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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NUMBER: 14601/2024
In the matter between
DOCSEMUR CC APPLICANT
ABDUL NASSER OMAR SECOND APPLICANT
and
JIGSIMUR SA (PTY) LTD FIRST RESPONDENT
PHEARIE STRYDOM SECOND RESPONDENT
JUDGMENT
Date of hearing: 20 November 2024
Date of judgment: 09 December 2024
BHOOPCHAND AJ:
1. The First Applicant, Docsemur, is a close corporation registered in 2007. The
Second Applicant , Abdul Nasser Omar , is a businessman and the sole
member of the First Applicant. The Second Applicant deposed to the founding
affidavit, but the relief sought concerns the First Appl icant. The First
Respondent is a private company, Jigsimur (Pty) Ltd. The Second
Respondent, Phearie Strydom , is the First Respondent's sole director . The
First Respondent was incorporated on 23 June 2023. The First Applicant and
the First Respondent manu facture a health drink containing aloe ferox . They
market it unde r the same name, Jigsimur (alternatively “the product”). The
Second Applicant states that it is used to help treat various ailments.
2. The Second Applicant provided a historical account of the product , much of
which is disputed by the Respondents. It is common cause that Deon Ungerer
(“Ungerer”) sourced the original formula in the nineteen eighties from an
advert in a magazine of that era and commenced with its production. He
approached the Second Applicant’s father, Harron Omar (“Omar”) , who
operated a cold drink manufacturing plant towards the l atter half of the
nineteen nineties, to bottle the product. The Applicants and Ungerer initially
and then Ungerer’s wife, Rouxnel, produced the product simultaneously but
from different sites after 2005.
3. Ungerer registered a trademark over the product in 2003. The trademark was
not renewed and lapsed in October 2020. The Applicants provided proof that
they hold the proprietary rights to the bottle's design and labelling. The
Respondents, in turn, provided proof that Rouxnel holds the trademark over
the name Jigsimur since 24 May 2023. The trademark was in the process of
being assigned to the Respondents when this application was instituted. The
Second Applicant, in turn , alleged that he applied for the trademark some
years ago to vest in himself. As the Court foresees further litigation over the
trademark and bottling design and for the view it takes of this a pplication, it
shall not delve further into or make findings on these disputes.
4. This application concerns material published by the Respondents on their
website concerning Jigsimur. The application commenced as a two -part
urgent application. On 10 July 2024, the parties took an order by agreement.
The Respondents undertook to resist making statements for six weeks that
the Applicant's product is counterfeit or fake. The Respondents had earlier
undertaken to place their webpage in maintenance m ode. The parties agreed
to a timetable for filing further affidavits and written arguments. The
undertaking was extended to 31 October 2024. The Court is asked to
determine the relief sought in Part B of this application, i.e., an order declaring
that the impugned content on the First Respondent’s website is false,
unlawful, and defamatory and for a final interdict prohibiting the Respondents
from defaming the First Applicant.
5. The Applicants attached a screenshot of the Respondent’s webpage (“the
screenshot”) to its notice of motion. The screenshot is headed “Fake Jigsimur
products and fake factory video”. It contains extracts of online advertisements
from two large retailers operating in the South African marketplace , namely
Takealot and Makro (“the adverts”). The adverts reflect a product with
distinctive label ling and the title page of a video: “Welcome to the Jigsimur
Factory”. The Second Applicant alleged that the adverts are of the Jigsimur
product they sell on Takealot , and the video is of t heir factory and the
manufacturing and packaging process.
6. The Second Applicant reproduced the following statement from the
Respondents’ website:
“Original vs Fake
It has come to our attention that counterfeit versions of Jigsimur are being
distributed by unauthorised sellers through various channels as well as some
products originating from Nigeria. These counterfeit products not only lack the
genuine benefits of Ji gsimur but also pose potential risks to your health and
well-being.”
7. The statement is not contained in the screenshot, but the Second Respondent
accepts that the statement appeared on their website. 1 The Second Applicant
alleged that a week before 27 Ju ne 2024, a client of the First Applicant
informed the Second Applicant that the Respondent's website published that
the Jigsimur product the First Applicant sold was fake. The Second Applicant
asserted that the publication was false, unlawful, slanderous, prejudicial and
defaming as it was the same original product that was manufactured by his
father in 1997. The statements on the Respondent's website, the Second
Applicant alleged, are not fair comments as they are not based on facts that
could be proven.
