CASE LAW UPDATE

Facts: In 2022, the applicants were charged with fraud. The charge emanated from an allegation against the applicants that they misrepresented themselves as duly authorized members of the Middleburg & Hendrina Residents Front political party during a local government election. They allegedly delivered an amended election list to the IEC which was not authorized by the Executive Committee of the Party. In 2024 the Acting DPP for Mpumalanga declined to prosecute the applicants. A nolle prosequi certificate was issued in terms of section 7(2)(a) of the Criminal Procedure Act 51 of 1977 (CPA). The respondent in his capacity as a private prosecutor issued a summons in the Regional Court instituting a private prosecution against the applicants in terms of section 7(1) of the CPA. According to the charge sheet, the applicants were charged on three counts, namely: fraud and contravening certain sections of the Electoral Act 73 of 1998.

Application: The applicants were summoned to appear at the Regional Court. They approached this court on an urgent basis seeking an order setting aside the summons instituting private prosecution and an order interdicting and restraining the respondent from re-instituting similar proceedings in the future.

Locus standi: The applicants contend that in terms of section 7(1)(a) of the CPA, the respondent is obliged to prove some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the offence. The person who incurred losses are candidates of the party whose names were allegedly unlawfully removed from the list. The party itself might have suffered loss as a result of the change of its candidate list. The injury was not suffered by the respondent in his personal capacity. His complaint as set out in his answering affidavit is based on his perceived threat that he could be held liable for the losses incurred by the candidates. This perceived eventuality may or may not even happen. Although the respondent, as the Secretary General of the Party, may have been aggrieved by the actions of the applicants in submitting the incorrect list to the IEC, this does not qualify as a personal injury as envisaged by section 7(1)(a) of the Act.

Further issues: The charge sheet bears additional charges for contravening sections of the Electoral Act 73 of 1998. No such charges appear on the nolle prosequi certificate. Section 7(2)(a) of the CPA limits the charges that the private prosecutor can prefer on the applicants to the specific charges indicated in the nolle prosequi certificate, in casu, a charge of fraud. The charges in count two and three of the charge sheet are unlawful and should be set aside. The nolle prosequi certificate was also not attached to the summons when the summons was served on the applicants. The private prosecution amounted to an abuse of court process. This is aggravated by the fact the respondent even went further to prefer additional charges that were not part of the nolle prosequi certificate.

Order: The summons for the purpose of instituting private prosecution against the applicants is declared to be unlawful, unconstitutional, invalid and set aside. The respondent is interdicted from re-instituting the private prosecution of the applicants. The respondent is ordered to pay the applicants' costs on an attorney and client scale.

BHENGU AJ

Facts: The applicant is a producer of alcoholic beverages including the AMARULA Cream Liqueur. The respondent trades in the liquor and retail products industry, including cream liqueur. The respondent intends to commence the production of a marula cream liqueur under the trade mark AFRULA and utilizing the AFRULA getup. The respondent has indicated that the product is currently not available in the South African market. As a result of the respondent having filed its application for the registration of the trade mark AFRULA, this forced the applicant to seek interdictory and ancillary relief. It is the applicant’s case that the trade mark AFRULA is confusingly or deceptively similar to the applicant’s registered trade marks AMURULA and AMARULA, and is likely to result in deception and confusion amongst members of the public, between goods bearing the parties’ respective trade marks. On both products, the parties’ respective trade marks AMARULA and AFRULA appear prominently.

Application: The applicant, as the proprietor of multiple trade mark registrations for the mark AMARULA or marks incorporating AMARULA, seeks the intervention of this court to restrain the respondent from infringing its rights, which have been acquired through statutory provisions and the common law.

Discussion: On the AMARULA product, the elephant themed device appears directly below the AMARULA trade mark. On the respondent’s label, there appears to what the applicant sees as a side profile of an elephant head or as respondent puts it, an “African woman”. This would not be immediately apparent to the consumer upon encountering the respondent’s product. The applicant contends that a consumer will upon first impression be confronted with the mark AFRULA, combined with an elephant device used in relation to a liqueur product, against a background of a distinctly African motif. As a result of this impression the applicant’s case is that the respondent has essentially replicated the primary components of the applicant’s African-themed AMARULA get-up, namely the AMARULA mark and the ELEPHANT device. The respondent’s belief is that that there can be co-existence in the market place for both marks. The similarities in the marks of the parties are sufficiently alike under the provisions of section 34(1)(c) of the Trade Marks Act 194 of 1993. Not only are the marks similar, it is a fact that the mark is intended to be used in relation to the same goods in respect of which the mark AMARULA has achieved recognition and has become well-known.   Therefore, the test of an easily recognisable similarity between the two marks is met.

Findings: The applicant has established the likelihood that the respondent's use of the mark AFRULA is in direct competition with it in the same market. The respondent's mark AFRULA bears a striking resemblance to the applicant's mark AMARULA. In assessing both parties' get-ups, these marks constitute the most prominent element. What the respondent does not appear to accept is that the applicant “Amarula” is a brand in South Africa and reported as market leader with its award winning “Amarula Cream Liqueur” and presently holds a dominant share in the market. In the minds of the reasonable consumer, the respondent’s conduct in making use of the AFRULA get up does not overcome the general visual impression of similarity. The nature of the confusion or deception is likely to divert business away from the applicant, which could potentially result in a loss of its market share. The applicant has satisfied the requirements that it has a clear right, and that the infringement of such right causes it potential harm. Therefore, the applicant has met the test for reasonableness of the apprehension of prejudice or harm.

