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[2020] ZASCA 11
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Nativa (Pty) Limited v Austell Laboratories (Pty) Limited (1289/2018) [2020] ZASCA 11; 2020 (5) SA 452 (SCA); 2020 BIP 562 (SCA) (19 March 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
Reportable
Case
No: 1289/2018
In
the matter between:
NATIVA
(PTY)
LIMITED
APPELLANT
and
AUSTELL
LABORATORIES (PTY) LIMITED
RESPONDENT
Neutral
citation:
Nativa
(Pty) Limited v Austell Laboratories (Pty) Limited
(1298/2018)
[2020] ZASCA 11
(19 March 2020)
Coram:
NAVSA,
MOLEMELA and SCHIPPERS JJA, and MOJAPELO and EKSTEEN AJJA
Heard:
2
March 2020
Delivered:
19
March 2020
Summary:
Interim
interdict pending final interdict and damages claim – unlawful
competition – false disparagement of rival trader’s
goods
in advertisement broadcast on national television – initial
advertisement withdrawn – advertisement not sufficiently
altered – amounting to unlawful competition – interim
interdict justified.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Van Der Westhuizen J sitting as
court of first instance):
1
The
appeal is upheld with costs, including the costs of two counsel.
2
The
order of the high court is set aside and replaced with the following:
‘
2.1
Interdicting and restraining the respondent from utilising or causing
to be flighted the PIASCLEDINE advertisement described
in paragraphs
2.10 to 2.12 of the applicant’s replying affidavit as, “
the
amended advertisement
”
or any part thereof, and/or any colourable imitation thereof, in any
manner;
2.2
interdicting and restraining the respondent from competing unlawfully
with the applicant by, directly or indirectly, making
disparaging and
false statements regarding the applicant’s OSTEOEZE products
and their ingredients, glucosamine and chondroitin;
2.3
directing that the orders referred to in paragraph 2.1 and 2.2 above
operate as interim interdicts, pending the outcome of an
action to be
instituted by the applicant against the respondent, within 21 days of
the date of this order, for interdictory relief
and damages based on
unlawful competition; and
2.4
directing the respondent to pay the applicant’s costs, such
costs to include the costs consequent upon the employment
of two
counsel.’
JUDGMENT
Schippers
JA (Navsa and Molemela JJA and Eksteen and Mojapelo AJJA concurring)
[1]
The
proscription against unlawfully taking an improper advantage in
business is not new. As far back as 1887 De Villiers CJ in
Combrinck
,
[1]
said:
‘
Fair and
honest competition, however active, is open to everyone, but no one
has the right to take an undue and improper advantage
by means of
falsehoods, the effect of which is to benefit himself at the expense
of another.’
[2]
The
appellant’s case is that the respondent has done precisely
that, by falsely disparaging its product so as to increase
its market
share in the joint care supplement market in which they are
competitors. The appellant, Nativa (Pty) Ltd, is a pharmaceutical
marketing and sales company which markets 18 brands covering some 180
health products through leading pharmacies and major retail
stores in
South Africa, and exports its products to 20 countries worldwide. The
respondent, Austell Laboratories (Pty) Ltd, is
the largest privately
owned pharmaceutical company in South Africa. According to the
Nielsen South Africa data, as at August 2017,
the appellant had a
market share value of R50 664 996 (totalling 38%) in the joint
care supplement market, and the respondent,
a value of R27 960 496
(totalling 21%).
[3]
This
case concerns the appellant’s OSTEOEZE brand of products
launched in 1999, more specifically, OSTEOEZE GOLD. It is described
as a high potency joint formula in the form of a capsule, containing
high dosages of glucosamine and chondroitin (or ‘the
OSTEOEZE
ingredients’) which, according to its package insert, assists
the body in maintaining healthy cartilage. Many of
the leading joint
care products internationally and locally, contain some combination
of glucosamine and chondroitin. The respondent
markets a competing
product called ‘PIASCLEDINE’, manufactured by
Laboratoires
Expanscience
,
France, and used to relieve symptoms of osteoarthritis, such as pain
and difficulties when moving. PIASCLEDINE does not contain
either
glucosamine or chondroitin.
