IN TH E HIG H COU RT OF SOUTH AFRICA GAUTENG     DIVISION,    PRETORIA

Appeal Case No: A479/ 2014 
Case  No  ( a  quo) :  48260/ 2008
Not Reporteable
Not of interest to other Judges
Revised
In  the  matter  between :

ATLANTIC IN DUSTRIES	Appellant
(Respondent in the cross-appeal)

and

PEPSICO  IN C.	Respondent

(Appellant in the cross-appeal)

J U DG M ENT

J  W  LOUW, J  (PRINSLOO J  and  MEYER J  concurring)

[1] The  appellant,  to  whom  I shall  refer  as Atlantic,  is incorporated  under the  laws  of  the  Cayman Islands  and  is  a  wholly  owned  subsidiary  of  The Coca-Cola  Company  which  is  incorporated  under  the  laws  of  the  State  of Delaware,  USA.    The  respondent,  to  whom   I shall  refer  as  Pepsico,  is incorporated  under  the  laws  of the  State  of  North  Carolina,  USA.   Atlantic and  Pepsico  are  international  competitors  in the sale of soft drinks.

[2] Pepsico filed  trade  mark  applications  with  the  South  African  Registrar of Trade Marks for the registration of PEPSI TWIST (application no. 2002/09809) and  PEPSI  TWIST  label  (application  no.  2002/09810)  in class 32. The goods described  in  class  32  are  "Beers;  mineral  and aerated waters and other non-alcoholic drinks; fruit drinks and  fruit juices; syrups and other preparations for making  beverages".  Atlantic  was at all relevant  times  the  proprietor  of  registered  trade  marks  nos. 80/0158 TWIST,  75/ 2905  LEMON TWIST  and  86/7291  DIET TWIST,  all in
class 32. Pepsico's applications were opposed by Atlantic on the ground that Pepsico could not claim  to  be the  bona  fide  proprietor  of any mark which incorporates Atlantic's  registered TWIST marks (relying on s  10(3) of the Trade Marks Act 194 of 1993 (the Act)) and on the ground that the PESPSI TWIST marks are so similar to Atlantic's TWIST  marks that the use of PEPSI TWIST in relation to the same goods would be likely to deceive or cause confusion (relying on s 10(14) of the Act) . Pepsico responded to Atlantic's opposition  by applying for the removal of   Atlantic's

registered marks from the Trade Marks Register in terms of s 24(1) of the Act.

[3] On 11 August 2008 and at the request of the parties, the  Registrar  of Trade Marks referred the opposition and removal proceedings to the High Court in terms of s 59( 2) of the Act. The matter was heard by Preller J , who granted Pepsico's two trade mark applications and dismissed its application for the  removal  of Atlantic's  registered  marks.  With  the  leave of the court a quo, Atlantic appeals against the order granting  Pepsico's trade mark applications and Pepsico cross-appeals against the order dismissing its application for the removal of  Atlantic's  registered  marks from  the  register.

[4] The parties are ad idem that the onus rests upon an applicant for registration of a trade mark to establish that the  proposed  mark qualifies for registration. The onus therefore rested  upon  Pepsico  to  satisfy the court that it was the bona fide proprietor of the PEPSI TWIST marks and that there was no reasonable probability (as opposed to possibility) of confusion or deception.  The parties were also in agreement that in rectification proceedings, the onus for establishing the invalidity of the registration is on the applicant for rectification, in casu on Pepsico. 

[5] It is convenient to first deal with Pepsico's cross-appeal. The court a quo found that the evidence of Synovate (Pty) Ltd, which Atlantic had commissioned to conduct a market survey, established that a substantial number of people who were interviewed associated the word TWIST with Atlantic's products. The court further referred to  Atlantic's  evidence of sales of high quantities of soft drinks on which its marks were used and concluded that Pepsico had failed to discharge the onus  of  proving  that Atlantic's TWIST registrations were invalid.

[6] Sec. 24(1) of the Act  provides as  follows:

In the  event of  non-insertion  in or  omission  from  the  register  of any  entry, or of  an entry wrongly  made  in  or  wrongly  remaining  on  the  register,  or  of  any  error  or  defect  in  any entry  in  the  register,  any  interested  person  may  apply  to  the  court  or,  at  the  option  of the  applicant  and  subject  to  the  provisions  of  section  59,  in  the  prescribed  manner,  to the  registrar,  for  the  desired  relief, and  thereupon  the  court  or  the  registrar,  as the  case may  be,  may  make such  order  for  making,  removing  or varying  the entry  as it or  he may deem  fit.

