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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
DELETE WH ICHEVER IS NOT APPLICABLE
(1) RE POR TABLE: ¥ESJNO
(2) OF INTERES T TO OTHE R JU D G ES: ¥ES/NO
(3) REVISED
DA TE : 18 AUGUST 2025
S IGNA TU RE : ....
In the matter between:
ASPEN PHARMACARE HOLDINGS GROUP
PHARMACARE LIMITED
And
ADCOCK IN GRAM HEALTHCARE (PTY) LTD
ADCOCKINGRAMINTELLECTUAL(PTY)LTD
THE REGISTRAR OF TRADE MARKS
Case No . 017055/2025
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT

Coram:
Heard on:
Delivered:
MILLAR J
Introduction
Millar J
13 August 2025
18 August 2025 -This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded
to the CaseLines system of the GD and by release to SAFLII. The
date and time for hand-down is deemed to be 09H00 on 18 August
2025.
JUDGMENT
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[1] On 13 August 2025, I heard an application for leave to appeal against a judgment
and order handed down on 12 May 2025 together with an application in terms of
section 18(3) of the Superior Courts Act1 (the Act).
[2] At the conclusion of the hearing, I indicated that separate judgments would be
handed down in respect of each. On 14 August 2025, I handed down judgment
in the application for leave to appeal brought by the respondents in the present
application and that application was dismissed with costs. This judgment is in
respect of the application in terms of section 18(3).
1 10of2013.

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[3] The order granted on 12 May 2025 was as follows:
"(59.1] The first respondent is interdicted and restrained, in terms of
section 34(1)(a) of the Trade Marks Act 194 of 1993 ("the Trade
Marks Act'J, from infringing the first applicant's rights acquired
through trademark registration no. 2004/20795 MYBUCOD
(hereinafter referred to as the "MYBUCOD trademark'? in class 05
by using any trade mark confusingly similar thereto, and in
particular from using the "LENBUCOD" mark in respect of any of
the goods to which the first applicant's mark apply.
(59.2] The first respondent is ordered to deliver up for destruction to the
first applicant's attorneys within seven (7) days of the granting of
this Order any packaging, catalogues, advertising, promotional
material or other materials bearing or incorporating a trademark
which is either identical or confusingly like the first applicant's
MYBUCOD trademark.
[59.3] The respondents are ordered to pay the costs of this application,
including the costs consequent upon the employment of two
counsel, where so employed, one of whom is a senior counsel, both
on Scale C "
Present application
[4] In the present application brought in terms of section 18(3)2, the applicants are
required to demonstrate firstly, exceptional circumstances which justify the
2 "18 Suspension of decision pending appeal
(1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders
otherwise, the operation and execution of a decision which is the subject of an application for leave
to appeal or of an appeal, is suspended pending the decision of the application or appeal.

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execution of the order pending any appeal, secondly that they will suffer
irreparable harm if it is not executed, and thirdly that the respondents will not be
irreparably harmed if the order is executed.3
[5] The consideration of these three factors is through the lens of the prospects of
success of the prospective pending appeal.4 Furthermore, in considering each
of the factors, these are not to be considered in isolation but holistically having
regard to the entirety of the case.5
Are there exceptional circumstances?
[6] The first stage of the enquiry, whether "exceptional circumstances" are present
depends on the peculiar facts of each case.6 The exceptional circumstances
must be derived from the actual predicaments in which the litigants find
themselves.
(2) Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the
operation and execution of a decision that is an interlocutory order not having the effect of a final
judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended
pending the decision of the application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied
to the court to order otherwise, in addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable
harm if the court so orders.
(4) If a court orders otherwise, as contemplated in subsection (1)
(i) the court must immediately record its reasons for doing so
(ii) the aggrieved party has an automatic right of appeal to the next highest court
(iii) the court hearing such an appeal must deal with it as a matter of extreme urgency and(iv) such
order will be automatically suspended, pending the outcome of such appeal.
For the purposes of subsections (1) and (2), a decision becomes the subject of an application for leave

to appeal or of an appeal, as soon as an application for leave to appeal or a notice of appeal is lodged
with the registrar in terms of the rules."
3 lncubeta Holdings (Ply) Ltd v Ellis 2014 (3) SA 189 (GJ) at para [16).
4 See Demo cratic Alliance and Others v Premier for the Province of Gauteng and Others (18577/20)
[2020) ZAGPP H C 330 (10 June 2020) paragraphs [11] - [13).
5 Tyte Security Services CC v Western Cape Provincial Government and Others 2024 (6) SA 175 (SCA)
at paras [10) and [14).
6 University of the Free State v Afriforum 2018 (3) SA 428 (SCA).

