lelemuthali

Dinnermates v Piquante Brands International

Supreme Court of Appeal

28 March 2018

Mathopo JA

Issue:

Whether an adaptation of a word in common use and its acompanying device are descriptive marks.

Law:

Section 10(14) of the Trade Marks Act 194 of 1993[1]

Ratio:

Where the prefix or first element of a word is in common use, the suffix or last element can be the distinctive element for trade mark purposes.
The main or dominant features of a mark, as well as the general impression and striking features, are all factors to be considered in deciding whether there was a likelihood of confusion or deception [1]
The phonetic equivalent of a non-distinctive word is itself non-distinctive [2]

Arguments:

For the appellant:

The word PEPPA is in common use, and is merely a variation of the word “pepper”. It thus could not be considered distinctive or invented in respect of foodstuffs in general.
The word/element PEPPA appeared in other trade mark registrations, some of which pre-dated the Respondents’ marks.
The elements MATES and DEW cannot simply be discarded or ignored, as they served to differentiate the respective marks
The Respondents’ device is simply a descriptive rendering of a sweet piquante pepper. The Court and full Bench had effectively granted the Respondents a monopoly in respect of a descriptive pepper device coupled with a descriptive word or element. This is analogous to, for example, a supplier of grapes not being able to use a device of a bunch of grapes alongside its name and trade mark.

For the respondent:

The dominant element, PEPPA, which appeared in both marks was a distinctive element, as it did not appear in a dictionary (although the word PEPPADEW does, albeit with the ™ symbol),
There is a high similarity between the marks, such that when the words DEW and MATES were removed, there was a likelihood of confusion or deception.

Conclusion:

The distinctive element for trade mark purposes is therefore the suffix DEW, which is wholly different from MATES. Because ‘PEPPA’ phonetically sounds like ‘pepper’, the likelihood of confusion will not arise, especially if it is used in combination with another word such as DEW or MATES.
The word PEPPA cannot enhance in any way the exclusivity of the distinctiveness of the elements of the mark. To my mind the depiction of the pepper in the mark only serves to highlight the descriptive nature of PEPPA. A depiction of a pepper is, like the word itself, descriptive.
PEPPA is not only a variant spelling of the word ‘pepper’ but is also applied to a wide range of products offered by various other parties throughout the world. If a monopoly is granted in respect of PEPPA it is hard to see how it would not extend to the use of pepper as a prefix, as in pepperoni, pepperpot (a West Indian stew), pepperwort or pepper sauce, all of which are in common usage. As the respondent’s registration extends to confectionery peppermint would also be affected. But one cannot monopolise the commons of the English language in that way.

Notes:

[1] s10(14): subject to the provisions of section 14, a mark which is identical to a registered trade mark belonging to a different proprietor or so similar theretd 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 20 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;

[2] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), Corbett JA

[3] Cochrane Steel Products (Pty) Ltd v M-Systems Group (1272/2016) [2017] ZASCA 189 (13 December 2017)

Mine, Faithfully

A year ago I had a dream of living in my own space, where I could venture a deeper intimacy with God, live in submission to his will, and enjoy the still and constant companionship of the Holy Spirit.

I write this piece in the half-empty apartment which has been my modest home for a month already. I write to declare that God is faithful.

I am humbled to think back at how God moved the pieces throughout 2021 and took charge of my situation to do exactly what he said he would do. The people he put in my life which have become key features of this season – leaders, helpers, counsel.

For the first time in my life, perhaps because it’s the first time I’ve paid attention, I can feel God loving me through the people in my life. I can hear his voice and feel his hand in the peculiar encounters on my way to work, at the office, while running errands. What a glorious grace.

Thank God for the grace to recognise his presence in my life. Otherwise, I would conclude (in my flesh) that I am simply not doing enough to be sensitive to his move. In my unwitting hubris and attachment to outcomes I would deduce that I needed to pray more, fast more, etc. That somehow God’s move was up to my behaviour.

I give thanks for reminders that humble me, gentle reminders that the course of my life is decidedly out of my control. God is God in spite of my conduct.

I am, however, currently undergoing a ‘spiritual reset’ – an endeavour to fortify spiritual disciplines such as prayer, fasting, and studying. I am reverting to the tone of my spiritual life this time a year ago. I am returning to strict adherence to spiritual disciplines in my routine.

