About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 571
|
|
Sensako (Pty)Ltd v Registrar of Plant Breeders' Rights (5205/2014) [2016] ZAGPPHC 571 (12 May 2016)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION,
PRETORIA
CASE
NO:
2014/5205
PBR
CASE NOS: ZA20114648
&
za20114649
In
the matter
between:
SENSAKO
(PTY) LTD
Applicant
and
THE
REGISTRAR OF PLANT BREEDERS'
RIGHTS
First
Respondent
THE
MINISTER OF THE DEPARTMENT
OF
AGRICULTURE,
FORESTRY AND FISHERIES Second
Respondent
THE
CHIEF
DIRECTOR
PLANT
PRODUCTION
AND
HEALTH OF THE DEPARTMENT
OF
AGRICULTURE,
FORESTRY AND FISHERIES Third
Respondent
PANNAR
SEED (PTY)
LTD
Fourth
Respondent
J U D G M E N T
MAKUME,
J
:
[1] In this matter the applicant issued
an urgent application on the
23
rd
January
2014
in
which it seeks the following orders:
1.1
That the proceedings
before the first respondent regarding
the validity of wheat variety
registration numbers
ZA20114648
and
ZA20114649
set down for the
28th
January
2014
be stayed indefinitely.
1.2
That a rule
nisi
be issued in terms
of which the first
respondent
is called on to within 30 days say why an order in the
following terms should not be
issued namely
that:
1.2.1
The first respondent be
ordered to recuse herself
from
the proceedings referred to in prayer 1.1
above.
1.2.2
In the event of the
first respondent not granting
the applicant proper and
complete access to and copies of all of the
2009,
2011
and
2012
records, underlying
documentation and raw data in existence and
in possession and under the
control of the first
respondent
relating
to the registration of wheat variety
registration numbers
ZA20114648 and ZA20114649 by the
24th January she be
ordered to do that in terms of this rule.
1.2.3
Further
in the alternative, the first respondent be ordered to call for the
breeding records of wheat variety registration numbers
ZA20114648
and ZA20114649 to
be
made available to the legal teams and experts of
the
respective parties under conditions of
confidentiality.
1.3
That
the fourth respondent be ordered to pay the costs of
the
application for the relief sought in prayer 1 in the event of the
fourth respondent opposing the application.
[2]
Only the fourth respondent filed a notice to oppose as well as an
answering affidavit. The rest of the respondents indicated
that they
will abide the court
order.
FACTUAL
BACKGROUND
[3]
The applicant and the fourth respondents are both in the business of
developing new plant varieties including and in this instance
wheat
varieties. The first respondent derives its powers and existence from
the provisions of the Plant Breeders Rights Act No
15 of 1976
("
the
Act'). Section 3
of the
Act
reads as follows:
"3.
DESIGNATION OF
REGISTRAR
(i) The Minister shall designate an
officer in the
department
as
a
registrar of Plant Breeders' Rights, who shall be the
authority to whom the protection of varieties
is
entrusted and who shall exercise the powers and
carry out
the duties assigned to or imposed upon the
registrar under this
Act."
[4]
It is common cause that during or about February 2010 the fourth
respondent advertised in the Government Gazette that it intends
lodging
an
application with the first respondent for the granting to it by the
first respondent plant breeders' rights number ZA20114648
in respect
of
wheat
variety PAN 3471 and plant breeders' rights number ZA20114649 in
respect of Wheat Variety PAN 3478. The plant breeders' rights
as
applied for
were
granted by the first respondent as no objections were received.
[5]
On the 15th November 2011 the applicant launched an application with
the first respondent in terms of section 33(2) of the Act
for the
termination
of
the fourth respondent's plant breeders' rights number ZA20114648 and
plant breeders' rights
number
ZA20114649.
[6]
Correspondence and pleadings were exchanged between the
applicant and the fourth
respondent including also the office of the first respondent
that correspondent which
will become relevant as will appear later in this judgment is at the
centre of this application. The first
respondent addressed a letter
to the applicant and the
fourth respondent's attorneys on the 1th January
2014 advising them of the
date of the hearing of the termination of rights application being
the 28th January
2014.
