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2021
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[2021] ZAGPPHC 718
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Zinathi International (Pty) Ltd v Glutathione South Africa (Pty) Ltd and Another (16151/2021) [2021] ZAGPPHC 718 (20 April 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER
JUDGES:
YES
/NO
(3)
REVISED: YES/
NO
Case number:
16151/2021
In the matter
between:
ZINATHI
INTERNATIONAL (PTY)
LTD
Applicant
V
GLUTATHIONE SOUTH
AFRICA (PTY) LTD
First Respondent
ASHLEY
HARPERSAD
Second Respondent
JUDGEMENT
MOSOPA,
J
1.
The applicant in
this matter brought an application against the respondents in terms
of Rule 6(12) of the Uniform Rules of Court,
to order the respondent
to remove any and all posts from all social media platforms which
state: “
Do not
accept any requests from Zinathi International”
,
and further to remove the posts from social media which read:
“
Do
not accept any request from this business we do not supply them no
more, they do not sell glutathione products. #theywontbeme
#saynotocheapproducts #saynotobackstabbers” (sic).
pending the
institution of a civil claim by the applicant against the
respondents.
URGENCY
2.
The respondents
admitted that there was a post, created by them, on their Instagram
account, about the applicant’s business,
but that this post has
since been removed from the first respondent’s Instagram
account. The applicant’s contended
that there exists a similar
post on the second respondent’s Facebook page and that it is
prejudicing the business of the
applicant.
3.
It is on the basis of
this averment, even though it was disputed by the respondents, that I
considered the matter urgent, as I was
of the view that if I do not
hear the matter now, the applicant will not be afforded substantial
redress in the future.
(see
Rule 6(12)(b) of the Uniform Rules of Court and
Luna
Meubel Vervaardigers (Edms) Bpk v Makin t/a Makin Furnitures
Manufacturers
1977 (4) SA 135
(W)
).
BACKGROUND
4.
The core business of
the applicant is to distribute, market and sell skincare and related
beauty products. The first respondent
is the supplier of a variety of
skincare products in South Africa, which includes creams, body gels,
capsules, oils, serums, powders
and IV vials.
5.
The nature of the
business relationship between the applicant and respondents is in
dispute, but it is apparent that the applicant
ordered skincare
products from the first respondent, which will then be delivered to
applicant at the expense of the first respondent.
6.
Matters came to a head
on 16 March 2021, when the applicant returned its consignment stock
to the first respondent. The applicant
further informed its existing
clients that it has terminated its agreement with the first
respondent. The applicant then received
telephone calls from its
existing clients about the post shared by the first respondent on its
Instagram account.
7.
The exact words posted
by the first respondent on its Instagram account read as follows:
“
do
not accept any requests from Zinathi International.”
In
the comments section, the following was shared;
“
#theywontbeme
#saynotocheapproducts #saynotobackstabbers”
8.
The first respondent
removed its post about the applicant from its Instagram account on 16
March 2021.
9.
On 22 March 2021, the
applicant’s legal representatives addressed a letter to the
first respondent, instructing the first
respondent to, amongst other
things, make an unreserved apology to their client’s customers
in respect of a post on the first
respondent’s Instagram
account, which makes defamatory statements about the applicant and,
withdraw the statement unconditionally.
10.
The applicant’s
legal representatives addressed another letter to the respondents,
dated 25 March 2021, instructing the respondents
to remove the post
on their Instagram account referred to in the letter dated 22 March
2021. In the event that they fail to do
so, the applicant will
approach the court to interdict the respondents from persisting with
the posts.
DISCUSSION
11.
The issue for
determination is twofold;
11.1.
Whether there exists a
defamatory post on either of the respondents’ social media
platforms, regarding the applicant; and
11.2.
In the event that such
a post exists, whether or not the respondents should be ordered to
remove such a post.
12.
