Intellectual Property enforcement and the resolution of related disputes are normally achieved through approaching the High Court for an appropriate order. There are several provincial and local divisions of this court, each with different geographical jurisdiction. The Court of the Commissioner of Patents (in Pretoria) has exclusive jurisdiction over patent matters.
There are two types of court proceedings that may be instituted. These are motion proceedings (applications: brought with documentary evidence on affidavit) and trial proceedings (actions: where oral evidence is heard in court).
While attorneys may have the right of appearance in the High Court, it is customary to use advocates specialized in court appearances. The main costs in running litigation are the attorney and advocate fees. There are additional fees where expert witnesses are used.
A costs order is usually made against the unsuccessful party in litigation when a Judgement is delivered. This normally translates to about a third of the successful party’s actual costs being recovered. They are determined on the basis of an official tariff by a court taxing master.
Where the plaintiff is a foreign entity without immovable property in South Africa, the defendant may request security for costs. The same applies where a foreign defendant files a counterclaim. Where proceedings are to be instituted against a foreign defendant, the plaintiff may need to have property in South Africa belonging to the defendant attached to found or confirm jurisdiction of the court.
Whenever there is a dispute of any material question of fact, one must generally proceed by way of an action (rather than an application). Actions are usually more expensive than applications. This can be related to the normally complex circumstances of such cases and to the time required for hearing oral evidence and to prepare for trial. In an application, on the other hand, the cost of preparing papers and evidence (in the form of affidavits) is at the beginning of the proceedings. This means that the initial costs of an application are generally higher than in the case of action proceedings.
A party who ignores the possibility of a factual dispute arising and utilizes application proceedings runs a risk. The application may be dismissed with costs. Even if the matter is referred to trial to hear evidence this may be subject to an adverse costs award.
An action is instituted by the plaintiff issuing a summons accompanied by particulars of the claim. This is served on the defendant by a sheriff.
A defendant must then deliver a notice of intention to defend the action. After this, the defendant must file a plea in response to the particulars of claim. Defenses should be raised in the plea. Where the defendant has a counterclaim, this accompanies the plea.
In the absence of a notice of intention to defend, the plaintiff may approach the court for a default Judgement. If the defendant does not file a plea in the prescribed time, the plaintiff can file a notice of bar. This then bars the defendant from pleading.
After receipt of the defendant’s plea and/or counterclaim the plaintiff may file a replication to the plea and, where relevant, a plea to the counterclaim. Again, where relevant, the defendant may file a replication to the plaintiff’s plea.
Where a defense is available that may extinguish or interrupt a claim, this may be raised as a special plea. A special plea will be considered by the court before going on to hear evidence on the main cause of action.
Pleadings are closed after the last replication is due. Then commence the pre-trial procedures. These include an exchange of relevant documents and correspondence (referred to as discovery), requests of further particulars for trial and exchange of summaries of expert evidence. Inspections relevant to the case may also take place where necessary.
A compulsory pre-trial conference must be attended by the parties’ legal representatives. The purpose is to investigate the possibility of a settlement; failing which, the issues in dispute should be limited. This is to save the court’s time where possible.
Heads of argument are prepared by the advocates and handed to the presiding judge with an indexed court file of all the relevant documentation shortly before the trial. At the trial or hearing, witnesses are called and oral evidence is led through examination. The witnesses are then cross-examined and re-examined. In this manner, the plaintiff presents his case and then it is the turn of the defendant. Afterwards, each side makes closing arguments and the hearing is concluded. A Judgement is delivered in due course. The parties are notified beforehand and return to court to hear this.
An application is brought on notice of motion. This document is supplemented by a founding affidavit. The founding affidavit must set out the cause of action and the facts to support it. All relevant evidentiary documents must be attached.
The respondent must file a notice of an intention to oppose. If not, the applicant may approach the court for a default Judgement. Where the respondent enters an appearance to oppose the application, it must then file an answering affidavit with any supporting documents. The applicant may then file a replying affidavit.
A hearing date is then requested from the registrar of the court and the matter is set down for argument.
The deadlines for performing most procedural steps are specified in the Rules of Court. Where this is not the case, things must be done in a reasonable time. The parties are generally entitled to alter prescribed time limits by agreement.
A single judge of the High Court presides over a case at the first hearing. There are two levels of appeal. The first appeal is normally to the full bench of the High Court – this comprises three judges. A further appeal may be made to the Supreme Court of Appeal. Five senior judges sit in this court. Leave to appeal must be given by the court that delivered the Judgement. In intellectual property matters, leave to appeal directly to the Supreme Court of Appeal is usually granted.
We have only set out South African litigation procedure generally. This field of the law does have a lot of detail. You will appreciate that in litigious matters our approach and specific advice will depend on the circumstances of each case. It is often possible to achieve results by sending letters and making demands. However, we must first properly assess the merits of each case and then decide on a plan of action.
Please feel free to call us to discuss any aspects of litigation or to arrange a consultation.