I am yearning for a closeness, a clarity, and a peace which I can only find in Jehovah. I am looking to abide, intentionally. For no other reason than that he has been who he has been. He has been consistently reliable. And I only have to open my eyes each morning to see it.

I am, quite literally, living in the abundance of his faithfulness. Glory be to the Sovereign God.

– Lele M

In the Presence of my Enemies

I once wondered how one takes a seat at the table God sets before her enemies. I have been meditating on that question for months. I’m writing to report I may have stumbled upon something.

Psalm 23:5

‘You prepare a table before me in the presence of my enemies. You anoint my head with oil; my cup overflows.’

When one takes her seat at the table God sets before her enemies, she does so with humility.

She recognises that God as the guest of honour. That the banquet is in honour of he who made it possible.

She resists the urge to make it about her right to vengeance, or even to justice.

She is aware it isn’t about her at all. She is merely a conduit.

She makes herself the smallest in the room. She amplifies the presence of God instead.

She inspires a sensitivity to the move of God.

She walks, talks, and plays as though the Ancient of Days were with her at all times.

Because he is.

Emmanuel.

Chapter VI | The Witch’s Mirror

Noluntu’s awakening was not gentle. The dreams grew more vivid, her senses sharper. She began to hear whispers in the hum of electricity, see symbols flicker across billboards.

It was on one such night that she met The Mirrorwoman.

The woman appeared in the park near Maboneng, where Noluntu went to clear her thoughts. She was ancient but ageless, wrapped in a cloak of indigo cloth that shimmered like the night sky. Around her neck hung a pendant shaped like a serpent eating its tail.

“You have fire in your blood,” the woman said. “But you have forgotten how to wield it.”

Noluntu stepped back. “Who are you?”

“I am what your mother called isangoma, and what your ancestors called seer. Some would call me witch, but that word was twisted by men who feared women who could see.”

The Mirrorwoman led her to an abandoned fountain, its basin filled with rainwater and fallen petals. “Look,” she commanded.

In the water, Noluntu saw herself dancing—not in the present, but in another time. Her body moved with the grace of a ballerina and the power of a warrior. Around her, figures in white sang an ancient hymn in isiXhosa and Hebrew intertwined. She held a staff carved with names. When she looked closer, she saw Asher standing beside her, wearing robes of gold and linen.

The Mirrorwoman smiled. “You and he are bound. Two flames from one covenant. But flame destroys as easily as it warms.”

“Is he—” Noluntu began.

The old woman nodded. “He is of the watchers, child. The ones who guide the chosen back to memory. But beware: not all who watch wish you well.”

When Noluntu looked again, the reflection had changed. The figures were gone. Only fire remained—fire that burned without consuming.

“Witchcraft is not evil,” the woman said. “It is creation unaligned. Power without order. The question is—whose order will you serve?”

That night, Noluntu dreamed of seven doors, each carved with the same serpent-star sigil of The Ring. And behind the last door, a man’s voice whispered: “Africa must burn before it can rise.”

What is “salvation” in culture-speak?

I often feel like I am not enough; not doing enough, moving fast enough, pushing hard enough, praying long enough, worshipping often enough. I have this sentiment in common with most (if not all) the people in the world – past and present.

Isaiah 50:7

Because the Sovereign Lord helps me, I will not be disgraced.
Therefore have I set my face like flint, and I know I will not be put to shame.

It is no wonder then, that popular culture is filled with “self-love” and “you are enough” sloganeering. There is self-help, self-improvement, self-love, and self-affirmation propaganda at every turn. The prevailing presumption seems to be that man is perfectable, and can indeed perfect himself. Ironically, according to culture, the problem can become its own solution. There is no concept of the answer lying outside the self. In fact, “salvation” is a word almost exclusively used in a religious context. Why is that?

I was challenged recently, during a discussion about the four chapter gospel – ‘the fall’, in particular. I was asked to recall an instance when I most felt the effects of sin and the fall. In my chronically overthinking nature, I did not offer an answer because I thought the one I had would come across as flippant and inadequate. Instead, I dove into the deep waters of thought rising steadily to drown out the conversation. So finally I attend to that question here. When have I most felt the effects of sin and the fall? After salvation.

