IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
    	     
          	         CASE NO: 2023/106927
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
01/11/23
In the matter between:
GEO EQUIP AFRICA (PTY) LTD			      APPLICANT	
And 
GEOBRUGG SOUTHERN AFRICA (PTY) LTD 	       	       	 RESPONDENT

       			          JUDGMENT
WRIGHT J 

1.	The applicant company imports and sells wire mesh. The respondent is a trade competitor. There is patent litigation between the two which is pending.
2.	The respondent told at least one customer of the applicant that the applicant sold counterfeit wire mesh.
3.	On 13 October 2023, the respondent undertook in writing to the applicant not to “make further statements in relation to counterfeit goods to potential clients in South Africa.” The letter stated that an amended undertaking would be sent to the applicant in due course.
4.	The applicant seeks an urgent interdict.
5.	It says that the matter is urgent as it needs to protect its name and standing in the market.
6.	It is the applicant’s case that the defamation was made to the applicant and potential customers of the applicant but that the undertaking not to repeat the counterfeit allegation was given only to the applicant and that therefore, because no retraction has been made to the applicant’s customers, the applicant is prejudiced in the market.
7.	In the answering affidavit, the respondent accuses the applicant of infringing the respondent’s oversees parent company’s registered trade mark, Blast On. Although the trade mark is not yet registered in South Africa, the holding company intends seeking registration as soon as possible. 
8.	There is no counter-application.
9.	In the replying affidavit, the applicant undertakes to remove all reference on its website to Blast On and the applicant undertakes to remove certain images which the respondent says infringes its copyright.
10.	In my view, the applicant is entitled, not only to a retraction, which it has, but also to an order that the respondents send a retraction to the persons to whom the counterfeit allegation was made.
11.	In argument, Mr Bester SC for the respondent said that the undertaking, referred to by his client was overtaken by the launching of the application. This excuse is very weak. Nothing has stopped the respondent from giving what it said it would give.
12.	On the evidence, the only inference to be drawn is that when the respondent sent the counterfeit statement to at least one customer or potential customer of the applicant the motive was to decrease the applicant’s chances of being awarded a contract or contracts.
13.	The applicant is entitled to a temporary order, operating with immediate effect, costs reserved, to the effect that the statements be withdrawn and there be no related interference with its business.

ORDER
1.	X as amended. -

___________________ 
GC Wright 
Judge of the High Court 
Gauteng Division, Johannesburg

HEARD		:      31 October 2023
DELIVERED		:      31 October 2023
APPEARANCES    :
APPLICANTS          Adv R Michau SC
			reinard@clubadvocates.co.za
			083 288 2345
			Adv L Haril
			LHarilal@clubadvocates.co.za
			082 467 7684
Instructed by		Smit & Van Wyk Inc, per Wessel Van Wyk and Niel Meirng
   
RESPONDENT	Adv AJ Bester SC
			bertbester@law.co.za
			082 567 0591
			Adv P Ferreira
			pferreira@clubadvocates.co.za
			082 872 3378
Instructed by		Dr Gernholtz Inc per Otto Gernholtz
			info@gerntlholtz.com