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[2016] ZAWCHC 113
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Nuwater PTE Ltd and Another v Grahamtek Holdings Ltd and Another (7051/2016) [2016] ZAWCHC 113 (1 September 2016)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 7051/2016
In
the matter between:
NUWATER
PTE
LTD
First
Applicant
NUWATER
SOUTH AFRICA (PTY)
LTD
Second
Applicant
and
GRAHAMTEK
HOLDINGS
LTD
First
Respondent
GRAHAMTEK
SYSTEMS (PTY)
LTD
Second
Respondent
Date
of hearing: 13 June 2016
Date
of judgment: 1 September 2016
JUDGMENT
Introduction
[1]
The
applicants, Nuwater Pte and Nuwater South Africa (Pty) Ltd (‘Nuwater
SA’), and the respondents, Grahamtek Holdings
Ltd and Grahamtek
Systems (Pty) Ltd, carry on business in competition with each other
in the field of water treatment and desalination
using reverse
osmosis (‘RO’) water purification.
[2]
Mr
William (Koerie) Graham, an engineer and inventor, has since 1984
been involved in water desalination and treatment and was
instrumental in developing RO water purification technology. He
developed three patents, registered in South Africa and abroad,
which
are associated with 16” membrane RO technology. These patents
are owned by GrahamTek Singapore Pte (Ltd) (‘GTS’),
which
was registered in 2002 with Mr Graham as director, and Garfield
International Investments Ltd (‘Garfield’), a
company of
which Mr Graham was previously a shareholder and director. In 2002
GTS was granted the exclusive right of use by Garfield
in respect of
the patented inventions owned by it.
[3]
The
two applicants, which were registered at the end of 2009, conduct
business globally and in South Africa as associated companies
and
licensees of GTS and Garfield, with whom they claim an established
trade reputation and goodwill in the water desalination
and treatment
field in South Africa and abroad. Since April 2010 Nuwater SA has
held the exclusive licence to develop and exploit
the three patents.
[4]
In
2010 GrahamTek NuWater Singapore Pte Ltd (‘GNS’) was
incorporated in Singapore as a wholly-owned subsidiary of NuWater

Ltd, a company incorporated in the British Virgin Islands. GNS
purchased the business and assets of GTS. GTS remained in existence

for the purpose of holding patents and other intellectual property.
GNS, NuWater SA and NuWater Ltd have substantially the same

shareholders with the result that work done by GTS in 2014, was work
done in a business which is now part of the NuWater group
of
companies.
[5]
Mr
Graham is one of two directors of the first respondent, GrahamTek
Holdings Ltd, which was formed in 2015. He is also the sole
director
and his family trust shareholder of the second respondent, GrahamTek
Systems (Pty) Ltd, registered in 2000. Mr Graham
is no longer
associated with Garfield or GTS, having been a director of GTS until
2010. The respondents are neither associated
with nor are licensees
of GTS or Garfield. They are therefore not entitled to use or apply
the 16” patents in the course
of their business.
[6]
From
October 2010 to September 2011 the second applicant, Nuwater SA, and
the second respondent, GrahamTek Systems, were parties
to a service
agreement in terms of which GrahamTek Systems provided Nuwater SA
with knowledge and expertise in manufacturing, installation
and
related services for contracts between Nuwater SA and its clients.
Relations between the parties soured and the agreement was

terminated.
[7]
When
recent changes made by the respondents to their website were
discovered by the applicants in April 2016 the applicants called
on
the respondents on 22 April 2016 to remove the offending material,
viewing it as a prelude to the resumption by the respondents
of their
business in competition with the applicants. While the respondents
undertook to adjust typographical and factual errors
appearing in
their website, the email sent on behalf of the respondents recording
the amendments made was sent to an incorrect
email address and was
not received by the applicants. The application was therefore
launched without the applicants having insight
into those amendments
which the respondents had made. Nevertheless, it became apparent in
due course that most of the amendments
made did not resolve the bulk
of the applicants’ complaints which form the subject matter of
this application.
[8]
In
this application an order is sought in an amended notice of motion,
with costs, directing the respondents to remove from their
website,
including those with domain names
www.gtek.org.za
and
www.grahamtek.com
(together
referred to as their ‘website’) advertising and publicity
material ‘the following claims, misrepresentations
and matter’:
8.1
on
the right side of the homepage, the picture of an award from Global
Water Intelligence in 2008, bearing the wording:
“
Global
Water Intelligence
DISTINCTION
GrahamTek
16” RO Technology
Desalination
Plant
of
the Year
2008
Power
Searaya
Singapore
“
The
most significant technical advance
in
desalination of the year
”
;
8.2
under
the heading “Our Guarantee” on the page under the link
“ABOUT GRAHAMTEK”, the wording:
“
owns
and manufactures these patented solutions
”
;
8.3
on
the infographic under the heading “Our History” on the
webpage under the link “ABOUT GRAHAMTEK”, the
wording:
“
2003/4
:
Flow Distributor and Magnetic Field Improvements”, and
“
2010
:
World’s Biggest Mobile RO deployment
”
8.4
under
the heading “GLOBAL PRESENCE CASE STUDIES” on the page
under the link “CASE STUDIES”, the wording:
“…
GrahamTek
16” technology can be witnessed in more than 130 installations,
with this technology in use at some of the largest
Public Sector
Desalination Plants globally as well as Mining, Oil & Gas,
Shipping & Ports, Heavy Industry and Agriculture…providing

