P Lorillard Co v Rembrandt Tobacco Co (Overseas) Ltd

• Jurisdiction: South Africa
• Judge: Marais J, Cillié J and Boshoff J
• Judgment Date: 15 September 1967
• Court: Transvaal Provincial Division
• Citation: 1967 (4) SA 353 (T)

C Cillié, J.:

When this appeal was heard for the first time, it came before a Full Court consisting of the JUDGE - PRESIDENT and CLAASSENS and HILL, JJ. Shortly after the hearing started, it became evident that counsel for the appellant was basing his argument on some grounds which D were not contained in his notice of appeal. The Court thereupon decided to postpone the matter so that the appellant's grounds of appeal could be amended in the proper manner.

The appellant's legal advisers considered that the amendments would be ineffectual unless certain other proceedings before the Registrar of E Trade Marks could be brought before the Court on review and set aside. An application with this object was heard by a Court consisting of LUDORF, STEYN and COLMAN, JJ., and was dismissed. As a result the appellant's notice of appeal was not amended and the appeal was, therefore, to be heard on the same grounds as those which had existed at the first hearing.

F As the JUDGE - PRESIDENT is on long leave and outside the borders of the Republic, and CLAASSENS and HILL, JJ., are absent on duty in the Witwatersrand Local Division, it was not at present possible to have the appeal heard by the same Judges who sat and listened to some argument at the first hearing. The question arose whether the Court as presently G constituted could hear the matter even though the parties did not object and, indeed, consented to a hearing de novo in so far as it was within their competence so to consent.

It is a common occurrence in the motion Courts in this Province that argument, in an ex parte opposed case, proceeds for some time when the matter is postponed for further facts to be put before the Court, and is H then afterwards heard by a different Judge. Less frequently it happens that a criminal appeal is postponed, after some argument, for a particular point to be put before the magistrate in the court a quo for his comments, and is then heard before a Court differently constituted. Apart from the recognised practice there is scant authority for this procedure.

Instances of a change of Courts in criminal matters are to be found in cases where an assessor died or fell seriously ill before a trial was completed. Such cases as R v Price, 1955 (1) SA 219 (AD) and R. v.

Boshoff J

Johnston, 1947 (4) SA 842 (C), deal with the problem which has now been solved by subsequent legislation.

On the question of a part-heard civil matter coming before another Court, the attitude of the parties appears to be of the greatest importance. As long as their agreement is not in conflict with any A statutory provision or rule of law, e.g. one relating to territorial jurisdiction, they may agree not only to a new trial or hearing before a differently constituted Court, but also, within limits, to the production of evidence at the new trial. In Samuel and Others v Seedat, 1949 (3) SA 984 (N), the facts were that a magistrate trying the case B took ill and that the case was then placed before another magistrate; the parties agreed that the evidence which had already been given should form part of the record. The Court held on appeal that this agreement did not deprive the judgment of its validity as such nor render it the mere award of an arbitrator. SELKE, J., referred in his judgment to South African and English cases and, at p. 987, states the principle that -

C '. . . in civil cases, the parties may, by consent or contract, depart to some extent from the usual procedure, more especially in the direction of relaxing the strict rules of evidence'.

To the cases quoted may now be added The Forest Lake case, (1963) 3 All. E.R. 833.

D In all the cases considered the presiding judicial officer or one of the members of the Court hearing a matter became permanently or temporarily unable to be present at the trial and by agreement the trial was conducted in a particular manner before a Court differently constituted.

For the purpose of this appeal it may be said that, as it has become relatively impossible to constitute the Court as it was constituted at E the original hearing, the parties could agree to a new hearing before a differently constituted Court.

In view of the absence of the JUDGE - PRESIDENT and the other Judges, and the agreement by the parties to a new hearing, there can be no objection to this Court hearing the appeal.

F MARAIS, J., and BOSHOFF, J., concurred.

Judgment

Boshoff, J.:

This is an appeal, brought in terms of sec. 118 of Act 9 of 1916, from the decision of the Registrar of Trade Marks, Pretoria, allowing two applications by the present respondent, herein called the G applicant, for the registration of the marks 'Spring' and 'Springtime', respectively, as trade marks in respect of all goods in Class 45 of the 1916 Trade Marks Classification, namely tobacco whether manufactured or unmanufactured.

Although that portion of Act 9 of 1916 which relates to trade marks has H been repealed by the Trade Marks Act, 62 of 1963, the applications, having been made before the repeal, are governed by the provisions of the repealed Act in terms of sec. 2 (3) of the new Act.

Because of the similarity of the marks 'Spring' and 'Springtime', it is common cause that both applications are governed by the same principles and fall to be considered on the same facts.

In terms of sec. 110 any person claiming to be the proprietor of a trade mark may make application to the Registrar for the registration

Boshoff J

of his trade mark in the form prescribed. The form prescribed (Form TM.1) embodies a claim by the applicant, who signs the form, to be the proprietor of the mark sought to be registered. There are certain A matters to which the Registrar is prescribed by statute to have regard, such as those referred to in secs. 99, 105 and 140. For the rest the statute does not stipulate the grounds for granting or refusing registration, leaving it to the decision of the Registrar (see...