Geo Equip Africa (Pty) Ltd v Geobrugg Southern Africa (Pty) Ltd (2023/106927) [2023] ZAGPJHC 1257 (31 October 2023)
The court found that the respondent's statements to at least one customer of the applicant, alleging the sale of counterfeit goods, were made with the motive of undermining the applicant's business prospects. The respondent's written undertaking not to repeat the statements was insufficient, as no retraction was...
Source-derived case information.
- Citation
- [2023] ZAGPJHC 1257
- Parties
- Applicant: Geo Equip Africa (Pty) Ltd; Respondent: Geobrugg Southern Africa (Pty) Ltd
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 2023/106927
- Procedural Posture
- Urgent Application / Interdict (urgent Motion)
- Outcome
- Application granted. Temporary interdict issued in favour of the applicant. Costs reserved.
- Judges
- GC Wright
- Legal Topics
- Defamation, Interdict, Trade Mark Infringement, Copyright Infringement
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geo Equip Africa (Pty) Ltd
Applicant
Geobrugg Southern Africa (Pty) Ltd
Respondent
Procedural Posture
Urgent Application / Interdict (urgent Motion)
Legal Issues
- 1 Whether the respondent's statements to customers constituted actionable defamation against the applicant.
- 2 Whether the applicant is entitled to an urgent interdict compelling the respondent to retract statements made to third parties.
- 3 Whether the respondent's undertaking to cease making allegations about counterfeit goods was sufficient to remedy the prejudice caused.
Ratio Decidendi
The court found that the respondent's statements to at least one customer of the applicant, alleging the sale of counterfeit goods, were made with the motive of undermining the applicant's business prospects. The respondent's written undertaking not to repeat the statements was insufficient, as no retraction was made to the affected customers. The court held that the applicant was entitled to urgent interim relief to protect its reputation and business interests. The respondent's argument that the undertaking was overtaken by the application was rejected as unconvincing. The applicant was granted a temporary order compelling the respondent to withdraw the statements and refrain from...
Court Disposition
Application granted. Temporary interdict issued in favour of the applicant. Costs reserved.
Orders
- The respondent is ordered to withdraw the statements alleging that the applicant sells counterfeit wire mesh.
- The respondent is ordered to send a written retraction to all persons to whom the counterfeit allegation was made.
Full Case Text
Judgment text and source record
50 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2023/106927
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
01/11/23
In the matter between:
GEO EQUIP AFRICA (PTY) LTD APPLICANT And GEOBRUGG SOUTHERN AFRICA (PTY) LTD RESPONDENT
JUDGMENT
WRIGHT J
The applicant company imports and sells wire mesh. The respondent is a trade competitor. There is patent litigation between the two which is pending.
The respondent told at least one customer of the applicant that the applicant sold counterfeit wire mesh.
On 13 October 2023, the respondent undertook in writing to the applicant not to “make further statements in relation to counterfeit goods to potential clients in South Africa.” The letter stated that an amended undertaking would be sent to the applicant in due course.
The applicant seeks an urgent interdict.
It says that the matter is urgent as it needs to protect its name and standing in the market.
It is the applicant’s case that the defamation was made to the applicant and potential customers of the applicant but that the undertaking not to repeat the counterfeit allegation was given only to the applicant and that therefore, because no retraction has been made to the applicant’s customers, the applicant is prejudiced in the market.
In the answering affidavit, the respondent accuses the applicant of infringing the respondent’s oversees parent company’s registered trade mark, Blast On. Although the trade mark is not yet registered in South Africa, the holding company intends seeking registration as soon as possible.
There is no counter-application.
In the replying affidavit, the applicant undertakes to remove all reference on its website to Blast On and the applicant
undertakes to remove certain images which the respondent says infringes its copyright.
In my view, the applicant is entitled, not only to a retraction, which it has, but also to an order that the respondents send a retraction to the persons to whom the counterfeit allegation was made.
In argument, Mr Bester SC for the respondent said that the undertaking, referred to by his client was overtaken by the launching of the application. This excuse is very weak. Nothing has stopped the respondent from giving what it said it would give.
On the evidence, the only inference to be drawn is that when the respondent sent the counterfeit statement to at least one customer
or potential customer of the applicant the motive was to decrease the applicant’s chances of being awarded a contract or
contracts.
The applicant is entitled to a temporary order, operating with immediate effect, costs reserved, to the effect that the statements be withdrawn and there be no related interference with its business.
ORDER
X as amended. -
GC Wright
Judge of the High Court
Gauteng Division, Johannesburg
HEARD : 31 October 2023
DELIVERED : 31 October 2023
APPEARANCES :
APPLICANTS Adv R Michau SC
reinard@clubadvocates.co.za
083 288 2345
Adv L Haril
LHarilal@clubadvocates.co.za
082 467 7684
Instructed by Smit & Van Wyk Inc, per Wessel Van Wyk and Niel Meirng
RESPONDENT Adv AJ Bester SC
bertbester@law.co.za
082 567 0591
Adv P Ferreira
pferreira@clubadvocates.co.za
082 872 3378
Instructed by Dr Gernholtz Inc per Otto Gernholtz
info@gerntlholtz.com