I once heard a pastor remark that if you’re not enjoying sin, you’re doing it wrong. He was speaking about the conviction believers feel when they sin, when they fall short of righteousness. One who does not believe in God and living according to His word is not susceptible to conviction about partaking in sinful behaviour the way a Christian may be.

Indeed the unbeliever does not view their behaviour as sinful at all. They do not accept the Christian standard, thus the question of whether they transgress the bounds of said standard is irrelevant. The pastor was illustrating that willful sin is not worth it. Especially not to the Christian who will spend their time in sin feeling convicted, knowing that they should not be there. That conviction is the beauty of salvation by grace.

Salvation has affirmed that I am not enough, and liberated me with the truth that I don’t have to be. Culture, as they say, could never.

– Lele M

‘More Than A Carpenter’

Written by Josh McDowell

Christian apologetics

‘She shot back, “Mister, I didn’t say religion, I said Jesus Christ.” She pointed out something I’d never known before. Christianity is not a religion.’ – Josh McDowell

I will admit I had no expectations when I first opened this offering by McDowell. Though if I had, I imagine they would have been exceeded considerably. First published in 1977, this brief treatise directly takes on popular challenges against the deity of Christ. McDowell sets up a cogent and compelling presentation of responses and proof of Jesus as Lord.

From beginning to end, McDowell argues the evidence for Christ without appealing to emotion and spirituality. Which is no surprise because he, a fellow former atheist, began his scholarship from the other side. He initially ventured to disprove Christianity. Leaving his personal story to the end of the publication, McDowell makes a point to stick to the facts as he neatly assembles a body of evidence more conclusive than many prosecutors have managed. He explores the subject under themes such as ‘Lord, Liar, or Lunatic?’, ‘Who Would Die for a Lie?’, and ‘What Good Is a Dead Messiah?’.

McDowell’s succinct and systematic approach makes this insightful read suitable for the believer and the skeptic alike. Though the skeptic may require a good measure of Holy water to swallow the hard pills this work dispenses.

– Lele M

Du Plessis Barry v Clearwater Estates

The Supreme Court of Appeal

16 March 2017

Swain JA

Issue(s):

Whether ss 58(1) and 58(3)(c) of the Companies Act are alterable provisions.

Law:

ss 1, 58(8), and 58(3)(c) of the Companies Act 71 of 2008.[see note 1]

Ratio:

A deliberate change of expression in a statute will prima facie indicate a change of legislative intention/the apparent purpose of the provision.

Arguments:

For Du Plessis Barry:

On a proper interpretation of these sections, a clear distinction is drawn between the concept of the appointment of a proxy in terms of s 58(1), and the exercise of the proxy in terms of s 58(3)(c). The latter section deals, conceptually, with the administration of proxies.[at para 14]

This interpretation does not give rise to any conflict between ss 58(1) and 58(3)(c), as an individual could hold a valid appointment but be unable to exercise that appointment at a particular meeting.[at para 14]

The legislature intended that there could be a lawful variation through a company MOI of the provisions in the Act relating to the stipulation of a time period, within which proxies must be submitted for the purpose of exercising the rights contained therein, at a particular meeting of the company.[at para 14]

s 63(1)(b) of the Act enjoins the officer presiding over a general meeting to validate and verify proxies prior to allowing a proxy to exercise a vote on the instrument, a general meeting would be unable to proceed on the scheduled day because of the administrative burden imposed on the presiding officer.[at para 22]

For Clearwater Estates:

The wording of s 58(1)(a) is clear and unambiguous and permits no interpretation other than that a shareholder has the right to appoint any individual as a proxy ‘at any time.’[at para 15]

This subsection is an unalterable provision in the Act whose purpose was to protect the right of shareholders to participate in, speak and vote at a shareholders meeting and to do so through a proxy of their choice.[at para 15]

The appointment of a proxy may accordingly take place at any time, including during the meeting. The time clause in the first respondent’s MOI accordingly negates, restricts, limits or qualifies this fundamental right of a shareholder contrary to the provisions of s 15(2)(d) of the Act. The time clause contained in the first respondent’s MOI therefore contravenes and is inconsistent with s 58(1) of the Act and is void to that extent.[at para 15]