[4]
In
February and March 2018 the respondent caused an advertisement of
PIASCLEDINE to be broadcast on national television (the initial
advertisement) in which the appellant’s OSTEOEZE GOLD product
was also shown; and which stated, in essence, that glucosamine
and
chondroitin constituted a health risk to persons suffering from high
blood pressure, diabetes, asthma, shellfish allergies
and those
taking blood thinning medication; and that PIASCLEDINE was the ‘only
clinically proven osteoarthritis treatment
. . . safe to use with
other medicine’. The respondent’s representatives also
used the initial advertisement as part
of its training in pharmacies.
According to its package insert, OSTEOEZE GOLD should not be used by
those allergic to shellfish;
and persons using anticoagulant or
antiplatelet medication should use the product with caution as
glucosamine and chondroitin may
have a blood thinning effect.
However, the package insert does not state that the product is a
health risk or harmful to persons
suffering from high blood pressure,
diabetes or asthma.
[5]
Pursuant
to the broadcast of the initial advertisement, on 2 March 2018 the
appellant demanded that the respondent immediately withdraw
the
advertisement; that it furnish a written undertaking that it would
not use the advertisement in future; and that it would destroy
all
copies thereof. On 6 March 2018 the respondent advised that it would
alter the initial advertisement. Despite the appellant’s
requests, it failed to furnish the appellant with details of such
alterations. Subsequently the respondent, without admitting any
wrongdoing, undertook to withdraw the initial advertisement by no
later than 13h00 on 7 March 2018. However, the advertisement
continued to be broadcast until 12 March 2018. The respondent
ultimately withdrew the initial advertisement and gave an undertaking
that its sales representatives would cease using it as part of any
training in pharmacies. Indeed, the respondent threatened the
relevant media houses that they would be implicated in these
proceedings if they did not immediately withdraw the initial
advertisement.
Thereafter the respondent altered the initial
advertisement by blurring the picture of the OSTEOEZE products so
that they were
less distinct (the altered advertisement), which
repeated the warning that the OSTEOEZE ingredients were a health risk
to persons
with high blood pressure, diabetes and asthma.
[6]
On 16
March 2018 the appellant launched an urgent application in the high
court for, inter alia, an interim interdict restraining
the
respondent from utilising or broadcasting the initial advertisement
or any part or colourable imitation thereof; restraining
the
respondent from competing unlawfully with the appellant by making
false and defamatory statements regarding its OSTEOEZE products
or
their ingredients; and restraining the respondent, in terms of
s
23(1)
of the
Copyright Act 98 of 1978
, from infringing the
appellant’s copyright work in OSTEOEZE GOLD (the package
insert), pending the outcome of an action to
be instituted against
the respondent for unlawful competition and copyright infringement.
[7]
The
high court dismissed the application, holding that the appellant had
failed to show that it had a prima facie right worthy of
protection.
In a short judgment the court concluded that a comparison of the two
advertisements revealed that the appellant’s
product was ‘not
clearly and readily identifiable’; that no direct or indirect
reference to the appellant’s product
could be deduced from the
altered advertisement; that the expert opinion on the disadvantages
of using products containing glucosamine
and chondroitin by patients
suffering from high blood pressure, diabetes or asthma was
inconclusive; and that it was not possible,
on the papers, to
attribute any disparaging comments to the respondent regarding the
appellant’s product. The court found
that the appellant had not
made out a case of copyright infringement of its package insert in
the altered advertisement. The appeal
is with the leave of the high
court.
[8]
Before
us counsel for the appellant, advisedly, informed us that it was no
longer persisting in its claim for an interdict to restrain
the
respondent from infringing its copyright. The only issue then is
whether the appellant made out a case for an interim interdict
based
on unlawful competition.
[9]
The
requisites for the grant of an interim interdict are trite. These
are: a prima facie right; a well-grounded apprehension of
irreparable
harm if the interdict is not granted and the ultimate relief is
eventually granted; that the balance of convenience
favours the
granting of an interim interdict; and that the applicant has no other
adequate remedy.