upwards of 768 Million Liters per day…
Some
of GrahamTek’s global experience in the application of 16”
RO Intellectual Property and technology is outlined
below. Most large
scale projects such as these would be done in partnership with other
Strategic Partners and specialist engineering
firms
.”;
8.5
every
case study listed on the page under the link “CASE STUDIES”,
which, for the sake of clarity, are headed “Singapore
Public
Sector”, “Singapore Private Sector”, “Israel
Public Sector”, “Dubai Public Sector”,
“Oil &
Gas Private Sector”, “Mining Private Sector” and
“Municipal Public Sector”;
8.6
on
the webpage under the link “TECHNICAL SPECIFICATIONS”,
the headings “55 Mega Liter per Day Waste Water”,
“10
Mega Liter per Day Power Plant”, “North Atlantic Test
Plant” and “Waste Water to Potable Water”
and all
of the wording and every link to a report under each and every one of
these headings; and
8.7
any
other claim or representation to the effect that:
8.7.1
the
Respondents hold any right in the patents to technology owned by
Garfield International Investments Ltd and in which the Applicants

hold exclusive use rights;
8.7.2
the
business of any of the Respondents is that of, or is associated with,
the business of any of the Applicants; and/or
8.7.3
the
Respondents have performed, or are otherwise associated with, and
works and projects which were affected by the Applicant (or
either of
them).
Preliminary
issues
[9]
At
the first date of hearing of the matter the respondents sought leave
to introduce further affidavits in opposition to the relief
sought by
the applicants on the basis that certain material had been omitted
from their answering papers given the haste with which
such papers
had been prepared. In an attempt to resolve certain issues arising in
the matter, the applicants recorded in writing
following extended
argument on the issue that they do not contend that the three 16”
patents confer exclusivity on the entire
16” process or that
the three patents relate to the entire 16” RO process. In spite
of this recordal made the matter
remained unresolved.
[10]
The
application to file further affidavits was granted by this Court,
having regard to the nature of the dispute between the parties
and
the issues which had arisen on the papers and subject to the
applicants’ right to reply in due course.
[11]
The
applicants’ application to strike out portions of the
respondents’ answering papers on the basis that they contained

legal argument, inadmissible material and were vexatious stood over
for later determination.
Issues
in dispute
[12]
The
applicants’ complaints turn on whether the offending material
identified as appearing on the respondents’ website
constitutes
unlawful competition by the respondents with the applicants because
it:
12.1
contains
misrepresentations made by the respondents as to the respondents’
business, track record and technology; and
12.2
constitutes
the passing-off by the respondents of technology, case studies and a
track record, of which the applicants are the repository,
as being
that of the respondents and their associated licensors.
[13]
Website
content which was alleged by the applicants to constitute an
injurious falsehood denigrating the applicants in relation
to a
Sedgefield Municipal installation was resolved through an amendment,
apart from the question of costs associated with this
aspect. The
remainder of the changes made by the respondents to their website
following the launch of this application did not
lead to the matter
being resolved with the result that the applicants persist with the
relief sought in their amended notice of
motion.
Applicants’
case
[14]
The
applicants take issue with the false impression created in the
respondents’ website that the respondents or Mr Graham
hold
rights in and to 16” RO patents when the technology which the
respondents are using is not patented and the respondents
have no
rights over the three patents in respect of which the applicants have
use rights.
[15]
Mr
John Holmes, Chief Executive Officer of both of the applicants,
states in the applicants’ founding affidavit that the
misrepresentations made by the respondents are calculated to draw
clients away from the applicants to the respondents and that they

have had, or will have that effect. The example of an email was put
up in which confusion arose in the mind of a client because
the
applicants had changed their name from GrahamTek to NuWater and in
which the applicants were asked if they still have access
to
GrahamTek technology. The applicants rely on their rights to the
trademark “GrahamTek”, which is owned by GNS, following

an agreement entered into in September 2010 between GTS and NuWater
Ltd, the parent company of GNS. The applicants persist that
the
respondents hold no rights in respect of such trademark.
[16]
The
applicants take issue with the overall impression created by the
website, which they state is false, that the respondents have

