2
[2] In relation to the Rule 33(4) application, the Supreme Court of Appeal decision
in FirstRand Bank Ltd v Clear Creek Trading 12 (Pty) Ltd and Another 2018 (5) SA
300 (SCA) aptly explains the purpose of the rule as follows :1
“Rule 33(4) refers to a 'question of fact or a question of law' in a pending action. This
must surely mean an issue which arises on the pleadings .” (own emphasis) .
[3] In order to determine the issues raised in the pleadings , it follows logically that
the defendants’ application for leave to amend its plea must first be considered.
Amendment
Background
[4] Prior to considering the application for leave to amend, it is apposite to
succinctly set out the common cause facts on the pre-amended pleadings:
4.1 The plaintiff, Nativa (Pty) Ltd , is a pharmaceutical, marketing and sales
company dealing in alternative and natural health products. The
plaintiff’s OSTEOEZE GOLD joint care product forms the subject matter
of the litigation between the parties. OSTEOEZE products contain , inter
alia, glucosamine and chondroitin (the OSTEOEZE ingredients in issue) .
4.2 The Defendant, Austell Laboratories (Pty) Ltd , is also a manufacture r,
market er and sell er of alternative and natural health products. The
defendant has a competing joint care product , PIASCLEDINE, which
does not contain glucosamine and chondroitin.
4.3 During February and March 2018, the defendant advertised its
PIASCLEDINE product by flight ing an initial and a second advertisement
through national television and other media . The plaintiff was of the view
that the initial and second advertisement (the infringing advertisements)
contained direct and indirect negative and untrue disparaging references
1 Firstrand Bank Ltd v Clear Creek Trading 12 (Pty) Ltd and Another 2018 (5) SA 300
(SCA) at 305C.
3
to the plaintiff’s OSTEOEZE products , specifically regarding the
OSTEOEZE ingredients in issue.
4.4 The plaintiff brought an application for interdictory relief based on
unlawful competition . This application was unsuccessful and was
followed by an appeal to the Supreme Court of Appeal.
4.5 While the appeal was pending , in February 2019, the defendant flighted
a further advertisement using the same words as in the infringing
advertisements. This prompted the plaintiff to file a further application for
interdictory relief on 27 August 2019. On this occasion, the plaintiff
sought a final interdict. The application was opposed by the defendant.
4.6 On 19 March 2020 , the Supreme Court of Appeal granted interim
interlocutory relief against the defendant for unlawful competition
concerning the infringing advertisements. The interdict was granted
pending the finalisation of the present action.
4.7 Pursuant to the aforesaid judgment , on 21 April 2020, the defendant
withdrew its opposition to prayer 1 of the application , and on 25
November 2021 , a final interlocutory interdict was granted against the
defendant in respect of the third infring ing advertisement.
4.8 Prior to th is, on 23 March 2021 , an order was granted c onsolidatin g the
damages claim in respect of the application with the damages claim in
this action.
[5] During the hearing of the application, it became clear that the plaintiff only
object ed to two of the proposed amendments on the basis that the se amendments
sought to withdraw admissions.
4
Legal principle s
[6] Where a proposed amendment involves the withdrawal of an admission, the
court will require a full and satisfactory explanation of the circumstances under which
the admission was made and the reasons for the party now seeking to withdraw it.
[7] This principle was confirmed in Bellairs v Hodnett and Another 1978 (1) SA
1109 (A). The explanation in the Bellairs decision was found wanting because:
“There is nothing to indicate that the admission that its liability was to Kok (not to the
company owned by Kok) was made in error, for the pleadings show a clear
appreciation of the separate identities of Kok and H. W. Kok (Edms.) Bpk ” [p 1150H] ”.
First amendment
[8] The defendant seeks to withdraw its admission that the only remaining issue in
respect of the application under case n umber 64188/2019 is the issue for damages.
[9] The proposed amendment pertains to its plea to paragraphs 3A.2 to 3A.10 of
the plaintiff’s particulars of claim, to wit:
“3A.3 . The wording used in the further infringing advertisement was as follows:
“Millions suffering from stiff and painful joints should not be taking
glucosamine and chondroitin.
People with high blood pressure, diabetes, asthma, a shellfish allergy
or those using blood thinners are at risk, check the package insert
before taking glucosamine and chondroitin, they can affect your blood
pressure and diabetes and trigger ast hmatic or allergic reactions.
