About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2018
>>
[2018] ZAWCHC 69
|
|
Mountain Oaks Winery (Pty) Ltd and Another v Smith and Another (20117/2017) [2018] ZAWCHC 69 (11 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 20117/2017
In
the matter between:
MOUNTAIN
OAKS WINERY (PTY) LTD
First
Applicant
EIKENBOSCH
FARM (PTY) LTD
Second
Applicant
and
MARION
SMITH
First
Respondent
ELGIN
RIDGE WINES
Second
Respondent
Delivered:
11 June 2018
JUDGMENT
BOQWANA,
J
Introduction
[1]
The
applicants brought an application before this Court seeking an order,
inter
alia,
in
the following terms:
“1. That the First, alternatively Second
Respondent be ordered, within five business days of the date of such
order, to cause
to be published on the home page and on the page
entitled “Organic Wine Producers” of the website
(
http://biodynamicorganicwine.co.za
)
and simultaneously therewith, to submit to SAWIS for circulation by
it to all its members, the following retraction;
‘
Please be advised that this website
previously published on the table of organic wine producers, that
“Mountain Oaks Wines”
are not certified organic. We
wish our readers to take note that this statement was incorrect.
Mountain Oaks Wines
are produced on the farm Eikenbosch, which is a
certified organic farm in all respects and every Mountain Oaks Wine
has been certified
organic.’”
[2]
The
second applicant is the owner of “Eikenbosch Farm”, which
styles itself as an organic farming operation. The wines
are bottled
and labelled under the brand “Mountain Oaks”.
[3]
The
first respondent is a business woman and resident at Elgin Ridge
Farm, Appletizer Road, Elgin.
[4]
The
applicants allege that Mountain Oaks wines are properly certified as
compliant with international standards for the production
of organic
wine. According to them such certification is not only
prestigious, but is also a necessary condition for access
to most
export markets, such as the European Union (“EU”).
[5]
Mr
Mark Stevens, who is a director in both applicants and the deponent
to the founding affidavit, alleges that in and during the
period of
September 2016 and 14 August 2017 (the exact date of publication is
unknown to the applicants), the first respondent
falsely published,
on the website
http://
biodynamicorganicwine.co.za
(“the website”)
,
that Mountain Oaks “Wines” (alternatively “Winery”)
are not certified organic. She withdrew this
statement pursuant
to a demand from Mr Stevens. According to the applicants the
withdrawal of the statement is insufficient
to address the continuing
harm that has been caused to them.
[6]
On
11 September 2016 the first respondent had sent an email to Mr
Steven’s offices, explaining that she was interested in
starting a register of organic and biodynamic wine producers. The
purpose of her email was to enquire whether Mountain Oaks
was a
certified organic or biodynamic wine producer. On 13 September
2016 Mr Stevens responded by stating that:
“Eikenbosch Farm is a certified organic
farming operation and wine is one of our outputs. We have been
certified fully
organic since 2005 and, although not biodynamic, I am
well connected with the biodynamic movement and use their concepts to
solve
organic farming issues…. Our wine was marketed
under the “Mountain Oaks” label but this was the creation
of my ex-wife, as she was the wine maker with assistance from Ross
Gower, and now that she has left the farm, the label will revert
to
“Eikenbosch”… Thought applied to the
marketing of organic wine can only be a good thing and I look
forward
to expounding ideas in this regard”.
[7]
On
the same day an email exchange occurred, in which the first
respondent asked Mr Stevens who their certification body was, so
that
they could be added on her register. He told her that it was
“SGS/LACON” and she thanked him. Mr Stevens
alleges
that he heard nothing further from the first respondent and thus gave
the matter no thought.
[8]
On
15 August 2017, he received a group email from SA Wine Industry
Information and System NPC (“SAWIS”), which is an
industry body set up for the purposes of disseminating topical
information of interest to various stakeholders in the wine
industry.
Mr Stevens alleges that he followed up the link
provided to the respondents’ website
–http://biodynamicorganicwine.co.za
- and noted in bold and red
that the first respondent had written that Mountain Oaks Wines,
alternatively the Winery (he could
not recall the exact wording), was
“not certified organic”, although the website had
subsequently been altered and
following his demand the entry relating
to Mountain Oaks was removed entirely. He could therefore not
reproduce the statement
on the website in the manner that it appeared
at the time.
[9]
The
applicants allege that the statement that Mountain Oaks Wines, or the
Winery as the case maybe, is are not certified organic,
is entirely
false, as every vintage that Eikenbosch produced enjoyed full
certification to the highest possible international standards
for
organic wine production. They contend that they were one of the
very first wineries in the Cape to receive certification
for organic
wine production. Mr Stevens alleges that he was shocked and
appalled that the first respondent had seen fit to
publish such a
gross and untruthful statement, which the applicants view as damaging
to their reputation and brand.
[10]
Mr
Stevens asserts that as he was directed to the website by the link in
the SAWIS email, so too would be the rest of the SAWIS
community –
a community of thousands of other producers and stakeholders in the
wine industry. According to him all
of these persons would have
seen the website as it stood prior to 15 August 2017, at which time
it prominently contained false
information about Mountain Oaks Wines
(alternatively the Winery
).