successfully developed and commercialised patents relating to the 16”
RO technology and implemented such technology in respect
of the case
studies referred to. In addition, the applicants state that technical
specifications on the respondents’ website
embody technical
reports in respect of several plants when the technology in those
plants is the subject of 16” RO patents
and the GrahamTek 16”
RO technology is that of GTS and not the respondents. The applicants
take issue with the respondents’
claim that the respondents are
entitled to apply all of the patents to the 16” RO technology
in the course of their business.
[17]
The
applicants state that it is irrelevant that Mr Graham was a director
of GTS in that this does not entitle the respondents to
make the
representations that they do in their website when the respondents
have no business or shareholding connection with GTS.
The fact that
Mr Graham invented the patented inventions this does not make this
history the respondents' history, when the respondents
had no rights
in or to the patents at any time. The applicants take issue with the
respondents’ inclusion of the picture
relating to the 2008
Global Water Intelligence award on their website, which award was not
received by the respondents but by GTS.
Although Mr Graham was
involved with GTS at the time, the applicants claim that the
respondents have no right to claim the award
as their own or rely on
the award as if it was one received by them when it is the applicants
that hold use rights over the three
16” patents used in the
implementation of the project.
[18]
The
applicants also rely on these exclusive use rights in respect of the
technology at Anglo Vaal’s Colliery, in which the
16”
patents were applied, and state that Anglo Vaal contracted the second
applicant and not the respondents to undertake
the project which it
designed and rebuilt. It follows that the world's biggest RO
deployment at Anglo Vaal, while built initially
by the second
respondent, was an installation which failed and was thereafter
successfully replaced by the second applicant and
not the
respondents. Other installations were similarly installed by GTS or
third parties and not by the respondents. The applicants
deny that
the second respondent was used at sites in Singapore and Israel and
state that this allegation in the respondents’
website is
unsubstantiated. Apart from the initial tender awarded to the
respondents in Vereeniging and the plant at Sedgefield
completed by
the respondents, the remainder of the plants and case studies
referred to in their website are not installations or
works
undertaken by the respondents but by GTS. The applicants also take
issue with the respondents’ blurring of the distinction
between
the installation of plants and the management of sites. The
applicants persist that the technology used in all these
installations
includes the technology which is the subject of the 16”
patents in respect of which the applicants hold exclusive use rights,

while the technology in Israel belongs to a third party and not the
respondents.
[19]
Furthermore,
it was a term of the service agreement entered into by the second
applicant with the second respondent regarding the
installation at
Anglo Vaal that all intellectual property developed including ‘
any
developments, enhancements and/or modification of the Water
Technology
’
arising
from the project would belong exclusively to the second applicant. It
follows, according to the applicants, that the method
design and/or
technology which is the subject of any inventions developed by the
second respondent while implementing the installation
at Anglo Vaal
in terms of the service agreement, is intellectual property belonging
exclusively to the second applicant.
Respondents’
case
[20]
In
opposing the application the respondents do not dispute that the
applicants hold the right to use the three 16” patents
as GTS’s
successor in title in respect of such patented inventions. What is
disputed is that these use rights include the
‘
total
GrahamTek technology
’
and
the associated goodwill and record arising from the application of
this technology in various projects and case studies. The
respondents
deny that the applicants have the exclusive right to use all 16”
RO technology. In addition, the respondents
claim rights to other
patented inventions which relate to 16” technology and dispute
that they are barred from making a generalised
reference to 16”
RO technology.
[21]
Mr
Graham in his opposing affidavit filed for the respondents states
that the RO process existed before the three 16” patented

inventions, evidence from the fact that 8” technology has been
used in the RO water purification and desalination industry.
The
three 16” patents are, he states, circumscribed ancillary
processes which are not integral to the 16” RO technology

process used by Grahamtek Systems. In any event, according to the
respondents the 16” technology is ever-evolving, ‘
the
patents have application on all technologies relating to water
treatment
’
and
off the shelf 16” vessels and membranes now include devices
which perform the same function as the Flow Distributors Mr
Graham
invented which make the use of such distributors unnecessary.
Furthermore, Mr Graham states that he has now developed a

non-electric technology to replace the ACD patent, being one of the
patents in respect of which the applicants’ hold use
rights. In
addition Mr Graham indicates that: ‘(o)
ur
new technology is not subject to any ACD or EMF patent right or any
other person's patent rights. At present we are causing this

invention to be patented and we expect registration shortly’
.
In a further affidavit filed Mr Graham relies on various patent and
trademark documents annexed to the affidavit as proof of the

existence of patents in respect of which the respondents hold rights
and to which they may refer.
[22]
The
respondents also dispute that the GrahamTek reputation is the sole
preserve or property of the applicants, who they claim are
relative
newcomers to the industry with which Mr Graham has been involved for
over twenty years. Instead, Mr Graham states that
his reputation and
that of his companies’ arises from his work, knowledge,
inventions and expertise in the field which in
2009 did not the vest
in the applicants. The respondents take issue with the applicants’
website claims of involvement in
various projects which predate their
existence and contend that their reference ‘
to
our technical know-how, expertise, experience and to our own patented
inventions, all in relation to the 16” reverse osmosis

technology
’
are
not references to their intellectual property.
[23]
The
respondents claim that their website accurately reflects their
patents, history, track record, expertise, intellectual property,

trade secrets and reputation in the GrahamTek technology developed
and invented by Mr Graham, not all of which is patented, and
which is
not owned or controlled by the applicants. While acknowledging that
the second applicant was at the time of its registration,
together
with GTS, the repository of the ‘
goodwill
and track record of GrahamTek technologies
’
,
the respondents claim an entitlement to refer to and use for their
own benefit their history and reputation in GrahamTek technology.