The existence of
the post shared on 16 March 2021 by the first respondent about the
applicant has been confirmed. This fact is acknowledged
by the
respondents. It is common cause at this stage that the post was
eventually removed by the first respondent from its Instagram
account.
13.
The applicant contends
that, after the removal of the first respondent’s Instagram
post, the second respondent shared the
same post on his personal
Facebook page.
14.
The existence of this
defamatory post about the applicant on the second respondent’s
Facebook page was confirmed by Mr Markus
Swart. I must at this stage
pause to mention that no such allegations were levelled against the
second respondent in the applicant’s
founding affidavit, but
were only raised in the replying affidavit. Also, in the letters of
demand sent to the respondents, there
is also no mention of the
removal of the post from the second respondent’s Facebook page.
15.
The general rule, which
is well established in our law, is that in motion proceedings, the
applicant is required to make his or
her case in the founding
affidavit and not in the replying affidavit. (
see
Kleynhans v
van der Westhuizen NO
1970 (1) SA 565
(O)
).
This rule is based on the principle that the applicant stands or
falls by his or her founding affidavit. (
see
Director of
Hospital Services v Mistry
1979 (1) SA 626
(A) at 645H
).
This rule is also based on the procedural requirement of motion
proceedings which requires the applicant to set out the cause
of
action in both the notice of motion and the supporting affidavit. The
notice of motion and the founding affidavit form part
of both the
pleadings and evidence. The basic requirement is also that the relief
sought has to be found in the evidence supported
by the facts set out
in the founding affidavit (
see
Kleynhans
(supra)
).
16.
I must say that
annexure “RA1”, which is the alleged Facebook page of the
second respondent, is not clear and it is
difficult to make head or
tail of this page. One cannot even read what is written on this page
and counsel, in argument, directed
the court to what was written on
the Facebook page. However, the words which the applicant alleges to
be defamatory, as stated
in the notice of motion and the founding
affidavit do not appear on this page.
17.
Mr Markus Swart deposed
to the confirmatory affidavit only to the extent of confirming the
allegations made against him in the replying
affidavit. He did not
confirm the existence of the defamatory words as expressed by the
applicant in its notice of motion.
18.
In any event, the
applicant does not explain when this new issue, which was only
canvassed in the replying affidavit, came to its
attention. It is not
clear whether, at the time of deposing to the founding affidavit, the
applicant had knowledge of this issue,
as this is not dealt with in
the applicant’s replying affidavit. This is important in the
sense that the applicant seeks
an order to interdict the first and
second respondents to remove defamatory posts on their social media
platforms and further contends
that the second respondent still kept
the defamatory post on his Facebook page. The only inference I can
draw, is that the applicant
had knowledge of the existence of the
post (if it really existed) on the second respondent’s Facebook
page but failed to
deal with this allegation in its founding
affidavit. That fact alone is fatal.
19.
What is common
knowledge is the fact that the first respondent removed the alleged
defamatory post on its Instagram page on 16 March
2021, a fact
accepted by the applicant in its replying affidavit. This application
against the first respondent then becomes academic.
20.
The applicant, in its
letter of demand to the first respondent, never mentioned the
existence of a defamatory post on the second
respondent’s
Facebook page and the second respondent was never instructed to
remove any defamatory post from his Facebook
page. This issue only
arose in this application. However, I am not satisfied that the
applicant has made out a proper case against
the second respondent
from what I said elsewhere in my judgment. In my view, the
application against the respondent ought to fail.
ORDER
21.
I therefore make the
following order:
1.
The application is
dismissed with costs.
MJ
MOSOPA
JUDGE OF THE HIGH
COURT, PRETORIA
Appearances:
For
the applicant:
Adv C Britz
Instructed
by:
Friedrich Inc
Attorneys
For
the respondent:
Adv BC Bester
Instructed
by:
AH Stander Attorneys
Date
of hearing:
7 April 2021
Date
of judgment:
Electronically transmitted