[7] Section 33 of the Act deals with
circumstances under which a registrar may terminate a plant breeders'
right.
CORRESPONDENCE
LEADING
TO
THIS
APPLICATION
[8] The first respondent's letter dated
the
22nd
January
2014
addressed to the applicant's attorneys and copied to the
fourth respondent's attorneys sets out the trail of correspondence
and
meetings held between the parties prior to the applicant
launching this application.
[9] That letter which is quoted in full
at page 26 of the papers indicates that on the
25th
September
2013
the
applicant was provided with copies of records of the raw data for the
evaluation of the first respondent's plant breeders' rights
in
respect of the year
2010
as
requested by the applicant.
[1O]
The letter further indicates that on the
11th
December
2013
the applicant's representatives were afforded an opportunity
to inspect the documents at the first respondent's premises. It was
only during that inspection that the applicant demanded copies of
records for the years
2009
and
2011.
On the
1th
December
2013
the
applicant having failed to access the
2009
and
2011
records then filed an application in terms of Act
2
of
2000
(Promotion
of Access to Information Act)
("PA/A").
[11]
The letter further indicates that only on the
22nd
January
2014
the applicant requested information and records for the year
2012
as well. The
first
respondent advised the applicant that the information sought for
2009,
2011
as well as
2012
will be made available
for inspection on the
24th
January
2014.
[12]
On the
15th
January
2014
some
12
days before the date of
the hearing of the termination application the applicant's attorneys
addressed a letter
to
the first respondent in which
letter the applicant demanded to be furnished with records by no
later than
12
noon
on Tuesday the
21st
January
2014
failing which an application
would be launched in the High Court. Paragraphs 7 and 8 of that
letter read as
follows:
" 7.
The Applicant is currently
considering its options on how
to overcome the
prejudice and wasted costs being suffered as
a
result of the registrar's conduct. In particular the
Applicant
is considering launching proceedings in the
High Court, should
the registrar persist with its
current stance in order that the matter be stayed until the
registrar has complied with an order
to:
a.
Produce and disclose the
2009
and
2011
records.
b.
Request the breeding
records.
c.
That the registrar be
recused on the basis of her conflict and lack of impartiality in
the
matter.
d.
Pay all costs of the
Applicant to date on an
attorney client scale.
In the premises we request the
registrar to agree by no later than
12
noon Tuesday
21st
J anuary
2014
that
a
stay
of
the proceedings to grant the applicant the
opportunity to
complete the process in terms of the
PAIA application and other contemplated court proceedings, failing
which our client will
be forced to approach the High
Court for appropriate relief
as
the hearing cannot
be
adjudicated
upon
as
it
stands."
[13] A response to the
letter referred to above was not forthcoming from the first
respondent instead the fourth respondent
in its letter dated the
21st
January
2014
which was copied to the applicant's attorneys made
reference to that letter and amongst others objected to any
further postponement
of the termination application hearing before
the first respondent. At paragraph
14
of that letter the fourth respondent's attorneys write as
follows:
" 14. Given the
number of postponements of the hearing of this matter it was agreed
by all parties in August last year that
the Applicant
and the Respondent should be ready to proceed with the hearing in
January 2014 and there has now been more
than
sufficient time for the Applicant to submit evidence in support
of the case set out in the application for termination of
the Respondent's
PBR's."
[14]
It is against this background that this application was
launched on an urgent basis on the
23rd
January
2014.
The
application is about access and production of documents which the
applicant says are necessary and crucial for its case in the
termination of rights application before the first respondent.
[15]
It is significant to note that the first respondent in a
letter dated the
22nd
January
2014
prior to the
launching of this application tendered access to the documents that
the applicant sought by the
24th
January
2014.
All
that the applicant says in paragraph 18 of its founding affidavit is
that:
"It is not known whether the
Applicant will truly be provided full
access on
24
January 2014
to
the
documents and
information requested."
[16] Then at paragraph 19 the applicant
says:
"It is not possible for the
Applicant to prepare and be ready for
the hearing when
it only will receive the documentation and data on
24
January 2014."