This is so given Mr Graham’s involvement in the invention of
the technology, the development and completion of the first
16”
technology pilot plant and in the construction of plants by GTS while
he lived in Singapore between 2003 and 2009 and
in South Africa
through the second respondent.
Discussion
[24]
Competitive
trading is unlawful when it involves wrongful interference with
another trader’s rights such as to infringe that
parties’
right to attract custom.
[1]
While it is actionable under the
lex
Aquilia,
fault
in the form of negligence or intent is not a requirement for
interdictory relief to be granted
[2]
and a final interdict may follow where there is shown to be a clear
right, an injury actually committed or reasonably apprehended
and the
absence of any other satisfactory remedy.
[3]
[25]
Although
there is no
numerus
clausus
of
acts which constitute unlawful competition, the generally recognised
categories are misrepresentations made by a rival trader
as to its
own business;
[4]
the publication
by a rival trader of injurious falsehoods concerning the company’s
business;
[5]
and the passing off
by a competitor of its goods or business as being associated with
that of the complainant, including the unfair
use of a competitor’s
fruits and labour.
[6]
[26]
Passing
off
consists
of a representation by one person that his or her business or
merchandise is that of another, or is associated with that
of
another.
[7]
To
succeed in a passing-off action, the applicants are required to show
that
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
and
thereby cause injury as a result to the applicants’
goodwill.
[8]
[27]
In
GrainCo
(Pty) Ltd v Van der Merwe and others
[9]
it
was determined that no passing off exists where a new company relies
on relationships its employees have built up with customers
during
prior employment, or where reference is made to the past history of
its employees. In addition, it has been held that goodwill

encompasses a number of factors, the most of important being that of
reputation,
[10]
which
is
the
opinion which the relevant
section
of the community holds of the business or its product. T
he
only aspect of goodwill that can be damaged by way of passing off is
reputation, which is the reason that a successful passing
off action
requires proof of a relevant reputation
.
[11]
[28]
It
is trite that where final relief is sought in motion proceedings, as
was stated in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[12]
and
Wightman
trading as JW Construction v Headfour (Pty) Ltd and another,
[13]
the
version of the respondents will be accepted unless it does not raise
a real, genuine or
bona
fide
dispute
of fact or raises a dispute of fact that is so far-fetched as to be
untenable in which case the Court is justified in rejecting
such
dispute of fact merely on the papers.
[14]
However, where the respondent has not sought to have the deponent
cross-examined and the Court is satisfied as to the inherent

credibility of the applicant’s factual averment, it may proceed
on the basis of the correctness thereof and include this
failure to
seek to cross-examine among those upon which it determines whether
the applicant is entitled to the final relief which
is sought.
[15]
[29]
The
respondents deny both that they have misrepresented their business,
track record and technology, or that they have passed the
applicants’
technology, case studies and track record off as their own or that of
their associated licensors.
The
applicants take issue with these denials as contrived given Mr
Graham’s knowledge of the facts when a director of GTS
and
Garfield at the relevant times, his signature of the agreement to
assign patents and his failure to address the crux of the
applicants’
complaints relating to the respondents’ website in his
affidavits filed and in the website amendments made.
Given the
conflicting stances of the parties it becomes necessary to consider
the substance of each of the applicants’ complaints
raised.
Global
Water Intelligence award
[30]
The
first misrepresentation claimed by the applicants with which they
take issue relates to the inclusion by the respondents on
their
website of a
picture
of the Global Water Intelligence award in 2008 for the use of
GrahamTek 16” RO technology in Power Searaya, Singapore
which
records this as the ‘most significant’ technical advance
in desalination of the year. There is no dispute that
the
respondents’ website does not record that the award was not
received by the respondents.
[31]
The
respondents claim that the award was granted as a consequence of the
application of GrahamTek 16” RO technology, which
technology
was developed by Mr Graham and implemented by him while he was a
director of GTS and that any complaint has been cured
by the
amendment of the website to reflect that: “
This
project was done between GrahamTek Singapore Pte Ltd and CH2M Hill
”
.
The respondents contend that Mr Graham is entitled to claim the
accolade, with the physical award in any event being in his
possession,
and that the respondents have not misrepresented the true
position.
[32]
The
applicants dispute that the addition of a reference to which entities
undertook the project cures the misrepresentation on the
website in
that the picture is calculated to create the false impression that
the award is for technology to which the respondents
have rights when
they do not;
and
that the respondents were involved in the project and were recipients
of the award when they were not
.
[33]
There
is no dispute that the applicants currently hold use rights in
respect of the three 16” RO patents which were patents
applied
by GTS and CH2M Hill in the Singapore project which was the subject
of the award. Although the applicants held no such
use rights over
the three patents in 2008 when the award was made and Mr Graham
remained associated with GTS at the time, the applicants
take issue
with the fact that the respondents were not associated with GTS when
the award was made and did not hold any rights
over the patented
technology. However, in spite of this, while reflecting that GTS and
CH2M Hill were involved in the project,
the respondents do not record
that they had no involvement in the project. Instead, they justify
the inclusion of the award on
the basis of Mr Graham’s
invention of the patented technology and his previous history and
involvement with GTS, a company
with which he is now no longer
involved.
[34]
A
reading of the website indicates that the respondents do not make it
clear that they did not receive the award, that they were
not
involved in the project which led to the award being made and that
they hold no rights over the patented technology which was
applied in
the project. In failing to do so, the true state of affairs is
misrepresented. This is so in spite of Mr Graham’s
involvement
with GTS at the time and his invention of the patented technology.
[35]
I
am satisfied that the applicants’ complaint in this regard does
not constitute an attempt to claim the award as their own.
Given the
applicants’ rights to use the patented technology which was
used in the project, the respondents’ reference
to and reliance
on the award amounts to a misrepresentation made by a rival trader as
to its own business and the passing off of
patented technology not
available to the respondents as technology available to them. The
respondents fail to appreciate that the
award was one given to a
distinct company with which the respondents were never associated,
one in which Mr Graham is no longer
associated and that Mr Graham’s
history is distinct from that of the respondents. Where a reliance is
placed on Mr Graham’s
history, as much is required to be
expressly stated by the respondents on the basis sent out in
Grainco
and
the failure to do lays the respondents open to complaints of
misrepresentation and passing off as raised by the applicants.
[36]
T
he
fact that the three patents do not confer exclusivity on the entire
16” process and that they do not relate to the entire
16”
RO process matters not given that it is impermissible for the
respondents to lay claim to a right to use such patents.
Existence
of patented solutions
[37]
The
applicants take issue with the inclusion on the respondents’
website under the heading “Our Guarantee” on
the page
under the link “ABOUT GRAHAMTEK”, the wording: “
owns
and manufactures these patented solutions
”
.
While the respondents put up documents which purport to prove the
existence of patented solutions belonging to them and to which

