Geary & Son (Pty) Ltd v Gove

• Jurisdiction: South Africa
• Judge: Steyn CJ, Van Blerk JA, Rumpff JA, Holmes JA and Williamson JA
• Judgment Date: 02 December 1963
• Hearing Date: 12 November 1963
• Court: Appellate Division

F Steyn, C.J.:

In the Court below the appellant (to whom I shall refer as the plaintiff) brought an action against the respondent (to whom I shall refer as the defendant) for damages arising from alleged false representations and deceitful conduct by which the defendant obtained an undue and improper advantage in carrying on his business in competition with the plaintiff, and an interdict restraining the defendant from G making such representations and indulging in such conduct. The defendant excepted under ten different heads to the declaration as amplified by further particulars, on the grounds that it discloses no cause of action and that it is bad in law as being vague and embarrassing. The Court below dismissed the exceptions under all heads except the sixth. The plaintiff appeals against the allowance of the H exception under the sixth head, and the defendant, although leave to appeal was granted in respect of all the exceptions dismissed, appeals against the disallowance of his exceptions under the first five heads only.

The declaration contains, amongst others, the following averments:

'3.

At all times material hereto the plaintiff manufactured suspension coil springs for motor vehicles.

4.

The defendant has at all times material hereto carried on business in competition with the plaintiff.

Steyn CJ

5.

At no material time has the defendant manufactured suspension coil springs.

6.

Throughout the period since the beginning of the year 1958 the defendant has habitually published to the public of Durban advertisements that the defendant manufactures all types of springs.

7.

The said advertisements meant and were intended by the defendant A and understood by persons reading the same to mean that the defendant manufactured, inter alia, suspension coil springs.

8.

In the premises the said advertisements were false.

9.

The said advertisements were false as aforesaid to the knowledge of the defendant.

10.

During the said period the defendant has on divers occasions of which the plaintiff is unable to give particulars utilised and B sold as being of the defendant's own manufacture suspension coil springs manufactured by the plaintiff.

11.

By publishing the said advertisements and acting as set forth in para. 10 the defendant has obtained an undue and improper advantage in carrying on the defendant's business in competition with the plaintiff.

12.

By reason of the defendant's having obtained the said advantage the plaintiff has suffered loss and damage.

C Particulars:

Estimated profit lost by the plaintiff during the said period:

average of three cars per working day at an average profit of £5 per car ..... R23,400.'

In reply to a request for particulars, the plaintiff stated that the defendant had competed with it in dealing in and repairing motor vehicle D springs and by holding itself out as a manufacturer of suspension coil springs, that the defendant had at no material time manufactured any suspension coil springs and that the manufacture of such springs had not been part of its ordinary business activities. In regard to the alleged advertisements the plaintiff referred to advertisements in two telephone directories and in a cinema, displaying in the case of the E first-mentioned advertisements representations of a coil spring and a leaf spring, and in the case of the advertisements in the cinema, a representation of a coil spring. The advertisements carried the defendant's name and address, with the following words below the name:

'General springsmiths

All types of car springs repaired, set up and reinforced. Springs manufactured to exact factory specifications.'

F The plaintiff further stated that these advertisements meant and were intended and understood to mean that the defendant did in fact manufacture or had manufactured suspension coil springs, and manufactured all types of springs in the normal course of its business. As to the alleged use made by the defendant of suspension coil springs G manufactured by the plaintiff, as being springs manufactured by the defendant, the plaintiff stated that they had been used by fitting or adapting them in the course of the defendant's business, that in the absence of a representation that they had been manufactured by the defendant, and of any other improper dealing therewith such as the removal or defacement of the plaintiff's trade mark, the alleged use H would not have been unlawful, and that it does not contend that it has suffered damages as a result of the alleged use of its coil springs, independently and irrespective of the publication of the advertisements.

The plaintiff's action is Aquilian. It sues in delict. What it apparently seeks to allege is the wrongful interference by a competitor with its rights as a trader. Although there is no clear statement to that effect in the...