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[2014] ZASCA 11
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Adams & Adams Attorneys and Another v Pointer Fashion International CC and Others (324/2013) [2014] ZASCA 11; 2014 BIP 176 (SCA) (19 March 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
no: 324/2013
In
the matter between:
ADAMS
& ADAMS
ATTORNEYS
...............................................................
First
Appellant
DELUXE
HOLDINGS
AG
.......................................................................
Second Appellant
and
POINTER
FASHION INTERNATIONAL CC
.......................................
First
Respondent
COMMISSIONER
OF COMPANIES AND
INTELLECTUAL
PROPERTY
...........................................................
Second
Respondent
SHERIFF
OF THE MAGISTRATES’ COURT,
PRETORIA
SOUTH
EAST
....................................................................
Third
Respondent
Neutral
citation:
Adams & Adams v
Pointer Fashion International (324/2013)
[2014] ZASCA 11
(19 March
2014)
Coram
:
MTHIYANE DP, MHLANTLA and WALLIS JJA, VAN ZYL and MOCUMIE AJJA.
Heard:
13 March 2014
Delivered:
19 March 2014
Summary:
Application for leave to
deliver a further affidavit – application granted – order
not appealable.
ORDER
On
appeal from:
North
Gauteng High Court, Pretoria (Prinsloo J sitting as court of first
instance) it is ordered that:
The
appeal is struck off the roll with costs, such costs to include those
consequent upon the employment of two counsel.
JUDGMENT
Wallis
JA (Mthiyane DP, Mhlantla JA and Van Zyl and Mocumie AJJA concurring)
[1]
The underlying dispute between the parties
relates to five trade marks that are at present registered in the
name of the second
appellant, Deluxe Holdings AG (Deluxe), a Swiss
company. These trade marks were formerly owned by and registered in
the name of
the first respondent, Pointer Fashion International CC
(Pointer). They were purchased by Deluxe at a sale in execution held
on
8 September 2011 at the instance of the first appellant, Adams &
Adams Attorneys (Adams & Adams). The latter had obtained
two
judgments against Pointer, the one dated 15 July 2005 in respect of
the costs of the adjournment of an action it had instituted
against
Pointer in the Magistrates’ Court, Pretoria, and the other a
default judgment for outstanding fees dated 16 October
2006 in the
same court.
[2]
On 27 February 2012 Pointer instituted
application proceedings in the North Gauteng High Court, Pretoria, to
set aside the sale
in execution; cancel the registration of the trade
marks in the name of Deluxe and have its name restored to the
register as the
owner of the marks. It framed the relief that it was
seeking in its notice of motion in two parts. Part A was interim
relief aimed
at preventing Deluxe from dealing with or disposing of
the marks pending the final outcome of the application. Part B was
the claim
for final relief. The application for interim relief was
set down for hearing on 6 March 2012. In heads of argument furnished
on
that day Pointer indicated that, over and above the grounds set
out in its founding affidavit, it intended to argue that the two
judgments obtained by Adams & Adams had become superannuated in
terms of
s 63
of the
Magistrates’ Courts Act 32 of 1944
.
It intended, on this ground also, to contend that the sale in
execution fell to be set aside. The present appellants objected
to
the point being raised in this fashion and the application was then
adjourned sine die in terms of an interim arrangement incorporated
in
a court order.
[3]
Thereafter
Pointer launched an application purporting to be in terms of rule
6(5)
(e)
of the High Court Rules, but in fact in terms of rule 6(11),
[1]
seeking leave to deliver a supplementary affidavit raising the new
point ‘as evidence in the main application’. That
application was opposed by Adams & Adams and Deluxe, although
their reasons for doing so are obscure. Courts are reluctant
to
prevent parties from raising fresh legal issues provided that does
not cause irreparable prejudice to the other litigants. And
so it
proved, because, when the application came before Prinsloo J in the
North Gauteng High Court, leave was granted to deliver
the further
affidavit. Ancillary orders were granted to permit further answering
and replying affidavits to be delivered in relation
to the issues
arising from the admission of further evidence. Thereafter leave to
appeal to this Court was sought and granted by
Prinsloo J.
[4]
That
recitation of the history of the litigation, and the description of
what was before Prinsloo J and the orders that he made,
makes it
clear that he was dealing with an interlocutory matter, namely,
whether to permit the new legal point to be raised by
Pointer. The
order was purely procedural in nature and disposed of no issue in the
litigation between the parties. In the circumstances
on
well-established authority the order was not appealable.
[2]
[5]
The
reason the appellants thought otherwise lies in the course that the
argument before Prinsloo J took. Although no such point
was taken in
the answering affidavit in the application before him, in the
answering affidavit in the main application, Deluxe
submitted that
the court had no jurisdiction over it because it was and is a
peregrinus
and could not be made subject to the court’s jurisdiction in
the absence of an attachment
ad
confirmandam jurisdictionem
of
property owned by it and situated within the area of the court’s
jurisdiction. At the commencement of the proceedings before
Prinsloo
J counsel representing Adams & Adams and Deluxe submitted that
the court should first decide this point of jurisdiction.