[17]
This in my view seems likely to be the reason why the applicant
launched this application. The applicant did not launch this
application to request an order compelling the first and/or fourth
respondent to
produce
documents but it did so because it required time to prepare as the
applicant felt that the period between the 24th January
2014 and the
28th January
2014
was not sufficient to enable it to be sufficiently prepared.
[18]
The question that remains is this: was this application necessary?
Couldn't
the
applicant
have
achieved
its
desired
result
by
simply
applying
for
a postponement before the
first respondent, why was it necessary to burden the court with
voluminous paper the bulk of which deals
with what should
still
be decided by the first respondent in the termination application.
[19]
Harms DP warned in the matter of
Cadac (Pty) Ltd v Webber
2011 All SA Reports SCA at
343 that motion proceedings are principally for
the resolution of legal
issues and are not geared to deal with factual
disputes.
[20]
The issues to be determined in this judgment are briefly the
following:
20.1
Whether the applicant is entitled to an order for access to
the
records and data in respect of the years 2009, 2011 ad 2012.
20.2
Whether this Court
should at this stage order a stay of
the proceedings before
the first respondent pending fulfillment
of certain orders.
20.3
Whether this Court has
the power to order the recusal
of the first respondent from dealing with the termination
proceedings application.
[21] I deal with the issues individually
hereunder with reference to the heads of argument handed up to court.
ACCESS
TO DOCUMENTS
[22] It is common cause that the
applicant's case for termination is based on the provisions of
section 33(2)(a) and 33(2)(b) of
the Act. Accordingly the applicant
is only entitled to documents that will advance its case for
termination under the two subsections.
Those subsections provide that
the first respondent may terminate a plant breeders' rights prior to
the expiry of the right if:
22.1
Any information
submitted to the registrar in the application
for such a right or in
connection with such an application was incorrect and if such right
would not have been granted if he
or she had known that the
information was incorrect.
22.2
Information
has come to light which if discovered earlier would have
resulted in the plant breeders' rights being
refused.
[23]
In paragraph 13 of Annexure "R1A" being the letter from the
first respondent to the applicant it is clearly stated
that
"the
information you
require will be made available to you
by the Chief Information Officer in compliance with the process in
due course but please be
advised and take note that this information
will be made available for inspection on 24 January 2014" .
In
my view the first
respondent having tendered access to the documents does
not entitle the applicant
to approach court for an order to compel access.
[24]
Similarly on the 21st January 2014 prior to this application being
launched the fourth respondent tendered to the applicant
that a
mutually acceptable
expert review the relevant breeding records and provide the first
respondent, the applicant and the fourth respondent
with comments
on whether or not the
fourth respondent's wheat varieties number PAN 3471 and PAN 3478 were
derived from the applicant's registered
varieties. There was
accordingly no need to
rush to court. The applicant if it was genuine to proceed
should
have agreed
to
the
fourth
respondent's
proposal
which
in
my
view was a reasonable
proposal.
[25]
The excuse that the applicant would not have been ready to present
its case on the 28th
January 2014 in view of the documents being made
available for inspection
only on the 24th January 2014 is in my view not correct.
It
seems to me
that the applicant is on a fishing expedition and is still trying to
establish the legal basis for its termination application.
This Court
in the matter of
STT Sales (Pty) Ltd v Fourie
2010 (6) SA 272
(GSJ) at 276C-D said that:
" The essential features of
discovery is that the person requiring discovery is in general only
entitled to discovery once
the battle lines are drawn and the legal
issues established. It is not a tool designated to put a party in a
position to draw
the battle lines and establish legal issues. Rather
it is a tool used to identity factual issues once
legal
issues are established."
[26] Accordingly and in my view the
applicant has failed to establish the need or reason for this Court
to make an order as prayed
for in prayers 4(b) and (c) of the notice
of motion.
STAY
OF
PROCEEDINGS
[27] The applicant contends that because
of the first respondent making available the documents sought on the
24th January 2014
that entitle the applicant to seek an indefinite
stay of the proceedings before the first respondent.
[28] It is trite that this Court has an
inherent jurisdiction to prevent abuse of process by staying
proceedings in certain circumstances.
