South African Druggists Ltd v Beecham Group plc

• Judge: Eloff Djp, Roux J and Goldstein J
• Judgment Date: 10 August 1987
• Hearing Date: 22 July 1987
• Court: Transvaal Provincial Division

South African Druggists Ltd v Beecham Group plc
1987 (4) SA 876 (T)

1987 (4) SA p876

Citation	1987 (4) SA 876 (T)
Court	Transvaal Provincial Division
Judge	Eloff Djp, Roux J and Goldstein J
Heard	July 22, 1987
Judgment	August 10, 1987

Flynote : Sleutelwoorde

Appeal — To Appellate Division — In what cases — Interlocutory order putting into operation grant of extension of patent, pending appeal against extension of patent — Such C order not having irreparably affected applicant's rights and not precluding Appellate Division from according applicant any relief — Such order thus not judgment or order' within meaning of s 20 of Supreme Court Act 59 of 1959 — Court thus refusing to entertain application.

D Appeal — Noting of — Appeal to Appellate Division from interlocutory ruling of Full Bench in Provincial Division — Applicant filing notice of appeal in Provincial Division and lodging power of attorney to prosecute appeal with Registrar of Appellate Division — Respondent filing counter-application E under Rule 30(1) to have notice set aside as irregular proceeding — Applicant disputing Provincial Division's jurisdiction to entertain counter-application — Mere lodging of power of attorney not amounting to prosecution of appeal — Court in which notice filed only tribunal capable of considering validity of notice of appeal, pending prosecution of appeal — Court's jurisdiction to entertain F counter-application flowing from Rule 30(1) because filing of notice amounting to a step in the cause in the Court — Court having found that it could not entertain application for leave to appeal, notice of appeal set aside as irregular proceeding. G

Headnote : Kopnota

Beecham (the respondent in the application) had been granted an extension of one of its patents by the Court of the Commissioner of Patents. The applicant, SAD, had opposed the application to the Commissioner and had thereafter appealed to a Full Bench of the Transvaal Provincial Division against the Commissioner's order. Its appeal was dismissed and the Full Bench substituted for the Commissioner's order an order in terms of which Beecham was granted a new patent. The judgment H was handed down on 3 November 1986. SAD noted an appeal against that decision to the Appellate Division. Beecham applied to the Full Bench for an order putting into operation its order of 3 November pending the outcome of SAD's appeal. The application was granted on 2 June 1987. SAD filed a notice of appeal to the Appellate Division against the order of 2 June and filed an application to the Full Bench for leave to appeal against its order. Beecham filed two counter- applications - firstly, for an order in terms of Rule 30(1) of the Uniform I Rules of Court setting aside SAD's notice of appeal on the grounds that the order of 2 June was not appealable at all and, secondly, for a ruling that the decision of 2 June remain in operation notwithstanding the noting of an appeal against it, or notwithstanding any application for leave to appeal against it. Beecham's submission in support of its latter counter-application was that there was reason to believe that, were the Court to hold that its order of 2 June was not appealable and granted consequential relief, SAD might bring J applications for leave to appeal to the Appellate Division not only against the order of 2 June, but against any order the

1987 (4) SA p877

Court might make. Beecham also applied for costs to be awarded A against SAD on the scale as between attorney and client.

SAD argued that the order of 2 June had a final and definitive effect in the sense that its effect had been to create a monopoly in favour of Beecham for a period until final adjudication by the Appellate Division on the effective extension of its patent, a monopoly which it would not have had but for the order of 2 June. As to Beecham's first counter-application, SAD argued that the Court had no jurisdiction to deal with the motion under Rule 30(1) on the B grounds that it (SAD) had, prior to the service of Beecham's motion, lodged a power of attorney to prosecute the appeal with the Registrar of the Appellate Division, as a result of which only the Appellate Division had jurisdiction to consider the validity of its notice of appeal.

Held, as to the appealability of the order of 2 June, that it had been an interlocutory order which would therefore be appealable only if it had a final or definitive effect on the C main suit.

Held, further, that, as far as SAD was concerned, the order of 2 June had not irreparably affected its interests and certainly had not precluded any relief which might be accorded it by the Appellate Division.

Held, accordingly, that the order had not been a 'judgment or order' within the meaning of s 20 of the Supreme Court Act 59 of 1959 and that SAD's application could thus not be entertained.

Held, further, at to whether SAD's notice of appeal could be D set aside as an irregular proceeding, that, the filing of a notice being a step in the cause in the Court, the Court's jurisdiction to entertain Beecham's application flowed from tile provisions of Rule 30(1) which gave to any party to a cause the right to apply to the Court to set aside an irregular or improper step taken by any party.

Held, further, that the mere lodging of a power of attorney with the Registrar of the Appellate Division did not constitute the prosecution of an appeal and, pending the prosecution of the appeal, the only tribunal capable of considering the E validity of SAD's notice of appeal was the Court in which such notice had been filed.

The dictum in D & H (Pty) Ltd v Sinclaire 1971 (2) SA 157 (W) at 158E - G applied.

Held, accordingly, that SAD's notice of appeal should be set aside as an irregular proceeding. No order was made as to its application for leave to appeal.

Held, further, as to Beecham's second counter-application, that the order of Court of 3 November should remain operative until F the matter had been finally disposed of by the Appellate Division for the same reasons as the order of 2 June had been made.

Held, further, as to costs, that it was impossible to avoid the conclusion that SAD's noting of an appeal against the order of 2 June, and its application for leave to appeal, had been done mainly in an effort to stultify the order. SAD was accordingly ordered to pay Beecham's costs on a scale as between attorney and client.

Case Information

Application for leave to appeal from a decision of a Full Bench G and counter-applications for relief under Rule 30(1) and for the enforcement of an order granted on 3 November 1986. 'The facts and the issues for decision appear from the reasons for judgment.

C Plewman SC (with him Y R Gautscht) for the applicant.

S A Cilliers SC (with him C E Puckrin and D N Beasley) for the H respondent.

Cur adv vult.

Postea...