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[2010] ZAGPJHC 120
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Honda Giken Kogyo Kabushiki Kaisha and Another v Hoffmann International (Pty) Ltd and Others (2005/10365) [2010] ZAGPJHC 120 (25 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT
(HELD AT JOHANNESBURG)
CASE NO:
2005/10365
DATE:
25/11/2010
Reportable
(In the
Electronic Law Reports Only)
In
the matter between:
HONDA
GIKEN KOGYO KABUSHIKI KAISHA
…........................
First
Plaintiff/First Respondent
HONDA
SOUTH AFRICA (PTY) LTD
….........................................
Second
Plaintiff/Second Respondent
and
HOFFMANN
INTERNATIONAL (PTY)
............................................
First
Defendant/First Excipient
ALL
DIESEL POWER
PRODUCTS
.................................................
Second
Defendant/Second Excipient
HOFFMANN,
ALAN LADWILL
…...........................................
Third
Defendant/Third Excipient
JUDGMENT
WILLIS
J:
[1]
The
defendants have taken exception to the plaintiff’s
replication on the basis that paragraphs 1 to 3 thereof “do
not disclose a reply to the defendants’ plea.” In the
action, t
he
plaintiffs seek an interdict and claim damages arising from for the
first and second defendants' alleged importation and
sale in South
Africa of cylinder heads and cylinder barrels, whether separately
or as part of general purpose petrol engines.
The plaintiffs have
alleged that these parts, if manufactured in this country, would
have constituted an infringement of a
copyright in four
manufacturing drawings. The defendants have denied that their parts
are reproductions or adaptations of the
drawings. In addition, the
defendants have pleaded the statutory defence contemplated by
section 15
(3A) of the
Copyright Act, No. 98 of 1978
, as amended
(“the
Copyright Act&rdquo
;).
[2] This is the
plaintiffs’ replication:
The Plaintiffs
replicate to the Defendants plea as follows:
Ad
paragraph 21
The defendants
plead that the First Plaintiff’s copyright in its drawings has
not been infringed, by virtue of
section 15
(3A) of the
Copyright
Act, because
the Defendants’ parts (the cylinder head and the
cylinder barrel) are three-dimensional reproductions of authorized
reproductions
of original drawings of the first plaintiff, i.e.
whether such original drawings are the drawings in issue or other
drawings.
The Plaintiffs
plead that the defence of
section 15
(3A) if the
Copyright Act can
only competently be raised in respect of the drawings in issue.
Reproductions of drawings which are not in issue does not avail
a
defence in terms of
Section 15(3A)
of the
Copyright Act.
In
the circumstances, the plaintiffs plead that the defendants’
reliance on the reproduction of drawings other than the drawings
in
issue does not disclose a defence to their allegations sustaining
the claim of infringement.
The
Plaintiffs plead further that
section 15
(3A) of the
Copyright Act
amounts
to an arbitrary deprivation of property which is in conflict
with section 25 of the Constitution of the Republic of South Africa
Act 108/1996 (‘the Constitution”).
The Plaintiffs
plead that, in the circumstances,
Section 15
(3A) of the
Copyright
Act is
invalid as being inconsistent with the Constitution.
I
n
the circumstances,
Section 15
(3A) of the
Copyright Act does
not
give rise to a defence to the Plaintiffs’ claims.
Wherefore
the plaintiff prays for:-
A declaration
that
Section 15
(3A) of the
Copyright Act is
inconsistent with
Section 25 of the Constitution and is therefore invalid;
An order,
referring to the Constitutional Court for confirmation, the
declaration on prayer 1;
Such further
relief as the Court deems fit;
The relief sought
in the Particulars of Claim.
[3]
In addition to their submissions that the exception is without
merit, the plaintiffs complain that the exception has been
taken
out of time without any explanation or application for condonation.
Rule 23(1) of the Uniform Rules of Court provides
that exceptions
shall be delivered within the period for filing any subsequent
pleading. Rule 25(5) provides that further pleadings,
after the
replication, may be delivered within ten days after the previous
pleading delivered by the opposite party.
The replication was delivered on 6 April 2010. A
ny
exception (or further pleading) thereto was therefore due on or
before 20 April 2010. T
he
exception was served on the plaintiffs on 24 June 2010.
In
terms of Rule 26, any party who fails to deliver a replication or
subsequent pleading within the time stated in Rule 25 is
ipso
facto
barred.
No further pleading may be delivered unless the bar is removed. In
the absence of an agreement between the parties
this may occur upon
good cause shown to the court. The plaintiffs contend that neither
situation obtains in the case of the
exception. Furthermore, they
argue that, in terms of Rule 29(b), the pleadings closed on 21
April 2010. Relying on
Stockdale
Motors Ltd v Mostert
,
1
the plaintiffs submit that as exceptions are pleadings, they cannot
be brought after the close of pleadings. Accordingly, the
plaintiffs argue that the exception stands to be dismissed on the
basis that the defendant have been out of time.
