practical course to follow. First, it would require the evidence of a large number of people. Second, the persons
comprising such a sample should of course have no interest in the outcome of the proceedings. It is consequently
unlikely that such persons, or most of them, would be prepared to become involved in the litigation. A properly
conducted market survey places the replies of such people before the court without requiring affidavits from them.
No substantial disadvantage flows from this course. It
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seems most unlikely that any interviewee would lie in a matter such as his or her knowledge of McDonald's, and in
any event the theories underlying such surveys make allowances for a certain margin of error. There can be no
prejudice to the other parties. They are given a full opportunity to check the results of the survey. In fact in the
present case Joburgers and Dax did not seriously contend that the results of the surveys were unreliable. Their
main contention was that these results had no probative value as being limited to too small a universe. This was
also the view of the court a quo. Since, as will be seen, I disagree with this view, I consider that the evidence
should have been admitted.
It was contended that the court a quo exercised a discretion in refusing to allow the evidence under section 3 of
the Act, and that its decision in this regard may be set aside only if the court of appeal considers that the discretion
was not judicially exercised. I do not agree. A decision on the admissibility of evidence is, in general, one of law, not
discretion, and this court is fully entitled to overrule such a decision by a lower court if this court considers it wrong.
There is in my view nothing in section 3 of the Act which changes this situation.
I turn now to the effect to be given to the evidence. The approach of the court a quo was to analyse each item of
evidence and to show that, by itself, it has little or no probative value. In my view this is a wrong approach. We are
dealing here with circumstantial evidence. In the well known case of R v De Villiers 1944 AD 493 Davis AJA, dealing
with a similar argument in a criminal case, said (at 508509):
"The Court must not take each circumstance separately and give the accused the benefit of any reasonable doubt as to the
inference to be drawn from each one so taken. It must carefully weigh the cumulative effect of all of them together, and it is
only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether
the inference of guilt is the only inference which can reasonably be drawn. To put the matter in another way; the Crown
must satisfy the Court, not that each separate fact is inconsistent with the innocence of the accused, but that the evidence as
a whole is beyond reasonable doubt inconsistent with such innocence."
Apart from the nature of the onus, the same rules apply of course in civil cases.
As I have said above, I consider that it would be enough for McDonald's to show that its marks are known to a
substantial number of persons who are interested in the goods or services provided by it. On behalf of McDonald's it
was contended, correctly in my view, that there are two categories of such persons potential customers and
potential franchisees. Potential customers would cover a wide field. It would include all persons who like fast food of
this type and have the money to buy it. Since the cost is not high there would be many such people.
View Parallel Citation
Potential franchisees would be a small group, namely persons who can finance and run a McDonald's franchise, or
consider that they can.
The evidence adduced by McDonald's leads, in my view, to the inference that its marks, and particularly the mark
McDonald's, are well known amongst the more affluent people in the country. People who travel, watch television,
and who read local and foreign publications, are likely to know about it. They would have seen McDonald's outlets in
other countries, and seen or heard its advertisements there or its spillover here in foreign journals, television
shows, etc. Although the extent of such spillover has not been quantified it must be
Page 24 of [1996] 4 All SA 1 (A)
substantial. Moreover, as has been shown, McDonald's has also received publicity in the local media. The market
survey evidence specifically related to two groups of adult white persons living in relatively affluent suburbs of
Gauteng and KwaZulu Natal. It is reasonable to suppose that much the same results would be achieved elsewhere
among persons of all races who have a similar financial and social background. These are also the type of people
who would have heard about McDonald's and its marks from Collins, or who would have discussed these matters
with him, or would have written to McDonald's to solicit a franchise agreement.
By the same token, people who are poor, do not travel abroad, do not read foreign publications or, possibly, do
not read at all, and are not exposed to television, are likely not to have heard of McDonald's or its marks. It is
accordingly not surprising that market surveys commissioned by Joburgers and Dax showed a low awareness of
McDonald's and its marks among black persons generally.
These conclusions must be applied to the relevant categories among the public. Potential franchisees, I consider,
would be the type of persons who would almost without exception have heard of McDonald's and know its marks.
Among potential customers the level of awareness would be lower. Many people who would be interested in buying
a hamburger would not have heard of McDonald's. However, a certain degree of financial wellbeing is required for
the purchase of prepared food. Extremely poor people are not likely to patronise McDonald's establishments. Of the
persons who are likely to do so, at least a substantial portion must be of the category who would probably have
heard of McDonald's and know its marks, or some of them. This inference is supported by the zeal shown by
Joburgers and Dax to appropriate these marks for themselves.