The learned
judge went on to do so and held that he had jurisdiction. This ruling
was not embodied in the order, but it was argued
in this court
[3]
that it formed the necessary underpinning for the order to permit the
additional affidavit to be delivered.
[6]
That
approach was fundamentally misconceived. The court did not have
before it the application in respect of which the new evidence
was
being tendered, whether that was at that stage in two parts, seeking
both an interim interdict and final relief, or was confined
to the
latter.
[4]
It was only seized of
the interlocutory application to admit the further affidavit. In
regard to that application it clearly had
jurisdiction over Deluxe.
After all Deluxe had entered appearance and caused an answering
affidavit to be delivered in the main
application in which the point
of jurisdiction had been taken. Deluxe had joined with Adams &
Adams in objecting to the new
legal point being raised informally and
thereby compelled Pointer, if it wished to pursue the point, to bring
the application that
it had. Deluxe then opposed that application.
For the purposes of the interlocutory application it had clearly
submitted to the
jurisdiction of the court and the court therefore
had personal jurisdiction over it for the purposes of deciding
whether to admit
the additional affidavit.
[7]
I
do not mean by this to say that Deluxe has submitted to the
jurisdiction of the high court for the purposes of the main
application.
That is a matter to be debated when the merits are
adjudicated upon in due course, in accordance with the law as laid
down in several
decisions of this Court.
[5]
All that I am saying, and that ought to be obvious, is that in regard
to the interlocutory proceedings Deluxe had joined issue
and
submitted itself to the jurisdiction of the court.
[8]
The
result of this misconception as to what matters were before the court
below was that argument was addressed and a judgment delivered
on
some difficult issues dealing with the nature of a registered trade
mark and whether it is for the purposes of jurisdiction
to be treated
as an immovable or, to adopt the expression used in one case,
[6]
akin to an immovable. If it is, then it was argued (and accepted in
this court) that an attachment
ad
confirmandam jurisdictionem
of property of the registered user of the trade mark is unnecessary
in order for the court to exercise personal jurisdiction over
the
registered user.
[7]
But all this
is by the by. That issue was not before the court below and in
relation to the only issue that it had to decide it
plainly had
jurisdiction over Deluxe.
[9]
In those circumstances what is before us is
an appeal against a purely interlocutory order. That is not
appealable. For the sake
of clarity this judgement neither endorses
nor dissents from the views expressed by the court below on the topic
of jurisdiction
and the need for an attachment of Deluxe’s
property. They do not in any way bind the court that will in due
course, if this
litigation continues, be seized of the main
application.
[10]
The appeal is struck off the roll with
costs, such costs to include those consequent upon the employment of
two counsel.
M
J D WALLIS
JUDGE
OF APPEAL
Appearances
For appellant: C E
Puckrin SC (with him L G Kilmartin)
Instructed by: Adams
& Adams Attorneys, Pretoria;
Honey
Attorneys, Bloemfontein
For
respondent: C A Da Silva SC (with him D W Gess)
Instructed
by:
Springer-Nel
Attorneys, Cape Town;
Van
der Merwe & Sorour, Bloemfontein.
[1]
Rule 6(5)
(e)
deals with the delivery of replying affidavits in conventional
application proceedings whereas the application was an interlocutory
application incidental to pending proceedings.
[2]
The line of cases starts with
Zweni
v Minister of Law and Order
1993
(1) SA 523
(A) at 531B-D and runs through
Jacobs
and Others v Baumann NO and Others
2009
(5) SA 432
(SCA) para 9;
Health
Professions Council of South Africa and Another v Emergency Medical
Supplies and Training CC t/a EMS
2010
(6) SA 469
(SCA) para 15. The topic
is
fully discussed in D E van Loggerenberg (General editor)
Erasmus
Superior Court Practice
(looseleaf)
A1-42 to A1-46 (as at service 41, 2013). There is no need to add
further to the burden of annotations.
[3]
By leading counsel who did not appear in the court below.
[4]
In this court counsel confirmed that Pointer is only pursuing the
main relief and not the application for an interdict.
[5]
Hay
Management Consultants (Pty) Ltd v P3 Management Consultants (Pty)
Ltd
2005
(2) SA 522
(SCA);
MV
Alina II (no 2): Transnet Ltd v Owner of MV Alina II
2011
(6) SA 206
(SCA) para 14.
[6]
Oilwell
(Pty) Ltd v Protec International Ltd & others
2011
(4) SA 394
(SCA) para 13.
[7]
Jackaman
and Others v Arkell
1953
(3) SA 31
(T) at 34
;
Manna v Lotter and Another
2007
(4) SA 315
(C) paras 7-10.