THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case No: 628/05
REPORTABLE

In the matter between

ERNST GOTTLIEB MARTIN GRÜTTER
Appellant

and

CHRISTOFFEL ZANDSPRUIT LOMBARD
First Respondent
ELIZABETH OOSTHUIZEN
Second Respondent

_______________________________________________________________
Coram:
STREICHER, NAVSA, NUGENT, HEHER JJA &
COMBRINCK AJA.
Heard:
22 NOVEMBER 2006
Delivered:
20 FEBRUARY 2007
Summary:
Injuria – appropriation of the name of another for personal
advantage.
Neutral citation:
This judgment may be referred to as Grütter v Lombard
[2007] SCA 2 (RSA).
_______________________________________________________________

JUDGMENT
_______________________________________________________________

NUGENT JA

NUGENT JA:
[1] Mr Grütter (the appellant) and Mr Lombard (the first respondent) are
attorneys who practise in Pretoria.  Grütter specializes in water and property
law and Lombard is principally a conveyancer.  In 1996 they agreed to
practise from shared premises under the name ‘Grütter and Lombard’.  In
2004 they were joined by Ms Oosthuizen (the second respondent).  The
capacity in which she joined them is not entirely clear but that is not material.

[2] Early in 2005 Grütter terminated his agreement with Lombard and
began practising in association with a certain Mr Grobbelaar under the name
‘Grütter and Grobbelaar’. Meanwhile, Lombard and Oosthuizen continued
practising together under the name ‘Grütter and Lombard’.  Grütter asked
Lombard to desist from using the name ‘Grütter’ in the description of his
practice but Lombard declined to do so and Grütter applied to the High Court
at Pretoria for an order prohibiting him from doing so.  Oosthuizen was
subsequently joined in the proceedings on the insistence of Lombard and the
prohibition that was sought was extended to encompass her.  The court below
(Mullins AJ) dismissed the application but granted Grütter leave to appeal to
this court.

[3] There is no suggestion by Grütter that Lombard or Oosthuizen are
committing the wrong of passing-off (which they clearly are not doing).1  Nor
does he claim an exclusive right to use the name ‘Grütter’ (which he clearly
does not have).  Grütter’s case is simply that he is known to be the person
named in the description of the practice and that he does not wish to be
identified with the practice now that his association with it has come to an
end.

[4] The nature of the relationship between Grütter and Lombard was hotly
contested in the affidavits (with Lombard asserting that they practised in
partnership and Grütter asserting that they did not) but in argument in the court
below Grütter’s counsel conceded that they practised in partnership.  The
learned judge held that the name ‘Grütter and Lombard’ was the property of
the partnership, and held further that upon dissolution of the partnership each
of the former partners became entitled to continue using the name of the
former partnership, provided that it did not place the other former partner at
risk of incurring liability, relying upon principles of English law to that
effect.2 Because there was no material risk that that would occur, the court
went on to hold, Lombard was entitled to continue to use the name.

1   Cf Brian Boswell Circus (Pty) Ltd v Boswell-Wilkie Circus (Pty) Ltd 1985 (4) SA 466 (A) at 478E-479F
2   Esp Gray v Smith (1889) 43 Ch 208 (CA) at 220; Burchell v Wilde (1900) 1 Ch 551 (CA) at 562-3; Lindley
on the Law of  Partnership 14 ed pp 229-230; but see Byford v Oliver [2003] EWHC 295 (Ch).

[5] It is not necessary to consider whether that correctly states the
consequences of the dissolution of a partnership in our law because in this
court that concession was not made and the evidence establishes clearly that
Grütter and Lombard were not in partnership. The essential features of a
partnership were expressed in the following terms in Joubert v Tarry & Co:3
‘These essentials are fourfold.  First, that each of the partners brings something into
the partnership, or binds himself to bring something into it, whether it be money, or his
labour or skill.  The second essential is that the business should be carried on for the joint
benefit of both parties.  The third is, that the object should be to make profit.  Finally, the
contract between the parties should be a legitimate contract.’
But for the fourth feature, which is not peculiar to contracts of partnership,4
those characteristics of a partnership have since been consistently endorsed by
this court.5 In Pezzutto v Dreyer they were summarised as follows:6
‘In essence…a partnership is the carrying on of a business (to which each of the
partners contributes) in common for the joint benefit of the parties with a view to making a
profit.’

