Vetkoek fight gains traction

11 April 2019 | Justice

The court battle over vetkoek flour packaging has finally gained momentum. A status hearing was held yesterday in the High Court before Judge Hosea Angula following a ruling on 13 March that an interim interdict, as applied for by Namib Mills, would not be issued but the matter would be heard on a normal basis.

In his answering affidavit, the commercial manager of Namib Mills, Pieter van Niekerk, told the court that Bokomo alleged that the introduction of Namib Mills' vetkoek flour had a significant impact on Bokomo's white bread flour sales. According to Van Niekerk, “it is apparent that (Bokomo's) sales were declining anyway. What is significant is the sudden increase in sales that occurred since Bokomo started selling its vetkoek flour in the get-up it misappropriated.”

Van Niekerk accused Bokomo of not only delaying filing its answer to the founding affidavit, but also relying on a “significant body of documentary material” which it had failed to put before the court.

Moreover, he told the court that the market survey done by Bokomo was not performed by experts and said that Namib Mills would ask for all the relevant records relating to the research. He also questioned the sample size of 400 respondents and their geographic location.

He added that the survey had no bearing on Namib Mills' primary course of action.

“Bokomo indicates that the purpose of the market survey was to indicate that no 'passing off whatsoever takes place'. Namib Mills' course of action is not limited to passing off but is also based on the Industrial Property Act, which provides that 'any act of competition contrary to honest practices in industrial or commercial matters is unlawful',” Van Niekerk said.

Bokomo had said in its original answering affidavit that it had decided to change its packaging because of the 'white on white' printing.

Van Niekerk rejected this outright, saying, “This 'white on white' pack, introduced in 2015, would have been researched at length, printer's proofs would have been signed off, artwork signed off, and so on. Bokomo would have understood exactly what its pack was to look like.

“Bokomo indicates that a strategic decision was made to change its packaging in phases … the pack change was planned in early 2017, presumably when the 'strategic decision' took place. Yet the implementation was made only in November 2018.”

Van Niekerk asked why, if the packaging was so fraught with dismal consequences, it had taken so long to implement changes.

Van Niekerk flatly denied Bokomo's allegation that Namib Mills' vetkoek flour was simply white bread flour. Hubertus Hamm, CEO of Bokomo, filed his reply on 1 April. The affidavit deals only with discovery as requested by Namib Mills.

Save for some correspondence which he described as “subject to legal privilege”, Hamm said that the research could be made available to Namib Mills at a cost, adding that other documentation requested could be inspected.

Regarding the white-on-white packaging, he said: “The branding directives and final designs, as well as the correspondence relating thereto, are available for inspection.”

Tobias Louw from Theunissen, Louw and Partners appeared for Namib Mills, while Daneale Beukes from Engling, Stritter and Partners appeared for Bokomo Namibia.

YANNA SMITH

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