The removal thereafter of the misinformation disseminated to
those persons, was a prime example of “too little too
late”.
The
applicants requested an apology from the first respondent, which she
was not prepared to issue.
[11]
The
applicants allege that they have produced organic wine annually from
the 2005 vintage up to and including 2012 vintage.
For reasons
which are not relevant to this application, Mr Stevens caused the
2011 and 2012 vintages to be destroyed, in the presence
of SARS
officials. For various operational reasons the applicants have not
produced wine subsequently, and therefore the youngest
wine that the
first applicant has produced is from the 2010 vintage. For that
reason organic wine certification was not applied
for after 2012 –
again, because no wines were produced thereafter. As the
applicants age their wines naturally, they
still have stocks of the
2010 vintages, and older, on hand – which they release to their
clients periodically. Accordingly,
the only wines bearing the
Mountain Oaks label are from the 2010 and preceding vintages.
[12]
The
applicants allege that whilst the Mountain Oaks brand enjoys a strong
local following, by being distributed direct from the
cellar to top
hotels and restaurants, their primary market is the EU. The
applicants must therefore comply with the stringent
EU regulations,
and every vintage must be (and has been) certified organic by a
certification body duly recognised in the EU for
that purpose.
[13]
The
applicants attach the most recent inspection certificate, dated 7
September 2017, which has the word “
organic
”
next to wine products. Underneath that there is a phrase “
Wine
made with organic grapes
”.
The certificate was valid from 7 September 2017 to 31 December
2017. The applicants also attach an email, dated
27 September
2017, from one Barbara–Let van der Merwe, of Certification and
Business Enhancement. In this email Ms
van der Merwe explains
why the wine status is referred to as “
Wine
grown with organic grapes
”
and not “
Organic
wine
”.
In her email she states the following:
“The organic wine standard only came into
being towards the end of 2012 and was only applicable to wines from
2013 to be certified
against. Before 2013, all wines under the
EU – regulation could only be certified as “made with
organic grapes”.
I attach for you the earliest SGS –
certificate that also states this.”
[14]
As
the youngest vintage still in existence is the 2010 vintage, the
applicants attached certification in respect of the wine that
was
produced at that stage. The first certificate, dated 19
February 2010, was issued by the Bio Dynamic & Organic
Certification
Authority (“BDOCA”), an association that
was incorporated under section 21 of the Companies Act 61 of 1973 (
“the
1973 Companies Act”) and under the Auspices of the
Bio Dynamic Agricultural Association of South Africa. This
certificate,
clearly marked as “Organic Certificate”, was
issued for the period of 1 January 2010 to 31 December 2010. It
records the “Enterprise Name” as “Eikenbosch Farm”.
Next to “Authorized Products” it lists,
amongst
others, “
Organic
Grapes…Organic wines
”.
[15]
The
next certificate, which expired on 31 December 2010, was issued by
“Debio”, a Norwegian control body for organic
production,
operating under EU regulations for organic production, and accredited
by Norwegian Accreditation. It reads as
follows:
“Debio confirms that Eikenbosch Farm is
certified according to EU-Council regulation 2092/91 and the IFOAM
(International
Federation of Organic Agricultural Movements) Basic
Standards for organic primary production
and processing for the
following products: ORGANIC WINES
”
[16]
The
last certificate the applicants attached pertains to the 2011 wine,
which it destroyed together with the 2012 wine, demonstrating
for the
sake of completeness that it had also been issued a certificate by
Debio which confirmed that Eikenbosch Farm is certified
according to
the EU-Council Regulations 834/2007 and 889/2008, and Debio’s
IFOAM Basic Standard for organic farming, for
organic grape
production. It also states that in collaboration with BDOCA,
Debio grants certification for organic plant production
on Eikenbosch
Farm. Another Debio certificate, a “Certificate for
organic processing methods”, dated 14 April
2011, addressed to
Mr Stevens on behalf of Eikenbosch Farm, confirms compliance with the
above Regulations and Debio’s standards
for processing “Organic
Wines”. These certificates’ expiry date was 31
December 2011.
[17]
The
applicants allege they also possessed certification for the years
preceding 2010, which they did not think it was necessary
to
overburden the Court papers with.
[18]
On
the founding papers there is a bit of confusion as to precisely who
the producer of the wine was, between the first and second
applicants. Mr Stevens cleared this up in the replying
affidavit by stating that he had interposed the first and second
applicants at times in the founding affidavit, but such confusion is
absent from the correspondence exchanged with the first respondent.
[19]
It
is clear from the perusal of the documents attached to the
applicants’ papers that Eikenbosch Farm is the entity that was
issued with the certificates relating to the matter in question. In
the replying affidavit Mr Stevens alleges that the second
applicant
(as opposed to what was alleged in the founding affidavit), is the
producer of the organic grapes on Eikenbosch Farm,
the owner of the
cellar on Eikenbosch Farm where the organic wines are made, and the
owner of the stocks of organic wine, which
are labelled and then
supplied to the first applicant for on sale to customers.
According to him, the second applicant has
obtained all the necessary
certification for all its organic produce on Eikenbosch Farm.