Fortunately, there is PIASCLEDENE , it does not contain glucosamine
and chondroitin and is the only clinically proven osteoarthritis treatment
that reduces pain, improves movement, slows disease progression,
lessens your need for harmful anti -inflammatories, and is safe to use
with other medicines.
5
PIASCLEDINE. No glucosamine, no chondroitin. The number one
osteoarthritis treatment worldwide including in South Africa.”
3A.4. The words bolded in the quotation above are those that also appeared
in the infringing advertisements.
3A.5. On 27 August 2019, the Plaintiff brought an application in the above
Honourable Court under case no. 64188/2019 for interdictory and
ancillary relief relating to the further infringement advertisement based
on unlawful competition (“the application”) .
3A.6 Although the application was initially opposed by the Defendant, on 21
April 2020, pursuant to the SCA judgment being handed down, the
Defendant withdrew its opposition to prayer 1 of the application and
tendered the Plaintiff’s costs in relation thereto on a party and party
scale up to 19 March 2020, being the date of the SCA judgment,
including the costs consequent upon the employment of two counsel.
3A.7 In the light of the above, the only remaining issue in respect of the
application is the issue of damages.
3A.8 The Plaintiff brought an application to consolidate the damages claim in
respect of the application with the damages claim in this case .
3A.9 On 23 March 2021, an order was granted in the above Honourable
Court consolidating the damages claim in respect of the application with
the damages claim in the action. A copy of the court order is attached
hereto marked as annexure “POC4” .
3A.10. On 25 November 2021, the above Honourable Court granted the
interdictory relief sought in prayer 1 of the application and confirmed
that the costs of the application up to 19 March 2020, including the costs
of two counsel, would be paid by the Defen dant. A copy of the court is
attached hereto marked as annexure “POC5” .”
[10] In paragraph 18 of its plea, the defendant admitted these allegations.
6
[11] The relevant proposed amendment of paragraph 18 reads as follows:
“18.2 The Defendant denies that the remaining issue for determination in respect of
the proceedings is damages.
18.3 The balance of the allegations contained in these paragraphs are admitted.”
[12] In an affidavit deposed to by Achen Engelbrecht, the head of marketing of the
respondent, she explains the reason for the withdrawal o f the admission as follows:
“28. The p laintiff alleges in paragraph 3A.7 that the only remaining issue in
respect of its application is the issue of damages. These allegations are
incorrectl y admitted by the d efendant in paragraph of the Plea.
29. Consequently; the defendant se eks to withdraw the above -mentioned
admission and t o inser t, in its stead, denial by the d efendant that the
only remaining issue in respect of the application is the issue of
damages.
30. The issues that remain for determination a re properly articulated in the
defendant’s plea and in this proposed amendment. Such issues have
also been crystallised in t he expert reports filed by the d efendant. As
such, the proposed ame ndment will align the d efendant’s pleadings
with its evidence.”
[13] The explanation presents some d ifficulties. Firstly, the allegations in paragraph
3A pertains only to the application that was brought under case no. 64188/19.
Paragraph 18 of the plea is confined to these factual averments. Any further
admissions and/or denials in the plea pertain to t he case for damages flowing from the
interim interdictory relief granted by the Supreme Court of Appeal.
[14] Secondly, the consolidation order granted on 23 March 2021 is clear in its
terms, to wit:
“That the enquiry into damages in respect of the above -mentioned matter under case
number: 64188/2019 be consolidated with the claim for damages under case number:
20541/2018.”
7
[15] Should one disregard the portion of the explanation that pertains to the
admissions and denials in the main case, the only explanation that remains is that the
admissions were incorrectly made. This amounts to no explanation at all.
[16] The defendant has failed to convince me , in fact and /or in law , that it made an
error in admitting that the only remaining issue in the application under case no.
64188/2019 is the issue of damages. In the result , leave to effect the amendment is
denied.
Second amendment
[17] In the second proposed amendment, the defendant seeks to withdraw its
admission that the infringing advertisements are untrue.
[18] In paragraph 4.4 of the particulars of claim, the plaintiff averred the following:
“4.4 In particular, it is untrue that the OSTEOEZE GOLD product or products
containing the OSTEOEXE ingredients in issue:
4.4.1 should not be taken by persons suffering from high blood pressure,
diabetes or asthma;
4.4.2 are dangerous and/or harmful to persons suffering from high blood
pressure, diabetes or asthma;
4.4.3 are unsafe for use by persons suffering from high blood pressure,
diabetes or asthma; and/or
4.4.4 constitute health risks. ”
[19] In paragraph 22 , the defendant pleaded as follows to these averments:
“22.1 The defendant pleads that there are products containing gluco samine
and chondroitin that reflect warnings for or indicate special precaution
should be taken by persons with inter alia high blood pressure,
diabetes, or asthma.
