SA company switches legal representation in suspected ploy to thwart massive claim linked to stock dumping in Malawi
South African beverage producing company, Twizza, has switched its legal representation, a development that has reportedly fear that the company is either plotting to obstruct justice or is simply trying to play delay tactics.
Twizza, which was started as a dairy company, is being accused of disregarding a trademark ruling in Malawi for the brand name “Twizza” by knowingly sending a large consignment of carbonated drinks to Blantyre.
Its action left its local contracted partner, Utawaleza Beverages, with a warehouse full of stock it couldn’t sell by law.
Unable to generate revenue, Utawaleza folded within months of opening, leaving a dozen employees out of work and investors in the fledgling operation staring at a mountain of debt.
Utawaleza’s claim against Twizza, lodged in the commercial division of the High Court in 2022, includes compensation for loss of profits, damages, transports costs, and various logistical fees incurred in setting up the business.
In its initial response, Twizza argued that the contract signed in September 2018 with Utawaleza by one of its own employees Louis Opperman was invalid “because he was not a director”.
The South African company also downplayed the trademark infringement, blaming the oversight on Utawaleza’s managing director Rhys Davies, even though Twizza’s own documents revealed Davies had no prior knowledge of the injunction but, once informed about it, he urged Twizza to withhold its first consignment until the matter had been resolved.
Yet, after failing to oppose the trademark registration brought by Suncrest Creameries “and being fully aware of this fact, [Twizza] still proceed to process the claimant’s order” without informing Utawaleza, Davies said in his statement to court.
Now, after repeatedly changing legal teams, Twizza is pinning its hopes on a second bite of the cherry with a bid to amend its defence in the Blantyre High Court on Monday December 19, 2023.
But, Utawaleza’s senior counsel Gustave Kaliwo is having none of it, saying Twizza’s application will be “vehemently opposed”.
“Twizza has shown scant regard for Malawi’s courts and has tried to delay this matter at every turn,” Kaliwo said.
Twizza’s former attorneys challenged the matter on the grounds of jurisdiction and lost.
A derisory settlement offer to Utawaleza was also swiftly rejected.
Factoring in interest in the five years since it took Twizza to court, Utawaleza’s claim is worth hundreds of millions of kwacha.
“Upon arrival of the goods, the claimant was further surprised to find a good portion of the stock, the Twizza product included, contained products that were defunct, expired and/or set to expire, giving them an extremely short shelf life,” Davies said in his written submission, citing bad faith on the part of Twizza.
He added: “If [Twizza] had informed the claimant in good time that the trademark application had failed then the claimant would not have ordered the Twizza product. Further, [Twizza] failed to act in good faith by sending products that were completely unsellable thus needing to be destroyed at the expense of the claimant.”
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