Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Wessels JA, Trollip JA, Muller JA, Corbett JA and Galgut JA
• Judgment Date: 25 March 1976
• Citation: 1976 (2) SA 930 (A)
• Hearing Date: 01 March 1976
• Court: Appellate Division

Wessels, J.A.:

Appellant is (and has at all material times since

September 1966 been) the owner of a steakhouse business carried on in premises at 4 Burnside Road, Tamboerskloof (a suburb of Cape Town). A rectangular neon-sign, mounted outside the entrance to the steakhouse, advertises the name thereof as being the 'Bar-B-Que Steakhouse'. It is common cause that 'Bar-B-Que' is a corrupt spelling of the word 'barbeque'. The word 'Bar-B-Que' is superimposed on a design representing sosaties on a

Wessels JA

skewer. Prior to March 1970, Mr. Hans Stahr was the manager of, and had a financial interest in, appellant's business. He was responsible for the design of the neon-sign referred to above. During March 1970 Stahr disposed of his interest in appellant to Mr. J. J. du Preez for the sum A of R35 000. The only term of the contract entered into by the parties which is possibly relevant hereto, reads as follows:

'13. The seller shall not for three years from the date hereof without the purchaser's written consent directly or indirectly carry on or be connected or interested in the business of a restaurateur, steakhouse or a catering business within six miles radius from the business known as B The 'Bar-b-que' Steakhouse, referred to in para. 8 above, either alone or jointly with or as director, manager, agent or servant or any other person, firm or corporation.'

During April 1973, i.e., after the expiry of the period of three years referred to in the above-quoted clause 13, respondent commenced carrying on a steakhouse business in premises at the comer of Glengariff Road and C Main Road, Sea Point (which is also a suburb of Cape Town). Respondent's business is situated some 4 kilometres from that of appellant. Stahr is a director of respondent. He caused to be mounted above the entrance to the steakhouse a rectangular neon-sign identical to that used by appellant, except that in the case of respondent's sign, the word 'Steakhouse' is in black lettering, whereas red lettering appears on D appellant's sign. On the street-front window of respondent's steakhouse, there appear in bold type the letters 'Bar B Que'. The letters 'Bar B Que' are depicted as being pierced by a skewer. Immediately above, and to the left of, the letters 'Bar B Que' the word 'Hans's' appears in less bold type.

In correspondence between the parties, appellant objected to the use by respondent of the word 'Bar B E Que' and the neon-sign in the manner above referred to. The substance of the complaint was that such user constituted a representation to the public that respondent's steakhouse was that of appellant or had some connection or association with it. Such representation was, therefore, calculated to deceive or confuse the public and so to divert business F from appellant to respondent. Respondent denied that the above-mentioned user was in any manner wrongful, and intimated its intention of continuing therewith.

In the result, and as a matter of urgency, appellant instituted motion proceedings in the Cape Provincial G Division. In the notice of motion the following relief was claimed:

'(a)

'n bevel wat respondent gelas om onverwyld die gebruik van die woord Bar-B-Que' te staak in verband met respondent se 'steakhouse' restaurantbesigheid te hoek van Glengariff- en Hoofweg, Seepunt;

(b)

'n bevel wat respondent gelas om onverwyld die gebruik van 'n naambord met 'n ontwerp soos uitgebeeld op bylae C' tot die H beëdigde verklaring van Jacob Jacobus du Preez te staak;

(c)

'n bevel wat respondent verbied om in die toekoms die woord Bar-B-Que' en/of die naambord en ontwerp uitgebeeld op bylae B' tot die beddigde verklaring van Jacob Jacobus du Preez te gebruik of na te boots in verband met enige steakhouse' restaurantbesigheid wat respondent mag bedryf;

(d)

alternatiewe regshulp;

(e)

gedingskoste.'

