to it vested in it, the difficulty it faced lay in the confusion on the papers between it and Herbal Zone International
and their respective roles in the manufacture of Phyto Andro and its marketing in South Africa. The Court agreed
with the High Court's finding that Herbal Zone failed to show that the reputation in the mark vested in it and not
Herbal Zone International. The appeal against the finding on the issue of passing off, accordingly, failed.
That left the defamation claim to be addressed by the Court. The argument on defamation was that in the
appellants' advertisements Infitech and Herbs Oils had been accused of selling counterfeit products and it was
alleged that such conduct on their part was illegal. The Court set out the proper approach to an application for an
interdict to prevent the publication of defamatory matter. Such an interdict is directed at preventing the party
interdicted from making statements in the future. If granted, it impinges upon that party's constitutionally protected
right to freedom of speech. For that reason such an interdict is only infrequently granted, leaving the party claiming
that they will be injured by such speech to their remedy of a claim for damages in due course. Although a corporate
entity such as Herbs Oils was entitled to claim damages based on defamation, no attempt was made to show that
Herbs Oils had suffered loss as a result of the publication of the advertisements and circular, much less that it would
suffer irreparable harm in the future by further
Page 349 of [2017] 2 All SA 347 (SCA)
publications of such material. Nor did it allege that damages would not be an adequate remedy for any such
publication. On the other hand, Herbal Zone produced evidence that it had over a lengthy period, first introduced
and then caused to be distributed in South Africa, the product Phyto Andro for Him. That entitled it to describe its
own product as the genuine or original product and to decry the product of others who were marketing competing
products of a different manufacture and source as counterfeit, that is, not the genuine article. Even if the reputation
in Phyto Andro did not vest in it, the fact that it was importing it into this country and distributing it here entitled it
to level the charge of counterfeit against Herbs Oils products. In those circumstances, the application for an interdict
should not have been granted and the appeal against it was upheld.
Notes
For Delict see:
· LAWSA Third Edition (Vol 15, paras 1223)
· Law of Delict by J Neethling and JM Potgieter 7ed Durban LexisNexis 2015
For Passing Off see:
· LAWSA Second Edition Replacement Volume 2015 Vol 29, paras 200255
· Burrell TD Burrells South African Patent and Design Law 4ed Durban LexisNexis 2016
Cases referred to in judgment
Buthelezi v Poorter and others [1974] 2 All SA 426 (1974 (4) SA 831)
(W) Referred to
362
Capital Estate and General Agencies (Pty) Ltd and others v Holiday Inns
Inc and others [1977] 3 All SA 306 (1977 (2) SA 916) (A) Referred to
352
Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and another
[1998] 3 All SA 175 (1998 (3) SA 938) (SCA) Referred to
353
Caxton Ltd and others v Reeva Forman (Pty) Ltd and another [1990] 2 All
SA 300 (1990 (3) SA 547) (A) Referred to
361
Etraction (Pty) Ltd v Tyrecor (Pty) Ltd [2015] JOL 33300 ([2015] ZASCA
78; 2015 BIP 2453; 2015 JDR 0994) (SCA) Referred to
359
Heilbron v Blignault 1931 WLD 167 Referred to
361
Hix Networking Technologies CC v System Publishers (Pty) Ltd and
another [1996] 4 All SA 675 (1997 (1) SA 391) (A) Applied
361
Islamic Unity Convention v Independent Broadcasting Authority and
others 2002 (5) BCLR 433 (2002 (4) SA 294) (CC) Referred to
362
Lendalease Finance (Pty) Ltd v Corporacion De Mercadeo Agricola and
others [1976] 4 All SA 300 (1976 (4) SA 464) (A) Referred to
354
Midi Television (Pty) Ltd v Director of Public Prosecutions (WC) [2007] 3
All SA 318 (2007 (5) SA 540) (SCA) Referred to
361
Pioneer Foods (Pty) Ltd v Bothaville Milling (Pty) Ltd [2014] ZASCA 6;
[2014] 2 All SA 282 (SCA) Referred to
353
Print Media South Africa and another v Minister of Home Affairs and
another (Justice Alliance of South Africa and another as amici curiae)
2012 (12) BCLR 1346 ([2012] ZACC 22; 2012 (6) SA 443) (CC)
Referred to
362