Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property GmbH

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: AC Basson J
• Judgment Date: 14 January 2021
• Docket Number: Patent 2005/00230
• Hearing Date: 14 January 2021
• Court: Commissioner of Patents
• Citation: 2021 JDR 0689 (COP)

AC Basson J:

[1]

This is an application for leave to appeal against the judgment and order of this court dated 3 September 2020 refusing an application brought by Villa Crop Protection (Pty) Ltd ("Villa Crop") leave to amend its plea by introducing a special plea. The application for leave to appeal is opposed by Bayer Intellectual Property GmbH ("Bayer").

[2]

The merits of the application for leave to appeal must be considered against the background of the test for leave to appeal. It is now trite that section 17(a)(i) of the Superior Courts Act [1] have raised the threshold for grating leave to appeal. Bertelsmann, J in The Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others [2] explains:

"[6] It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H. The use of the word "would" in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against."

[3]

The Supreme Court of Appeal in S v Smith [3] also had occasion to consider what constituted reasonable prospects of success in terms of section 17(1)(a)(i):

"[7] What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not

2021 JDR 0689 p3

AC Basson J

remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal."

[4]

There must therefore exist more than just a mere possibility that another court will, not might, find differently on both facts and law.

[5]

Villa Crop has raised various grounds for leave to appeal. Bayer opposes the application for leave to appeal, inter alia, on the basis that the application for leave to appeal does not satisfy the requirement imposed by section 17(1)(c) of the Superior Courts Act:

"17 Leave to appeal

(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a)

(i)

the appeal would have a reasonable prospect of success; or

(ii)

there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b)

the decision sought on appeal does not fall within the ambit of section 16(2)(a); and

(c)

where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties."

2021 JDR 0689 p4

AC Basson J

[6]

Both parties have filed extensive and detailed heads of argument. I do not intend dealing with all the arguments raised. I have considered all the grounds for leave to appeal and the arguments put forward in the heads of argument. I only intend to briefly deal with some of the more pertinent arguments raised on behalf of both parties.

[7]

I have dismissed the application for leave to appeal for the following two reasons: (i) the application for leave to appeal is premature and will result in a piece- meal appeal. (ii) In any event, even if the jurisdictional requirements for leave to appeal are satisfied, the application has no reasonable prospects of success on appeal.

[8]

Bayer argues that the basis that the decision now sought to be appealed would not, if successful, dispose of the real issues in dispute and the appeal would not lead to a just and prompt resolution of the real issues between the parties (section 17(1)(c) of the Superior Courts Act). It is further argued that, even if the appeal were to be successful and the amendment to the applicant's plea were to be allowed, the trial court would still be required to deal with, at the very least the following issues: (i) the validity in law, in the...