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2024
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[2024] ZAGPPHC 1106
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Bayer Intellectual Property GMBH v Austell Pharmaceuticals Proprietary Limited and Another (020175/2023) [2024] ZAGPPHC 1106 (22 October 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 020175/2023
1.
REPORTABLE:
YES
/NO
2.
OF INTEREST TO OTHER JUDGES:
YES
/NO
3.
REVISED:
YES
/NO
DATE:
22 October 2024
SIGNATURE
OF JUDGE:
In
the matter between:
BAYER
INTELLECTUAL PROPERTY GMBH
APPLICANT
And
AUSTELL
PHARMACEUTICALS
FIRST RESPONDENT
PROPRIETARY
LIMITED
REGISTRAR
OF TRADE MARKS
SECOND RESPONDENT
JUDGEMENT
[1]
The First Respondent herein has applied for Leave to Appeal to The
Supreme Court of Appeal against
the judgment handed down by this
Court on 11 June 2024.
[2]
For ease of reference, the parties are referred to as in the main
Application.
[3]
Full reasons were provided in the Judgement that I compiled on 19
July 2024 and I do not propose
to furnish further reasons, the First
Respondent in its Leave to Appeal argued on 12 September 2024, not
substantively advancing
its propositions further.
[4]
Sec 17 (1) of the Superior Court Act No 10 of 2023 ("The Act")
provides:
"Leave
to Appeal may only be given where the judges concerned are of the
opinion that:
(i)
The Appeal would have a reasonable prospect of success; or
(ii)
There is some compelling reason why the Appeal should be heard,
including conflicting judgements
on the matter under consideration".
[5]
Sec 17(1)(a) of the Act provides a stringent test wherein the Court
must be satisfied that the
Appeal would have a reasonable prospect of
success. (See
Mont Chevaux Trust (IT2012/28) v Tine Goosen.
Unreported, LCC Case No LCC 14R/2014, dated 3 November 2014,
Notshokovu v S,
unreported, SCA Case N0 157/15 dated 07
September 2016 and
Erasmus Superior Court Practice.
DE Van
Loggenberg, Vol Part A, R512, 2020 A2-55.
[6]
In my opinion the First Respondent has not met this threshold.
[7]
Further, there are no conflicting judgments which would have to be
considered by the Superior
Court of Appeal in terms of Sec
(17(1)(a)(ii) of The Act and the public interest will not be served
by an Appeal in respect of
which there is no legal uncertainty.
[8]
In the circumstances, I am not persuaded that another Court will come
to a different conclusion.
The First Respondent's grounds of appeal
and reasons therefor do not justify Leave to Appeal being granted and
there is no compelling
reasons to grant leave in terms of Sec
17(1)(a) of the Act.
ORDER
Having
read the papers and heard counsel, it is ordered that:
1
The Leave to Appeal launched at the instance of the First Respondent
be hereby denied
and dismissed.
2.
The First Respondent is directed to pay the costs of this Leave to
Appeal Application, including the costs of two counsel with
such
costs accordance with Scale B vis-a-vis junior counsel's fees and
Scale C vis-a-vis lead counsel's fees per Rule 69(7) of
the Uniform
Rules of Court.
JOHN
RICHARD MEADEN
ACTING
JUDGE OF THE HIGH
COURT
OF SOUTH AFRICA
GAUTENG
DIVISION
PRETORIA
This
Judgment was handed down electronically by circulation to the
parties' and or parties' representatives by email and by being
uploaded to Caselines. The date and time for the hand down is deemed
to be 10h00
on this 22
nd
th day of October 2024
Appearances
For Applicant /
Adv G Marriott /
Adv Moshiane
Instructed by:
Adams & Adams
For First
Respondent
Adv Michau SC
Instructed by:
Bouwers Inc
Date of Hearing:
12 September 2024
Date of Judgment
21 October 2024