Nativa (Pty) Limited v Austell Laboratories (Pty) Limited

The appellant, Nativa (Pty) Ltd, markets joint-care supplements under the OSTEOEZE brand containing glucosamine and chondroitin. The respondent, Austell Laboratories (Pty) Ltd, markets a competing product, PIASCLEDINE, which contains neither ingredient. In early 2018 Austell broadcast a national television advertisement depicting OSTEOEZE products and warning that glucosamine and chondroitin posed health risks to people suffering from high blood pressure, diabetes and asthma, and promoted PIASCLEDINE as a safe alternative. After Nativa objected, Austell withdrew the original advertisement but replaced it with an ‘altered’ version in which the OSTEOEZE products were blurred, while the warnings and claims about health risks remained unchanged. Nativa brought an urgent application for an interim interdict based on unlawful competition, alleging false and disparaging statements damaging its goodwill. The High Court dismissed the application, finding no prima facie right. Nativa appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The High Court order was set aside and replaced with an order interdicting and restraining the respondent from broadcasting or using the altered advertisement or any colourable imitation, and from making false and disparaging statements about the appellant’s OSTEOEZE products and their ingredients. The interdicts were ordered to operate as interim interdicts pending the outcome of an action for final interdictory relief and damages based on unlawful competition.

This case is significant in South African law for reaffirming the principles governing unlawful competition by false disparagement and injurious falsehood in advertising. It clarifies that advertisers cannot evade liability by superficially altering an unlawful advertisement and underscores that false or misleading health-risk claims about a competitor’s product infringe goodwill and justify urgent interim relief.