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[2016] ZAGPPHC 262
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De Wet Botha v Seiko Epson Kabushiki Kaisha (t/a Seiko Epson Corporation) (69411/2014) [2016] ZAGPPHC 262 (29 April 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 69411/2014
29/4/16
Reportable
Of interest to other
judges
Revised
In the matter between
MARTHINUS JOHANNES DE
WET
BOTHA APPLICANT
and
SEIKO EPSON KABUSHIKI
KAISHA
(t/a SEIKO EPSON
CORPORATION) RESPONDENT
JUDGMENT
VAN OOSTEN J:
[1] This is an opposed
application for the amendment of the applicant’s combined
summons and particulars of claim. The applicant
(the plaintiff) gave
notice of intention to amend in terms of rule 28. The proposed
amendment in essence, was first, to correct
the date of the dismissal
of the defendant’s infringement of intellectual property action
against the plaintiff (the counterfeit
action), second, the
substitution of the plaintiff with a partnership known as Global
Ventures, of which the applicant and one
Johannes Christoffel
Greyling are alleged to be the partners, and third, the amount of the
claim. The respondent (the defendant)
filed a notice of intention of
objection only in regard to the second proposed amendment, on the
grounds:
‘…
that the
plaintiff or applicant attempts, by way of amendment, to introduce
another and different plaintiff, namely a partnership
known a Global
Ventures. Summons was served on 22 September 2014 and the present
plaintiff, by seeking to be replaced by a partnership
as plaintiff,
is seeking to be replaced by a partnership as plaintiff, is seeking
to avoid the running of prescription which would
legally be
considered to be interrupted only by service of a new summons
reflecting particulars of the new plaintiff.’
The plaintiff accordingly
duly amended the particulars of claim in respect of the first and
third proposed amendments and launched
the present application in
respect of the second proposed amendment.
[2] The plaintiff
instituted the action against the defendant on 16 September 2014. In
the citation of the plaintiff it is alleged
that the plaintiff ‘at
all times to this action’ conducted business as ‘a
natural person under the name and style
of Global Ventures’.
The plaintiff conducted business in the import and sale of ink and
toner cartridges for use in computer
printers and electronic
photocopy equipment. The defendant is a foreign business entity,
registered in Japan and trading in South
Africa. The defendant is the
registered holder of the trademarks Epson, under two trade mark
numbers, in terms of the Trademarks
Act 194 of 1993. The plaintiff’s
main claim against the defendant is based on an alleged ‘unlawful
and intentional
confiscation, retention or appropriation’ of
the plaintiff’s property, caused by the defendant in lodging a
criminal
complaint against the plaintiff of contravening the
Counterfeit Goods Act 37 of 1997
. In consequence a search and seize
warrant was authorised by the Magistrate in Klerksdorp at the behest
of the South African Police
Service, in the execution of which 2789
ink cartridges bearing the Epson trademark and the property of the
plaintiff, were confiscated
and removed. The defendant subsequently
unlawfully appropriated the ink cartridges. As a result the plaintiff
alleges having suffered
damages in the sum of R9 794 993.00,
which is made and computed as set out in an actuarial report which is
attached to
the particulars of claim (the actuarial report).
[3] The plaintiff’s
alternative claim is based on the outcome of an action for
infringement of intellectual property rights
instituted against him
by the defendant in this court (the counterfeit action). The claim
was dismissed on 7 December 2012. The
plaintiff accordingly, in terms
of s 13 of the Counterfeit Goods Act 37 of 1997 (the Counterfeit
Act), claims payment by the defendant
of the sum of R9 794 993.00,
being compensation ‘for any injury or prejudice caused to or
suffered’ by the
plaintiff as a result of the steps taken by
the defendant in the unsuccessful counterfeit action.
[4] In argument before
this court the ground on which the defendant’s notice of
objection was founded, was wisely not persisted
with. Instead counsel
for the defendant attacked the bona fides of the plaintiff in seeking
the amendment and further directed
his argument to one objection
which is that the amendment, if granted, would render the plaintiff’s
particulars of claim
excipiable and cause prejudice to the defendant.
I shall first deal with the first leg of the argument.
[5] The attack on the
plaintiff’s bona fides is premised on the ambivalence that now
arises if regard is had to the way he
described himself in the
present action as well as in the counterfeit action. In the founding
affidavit in this application the
plaintiff states that he
misdescribed himself in the summons and particulars of claim as a
result of a bona fide mistake. The relevant
part of the ‘mistaken’
description reads: ‘At all times to this action the plaintiff
conducted business as a
natural person under the name and style of
Global Ventures’. It has quite rightly been pointed out that
the wording of the
description specifically disavows a partnership.