22.2 Save as aforesaid, the allegations contained herein are admitted.”
8
[20] The proposed amendment of paragraph 22 reads as follows:
“6. By inserting the following new sub -paragraphs 22.2 and 22.3, between
the existing paragraph 22.1 and 23 –
‘22.2 The Defendant further pleads that:
22.2.1 the information contained in a professional information
leaflet is accepted as evidence that there are safety
concerns regarding particular medicine or precautions
that need to be taken by patients consuming the
particular medicine;
22.2.2 once warnings, contraindications and/or precautions are
mentioned in professional information leaflets, credible
research and clinical trials with valid, conclusive results
are essential to remove the warnings, contraindications
and/or precautions f rom the leaflets; and
22.2.3 unless and until the warnings, contraindications and/or
precautions are removed from professional information
leaflets pertaining to medicines containing glucosamine
and/or chondroitin may give rise to the harm and/or side
effects and/or are contraindicated in persons suffering
from high blood pressure and/or diabetes and/or
asthma. ’
22.3 On the basis as pleaded above, the Defendant denies that it is
untrue -or that it is in every instance untrue -that glucosamine and
chondroitin:
22.3.1 should not be taken by persons suffering from high blood
pressure, diabetes and asthma;
22.3.2 are potentially dangerous and/or harmful to persons
suffering from high blood pressure, diabetes or asthma;
9
22.3.3 are potentially unsafe for use by persons suffering from
high blood pressure, diabetes or asthma; and/or
22.3.4 constitute potential health risks.”
[21] Ms Engelbrecht explains the reason for the withdrawal of the admission as
follows:
“35. These proposed amendments are also intended to bring the pleaded position
into line with the correct factual and legal position. The Plea, once amended,
will accord with the expert evidence of Professor Greeff, whose report, as
contemplated in Rule 36(9)(b) of the Uniform Rules of Court, has already been
filed and who will be called to testify to these matters.
36. I point out that the existence of the warnings in professional leaflets cannot be
factually disputed as these documents exist in the public domain and copies of
some have been discovered.
37. The issue arising is essentially a legal and pharmacovigilance one. The court,
when called upon to make a finding at the end of the trial, will benefit from the
expert evidence that is to be tendered. For that purpose, the pleadings need to
be adjusted so as to define this issue more accurately before the court.
38. The need to amend this aspect of the Plea and the extent of the amendment
required only became apparent from consultations with and after receipt of the
final report of Professor Greeff. ”
[22] The proposed amendment also poses difficulties. As set out above , the
defendant in paragraph 18 admits:
a. the wording used in the further infringement advertisement that formed
the subject matter of the application under case no. 64188/20 ;
b. by implication , that the application was brought on the basis that the
wording was untrue ;
c. that the application was based on claim of unlawful competition .
10
d. it withdrew its opposition to prayer 1 of the application and as a result,
the following final order was granted by this court:
“1. That the Respondent is interdicted and restrained from flighting
the advertisement contained on the flash disk accompanying the
founding affidavit and marked FA16 and/or any amended
version or colourable imitation thereof, having formally
withdrawn its opposition to the relief s ought in prayer 1 of the
notice of motion in the main application.”
[23] Should the proposed amendment be effected ; it would entail that the defen dant
admits in paragraph 18 of its plea that the following statement in respect of
OSTEOEZE is untrue:
“Millions suffering from stiff and painful joints should not be taking glucosamine
and chondroitin.
People with high blood pressure, diabetes, asthma, a shellfish allergy or those
using blood thinners are at risk, check the package insert before taking
glucosamine and chondroitin, they can affect your blood pressure and diabetes
and trigger asthmatic or allergic reactions.”
[24] The proposed sub -paragraphs 22.2 and 22.3 in effect withdraws the admission
in paragraph 18 and denies that the statement is untrue. Should the amendment be
granted , the plea would be vague and embarrassing in that, it contains contradictory
averments. This is impermissible. [See: Trope v South African Reserve Bank and
Another and two other cases 1992 (3) SA 208 (T) at 211E] .
[25] On this basis, the second proposed amendment is also refused.
Costs
[26] Costs should follow the cause , including costs consequent upon the
employment of two counsel on scale C.
11
Order
[27] In the result, I grant the following order:
1. The application for leave to amend is dismissed.
2. The defendant is ordered to pay the costs of the application , including costs
consequent upon the employment of two counsel on scale C.