[7] Pepsico contends that Atlantic's trade mark  registrations wrongly remain on the register in view of the provisions  of s  10(1)  and  10( 2)(a) and (b) of the Act, which  provide the following  :

The following  marks shall not be registered as trade marks or, if registered,    shall,

subject to the provisions of sections 3 and 70, be liable to be removed from the register:

(1)	A mark which does not constitute a trade mark;
(1)	

(2)	a mark which-

(a)	is not capable of distinguishing within the meaning of section 9; or

(b)	consists exclusively of a sign or an indication which may serve, in trade,  to designate the kind, quality, quantity, intended  purpose, value, geographical  origin or other characteristics of the goods or services, or  the  mode  or  time  of production of the goods or of rendering of the services.

[8]  Pepsico's  case  is, firstly,  that Atlantic's  registered TWIST marks do  not constitute   trade   marks   by  virtue   of  the  fact   they   are   not  capable   of distinguishing  the  goods  in  respect  of  which  they  are  registered  from  the same   kind  of  goods   connected   in  the   course   of  trade   with   any  other person  because  the  word  TWIST  is  descriptive  of  the  goods  in  respect  of which   it  was   registered.     The   allegation   that   Atlantic 's   marks   do   not constitute  trade  marks  is therefore  limited  to  the  allegation  that  they  are not   capable   of   distinguishing.       It    secondly   contends   that   Atlantic's registered  marks should  be  removed from  the  register  on the  ground  that they  consist  exclusively   of  a  sign  or  a n  indication  which   may  serve,  in trade,  to  designate  the  kind,  intended  purpose  or  other  characteristics  of the goods  of Atlantic's trade  mark  registrations,  i.e. that they  have certain flavours  or  other  characteristics.   In  the  alternative  to  the  order  sought for  the  removal   of  Atlantic's  marks  from  the  register,  Pepsico  seeks  an order  that  Atlantic  be  directed  to  enter  a  disclaimer  of the  word  TWIST  in respect  of  its registered  marks.

[9] The TWIST marks which Pepsico seeks to expunge from the register were registered under the previous Trade Marks Act 62 of 1963 which provided, in s 10  thereof, for the  registration of distinctive  marks in Part A of the register and, in s 11 thereof, for the registration in Part B of the register, of marks which, in relation to the goods or services in respect of which they are proposed to be registered, are capable of becoming registrable, through  use, in Part A of the register in respect of such  goods or services.  Sec. 12  of the previous Act   provided:

(1)	For purposes of section 10 "distinctive" means adapted, in relation to the goods or services in respect of which a trade mark is registered, to distinguish goods or services with which the proprietor of the trade mark is or may be connected in the course of trade from the goods or services in the case of which no such connection subsists, either generally or, where the trade mark is registered or proposed to be registered subject to limitations, in relation to use within those limitations.

(2)	In determining  whether  a trade  mark  is distinctive  as aforesaid,  regard  may  be had to the extent to which  -
(a)	the trade mark is inherently adapted to distinguish; and

(b)	by reason of the use of the trade mark or of a ny other circumstance the trade mark is or has become adapted to distinguish.

[ 10]  Both  of  Pepsico1s  contentions  in  support  of  its  claim  that  Atlantic's marks  should   be  expunged   from   the   register,  and  also   the   disclaimer which  it sought  in the  alternative,  depend  on  whether  the  word  TWIST  is merely  descriptive  and  not  capable  of  distinguishing  the  goods  in  respect

of  which  Atlantic's  marks were  registered.  In  order  to  establish  that  this is so,  Pepsico  relied on one of the  various dictionary  meanings ascribed  to the  word  in the  New  Shorter  Oxford  English  Dictionary,  which  is "a  drink consisting  of  a  mixture  of  two  different  spirits  or  other  ingredients,  such as gin and brandy  etc".

