Maxi Drivers Association and Others v Registrar of Public Transport and Others (18353/2011) [2011] ZAGPJHC 137 (23 August 2011)
The court found that the applicants have used the name Maxi Drivers Association since at least 1997, while the 8th respondent registered as a Section 21 Company in 2003 and conducts a similar business under the same name. This situation constitutes passing off, which is unfair to both the public and the applicants....
Source-derived case information.
- Citation
- [2011] ZAGPJHC 137
- Parties
- Applicant: Maxi Drivers Association and Others; Respondent: Registrar of Public Transport and Others
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 18353/2011
- Procedural Posture
- Urgent Application / Interim Application for Interdict and Postponement
- Outcome
- Interim interdict granted restraining the 3rd to 8th respondents from conducting business under the name Maxi Drivers Association; application postponed sine die; costs reserved.
- Judges
- Willis
- Legal Topics
- Passing Off, Interdict, Company Registration, Section 21 Company
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maxi Drivers Association and Others
Applicant
Registrar of Public Transport and Others
Respondent
Procedural Posture
Urgent Application / Interim Application for Interdict and Postponement
Legal Issues
- 1 Whether the respondents are unlawfully passing off their business under the name Maxi Drivers Association.
- 2 Whether the applicants are entitled to an interim interdict restraining the respondents from using the name Maxi Drivers Association.
- 3 Whether the registration of the Section 21 Company should be cancelled.
Ratio Decidendi
The court found that the applicants have used the name Maxi Drivers Association since at least 1997, while the 8th respondent registered as a Section 21 Company in 2003 and conducts a similar business under the same name. This situation constitutes passing off, which is unfair to both the public and the applicants. In the absence of further evidence, the applicants are entitled to an interim interdict restraining the respondents from using the name Maxi Drivers Association. The matter is postponed sine die, and the respondents may seek reconsideration upon providing further evidence.
Court Disposition
Interim interdict granted restraining the 3rd to 8th respondents from conducting business under the name Maxi Drivers Association; application postponed sine die; costs reserved.
Orders
- The application is postponed sine die.
- Pending further order by this court, the 3rd to 8th respondents are interdicted and restrained from conducting their business activities under the name and style of Maxi Drivers Association.
Full Case Text
Judgment text and source record
30 paragraphs
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(SOUTH GAUTENG HIGH COURT. JOHANNESBURG)
CASE NO: 18353/2011
DATE:23/08/2011
In the matter between:
MAXI DRIVERS ASSOCIATION and OTHERS............................................................Applicant
and
REGISTRAR OF PUBLIC TRANSPORT and OTHERS.......................................... Respondent
JUDGMENT
WILLIS J:
[1] This is an application in terms of which the applicants seek: (i) an order restraining certain of the respondents from conducting their business under the name and style of the Maxi Drivers Association; (ii) an order relating to reconnecting of business telephones and an order relating to the registration of Maxi Drivers Association as the Section 21 Company.
[2] The Maxi Drivers Association, the Section 21 Company is the 8th respondent herein.
[3] The applicants have also sought an order that the Registrar of Companies, the 2nd respondent, cancel this registration.
[4] After hearing the parties last week, I directed that the first respondent Registrar of Public Transport testify in this matter. He came today. His name is Mr Peter Jabu Dlamini. He confirmed that Maxi Drivers Association, the first applicant, has according to his records as a Registrar of Public Transport, been in existence since at least 1997.
[5] The 8th respondent, on the other hand, has been registered as a Section 21 Company since about 2003. One therefore clearly has a case of "passing off' In other words, a metered taxi association, which is the first applicant, has the same name as the 8th respondent which is a Section 21 Company also conducting a taxi business.
[6] This is confusing and it is not fair to the public. It is not fair to the applicants. Accordingly, it seems to me that, in the absence of further evidence, the applicants are entitled to an interdict which will have the effect of restraining the 8th respondent and others from passing off.
[7] I accept that it is difficult to secure the attendance of the Registrar of Companies in the High Court as a witness but he may be able to shed some light on whether or not the 8th respondent should be struck from the register of companies. I have also accepted that the parties may, in the light of better, evidence be able to persuade another court to reconsider the matter.
[8] Accordingly I shall make an interim order. The order is as follows:
INTERIM ORDER
1. The application is postponed sine die.
2. Pending further order by this court, the 3rd to 8th respondents are interdicted and restrained from conducting their business activities under the name and style of Maxi Drivers Association.
3. Any of the respondents may set the matter down upon 72 hours notice to the applicants, for a reconsideration of this order.
4. The wasted costs occasioned by the postponement are reserved.
Counsel for the applicant, Advocate M.J. Mashaba.
Counsel for the 3rd to 8th respondents, Advocate J. Bezuidenhout.
Attorneys for the applicant F.Z. Nzama.
Attorneys for the 3rd to 8th respondents Clifford Levin.
Date of hearing 19th August and 23rd August.
Date of judgment 23 August.