It was held in the matter of
Western Assurance
Co
v Caldwell's Trustees
1918 AD 262
at 274
that the power to stay
proceedings will be exercised sparingly and only in exceptional
cases.
[29]
Nicholas J in the matter of
Fisheries Development
Corporation v Jorgensen and Another
1979
(3) SA (W) at 1339B went further to say that
the grant of a stay of
proceedings is a matter of discretion and is not something which can
be decided as a matter of law.
[30]
The learned writer Herbstein and Van Winsen in the
Civil
Practice
of the High Court
(Fifth
Edition) Volume I at page 306 says the
following:
" When the court's inherent
jurisdiction is invoked for the purpose
of staying an
action it is not enough for example to show that the version of the
facts set out in the pleadings is highly improbable
and one which it
is difficult to believe could be proved. The Applicant must go
further and show that the action is hopeless or impossible of
success, for it
is only when the case stands outside
the region of probability
a/together and becomes
vexatious because it is impossible that the court
will
grant
a
stay."
[31]
I can find no exceptional circumstances in this application entitling
the applicant to a stay of the proceedings. The applicant
should have
waited
to
inspect the documents tendered on the
24th
January
2014
and if not satisfied then
bring an application before the registrar (first respondent) for a
postponement. The application was brought
prematurely and no basis
exist justifying this
Court to grant a stay and accordingly that application must also
fail.
THE
RECUSAL APPLICATION
[32] This application was originally
directed at a particular individual namely Noluthando Netnon-Nkoena.
It was only after the
first respondent pointed out in its answering
affidavit that in terms of section 3(3)(a) of the Act that the first
respondent may
authorise any officer, or with the approval of the
Minister any person who is not an officer to exercise or carry out
any power
or duty of the first respondent that the applicant in reply
conceded without saying so specifically that the recusal cannot be
directed at a particular individual. What I find strange is that
notwithstanding that concession the applicant still insists on
such
an order in its heads of argument.
[33] Firstly, this application for
recusal is procedurally flawed. The application should have been
brought before the registrar
fully substantiated and only if the
registrar refused to recuse herself or himself then only then could
the applicant approach
this Court on review.
[34] Secondly, in terms of section 33 of
the Act it is only the first respondent who is empowered to
adjudicate an application for
termination of Plant Breeders' Rights.
In its application the applicant did not request that an alternative
officer be appointed
had the fourth respondent not cited section
3(3)(a) and in the event of the recusal application succeeding it
would have been the
end of the termination application as no one
would have been appointed to deal with the application. I accordingly
agree with the
fourth respondent that the correct procedures would
have been to request the presiding registrar to recuse himself or
herself and
to appoint an alternative officer in terms of section
3(3)(a) of the Act and only if the first respondent refused that
request
only then would the applicant have been entitled to approach
this Court on review.
URGENCY
[35] In conclusion I deal with the
question whether the applicant was justified to approach this Court
on an urgent basis.
[36] The applicant has failed to make
out any case for urgency. This application was not only premature for
the reasons set out
above any reasons set out for urgency by the
applicant are self-created. There was no need to have brought this
application.
[37] I am satisfied that this
application stands to be dismissed and I accordingly make the
following order.
ORDER
[38]
38.1
The application is dismissed.
38.2
The applicant is ordered to
pay
the
costs of
this
application on a party and party scale such costs to include those
consequent upon the
employment of two counsels.
DATED
at PRETORIA on this the day of MARCH 2016.
MAKUME
JUDGE
OF THE H GH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
Date
of Hearing: 14th
August
2015
Date
of
Judgment
:March 2016
For
Applicant : Adv D R Harms
Instructed
by:
D
M Kisch Inc
Suite
4, Parkland Building
223
Bronkhorst Street
New
Muckleneuk
Pretoria
Tel:
(011) 324-3161
Fax:
(012) 460-3270 Ref: R3263ZA 00/AVR
For
Fourth
Respondent:
G E Morley SC with him A J
Boulle
Instructed
by: Messrs Spoor & Fisher
Building No 13
Highgrove
Office Park Oak Avenue
Pretoria
Tel:
(012) 676-1025
Ref:
PL100539/Mr J Whittaker