[6] In the present case although there was an apparent dispute on the papers
as to the nature of the relationship in truth the material facts are not in dispute

3   1915 TPD 277 at 280-1.
4   Bester v Van Niekerk 1960 (2) SA 779 (A) at 784A.
5   Bester v Van Niekerk, above; Purdon v Muller 1961 (2) SA 211 (A) at 218B-D; Pezzutto v Dreyer 1992 (3)
SA 379 (A) at 390A-C.
6   Above, at 390D-E.

and they disclose none of the features of a partnership. Grütter and Lombard
each pursued his own practice, independently of the other, each with his own
clients, each bearing his own expenses that were peculiar to his own practice,
and each reaping the rewards of his own endeavours to the exclusion of the
other. They came together only to share premises and certain administrative
facilities and the overhead expenses that that entailed.  It is true that at times
they both represented to others that they were partners, as pointed out by
Lombard, but that is not material if in truth their association lacked the
commonality of interest and reward that characterises a partnership.  It is clear
that it did lack that commonality and in the absence of a relationship of
partnership the name under which they practised was not an asset that fell to
be utilised and disposed of in accordance with partnership principles.  What
the evidence discloses is no more than an agreement between Grütter and
Lombard to associate with one another for the limited purpose of sharing
facilities and expenses and to pursue their respective practices under their joint
names.  That agreement having come to an end the question is whether
Lombard is entitled to use Grütter’s name in the description of his practice
without his consent.

[7] The extent to which the features of a person’s identity – for example his
or her name or likeness – constitute interests that are capable of legal

protection has received little attention from our courts. In the United States the
appropriation of a person’s name or likeness for the benefit or advantage of
another has come to be recognised as an independent tort during the course of
the last century.7  The English common law seems to have been more reticent
in that regard.8  In his illuminating dissertation on the subject9 P.P.J. Coetser
observes that in Germany ‘wide protection has been afforded by the positive
law to an individual’s interest in identity’ from which has emerged that ‘it is
unlawful to use certain aspects of personality for commercial purposes without
consent.’10

[8] In this country it appears to be generally accepted academic opinion that
features of personal identity are indeed capable (and deserving) of legal
protection.11  In his seminal work on personality rights, which draws in this
respect upon Coetser’s dissertation,12 Professor Neethling expresses it as
follows:13
‘Onder identiteit as ŉ persoonlikheidsbelang word verstaan daardie uniekheid of
eieaardigheid van ŉ persoon wat hom as ŉ bepaalde individu identifiseer of individualiseer

7   William L. Prosser Handbook of the Law of Torts 4 ed para 117.
8   Tim Frazer ‘Appropriation of Personality – a New Tort?’ 1983 (99) LQR 281.
9   P.P.J. Coetser Die Reg op Identiteit.  Unpublished dissertation for the degree magister legum at the
University of South Africa.
10  Above, p.67, (my translation)..
11  J. Neethling Persoonlikheidsreg 4 ed pp 44-47, 307; Coetser, above,  pp 269-270; Jonathan Burchell
Personality Rights and Freedom of Expression: The modern actio injuriarum p 333; David McQuoid-Mason
on ‘Privacy’ in Chaskalson et al Constitutional Law of South Africa  p 38-9.
12   Coetser’s dissertation was written under the supervision of Professor Neethling.
13   Neethling, above, pp 44-45.

en hom sodoende van andere onderskei.  Identiteit manifesteer sigself in verskeie indicia
waaraan die betrokke persoon herken kan word:  dit wil sê, fasette van sy persoonlikheid
wat kenmerkend van of eie aan hom is, soos sy lewensgeskiedenis, sy karakter, sy naam, sy
kredietwaardigheid, sy stem, sy handskrif, sy gestaltebeeld en so meer.  ŉ Persoon het ŉ
besliste belang daarin dat die eieaard van sy wese en handelinge deur buitestanders
gerespekteer moet word.  Dienooreenkomstig word identiteit geskend indien indicia
daarvan sonder magtiging gebruik word op ŉ wyse wat nie met die ware beeld van die
belanghebbende te versoen is nie.’
Professor McQuoid-Mason describes the appropriation of a person’s image or
likeness (the same must apply to other features of identity) as
‘a violation of a person’s right to decide for herself who should have access to her image
and likeness – something that goes to the root of individual autonomy or privacy.’14