reference is made in their website, it is apparent from their further
affidavit filed that these either relate to trademarks, or

provisional or complete applications for patent registrations which
have lapsed or which have not been approved. None of the documents

put up by the respondents prove the existence of registered patents
owned or possessed by either the respondents or Mr Graham in
respect
of which they hold any rights. In addition, the proof of a registered
patent granted to GTS on 29 October 2008 in respect
of the
‘
manufacture
of membranes for desalinisation and filtration
’
is
not proof of a patent held by the respondents.
[38]
Instead,
the evidence shows that
over
a ten year period from 2004 a total of five patent applications were
submitted, four provisional and one complete relating
to a method of
building pumps, the treatment of contaminated water and the
separation of dissolved salts from water. The provisional

applications made were not followed by complete applications and
therefore lapsed and the rights to the patent in respect of a

complete application granted numbered 2010/05811 were assigned to
Garfield during December 2011.
No
patents were shown to be registered to the respondents or Mr Graham
and no pending patent application was discernable from the
documents
put up by the respondents. This is so in spite of Mr Graham’s
statement that ‘(o)
ur
new technology is not subject to any ACD or EMF patent right or any
other person's patent rights. At present we are causing this

invention to be patented and we expect registration shortly
’
.
[39]
Consequently,
with no proof that the respondents hold any rights in or to any
registered patents pertaining to the 16” membrane
RO system the
reference to the respondents owning and manufacturing “
patented
solutions
”
misrepresents
the true position. Given that it is the applicants that hold
exclusive rights in and to the only patents proved to
have been
registered over the 16” RO process, the respondents’
misrepresentation constitutes unlawful competition insofar
as it is a
statement which is factually incorrect and made by a rival trader in
a manner which amounts to the wrongful interference
with the
applicants’ right to attract custom.
Recordal
of history
[40]
In
relation to Mr Graham’s history, the applicants initially took
issue with the inclusion on the respondents’ website
under
the heading “William (Koerie) Graham – Executive
Chairman” and under the link “MANAGEMENT TEAM”
of
the wording: “
and
has successfully negotiated and installed GrahamTek Technology in
more than 16 countries covering a total of 130 installations
and in
excess of 780 Meg/Liter per day
…”
.
The
basis for the complaint was that Mr Graham did not negotiate or
install the technology as claimed and that in this regard the

respondents refer and rely upon projects in which both they and Mr
Graham were not involved.
[41]
As
a consequence of this complaint the respondents amended their website
to reflect that Mr Graham ‘
is
world-renowned and is synonymous with the desalination process and
the industry. He has been instrumental either as principal