8. The Second Applicant contended that it was clear that the Respondents
published the content on its website to cause damage to the First Applicant’s
reputation. He alleged that existing and prospective customers would stop
supporting their business if they believed the claim , which would cost the First
Applicant much -needed business and profits. Any prejudice to the First
Applicant would affect its employees and the Second Applicant as its owner. It
would also negatively impact the sale of their other products, which include
natural remedies f or common ailments associated wit h the gastrointestinal
tract.
9. The Second Applicant contend ed that any reasonable reader and browser
would understand the content to mean that the First Applicant is selling fake
products and that the First Respondent, albeit a year old, is selling the or iginal
product dating back to 1998. The Applicants assert that they did not make the
video public and do not know how the Respondents obtained it. The
Applicants did not give the Respondents permission to publish the video. The
video poses a serious securi ty risk to the First Applicant as the public would
have visual access to its internal building and machinery. This would assist in
break-ins and theft. The graphics falsely demonstrate that the products on
Takealot are fake and pose serious economic and reputational harm. They will
1 Paragraph 7.5 of the answering affidavit
lose out on Takealot sales, jeopardising their credibility with the online retailer.
Takealot would not want to sell products that are seen as fake.
10. The labels on the bottles depicted in the adverts are blurred and
indecipherable. An annexure to the founding affidavit provides a clearer view
of the labels. The bottle has an upper and lower label. The upper oval label is
in the form of a laurel with an aloe plant between the crests. The name
‘Jigsimur’ is printed in b old and occupies the centre of the laurel , followed by
the words “ Gesondheidsdrankie” and “Health Drink” on separate lines. The
registered trademark symbol appears below the bow of the laurel. The lower
rectangular label has the Jigsimur laurel on its left side rotated clockwise. The
words on the lower label indicate that the product is “good for numerous
ailments”. The label lists ailments, summarises the health drink’s effects,
provides directions for use, lists its ing redients, and ends with the words”
Bottled under Act”. The words are repeated in Afrikaans. The label has a bar
code and address on the right edge . The Applicants attached a memory stick
to their first Replying Affidavit containing the video on the Respondent's
website.
11. The Applicants state that the issue is not about who has the right to
manufacture and sell Jigsimur but about whether or not the Respondent
defamed the First Applicant through its publication on its website. The
Applicant asserts the Respondents knew that the only other manufacturer of
Jigsimur was the First Applicant. The Respondents refer to fake Jigsimur
products and contend unconvincingly that the products sold by the reputed
retailers could be counterfeit.
IDENTIFICATION OF A LINK OR CONNECTION IN DEFAMATORY CASES
12. The five elements of defamation are the wrongful and intentional publication of
a defamatory statement concerning the Plaintiff.2 However, the Applicant does
2 Le Roux v Dey (CCT 45/10) [2011] ZACC 4; 2011 (3) SA 274 (CC) ; 2011 (6) BCLR 577 (CC)
(8 March 2011) at para 84 (‘Le Roux/Dey”) , Khumalo and Others v Holomisa [2002] ZACC 12; 2002
(5) SA 401 (CC); 2002 (8) BCLR 771 (CC) at para 18
not have to establish every one of these elements to succeed, but
identification is essential. The Applicant has to prove at the outset that th e
publication of defamatory matter concerns them.3
13. The statement must be false and defamatory, which would lower the
Applicant’s esteem in society. Once the Applicant has established that a
defamatory statement was published, the law presumes that the publication
was both wrongful and intentional. 4 The defamatory statements often affect
the offended person directly, and the identification element poses no problem.
In a case like this, where the publication does not refer to the Applicant s
directly, difficulties arise. Litigants should be wary of omitting this requirement
as the consequences are fatal to their cases.
14. The caselaw, which expresses the common law of defamation, invariably
omits this requirement as there is usually a direct link between the defamatory
material and the offended Applicant.5 The identification element refers to the
link or association between the publication and the defamed person. The
rationale for this requirement is that an Applicant cannot be defamed if the
offensive publication does not concern them. The Constitutional Court has
endorsed that it is one of the three essential requirements to prove
defamation.6 An applicant can be identified directly by name, title, address,
photograph or other means. Indirect iden tification requires links or
connections to the Applicant, like cellphone numbers, caricatures, logos,
innuendo, etc. If the Applicant is not named in these instances. The Applicant
has to identify distinctive features contained in the offending material or
particularise extrinsic facts demonstrating the connection. An applicant can
affix affidavits of persons connecting the publication to the Applicant to support
the indirect identification requirement. The Applicant has to discharge the
onus to prove a c onnection between the offensive material and them on a
balance of probabilities. The rule for determining disputes of fact in application
3 Le Roux/Dey at para 85
4 Le Roux/Dey id
5 The other sources of the common law are the old authorities and legal writings, although
statutory, constitutional, customary and international law may contain elements of the common law.
