by way of evidence that a defence such as truth and public interest or fair comment is available to be pursued
by the respondent. It is not sufficient simply to state that at a trial the respondent will prove that the
Page 362 of [2017] 2 All SA 335 (SCA)
statements were true and made in the public interest, or some other defence to a claim for defamation,
without providing a factual basis therefor.16
[39] In this case 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. This 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. There is no need for us to
determine whether that defence will succeed at trial. But it is a colourable defence and a factual basis has
been laid for it that cannot be rejected out of hand.
[40] On the authority of Hix Networking therefore, the application for an interdict should not have been granted
and the appeal against it must be upheld. I add only two comments about that judgment to reinforce that
conclusion. The first is that the court said that the longstanding legal position as stated by Greenberg J did
not require reconsideration in the light of the guarantee of freedom of expression in the Constitution.17
Bearing in mind the subsequent comments by Langa DCJ in Islamic Unity Convention,18 this should not be
misconstrued. Now that it enjoys constitutional protection, freedom of speech carries greater weight than it
had in the past. Accordingly, when Plewman JA said that in considering an application for an interdict "the
proper recognition of the importance of free speech is a factor which must be given full value in all cases", that
must now be understood as referring to the full constitutional importance of freedom of speech and
expression. The other comment is that Hix Networking was concerned with an interim interdict where it suffices
to establish a prima facie right. As this was an application for a final interdict, Herbs Oils had to show a clear
right and its infringement on a balance of probabilities. It failed to do so and was accordingly not entitled to
the order it obtained from the High Court.
Costs
[41] While Herbal Zone and Mr Herzallah have enjoyed some success in this appeal in having the interdict granted
against them set aside, the main thrust of their argument related to the attempt to secure relief against
passing off. In the circumstances, I think the proper order in regard to the costs of the appeal is that all
parties should pay their own costs.
Page 363 of [2017] 2 All SA 335 (SCA)
Order
[42] In the result the following order is made:
1.
2.
The appeal succeeds in part and the order of the High Court is amended to read as follows:
"(a)
The application is dismissed with costs.
(b)
The counter application is dismissed with costs."
Each party is to pay their own costs of the appeal.
(Cachalia, Shongwe, Mbha JJA and Schippers AJA concurred in the judgment of Wallis JA.)
For the appellants:
GD Marriott instructed by Von Seidels Attorneys, Century City, Cape Town and Honey Attorneys, Bloemfontein
For the respondents:
I Joubert instructed by Spamer Triebel Incorporated, Bellville and Symington & De Kok, Bloemfontein
Footnotes
1 Sometimes spelled "Tongat Ali" in the papers.
2 There appear to be several products using the Phyto Andro mark, but the one with which this case is concerned is the male
potency version referred to as Phyto Andro Capsules for Him?.
3 Capital Estate and General Agencies (Pty) Ltd and others v Holiday Inns Inc and others 1977 (2) SA 916 (A) at 929BD [also
reported at [1977] 3 All SA 306 (A) Ed].
4 Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and another 1998 (3) SA 938 (SCA) paras [13], [15] and [16]
[also reported at [1998] 3 All SA 175 (SCA) Ed].
5 The summary is taken from the judgment in Pioneer Foods (Pty) Ltd v Bothaville Milling (Pty) Ltd [2014] ZASCA 6; [2014] 2
All SA 282 (SCA) para [7].
6 Lendalease Finance (Pty) Ltd v Corporacion De Mercadeo Agricola and others 1976 (4) SA 464 (A) at 489BC [also reported
at [1976] 4 All SA 300 (A) Ed]; The Shipping Corporation of India v Evdomon Corporation and another 1994 (1) SA 550
(A) [also reported at [1994] 2 All SA 11 (A) Ed].
7 That certificate appears to have expired on 27 August 2014 but, in response to a r 35 (12) notice, a further certificate was
produced for the product to be manufactured by Greens United Sdn Bhd valid from 1 January 2015. That certificate in turn
expired on 31 December 2015.
8 Verimark (Pty) Ltd v BMW AG BMW AG v Verimark (Pty) Ltd 2007 (6) SA 263 (SCA) para [5] [also reported as Verimark
(Pty) Ltd v Bayerische Motoren Werke Aktiengesellschaft; Bayerische Motoren Werke Aktiengesellschaft v Verimark (Pty)