Conclusion:

The appointment contemplated by s 58(1) is not made in vacuo. Although it may take place at ‘any time’, it has a defined purpose in terms of the Act. That purpose in terms of s 58(1)(a), is to ‘participate in, and speak and vote at, a shareholders meeting on behalf of the shareholder’. The appointment of a proxy in respect of a particular meeting seeks to achieve this statutorily defined purpose. If that purpose is thwarted by a time bar imposed in terms of s 58(3)(c) for the delivery of the instrument appointing the proxy, then the validity of the appointment of the proxy itself is impugned. The appointment of a proxy who is unable to perform any of these statutorily defined functions at a particular meeting has no purpose and is no appointment at all.[at para 16]

The plain wording of ss 58(1)(a) and 58(3)(c) of the Act read together and in context with due regard to their purpose, is that a shareholder of a company may appoint at any time, anyone who is not a shareholder of the company as a proxy to participate in, and speak and vote at a shareholders meeting on behalf of the shareholder, provided that the proxy delivers a copy of the instrument appointing the proxy, to the company or to any other person on behalf of the company, before the proxy may exercise any of the rights of the shareholder at the meeting.[at para 18]

The use of the phrase ‘at any time’, is a deliberate change of expression. Considered together with the omission of a minimum period for the delivery of the instrument evidencing the proxy and its substitution with the requirement that it is to be delivered ‘before’ the exercise of any rights at the meeting, a change of legislative purpose with regard to the former minimum period of 48 hours is clearly indicated.[at para 21]

The provisions of s 58(1) are unalterable. The right of a shareholder to appoint a proxy ‘at any time’ is a provision that does not expressly contemplate its alteration in any way by a company’s MOI.[at para 13]

The provisions of s 58(3)(c) are alterable, because the section expressly contemplates that its effects may be altered. Consequently if the articles in question contravene or are inconsistent with the provisions of s 58(1), they are void in terms of s 15(1) of the Act.[at para 13]

If practical difficulties are real and not simply apparent, their resolution lies not in a strained interpretation of the Act, but by legislative intervention.[at para 22]

Notes:

s 1: An ‘alterable provision’ is a provision of [the] Act in which it is expressly contemplated that its effect on a particular company may be negated, restricted, limited, qualified, extended or otherwise altered in substance or effect by that company’s Memorandum of Incorporation. An ‘unalterable provision’ is a provision of this Act that does not expressly contemplate that its effect on any particular company may be negated, restricted, limited, qualified, extended or otherwise altered in substance or effect by a company’s Memorandum of Incorporation or rules.’

National Coalition for Gay and Lesbian Equality v Minister of Home Affairs

Constitutional Court of South Africa

2 December 1999

Ackerman J

Issues:

Whether it is constitutional for immigration law to facilitate the immigration into South Africa of the spouses of permanent South African residents but not to afford the same benefits to gays and lesbians in permanent same-sex life partnerships with permanent South African residents.

Whether, when it has been concluded that provisions in a statute are unconstitutional, the Court may read words into the statute to remedy the unconstitutionality.

Law:

S 25(5) of the Aliens Control Act 96 of 1991 [see note 1]

Sections 9, 10, 172(1)(b) of the 1996 Constitution

Ratio:

As affirmed in the Sodomy case the determining factor regarding the unfairness of discrimination is, in the final analysis, the impact of the discrimination on the complainant or the members of the affected group. [at para 41]

The Court’s obligation to provide appropriate relief, must be read together with section 172(1)(b) which requires the Court to make an order which is just and equitable.[at para 65]

Arguments:

For the National Coalition for Gay and Lesbian Equality:

“[T]he more vulnerable the group adversely affected by the
discrimination, the more likely the discrimination will be held to be unfair.”[at para 44]

The sting of past and continuing discrimination against both gays and lesbians is the clear message that it conveys, namely, that they, whether viewed as individuals or in their same-sex relationships, do not have the inherent dignity and are not worthy of the human respect possessed by and accorded to heterosexuals and their relationships. This discrimination occurs at a deeply intimate level of human existence and relationality. It denies to gays and lesbians that which is foundational to our Constitution and the concepts of equality and dignity, which at this point are closely intertwined, namely that all persons have the same inherent worth and dignity as human beings, whatever their other differences may be.[at para 42]