Rule 33(4) application
[28] The separation issue is defined in the plaintiff’s notice in terms of Rule 33(4) as
follows:
“1. Directing that the following issues (“separated issues) be separated and
adjudicated upon, on 3 and 4 February 2025, prior to the trial”
“Whether , as a result of:
(i) the Respondent raising the defence of lis alibi pendens in the
application between the parties under case no. 64188/2019
(“the Second High Court application”);
(ii) the Respondent formally withdrawing its opposition to the
interdictory relief in the second High Court application pursuant
to judgment being handed down in favour of the Applicant in the
Supreme Court of Appeal in case no. 1289/2018 on 19 March
2020;
(iii) the final interdict granted by Dreyer J in the second High Court
Application; and
(iv) the consolidation order granted by Strydom J:
(a) the issue of whether the infringing advertisements which were flighted by
the Respondent, as described in the particulars of claim were unlawful and
were disparaging and untrue of the OSTEOEZE products and/or the
12
OSTEOEZE ingredients ; particularly in the respects stated in paragraph 4.4
of the Particulars of Claim, is res iudicata, alternatively that issue estoppel
is applicable thereto;
(b) if res judicata , alternatively issue estoppel applies, no further evidence in
relation to the interdictory relief can be led by the parties and the evidence
of Professor Oppel Greeff is irrelevant and inadmissible; and
(c) the only issue which remains for adjudication in the main action is the
question of damages.”
[29] The defendant opposes the application on the basis that res judicata is not an
issue on the pleadings.
[30] It is trite that , in order for the defence of res judicata to succeed, the following
must be established that:
a. the judgment relied on was a final or definitive decision;
b. it emanated from a competent court;
c. the judgment was between the same persons; and
d. the cause of action was the same.
[See: MV Silvergate; Tradax Ocean Transport SA v MV Silvergate Pr operly described as MV
Astyanax and Others 1999 (4) SA 405 SCA at para [53]]
[31] In this case , the plaintiff did not raise res judicata as a defence in its particulars
of claim. One can hardly image an instance in which a defence is raised in a plaintiff’s
particular s of claim.
[32] Mr Leech SC, counsel for the defendant, submitted that the res judicata issue
should have been raised by way of a replication filed to the defendant’s plea. I tend to
agree.
13
[33] Mr Puckrin SC, counsel for the plaintiff , submitted that the aforesaid approach
is over formalistic and that the undisputed facts in the particulars of claim establish the
requirements for a successful pela of res judicata.
[34] The pleadings as they stand , prove the following:
a. the interdictory judgment granted by this court on 25 November 2021 is
a final decision;
b. the judgment emanated from a competent court;
c. the judgment was between the same parties.
[35] The only outstanding issue is whether it was in respect of the same cause of
action.
[36] In view of the above , I do not believe that dismissing the separation application,
merely because the res judicata defence has been raised in a somewhat unorthodox
manner would serve any useful purpose .
[37] The pleadings , as they stand , sufficiently crystallise the issue of res judicata ,
and counsel for both parties have adequately addressed me on the matter .
[38] The next question is whether the issue of res judicata can conveniently be
decided separately from the question of damages. Although the concept of
“convenience” for purposes of a separation application has been dealt with in many
judgments, each case presents its own factual and legal matrix , and the concept of
convenience should, to my mind, be dealt with accordingly.
[39] The plaintiff submitted that it will be convenient to separate the issues because
should the court agree that res judicata is applicable, all that will remain in the main
action is the quantum of damages that should be awarded to Nativa. This would,
according to the plaintiff : (i) substantially limit the evidence that needs to be led by the
parties; (ii) curtail the duration of the trial and save court resources; and (iii) ensure
that the parties do not incur unnecessary costs in preparing and leading evidence
which is entirely irrelevant and unnecessary.
14
[40] The defendant does not agree. The defendant allege that it will be necessary
to have an evidential hearing into the separated issues, in other words that the res
judicata issue cannot be determined on the pleadings without hearing oral evidence. I
have dealt with the requirements that a party needs to prove in order to successfully
raise res judicata . The requirements are satisfied with reference to facts, that either
exist or not. It is incomprehensible that a witness would be able to give evidence as to
whether a judgment is final in effect , was granted by a competent court between the
same parties and on the same cause of action.
[41] I agree that, on the grounds advanced by the plaintiff, hear ing the issue of res
judicata separately would be convenient .