[ 11]  It  was  submitted  by  Mr  Michau,  who  appeared  for  Pepsico,  that  the word  "twist"  is an  ordinary  everyday  English  word.   That  may  be  correct when  the  word  is used as a  verb,  or, when  used as a  noun, to  refer to the well -known  dance  of  the  sixties  or  to  a  twist  of  events.    But  it  is  not,  as far  as  Iam  aware, an  ordinary  English  word  which  is  used, at  least  not  in South  Africa,  to  refer  to  a  drink  consisting  of  a  mixture  of  two  different spirits  or  other   ingredients.    This  meaning  of  the  word  does  not  even appear  in  the  South  African  Oxford  English  Dictionary.    Accordingly,   no assistance  can   be   derived   from   the   dictionary   meanings  of  the   word "twist".    As  was  stated   by  Schreiner  JA  in  his  dissenting  judgment   in International  Tobacco Company  of SA Ltd  v  Wollheim  and others :

'I have not been able to derive assistance in this case from  dictionaries.  As  is so  often the case, they recite a number of different meanings or shades of meaning. These sometimes suggest possibilities, and to that extent are useful,  but  they  do  not  often assist in the discovery of 'the ordinary' meaning, assuming such a discovery to  be necessary or helpful.'

In   my   view,   the   mark  TWIST   is,  and   would   have   been  when   it  was registered,  inherently  adapted to distinguish.

[ 12]  But  even  if  Ia m  wrong   in  this  regard,  the  evidence  presented  by Atlantic  shows  that   the   mark  TWIST  has,  by   use,  become   capable   of distinguishing.    The   court a quo   referred   in  this   regard  to  the  survey evidence   which   was  presented   by  Atlantic.     Four  hundred  interviewees were  shown  a  card  with  the  word  TWIST  written  on  it  and  were  asked whether   they   associated  TWIST  with  any   product.     87. 75°/o  associated TWIST  with  a  product.    Those  interviewees  were  then  asked  to  identify
the  product.   71.8°/o  identified TWIST with  a  soft drink.   49.2°/o  mentioned Atlantic's  LEMON  TWIST  product  and  5.8%  mentioned   its  GRANADILLA TWIST  product.   The  court  concluded  that  a  substantia l number  of  people associated  TWIST  with  Atlantic's  products.    I respectfully  agree  with  the court's conclusion  in this  regard.

[13 ] Atlantic also presented sales and advertising figures in relation to its marketing of its TWIST products. Between 1999 and  2002,  about  1.920 billion cans or bottles of  LEMON  TWIST  were  sold.  The  Rand  value  of sales of LEMON TWIST drinks between 2001 and 2002 was R812 million. The Rand value of sales of LEMON TWIST and GRANADILLA TWIST sold between   2001  and   2006   was   R2.672   billion.     There   must  clearly have

been a large scale exposure of the TWIST marks in relation to soft drinks. Mr. Michau conceded that the sales were very substantial.

[14]  Apart  from  its reliance on the  dictionary  meaning of the  word TWIST, Pepsico  did  not  present  any  evidence  to  show  that  the  word  TWIST  is  not inherently  adapted  to  distinguish  or  that  it  has  not,  by  reason  of  its  use, become  capable  of  distinguishing,  or  that  it  consists  exclusively  of  a  sign or   a n   indication   which   may   serve,   in   trade,   to   designate   the   kind, intended  purpose  or  other  characteristics  of  the  goods  of  Atlantic's  trade mark  registrations,   i.e.  to  designate  that  they   have  certain  flavours   or other  characteristics.    In  my  view,  the  court  a  quo  correctly   held  that Pepsico  failed to  discharge  its onus  in this  regard.   The  cross-appeal  must therefore  fail.

[ 15]  I proceed  to  deal  with  Atlantic's  opposition  to  Pepsico's  applications for  registration  of  PEPSI  TWIST  and  PEPSI  TWIST  label.    As  mentioned earlier,  Pepsico's  applications  are  opposed  by  Atlantic  on  the  ground  that Pepsico  cannot  claim  to  be  the  bona  fide  proprietor  of  any  mark  which incorporates  Atlantic's  registered  TWIST  marks  (relying  on  s  10(3)  of  the Act)  and  on  the  ground  that  the  PESPSI  TWIST  marks  are  so  similar  to Atlantic's  TWIST  marks  that  the  use  of  PEPSI  TWIST  in  relation  to  the same  goods  would  be  likely  to  deceive  or  cause  confusion  (relying  on  s 10( 14)  of the Act).