The impact of section 25(5) is to reinforce harmful and hurtful stereotypes of gays and lesbians.[at para 49]

[Gays and lesbians] are capable of constituting a family, whether nuclear or extended, and of establishing, enjoying and benefiting from family life which is not distinguishable in any significant respect from that of heterosexual spouses.[at para 53(a)(viii)]

The impact constitutes a crass, blunt, cruel and serious invasion of their dignity. The discrimination, based on sexual orientation, is severe because no concern, let alone anything approaching equal concern, is shown for the particular sexual orientation of gays and lesbians.[at para 54]

There is no rational connection between the exclusion of same-sex life partners from the benefits under section 25(5) and the government interest sought to be achieved thereby, namely the protection of families and the family life of heterosexual spouses.[at para 56]

For the Minister:

It [is] of considerable public importance to protect the traditional and conventional institution of marriage and that the government accordingly has a strong and legitimate interest to protect the family life of such marriages and was entitled to do so by means of section 25(5).[at para 55]

Conclusion:

Unfair discrimination:

The discrimination in section 25(5) constitutes overlapping or intersecting discrimination on the grounds of sexual orientation and marital status, both being specified in section 9(3) and presumed to constitute unfair discrimination by reason of section 9(5) of the Constitution. [at para 40]

Section 25(5) constitutes unfair discrimination and a serious limitation of the section 9(3) equality right of gays and lesbians who are permanent residents in the Republic and who are in permanent same-sex life partnerships with foreign nationals… Section 25(5) simultaneously constitutes a severe limitation of the section 10 right to dignity enjoyed by such gays and lesbians.[at para 57]

It is true […] that the protection of family and family life in conventional spousal relationships is an important governmental objective, but the extent to which this could be done would in no way be limited or affected if same-sex life partners were appropriately included under the protection of section 25(5). There is […] no justification for the limitation in the present case and it therefore follows that the provisions of section 25(5) are inconsistent with the Constitution and invalid.[59]

Remedy:

Where […] the invalidity of a statutory provision results from an omission, it is not possible to achieve notional severance by using words such as “invalid to the extent that”, or other expressions indicating notional severance. An omission cannot, notionally, be cured by severance. […] The only logical equivalent to severance, in the case of invalidity caused by omission, is the device of reading in. In the present case there are only two options; declaring the whole of section 25(5) to be invalid or reading in provisions to cure such invalidity.[at para 64]

As far as deference to the legislature is concerned, there is in principle no difference between a court rendering a statutory provision constitutional by removing the offending part by actual or notional severance, or by reading words into a statutory provision. In both cases the parliamentary enactment, as expressed in a statutory provision, is being altered by the order of a court. In the one case by excision and in the other by addition.[at para 67]

It would be absurd to deny the reading in remedy, where it was equally constitutionally justified in relation to the legislature, simply because of its form.[at para 68]

In deciding whether words should be severed from a provision or whether words should be read into one, a court pays careful attention first, to the need to ensure that the provision which results from severance or reading words into a statute is consistent with the Constitution and its fundamental values and secondly, that the result achieved would interfere with the laws adopted by the legislature as little as possible.[at para 74]

In deciding to read words into a statute, a court should also bear in mind that it will not be appropriate to read words in, unless in so doing a court can define with sufficient precision how the statute ought to be extended in order to comply with the Constitution. Moreover, when reading in (as when severing) a court should endeavour to be as faithful as possible to the legislative scheme within the constraints of the Constitution. Even where the remedy of reading in is otherwise justified, it ought not to be granted where it would result in an unsupportable budgetary intrusion. In determining the scope of the budgetary intrusion, it will be necessary to consider the relative size of the group which the reading in would add to the group already enjoying the benefits. Where reading in would, by expanding the group of persons protected, sustain a policy of long standing or one that is constitutionally encouraged, it should be preferred to one removing the protection completely.[at para 75]

