Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (2)

• Jurisdiction: South Africa
• Judge: Van Schalkwyk J
• Judgment Date: 29 November 1987
• Hearing Date: 29 November 1987
• Court: Witwatersrand Local Division

Van Schalkwyk J:

At the commencement of this trial the defendant sought and was granted leave to argue certain points in limine in terms of the provisions of Rule 33(4) of the Uniform Rules of Court. It is necessary for the purposes of this judgment to deal only with the first of the B various points raised. This was a contention that the plaintiff had failed to allege facts which, if proved, would establish the element of wrongfulness necessary to sustain an action for an interdict based upon the delict of unlawful competition. In particular it was contended on behalf of the defendant that it was necessary for the plaintiff to have C alleged dolus on the part of the defendant.

At the conclusion of the argument I made an order dismissing with costs the application (including a second, subsidiary point). I found it unnecessary to deal with two further points, one of which related to an D alternative cause of action. In view of the conclusion I had reached in regard to the first of the points raised, the determination of the further points in favour of the defendant would have served no practical purpose as the trial would in any case have had to proceed.

The defendant now seeks leave to appeal to the Appellate Division against the judgment and the order for costs. On behalf of the defendant E Mr Zulman has argued that there is a reasonable prospect that the Appellate Division will hold that dolus is an essential ingredient of wrongfulness in an action for an interdict where the plaintiff relies upon unlawful competition. He argues that the issue is res nova and ought therefore to enjoy the attention of the Appellate Division.

F Counsel for the defendant also argued that there is a substantial amount at stake for both parties in consequence of this litigation. Although the relief claimed by the plaintiff is restricted to an interdict, there is no doubt that there is merit in Mr Zulman's contention (if one has regard to the potential cost of the litigation involving numerous expert witnesses, many of whom come from overseas).

G It was argued that the matter is one of substantial importance for the defendant. If the exception were upheld by the Appellate Division that would, in all probability, bring the litigation to an end. It is improbable, so it was argued, that the plaintiff would then effect any amendment to its particulars of claim which might remedy the cause of action. (It was conceded in argument that the plaintiff would be unable H to prove dolus on the part of the defendant.)

In regard to the application for leave to appeal against the order the defendant has established the primary requirements for leave to appeal. However, the order against which the defendant seeks leave to appeal is I interlocutory and the further inquiry is whether leave to appeal can be granted at all. Section 20 (1) of the Supreme Court Act 59 of 1959 reads:

'An appeal from a judgment or order of the Court of a Provincial or Local Division in any civil proceedings or against any judgment or order of such a Court given on appeal shall, subject to the provisions of ss (3), be heard by the Appellate Division.'

J For the purposes of this judgment the contents of ss (3) are irrelevant.

Van Schalkwyk E

A In an unreported judgment of the Full Bench of the Transvaal Provincial Division delivered on 10 August 1987 [*] in South Africa Druggists Ltd v Beecham Group plc, Eloff DJP who delivered the judgment of the Court dealt with the amendment of this subsection by s 7 of Act 105 of 1982. The learned Judge said at 880A - B:

B 'It is to be noted that in the South Cape case the point was dealt with in the context of s 20 (2) (b) of the Supreme Court Act as it stood at the time, which provided that an appeal could be brought against an interlocutory order with the leave of the Court granting it. That subsection was, however, amended by s 7 of Act 105 of 1982 and in its present form s 20 makes no provision for appeals against interlocutory orders. The result is that unless an interlocutory order has a final and C definite effect on the main action and so qualifies as a "judgment or order", it is not appealable even with leave.'

Before its amendment s 20 (2) (b) of the Supreme Court Act read:

'No judgment or order given or made by consent as to costs only which by law are left to the discretion of the Court and no interlocutory order D shall be subject to appeal save with the leave of the Court by which the judgment was given or the order was made.'

The effect of the amendment was also considered by Coetzee J in Ranch International Pipelines (Transvaal) (Pty) Ltd v LMG Construction (City) (Pty) Ltd; LMG Construction (City) (Pty) Ltd v Ranch International E Pipelines (Transvaal) (Pty) Ltd and Others 1984 (3) SA 861 (W) at 882H, where the learned Judge said this:

'Since the recent amendment to the Supreme Court Act interlocutory orders are now appealable as of right.'

F The finding that interlocutory orders are appealable as of right is unmotivated and it is not clear whether any argument was addressed to the learned judge on this point. It is, however, incompatible with the judgment of the Full Court in the South African Druggists case supra and I am of course bound to follow that decision unless, as was argued by Mr G Zulman, that decision is itself incompatible with a judgment of the Appellate Division. The Appellate Division judgment relied upon by Mr Zulman is the recent decision Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration 1987 (4) SA 569 (A). This judgment contains a comprehensive review of the authorities which deal with the test to be applied to enable a Court to determine whether a decision made by a Court in the course of judicial proceedings is a judgment or order in H the sense in which those terms are used in s 20 (1) of the Supreme Court Act.

In that case the Court considered the appealability of an...