[42] In considering the issues to be separated and to create certainty in the future
conduct of the trial, I have had regard to the definition of unlawful competition in
Cochrane Steel Products (Pty) Ltd v M -Systems Group (Pty) Ltd and Another 2016 (6)
SA 1 (SCA) at para [16]:
“[16] I shall now turn to consider the appellant's primary contention, which, as I have
said, is based on the general principles of unlawful competition. The argument
advanced is that the respondent's use of the appellant's trade name as a Google
keyword of fends against the boni mores because it amounts to an improper filching of
the appellant's skill and labour and thereby constitutes unlawful competition. According
to Corbett J, '(i)t is well established that our common law recognises every person's
right — liberty would, perhaps, be a more correct term — to carry on his trade without
wrongful interference from others, including competitors' (Dun and Bradstreet (Pty) Ltd
v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd D 1968 (1) SA 209 (C) at
216B). As a general rule, every person is entitled freely to carry on his trade or business
in competition with his rivals. But the competition must remain within lawful bounds. If
it is carried on wrongfully, in the sense that it involves a wrongful i nterference with
another's rights as a trader, that constitutes an injuria for which the Aquilian action lies
if it has directly resulted in loss . (See Schultz v Butt at 678G.) ” (own emphasis) .
[43] I pause to mention that the relief claimed by the plaintiff in prayer (b) of the
separation application is, in my view, not competent to be grant ed in an application
15
under Rule 33(4). The order that follows will, in the result, only pertain to the separation
of issues in terms of Rule 33(4).
Order
[44] Having carefully consider ed the issues in dispute between the parties as set
out in the pleadings, I grant the following order:
1. The question whether the defendant’s unlawful conduct , as averred in
paragraph 3 of the particulars of claim , and the issue of unlawful
competition , as averred in paragraph 4 of the particulars of claim , is res
judicata is to be separated from the issue of whether the unlawful
competition has caused direct loss (damages) to the plaintiff , as averred in
paragraph 5 of the particulars of claim.
2. The issue pertaining to damages is postponed sine die.
3. Costs to be costs in the hearing on the separated issue of res judicata .
Res judicata – issue estoppel
[45] The requirements for a successful plea of res judicata and th ose established
on the pleadings have been set out above . The only remaining requirement is whether
the judgment was premised on the same cause of action or falls within the scope of
issue estoppel. It is common cause between the parties that the cause of action in the
application was unlawful competition. Insofar as issue of fact is concerned , the
following paragraph in the founding affidavit is incisive:
“4.4 The latest infringing advertisement is the third unlawful advertisement
that has been flighted and used by the Respondent in its unlawful
marketing campaign. The other two advertisements, namely, the
Respondent’s PIASCLEDINE advertisement which came to the
Applicant’s notice early in the week of 26 February 2018 and was
(according to the Respondent) flighted until 12 March 2018 (“the initial
infringing advertisement”) and an advertisement for the Respondent’s
PIASCLEDINE product which replaced the init ial infringing
16
advertisement (“the second infringing advertisement”) form the subject -
matter of an urgent application referred to below which is now subject
of the pending SCA appeal. Copies of the initial infringing advertisement
and the second infringing advertisement are also contained on the flash
disc marked as annexure “FA16”.
[46] The court order granted by Dreyer AJ interdicted and restrained the defendant
from flighting the advertisement(s) on the disk accompanying the founding affidavit
and marked “FA16”. It follows that the final interdictory order included the infringing
advertisements t hat form the subject matter of this action.
[47] Even if the infringing advertisements herein were not specific ally mentioned in
the order, I am of the view that the plaintiff has established the issue estoppel
concerning the infringing advertisements in question .
[48] In Democratic Alliance v Brummer (793/2021) [2022] ZASCA 151, the Supreme
Court of Appeal addressed the issue estoppel principle at para [12] to [15] as follows :
“[12] The nature of a plea of issue estoppel has been explained by this court
on numerous occasions. The explanation in Smith v Porritt [1] is worth
reiterating.
‘Following the decision in Boshoff v Union Government 1932 TPD 345 the
ambit of the exceptio rei judicata has over the years been extended by the
relaxation in appropriate cases of the common -law requirements that the relief
claimed and the cause of action be the same (eadem res and eadem petendi
causa) in both the case in question and the earlier judgment. Where the
circumstances justify the relaxation of these requirements those that remain
are that the parties must be the same (idem actor) and that the same issue
(eadem quaestio) must arise. Broadly stated, the latter involves an inquiry
whether an issue of fact or law was an essential element of the judgment on
which reliance is placed. Where the plea of res judicata is raised in the absence
of a commonality of cause of action and relief claimed it has become common
place to adopt the terminology of English law and to speak of issue estoppel.
