Background: The Family Name That Wouldn’t Die
Van Willing Funerals CC, a long-standing
funeral business rooted in the Eastern Cape, woke up one morning in 2023 to
discover their name had been emblazoned across insurance policies sold by Transafrica (aka Vision Direct 155
(Pty) Ltd), a licensed financial services provider.
Junior Van Willing, fresh at the helm since 2020, was outraged. He claimed
Transafrica forged his signature, hijacked the goodwill of the funeral parlour,
and was trying to impersonate his family’s legacy in the afterlife insurance
game, like a policy salesman gate-crashing a wake.
But, spoiler alert, the High Court wasn’t buying it.
Enter the Agreement from Beyond the Affidavit
It turns out that the drama had a prequel:
in 2022, Junior entered into an agreement with Transafrica (on behalf of
Brijuwen CC - also his, because one CC just isn’t enough). This deal saw
Brijuwen and a team of Junior-nominated salespeople become Transafrica’s
official representatives, selling funeral policies under the name Van Willing
Funerals. They even got trained in the Van Willing offices. Commission? Paid.
Branding? Agreed. Signature? Digitally added (albeit poorly).
It was, in short, a co-branded insurance scheme with mutual benefit… until it
wasn’t.
The Claim: Passing Off, Plain and Simple (Or Not So Much)
Van Willing’s claim was textbook passing
off. The court, mercifully, didn’t need to exhume Roman-Dutch principles, it
stuck to familiar jurisprudence, including Capital Estate, Caterham,
and the like where the applicant must prove:
1. A protectable reputation,
2. A misrepresentation likely to deceive, and
3. A likelihood of damage.
On paper, Van Willing had the goods. The family name had been active in the
funeral trade for nearly a century. Junior brought along testimonials, press
clippings (some blurry, some illegible), and a 1993 Evening Post article
calling his dad the owner of one of the “largest funeral firms” in the area.
But it all unravelled when the court found… he’d agreed to everything.
Misrepresentation? Not Quite, Says the Judge
The policies bore the Van Willing name,
yes. But they were covered in disclosures:
- Underwritten by Centriq Life Insurance,
- Administered by Transafrica,
- Packaged by representatives trained and approved by Junior himself.
The name-dropping? Agreed upon in writing. The commission? Paid as promised.
Even the contested signature? A mistake, sure - but not a forgery. Just a
computer-generated “Junior Van Willing” footer where Transafrica’s should’ve
been. Amateurish? Yes. Malicious? No.
The kicker? Transafrica stopped using the Van Willing name the moment they were
asked to. No policies sold since the termination notice.
On Harm: Where's the Body?
Junior hadn’t shown any reputational harm or likelihood of harm. No unhappy
clients. No substandard services. And in fact, policies sold under the Van
Willing name probably brought in more funerals, and maybe even more foot
traffic (pun intended).
Disparagement? Nil. Confusion? Possible, but unlikely given the full
disclosures. Damage? Missing. The Court dismissed the application, with
ordinary costs.
Afro-IP Takeaways: When Your Good Name Isn’t Enough
• Partnerships require clarity and clarity doesn’t come from unsigned
affidavits, absent policyholder testimonials or pixelated press clippings.
• If you are authorised, you cannot infringe or pass off. It’s the proverbial nail
in the coffin.
Brought to you by Afro Corne
Afro Leo says:
In contrast to
the facts, this is no shoddy judgment (in fact a very good one) but take a look
at the paras on “harm” [33-37] where disparagement and dilution of advertising
goodwill are discussed [37] in the context of passing off. This is unusual. Disparagement
and dilution are typically pleaded as forms of unlawful competition.
Furthermore, the concept of “a common field of activity” or “area overlap” attracts
unnecessary scrutiny – it’s all about a “likelihood of confusion” in passing
off, which can take the form of a perception of endorsement or other business
link. Harm is then inferred.
Links
Case Link: Van Willing Funerals CC v Vision
Direct 155 (Pty) Ltd t/a Transafrica [2025] ZAECQBHC 21