The same ‘mistaken’ description, in one instance that the
plaintiff
conducted business as a sole proprietor, repeatedly appears
in the counterfeit action and moreover appears to have been confirmed
under oath by the plaintiff when he gave evidence at the trial.
Lastly reference was made to the actuarial report containing a
verbatim quotation of the plaintiff’s instruction to the
actuary, in which he clearly deals with the damages
he
has
suffered resulting from a forced closure of Global Ventures.
[6] The plaintiff has not
filed a replying affidavit in this application. No reason for such
failure has been forthcoming. Nor has
a confirmatory affidavit by the
alleged co-partner been filed or is there any explanation before me
for the absence thereof. Except
for the plaintiff’s bold
statement that he had made a bona fide mistake in describing himself,
not an iota of evidence exists
that a partnership in fact existed. In
the consideration of this issue I am alive to the difficulty that lay
persons experience
in appreciating and describing the capacity in
which they operate, in particular where they often wear more than one
hat. But,
it goes no further than speculation: had this been the
difficulty here I would have expected the plaintiff to say so. He has
not
done so notwithstanding ample time and opportunity having been
available to him to properly deal with this aspect, which was
specifically,
right from the outset, raised by the defendant. Indeed,
to go one step further: nothing to support the existence of a
partnership
has been advanced.
[7] Having considered all
the facts I have thus far referred to, I am unable to uphold the
challenge to the plaintiff’s bona
fides. However, the
importance of the prior descriptions and the lack of any evidence
concerning the existence of a partnership
is this: sufficient doubt
as to the existence of the partnership, as now alleged by the
plaintiff, exists, which I am driven to
conclude, in the exercise of
my discretion, disentitles the plaintiff to the amendment sought.
[8] I turn now to the
question whether the amendment, if allowed, would render the
plaintiff’s particulars of claim excipiable.
It is accepted law
that a court will not allow amendments where their effect would
render such a pleading excipiable (Erasmus
Superior Court Practice
service1, 2016 D1-338
)
and, further, that in the event of
a mere possibility of the pleading being rendered excipiable the more
correct course would be
to allow the amendment (
Crawford-Brunt v
Kavnat and Another
1967 (4) SA 308
(C) 310G).
[9]
Applying the above principles to the facts before me the point of
departure is to consider, first, the nature of the plaintiff’s
alternative claim which, as I have alluded to, is founded on
s
13 of the Counterfeit Act.
The plaintiff, notably
in his personal capacity, was the successful respondent in the
counterfeit action, and in that capacity becomes
entitled to claim
compensation in terms of s 13 as the ‘erstwhile successful
respondent’. The partnership did not feature
in any way in
these proceedings. This fundamental difficulty permeates into the
plaintiff’s main claim which is clearly for
damages in his
personal capacity. How the partnership can in any way be integrated
into the allegations in the particulars of claim,
to the exclusion of
the plaintiff in his personal capacity, remains unanswered. The
corollary to this of course, is the actuary’s
report, which but
for one vague reference to the assumption made by the actuary in
regard to the damages of the business as a whole,
that the ‘split
between T Botha and JC Greyling will be handled by them’, in
all other respects contains an assessment
of the quantum of damages
the plaintiff trading as Global Ventures has sustained.
[10] In summary: on a
conspectus of all the facts before me, any sustainable basis for the
proposed amendment to substitute the
plaintiff with the partnership,
as the plaintiff, is simply lacking. The amendment would moreover,
undoubtedly, render the plaintiff’s
particulars of claim
excipiable, for the reasons I have dealt with. Should the outcome of
this application decide the fate of the
action, the plaintiff, as
rightly conceded by plaintiff’s counsel, would not be finally
non-suited: prescription does not
yet loom and the institution of
fresh proceedings, hopefully this time after careful consideration as
to who the correct plaintiff
should be, remains alive.
[11] For all the above
reasons the defendant’s opposition to the application must be
upheld.
[12]
In the result the following order is made:
1.
The application is dismissed.
2.
The respondent is ordered to pay the costs of the application such
costs to include the costs consequent upon the employment
of senior
counsel.
_________________________
FHD VAN OOSTEN
JUDGE OF THE HIGH
COURT
COUNSEL FOR
APPLICANT: ADV CLH HARMS
ATTORNEYS FOR
APPLICANT: STOPFORTH SWANEPOEL & BREWIS INC
COUNSEL FOR
RESPONDENT: ADV DA PREISS SC
RESPONDENT’S
ATTORNEYS: ADAMS & ADAMS
DATE OF HEARING: 26
APRIL 2016
DATE OF JUDGMENT:
29 APRIL 2016