Azisa (Pty) Ltd v Azisa Media CC and Another

• Jurisdiction: South Africa
• Citation: 2002 (4) SA 377 (C)

Azisa (Pty) Ltd v Azisa Media CC and Another
2002 (4) SA 377 (C)

2002 (4) SA p377

Citation	2002 (4) SA 377 (C)
Case No	6215/2000
Court	Cape Provincial Division
Judge	Nel J
Heard	October 15, 2001
Judgment	November 27, 2001
Counsel	M J Fitzgerald SC (with him M W Janisch) for the applicant.; A C Oosthuizen SC for the first respondent.; No appearance for the second respondent.

Flynote : Sleutelwoorde B

Close corporation — Formation and constitution — Registration of name — Order in terms of s 20(2)(b) of Close Corporations Act 69 of 1984 that name be changed on grounds that it is undesirable — Undesirability of name often obvious, such as name identical to name already registered, name suggestive of blasphemy or indecency or which causing offence to any person or class of persons, or name calculated to cause damage to any other company or person — No C hard and fast rules to be applied to ascertain whether name 'desirable' or not — Views differing depending on degree of similarity of names, likelihood of confusion and business activities of parties — After consideration of particular circumstances of matter and names under consideration found that name of respondent as registered not undesirable but abbreviation thereof was — Respondent D prohibited from using any abbreviated form of registered name.

Close corporation — Formation and constitution — Registration of name — Order in terms of s 20(2)(b) of Close Corporations Act 69 of 1984 that name be changed on grounds that it is undesirable — Application for — When to be brought — Respondent's E founding statement registered on 28 August 1998 and applicant's application issued and served on 28 August 2000 — Respondent, using civil method of computing time, arguing that application out of time as section providing that application to be brought 'within period of two years after registration of founding statement' — When attempting to ascertain intention of Legislature, words used to be F attributed their 'ordinary meaning', 'popular meaning', 'literal meaning', 'plain meaning' or 'grammatical meaning' — Words further to be read in context they used, having regard to other sections of Act, Act as whole and other similar legislation — Ordinary, popular, plain or grammatical meaning of word 'after' in relation to occurrence of event only able to refer to period of time which G commencing after event having occurred — Period of two years in which applicant able to approach Court for relief expiring on 28 August 2000, meaning that application brought in time.

Headnote : Kopnota

The applicant brought an application in terms of s 20(2)(b) of the Close Corporations Act 69 of 1984 for an H order directing the first respondent to change its name on the grounds that the name was undesirable. The applicant had been incorporated in 1993 and operated as a professional consulting and contracting company specialising in assisting organisations in network development and software development. Its business was largely conducted by means of the internet. The 'Azisa' name had been used I exclusively and predominantly with regard to all company activities and had allegedly acquired a substantial amount of goodwill. When applicant attempted to register the internet domain name 'azisa.com', its request for registration was denied. At that stage it became aware of the existence of the first respondent, which had already registered the 'azisa.com' domain name. This domain name pointed to the first respondent's web site, which J

2002 (4) SA p378

was still under construction. The applicant submitted that the Registrar had erred in registering the A name of the first respondent as it wholly incorporated the applicant's name. It was further submitted that there existed a very real likelihood of confusion arising because of the similarity of the names. The applicant contended that the first respondent had, by registering the domain name, blocked any attempts by the applicant to utilise its own name in the furtherance of its business. There was also the possibility that the applicant's customers could become confused, B when attempting to visit the applicant's web site by entering the domain name 'azisa.com' and instead accessing the first respondent's web site, into thinking that the parties were associated with each other. The applicant contended that this overall result was undesirable.

The first respondent averred that it was not carrying on business in the field of network deployment and software development but in C advertising. It and the applicant therefore had no common field of business activity. It alleged that the choice of name had been a long process, involving searching dictionaries for a suitable name to employ in the advertising industry. As 'azisa' was stated to mean 'cause to know, acquaint, announce, notify' and 'to advertise' in Xhosa and Zulu, it was regarded as an appropriate name in the circumstances. The D choice of name had nothing to do with the applicant's business. The first respondent contended that it had launched and operated its business very successfully without any reference to the applicant or in any way representing that it was in some way connected with the applicant. E

The first respondent submitted as a preliminary point that the application had been brought out of time, its founding statement having been registered on 28 August 1998 and the application issued and served only on 28 August 2000. Section 20(2)(b) of the Act provided that the application for an order directing the change of an undesirable name had to be brought 'within a period of two years after the registration of the founding statement'. The first F respondent argued that the civil method of computing time applied, ie including the first day and excluding the last day, and that, accordingly, the application had been brought out of time. The applicant argued that recourse to the civil method of computation of time was only permissible when the wording was ambiguous. It contended that the word 'after' was not ambiguous and had been determined to mean that if time was to run 'after' the occurrence of an event, the G time began to run with the advent of the day after the event.

Held, that when attempting to ascertain the intention of the Legislature, the words used had to be attributed their 'ordinary meaning', 'popular meaning', 'literal meaning', 'plain meaning' or 'grammatical meaning'. The words also had to be read in the H context they were used, having regard to the other sections of the Act, the Act as a whole and other similar legislation. (At 385C/D - D and 385J - 386A.)

Held, further, that the language of the statute was unambiguous, its meaning clear, and it did not lead to any absurdity so glaring that it could never have been contemplated by the Legislature. The ordinary, popular, plain or grammatical meaning of the word I 'after' in relation to the occurrence of an event could only refer to a period of time which commenced after the event had occurred and could not include a period of time 'before' the event had occurred. There was further no contrary intention discernible when regard was had to other sections of the Act, the Act as a whole or similar legislation. (At 387C/D - D, C - C/D and D - E.) J

2002 (4) SA p379

Held, accordingly, that the period of two years in which the applicant could approach the Court for relief expired on 28 August A 2000, which meant that the application had been brought in time. (At 389A/B - B.)

Held, further, that the undesirability of a name would often be obvious, such as a name identical to a name already registered, a name suggestive of blasphemy or indecency or which would cause offence to any person or class of persons, or a name which was calculated to cause damage to any other company or person. However, B there were no hard and fast rules to be applied in ascertaining whether a name was 'desirable' or not. Views differed depending on the degree of similarity of the names, the likelihood of confusion and the business activities of the parties. (At 391B/C - C and 396C - D.)

Held, further, that in the determination of the matter it had to be taken into account that the name 'Azisa (Pty) Ltd' had been registered in 1993 and that the applicant had since then built up a C very successful business under that name; that the name 'Azisa Media CC' had been registered in August 1998 and that the first respondent had also built up a successful business under that name; that the first respondent had started using the abbreviated name 'Azisa' in 2000; that the parties did not compete in the same commercial environment or market place; that, although the parties respective clientele were sophisticated enough not to be easily misled D by the similarity of the two registered names, the general public could be confused by the similarity; that the registered names shared the word 'Azisa' but were not identical or very similar; that the use by the first respondent of the abbreviated name 'Azisa' on the internet would in all likelihood lead to confusion and inconvenience; and that there was no reasonable necessity for the first respondent to use the word 'Azisa' as a name and would suffer no particular E inconvenience should it be prohibited from doing so. (At 396D - I.)

Held, accordingly, that the first respondent's name as registered was not undesirable but the abbreviation 'Azisa' was. The first respondent was accordingly to be prohibited from using such abbreviation. The first respondent was also to be interdicted from using the abbreviated name 'Azisa Media' except where the word F 'Media' appeared printed in at least one-third size of the word 'Azisa'. (At 396I - I/J.)

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