interdict to prevent a repetition of such conduct. Ms Joubert, who appeared for the respondents, submitted
that the onus then passed to Herbal Zone to establish a defence to such defamatory statements and that it
had failed to do so. As a demand that such statements would not be repeated in the future had been
Page 360 of [2017] 2 All SA 335 (SCA)
answered with an emphatic negative, she submitted that the necessary elements for the grant of an interdict
had been satisfied.
[33] Mr Marriott for Herbal Zone, submitted that the statements were true and that it was in the public interest
that they be published. He submitted that there was no doubt as a matter of fact that Infitech and Herbs Oils
were not marketing the product that had been imported into and sold in South Africa since 2006, as that
product was the Herbal Zone Phyto Andro. In view of the respondents' unwillingness to disclose the source in
Malaysia from which they were obtaining their rival product it could not be the same as that being imported by
Herbal Zone. Accordingly, the product being marketed by Herbal Oils under the name Phyto Andro was not the
original but at best a generic imitation. It was entirely inappropriate to describe it as Phyto Andro because
that was the name attaching to the Herbal Zone product. In its ordinary sense this meant that the Herbal Oils
product was counterfeit. It was in the public interest that this fact be disseminated to the retail outlets
marketing Phyto Andro to the public and to the members of the public who made use of the product and
believed in its beneficial properties.
[34] While accepting that in common parlance marketing a generic product under the name by which the original
was known would justify labelling the generic as counterfeit, Ms Joubert pointed out that Herbs Oils claimed
that the reputation in Phyto Andro vested in it and contended that this issue could not be determined on the
papers as they stood before us. If the reputation in the unregistered mark Phyto Andro vested originally in
Infitech as a result of its marketing efforts under the sole distributorship agreement and had been transferred
by Infitech to Herbs Oils, then it was the latter's product that was the genuine product albeit that it came from
a source other than Herbal Zone's Phyto Andro. This was so, she submitted, even if the composition of the
product was different from that of Herbal Zone's product. She pointed out that if the reputation in a product
vested in a party the fact that it altered the composition of the product did not mean that the altered product
ceased to be genuine or could properly be labelled as counterfeit.
[35] Flowing from this, Ms Joubert submitted that, in order to avoid an interdict, the onus rested on Herbal Zone, as
it would in a conventional action for defamation, to establish a defence of justification and this required it to
prove that the reputation in Phyto Andro vested in it. Only then could it claim that Herbs Oils' product was
counterfeit. For the reasons advanced in relation to the passing off action, it had failed to prove this on a
balance of probabilities so that the interdict should be sustained.
[36] The short answer to these submissions is that they were inconsistent with established authority on 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, the party claiming that they will
Page 361 of [2017] 2 All SA 335 (SCA)
be injured by such speech ordinarily being left to their remedy of a claim for damages in due course. Nugent JA
said in this Court:12
"Where it is alleged, for example, that a publication is defamatory, but it has yet to be established that the defamation
is unlawful, an award of damages is usually capable of vindicating the right to reputation if it is later found to have
been infringed, and an anticipatory ban on publication will seldom be necessary for that purpose."
A corporate entity such as Herbs Oils is entitled to claim damages based on defamation. This includes both
pecuniary damages for actual financial loss and general damages for harm to its commercial reputation.13 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
publications of such material. Nor did it allege that damages would not be an adequate remedy for any such
publication. Indeed the third respondent's founding affidavit entirely lacked allegations in regard to those two
elements of a claim for an interdict.
[37] The contentions in regard to the onus of proof were also contrary to established authority, to which for some
reason we were not referred. This Court dealt with the proper approach of a court to an application for an
interdict to restrain the publication of defamatory matter in Hix Networking.14 There it approved, with some
clarification, the following passage from the judgment of Greenberg J in Heilbron v Blignault:15
"If an injury which would give rise to a claim in law is apprehended, then I think it is clear law that the person against
whom the injury is about to be committed is not compelled to wait for the damage and sue afterwards for
compensation, but can move the Court to prevent any damage being done to him. As he approaches the Court on
motion, his facts must be clear, and if there is a dispute as to whether what is about to be done is actionable, it cannot
be decided on motion. The result is that if the injury which is sought to be restrained is said to be a defamation, then
he is not entitled to the intervention of the Court by way of interdict, unless it is clear that the defendant has no
defence. Thus if the defendant sets up that he can prove truth and public benefit, the Court is not entitled to disregard
his statement on oath to that effect, because, if his statement were true, it would be a defence, and the basis of the
claim for an interdict is that an actionable wrong, ie conduct for which there is no defence in law, is about to be
committed."
[38] The clarification was to point out that Greenberg J did not hold that the mere ipse dixit of a respondent would
suffice to prevent a court from granting an interdict. What is required is that a sustainable foundation be laid