[2]
[10]
The
right which the appellant asserted was the right to carry on its
trade without unlawful interference by the respondent.
[3]
Such interference constitutes ‘an
injuria
for which an action under the
lex
Aquilia
lies if it has directly resulted in loss’.
[4]
More particularly,
the appellant alleged that the respondent had infringed its goodwill
(its claim to considerable goodwill in the
OSTEOEZE brand was not
denied) by the publication of disparaging, untrue statements about
its products. Van Heerden and Neethling
state the principle this way:
‘
The direct
infringement of the goodwill of a competitor’s undertaking by
the publication of disparaging, untrue statements
about his business,
goods or services, is undoubtedly unlawful. Such a direct attack on a
rival is clearly in conflict with the
competition principle (and
therefore also
contra
bonos mores
):
there is no question of performance (merit) competition because the
perpetrator is deceiving the public as to the merit of his
rival’s
performance. Although it is possible that justification for this type
of conduct may exist, such justification will
probably be highly
exceptional.
Forms
of infringement by untrue disparagement are legion and may be of the
most divergent kind. Usually the misrepresentation is
directed at the
undertaking of a rival as a whole . . . or the performance which the
undertaking renders (such as a statement that
its products are of an
inferior quality or have a harmful effect on consumers).’
[5]
[11]
In
Geary,
[6]
Steyn CJ outlined the requirements for a claim based on injurious
falsehood (untrue disparagement), ie an intentional wrongful
act
under the Aquilian action, as follows:
‘
What
[the plaintiff]
has
to allege and prove, therefore, is that the defendant has, by word or
conduct or both, made a false representation, that it
knew the
representation to be false, that the plaintiff has lost or will lose
customers, that the false representation is
the cause thereof,
and that the defendant intended to cause the plaintiff that loss by
the false representation.
’
[7]
The
requirement of fault in the context of an interdict based on an
injurious falsehood is dealt with below.
[12]
That
brings me to the advertisements, both of which were shown to us in
court. The initial advertisement depicts a couple, walking
down the
aisle of a retail store that sells joint care products. The
advertisement states that it is ‘for the millions suffering
from stiff and painful joints who should not be taking glucosamine
and chondroitin’ if they suffer from high blood pressure,
diabetes, asthma, shellfish allergy, or if they are on blood
thinners. The couple stops at a shelf on which OSTEOEZE products
(blurred but identifiable by its distinctive packaging) are displayed
and the words, ‘WARNING: Glucosamine & Chondroitin
HEALTH
RISK’ appear prominently on the screen, while they look at each
other with concern.
[13]
Next,
the words, ‘Glucosamine Chondroitin HEALTH RISK!’ appear
on the screen in large letters in a circular device and
red stop
signs containing the words, ‘high blood pressure’,
‘diabetes’, ‘asthma’, ‘shellfish
allergy’ and ‘taking blood thinners’ appear around
the circular device. The lady in the advertisement takes a
box from
the shelf. As she removes the package insert, the distinctive
OSTEOEZE GOLD packaging appears at the top of the box, and
viewers
are warned to read what is clearly the OSTEOEZE GOLD package insert
before taking products containing glucosamine and chondroitin,
as
these ingredients ‘can affect your blood pressure or diabetes
and trigger asthmatic or allergic reactions’. The
words, ‘blood
pressure’, ‘asthma’ and ‘diabetes’ are
then superimposed in large font on an
enlarged package insert under
the heading, ‘WARNING AND SPECIAL PRECAUTIONS’. The word
‘allergic’, also
in large font, is superimposed on the
package insert under the heading ‘CONTRA-INDICATIONS’.