[9] In Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk15
Mostert J recognised that the interest that a person has in his or her identity is
capable of delictual protection though his observations in that regard were
obiter.  Earlier, in O’Keeffe v Argus Printing and Publishing Co Ltd,16 it was
held that the actio injuriarum was capable of protecting a person against
unauthorized publication of his or her name and likeness in an advertisement.

14   David McQuoid-Mason, above.
15    1977 (4) SA 376 (T) at 386G-387B.
16   1954 (3) SA 244 (C).

[10] The essential elements of an injuria were formulated as follows by
Innes CJ in R v Umfaan17 (a formulation that was later approved by this court
in R v Chipo18):
‘If we look at the essentials of injuria we find – as pointed out by De Villiers in his
Law of Injuries, which is a mine of information on this subject – that they are three. The act
complained of must be wrongful; it must be intentional; and it must violate one or other of
those real rights, those rights in rem, related to personality, which every free man is entitled
to enjoy.  Chief Justice De Villiers says (p.27): “With these ingredients to hand it will be
found that there are three essential requisites to establish an action of injury.  They are as
follows – (1) an intention on the part of the offender to produce the effect of his act; (2) an
overt act which the person doing it is not legally competent to do; and which at the same
time is (3) an aggression upon the right of another, by which aggression the other is
aggrieved and which constitutes an impairment of the person, dignity or reputation of the
other.”’

[11] In O’Keefe (which was decided on exception to the claim) it was held
that the non-consensual publication of a person’s likeness and name for
advertising purposes was capable of constituting an impairment of his or her
dignity and thus an injuria.  Rejecting a submission that in order to constitute
a violation of dignity for purposes of the actio injuriarum there must
necessarily be an element of insult (relying for the rejection of that submission

17   1908 TS 62 at 66-7.
18    1953 (4) SA 573 (A) at 576A-B.

on what was said by this court in Foulds v Smith19) Watermeyer J went on to
say the following:20
‘It seems to me that to use a person’s photograph and name, without his consent, for
advertising purposes may reasonably constitute offensive conduct on the part of the user.
In the well known English case of Tolley v J.S. Fry and Sons Ltd., 1930 (1) K.B. 467; 1931
A.C. 333, a defamation case, and so not wholly in pari materia with the present case,
Greer, L.J., in the Court of Appeal expressed the view that in publishing a caricature of the
plaintiff without his consent as an advertisement for the defendants’ chocolate, the
defendants had acted
“in a manner inconsistent with the decencies of life and in so doing they were guilty of an act for which there
ought to be a legal remedy.”
Similarly in the United States of America the legal principle is well established that the
unauthorised publication of a person’s photograph for advertising purposes is actionable.
The principle there in force goes much further, and strikes at all invasions of privacy which
can reasonably be considered offensive to persons of ordinary sensibilities, and the
unauthorised use of a person’s photograph for advertisement purposes is merely one of
such instances (see Restatement of the Law, Torts para. 867 and the article of Prof. Winfield
in the Law Quarterly Review, p.33).
It seems to me that under our law similar considerations must apply.  The unauthorised
publication of a person’s photograph and name for advertising purposes is in my view
capable of constituting an aggression upon that person’s dignitas.  It is not necessary for me
in the present case to hold, and I do not hold, that this is always so.  Much must depend
upon the circumstances of each particular case, the nature of the photograph, the

19   1950 (1) SA 1 (AD) at 11. See, too, Burchell, above, pp 331-2.
20   249A-E.

personality of the plaintiff, his station in life, his previous habits with reference to publicity
and the like.  All that I need decide at this, the exception, stage of the action is whether the
publication of the advertisement in question is capable of constituting an injuria.  In my
opinion it is.’

