
culpa
cannot be made a formal requirement of the claim. The question would
be whether it is just and equitable in all the circumstances
to allow
the proprietor to recover a reasonable royalty from the infringer.
The fact that the infringer perpetrated the infringement
with a state
of mind which could be equated to
dolus
or
culpa
might be relevant to this enquiry but
would not be dispositive. I can conceive of circumstances in which a
claim for a reasonable
royalty might justly lie against an innocent
infringer.
[66]
The procedural power of the court to order
an enquiry into a reasonable royalty and to prescribe procedures for
the conducting of
the enquiry, as conferred by s 34(4), is
clearly discretionary. If the court decided that the proprietor was
in principle
not entitled to a reasonable royalty, no enquiry would
be ordered. However, and even if the court considers that the
proprietor
is or may be entitled to a reasonable royalty, the court
is not bound to order an enquiry into damages and give directions;
the
court may leave the proprietor to his ordinary remedy of issuing
summons.
The
claim against Zaliotone (Lakeside)
[67]
In regard to the Lakeside restaurant,
Zaliotone only infringed the registered mark over the period 3 August
2012 to 30 September
2012, a period of slightly less than two months.
[68]
Zaliotone also used the mark between the
period 25 January 2012 and 2 August 2012. On about 28 February 2012,
when Ball’s
trade mark attorneys made their report of that
date, Zaliotone would have learnt that there was a pending trade mark
application
in Terespolsky’s name. It might thus be said that
for about five months Zaliotone ‘took a chance’. Ball has
stated,
however, that he received advice that he had reasonable
prospects of successfully expunging Terespolsky’s application
(and
presumably of successfully opposing the application prior to
registration of the mark). He decided not to take active steps
because
he could not afford the costs.
[69]
In regard to the use of the mark over the
period 25 January to 2 August 2012, a relevant consideration is that
Zaliotone did not
start using the mark only after Terespolsky’s
trade mark application was advertised. Zaliotone opened the Lakeside
restaurant
in December 2010. By the time Zaliotone became aware of
Terespolsky’s application on 28 February 2012, Zaliotone had
been
trading in Lakeside under the Morituri name for about 15 months.
Insofar as trade mark relief is concerned, the use during that
period
was not unlawful. It seems unduly harsh to say that a party in
Zaliotone’s position should, on learning of Terespolsky’s
advertised application, have changed the name of its business,
including all signage, menus and other documentation on which the
name appeared, pending a decision by the registrar of trade marks as
to whether to grant Terespolsky’s application.
[70]
On the respondents’ version, the
Lakeside business closed in September 2012 because of poor trading
conditions. Zaliotone
has since then not traded and has no assets.
[71]
In the light of the circumstances I have
summarised, I do not think the court should exercise its discretion
in favour of ordering
an enquiry into a reasonable royalty. There is
no evidence that over the period 25 January to 30 September 2012 the
use of the
name Morituri would have substantially enhanced the
trading prospects of the Lakeside business. The Durbanville Morituri
had already
closed. The Morituri name was only in use in relation to
the Claremont business, which as from 30 April 2009 was conducted by
KHR
(effectively the Balls). The royalty payable for the use of a
trade name in these circumstances in relation to a restaurant which
struggled financially and which closed barely two months after the
mark was registered is likely to be trivial. The applicants
have not
provided any information to indicate that the royalty will be
substantial. I have indicated why, at least
prima
facie
, it may not be just to award a
royalty in respect of the period 25 January to 2 August 2012. And the
proposed target of the claim
is a corporation which has no assets.
[72]
It is not my intention to render
Terespolsky’s claim against Zaliotone for a reasonable royalty
res judicata
.
The position is that I am not satisfied on the papers that a royalty
should be awarded or that the amount of the royalty would
be
sufficiently substantial to warrant the legal costs and the use of
court time. The applicants, having considered the content
of this
judgment, may yet decide to issue summons against Zaliotone for a
reasonable royalty. In considering the implications of
this judgment,
the applicants will need to take into account my finding that
Zaliotone’s infringement ceased on 30 September
2012.