consultant, advisor, technical specialist or has been consulted in
the use and application of the GrahamTek Technology in more
than 16
countries covering a total of 130 installations and in excess of 780
Meg/Liters per day’.
This
amendment did not however resolve the respondents’ reference to
their historical involvement in previous projects and
case studies in
130 installations.
[42]
The
dispute turns in the first instance on whether the respondents or Mr
Graham have been instrumental in 130 installations and
in excess of
780 Meg/Liters per day or whether what is intended from the wording
used, as the respondents suggest, that it is the
GrahamTek technology
which has been used in this manner.
[43]
There
is no merit in the respondents claim that the website has been
misread in that it is stated that GrahamTek technology has
been
applied in all of the projects referenced and not that the website
does not record that the respondents were directly involved
in every
project. This is so given the absence of any evidence that the three
patents in respect of which the applicants hold use
rights were not
applied with the implementation of GrahamTek technology in the
installations referred to. The respondents are not
entitled to
represent that the technology as installed in those installations
referenced in their website is available to them
when it is not.
[44]
From
a plain reading of the sentence under ‘Our History’ it is
apparent that the respondents intended to represent an
association
with the application or implementation of the GrahamTek technology
applied in 130 installations. Had this statement
been intended to
represent that their involvement was limited to Mr Graham’s
invention of the technology and its application
only in a restricted
number of countries and installations, as opposed to the extensive
roll-out of the technology referred to,
the website should properly
have stated as much. By failing to make this clear the representation
is made that the respondents’
history in relation to the
implementation and application of the GrahamTek technology is one of
involvement in large scale installations
in various countries as
referred to under ‘Case Studies’. The evidence however
does not support such claims.
[45]
Furthermore,
given that the applicants hold use rights to the three patented
inventions which have been used in the application
of 16” RO
technology, in the absence of any evidence to the contrary, the
reference to the installation of the GrahamTek
technology encompasses
a reference to such use rights. While the respondents sought to make
out a case that the three patents were
outdated and had been replaced
by off-the-shelf technology now available, there is no indication on
the papers that any of this
new technology was available in the
installations and applications referenced in the respondents’
website or that the three
patents had not been applied. The result is
that the respondents’ reference to the GrahamTek technology
includes a reference
three patents in respect of which the
applicants’ hold use rights.
[46]
The
respondents’ website at first referred to “
GrahamTek’s
global experience in the application of 16” RO Intellectual
Property and technology”
with
its stated that “
(m)ost
large scale projects …would be done in partnership with other
Strategic Partners and specialist engineering firms
.”
This was changed to reflect that: ‘
Some
of GrahamTek’s global experience in the application of 16”
RO Intellectual Property and technology is outlined
below. Most large
scale projects such as these would be done in partnership with other
Strategic Partners and specialist engineering
firms
.’
Allied
to the applicants’ complaint on this aspect is the respondents’
reference to
technical
specifications under headings
“
55
Mega Liter per Day Waste Water
”
,
“
10
Mega Liter per Day Power Plant
”
,
“
North
Atlantic Test Plant
”
and
“
Waste
Water to Potable Water
”
and
the wording and reports which appear on the website under each
heading which suggests the respondents’ involvement in
these
projects and reports.
[47]
The
applicants claim rights in and to the trademark ‘
GrahamTek
’
held
by GNS following an agreement entered into in September 2010 between
GTS and the first applicant. They claim that the goodwill
and
reputation associated with the trademark is vested in GTS and not in
Mr Graham or the respondents and state that the second
applicant was
registered under the name of GrahamTek NuWater (Pty) Ltd specifically
to vest it with the goodwill and track record
of the GrahamTek
technologies.
[48]
What
is clear is that the respondents’ are not entitled to lay claim
to an extensive history in the application and implementation
of the
technology when they hold no use rights over a portion of it. To do
so is to encroach on the applicants’ rights. Furthermore,
it is
not permissible for the respondents to misrepresent a history in
respect of the application of the GrahamTek technology when
they have
had no such history. Accordingly, the representation that the
respondents have an extensive history in the application
and
implementation of the GrahamTek technology is not a true reflection
of the facts, nor are the respondents at liberty to rely
on such
extensive implementation of the technology given the applicants’
use rights. It follows that the respondents’
website claims and
representations in this regard seek
to
indicate falsely that they hold the rights in and to technology which
they do not.
Case
studies
[49]
The
applicants dispute that the case studies listed on the respondents’
website, being those in the “Singapore Public
Sector”,
“Singapore Private Sector”, “Israel Public Sector”,
“Dubai Public Sector”, “Oil
& Gas Private
Sector”, “Mining Private Sector” and “Municipal
Public Sector” are case studies
or projects in which the
respondents have been involved.
In
addition, the applicants take issue with the respondents’ claim
of involvement in projects that were projects of the applicants,
GTS
and/or third parties.
[50]
It
is apparent from the papers that there is no evidence to support the
respondents’ claim of involvement in the case studies
cited or
to their claim of involvement in large-scale projects undertaken in
partnership with strategic partners and specialist
engineering firms.
Furthermore, the GrahamTek technology applied in these case studies
and projects includes the application of
the patented technology in
respect of which the applicants’ hold use rights. With no
evidence of involvement by the respondents
in the case studies they
refer to and with no rights to the use of the patented technology,
the respondents misrepresent that the
technical information put up as
arising from such projects is their own when it is not. The
respondents by so doing misrepresent
the true position and seek to
appropriate for themselves a trade reputation and goodwill which they
are not entitled to.
[51]
There
is furthermore no evidence of intellectual property and technology
belonging to the respondents having been installed at any
of the
sites referred to when other companies or international third-party
contractors and not Mr Graham installed technology or
built the
plants using the patented technology in respect of which the
applicants now hold use rights.
[52]
The
reference to case studies, projects and technical information by the
respondents on their website misrepresents the true position
and is
aimed at creating confusion in the minds of clients as to the
business, goods and/or services of the respondents. While
Mr Graham
may refer to his history, his involvement in projects and his
inventions, the respondents may not appropriate such history
as their
own. The effect is that there is a likelihood of confusion caused or
which may reasonably be caused between the business
of the applicants
and that of the respondents amongst customers.
Technological
improvements and the 2010 mobile installation
[53]
The
applicants take issue with the respondents’ claims and
representations made regarding their history in respect of “
2003/4
:
Flow Distributor and Magnetic Field Improvements”
and
an installation in“
2010
:
World’s Biggest Mobile RO deployment”.
The
applicants do so on the basis that the reference to the Flow
Distributor and Magnetic Field Improvements is a direct reference
to
the patented technology in respect of which the applicants hold use
rights, which technology forms no part of the respondents’