6 Le Roux/Dey at para 85
proceedings has no relevance to the onus of proof. If the publication does not
specifically refer to the Applicants by name, their task to prove the link is more
onerous. The connection in indirect cases is established if a reasonable
person understands it to be about them.
15. The Second Applicant captured the offending publication in the screenshot.
There is no reference to the Applicants by name in the publication. The
Second Applicant asserts that the “pictures are of the Jigsimur product we sell
on Takealot.” The Second Applicant asserts further that the video is of their
factory and the manufacturing and packaging processes . The Second
Applicant contends that any reasonable reader or browser would understand
the content , meaning the First Applicant sells fake products . The Second
Applicant provided no further elaboration of their complaint against the
offensive content of the Respondents’ website. The Second Applicant’s
allegations amount to bald averments that fall short of the standard of proof
required to establish the connection.
16. The Respondents astutely remonstrated that the screenshot was blurred and
did not refer to the Applicants by name . They contended that the screenshot
depicts adverts from two well -known retailers of what appear to be bottles .
The text is not legible. They allege that there is no evidence that the products
depicted in the adverts are th ose of the Applicants or that any reasonable
consumer would associate those adverts with the Applicants or the Applicant's
Jigsimur product. As for the video, the Respondents contended that t he
Applicants provided no corroborative evidence that the video relates to their
factory.
17. The Respondents also contended that the “Original v Fake” statement7 is not
a part of the screenshot. They assert that there is no evidence before the
Court to corroborate the Applicant's claim that the Respondents have ever
made those statements. The latter allegation is incorrect as it contradicts the
Respondents’ admission in paragraph 7. 5 of the answering affidavit. The
7 Contained in paragraph 7.3 of the founding affidavit
Respondents allege that the Second Applicant complained about statements
(they) placed on the website long before the Applicants alleged that they
detected them. The Respondents made the latter allegation to support their
contention that the application was not urgent. The Respondents asserted that
the Applicants had not provided any evidence to indicate any defamatory or
unlawful conduct by them against the Applicants contained on the screenshot
or the Respondent's website.
18. In reply, the Second Applicant denied that the screenshot's contents and text
are barely visible if viewed directly on t he First Respondent’s website. The
Applicants submitted a memory stick with the adverts downloaded from the
Respondents' website. They alleged that the graphics are crystal clear. The
Second Applicant asserted that Makro and Takealot sell their products. The
Second Applicant observed that the Respondents had not denied that the
“Original v Fake” statement was on their website. The Second Applicant
asserted that the statement was on the Respondent's website when he
accessed it before instituting the urgent application. He contend s that once
the website is no longer under maintenance mode, the offensive statement
and material will be viewable.8 The Applicant alleged that the contents are still
live on the Respondent's website and urged the Court to visit the links
provided or view the contents on the memory stick. The Second Applicant
included the video on the memory stick.
19. The memory stick contained annexures to the Applicant’s First Replying
Affidavit. As the parties filed further affidavits and the Court did not consider
the annexures to be new material but better qualities of annexures to the
founding affidavit, the video and the extracts of the two products sold online
were viewed. The bottles on the extracts from the two retailers are not “crystal
clear”, as the Second Applicant suggests , even on full enlargement , which
8 Annexure ‘RAS’ to the Replying Affidavit refers to the ‘Original v Fake’ statement in paragraph
7.3 of the founding affidavit . The Second Applicant contended tha t he viewed the material even when
the Respondent’s website was in maintenance mode . The Respondents provided an expert report
that challenges the latter assertion. The Second Applicant referred to the Respondent's website in
maintenance mode, where the frozen screen contained the offensive material . The header had been
changed to “Unknown products and factory video.” It is apparent that the Respondents were intent on
pushing the boundaries of the 10 July 2024 court order.
further blurs it. The Makro extract has an image on the right edge of the bottle
that could easily be mistaken for a face.
20. The video has three distinctive features. The first contains information printed
on the sides of the boxes in bold black: a website address: www. J[…].com
and an ema il address : j[…]. The second shows labels affixed to the bottles
towards the end of the automated processing line. The labels look similar to
the ones on the bottle appearing in the Makro extract. However, the image on
the right upper edge of the lower label is unclear and could be mistaken for a
face. The Third distinctive feature is the personnel appearing in the video.
There is a male with a cellphone in hand who appears to be taking
photographs of the processing line , and there are others, both male and
female, who seem to be workers.