[16] Sec. 10(14) of  the  Act  provides  that  a  mark shall  not  be registered as a trade mark  if,
subject to the provisions of section  14,  [it is] a  mark  which  is identical to a  registered trade mark belonging to  a  different  proprietor  or so similar  thereto  that  the  use thereof in relation to goods or services in respect of which it is sought to be registered and which are the same as or similar  to the goods or services  in respect of which  such trade   mark is registered, would be likely to deceive or cause confusion, unless the proprietor of such trade  mark consents to the registration of such  mark.

[17] In  TPN  Group  (Pty)  Limited  v  Ebay  Inc,  the  following  was  said  with regard to s  10(14) :

"[8] Two  inquiries  are  therefore  necessary :   are the  two  marks  identical  or  sufficiently

similar,  and  are  the  services  in  respect  of  which  TPN  intends  to  use  the  RENTBAY  mark the  same  as or  similar  to the  services  in respect of which  eBay's  marks are  registered,  so that  there  exists  a  likelihood  of  deception  or  confusion?   In  New  Media  Publishing  (Pty)

,

Ltd v Eating  Out  Web Services CC
Thring J said the following :

'There is, it seems to me, an interdependence  between  the two legs  of the inquiry:  the less the similarity between the respective  goods  or  services  of  the parties,  the greater will be the degree of resemblance required between  their respective  marks  before it can be said that there is a likelihood of deception or confusion in the use of the allegedly offending mark, and vice versa. Of course, if the respective goods  or  services  of the parties are so dissimilar to each other that there is  no  likelihood  of  deception  or confusion, the use by  the respondent  even of a mark  which is identical  to the  applicant's

registered mark will not constitute an infringement; also, if the two  marks  are sufficiently dissimilar to each other no amount of similarity between the respective goods or services of the parties will suffice to bring about an infringement. I respectfully agree with the learned authors of Webster and Page South African Law of Trade Marks 4th ed para 12.23 (at 12-41), where they say, with reference to s 34(1)(b) of the Act:

'(O)n a proper interpretation of the South  African  section  the  degree  of  resemblance between the marks and the degree  of resemblance  between  the goods  or services  must be such that their  combined  effect  will  be  to  produce  a  likelihood  of  deception or confusion when that mark is used on those goods or services' .

The   dictum   was   approved   of   by   the   Supreme   Court   of   Appeal  in

Mettenheimer and Ano. v Zonquasdrif Vineyards and Others. "

[18]   It   was   common   cause   that   the   goods   for   which   Pepsico   seeks registration   are   essentially   the   same   as   those   in   respect   of   which Atlantic's TWIST  marks are  registered.   It  is also  common  cause  that  the approach  to  the  issue  of  the  likelihood  of  deception  or  confusion  is  the sa me  for   infringement   a nd  opposition   proceedings.    In  Plascon-Evans Paints  Ltd  v  Van  Riebeeck  Paints  (Pty) Ltd ,   Corbett  JA  said  the  following at 640G  - 641D:

"In an infringement  action the onus is on the  plaintiff to show the  probability    or

likelihood of deception or confusion. It is not incumbent upon the plaintiff to show that every person interested or concerned (usually as customer) in the class of goods for which his trade mark has been registered would  probably be deceived or confused.  It  is sufficient if the probabilities establish that a substantial number of such persons will be deceived or confused. The concept of deception or confusion is not limited to inducing in the minds of interested persons the erroneous belief or impression that the goods in relation to which the defendant's mark is used are the goods of the proprietor of the registered mark, ie the plaintiff, or that there is a material connection between the defendant's goods and the proprietor of the  registered  mark;  it is enough for the plaintiff to show that a substantial  number of persons will  probably be confused as to the   origin of the goods or the existence or non-existence of such a   connection.