In any event the benefits conferred on spouses express a clear policy of the government to protect and enhance the family life of spouses. This policy extends back at least 69 years, for the provisions of section 3(1)(b)(v) of the Immigration Quota Act 8 of 1930 provided a comparable benefit, although less fully and in a more discriminatory manner. The indications are therefore strong that, had Parliament considered the most appropriate way for it to remedy the unconstitutionality of section 25(5), it would have chosen a remedy which did not deprive spouses of their current benefits under the section. This view is fortified by the fact that the government is, in other areas, giving effect to its legislative obligations under the equality clause in respect of same-sex partners. All these considerations indicate that, if reasonably possible, a striking down order should not be the remedy resorted to.[at para 79]

An appropriate remedy in the present case must vindicate the rights of permanent same-sex life partners to establish a family unit that, while retaining the characteristic features derived from its same-sex nature, receives the same protection and enjoys the same concern from the law and from society generally as do marriages recognised by law. But it must vindicate at more than an abstract level. It must operate to eradicate these stereotypes. Our constitutional commitment to non-discrimination and equal protection demands this. There is a wider public dimension.[at para 82]

The constitutional defect in section 25(5) can be cured with sufficient precision by reading in, after the word “spouse”, the following words: “or partner, in a permanent same-sex life partnership,” and that it should indeed be cured in this manner. Permanent in this context means an established intention of the parties to cohabit with one another permanently.[at para 86]

Notes:

[1] “Notwithstanding the provisions of subsection (4), but subject to the provisions of subsections (3) and (6), a regional committee may, upon application by the spouse or the dependent child of a person permanently and lawfully resident in the Republic, authorize the issue of an immigration permit.”

‘Annihilation’

Directed by Alex Garland

Science fiction horror

“Some questions will ruin you if you’re denied the answer long enough.” – Jeff VanderMeer, Annihilation

Loosely based on a 2014 VanderMeer novel of the same title, Annihilation is a 2018 sci-fi horror film. This thought-provoking adaptation explores betrayal, grief, and depression. The film follows the story of Lena, played by Natalie Portman, an Army veteran and biology professor who returns as the sole survivor of an exploration into the ‘Shimmer’.

The women-only group of explorers consisting of Lena, along with a government psychologist, a physicist, a geomorphologist, and a paramedic ventures into the ‘Shimmer’ – a mysterious zone of mutating plants and animals caused by an alien presence. This group of explorers is not the first of its kind. An earlier group of explorers including Lena’s husband Kane, embarked on a similar expedition, from which Kane returned as the lone survivor after a year of absence, unable to explain the details of the exploration, where he was, or how he came back.

Securing an understanding of the nature of the ‘Shimmer’ is urgent. Emerging three years prior from a meteorite landing in a lighthouse, the boundaries of the anomalous ‘Shimmer’ have been gradually spreading and may eventually encompass everything. Starring (inter alia) Jennifer Jason Leigh, Gina Rodriguez, Tessa Thompson, and Oscar Isaac, this thrilling science fiction uses the extraterrestrial and unknown to explore themes like depression and the human propensity for self-destruction.

Although it does not stand apart in its overall presentation, the film makes a commendable effort to traverse compelling universal themes and offers insightful commentary on the human condition.

– Lele M

‘Us’

Directed by Jordan Peele

Horror

“Therefore this is what the Lord says: ‘I will bring on them a disaster they cannot escape. Although they cry out to me, I will not listen to them.” – Jeremiah 11:11

Jordan Peele has done it again in this captivating 2019 American thriller. Us follows the story of Adelaide, played by Lupita Nyong’o, who first encounters a doppelganger of herself in a room of mirrors in a funhouse after wandering off on her own at a beach carnival.

Years later, a grown up Addy goes on vacation with her husband Gabriel and their two children. On vacation, the family ends up at the beach where the young Addy once wandered off from her parents. An already apprehensive Addy’s nerves are shot when her son, Jason, wanders off on his own. Although Jason returns safely, the family is visited by terror that night when their psychotic doppelgangers break into their holiday home.

Featuring contemporary hip-hop music over menacing action scenes, the direction of Us is easily one of Peele’s best offerings. The acting by the cast, which includes Winston Duke, Elisabeth Moss, and Tim Heidecker is another reason this film is brilliant. Jordan Peele’s unique genius keeps the viewer on the edge of her seat as the story unfolds – not through guts, gore and jump scares but through the subtilty of a riveting plot.

Us is a must see horror of a caliber rarely found in contemporary film-making.

– Lele M