[4]
Section
15
(3A) of the
Copyright Act provides
as follows:-
The copyright in
an artistic work of which three-dimensional reproductions were made
available, whether inside or outside the
Republic, to the public by
or with the consent of the copyright owner (hereinafter referred to
as authorized reproductions),
shall not be infringed if any person
without the consent of the owner makes or makes available to the
public three-dimensional
reproductions or adaptations of the
authorized reproductions, provided the authorized reproductions
primarily have a utilitarian
purpose and are made by an industrial
process.
[5]
During
the course of argument, a fair amount of time was spent in
consideration of the case of
Dexion
Europe Ltd v Universal Storage Systems (Pty) Ltd
2
in
attempts to persuade me of its implications in the present case. In
do not think I need venture into this territory.
[6]
It would be inappropriate for me, in this case, to express an
opinion on the constitutionality or otherwise of
section 15
(3A) of
the
Copyright Act. For
the purposes of deciding this exception, I
think it would be fair, however, to observe that if the matter does
eventually fall
to be determined by the Constitutional Court, it is
not “obvious” that the plaintiffs would fail. The
question
raises issues of considerable technical and legal
complexity. It also touches upon important issues of policy. The
matter would
need to be carefully considered. It would be wrong for
this court to “excise” the substratum upon which the
plaintiffs
intend to rely in the event that they may seek to
challenge the constitutionality of the section.
[7]
It is well settled law that exceptions should not be taken to
particular sections of a pleading unless those sections are
self
contained.
3
Furthermore, it is plain enough that the whole purpose of an
exception to a plaintiff’s pleading is to avoid the leading
of unnecessary evidence at the trial.
4
It is also clear that it is only in exceptional circumstances such
as where a defendant admits the plaintiff’s allegations
but
contends that, as a matter of law, the plaintiff would, in any
event, fail.
5
[8 ] In my view:
Paragraphs 1 to
3 of the Plaintiff’s replication are not self-contained –
rather the replication must be read and
understood as a whole;
The
exception will not avoid the leading of unnecessary evidence at the
trial and, if successful, may well result in the leading
of more
evidence precisely because the plaintiff would need to cover a wider
field than being able to contend, in effect, that
“even on the
defendants own version of what they say they have done, they have
infringed the Copyright Act and, if it is
indeed permitted in terms
of
section 15
(3A), then that section is unconstitutional”;
The defendants do
not in their exception admit the plaintiff’s allegations but
contend that, as a matter of law, the plaintiff
would, in any event,
fail – the basis of their objection is that paragraphs 1 to 3
thereof “do not disclose a reply
to the defendants’
plea”.
[9] Quite apart
from other considerations such as the fact that the exception has
been taken late and that no application for
condonation has been
made and the contention that the exception does not comply with
Rule 23 (1) of the Uniform Rules of Court,
it therefore is clear to
me to me that the exception must fail.
[10] The following
is the order of the court:
The defendants’
exception to the plaintiffs’ replication is dismissed with
costs, which costs are to include the costs
of two counsel.
DATED
AT JOHANNESBURG THIS 25th DAY OF NOVEMBER, 2010.
N.P. WILLIS
JUDGE OF THE
HIGH COURT
Counsel
for the Plaintiffs/Respondents:
C.E. Puckrin
SC
(with him,
O. Salmon
and
F. Southwood
)
Counsel
for the Defendants (Excipients):
A.P. Rubens
SC (with him,
I.
Miltz
S.C.)
Attorneys
for the Plaintiffs: Werksmans Inc.
Attorneys
for the Defendants (Excipients): Wertheim Becker Inc.
Date
of hearing: 18
th
November, 2010.
Date
of judgment: 25
th
November, 2010
1
1958 (1) SA 270
(O) at 270 H.
2
2003 (1) SA 31
(SCA), esp. at paragraphs [4] and [5]
3
See,
for example,
Salzmann v Holmes
1914
AD 152
at 156;
Stephens
v De Wet
1920
AD 279
at 282;
Barrett
v Rewi Bulawayo development Syndicate Ltd`
1922
AD 457
at 459;
Barclays National Bank Ltd v Thompson
1989
(1) SA 547
(A) at 553G.
4
See,
for example,
Dharumpal Transport (Pty) Ltd v Dharumpal
1956
(1) SA 700
(A) at 706 and
Barclays National Bank Ltd v Thompson
(
supra
)
at 553H.
5
See, for
example,
Welmoed en Andere v Sauer
1974
(4) SA 1
(A) esp. at 6B-H and 20G;
Barclays National Bank Ltd v Thompson
(
supra
)
at 553H.