Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd and Others

The applicants (Stuttafords Stores and various Gap entities) and the respondents (Salt of the Earth Creations and related companies) had been involved in prolonged litigation concerning the use of the trade mark GAP in South Africa. After Salt’s registered GAP trade mark was expunged by the Supreme Court of Appeal for non-use, Salt instituted passing-off proceedings and obtained an interim interdict from Basson J in May 2007 preventing the sale of GAP merchandise by Stuttafords pending final relief. The applicants alleged that Basson J’s judgment substantially reproduced Salt’s heads of argument, creating a reasonable perception of bias. Basson J refused to recuse himself. An appeal against this refusal was dismissed by the Full Court of the North Gauteng High Court, partly on the basis that the issue had become academic because Basson J had retired. The applicants then sought leave to appeal to the Constitutional Court.

The application for leave to appeal was dismissed.

The case is significant for clarifying the Constitutional Court’s approach to mootness and the ‘interests of justice’ requirement in leave-to-appeal applications. It also contains strong cautionary remarks on judicial independence, transparency, and the duty of judges to provide reasons in their own words, contributing to South African jurisprudence on judicial ethics and the perception of bias.