service mainly to Value's existing client base, although it also advertised amongst insurance companies. Although
the partnership subsequently ended, the Second Applicant has since continued this service, which is currently
being provided on a limited basis in Gauteng to its existing customers. The Second Applicant, through its car rental
division, leases sedan vehicles as well as tenseater vehicles. The Second Applicant has plans to expand this
service within the next year or two nationwide and, in particular, to establish a car rental depot near the Cape
Town airport form where it would provide a car rental service to the general public."
No indication is provided as to when in the 1990s the car rental business was opened or which entity did so.
[7] During 2002/3 the group consolidated its structures and today consists of Value Group, Value Logistics, and
Value Logistics Personnel Services (Pty) Ltd which conducts the administrative functions of the group.
Previously the group had consisted of various subsidiary and regional companies, all of which are now
dormant. Gottschalk says that these companies assigned their goodwill, reputation and other intellectual
property rights to the second applicant prior to their ceasing to do business. Value group was listed on the
Johannesburg Stock Exchange during 1998.
[8] The first respondent, cited as Value Car Hire (Pty) Ltd, but in fact now known as Alpha and Omega CC,
operates as a car hire business in Cape Town. It commenced business in 1994 when it traded under the
name and style of All Peoples Car Hire through the medium of a close corporation known as Beukes CC. One
of the two founding members of the close corporation was Mr Hendrik Barend Derek Beukes ("Beukes"), the
deponent to the answering affidavit of the first respondent. The business initially had only one vehicle which it
leased to a guest house in Cape Town, but by 1998 it owned 40 vehicles. On 8 July 1998 Beukes became the
sole member of the close corporation, the name of which was changed to Value Car Hire CC on that day and
from that date the business was renamed Value Car Hire. That is still its trading style. The business grew to
the extent that by the end of 2001 it owned or leased 105 vehicles. It has continued with its business and
maintains approximately a similar number of vehicles today.
[9] In July 2000 Value Car Hire CC was converted into a private company known as Value Car Hire (Pty) Ltd and in
January 2003 the company changed its name to Alpha and Omega Car Hire (Pty) Ltd. Thereafter on 25 March
2003 the company was converted back to a close corporation known as Alpha and Omega Car Hire CC.
Beukes is the sole member of the CC.
[10] According to Beukes, the name Value Car Hire was chosen by him in 1998 in order to identify the nature and
type of the car rental business which was being conducted by him, namely quality car rental at affordable
prices. Beukes says that over the past four years, Value Car Hire has consistently provided the cheapest car
hire in the Western Cape, one of the tenets of the business being to better any rate which competitors might
offer. He denies that the choice of the word "Value" in the name of his business had anything to do with the
applicants, of whose existence, he says, he was unaware. Value Car Hire operates solely in the Western
Cape and Beukes says is the only car hire business in the country which only
Page 478 of [2005] 4 All SA 474 (C)
supplies group A motor vehicles, which is the category for the cheapest vehicles available for hire. Colour
photographs attached to the papers depict the getup used by the first respondent. The getup appears on
motor vehicles which are leased by it and comprises the words "Value Car Hire" in blue lettering and the price
charged by day in red lettering, all of which appears on a dark yellow background. Similar lettering in blue and
red also appears on a yellow background.
Passingoff
[11] The description of passingoff given by Rabie JA (as he then was) in Capital Estate and General Agencies (Pty)
Ltd and others v Holiday Inns Inc and others 1977 (2) SA 916 (A) at 929CD is wellknown and has been cited in
many subsequent cases. It reads:
"The wrong known as passingoff consists in a representation by one person that his business (or merchandise, as
the case may be) is that of another, or that it is associated with that of another, and, in order to determine
whether a representation amounts to a passingoff, one enquires whether there is a reasonable likelihood that
members of the public may be confused into believing that the business of the one is, or is connected with, that of
another."
A further and perhaps fuller description of the wrong appears in the judgment of Nienaber JA in Premier
Trading Co (Pty) Ltd and another v Sporttopia (Pty) Ltd 2000 (3) SA 259 (A) at 266H267C:
"Passingoff is a wrong consisting of a false representation made by one trader (the defendant) to members of the
purchasing public that the enterprise, goods or services of a rival trader (the plaintiff) either belong to him (the
defendant) or are connected, in the course of trade, with his own enterprise, goods or services. (I shall
abbreviate, for the sake of convenience, 'enterprise, goods or services' to the single term 'the product' since this is
a case of 'product confusion' rather than 'business connection confusion'.) The defendant's representation is a
misrepresentation if it is likely to deceive or confuse a substantial number of members of the public as to the
source or origin of his product. Passingoff, to be actionable, erodes the plaintiff's goodwill. Goodwill is the product
of a cumulation of factors, the most important of which, in the context of passingoff, is the plaintiff's reputation.
Reputation is the opinion which the relevant section of the community holds of the plaintiff or his product. If
favourable, it would dispose potential customers to patronise the plaintiff or his product and, if unfavourable, it
would tend to discourage them from doing so. The plaintiff's reputation may be associated with the symbol under
which his product is marketed. The symbol renders the product distinctive of the plaintiff or his product. A false
representation by the defendant about the symbol used by the plaintiff may encourage or induce potential
customers of the plaintiff, believing that they were patronising him, into patronising the defendant.
. . .