Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Ngcobo CJ, Brand AJ, Cameron J, Froneman J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J
• Judgment Date: 02 September 2010
• Citation: 2011 (1) SA 267 (CC)
• Docket Number: CCT 59/2010
• Hearing Date: 02 September 2010
• Counsel: No counsel supplied
• Court: Constitutional Court

The court:

Introduction H

[1] This is an application for leave to appeal to this court against an order of the full court of the North Gauteng High Court, Pretoria (full court). The order was made in an appeal brought by the applicants (Stuttafords I and The Gap) against the refusal by a High Court judge (Basson J) to recuse himself from any further proceedings in a matter in which he had handed down judgment on 28 May 2007 (main judgment). The application for leave to appeal to this court is opposed by the respondents (Salt).

[2] The recusal application was based on the contention that the main J judgment exhibited little or no sign of any original or independent

The Court

application and reasoning, that it essentially copied the written heads of A argument of Salt's counsel and, consequently, created a perception of bias in favour of Salt. Basson J refused to recuse himself. The full court dismissed the appeal against his refusal. The present application seeks to have the recusal issue reconsidered on appeal by this court.

[3] The application must in our view be refused because it is not in the B interests of justice for this court to hear the matter; but this outcome should not be seen as an endorsement of the main judgment. We shall first set out why we consider that it is not in the interests of justice to grant leave to appeal and then make some brief comments on the main judgment.

Interests of justice C

[4] The Gap and Salt have been locked in litigation about the use of the trademark GAP for more than a decade. Before 1994, The Gap did not trade in South Africa. Salt had registered the GAP trademark in its name, D but in 2005 the Supreme Court of Appeal expunged Salt's registered trademark on the basis of non-use. [1] The Gap then took steps to appoint a South African retailer and, in March 2007, Stuttafords commenced selling GAP merchandise in South Africa. Having lost trademark protection, Salt then turned to passing-off as a weapon to continue the battle. It brought an interim application for an order interdicting The E Gap and Stuttafords from trading in GAP merchandise, pending finalisation of the main application for final relief in that regard. On 28 May 2007 Basson J granted the relief sought. It is that judgment that is said to have created a perception of bias.

[5] On 29 May 2007 an application for leave to appeal against the merits F of the main judgment was lodged. This appeal has apparently not yet been heard. Shortly thereafter, on 11 June...