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[2021] ZAGPPHC 330
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Clover SA (Pty) Ltd v Siqalo Foods (Pty) Ltd (12130/2021) [2021] ZAGPPHC 330; [2021] HIPR 174 (GP) (17 May 2021)
SAFLII
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personal/private details of parties or witnesses have been redacted
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IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
PROVINCIAL DIVISION, PRETORIA
CASE NO: 12130/2021
REPORTABLE:
NO
OF INTEREST TO OTHER
JUDGES:
NO
REVISED: N/A
Date of hearing: 23 March
2021
In
the matter between:
CLOVER
SA (PTY) LTD
APPLICANT
(Registration
No.: […])
And
SIQALO
FOODS (PTY)
LTD
RESPONDENT
(Registration
No.: […])
JUDGMENT
NYATHI
AJ
A.
INTRODUCTION
[1]
This is an urgent
application wherein the Applicant seeks final interdictory relief
against the Respondent.
[2]
The
essence of the Applicant's complaint is that the prominent use of the
word "BUTTER" on the Respondent's label for
its "STORK
BUTTER SPREAD" product misrepresents that it is pure butter and
not a modified butter product.'.
[3]
The Applicant contends that this
contravenes Sections 3 and 6 of the Agricultural Products Standards
Act 119of 1990 (the "Act")
and the Regulations Relating to
the Classification, Packing and Marking of Dairy Products and
Imitation Dairy Products intended
for sale in the Republic of South
Africa, GN R1510 ("the Regulations”), published under the
Act. The Applicant further
contends that this conduct constitutes
unlawful competition.
[4]
There are three questions presented:
4.1
Whether this application is urgent.
4.2
In the event that this application is found to be urgent, whether the
Respondent's STORK
BUTTER SPREAD is misleading; and
4.3
Whether the Applicant is entitled to final relief.
B.
URGENCY
[5]
At the inception of the hearing the
parties agreed that the aspect of urgency should be argued first.
[6]
From submissions made by on behalf of
the parties by their counsel the following facts can be distilled:
6.1
On
the 1 February 2021, the Applicant addressed a letter of demand to
the Respondent in which it complained of the latter’s
alleged
contravention of the Act and Regulations.
6.2
On
the 8 February 2021, the Respondent replied to the Applicant’s
letter of demand rejecting the former’s demands.
6.3
6
weeks later, the Applicant launched its application in which the
Respondent was given 4 business days to file an answer.
6.4
The
Applicant contends that this application is urgent and should be
heard as such. The respondent submits a contrary view.
C.
SUMMARY OF COMMON CAUSE FACTS
[7]
The Applicant seeks to interdict the
Respondent who has commenced distributing and selling a medium fat
product which has the words
“STORK BUTTER SPREAD” boldly
imprinted on its product label. The Applicant contends that in so
doing, the Respondent
is contravening the Act. More importantly that
Applicant’s commercial interests are negatively affected by the
alleged illegality.
[8]
The Applicant sets out the details of
this infringement very meticulously in its founding affidavit. Its
heads of argument are similarly
flawless in this regard.
[9]
The Respondent opposes this application
and sets out its reasoning both in its answering affidavit and in its
heads of argument.
[10]
As I stated under the sub-heading
‘Urgency’ above, I am called to assess and decide whether
the requirements for hearing
this matter on an urgent basis have been
met or not and proceed to do so hereunder.
D.
THE LEGAL REQUIREMENTS FOR URGENCY
[11]
Rule
6 (12) of the Uniform rules regulates urgent matters, i.e., matters
which need the urgent or immediate attention of the court
instead of
awaiting their turn to be allocated a date of hearing in the ordinary
course of events.
[1]
This
subrule allows applicants to ask the court to “…dispense
with the forms and service provided for in these rules.”
[12]
In
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite
[2]
and
Others Notshe AJ held “… the fact [that] the applicant
wants to have the matter resolved urgently does not
render the matter
urgent.” The court further held that the “procedure set
out in Rule 6(12) is not for the taking”.
[13]
The onus is on the Applicant to
persuade the court that the matter is urgent. It must do so in its
founding affidavit. The Applicant
should set out the circumstances
justifying the hearing of its application on an urgent basis and why
it would no obtain substantial
redress if the matter were to be heard
in due course.
[14]
"It
is important to note that the rules require absence of substantial
redress. This is not equivalent to the irreparable harm
that is
required before the granting of an interim relief. It is something
less. He may still obtain redress in an application
in due course,
but it may not be substantial. Whether an applicant will not be able
obtain substantial redress in an application
in due course will be
determined by the facts of each case. An applicant must make out his
cases in that regard.”
[3]
[15]
Commercial interests do in appropriate
cases justify the invocation of rule 6(12) of the Uniform rules. Such
was the case in
Twentieth Century Fox
Film Corporation & Another v Anthony Black Films (Pty) Ltd
1982
(3) SA 582
(JV) AT 586 G.
E.
SUBMISSIONS BY THE PARTIES
[16]
The Applicant lists its contentions on
urgency in paragraphs 95 to 102 of its founding affidavit as follows:
16.1
Unless
interdicted, there is a reasonable likelihood that consumers and
concerns such as the Applicant will suffer serious and irreparable
financial harm should the Respondent be allowed to continue selling
its STORK BUTTER SPREAD product.
16.2
The
alleged contravention of the Act and Regulations constitutes a
criminal offence of which the Respondent was made aware by way
of the
letter of demand which the latter chose to ignore. This renders the
matter urgent.
16.3
A
mere likelihood that consumers would be deceived or confused by such
continuing unlawful conduct would constitute sufficient grounds
for
urgency.