[14]
The
lady takes a box of PIASCLEDINE from a shelf, hands it to the man who
then holds up the box prominently on the screen. The advertisement
states that fortunately PIASCLEDINE is the only clinically proven
osteoarthritis treatment that reduces pain, improves movement,
slows
disease progression, lessens the need for harmful anti-inflammatories
and is safe to use with other medicines, whilst the
words ‘CLINICALLY
PROVEN’, ‘Reduces pain’, ‘Improves movement’,
‘Slows disease progression’,
‘Fewer harmful
anti-inflammatories’ and ‘No known drug interactions’
appear as positive bullet points on
the screen. It is also stated
that PIASCLEDINE contains ‘[n]o glucosamine, no chondroitin’;
and that it is the ‘No
1 prescribed osteoarthritis treatment by
doctors’. A large logo appears on the screen stating
‘CLINICALLY PROVEN’,
‘No glucosamine’ and ‘No
chondroitin’. A large bold block also appears containing the
words, ‘No
1 Prescribed treatment by SA doctors’.
[15]
The
altered advertisement is the same, save that the pictures showing the
OSTEOEZE products are less distinct due to a blurring
effect. Both
advertisements are 45 seconds long and their wording is exactly the
same, read out by the same narrator. The same
couple can be seen
walking down the aisle in the same store that stocks joint care
products. The changes in the altered advertisement
are best
illustrated by comparing the relevant visual components thereof to
those in the initial advertisement.
[16]
The
previously visible OSTEOEZE GOLD products on the shelf have been
further blurred but are still there. The outline of the OSTEOEZE
GOLD
box can still be seen. The words ‘WARNING: Glucosamine &
Chondroitin HEALTH RISK’ were simply moved to the
bottom of the
screen, to hide the appellant’s OSTEOEZE GOLD products with
their distinctive packaging.
[17]
No
changes were made to the warning that glucosamine and chondroitin
constitute a health risk in the case of the medical conditions
highlighted in red stop signs:
[18]
The
initial advertisement showed the OSTEOEZE GOLD package insert which,
the papers show, contains the name OSTEOEZE GOLD even though
it is
indistinct in the advertisement. The altered advertisement appears to
be an amalgam of the OSTEOEZE package insert and that
of another
competitor in the joint care supplement market.
[19]
There
was no change to the package insert used in both advertisements, with
its focus on blood pressure, diabetes and asthma under
the heading:
‘WARNING AND SPECIAL PRECAUTIONS’, and ‘allergic’
under the heading ‘CONTRA-INDICATIONS’.
[20]
Counsel
for the respondent however submitted that the claim that the altered
advertisement was an infringement of the appellant’s
common law
rights, and that the OSTEOEZE products were still in the altered
advertisement in blurred outline, was conjecture or
‘an
assumption drawn from watching the original and altered
advertisements side-by-side and frame-by-frame’; and that
the
altered advertisement contained no reference to the appellant’s
product.
[21]
But
that is not so. The two advertisements are the same, save for the
blurring of the appellant’s OSTEOEZE products and the
removal
of the OSTEOEZE GOLD package insert; and cannot be considered in
isolation. The initial advertisement, described above,
plainly
referred to the appellant’s product. The words, ‘WARNING’
and ‘HEALTH RISK’, were directly
attributed to
glucosamine and chondroitin. The thrust of the advertisement was that
these ingredients had a harmful effect on persons
suffering from high
blood pressure, diabetes or asthma, and should not be taken by them.
This, as is shown below, was untrue. The
respondent’s aim was
to influence members of the public not to buy OSTEOEZE GOLD and
instead, to buy PIASCLEDINE which contains
no glucosamine and no
chondroitin. The altered advertisement also continues to warn against
the health risks linked to glucosamine
and chondroitin.
[22]
The
respondent succeeded in this aim. The evidence presented in the court
below shows that a consumer suffering from high blood
pressure who
had been taking OSTEOEZE GOLD for three years, after seeing the
initial advertisement, expressed concern about the
warning in the
advertisement as to the potential side effects of OSTEOEZE, and
considered switching to PIASCLEDINE. Another consumer
who had been
using OSTEOEZE GOLD for some time, returned it to a pharmacy because
he was distressed about the claims made in the
initial advertisement
about its alleged harmful effects.
