however, was, for the most part, influenced by the external appearance, colour and deck design or layout of
the boat rather than by its technical aspects and performance.
[15] From time to time, the first applicant averred, members of the public sought to uncover the "mysteries"
surrounding the superlative handling and performance of the boats, particularly the 575SR and 640SR models.
This was in fact the key to the good reputation and financial success of the Falcon boats, and was shared only
by the respondents, to whom all sales enquiries were directed.
[16] Early in October 2002 one Gerrit van Schalkwyk, a former employee and chief technician of the first
respondent, cautioned the first applicant to open his eyes and not to trust the respondents, who were
engaged in reproducing the series of boats that the first respondent bought from the second applicant.
Unfortunately the said Van Schalkwyk could not be located for purposes of acquiring his confirmation of such
facts on affidavit.
[17] Shortly afterwards Jack Rivers of Manex & Power Marine informed the first applicant that the second
respondent was going to build its own boats. During early November 2002 Mark Louw, the owner of Mako
Inflatables, informed the first applicant that a Cape Town dealer was "copying" the second applicant's boats.
He had also established from a pontoon builder, one Lionel Jones, that an employee of the first respondent
had asked him for a copy of the pontoon design of the Falcon boats. There was no confirmatory affidavit from
Jones, but Rivers and Louw deposed to supporting affidavits. In his affidavit Rivers went so far as to say that,
in his twenty years of experience, he had "never seen a copy of a rival boat as close to the original boat as
the Sovereign boats in question". Had he been asked as to the identity of the Sovereign boats, he would
have unhesitatingly responded that they were Falcon boats or had been manufactured by the second
applicant. Louw's comments were to the same effect.
[18] The first applicant avers that he had also spoken to one Jeff Stevens, a director of Gemini Inflatables, who
had informed him that a marine architect, one Anton du Toit, had designed a boat for the first respondent on
the instructions of the second and third respondents. This appears to have prompted the first applicant to
visit the premises of the first respondent on 6 November 2002. There he came upon four boats manufactured
by the second applicant as 575SR and 640SR models. He also noticed a half
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finished hull, not manufactured by the second applicant, to which employees of the first respondent were
attempting to attach a pontoon. It was obvious that the hull in question was identical to the second
applicant's aforesaid 575SR and 640SR models. The hulls of these models were also identical except for their
length. That of the 575SR was 5,7 metres long while that of the 640SR was 6,4 metres long. The only
difference between the hulls of these models and the halffinished hull was that the latter had a "cosmetic
change" at its point, while it was somewhat longer than that of the 640SR.
[19] While the first applicant was engaged in making the aforesaid comparisons, the second and third respondents
handed him a letter addressed to that second applicant and dated 5 November 2002. Under the subject
reference "Boat Manufacture" the following appears:
"As you are no doubt aware, trading conditions have become almost impossible in South Africa in the leisure
marine industry. There is no doubt that the market has got smaller and most dealers have resorted to huge
discounting to stay alive.
We have always employed a policy of protecting our margins. This is becoming increasingly difficult in our local
market. We, like yourself, have been forced to look for markets elsewhere. We have sold a number of Falcon
inflatables to the UK and Ireland and now wish to begin a distribution network in Europe.
We are aware that you have your own distribution commitments abroad and that it would be untenable for us to
distribute Falcon in Europe on your behalf. We have subsequently decided to manufacture our own range of Rib's
[sic] for distribution in the international market.
We have commissioned a marine architect to design a range of boats for us and have built all the plugs for the
moulds from scratch.
Obviously we have created a market for Falcon inflatables in Cape Town and would like to continue with Falcon in
Cape Town.
We look forward to hearing from you."
[20] The first applicant was flabbergasted and was unable to comprehend why it had been necessary for the
respondents to write him a letter of this nature if they had indeed designed their own boats. In any event
there had never been any suggestion that they would stop distributing Falcon boats in Cape Town. He hence
confronted them with the fact that the incomplete boats he had encountered on their premises were identical
to the 575SR and 640SR models. They denied this emphatically and showed him plans of a hull constructed in
accordance with their new designs. There was no sign, however, of any newly developed series of boats on
the premises. The only boats there, apart from those purchased by the first respondent from the second
applicant, was the incomplete boat identical to the 575SR and 640SR models, and a replica of an Infanta 3.6
originally manufactured and marketed by a friend of the first applicant.
[21] On 7 November 2002 the first applicant once again took the matter up with Jeff Stevens who, in turn,
confronted Anton du Toit with the allegation that his designs were virtual copies of the said Falcon models. His
response was that he was simply following his client's instructions. Du Toit repeated this to the first applicant
on another visit by the latter almost ten
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