The determination of these questions involves essentially a comparison  between   the mark used by the defendant and the registered mark and, having regard to the similarities and differences in the two marks, an assessment of the impact which the defendant's ma rk would make upon the average type of customer who would be likely to purchase the kind of goods to which the marks are applied. This notional customer  must be conceived of as a person of average intelligence, having proper eyesight and buying with ordinary caution. The comparison must be made with reference to the sense, sound and appearance of the marks. The marks must be viewed as they would be encountered in the market place and against the background of relevant surrounding    circumstances.
The  marks must  not only  be considered  side  by side,  but also separately.  It  must  be borne  in mind that the ordinary  purchaser  may encounter  goods,  bearing the  defendant's mark, with  an  imperfect  recollection  of the  registered  mark and  due allowance must be made for  this. If each  of the  marks contains  a  main or dominant  feature  or  idea the
likely impact made by this on the mind of the customer must be taken into account. As it has been put, marks are remembered  rather by general impressions or by  some significant  or striking feature than by a photographic  recollection of the whole.   And
finally consideration must be given to the manner in which the marks are likely to be employed as, for example, the use of name marks in conjunction with a generic description of the goods. "

[19]   In	Century	City   Apartments	Property	Services   CC   &  another	v

,

Century  City  Property	Owners'  Association 
Harms  DP  referred  with

approval to the following dictum of Laddie J in Compass Publishing BV v Compass  Logistics   Ltd :

"The likelihood of confusion  must be appreciated  globally, taking account of all   relevant

factors. It must be judged through the eyes of the average consumer of the goods or services in question. That customer is to be taken to be reasonably well informed and reasonably circumspect and observant,  but he may have to rely upon an  imperfect picture or recollection of the marks. The court should factor in the recognition that the average consumer normally perceives a mark as a whole and does not analyse  its various details. The visual, aural and conceptual similarities of the marks must be assessed by reference to the overall impressions created by the marks bearing in mind their  distinctive and dominant  components.  Furthermore,  if the association  between the
marks causes the public to wrongly believe that the respective goods come from the same or economically linked undertakings, there is a likelihood of confusion." 

[20]  In   Roodezandt  Ko-Operatiewe   Wynmakery  Ltd  v  Robertson   Winery (Pty)  Ltd and Another Brand JA  said the  following  in paras  [4] - [6] :

"[4] ..........   'Deception' will  result, so it has been held, when the similarity    were to cause members of the purchasing  public to assume that the goods bearing   the
two competing trademarks  come from the same source. 'Confusion',  on the   other

hand, would occur if these members of the public will be caused to wonder if the

goods had a common origin (see eg  Oude Meester  Groep Bpk  v SA Breweries Ltd; SA  Breweries  Ltd  v  Distillers  Corporation  (SA) Ltd  1973  (4)  SA  145  (W)  at 160H).

[SJ  The  fundamental  enquiry  is therefore  whether  Roodezandt's  Robertson  Hills

mark so resembles the Winery's marks incorporating the term 'Robertson' that, if the competing marks are all used in relation to wine, such use would be likely to cause deception  or  confusion.  That  determination  involves  a  value judgment  (see  eg Cowbell AG v JCS Holdings Ltd 2001 (3) SA 941 (SCA) para 10). Considerations that could assist in the exercise of this value judgment have been proposed in numerous decided cases. One of these cases is Laboratoire Lachartre SA v Armour-Dial Incorporated 1976 ( 2) SA 744 (T) in which Colman J sounded  the following  note of caution  (at  746B-E) :

'We have had ample time for full consideration and close comparison of the two trademarks with which we are concerned. These advantages, however, carry their own dangers. They have caused us to look at the trademarks with far greater care than they would be looked at by the members of the public whose probable reactions we are required to assess, and with a far keener awareness of similarities and dissimilarities than such people would  probably have as they go about their daily   lives.

What we have now to do is, therefore, to transport ourselves, notionally, from the court­ room or the study, to the market place. We must try to look at the marks as they will be seen, if they are both in fair and normal commercial use, by the hypothetical   consumers of [wine]. Those will be people of many races and degrees of education, having varied gifts, interests and talents. We a re not to postulate the consumer of "phenomenal ignorance or extraordinarily defective intelligence". . . We are to consider a person of average  intelligence and proper eyesight,  buying with ordinary  caution'."

[21] Brand JA then listed the principles of comparison that have been developed to reach a value judgment. He said the following  at par  [6]  of the judgment :

"[6]  Most, if not all, of these  considerations  seem  to find  application  in the  present context.  Other  principles of comparison  which  have become crystallised  in earlier decisions of this  court which  I find to  be pertinent,  include the following:

(a)	A likelihood of confusion does not only arise when every person interested or concerned in the class of goods for which the trademark has been registered could probably be deceived or confused. It also arises if the probabilities establish that a substantial number of such persons will be deceived or confused.