The
claim against Ball ((Stellenbosch)
[73]
The Stellenbosch restaurant stands on a
somewhat different footing. Ball used the Morituri mark for more than
five months after
it was registered (ie over the period 3 August 2012
to 10 January 2013). He was aware of Terespolsky’s pending
trade mark
application. He says that he was not aware until 8 January
2013 that Terespolsky’s trade mark application had succeeded.
However, since he knew it was pending and because he himself did not
lodge any objection, it was not unreasonable to expect him
to monitor
the situation. His use of the mark as from 3 August 2012 thus appears
to have been a result of his ‘closing his
eyes’ to the
probable position or at least negligent.
[74]
While this may also be said of Zaliotone in
regard to the Lakeside restaurant, Ball used the Morituri name for a
longer period after
registration, a period which included the
normally lucrative festive months. Furthermore, although Ball says
that the Stellenbosch
restaurant still trades at a loss, he clearly
considers it worth the while to continue conducting it with a view to
future profit.
We know as a fact that Ball only ceased using the name
Morituri in relation to the Stellenbosch restaurant after receipt of
the
present application. Thereafter he has continued operating the
restaurant but under a different name and style. The Lakeside
restaurant,
by contrast, was closed because of poor trading
conditions, ie for reasons unrelated to any concern about the use of
another’s
mark.
[75]
There is the further distinction that
Zaliotone opened the Lakeside restaurant in December 2010, prior to
the exchange of correspondence
between Knowles and Chennells over the
period April - July 2011 and prior (on his version) to Ball learning
of the April 2001 agreement.
By contrast, Ball opened the
Stellenbosch restaurant in November 2011, after the correspondence
had been exchanged and after he
had learnt of the April 2001
agreement. Although Knowles did not base the applicants’
demands on trade mark rights, the agreement
and correspondence would
have alerted Ball to the existence of a claim by the applicants to
the right to the name Morituri. He
had also been warned by then that
his own trade mark application might face difficulties in view of
Justin Kitson’s pending
trade mark application. In the face of
this knowledge, he nevertheless chose to open the Stellenbosch
restaurant under the Morituri
name. It would have been open to him to
choose a different name. In the case of the Lakeside restaurant, by
contrast, Zaliotone
would have had to change an existing name.
[76]
Terespolsky’s claim to a reasonable
royalty against Ball thus has
prima
facie
merit and the recoverable amount
may be sufficiently material to justify an enquiry. I emphasise that
this would be in respect of
the infringement as determined in this
judgment, ie up to 10 January 2013.
[77]
The question arises whether I should now
finally determine that Terespolsky is entitled to a reasonable
royalty, leaving only the
quantum to be investigated; or whether I
should also leave open the antecedent question whether the discretion
should be exercised
in Terespolsky’s favour at all. Section
34(4) states that the court may direct an enquiry ‘for purposes
of determining
the amount’ of the damages or reasonable
royalty. The anterior question whether the discretion should be
exercised in favour
of the proprietor is not mentioned. However, in
the
Cadac
case
supra
Harms
JA explained that, quite apart from statute, the court has the power
to regulate its own process by directing an enquiry into
damages and
that courts often separate issues of liability and quantum (paras
12-13). This procedural power is fortified by the
provisions of rule
33(4).
[78]
I thus consider that I am entitled to make
an order which will cover the question whether the court should in
its discretion award
a reasonable royalty to Terespolsky and the
further question, if the first is answered affirmatively, as to the
quantum of the
reasonable royalty. I should add that the two
questions are not necessarily independent of each other. If the facts
indicate that
the quantum of the reasonable royalty is likely to be
very low and disproportionate to the cost of finally determining it,
a court
might – in conjunction with other circumstances –
decide in its discretion to make no award at all.
Costs
and order
[79]
Although Zaliotone has not opposed the
grant of interdicts, I have explained that the launching of an
application for interdictory
relief against it may not have been
justified. I thus do not intend to make any order against Zaliotone
insofar as the interdictory
relief is concerned.
[80]
Although Zaliotone has succeeded in warding
off a claim at this stage for a reasonable royalty, it may yet face
such a claim. Zaliotone
did as a fact infringe Terespolsky’s
mark, albeit for a short period. I thus intend to make no costs order
as between the
applicants and Zaliotone insofar as the claim for a
reasonable royalty is concerned.