The matter was heard by FRIEDMAN, A.J., who granted an order in terms

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of prayers (a), (b) and (c) of the notice of motion. His judgment is repented (1974 (2) SA 125 (C)). At p. 135G - H the learned Judge concluded:

'In all the circumstances I find that applicant has established that the continued use by respondent of the name 'Bar-B-Que' and the logo incorporating that word, is in fact likely to cause confusion in the minds of the public and that this must inevitably cause damage to A applicant. Applicant is therefore entitled to protection, unless it is precluded from obtaining relief by reason of any of the special defences raised by respondent.'

The special defences referred to are summarised in the opposing affidavit of Stahr (filed on respondent's behalf) as follows:

'... in any event applicant, by virtue of its acquiescence in and B acceptance of my use of the name and logo as hereinbefore set out, is estopped from objecting to the use of the name at this stage.'

FRIEDMAN, A.J., held that respondent had not discharged the onus resting upon it in regard to these special defences. After the judgment had been delivered, the Court heard argument on the question of costs and made an order, the terms of which need not be set out herein.

C Respondent thereupon noted an appeal to the Full Bench of the Cape Provincial Division. After the appeal had been noted, the present appellant (applicant in the motion proceedings) formally abandoned portion of the judgment in its favour by restricting in the following manner the relief granted:

'(a)

'n Bevel wat respondent gelas om onverwyld die D gebruik van die woord Bar-B-Que' in 'n ontwerp van gemelde woord soos voorkom op bylae B' tot die beddigde verklaring van Jacob Jacobus du Preez en/of op bylae EE' tot die repliserende beëdigde verklaring van Jacob Jacobus du Preez, te staak in verband met respondent se 'steakhouse' restaurantbesigheid te hoek van Glengariff- en E Hoofweg, Seepunt.

(b)

'n Bevel wat respondent gelas om onverwyld die gebruik van 'n naambord met 'n ontwerp soos uitgebeeld op bylae C' tot die beddigde verklaring van Jacob Jacobus du Preez te staak in verband met respondent se bogemelde besigheid te bogemelde adres.

(c)

'n Bevel wat respondent verbied om in die F toekoms die woord 'Bar-B-Que' met 'n ontwerp soos hierbo genoem en/of die naambord uitgebeeld op bylae B' tot die beddigde verklaring van Jacob Jacobus du Preez na te boots in verband met enige steakhouse' restaurantbesigheid wat respondent mag bedryf te bogemelde adres, op so 'n wyse dat sodanige nabootsing die waarskynlike gevolg sou hê dat die publiek daardeur verwar sou G word om te glo dat respondent se gemelde besigheid aan applikant behoort, of verbonde is aan applikant se steakhouse' restaurantbesigheid te Burnsideweg 4, Tamboerskloof.

(d)

Gedingskoste.'

The appeal was heard by a H Full Bench consisting of VAN ZYL, STEYN and VOS, JJ. By a majority (STEYN and VOS, JJ.), the appeal was upheld with costs, including those of two counsel. The order of the court of first instance was altered to one dismissing the application with costs, including those of two counsel. The judgments of VAN ZYL, STEYN and VOS, JJ., are reported (1975 (2) SA 189 (C)). The appellant (applicant in the motion proceedings) now appeals to this Court against the judgment of the Full Bench.

The relevant factual background is adequately summarised in the judgment of FRIEDMAN, A.J. (1974 (2) SA 125 at pp. 126A - H and

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127D - 128E) and in that of VAN ZYL, J, (1975 (2) SA 189 at pp. 191C - 192D). It would be unnecessarily repetitious for me to burden this judgment with yet another detailed summary of the background facts.

A As the facts deposed to in the various affidavits were not all common cause, FRIEDMAN, A.J., held that it was necessary to apply the test laid down in Stellenbosch Farmers' Winery Ltd. v. Stellenvale Winery (Pty.) Ltd., 1957 (4) SA 234 (C) at p. 235E - G, as follows:

'It seems to me 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 B the applicant's affidavits justify such an order. I cannot agree with the learned Judge's view that he was confined to such facts as were substantially common cause. I shall accordingly only consider the facts alleged or admitted by the respondent. Where it is clear that facts, though not formally admitted cannot be denied...