It has, in addition, obtained all
the necessary certification through
private certification bodies. The first applicant has acquired
the duly certified organic
wines from the second applicant and
marketed them, with due reliance on the organic certification
obtained by the second applicant,
as it is entitled to do.
Furthermore the first applicant has only ever marketed the second
applicant’s wines.
[20]
The first
respondent,
on
the other hand, alleges that the domain name
“biodynamicorganicwine.co.za” was registered on her
instruction, on
9 March 2017, and in her name. It was launched
and made available for public access from 14 August 2017. The
purpose
of the website as stated on her home page is that:
“The Biodynamic and Organic Wines of
South Africa is an association of certified Biodynamic and Organic
wine producers. The
association was created to form a platform
for bringing together certified by Biodynamic and Organic wine
producers to help consumers
and media
to easily see which wine
producers are certified biodynamic and organic in South Africa
.”
(Own emphasis)
[21]
For
organic producers, certification is an important aspect of what they
do. Certification assures consumers that what they
are getting
is really organic. Organic wines are made using only natural
produce; no synthetic chemical additives are permitted.
Certified organic wine producers are listed on the “organic
wine producers” page which contains “…
details
for grape growers who either have certified grapes, or are in
conversion to organic vineyards but do not make their own
wine
”.
[22]
According
to the first respondent, the statement posted on the website from 14
August 2017 to 15 August 2017, for approximately
48 hours, in the
“NOTES” column, was in respect of the producer “
Mountain
Oaks Winery
”
and the statement read “
No
longer organic
”.
The respondents attached a printout of what they allege to be
the exact statement. This printout is not from
the website
itself, but produced from the records of Miraska Thomas, who is the
computer programmer assisting in the maintenance
and updating of the
respondents’ website.
[23]
The
first respondent alleges that the applicants have not provided any
evidence in support of what she terms “bald allegations”
that they were certified for organic wine production at the time when
the publication was made. She alleges further that
the
certificate dated 17 October 2014 to 21 October 2015, which is the
last certificate obtained by Eikenbosch Farm prior to the
statement
complained of having been made, did not certify Mountain Oaks as
producing organic wines, and in the interest of being
complete it
also did not certify Eikenbosch Farm as producing organic wines.
Further, the certificate dated 7 September 2017
to 31 December 2017,
only certified Eikenbosch Farm for “wine made from organic
grapes” for these dates, and not “organic
wines”.
This certificate was only signed on 7 September 2017, nearly
three weeks after the publication was made, and
subsequently removed
from their website. The first respondent also alleges that from
her investigation, the inspection certificate
from LACON contained no
“processing certification”, that the applicants are not
certified to make organic wine and
therefore cannot export wine to
the EU as organic wine.
[24]
The
first respondent states that since 1991, and prior to 1 August 2012,
wine was labelled as “made with organic grapes”
and
standards and regulations for the process of organic wine making did
not exist in the EU.
[25]
After
1 August 2012, EU standards and regulations changed and the process
for organic wine making was published. Since that
date, wines
complying with the relevant standards and regulations, and
appropriately certified, could make use of such certification
authorities’ certification trademarks, depicting that the wine
contained in the bottle was produced organically and therefore
constituted “organic wine”.
[26]
The
first respondent further refers to an email from SGS South Africa
(Pty) Ltd, dated 23 July 2013, which stated,
inter
alia,
that:
“[
f]or the 2013 harvest
for wine
certified according to the EU regulation the claim of “made
with organic grapes” or “organic viticulture”
is no
longer allowed. Wine will either comply with EU regulation and
be labelled as Organic Wine or will be conventional.”
[27]
She
also refers to the EU Rules for Organic Wine Production, highlighting
the history and background pertaining to the distinction
between
organic wine and wine made from organic grapes.
[28]
According
to her, as neither Mountain Oaks nor Eikenbosch Farm has made wine
since 2011, they have never produced a certified organic
wine within
the meaning of the EU standards and regulations for the production of
organic wine and, therefore could not be on the
list contained under
the organic wine producers’ page.
[29]
According
to the first respondent, compelling her to issue a retraction as
sought by the applicants, without the applicants having
the requisite
authorisation to claim that they are currently certified for the
production of organic wine, would be tantamount
to trademark
infringement. She alleges that no certificates had been given
to her showing that either Mountain Oaks or Eikenbosch
Farm are
certified to produce organic wines and therefore the statement
required by the applicants would be both misleading and
untrue.
[30]
The
respondents allege that the website had 95 visitors in the period
where the reference to Mountain Oaks was listed.
Discussion
[31]
It
is common cause that a publication of a statement relating to
“Mountain Oaks Winery” was made by the first respondent
on her website. The issue is whether the statement in question
was reflective of the factual position as at the time of the
publication of the statement. The first respondent alleges that
the statement published did not say that Mountain Oaks Winery
was
“not organic”, but that it was “no longer
organic”. In the first instance and to my mind the
statement “no longer organic” suggests that at some point
the wine produced by Mountain Oaks Winery was organic, but
at the
time of publication of the statement it was no longer organic. If
the first respondent did not have information supporting
organic
certification, as she alleges, the question is why she would state
that the wine was no longer organic as if she possessed
information,
or knew that at some point Mountain Oaks Winery was organic. She also
did not seem to appreciate the fact that Mountain
Oaks did not
actually produce the wine, it merely marketed and sold it on behalf
of Eikenbosch Farm, as stated in Mr Stevens’
email dated 13
September 2016, as thus: “
Eikenbosch
Farm is a certified organic farming operation and wine is one of our
outputs….Our wine was marketed under the
“Mountain
Oaks”.
