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[2011] ZAGPPHC 38
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New Balance Athletic Shoe Inc v Dajee N.O and Others (A362/08) [2011] ZAGPPHC 38; 2011 BIP 139 (GNP) (30 March 2011)
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH
GAUTENG
HIGH COURT, PRETORIA)
REPORTABLE
Date: 2011-03-30
Case Number:
A362/08
In the matter between:
NEW BALANCE
ATHLETIC SHOE
INC
.............................................
Appellant
…
..................................................................................
(Respondent
in court a quo)
and
ABDULLAH MOHAMED
DAJEE NO
.....................................
First
Respondent
HASSEN GOOLAN
MOHAMED KAROHA NO
...............
Second
Respondent
BASHIR AHMED
MOHAMED NO
..........................................
Third
Respondent
In re: Application for leave to
appeal
NEW BALANCE
ATHLETIC SHOE
INC
.............................................
Applicant
and
ABDULLAH MOHAMED
DAJEE NO
......................................
First
Respondent
HASSEN GOOLAN
MOHAMED KAROHA NO
................
Second
Respondent
BASHIR AHMED
MOHAMED NO
...........................................
Third
Respondent
JUDGMENT
SOUTHWOOD J
[1]
This
is an application in terms of section 20(4)(b) of the Supreme Court
Act 59 of 1959 for leave to appeal against the judgment
of this court
handed down on 2 March 2011. The judgment of this court was given in
an appeal to it against a decision of the Registrar
of Trade Marks in
terms of
section 53(2)
of the
Trade Marks Act 194 of 1993
. The
applicant appealed against the judgment and order of the Registrar of
Trade Marks expunging two of its registered trade marks
and
dismissing its application to expunge Mohamed Ismail Dajee’s
registered trade mark.
[2] At the request of the court the
parties filed heads of argument dealing with two issues:
(1) Whether leave to appeal against
the judgment and order of this court is necessary; and if so
(2) Whether this court (a full court)
can grant leave to appeal or whether the applicant must seek special
leave to appeal in terms
of
section 20(4)(a)
of the Supreme Court
Act.
The parties agree that leave to
appeal is necessary but disagree as to whether this court has
jurisdiction to grant leave to appeal.
The applicant contends that
this court has the necessary jurisdiction and the respondents contend
the contrary and that the application
should be struck from the roll
with costs.
[3] Under the Trade
Marks Act 62 of 1963 leave to appeal was not necessary from either
the full court or the Appellate Division
as the provisions of the
Trade Marks Act gave to a party an untrammelled right of appeal –
see
Cowbell
AG v ICS Holdings Ltd
2001
(3) SA 941
(SCA)
at
paras 4 and 5 and
Levi
Strauss Ltd v Coconut Trouser Manufacturers (Pty) Ltd
2001
(3) SA 1285
(SCA)
para
3.
[4] The provisions
of the
Trade Marks Act 194 of 1993
are very different and, with some
exceptions expressly stipulated in the relevant section, provide that
appeals against decisions
of the Registrar and further appeals to the
Appellate Division are to be dealt with in terms of the Supreme Court
Act. The relevant
parts of section 53 of Act 194 of 1993 provide as
follows:
‘
(2) Any party to any opposed
proceedings before the Registrar may appeal to the Transvaal
Provincial Division of the Supreme Court
against any decision or
order pursuant to such proceedings.
(3) …
(4) Every appeal to the Transvaal
Provincial Division of the Supreme Court from a decision or order of
the registrar shall be noted
and prosecuted in the manner prescribed
by law for appeals to that division against a civil order or decision
of a single judge
of that division, save that –
(a) no leave to appeal to the said
division shall be necessary;
(b) the period within which such
appeal shall be noted shall be 3 months after the date of the
decision or order;
(c) the appeal shall be prosecuted
within 6 weeks from the date upon which it was noted:
Provided that the said division may,
on application and on good cause shown, allow such extension of time
for noting or prosecuting
the appeal as it may deem necessary.
(5) The parties to proceedings before
the registrar shall be deemed to be parties to civil proceedings for
the purposes of the Supreme
Court Act, 1959 (Act No. 59 of 1959).
(6) Every appeal to the Appellate
Division of the Supreme Court by virtue of subsection (5) shall be
governed by the Supreme Court
Act, 1959 and shall be noted and
prosecuted in the manner prescribed by law for appeals to the said
division in civil proceedings.’
The issue must
therefore be resolved by reference to the relevant provisions of the
Supreme Court Act which govern appeals from
the Full Court to the
Appellate Division: in particular when special leave is required to
be sought from the Appellate Division
and when leave is required to
be sought from the Full Court whose decision is to be appealed
against.
[5] Section 20(4) of the Supreme Court
Act provides for two possibilities:
‘No appeal shall lie against a
judgment or order of the court of a provincial or local division in
any proceedings or against
any judgment or order of that court given
on appeal to it except –
(a) in the case of a judgment or order
given in any civil proceedings by the full court of such a division
on appeal to it in terms
of subsection (3), with the special leave of
the appellate division;
(b) in any other case, with the leave
of the court against whose judgment or order the appeal is to be made
or, where such leave
has been refused, with the leave of the
appellate division.’
To determine
whether special leave must be sought from the Appellate Division in
terms of subsection 20(4)(a) reference must be
had to subsection
20(3) read with subsection 20(2). Subsection 20(3) provides for
which Full Court is to hear an appeal in terms
of a direction under
subsection 20(2). That subsection provides that the single judge who
grants leave to appeal or the Appellate
Division, if it grants leave
to appeal, may direct that the appeal should be heard by a Full Court
unless satisfied that the Appellate
Division should hear the appeal
because the questions of law and of fact and the other considerations
involved in the appeal require
the attention of the Appellate
Division. Subsection 20(4)(a) therefore applies to a situation where
the single judge whose judgment
or order is appealed against or the
Appellate Division directs that the appeal be heard by a Full Court
because of the considerations
referred to. Clearly subsection
20(4)(b) applies to all other cases. This is one of them.
[6] This court
therefore has jurisdiction to hear the application and the applicant
correctly seeks leave to appeal from this court.
[7] As far as the
merits of the application the majority of this court are satisfied
that there are reasonable prospects of success
in an appeal and that
the application should be granted.
[8] The following order is made:
I Leave is granted to the applicant to
appeal to the Supreme Court of Appeal against the judgment and order
of this court given
on 2 March 2011.
II The costs of this application will
be costs in the appeal.
______________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
I agree
______________________
A.M.L. PHATUDI
JUDGE OF THE HIGH COURT
I agree
______________________
T.M. MAKGOKA
JUDGE OF THE HIGH COURT
CASE NO:
A362/08
HEARD
ON: 30 March 2011
FOR
THE APPLICANT: ADV. O. SALMON
INSTRUCTED
BY: Jacobson & Levy
FOR
THE RESPONDENT: ADV. I. JOUBERT
INSTRUCTED
BY: Adams & Adams
DATE
OF JUDGMENT: 30 March 2011