[8]
On the facts, the inference is inescapable that the respondent
withdrew the initial advertisement because it appreciated that it
had
engaged in unlawful competition. Its claim that it withdrew the
advertisement ‘without admission of wrongdoing’
rings
hollow.
[23]
As
already stated, the altered advertisement was exactly the same as the
initial one, except for the further blurring of the appellant’s
products and removing the picture showing its package insert. The
aims of the altered advertisement were the same as the initial
one,
which had laid the basis for the attack on the appellant’s
product: to show that glucosamine and chondroitin have harmful
effects, thereby injuring the appellant’s brand and its
business in the eyes of consumers, and diverting them to the
respondent’s
product. Applying a common sense approach to the
matter, it is extremely unlikely that reasonable viewers would have
noticed the
difference between the two advertisements. It is more
probable that they would associate both advertisements with the
appellant’s
product.
[24]
Apart
from this, the initial advertisement was used as marketing tool in
the field of healthcare products, and was shown in pharmacies
and to
other medical professionals who would obviously have known that the
initial advertisement referred only to the appellant’s
product,
which contains glucosamine and chondroitin. It is highly likely that
the altered advertisement has been and will continue
to be used as a
marketing tool. It is inevitable that pharmacies and health
professionals would also associate the altered advertisement
with the
initial one. In short, both advertisements were directed at diluting
the appellant’s brand and increasing the respondent’s
market share in joint care products at the appellant’s expense.
[25]
The
next question is whether, as the appellant contended, the
respondent’s claim made in the initial and altered
advertisements
that persons suffering from high blood pressure,
diabetes and asthma ‘should not be taking glucosamine and
chondroitin’,
emphasised by the use of the words, ‘WARNING’
and ‘HEALTH RISK’, is false, and unsupported by
acceptable
medical evidence.
[26]
The
appellant presented expert evidence by Dr Jeané Visser, who
conducted a scientific review in the form of a clinical expert
report, as to whether glucosamine and chondroitin were
contra-indicated and unsafe for use in special populations, including
consumers
diagnosed with hypertension, diabetes and asthma. Dr Visser
also did a thorough review of all possible contra-indications,
precautionary
use and warnings that needed to be communicated to the
consumer; and completed an additional literature review to confirm
that
the relevant population groups (with hypertension, diabetes or
asthma) were not at risk when using products containing glucosamine
and chondroitin.
[27]
Dr
Visser concluded that the respondent’s claim in the initial
advertisement concerning the use of glucosamine and chondroitin
were
incorrect, unsubstantiated and without any medical foundation. She
found that there were no convincing arguments to link unexpected
adverse reactions with either glucosamine or chondroitin in patients
suffering from hypertension, diabetes or asthma.
[28]
Prof
Anne Grobler, who holds a Ph.D degree in Pharmaceutics and a M.Sc
degree in Medical Biochemistry, and whose scientific career
spans
some 27 years, reviewed Dr Visser’s scientific and clinical
reports on the contra-indications for the appellant’s
OSTEOEZE
range, with glucosamine and chondroitin as its main active
ingredients. Apart from possible contra-indications of the
OSTEOEZE
ingredients, Prof Grobler also reviewed the literature on the safety
of glucosamine and chondroitin in select population
groups (persons
suffering from hypertension, diabetes or asthma). She also reviewed
the available literature concerning safety
and risk assessment data
in respect of the OSTEOEZE ingredients. The objective of her review
was threefold: to verify the data
in the scientific and clinical
reports presented to her by the appellant as to the
contra-indications of the OSTEOEZE range in
select population groups;
to expand the search to include available literature to safety and
risk assessment data of both glucosamine
and chondroitin; and to
express an opinion as to whether there were sufficient grounds for
concern about the safety of glucosamine
and chondroitin in the
OSTEOEZE range of products.