But, as was stressed by Botha JA in Kommissaris van Binnelandse Inkomste v
Absa Bank Bpk 1995 (1) SA 653 (A) at 669D, 670J -671B, this is not to be
construed as implying an abandonment of the principles of the common law in
favour of those of English law; the defence remains one of res judicata. The
17
recognition of the defence in such cases will however require careful scrutiny.
Each case will depend on its own facts and any extension of the defence will
be on a case -by-case basis. (Kommissaris van Binnelandse Inkomste v Absa
Bank (supra) at 670E -F.) R elevant considerations will include questions of
equity and fairness not only to the parties themselves but to others. As pointed
out by De Villiers CJ as long ago as 1893 in Bertram v Wood (1893) 10 SC 177
at 180, ‘unless carefully circumscribed, [the defence of res judicata] is capable
of producing great hardship and even positive injustice to individuals’.’
[13] The first question is to determine whether, as a matter of fact, the same
issue of fact or law which was determined by the judgment of the previous court
is before another court for determination. This is so because if the same issue
(eadem quaes tio) was not determined by the earlier court, an essential
requirement for a plea of res judicata in the form of issue estoppel is not met.
There is then no scope for upholding the plea. It does not, however, necessarily
follow, that once the inquiry estab lishes that the same issue was determined,
the plea must be upheld. That is so because the court considering the plea of
issue estoppel is, in every case, concerned with a relaxation of the
requirements of res judicata. It must therefore, with reference to the facts of the
case and considerations of fairness and equity, decide whether in that case,
the defence should be upheld. [2]
[14] This first component of the enquiry requires a careful examination of
what issues of fact or law were decided by the first court. In Boshoff v Union
Government [3] (Boshoff), the following statement by Spencer -Bower in Res
Judicata, was held to be a correct:
‘Where the decision set up as a res judicata necessarily involves a judicial
determination of some question of law or issue of fact, in the sense that the
decision could not have been legitimately or rationally pronounced by the
tribunal without at the sam e time, and in the same breath, so to speak,
determining that question or issue in a particular way, such determination,
though not declared on the face of the recorded decision, is deemed to
constitute an integral part of it as effectively as if it had be en made so in express
terms.’
[15] Where the judgment does not deal expressly with an issue of fact or
law said to have been determined by it, the judgment and order must be
considered against the background of the case as presented to the court and
in the light of the import and effect of the order. Careful attention must be paid
18
to what the court was called upon to determine and what must necessarily have
been determined, in order to come to the result pronounced by the court. The
exercise is not a mere mechanical comparison of what the two cases were
about and what the court stat ed as its reasons for the order made. [4] In Boshoff,
for instance, the plaintiff had sued for damages arising from an unlawful
cancellation of a lease and ejectment. The defendant raised a plea of res
judicata on the basis that the defendant had, in a prior action, obtained a
judgment for ejectm ent. The prior order was obtained by default judgment. The
court found that an order for ejectment could not have been granted unless the
court had found that the cancellation of the lease was lawful. The order that
was granted was read against the backdro p of the case as pleaded.”
[49] In this regard , the averment in paragraph 3A.4 of the particulars of claim
concerning the application advertisement, which was admitted by the defendant, is
significant . To wit: ‘The words bolded in the quotation above are those that also
appeared in the infringing agreements. ’
[50] On the defendant’s own admission , the words in the advertisement application ,
which the court was called upon to determine in order to pronounce whether the y were
untrue and infringed upon the plaintiff’s right to lawful competition, are the same as
those in the infringing advertisements. On this basis, I am satisfied that the plaintiff
has established that the same issue of law and fact was finally pronounced upon in
the application.
[51] In the result , the plaintiff was successful in establishing res judicata in respect
of the issues averred in paragraph 3 (the defendant’s unlawful conduct) and paragraph
4 (unlawful competition) of the particulars of claim.
Costs
[52] The plaintiff was successful in establishing res judicata and is entitled to a cost
order in its favour , including the costs consequent upon the employment of two
counsel on scale C.
20
APPEARANCES
Counsel f or the Plaintiff : Puckrin SC
Kilmartin SC
Hussein -Yousuf
Instructed by: Dockrat Attorneys
Counsel for the Defendant : Leech SC
Mutenga
Instructed by: Werksmans Attorneys