[32]
On
its own the statement “no longer organic” cannot be said
to have been correct in the absence of any evidence to support
such a
position. In other words, if the first respondent was as careful as
she claims to be, to ensure that the information provided
to
consumers is correct, then why would she publish information that was
doubtful, purely on the basis of an email written by Mr
Stevens to
the effect that “Mountain Oaks” was used by his ex-wife
and that they were in the process of going back
to “Eikenbosch”.
Even that email does not say that Mountain Oaks was no longer
organic. It is really not clear
on what basis the first respondent
would rely on that email to support that conclusion. The reason
this question is important,
is because the first respondent was
careful to get a certificate that an entity is certified as a
producer of organic wines before
it could be listed as such on the
website, which begs the question as to why she would act on
information that was incomplete or
ambiguous.
[33]
The
first respondent’s contention is that at the time of
publication, there was no certificate to the effect that the
applicants
produced organic wine. Her whole argument is
premised on the fact that after 1 August 2012, the EU standards and
regulations
changed and a process for organic wine making was
published. According to her, what the applicants showed was
certification
relating to wine made with organic grapes, instead of
organic wine.
[34]
In
my view, the issue cannot be as simple as that. Firstly, it is
clearly stated in the new EU Regulations No 203/2012 that
the
regulations shall apply from 1 August 2012. Furthermore, clause
9 of this regulation crucially provides:
“9.
Wine is a product with a long
shelf-life and some wines are stored traditionally for several years
in barrels or tanks before being
placed on the market.
Under the conditions of Council Regulation (EEC) No 2092/91 of 24
June 1991 on organic production of agricultural products
and
indications referring thereto on agricultural products and foodstuffs
and for a limited period in accordance with Regulation
(EC) No
889/2008,
the marketing of such wines
by maintaining the labelling requirements under that Regulation
should be allowed until stocks are exhausted
.”
(Footnote
omitted - Own emphasis)
[35]
Other
important clauses in the Regulation are clauses 10 and 11 which state
that:
“10.
Some
of the stored wines were already produced by a wine-making process
which already complies with the rules on the production
of organic
wine provided for by this Regulation
. Where this can be
proven,
the use of the Community organic production logo as
referred to in Article 25 (1) of Regulation (EC) No 834/2007, called
from 1
July 2010 the ‘
Organic logo of the EU’
,
should be authorised
, to allow for fair
comparison and competition between organic wines produced before and
after the entry into force of this Regulation.
If this is
not the case, the wine should be labelled exclusively as ‘
wine
made from organic grapes’,
without bearing the
organic logo of the EU
, provided that the wine is produced
in accordance with Regulation (EEC) No 2092/91 and Regulation (EC) No
889/2008 before its amendment
by this regulation
.
11.
Regulation (EC) No 889/2008 should therefore be amended accordingly.”
(Own
emphasis)
[36]
It is evident from
the above clauses of the Regulation that its drafters did foresee a
need to make provision for wine that was
produced pre-August 2012,
but which was still kept in storage. In this regard they stated
that such wine could still be marketed
under Regulation (EC) No
834/2007. However, they made provision for a distinction
between the labels, or logos, to be used
for organically produced
wines from the pre-August 2012 era and that which was produced
thereafter, as appears in clause 10 quoted
above.
[37]
This
explains why the certificates issued after the 2012 period, in
respect of the applicants’ wine that was still kept in
the
cellar, referred to “wine made from organic grapes”. The
drafters clearly did not, by making a distinction
between the logos
to be used for wines produced between those two periods, deem all
wine produced before 1 August 2012 to be “no
longer organic”,
as the first respondent appears to suggest. To the contrary,
organic wine status is recognised in
both wines produced before and
after the coming into force of Regulation (EC) No 203/2012. The
recognition of the pre-August
2012 wine is an attempt to ensure that
the two different types of wine would be able to compete on an equal
footing, rather than
the one necessarily having an advantage over the
other.
The phrase “
to
allow for fair comparison and competition between organic wines
produced before and after the entry into force of this Regulation
”
clarifies that issue in my view.
[38]
It
therefore follows that to refer to the applicants’ wine as
being “no longer organic”, was erroneous.
Mr
Stevens explained throughout his papers that the only vintage he had
in store was up to 2010, all the wine after that period
having been
destroyed, for reasons that appeared to be between himself and his
ex-wife. He stated that there was no need
to obtain processing
and production certificates after 2010, as the second applicant was
no longer producing wine.
[39]
To
the extent that the first respondent needed clarification with
regards to the status of the applicants’ wine, or particularly
with reference to the email that she seems to have based her
conclusions on, she should have contacted Mr Stevens as she had done
in September 2016. It is rather strange that, given the tone of
the emails in 2016, which was cordial and co-operative, she
would
keep quiet for almost a year and for Mr Stevens to find out
via
an email link that Mountain Oaks Winery was stated as “no
longer organic” on the first respondent’s website.