Order: The respondent is interdicted and restrained from infringing the applicant’s registered trade marks.

PARKER AJ

Facts: Mr Manoto was employed by the applicant as a semi-skilled welder. Manoto was charged with two counts of misconduct. The first charge related to gross insubordination in that Manoto refused to comply with two direct, reasonable and lawful instructions, from the mine manger to attend the Department of Mineral Resources inspection, for which he was the organized labour representative. The second charge related to a refusal to comply with a reasonable and lawful instruction, given on both days by the mine manager, to attend re-certification training for scaffolding. Manoto said to Daffue that he would not attend the meeting as the members of AMCU instructed him not to. Manoto was dismissed for gross insubordination. Manoto referred an unfair dismissal dispute to the CCMA.

Application: The commissioner found that the dismissal of the respondent was procedurally fair but substantively unfair. This is an application in terms of which the applicant seeks an order reviewing and setting aside the arbitration award.

Discussion: Mr Daffue was the main witness of the applicant. He testified that he was the mine manager and the most senior person on site. It was common cause that an instruction was given to Manoto to attend the inspection with the DMR. Manoto said to Daffue that he would not attend the meeting as the members of AMCU instructed him not to. The commissioner found that Daffue did not have the requisite authority to give such an instruction to the applicant. The commissioner’s finding is not reasonable. Manoto has been attending these meetings since 2017 while he was a member of NUM and later as a member of AMCU. Manoto did not provide evidence corroborating his contention that he was not mandated to attend the meeting and for what reason. At best, Manoto should have attended the meeting and advised everyone concerned that he would not participate as an AMCU representative, alternatively, informed Daffue that he had been instructed not to attend the meeting for whatever reasons he could provide from his members. To simply refuse and not provide a reason is insubordination. In relation to the second charge, the commissioner found that Manoto’s refusal was serious but not persistent or deliberate because he gave reasons why he was not going to attend the training.

Findings: The commissioner ruled that the applicant was guilty of insubordination but that it was not gross insubordination. The commissioner’s finding is not reasonable. The commissioner failed to consider the evidence of Daffue and Mokhethi. They both testified that Manoto did not give any reason for not attending the re-certification training. This version was not put to both of them during their cross-examination. The commissioner’s finding that scaffolding does not form part of Manoto’s core functions and that his evidence was undisputed is not substantiated and is unreasonable. Manoto gave contradictory versions, and the commissioner failed to consider these facts. Even if court were to accept that there were unresolved grievances, and with references to the correspondences, the parties were still engaging. There was accordingly no basis for Manoto not to attend the training. His conduct was gross insubordination, persistent and wilful. The sanction of dismissal was an appropriate sanction. Manoto’s conduct amounts to gross insubordination.

Order: The arbitration award is reviewed, set aside and replaced. The dismissal of Manoto was substantively fair.

BALOYI AJ

Facts: Mr Beukman (applicant) is the eldest son of the deceased and is a co-beneficiary to the will of the deceased, together with Ms Loubser (second respondent). At the time of his death, the deceased was involved in life-partnership with the second respondent. Although the deceased previously executed other wills, the one which was later accepted by the Master uncontested provides for Ms Pieterse (first respondent) and the second respondent to be appointed as executors. The applicant’s complaint is that, despite repeated requests, the executors have failed to take the prescribed steps in the furtherance of the administration of the deceased estate, and specifically the lodgement of the liquidation and distribution account. Neither have they provided the applicant with requested banking and accounting documents relating to the estate, specifically in relation to a guesthouse which continues to operate at the property of the deceased as an Air B&B business.

Application: The applicant seeks the removal of the first and second respondents as executors of the estate of the late Mr Beukman and an order directing the Master to appoint a new executor. The applicant’s view is that the second respondent has a conflict of interest between her duties as an executor and her interests as a beneficiary because she continues to reside at the property which is owned by the deceased estate and continues to earn an income from the Air B&B business, at the expense of the applicant, who is the only other beneficiary in terms of the will.

Discussion: At the heart of the dispute between the parties is the interpretation of the provisions of the will, according to which, the guesthouse is to continue to be run in the same way as it has been since inception. There is a way to interpret the will in such a manner that the business continues to run, operated and occupied only by the second respondent. In such event, each beneficiary receives their share of the income generated from the business, but in addition, the second respondent occupies the property for free. The second respondent’s alleged ownership of the guesthouse is neither supported by the terms of the will, nor by any evidence before the court. The applicant has requested information relating to the income of the guesthouse for a long time before instituting these proceedings, with the second respondent refusing to give such account, on the basis that the income is hers to retain.

Findings: The facts indicate that the second respondent harbours a clear conflict of interest and is intransigent with regard thereto. No legal basis is revealed in the evidence for the second respondent’s claim to retain the guesthouse income. It would be just an equitable for the second respondent to be removed as an executor. Her interests as a beneficiary in this matter are interfering with her duties as an executor. It is evident that there has been a complete breakdown of trust between the applicant and the respondents, and he has lost all faith in them as executors. The first respondent has failed to display impartiality in keeping with her fiduciary duties, and has instead enabled the second respondent’s conduct, which the applicant regards as rubber-stamping. The view held by her, in support of the second respondent, that the income of the Air B&B belongs to the second respondent and not the deceased estate, is contrary to the clear terms of the will.

Order: The first and second respondents are removed as executors of the deceased estate of the late Mr Beukman. The Master is ordered to appoint a new executor within 30 days. The first and second respondents are to pay the costs on an attorney and own client scale.

MANGCU-LOCKWOOD J