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2023
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[2023] ZAGPJHC 1257
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Geo Equip Africa (Pty) Ltd v Geobrugg Southern Africa (Pty) Ltd (2023/106927) [2023] ZAGPJHC 1257 (31 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO: 2023/106927
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
01/11/23
In the matter between:
GEO
EQUIP AFRICA (PTY) LTD
APPLICANT
And
GEOBRUGG
SOUTHERN AFRICA (PTY) LTD
RESPONDENT
JUDGMENT
WRIGHT J
The
applicant company imports and sells wire mesh. The respondent is a
trade competitor. There is patent litigation between the
two which
is pending.
The
respondent told at least one customer of the applicant that the
applicant sold counterfeit wire mesh.
On 13
October 2023, the respondent undertook in writing to the applicant
not to “
make
further statements in relation to counterfeit goods to potential
clients in South Africa
.”
The letter stated that an amended undertaking would be sent to the
applicant in due course.
The
applicant seeks an urgent interdict.
It
says that the matter is urgent as it needs to protect its name and
standing in the market.
It is
the applicant’s case that the defamation was made to the
applicant and potential customers of the applicant but that
the
undertaking not to repeat the counterfeit allegation was given only
to the applicant and that therefore, because no retraction
has been
made to the applicant’s customers, the applicant is prejudiced
in the market.
In the answering
affidavit, the respondent accuses the applicant of infringing the
respondent’s oversees parent company’s
registered trade
mark, Blast On. Although the trade mark is not yet registered in
South Africa, the holding company intends seeking
registration as
soon as possible.
There
is no counter-application.
In
the replying affidavit, the applicant undertakes to remove all
reference on its website to Blast On and the applicant
undertakes to remove certain images which the respondent says
infringes its copyright.
In my
view, the applicant is entitled, not only to a retraction, which it
has, but also to an order that the respondents send
a retraction to
the persons to whom the counterfeit allegation was made.
In
argument, Mr Bester SC for the respondent said that the undertaking,
referred to by his client was overtaken by the launching
of the
application. This excuse is very weak. Nothing has stopped the
respondent from giving what it said it would give.
On
the evidence, the only inference to be drawn is that when the
respondent sent the counterfeit statement to at least one customer
or potential customer of the applicant the motive was to decrease
the applicant’s chances of being awarded a contract or
contracts.
The
applicant is entitled to a temporary order, operating with immediate
effect, costs reserved, to the effect that the statements
be
withdrawn and there be no related interference with its business.
ORDER
X as
amended. -
GC Wright
Judge of the High
Court
Gauteng Division,
Johannesburg
HEARD
: 31 October 2023
DELIVERED
: 31 October 2023
APPEARANCES
:
APPLICANTS
Adv R Michau SC
reinard@clubadvocates.co.za
083 288 2345
Adv L Haril
LHarilal@clubadvocates.co.za
082 467 7684
Instructed
by Smit & Van Wyk Inc, per Wessel Van Wyk and Niel Meirng
RESPONDENT
Adv AJ Bester SC
bertbester@law.co.za
082 567 0591
Adv P Ferreira
pferreira@clubadvocates.co.za
082 872 3378
Instructed
by Dr Gernholtz Inc per Otto Gernholtz
info@gerntlholtz.com