[12] While the intrusion in that case seems to have been characterised as one
that went to privacy it was said by O’Regan J in Khumalo v Holomisa21 that
privacy is but one of ‘a variety of personal rights’ that are included in the
concept of dignitas in the context of the actio injuriarum.  The interest that a
person has in preserving his or her identity against unauthorised exploitation
seems to me to be qualitatively indistinguishable and equally encompassed by
that protectable ‘variety of personal rights’.  Any doubt in that regard is
removed by the protection that is now afforded to human dignity in s 10 of the
Bill of Rights,22 for as O’Regan went on to say in Khumalo:23
‘In our new constitutional order, no sharp line can be drawn between these injuries
to personality rights.  The value of human dignity in our Constitution is not only concerned
with an individual’s sense of self-worth, but constitutes an affirmation of the worth of
human beings in our society.  It includes the intrinsic worth of human beings shared by all
people as well as the individual reputation of each person built upon his or her own
individual achievements.  The value of human dignity in our Constitution therefore values

21   2002 (5) SA 401 (CC) para 27.
22   ‘Everyone has inherent dignity and the right to have their dignity respected and protected.’
23   Para 27.  See, too, S v Makwanyane 1995 (3) SA 391 (CC) paras 328 and 329;  Ferreira v Levin NO,
Vryenhoek v Powell NO 1996 (1) SA 984 (CC) paras 47-49;  National Coalition for Gay and Lesbian
Equality v Minister of Justice 1999 (1) SA 6 (CC) para 28.

both the personal sense of self-worth as well as the public’s estimation of the worth or
value of an individual.  It should also be noted that there is a close link between human
dignity and privacy in our constitutional order.  The right to privacy entrenched in s 14 of
the Constitution, recognises that human beings have a right to a sphere of intimacy and
autonomy that should be protected from invasion.  This right serves to foster human
dignity.  No sharp lines then can be drawn between reputation, dignitas and privacy in
giving effect to the value of human dignity in our Constitution.’

[13] But as appears from the formulation of the elements of an injuria in R v
Umfaan that I have quoted earlier in this judgment, not every intrusion upon
those protectable rights of personality will necessarily constitute an injuria.
Whether a particular act constitutes a wrongful (or unlawful) violation, and
thus an injuria, must necessarily be determined by considerations of legal
policy as in the case of any civil wrong.24  For an individual who chooses to
live in a community cannot expect always to be shrouded in anonymity.  One
can envisage various circumstances in which considerations of public policy
will justify conduct that impinges upon features of a person’s identity.  But it
is not necessary to consider what those circumstances might be because I can
see no such considerations that justify the unauthorized use by the respondents
of Grütter’s name for their own commercial advantage.  What is conveyed to
the outside world by the use of Grütter’s name is that he is in some way

24   Neethling, above, p 308 ; Burchell, above, p 414.

professionally associated with the respondents, or at least that he is willing to
have himself portrayed as being associated with them, which, as pointed out
by Professor Neethling,25  is a misrepresentation of the true state of affairs for
which there can be no justification. It was submitted on behalf of the
respondents that in fact the respondents do not intend to mislead and have
ensured that all enquiries that are made in relation to Grütter are always re-
directed to him.  That does not seem to me to meet the objection.  In my view
Grütter is entitled to insist that there should be no potential for error in the first
place and was entitled to the order that he claimed.  The parties were agreed
that if this were to be our finding the respondents should be allowed a period
of thirty days to rectify the matter.

[14] The appeal is upheld with costs which are to be paid by the respondents
jointly and severally.  The order of the court below is set aside and substituted
with the following order.  Paragraph (a) of the substituted order is to come
into effect thirty days from the date that this order is made:
‘(a)
The respondents are prohibited from using the name ‘Grütter’ in
the description of their practice or their respective practices; are
prohibited from representing in any way that the applicant is
associated with their practice or practices; and are ordered to

25   Above, p 308.

remove the name ‘Grütter’ from the description of their practice or
practices on any nameboard, letterhead or other material.
(b)
The respondents are ordered to pay the costs of the application
jointly and severally.’

____________________
R.W. NUGENT
JUDGE OF APPEAL

CONCUR:

STREICHER JA)
NAVSA JA)
HEHER JA)
COMBRINCK AJA)