He was neither warned to this effect nor was he given an opportunity
to comment on this before it was published.
[40]
It
is also strange that Mountain Oaks Winery would be listed on the page
that is intended to list Organic Wine Producers; as I understand
it,
the intention of listing on that page was to produce a positive list
of entities that actually produced organic wine.
I agree with
the applicants that it would follow that if a producer was not
certified, then they should not have appeared on that
list. If
Mountain Oaks Winery has never been certified as an organic wine
producer, why would it appear on the organic wine
producers list on
the website? Furthermore the relevant page of the website
appeared to have a “Notes” column,
where it was written
that Mountain Oaks Winery was no longer organic. The further
peculiarity is why full information, as
given by Mr Steven in the
email of September 2016, was not mentioned in the “Notes”
column, if that was the basis of
the statement posted.
[41]
As
to the factual position, Eikenbosch Farm was certified as a producer
of organic wine for the 2010/2011 year, by accredited organisations
such as BDOCA and Debio, a South African entity and
Norwegian
accredited entity
operating
under the EU Regulations for organic production. Those certificates
recognised compliance with production and processing
standards.
Therefore for the years from 2009 to 2011, the second applicant’s
wines were certified as organic according to
both South African and
EU standards. It has not been suggested that those certificates
were not authentic or valid. It
appears from the certificates
that they were issued on the strength of inspections that took place
by the individuals that have
been mentioned in those certificates,
and the second applicant as a producer was found to have complied
with the relevant standards
applicable at the time of the issuance of
the certificates. It is therefore incorrect to give an
impression that the second
applicant’s wines had either never
been organic, at any point, or ceased to be organic at some point, or
were as at the date
of the publication on the website, producers of
conventional wines.
[42]
It
is so that a new EU Regulation was introduced in 2012; however, it
did not make wines previously certified in terms of the old
Regulations no longer organic. It created a distinction in
logos to be used in wines produced pre- and post-August 2012.
Hence
the applicants were able to be issues certificates after that period,
the latest being September 2017, labelled as “wine
produced
from organic grapes”. The presentation on “EU Rules
for Organic Wine Production”, attached by
the respondents to
their answering papers, also confirms this. It states as follows, at
page 29, under “Certification according
to EU Rules”:
“Wine from vintages predating the new
regulation
which were produced
organically
but which cannot for
some reason demonstrate compliance with the requisites of the new
regulation can continue to be sold as ‘wine
from organic
grapes’”.
(Own
emphasis)
[43]
Taking
all those issues into account, I find no basis for the first
respondent to have stated (as a matter of fact) that Mountain
Oaks
Winery was not organic or no longer organic – whatever the case
may have been.
[44]
Another
point raised by the applicants, which I think is valid, is that the
first respondent’s website made no reference to
which standard
the producers were being gauged by. In her papers the first
respondent alleges that the statement was published
in the public
interest, because the public needs to know which wine producers
comply with Regulation (EU) No 203/2012 of 8 March
2012. No
reference was made in her website to any of the EU regulations, old
or new. Secondly, nowhere in her answering
affidavit did she
state that any of the producers listed on her organic wine producers’
page complied with the new regulations.
For what it is worth,
the applicants also pointed out that the certification in relation to
Elgin Ridge Wine Estates, issued in
2014 did not make reference to
new Regulations, but to Regulation (EC) No 834/2007 and Regulation
(EC) No 889/2008 which are old
Regulations.
[45]
I
now turn to consider whether the relief sought by the applicants can
be granted. They have sought an interdict. The
respondents’ counsel submitted that the applicants cannot be
granted the relief they seek in motion proceedings for a number
of
reasons. Firstly, he contends that the applicants must satisfy the
requirements of defamation, as there is no general principle
in our
law entitling a party to approach the Courts for a retraction, or an
apology (insofar as a retraction or apology is a competent
remedy),
without a finding of defamation. In his view, no clear right
has been shown by the applicants. In addition
to that, the
applicants do not make out a case that damage has occurred, much less
that that damage will be ongoing and will increase.
Furthermore, no
evidence is given in support of the allegation that any of the
applicants’ customers in fact read the alleged
defamatory
statement prior to its removal. The respondents further contend that
an alternative claim of damages is available to
the applicants and
therefore they cannot be granted any interdictory relief.
[46]
The
applicants, on the other hand, contend that the defamatory nature of
the first respondent’s conduct is incidental to the
matter.
They are entitled to the protection of the Courts by reason of
a delict on the respondents’ part, distinct
from the delict of
defamation.
[47]
According
to them, the publication, by a rival trader, of injurious falsehoods
concerning its competitive business is actionable,
as being unfair
competition.
[48]
The
applicants rely on the judgment of the Constitutional Court in
Le
Roux & Others v Dey
(Freedom
of Expression Institute and Restorative Justice Centre as Amici
Curiae)
2011
(3) SA 274
(CC), as authority for the publication of the retraction
sought in the notice of motion. In
Dey
the applicants, who were then learners at a high school in Pretoria,
overlaid images of the faces of Dr Dey (then the deputy principle
at
the school) and that of the school principal, on an image of two
naked men sitting in a sexually suggestive manner. The
High
Court found that the learners had defamed Dr Dey and awarded him
damages. This was confirmed by the Supreme Court of
Appeal.