21. The Second Applicant failed to exploit any of the three distinctive features in
the video to connect the video to them. Had the Second Applicant addressed
any or all of them appropriately by either explaining the web and email
addresses, the labelling affixed to the bottles, or the personnel appearing in
the video with the necessary confirmatory affidavits , he may have linked it as
a vide o of the First Applicant’s warehouse. The video captures the external
entrance to the building. No signboards with the First Applicant’s name or
exterior or interior features link the building to the one the Applicants operate
in the Western Cape. The “Original vs Fake” statement lacks any particularity
that indicates it was directed to the Applicants.
22. The Second Applicant floundered on the most important element of this
application, i.e., identification. The Second Applicant had to prove that the
statement referred directly or indirectly in a way that a reasonable person
would understand it to be about the First Applicant . The alleged defamatory
material on the website did not refer to the First or Second Applicants by
name or contain their images . The Court interrogated this aspect with the
Applicants’ Counsel as it was evident from the founding affidavit that the
Second Applicant had failed to prove th e link between the material published
on the Respondent's website and them. As the publication did not directly
reference the Applicants, they were obliged to establish the association or link
between the website content and their business.
23. The Second Applicant failed to identify any distinctive feature of the products
sold by the two retailers or in the video that linked them to the Applicants .
Intriguingly, the Second Applicant failed to refer to the second retailer in the
three paragraphs devoted to proving that the publication was defamatory and
false. This is not a case where the proof of the association posed any
difficulties. There were distinctive markers in the video and on the bottle
labels. The Respondents' labels had the image of Ungerer on the right upper
edge of the lower labels. The wording on the lower label was arranged
longitudinally, with a distinct longitudinal divider between the English and
Afrikaans parts of the label. The wording on the Applicants ’ label was
arranged horizontally, with the divider between languages in a horizontal
position. The copy of their label design did not have an image on the right
upper edge of the lower label . The images of the bottles extracted from the
retailer’s webpage seemed to have no image in that position on the label. The
Applicants would have had to explain the image appearing on the right edge
of the lower labels in the bottle labels visible in the video. The Second
Applicant alleged that a c lient of the First Applicant alerted them to the
Respondent's webpage. Yet, the Applicants failed to secure a confirmatory
affidavit from the client to indicate how the client linked the webpage to the
Applicants.
CONCLUSION
24. The Applicants seek a declaratory order that the statement published on the
Respondent’s website is false, unlawful, and defamatory and a final interdict
prohibiting the Respondents from defaming the First Applicant. The Applicants
failed to prove a requirement essential to link the statement in the publication
to them. The Court cannot consider or order declaratory or interdictory relief.
This application ends here.
25. The Respondents submitted that if the Applicant could not connect the alleged
defamatory statement with themselves, that is the end of the matter. The
Court agrees. The Respondents sought the dismissal of the matter. The Court
is not persuaded that the application should be dismissed. After considering
all the circumstances, the cour t believes that a more appropriate order is to
strike out the application with costs. The application has merit, and if it were
not for the Applicant's failure to address a technical aspect of the claim they
pursued and provide a connection with the defama tory statements, the Court
might well have found in favour of the First Applicant. The Respondents
should be wary about repeating the content on their website or any other
portal.
26. The Respondents contended that the defence of this application required
them to instruct Senior Counsel. The Court agrees that the services of Senior
Counsel were required. The Respondents sought the costs of the hearing of
10 July 2024, 31 October 2024, and 11 November 2024. The matter was not
allocated for hearing on 31 October 2024 due to a shortage of Judges. The
Court is averse to granting costs against the Applicants for reasons not of their
own making. It is unclear from the Court file whether the parties had reached
an agreement about availing themselves of a hearing suggested for 11
November 2024. The matter was not set down for the latter date , and the
Court is not inclined to grant the Respondents’ costs for that date.
ORDER
1. The application is struck out with costs,
2. The costs are to include the costs relating to the Respondents S triking Out
application
3. The costs are to include the costs and associated costs of the scheduled
hearing of Part A of the application on 10 July 2024,
4. Respondents’ Senior Counsel is entitled to recover her taxed or agreed fees
on scale C,
5. The parties are to absorb their own costs occasioned by the hearing
scheduled for 31 October 2024 and any costs relating to 11 November 2024.
________________________
Ajay Bhoopchand
Acting Judge of the High Court
Western Cape Division
Cape Town
Judgment was handed down and delivered to the parties by e -mail on
9 December 2024
Applicants Counsel: M Abduroaf
Instructed by Nicole Lawrence Inc.
Counsel for the Second Respondents: Adv I Joubert SC
Instructed by Spoor & Fisher