16.4
The
Applicant and the other competitors of the Respondent are obliged to
comply with and adhere to all statutory and regulatory
provisions in
the production, marketing and sales of their goods, irrespective of
the costs of such compliance. They are, therefore,
entitled to an
enforcement of those same statutory and regulatory provisions against
the Respondent so as to level the playing
field.
16.5
The
Respondent should not capitalise on misrepresentation of its modified
butter product and charge a “butter” price
for it. The
considerable financial benefit to the Respondent and the detriment to
the Applicant and the other competitors of the
Respondent is, with
respect, clear and manifest.
16.6
If
the Applicant were to approach this Court in the ordinary course, the
delay in resolving this dispute would be akin to "closing
the
gate once the horse has bolted" — the Respondent's product
will remain in commerce on sale for the duration and,
as a result,
the Applicant would continue to suffer financial harm and the general
public as consumers would suffer harm as a result
of being misled
into buying an unlawful product.
16.7
The
Applicant has not immediately resorted to litigation, instead it
first attempted via its Letter of Demand addressed to the Respondent,
to settle the matter outside of court. Only when that was rejected by
the Respondent, did the Applicant turn to this Court. This
the
Applicant did, in spite of the immediacy of the harm that it already
suffers as a result of the Respondent's product already
being sold.
[17]
The Respondent submits that there is no
basis to found urgency on the Respondent’s alleged
contravention of the Act and Regulations.
It states in its answering
affidavit at paragraphs 138 to 172. As follows:
17.1
The
Applicant contends that "consumers and concerns such as the
Applicant will suffer serious and irreparable financial harm"
should the Respondent continue to sell its STORK BUTTER SPREAD
product. It however does not supply any evidence how the consumers
would suffer said irreparable harm. The Respondent submits detailed
results of a market research it had conducted on consumer awareness
on the differences between “butter” and “modified
butter” products. This was not countered in the Applicant’s
replying affidavit.
17.2
The
Respondent then submits that the remainder of the Applicant's
submissions on urgency pertain to the Respondent's failure to
comply
with the Regulations and the alleged misleading of consumers.
17.3
The
Respondent sets out the timeframe (paragraph 151 onwards) around the
correspondence between the parties’ attorneys leading
up to
this litigation. An entire month had elapsed since the Applicant’s
letter of demand and approximately 3 weeks since
the Respondent
rejected the Applicant’s demands. The Applicant did not
forewarn the Respondent that the application to be
launched would be
an urgent application.
17.4
The
Respondent further takes issue with the fact that the Applicant took
6 weeks to launch its application but afforded Respondent
only 4 days
to respond thereto and considers this a gross abuse of the urgent
court process.
F.
ANALYSIS AND CONCLUSION
[18]
In
the
Luna
Meubels (Edms) Bpk v Makin
[4]
matter Coetzee J decried the abuse of the Rule 6 (12) procedure in
instances where no urgency existed or was justifiable.
[19]
In its submissions above, Applicant
makes allegations of “reasonable likelihood of consumers and
concerns such as the Applicant”
suffering serious irreparable
harm. applicant also concerns itself with issues of “a mere
likelihood that consumers would
be deceived or confused by such
continuing unlawful conduct would constitute sufficient grounds for
urgency.”
[20]
The preceding paragraph reveals the
Applicant’s real motive as being a self-serving enforcer of
trade and competition laws
in the field where it is operative,
ostensibly to protect the consumers and other competitors from
lawbreakers. This arrogation
of enforcement and oversight roles can
hardly bestow urgency to the complaints by Applicant in this matter.
[21]
Assuming for a moment that this
oversight role was indeed the Applicant’s remit, it could have
proceeded differently in its
crusade, notified the Respond clearly of
its intended approach, or took its time and waited its turn for
regular enrolment of its
matter on the court roll. The urgency is
thus contrived and lacks justification.
[22]
In the circumstances, I am not
persuaded that this matter should be heard as urgent.
G.
COSTS
[23]
Costs: The Respondent is entitled to an
award of its costs in this matter, having been compelled to respond
to an unexpected urgent
application in an inordinately short time.
The cost order should seek to ameliorate the inconvenience and
reflect the court’s
disapproval of the misuse of the Rule 6
(12) procedure.
H.
ORDER
I
make the following order:
The
application is struck from the roll. Applicant to pay the
Respondent’s costs on an attorney and client scale,
[5]
including costs occasioned upon the employment of two counsel.
J.S. NYATHI
Acting Judge of the High
Court
Gauteng Division,
Pretoria
Date
judgment delivered: 17 May 2021.
On
behalf of the Applicant: Adv AJ Bester SC with
Adv P
Eilers
Instructed
by: Janusz Luterek
HAHN
& HAHN ATTORNEYS
218
Richard Street
Hatfield
PRETORIA
0028
Tel:
(012) 431 2480/086 099 5130
Fax:
(012) 430 2103/086 632 4284
Email:
janusz@hahnlaw.co.za
REF:
Clover/Siqalo/JL
On
behalf of the Respondent: Adv Reinard Michau SC
With:
Adv L Harilal
Respondent's
Attorneys: KISCH IP
5
Inanda Greens Business Park
54
Wierda Road West
Sandton,
JOHANNESBURG
South
Africa
PO
Box 781218
Sandon
2146
Email:
AndrewP@kisch-ip.com
Tel:
+27113243012
REF:
R4997ZA00
[1]
Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s
Furniture Manufacturers)
1977 (4) SA 135
(W) at 136H
[2]
2012 JOL 28244
GSJ at par 6 and 7 / (11/33767) [2011] ZAGPJHC 196
(23 September 2011)
[3]
Notshe AJ in East Rock Trading 7 (Pty) Ltd and Another v Eagle
Valley Granite (Pty) Ltd at 7.
[4]
Footnote 1 supra.
[5]
In Re Alluvial Creek, Ltd
1929 CPD 532