[29]
Prof
Grobler came to the following conclusions. There were no convincing
arguments to substantiate a link between either glucosamine
and
chondroitin, and contra-indications in consumers suffering from
asthma, diabetes or hypertension, and no causal relationship
was
proved. No temporal relationship between the administration of
glucosamine and chondroitin and their side effects could be
shown. No
convincing, reasonable causal relationship could be demonstrated
‘between either of the active ingredients or the
placebos,
concurrent disease or circumstance and adverse events’.
[30]
The
high watermark of the respondent’s case that glucosamine and
chondroitin were a health risk to persons with high blood
pressure,
diabetes and asthma, was a statement by Dr Ilse van Heerden, an
expert apparently consulted by it – not made under
oath or
affirmation – that ‘[b]ased on scientific literature
presented in this document merit exist[s] for the claim
on safety of
glucosamine and/or chondroitin products’. Once again, it is
necessary to say that an expert’s bald statement
of her opinion
is not sufficient. As Wessels JA said in
Coopers
,
[9]
‘[p]roper evaluation of the opinion can only be undertaken if a
process of reasoning which led to the conclusion, including
the
premises from which the reasoning proceeds, are disclosed by the
expert’. In this respect Dr Van Heerden’s report
was
lacking.
[31]
Further,
Dr Van Heerden did not take issue with the findings or the opinions
of the appellant’s experts, or the reasons for
their opinions.
And as pointed out by Dr Visser in her supplementary affidavit filed
in reply, the studies referred to in Dr Van
Heerden’s report
were aimed at investigating a possible link between diabetes and
arteriosclerosis – not on the effects
of glucosamine
supplementation on blood glucose levels, or diabetes. In addition,
the single case study (referred to
by both Dr Visser and Dr Van
Heerden) suggesting a possible link between the OSTEOEZE ingredients
and the aggravation of asthma
symptoms, was inconclusive (as other
variables could have resulted in this reaction) and without medical
foundation. Dr Van Heerden
proffered no acceptable medical evidence
for her opinion that glucosamine posed a risk to patients with high
blood pressure, and
she said nothing about the respondent’s
claim that PIASCLEDINE was ‘the only clinically proven
osteoarthritis treatment’.
[32]
Aside
from failing to produce any countervailing medical evidence, the
statement in the answering affidavit that glucosamine and
chondroitin
could affect blood pressure, diabetes and asthma, was ‘true and
capable of being substantiated’, was insupportable
on the
facts. In this regard the respondent referred to the package inserts
of products of other entities (not before the court)
that marketed
healthcare products containing glucosamine and chondroitin, which
were irrelevant, and did not constitute evidence
of the respondent’s
claims that glucosamine and chondroitin were a health risk. It also
referred to the OSTEOEZE GOLD package
insert which stated that the
product should not be used by persons taking chronic medication
without consulting a medical practitioner,
and suggested, remarkably,
that ‘[p]eople with high blood pressure, diabetes and asthma
may be included within the bracket
of people taking chronic
medication’. The respondent’s claim that its statements
in the initial advertisement concerning
glucosamine and chondroitin
‘are substantially similar to what is written in the OSTEOEZE
package insert’, is absurd.
And its answer that those
statements were made merely to alert consumers, ‘including
vulnerable, elderly patients –
to the possible dangers
associated with the use of the [OSTEOEZE] ingredients’, is
risible.
[33]
The
founding affidavit stated that the purpose of the application was to
obtain an urgent interim interdict, pending the outcome
of an action
to be instituted, as the false statements and warnings made in
respect of the OSTEOEZE ingredients had caused substantial
damage to
the appellant’s reputation in the OSTEOEZE brand. The cases
make it clear that fault is not a requirement for an
interdict based
on injurious falsehood: it is sufficient if the representation is
false.
[10]
[34]
The
requirements for the grant of an interim interdict as set out above,
have been satisfied. The appellant has already suffered
harm in that
both advertisements, containing false, misleading and disparaging
remarks concerning its product, have already been
broadcast, and the
flighting of the altered advertisement is likely to continue. The
envisaged claim for damages is likely to take
some time before it is
finalised. The balance of convenience favours the appellant. An
interim interdict will not hinder the respondent
in the pursuit of
its business interests. By contrast, the appellant will suffer
irreparable harm: the
raison
d’etre
of
the altered advertisement is to disparage its OSTEOEZE brand which
will cause it reputational and financial damage. Prompt relief
against competition of this sort, in this case is justified. It
follows that the appellant has no other adequate remedy.
