means that there must be proof of all the essentials of delictual (Aquilian) liability, namely an act,
wrongfulness, fault (intent or negligence), prejudice (injury or damage) and causation (legal and factual). See
Schultz v Butt 1986 (3) SA 667 (A) at 678HI and the discussion of these requirements in Van Heerden &
Neethling at 6674.
[64] The act complained of must, of course, be a competitive act or competitive conduct directed at attracting the
custom of the same clients. Such act or conduct will be wrongful if it breaches or infringes upon the
competitor's right to the goodwill of his business. Thus in Capital Estate and General Agencies (Pty) Ltd and
others v Holiday Inns Inc and others 1977 (2) SA 916 (A) at 929CE, Rabie JA stated:
"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 . . . Whether there is a reasonable likelihood of such confusion arising is, of course, a question of fact
which will have to be determined in the light of the circumstances of each case."
See also Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and another 1998 (3) SA 938 (SCA)
paragraph 15 at 947FI [also reported at [1998] 3 All SA 175 (A) Ed]. In Van Heerden & Neethling 158159,
the learned authors say that a competitor "acts wrongfully if his false statement of facts concerning his own
performance is such that the ordinary potential purchaser, customer or client will be deceived, so that
misleading the public is a likely consequence". The issue is then whether or not there was a (reasonable)
probability or likelihood that the public would be misled. It is not a requirement that anyone should have been
subjectively misled, although proof of actual deception would assist in discharging the plaintiff's burden of
proof in this regard.
[65] The criteria for establishing wrongfulness have undergone substantial development in our law. Initially these
criteria turned upon an objective appraisal of what was "fair and honest" under the circumstances. In the Dun
and Bradstreet case (paragraph 58 above at 218H) it was pointed out that, although the concepts of fairness
and honesty were "somewhat vague and elastic terms", they were nevertheless relevant for purposes of "the
development of the law relating to competition in trade". This almost prophetic view of the anticipated
development of such law gave rise to the generally accepted criterion of public policy as "the general sense of
justice of the community, the boni mores, manifested in public opinion" (Atlas Organic Fertilizers case,
paragraph 61 above, at 188H; Lorimar case,
Page 400 of [2005] 2 All SA 382 (C)
paragraph 62 above, at 1152H1153A; Schultz v Butt, paragraph 63 above, at 679BE).
[66] I n Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) 1988 (2) SA 350 (W) at 358D Van Schalkwyk J
considered the aforesaid criteria and expressed the view that "there is no doubt that there exists in South
African law a 'natural standard of fairness or reasonableness' beyond which competition must not go." This
standard would depend on the facts of each individual case and is consistent with "the broad equitable
approach adopted by South African Courts in unfair competition cases" (Schultz v Butt, paragraph 63 above,
at 683CD).
[67] It is interesting to note how, in the context of the determination of what constitutes wrongful competition,
ageold values such as justice, fairness, reasonableness and public policy, in the sense of the "good morals"
(boni mores) of the community, come to the fore as relevant criteria. To them may be added good faith (bona
fides), which constitutes the cornerstone of that other great source of the law of obligations, namely contract
law. It goes hand in hand with what is just, fair, reasonable and in accordance with public policy. It also
underlines the inherent flexibility of the common law in its various phases of development, be it in the law
relating to wrongful competition or, for that matter, any other aspect of the law of obligations (contract or
delict). See the Payen Components case, paragraph 57 above, at 474HJ and Aruba Construction (Pty) Ltd and
others v Aruba Holdings (Pty) Ltd and others 2003 (2) SA 155 (C) at 174BC.
[68] Much reliance was placed by the applicants on the alleged copying of the Falcon boat getup by the
respondents in manufacturing their Sovereign boats. This concept may be described as those specific
characteristics or distinctive features which, collectively, constitute the outward or external appearance of the
article in question. It may relate to size, shape, configuration, constituent fabric or material, colour
combination or to any additions or appurtenances used for purposes of creating such appearance (Agriplas
(Pty) Ltd and others v Andrag & Sons (Pty) Ltd 1981 (4) SA 873 (C) at 889AE; Van Heerden & Neethling at 175).
[69] In order to protect this getup from passingoff, the plaintiff must prove that it has acquired a reputation in
connection with his business or goods and has consequently become distinctive thereof (John Craig (Pty) Ltd v
Dupa Clothing Industries (Pty) Ltd 1977 (3) SA 144 (T) at 150A). If no such reputation has been acquired, any
competitor may with impunity copy or imitate the getup of his rival. But even if such reputation has been
established, the competitor may still make use of it provided he makes it clear that the endproduct is his and
not that of the original user of the getup. See the classic dictum of Gregorowski J in Distilleerderij voorheen
Simon Rijnbende en Zonen v Rolfes, Nebel & Co 1913 WLD 3 at 9:
"These cases make it quite clear that a trader has no monopoly in the "getup" of his goods. However great the
advantage and merits of his "getup" may be over that of his rivals, however much time and thought he may have
expended over the designing of the particulars, when once he has used and published them they do not become
his property but are common property, which can be appropriated by his rivals provided they do not mislead the
public but make it perfectly clear that the goods in the "getup" are not his but theirs."
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