(b)	The concept of deception or confusion  is not limited to inducing in the  minds of these interested persons the erroneous belief or impression that the two
competing products are those of the objector or that there is a connection between these two products. A  likelihood of confusion  is also established when it is  shown
that a substantial number of persons will probably be confused as to the origin of the products or the existence or non-existence of such a   connection.

(c)	The determination of the likelihood of confusion involves a comparison

between the two competing  marks,  having  regard to the similarities and  differences in the two and an assessment of the impact it would have on the average type of customer who is likely to purchase the kind of goods to which the marks are applied.

(d)	The marks must not only be considered side by side, but also separately.

(e)	It must be borne in mind that the ordinary purchaser may encounter goods
(a)	

bearing one mark with an imperfect recollection of the  other.

(f)	If each of the competing marks contains a main or dominant feature or idea,

the likely impact made by this dominating feature  on the mind of the customer  must be taken into account. This is so because marks are remembered by  some
significant or striking feature rather than by the  photographic  recollection  of  the whole. (See eg Plascon-Evans Paints Ltd v  Van Riebeeck  Paints  (Pty) Ltd  1984 (3) SA 623 (A) at 640G-641E; Puma AG Rudolf Dass/er Sport v Global Warming (Pty) Ltd 2010 (2) SA 600 (SCA) para 8; and Adidas AG  & another  v Pepkor  Retail Ltd 2013  BIP  203  (SCA)  paras 20-23)."

[22] As stated in Roodezandt, the decision whether or not there is a likelihood of deception or confusion is a value judgment. Viewed  globally, the visual and aura l similarity of Atlantic's  registered TWIST  marks  and the marks sought to be registered by Pepsico, is such that,  in my  view, there is a likelihood that deception or confusion will arise if the marks are viewed as they would be encountered in the market place by the notional type of customer referred to in Plascon-Evans . It was submitted by Mr. Bowman, who appeared with Ms. Southwood for Atlantic, that the goods concerned, being soft drinks, would be of interest to adults a nd children, rich and poor, educated  and  uneducated,  literate and  illiterate  and    that
confusion  or  deception  is  more  likely  in  such  a  case  than  when  the  class of consumer  is a  limited, specialised  class.    I agree  with  the  submission. The  notional  type  of  customer  will,  in  my  view,  at  least  be  caused  to wonder   if   the   goods   had   a   common   origin.     That   would   constitute

confusion. The court a quo, with respect, erred in finding that Pepsico discharged the onus of proving that no likelihood of deception  or confusion exists. It follows that Pepsico was also not entitled to the alternative relief which it claimed that a disclaimer should be  entered against Atlantic's marks.

[23] In  view  of  this  conclusion,   it  is  unnecessary  to  consider  Atlantic's opposition   to   registration   of   Pepsico's   PEPSI  TWIST  and   PEPSI  TWIST label  marks  based  on  s  10(3)  of the  Act,  i.e.  that  Pepsico  cannot  claim  to be  the  bona  fide  proprietor  of  those  marks.   Atlantic's  appeal  against  the granting  by the  court  a  quo  of  Pepsico's applications  for  registration  of  its PEPSI TWIST and PEPSI TWIST label marks  is accordingly  upheld.

[24]In the  result, the following  orders  a re made:

[a]	The    appellant's    appeal    against    the    granting    of      the respondent's trade mark applications 2002/09809  PEPSI TWIST and 2002/09810 PEPSI TWIST label is upheld with costs.

[b]	Orders   1,  2  and  3  of  the  court  a  quo  are  set  aside   and replaced with the following  orders :

1.	The respondent's trade mark application 2002/09809 PEPSI TWIST is refused.
2.	The respondent's trade mark application 2002/09810 PEPSI TWIST label is refused.
3.	The respondent is ordered to  pay the  opponent's costs of the application.

[c]	The respondent's appeal against the dismissal of its counter­ application for removal of  the  applicant's  registered trade marks 80/0158 TWIST,  75/ 2905  LEMON TWIST  and 86/7291
DIET TWIST is dismissed with costs.

[d]	The above cost orders shall include the costs of two  counsel.

J W LOUW
JUDGE OF THE HIGH COURT

Appellant's  counsel :   L Bowman SC;  F Southwood Instructed  by :  Adams  & Adams,  Pretoria

Respondent's counsel :  R Michau SC
Instructed  by :   Spoor & Fisher, Centurion,  Pretoria