[81]
For reasons which will be apparent, I
consider that Terespolsky was entitled to seek interdictory relief
against Ball. Since Ball
did not oppose that relief, I think he
should pay Terespolsky’s costs of seeking the interdictory
relief on an unopposed
basis.
[82]
In regard to the claim against Ball for a
reasonable royalty, it may yet transpire that the court will decline
in its discretion
to award a royalty in favour of Terespolsky. If an
award is made but only in a very modest sum, this might also
influence the costs
order. I appreciate that s 34(3) may have
the effect that only a high court can award a reasonable royalty,
even if the quantum
is within the jurisdiction of the magistrate’s
court. Nevertheless, a court awarding a very modest amount as a
reasonable
royalty may consider that the claim should not have been
pursued at all, and this might have a bearing on costs.
[83]
I thus propose to direct that the costs
incurred thus far by Terespolsky and Ball in relation to the
reasonable royalty claim should
stand over for determination in the
further proceedings.
[84]
I make the following order:
[a]
The fourth and fifth respondents, in their capacities as owners of
the businesses cited as the first and second respondents
respectively, are interdicted from using the trade mark Morituri in
relation to pizzeria restaurants and thereby infringing trade
mark
registration number 2003/12164 Morituri in Class 42 as contemplated
by s 34(1)(a) of the Trade Marks Act 194 of 1993
(‘the
Act’).
[b]
The fourth and fifth respondents, in their said capacities, are
interdicted from using the trade mark Morituri in relation to
services which are similar to those of pizzeria restaurants and
thereby infringing the said trade mark registration as contemplated
by s 34(1)(b) of the Act.
[c]
The fourth and fifth respondents are directed to take steps forthwith
to remove the trade mark Morituri from all material in
their
possession or under their control; and, where the mark is incapable
of being removed from the material, to deliver such material
to the
first applicant care of Knowles Husain Lindsay Inc, 10
th
floor, 2 Long Street, Cape Town.
[d]
The fourth and fifth respondents are interdicted from using any
know-how or concept relating to the Morituri restaurant business
as
contemplated in clause 12.1 of the agreement annexed as ‘D’
to the founding affidavit of the first applicant.
[e]
No order is made on the application against the fourth respondent to
pay a reasonable royalty as contemplated by s 34(3)(d)
of the
Act, the first applicant’s right to institute separate
proceedings for such relief being preserved.
[f]
In regard to the first applicant’s claim against the fifth
respondent, in his capacity as the owner of the business cited
as the
second respondent, to pay a reasonable royalty as contemplated by
s 34(3)(d), an enquiry is to be held for purposes
of determining
the following questions:
(I)
whether the court should exercise its discretion in favour of
awarding a royalty to the first applicant at all;
(ii)
if so, the amount of a reasonable royalty,
such
enquiry to relate to the infringement as determined in this judgment,
namely the use by the fifth respondent of the name Morituri
in
relation to the business cited as the second respondent up until 10
January 2013.
[g]
The following directions are given regarding the said enquiry:
(I)
The first applicant is to deliver a declaration within 20 days
hereof.
(ii)
Thereafter the Uniform Rules of Court applicable to trial actions
shall apply.
[h]
No order as to costs is made in regard to the proceedings thus far
between the applicants and the fourth respondent.
[I]
The fifth respondent shall pay the applicant’s costs of seeking
the relief set out in paragraphs 1 to 4 of the notice
of motion on an
unopposed basis, to the extent that such relief relates to the
conduct of the business cited as the second respondent.
[j]
The costs incurred thus far by the first applicant and the fifth
respondent (in his capacity as the owner of the business cited
as the
second respondent) in relation the relief claimed by the first
applicant in prayers 5 and 6 of the notice of motion shall
be
determined in the enquiry contemplated in para [f] above.
_____________________________
ROGERS
J
APPEARANCES
For Applicants: Mr
Owen Salmon
Instructed
by:
Knowles
Husain Lindsay Inc
10
th
floor, 2 Long Street
Cape
Town
For First, Second,
Fourth
&
Fifth Respondents: Mr Andrew Morrissey
Instructed by:
Chennells Albertyn
18A Greenwich Grove
Station Road
Rondebosch