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[2011] ZAGPPHC 124
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Calypso Dealers CC v Registrar of Designs and Another (39406/2008) [2011] ZAGPPHC 124; 2011 BIP 326 (GNP) (26 July 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO.: 39406/2008
DATE:26/07/2011
In
the matter between:
CALYPSO
DEALERS
CC
........................................................................................
APPLICANT
AND
REGISTRAR
OF
DESIGNS
.....................................................................
FIRST
RESPONDENT
DAVID
BOWEN
..................................................................................
SECOND
RESPONDENT
JUDGMENT
WEBSTER
J
1.
The applicant seeks an order in the following terms:
1.1
Revoking the registration of design with serial number F2004/0048
registered in the name of the second respondent, in accordance
with
the provisions of
Section 31(l)(a)
of the
Designs Act, No. 195 of
1993
, as amended;
1.2
Re-registration of the said design in the name of the applicant in
accordance with
Section 33
of the
Designs Act, No. 195 of 1993
, as
amended.
1.3
Directing:
1.3.1
the second respondent to pay the costs of this application;
1.3.2
the first respondent to pay the costs of this application, jointly
and severally, with the second respondent (the one paying
the other
to be absolved), but only in the event of the first respondent
opposing the relief sought by the applicant herein. The
application
is opposed by the second respondent.
2.
The applicant's case is that the second respondent was, at all
material times hereto (i) in the employ of the applicant as its
general manager; (ii) prepared a design of an "optical disc
container" which is a functional design as defined in
section 1
of the
Designs Act, during
2004 in the course and scope of his
employment. It is averred that the applicant is therefore the owner
of the said design.
3.
The applicant further avers that the second respondent registered the
said design wrongfully in his name and that the applicant
is
accordingly entitled to the relief sought.
4.
In support of its case the applicant avers that (i) the second
respondent was paid a salary during his employment with the
applicant;
(ii) the graphic drawing necessary for purposes of
registration of the design was paid for by the applicant; (iii) the
fees of
the attorneys that registered the patent were paid by the
applicant; (iv) the applicant is accordingly entitled to the relief
sought.
5.
The respondent raised various defences in limine for the purposes of
this judgment, however it is not necessary to traverse
all the issues
raised in the papers. Shortly stated, the second respondent avers
that (i) in June, 2003 he started a business of
repairing CD's and
DVD's; (ii) at that time he was "blacklisted" with the
National Credit Bureau; (iii) with the consent
of his wife, the sole
member of the applicant, he conducted his business through the
applicant; (iv) at that particular time the
applicant was dormant;
(v) he ran this business under the name of "Disc Doctor S.A.";
(vi) no letter of appointment was
furnished to him, no salary was
paid to him, no salary slips were issued to him. He used the
applicant as a corporate vehicle to
conduct his business. He admits
that the fees paid to the patent attorneys for the registration of
the device were paid by his
wife and not the applicant. He denies
that the device was designed in the course of his employment as a
servant of the applicant.
6.
It is convenient, in a matter such as this to re-state the principle
applied in motion proceedings and that is that "...where
a
litigant chooses motion proceedings the case will, where there is a
conflict in the versions, be decided on the facts admitted
by the
respondent: Brisley v Drotsky 2002(4) SA 1 at p. 9 [Par 2].
7.
About five days before the matter was heard the applicant sought to
file an additional "...supplementary replying affidavit".
The respondent opposed the late filing of this affidavit, the purpose
of which was to substantiate "an internet payment"
to the
second respondent as well as "...a Return for Remittance for
PAYE and UIF for January 2006" to SARS and a bank
statement.
This was strenuously opposed.
8.
It is convenient to deal with the attempted late-filing of the
supplementary affidavit. There are three sets of affidavits filed
in
motion court proceedings in accordance with the provisions of rule
6(5) of the Uniform Rules of Court, viz., the "supporting
affidavits", the answering affidavits and the replying
affidavits. It is only with the leave of the court that any further
affidavit may be filed (James Brown and Hamer (PTY) LTD v Simmons
N.O. 1963(4) SA 656 at 660 D-H). The court will exercise its
discretion to admit further affidavits only if there are special
circumstances which warrant it or if the court considers such
course
advisable (Rieseberg v Rieseberg
1926 WLD 59
; Joseph and Jeans v
Spits & Others
1931 WLD 38)
and only if the court is satisfied
that no prejudice will be caused to the opposite party that cannot be
remedied by an appropriate
costs order (Transvaal Racing Club v
Jockey Club of South Africa 1958(3) SA 599 (W); Cohen N.O. v Nel and
Another 1975(3) SA 396).
The applicant has not set out any reasons
why it did not obtain any bank statements it may not have had in its
possession or why
the returns it made to SARS were not perused before
the application was launched for whilst it conveniently attempts to
incorporate
the information sought to be placed on record in its
replying affidavit the averments therein contained ought to have been
set
out in the founding affidavit. Secondly allowing the further
affidavit would have necessitated an adjournment to enable the
respondents
to answer. That in all likelihood would, again in all
probability, would have required a reply from the applicant. That
eventuality
is clearly most inappropriate and to be avoided. Lastly,
and perhaps most importantly, the applicant made no formal
application
for the filing of the supplementary affidavit: it was
simply handed up, sans explanation, sans formality. Leave for the
handing
in of the said application is refused.
9.
I turn to consider the merits of the application. The following are
common cause and admitted by the respondent: (i) the second
respondent and the sole member of the applicant are husband and wife
having married out of community of property on 1 November,
1997; (ii)
they were divorced on 30 November, 2006; (iii) their settlement
agreement expressly provides that it "...constitutes
the entire
agreement between the parties...".
10.
The first and significant point is that nowhere in its papers does
the applicant allege that the duties of the second respondent
encompassed research or the devising or manufacture of any product or
any device. Further, nowhere has it been alleged that the
device
forming the subject matter of this application was conceived or
devised by the second respondent in the course and scope
of his
employment - he was merely a "general manager". Even if
this court were to accept that his version that he merely
used the
applicant's name for his own business is not true, the applicant has
not made out any case that it is entitled to the
intellectual
property conceived and designed by the second respondent totally on
his own initiative and for his own benefit and
gain.
11.
Secondly,
section 27(1)
of the
Patents Act, No 57 of 1978
provides as
follows:
"27
Who may apply for a patent
(1)
An application for a patent in respect of an invention may be made by
the inventor or by any other person acquiring from him
the right to
apply or by both such inventor and such other person."
12.
Nowhere in the applicant's papers is there any reference to the
applicant having "acquired" from the second respondent
the
right to apply for the registration of the patent. It appears from
the papers that the device conceived and patented by the
second
respondent may be of financial value. Whilst this aspect is not
canvassed in the papers, it appears quite strange why the
sole member
of the CC could have overlooked it when the parties divorced more so
in the light of the fact that she personally paid
for the
registration of the patent and the patent attorneys' fees.
13.
Be that as it may: the crucial consideration is that the issues have
to be decided on the respondent's version. I can find nothing
that
can be criticised in it, much less any reason not to accept it. The
applicant's version contains unexplained inconsistencies
and
improbabilities which detract from the allegations that the device
was conceived and designed for the benefit of the applicant
without
any provision being made for the compensation of the second
respondent. The applicant has failed to satisfy this court
that it is
entitled to the relief it seeks.
14.
The application is accordingly dismissed with costs.
G.
WEBSTER
JUDGE
IN THE HIGH COURT