history. Furthermore, the 2010 mobile RO deployment refers to the
second applicant’s contract to re-build a plant for Anglo
Vaal
colliery in circumstances in which the initial build had failed and
Mr Graham was contacted to the second applicant to assist
with the
re-building process in terms of an agreement entered into with the
second applicant.
[54]
The
applicants’ state that it was they and not the respondents who
re-built the Anglo Vaal Colliery plant, with the respondents
at no
stage involved in this process. Mr Graham was involved in this
re-build with the terms of his agreement entered into with
the second
applicant being that any intellectual property which was developed
during the course of his work on the project was
to belong to the
second applicant.
[55]
While
the respondents dispute that the statements are untrue and rely on Mr
Graham’s entitlement to refer to his own history
and
achievements and to associate these with his present businesses, as
stated above, while Mr Graham may refer to his history
in various
projects, that history is to be distinguished from the history of the
respondents. This is so in that a failure to do
so misrepresents the
facts concerning the respondents’ involvement in circumstances
in which they are not entitled to refer
to a history which is that of
the applicants. It follows that the reference to 2010 mobile RO
deployment fails to reflect that
it was not the respondents that were
contracted to undertake the 2010 re-build of the mobile plant but the
applicants.
[56]
Furthermore,
Mr Graham and not the respondents was involved in the 2003/4
technology improvements referenced in their website. It
follows that
the reference to the respondents’ history as including 2003/4
improvements to patented inventions in respect
of which the
applicants hold use rights is factually incorrect and misrepresents
the true position. Had the respondents intended
to reference Mr
Graham’s history in this respect it can reasonably have been
expected of the respondents to expressly state
this fact and
distinguish Mr Graham’s history, in the manner approved of in
Grainco
,
from their own.
Conclusion
[57]
With
fault in the form of negligence or intent not a requirement for
interdictory relief, it is clear that the respondents have

misrepresented their own business, track record and technology by the
claims in their website in relation to the existence of patented

technology which does not exist, their claim of involvement in case
studies and projects which were implemented by other parties,

including GTS and the applicants, and their reference to the 2008
award in respect of a project with which the respondents were
not
involved.
[58]
In
addition, the respondents’ website reference to patented 16”
technology and case studies using such technology with
which they
were not involved but which concerned technology in respect of which
the applicants hold use rights, amounts to both
passing-off and the
unfair use of a competitor’s fruits and labour. The respondents
falsely represent that their business
and services are that of, or
associated with, businesses that were responsible for the
implementation of projects and case studies
when the rights to
patented technology reside in such other businesses.
[16]
[59]
I
am not persuaded that the respondents’ website references which
are the subject of the applicants’ complaint are reasonably

accurate or that they do not constitute a false description.
[17]
I am furthermore not persuaded, as the respondents’ claim, that
they derive no benefit or do not seek to derive benefit in
the claims
and representations made on their website. I accept that the
applicants have established the existence of a reputation
in the name
GrahamTek and its technology. Given their use rights in respect of
the three patents, their involvement in projects
which include the
Anglo Vaal colliery re-build and other projects and their proven
relationship with GNS and GTS it is clear that
the applicants’
reputation is one worthy of protection. The GrahamTek reputation is
neither exclusive to the respondents
nor Mr Graham and provides no
basis on which to deny the applicants the relief that they seek.
[60]
For
all of these reasons I am satisfied that the applicants have shown
the existence of a clear right to the interdictory relief
sought, the
existence of an injury which has actually been committed or one which
is reasonably apprehended and the absence of
any other satisfactory
remedy available to them. I consider it unnecessary to deal with the
merits of the application to have certain
objectionable material in
the supplementary answering affidavit of the respondents struck out
on the grounds that it is irrelevant,
inadmissible or argumentative.
[61]
Turning
to the issue of costs, having been unsuccessful in this application
there is no reason as to why the respondents should
not pay the
applicants’ costs. This is so in spite of the
respondents’
amendments to certain aspects of their website content. These
amendments did not resolve the bulk of the applicants’

complaints and it follows that the applicants were entitled to
approach the matter and proceed with the application in the manner

that they did.
[18]
Order
[62]
In
the result, the following order is made:
1.
The
respondents are directed to removed from their websites, including
those with domain names
www.gtek.org.za
and
www.grahamtek.com
the
following claims, misrepresentations and matter –
1.1
on the right side of the homepage, the picture of an award from
Global Water Intelligence in 2008, bearing the wording:
“
Global
Water Intelligence
DISTINCTION
GrahamTek
16” RO Technology
Desalination
Plant
of
the Year
2008
Power
Searaya
Singapore
“
The
most significant technical advance
in
desalination of the year
”
;
1.2
under the heading “Our Guarantee” on the page under the
link “ABOUT GRAHAMTEK”, the wording:
“
owns
and manufactures these patented solutions
”
;
1.3
on the infographic under the heading “Our History” on the
webpage under the link “ABOUT GRAHAMTEK”,
the wording:
“
2003/4
:
Flow Distributor and Magnetic Field Improvements”, and
“
2010
:
World’s Biggest Mobile RO deployment
”
1.4
under the heading “GLOBAL PRESENCE CASE STUDIES” on the
page under the link “CASE STUDIES”, the wording:
“…
GrahamTek
16” technology can be witnessed in more than 130 installations,
with this technology in use at some of the largest
Public Sector
Desalination Plants globally as well as Mining, Oil & Gas,
Shipping & Ports, Heavy Industry and Agriculture…providing

upwards of 768 Million Liters per day…
Some
of GrahamTek’s global experience in the application of 16”
RO Intellectual Property and technology is outlined
below. Most large
scale projects such as these would be done in partnership with other
Strategic Partners and specialist engineering
firms
.”;
1.5
every case study listed on the page under the link “CASE
STUDIES”, which, for the sake of clarity, are headed “Singapore