[35]
The
appellant has asked that the respondent be directed to pay the costs
of the high court proceedings on the punitive attorney
and client
scale. No such order was sought in respect of the costs of this
appeal. In support of a punitive costs order in the
court below,
counsel for the appellant relied on the respondent’s delay in
halting the further broadcast of the initial advertisement
and its
failure to submit the alterations thereto for scrutiny by the
appellant. There was some explanation provided for the delay
in
halting the further broadcast of the initial advertisement that
cannot altogether be discounted. The respondent’s belief
in the
lawfulness of the altered advertisement was misplaced. However, in my
view, in all the circumstances a punitive costs order
is not
justified.
[36]
For
these reasons, the following order is issued:
1
The
appeal is upheld with costs, including the costs of two counsel.
2 The order of the
high court is set aside and replaced with the following:
‘
2.1
Interdicting and restraining the respondent from utilising or causing
to be flighted the PIASCLEDINE advertisement described
in paragraphs
2.10 to 2.12 of the applicant’s replying affidavit as, “
the
amended advertisement
”
or any part thereof, and/or any colourable imitation thereof, in any
manner;
2.2
interdicting and restraining the respondent from competing unlawfully
with the applicant by, directly or indirectly, making
disparaging and
false statements regarding the applicant’s OSTEOEZE products
and their ingredients, glucosamine and chondroitin;
2.3
directing that the orders referred to in paragraph 2.1 and 2.2 above
operate as interim interdicts, pending the outcome of an
action to be
instituted by the applicant against the respondent, within 21 days of
the date of this order, for interdictory relief
and damages based on
unlawful competition; and
2.4
directing the respondent to pay the applicant’s costs, such
costs to include the costs consequent upon the employment
of two
counsel.’
__________________
A Schippers
Judge of Appeal
APPEARANCES
For
Appellant: C E Puckrin SC
L
G Kilmartin
Instructed
by: Dockrat Attorneys, Johannesburg
Honey
Attorneys, Bloemfontein
For
Respondent: B E Leech SC
H
Mutenga
Instructed
by: Werksmans Attorneys, Sandton
Symington
& De Kok, Bloemfontein
[1]
Combrinck v
de Kock
(1887)
5 SC 405
at 490.
[2]
11
Lawsa
2 ed para 403 at 419.
[3]
Matthews and Others v Young
1922 AD 492
at 507;
Schultz
v Butt
1986 (3) SA
667
(A) at 678F-H;
Pexmart CC
and Others v H Mocke Construction (Pty) Ltd and Another
[2018]
ZASCA 175
;
2019
(3) SA 117
(SCA) para 62.
[4]
Matthews v Young
fn 3 at 507.
[5]
H J O van
Heerden and J
Neethling
Unlawful Competition
2 ed at 267 para 1.1, footnotes omitted.
[6]
Geary
fn
3 at 441C-D. INSERT FULL REFERENCE
[7]
Van Heerden
and J
Neethling op
cit fn 5 at 272 para 1.2.2.
[8]
The respondent alleged that
these complaints were hearsay. That is not correct. The appellant’s
representative stated in
an affidavit that she personally had to
manage the complaints of a consumer of OSTEOEZE GOLD resulting from
the broadcast of
the initial advertisement. This was not gainsaid in
the answering affidavit.
[9]
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft Für
Schädlingsbekämpfung
MBH
1976 (3) SA
352
(A) at 371-372;
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
[2002] 1 ALL SA 384
para 34.
[10]
Elida Gibbs
(Pty) Ltd v Colgate Palmolive (Pty) Ltd
(1)
1988 (2) SA 350
(W) at 353F;
Aetiology Today
CC t/a Somerset Schools v Van Aswegen and Another
1992
(1) SA 807
(W)
at
820I.