[49]
In
the Constitutional Court the award for damages was reduced, and in
addition it ordered the learners to tender an unconditional
apology
to Dr Dey for the injury they had caused him.
[50]
An
important feature in that case is that the Court was invited to
develop Roman-Dutch common law, by giving due recognition to
the
value of an apology and retraction in restoring injured dignity. In
paragraphs 197 – 200, the Court observed,
inter
alia,
as follows:
“[197] …We think it is time
for our Roman-Dutch common law to recognise the value of this kind of
restorative
justice. Moreover, we think it can be done in a
manner which, at the same time, recognises the shared values of
fairness
that underlie both our common law and customary law, and
which form the basis of the values and norms that our constitutional
project
enjoins us to strive for.
[198] Roman-Dutch law was a
‘rational, enlightened system of law, motivated by
considerations of fairness’
which combined ‘the wisdom of
the Roman law jurists with the idealism of the Dutch scholars’.
This feature of
it was sometimes lost from view in pursuit of
doctrinal purity, but in virtually every aspect of Roman-Dutch law
one will find
equitable principles and remedies which give concrete
expression to its underlying concern with justice and fairness. And
this area of the law is no exception.
…
[200] Similar roots are to be
found in customary law and tradition, but their interrelation with
the Roman-Dutch
remedies, and their melding into the single system of
law under the Constitution, requires mature reflection and
consideration
of a future occasion.” (Footnotes omitted)
[51]
In
this connection, the Court, at paragraph 202, was of the view that:
“[r]espect for the dignity of others lies
at the heart of the Constitution and the society we aspire to. That
respect
breeds tolerance for one another in the diverse society we
live in. Without that respect for each other’s dignity
our
aim to create a better society may come to naught. It is
the foundation of our young democracy. And reconciliation
between people who opposed each other in the past is something which
was, and remains, central and crucial to our constitutional
endeavour. Part of reconciliation, at all different levels,
consists of recantation of past wrongs and apology for them.
That
experience has become part of the fabric of our society. The
law cannot enforce reconciliation but it should create
the best
conditions for making it possible. We can see no reason why the
creation of those conditions should not extend to
personal
relationships where the actionable dignity of one has been impaired
by another.”
[52]
The
Court ultimately found that the depiction of Dr Dey’s image was
an actionable injury to his dignity and that he was entitled
to an
apology. It therefore ordered that an apology be tendered to
him for the injury caused, in addition to the damages
awarded.
[53]
In
another decision, that of
Media
24 Ltd and Others v SA Taxi Securitisation (Pty) Ltd (Avusa Media Ltd
and Others as Amici Curiae)
2011 (5) SA 329
(SCA), at paragraph 72, Nugent JA, stated the
following:
“[72] It seems to me
that our courts are quite capable of expeditiously granting
reparatory remedies, without
damages, even without the intervention
of legislation. As it is, an order that damages are payable
implicitly declares that
the plaintiff was unlawfully defamed,
thereby clearing his or her name,
and there can be no reason why a
plaintiff should be forced to have damages as a precondition to
having the declaration
.
And if a declaration alone is
claimed, there can also be no reason why it should not be claimed in
the more expeditious procedure
of application
, instead of by
action, which is traditionally considered to be necessary when
illiquid damages are claimed. If a defence
advanced by the
defamer were to raise a factual dispute, then the factual dispute is
capable of being resolved by oral evidence
in the ordinary way, and
to be resolved expeditiously.” (Own emphasis, footnote
omitted.)
[54]
Although
this was a minority concurring judgment, I do not think that the
majority, by Brand JA, differed from the viewpoint that
Nugent was
advancing. The other members of the bench did not
take issue with Nugent JA’s exposition of
the alternative
remedy of an apology, except that it was left open for the future.
Snyders JA, who wrote another concurring
minority judgment,
simply remarked that the alternative remedies postulated by Nugent JA
had not been properly ventilated in Court
and therefore the direction
taken by Nugent JA needed to be explored in future litigation of that
kind.
[55]
Nugent
JA referred to
Le
Roux
supra with approval, in the context of the reputational rights of a
trading corporation. In this connection he posited a
view that
a trading corporation has an interest in its reputation which may be
protected. It should have a right to insist
that others do not
damage its good name, unless there is legal justification to do so.
(
In this regard
see paragraphs 74 to 81).
[56]
I
therefore see no reason why Nugent JA’s views could not be
applied in the present case. The respondents’ submission
that retraction should be distinguished from an apology, in this
context, is without merit.
[57]
Retraction
and an apology are often used together. This can be seen in
paragraph of 74 of the
Media
24
decision supra;
Le
Roux
supra
at paragraph 197; and
University
of Pretoria v South Africans for the Abolition of Vivisection and
Another
2007
(3) SA 395
(O) at paragraph 1.
[58]
In
the
University
of Pretoria
decision, the Court granted an order directing defamatory statements
to be retracted and an apology to be published and simultaneously,
the correct facts be set out (at paragraphs 1 and 18).
