Zietsman v Electronic Media Network Limited

• Jurisdiction: South Africa
• Judge: Sapire AJ
• Judgment Date: 15 September 2010
• Docket Number: P92/9925
• Court: Commissioner of Patents
• Hearing Date: 15 September 2010
• Citation: 2010 JDR 1232 (CP)

Sapire AJ:

The Applicant seeks leave to appeal to the Supreme Court of Appeal against the granting of an order requiring the applicant to furnish security for Respondents' costs in an action, pending before the commissioner. In the action, the applicant seeks relief against the respondents here cited and other parties, for alleged infringement of a patent held by the Applicant. I, as commissioner, made the order on 1st December 2009.

2010 JDR 1232 p2

Sapire AJ

The Applicant is somewhat out of time in making this application and applies, as he is constrained to do, for condonation of his default. By accord of the parties, I will condone applicant's default if the merits of the application favour the granting of the leave to appeal.

The Respondents in this application, (to whom I will continue to refer as such) had previously been granted an order by the commissioner requiring the Applicant to furnish security for Respondents' costs of the infringement action in an amount of R250 000. The Supreme Court of Appeal, set this order aside, principally for the reason that the present respondents had not in their application for the furnishing of security, sufficiently disclosed and demonstrated a arguably viable defence to the Applicant's claim arising out of the alleged infringement. In allowing the appeal against the commissioner's order requiring the furnishing of security for the respondents' costs in the action Streicher JA said:

"18.2 It is stated in the founding affidavit to the first and the second respondents' application that they intend making application to set aside certain amendments to the relevant patent on the basis that the amendments do not comply with the provisions of s 51(6) of the Act. However, they do not state what the effect of the setting aside of the amendments would be on the appellant's claim. They demand that security be furnished without even alleging that they have a defence to the appellant's claim, let alone stating what the nature of their defence is. They are doing so notwithstanding the fact that s 17(2)(b) specifically provides that the Commissioner may have regard to the prospects of success or the bona fides of the party from whom security is required.

2010 JDR 1232 p3

Sapire AJ

[19] In my view, it would be quite unreasonable to order the appellant, an incola natural person, to provide security for an action instituted by him, at the behest of a defendant who may not even have a defence worthy of...