Public Sector”, “Singapore Private Sector”, “Israel
Public Sector”, “Dubai Public Sector”,
“Oil &
Gas Private Sector”, “Mining Private Sector” and
“Municipal Public Sector”;
1.6
on the webpage under the link “TECHNICAL SPECIFICATIONS”,
the headings “55 Mega Liter per Day Waste Water”,
“10
Mega Liter per Day Power Plant”, “North Atlantic Test
Plant” and “Waste Water to Potable Water”
and all
of the wording and every link to a report under each and every one of
these headings; and
1.7
any other claim or representation to the effect that:
i.
the
Respondents hold any right in the patents to technology owned by
Garfield International Investments Ltd and in which the Applicants

hold exclusive use rights;
ii.
the
business of any of the Respondents is that of, or is associated with,
the business of any of the Applicants; and/or
iii.
the
Respondents have performed, or are otherwise associated with, any
works and projects which were affected by either of the applicants
or
both of them.
2.
The
respondents are to pay both the costs of this application and the
costs in respect of their application to file further affidavits.
_________________
K
M SAVAGE
Judge
of the High Court
Appearances:
For
applicants:          J
Dickerson SC
Instructed
by Edward Nathan Sonnenberg Inc.
For
respondents:      M Seale
Instructed
by Bornman & Hayward Inc.
[1]
Dunn
v Bradstreet v SA Merchants Combined Credit Bureau
1968
(1) SA 209
(C); Van Heerden & Neethling  Unlawful
Competition (1995) at 101.
[2]
Elida
Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1)
1988
(2) SA 350
(W) at 335;
William
Grant & Sons Ltd v Cape Wine & Distillers
1990
(3) SA 897 (C).
[3]
Setlogelo
v Setlogelo
1914
AD 221.
[4]
Stellenbosch
Wine Trust Ltd v Oudemeester Group
1977
(2) SA 221
(C ); Van Heerden
(supra)
at
149.
[5]
Van
Heerden
(supra)
at
283.
[6]
Dunn
& Bradstreet (supra); Schultz v Butt
1986
(3) SA 667
(A); Van Heerden at 149 and 247.
[7]
Capital
Estate and General Agencies (Pty) Ltd and others v Holiday Inns Inc
and others
1977
(2) SA 916
(A)
at 929 C-D.
[8]
Brian
Boswell Circus (Pty) Ltd and another Boswell v Wilkie Circus (Pty)
Ltd
1985
(4) SA 466
(A) at 478.
Reckitt
& Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd
1993
(2) SA 307
(A) at 315A-C.
[9]
Grainco
(Pty) Ltd v Van der Merwe and others
2014
(5) SA 444
(WCC) at paras 142-144.
[10]
Premier
Trading Company (Pty) Ltd and Another v Sporttopia (Pty) Ltd
2000
(3) SA 259
(SCA)
at 266J - 267A.
[11]
Caterham
Car Sales & Coach Works Ltd v Birkin Cars (Pty) Ltd and
another
[1998] ZASCA 44
;
1998
(3) SA 938
(SCA)
at para 16 w
ith
reference to
Hoechst
Pharmaceuticals (Pty) Ltd v The Beauty Box (Pty) Ltd (in
liquidation) and another
1987
(2) SA 600
(A)
at 613F-G;
Brian
Boswell Circus (Pty) Ltd and another v Boswell-Wilkie Circus (Pty)
Ltd
1985
(4) SA 466
(A)
at 479D;
Williams
t/a Jenifer Williams & Associates and another v Life Line
Southern Transvaal
[1996]
ZASCA 46
;
1996
(3) SA 408
(A)
at 419A-B, 420B.
[12]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 643E-635C.
[13]
2008
(3) SA 623
(A) at para 12.
[14]
With
reference to
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T);
Da
Mata v Otto NO
1972
(3) SA 858
(A) at 882 D-H.
[15]
Rikhoto
v East Rand Administration Board and Another
1983
(4) SA 278
(W) at 283 E-H.
[16]
Pioneer
Foods (Pty) Ltd v Bothaville Milling (Pty) Ltd
[2014]
2 All SA 282
(SCA);
Premier
Trading Co (Pty) Ltd v Sporttopia (Pty) Ltd
2000
(3) SA 259 (A).
[17]
Eserich
Development (Pty) Ltd v Andrew Mentis Steel Sales (Pty) Ltd
1983
(3) SA 810 (W).
[18]
FNB
of Southern Africa Ltd v First EC Financing
;
Nkume
v Firstrand Bank Ltd
2012
(4) SA 113
(ECM) at para 9.