[59]
The
University
of Pretoria
judgment is further authority for the proposition that it is
competent for a court to grant an order directing respondents to
retract statements which are factually incorrect and to set the
record straight. An order containing a retraction and an
apology was also made by Willis J in the judgment of
Mineworkers
Investment Company (Pty) Limited v Modibane
(2001/20548, 2001/21162)
[2002] ZAGPHC 6
(18 June 2002), which was
one of the earliest judgment to grapple with the question of whether
an apology can be ordered in a defamation
case. Damages in that
case were only made payable in the event that an apology and
retraction was not published in the Business
Day Newspaper. The
Court in that case, at paragraph 25, also found that:
“[a] public apology which will usually be
far less expensive than an award of damages, can ‘set the
record straight’,
restore the reputation of the victim, give
the victim the necessary satisfaction, avoid serious financial harm
to the culprit and
encourage rather than inhibit freedom of
expression.”
[60]
Hiemstra
AJ in the decision of
Isparta
v Richter and Another
2013 (6) SA 529
(GNP), at paragraph 41, supported apology or
retraction as an appropriate remedy in its own right. In that
instance, he stated
the following:
“[40] An apology in the same medium
(Facebook) would have gone a long way towards mitigating the
plaintiff’s damages.
In fact, there is much to be said
for the proposition that orders for damages for defamation are
inappropriate. Nugent JA,
in a minority judgment in
Media 24
Ltd and Others v SA Taxi Securitisation (Pty) Ltd (Avusa Media Ltd
and Others as Amici Curiae)
, referred to a 1995 report of the New
South Wales Law Commission, referred to by Willis J in
Mineworkers
Investment Co (Pty) Ltd v Modibane
, which called damages as the
sole remedy for defamation ‘remedially crude’.
Nugent JA said in para [72]:
‘As it is, an order that damages are
payable implicitly declares that the plaintiff was unlawfully
defamed, thereby clearing
his or her name, and there can be no reason
why a plaintiff should be forced to have damages as a pre-condition
for having a declaration.’
An apology to the plaintiff, or a retraction in
writing, in the same forum that the offending statements had been
made, also clears
the name of the plaintiff.” (Footnotes
omitted)
[61]
In
another decision, that of
Heroldt
v Wills
[2014] JOL 31479
(GSJ), the Court held at paragraph 39:
“…In the circumstances of this
case, I am satisfied that by issuing an interdict that the respondent
is to remove the
posting, the court will be providing a remedy for
which there is no other by which the applicant, with the same effect,
‘kan
geholpen worden’. Besides, the interdict which
I propose to make will resolve the issue without the needless
expense,
drama, trauma and delay that are likely to accompany an
action for damages in a case such as this.”
[62]
These
cases indicate that our courts have moved on to recognise the value
of an apology and retraction, as remedies that may serve
to protect
or vindicate reputational rights and that damages need not be a
precondition before such remedies are realised. Secondly,
what
comes out of these cases is that such remedies are capable of being
granted in motion proceedings if the necessary requirements
are met.
The third issue is that an order may include both a retraction and an
apology and it would largely depend on the
circumstances of the case.
Although many of the cases involved damages, the courts have
found no difficulty in reasoning
that an apology may be awarded as a
remedy independent of damages.
[63]
These
cases involved defamation claims. The question that remains is
whether, as the respondents contend, no remedy of an apology
or
retraction (even if the court finds that an apology/retraction is an
appropriate remedy) may be ordered if defamation has not
been proved.
It will be recalled that the applicants in this case did not base
their case on defamation per se. They contend, however,
that whilst
they have not based their case on defamation, they have proved it on
the papers.
[64]
To
advance the basis of their case, they refer to the decision of
Nuwater
PTE Ltd and Another v Grahamtek Holdings Ltd and Another
(7051/2016)
[2016] ZAWCHC 113
(1 September 2016). They contend
that, as was found in
Nuwater
,
the publication of injurious falsehoods by a rival trader concerning
its competitor’s business, is actionable as being unfair
competition. (Also see
Schultz
v Butt
[1986] ZASCA 47
;
[1986] 2 All SA 403
(A)). This is a type of Aquilian
Liability. The applicants contend that the respondents are
their competitors and rivals
in the wine industry, and most
particularly in the market for organic wines. They contend that
the statement made on the
first respondent’s website about
Mountain Oaks Winery was false and undoubtedly harmful and therefore
actionable under the
actio
legis Aquiliae
.
In
Nuwater
the applicants had sought an order directing the respondents to
remove from their website advertising and publicity material, as
well
as certain claims and misrepresentations, which the applicants stated
constituted unlawful competition, because they contained,
inter
alia,
misrepresentations made by the respondents about the respondents’
business track record and technology. According to
the
applicants, in that case, these misrepresentations gave the overall
impression that the respondents had successfully developed
and
commercialised certain patents.
[65]
The
Court found at paragraphs 24 & 25:
“[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. 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
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.
[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; the
publication by a rival trader of injurious falsehoods concerning the
company’s business; 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.”
