unable to produce the actual order book from which the order form was taken as he had destroyed it once it had
become full. The copy had been made at the instance of Mr Brian Wimpey, third respondent's attorney, but Wimpey
did not ask him to keep the original order book.
Although the order book was according to Higgo his own personal book he both signed the order and stated his
first name on it. Higgo's explanation for this was that his superior would be able to identify the document as coming
from him if it was called for.
Higgo also testified that the order was placed telephonically by Heleen on behalf of Dr De Beer on 2 May 2000
and he had in turn phoned Druggist Distributors to place the order with a person known as Maryanne. She was in
fact Maryanne Thom, a call centre agent employed by Druggist Distributors. Druggist Distributors was a general line
wholesaler in which the third respondent had an interest and stocked both Augmentin and Augmaxcil.
Higgo stated in his affidavit that he had immediately placed a call to Druggists Distributors and spoke to
Maryanne who had confirmed that she had erroneously dispatched Augmaxcil to Dr De Beer. According to Maryanne
the confusion arose by virtue of the fact that Augmentin and Augmaxcil appears simultaneously on her computer
screen when filling an order. In her affidavit Thom confirmed the correctness of the allegations in Higgo's affidavit
save that what had been ordered by De Beer was Augmentin 1 000 mg tablets which she confused with Augmaxcil.
After both Higgo and Thom testified in court it became clear to me that the affidavits of Higgo and Thom could not
be correct. Applicant only marketed Augmaxcil 375 mg and 625 mg tablets and not a 1 000 mg tablet. In addition
the order allegedly placed for Augmentin 375 mg tablets was in respect of bottles of 100 tablets. Augmaxcil is sold
in bottles containing 15 tablets and applicant does not sell Augmaxcil in containers of 100 tablets. It was
consequently improbable from the affidavit that Thom could confuse an Augmaxcil 375 mg tablet with an Augmentin
1 000 mg tablet and dispatch the wrong tablet.
Higgo's oral evidence also deviated materially from the evidence contained in his affidavit and to my mind his
explanations for this discrepancy were wholly unsatisfactory. Higgo's affidavit, which referred
View Parallel Citation
to the delivery of the wrong tablets, was deposed to within days of the event. This notwithstanding, he testified
that he had obtained from Heleen a copy of the Druggist's Distributors invoice which related to the goods wrongly
delivered and that this invoice reflected that Augmaxcil had been delivered instead of Augmentin which had been
ordered. A copy of the invoice was exhibit 16.
Higgo could not give a satisfactory explanation as to why in an affidavit delivered virtually contemporaneously
with the event he had referred to tablets
Page 152 of [2001] 2 All SA 126 (T)
whereas some three months later when testifying he now contended that the error lay in the delivery of Augmaxcil
suspension instead of Augmentin suspension. He was the one who had collected the goods from Dr De Beer and
returned them personally to Thom to arrange the resulting credit. He was unable to explain how it came about that
Thom had corrected his affidavit by stating that the goods that had been ordered were Augmentin 1 000 mg tablets
and not Augmentin suspension. In considering and deciding the reliability of Higgo's evidence I keep in mind that
Higgo testified that shortly before the events of 2 May 2000 at an internal meeting the third respondent's sales
representatives had been addressed by a senior member of management. They had been informed of the entry of
Augmaxcil on the market together with particulars of the litigation between the parties. The sales representatives
were encouraged to look for instances of confusion between Augmentin and Augmaxcil. He himself testified that the
incident in question was an important one which he had reported to his superiors in a memorandum dated 3 May
2000 (exhibit 17) yet, he had deposed to an affidavit which was wrong in at least one material respect.
A further point of criticism against Higgo was his initial emphatic denial that his employer had offered any reward
for finding any instances of confusion but later stated that it was possible that a dinner had been offered to
representatives who found evidence of confusion. This evidence of Higgo must also be viewed in the light of the fact
that the first respondent had publicly announced that in those markets in which it operated it was offering a reward
for the infringement of its intellectual property rights pertaining to Augmentin. I am not persuaded that reliance
could be placed on the evidence of Higgo.
As far as Thom's evidence on actual confusion is concerned it was apparent that she did not herself know of any
error until Higgo telephoned her on 3 May 2000. She could not explain how it came about that she had corrected
Higgo's affidavit by referring to Augmentin 1 000 mg tablets as opposed to Augmentin 375 tablets as having been
ordered. She speculated that it may have been the result of how the various products were listed. She had only
now become aware from what Higgo had told her that Augmaxcil suspension had allegedly been supplied by
mistake instead of Augmentin suspension. Her evidence is based almost entirely on what Higgo told her and
certainly as far as confusion is concerned she was entirely dependent on what Higgo had told her. She had no
independent personal knowledge even of the fact that an error had allegedly been made. It appears that at the
time the alleged error was first raised by Higgo, Thom had called up the appropriate screen and had speculated on
how any error might have occurred. She was quite
View Parallel Citation
unequivocal that she could not remember how the error actually occurred. In my view, consequently, her oral