(Footnotes omitted)
[66]
It
appears from the facts that the statement “no longer organic”
was not accurate. I have no difficulty in holding that
it was a
misrepresentation, the publication of which would have been injurious
to the reputation and goodwill of the applicants,
who had traded and
marketed their wines as organic since 2005. The first
respondent was their competitor in that she was
also involved in the
production of organic wine. There should be no reason why the
applicants should not succeed on the basis
of unlawful competitive
trading on the basis similar to
Nuwater,
supra.
[67]
I
turn to deal with whether defamation has, in any event, been shown.
Defamation is defined as the wrongful and intentional
publication of a defamatory statement concerning another. (See
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) at para 18.)
[68]
In
Le
Roux
supra, at paragraph 85, the Court states as follows:
“Yet the plaintiff does not have to establish every one of
these elements in order to succeed. All the plaintiff has
to
prove at the outset is the publication of defamatory matter
concerning himself or herself.
Once the plaintiff has
accomplished this, it is presumed that the statement was both
wrongful and intentional
. A defendant wishing to avoid liability
for defamatory must then raise a defence which excludes either
wrongfulness or intent.
Until recently there was doubt as to
the exact nature of the onus. But it is now settled that the
onus on the defendant to
rebut one or the other presumption is not
only a duty to adduce evidence, but full onus, that is, it must be
discharged on a preponderance
of probabilities. A bare denial
by the defendant will therefore not be enough. Facts must be
pleaded and proved that
will be sufficient to establish the defence.”
(Footnotes omitted)
[69]
Based
on the facts, the first respondent has not been able to show that her
conduct was not wrongful, or that it was justified in
any respect.
She had no reason to publish a statement that Mountain Oaks Winery
was no longer organic, particularly because that
was not the purpose
of the website. The purpose of the website was to inform the
public as to which producers were organic
and not those that were
not. Furthermore, her conduct was not consistent with her
assertions of vigilance. The version
that there was no
intention to injure is rejected as it is not supported by the facts.
There is no reason not to accept that
the applicants, by virtue
of the certification as producers of organic wine that they held
since 2005, had built a reputation and
goodwill over time.
[70]
In
the end, it is clear to me that a clear right has been shown to
exist. As to the injury, I agree with the applicants that
an
injury has been actually committed or is one which is reasonably
apprehended. It is continuous and although the statements were
removed, there is a continuing violation of the applicants’
rights. Until the truth is published, the false information
regarding the applicants’ organic status continues in
circulation, and is likely to have stayed in the minds of those who
read the website. Consumers may reasonably conclude that the Mountain
Okes Wines are not certified organic or are no longer certified
organic.
[71]
On
the issue of another satisfactory remedy, as Nugent JA pointed out in
Media
24
,
particularly at paragraph 71, “
[t]here
is no reason why a wrong must be left to fester, on the basis that
damages can later salve the festering, when the wrong
is capable of
being repaired before the festering occurs”
.
The applicants contend also that the damages claimed may be difficult
to assess
. They
further allege that it would be almost impossible to determine
whether the restaurants or collectors of Mountain Oaks Wines
have
purchased less of the wine following the untrue statement. They
contend that it is very likely that the damage would increase
over
time if the interdict is not granted.
[72]
In my view,
therefore, the requirements for a final interdict have been met and
the applicants are entitled to the relief they seek.
The
removal of the statement by the first respondent was not sufficient.
The applicants are accordingly entitled to a retraction,
and
publication of a statement which reflects the true state of affairs
as at the time of the publication of the statement on the
first
respondent’s website.
[73]
I am not persuaded
that costs on attorney and client scale is warranted, as sought by
the applicants in this case.
[74]
The
following order is made:
1.
The
application succeeds with costs.
2.
The
first respondent is ordered, within ten business days of the date of
this order, to cause to be published on the home page and
on the page
entitled “Organic Wine Producers” of the websit
e
(
http://biodynamicorganicwine.co.za
)
and simultaneously therewith, to submit to SAWIS, for circulation by
it to all its members, the following retraction:
“
Please
be advised that this website previously published, on the page of
organic wine producers, that ‘Mountain Oaks Wines’
are no
longer certified organic. We wish our readers to take note that
this statement was incorrect. Eikenbosch Farm is the
producer of
Mountain Oaks Wines and had, at the time of the publication of the
statement, in stock vintages up to 2010. It had
been certified as a
producer of organic wines, for
the
wine in stock, by
accredited
organisations such as Bio-Dynamic and Organic Certification Authority
(“BDOCA”), a South African entity and
Debio, a
Norwegian
accredited
entity
operating under the EU Regulations for organic production. Those
certificates recognised compliance with applicable production
and
processing standards.
Please
note that this wine was produced prior to the new EU
Regulations
No 203/2012 which applied from 1 August 2012. Clauses 9, 10 and 11 of
EU Regulations No 203/2012 would therefore be
applicable in this
case.”
3.
The
first respondent is ordered to pay the applicants’ costs.
_____________________
N P BOQWANA
Judge of the High Court
.
APPEARANCES
For
the Applicant:
Adv D Welgemoed
Instructed
by:
Andrew Miller
& Associates, Cape Town
For
the Respondents: Adv F
Landman
Instructed
by:
Michael Ward Attorneys, Wynberg