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[7] Since this matter is concerned with a trademark, for the lifespan of which the
protection and benefits are available to the holder of that trademark, the time for
which the suspension of the order is likely to occur is of necessity a factor to be
considered. 7
[8] It was argued that no appeal would likely be heard and disposed of before the
end of 2026 and that in consequence if the order is not enforced, the applicant's
registration of its trademark and the purpose of section 34(1 )(a) of the Trade
Marks Act8 would be rendered nugatory. After all, the section is couched in
prescriptive terms - "The rights acquired by registration of a trade mark shall be
infringed." [My emphasis].
[9] In lncubeta Holdings (Pty) Ltd v Ellis, 9 it was stated that:
"{27) In my view the predicament of being left with no relief, regardless of the
outcome of an appeal, constitutes exceptional circumstances which
warrant consideration of putting the order into operation. The forfeiture of
substantive relief because of procedural delays, even if not protracted in
bad faith by a litigant, ought to be sufficient to cross the threshold of
'exceptional circumstances.'
{28) The plight of the victor alone is probably all that is required to pass muster.
Nonetheless, I am not unconscious of the undesirable outcome that relief
granted by the court becomes a vacuous gesture. A court order ought not
be to be lightly allowed to evaporate, a fate, which seems to me, would
tend to undermine the role of courts in the ordering of social relations."
[1 O] The applicants have a registered trademark. The applicants have a judgment in
their favour for the protection of that trademark. If the judgment is not put into
7 Car Find (Pty) Ltd v Car Trader (Pty) Ltd 2016 JDR 0314 (GJ).
8 194 of 1993.
9 /ncubeta supra at paras [27] -[28].

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operation, then it will be nothing more than the "vacuous gesture" posited in
lncubeta.
[11] For the reasons set out above, I find that there are exceptional circumstances.
Is there irreparable harm to the applicants?
[12) The second stage of the enquiry is regarding whether there is irreparable harm
to the applicants. In this regard, the applicants pointed to the conduct of the
respondents over the last six months.
[13) Bearing in mind that the applicants immediately objected to the respondents' use
of LENBUCOD, when it first became aware of it, it was argued that to allow them
to continue marketing and selling the product, pending the outcome of any appeal
brought by them would cause irreparable harm to the applicants.
[14) The applicants pointed to the assertion made on behalf of the respondents that
"Adcock has already made use of the LENBUCOD mark for a period of almost six months
and, to date, has sold products under the LENBUCOD mark to the value of RB , 400, 000
(eight million four hundred thousand rand) and argued, that given the short period of
time, the sales were staggering in their number. The argument went further for
the applicants, that given such a staggering number of sales in such a short
period of time, it ought to be accepted that the respondents would persist with the
same marketing and sales and that this would have the consequence of "flooding
the market with the LENBUCOD product whilst the parties wait for its appeal to be heard."
[15) The applicants have sought to enforce the protection of their trademark. If by
operation of law, the respondent is permitted to continue infringing upon the
trademark and in so doing, creating a situation where even if ultimately the
applicants succeed, the commercial value of their trademark will have been

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decimated. This, to my mind establishes unequivocally that the harm w hich will
be suffered by the applicants is irreparable.
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[16) It was argued for the respondents that insofar as the applicants' trademark was
concerned, that the product to which it was attached was "an insignificant product
with no protectable reputation". I am not persuaded that this argument has any
merit. Once registered, the holder of a trademark has the right to have that
trademark protected. Whether the trademark is used or not or of significant
commercial value in its use or not, is beside the point. What is being protected is
the right that has been registered.11
[17) If this were not so, then no trademark registration would be of any value if a
competitor with the means was able to demonstrate in consequence of their
infringement, either a commercial value where the owner had not used the
trademark or a significantly higher commercial value to themselves than the
owner who had.
[18) It does not behoove the respondent to argue that it is better able to commercially
exploit the infringed trademark and for that reason, the holder of the trademark
has not suffered harm or will not suffer irreparable harm should it be permitted to
use the law to enable it to continue to do so.
[19) I am for the reasons set out above, persuaded that the applicants have
established that they would suffer irreparable harm.
Is there irreparable harm to the respondents?
10 LA Group (Pty) Ltd v United States Po lo A ssociation and Others (2023/118082) a judgment of the full
court hearing a section 18(4) appeal delivered on 4 March 2024 at para [56].
11 This instance is distinguishable from the situation in Road Accident Fund v New Net Properties (Pty) Ltd
2023 (5) SA 289 (GP ) at para [21] because it matters not whether the holder of a trademark uses it for
commercial exploitation or not. They have a right which they are entitled to protect.

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[20) The third stage of the enquiry is whether there is irreparable harm to the
respondents if the order granted on 12 May 2025 is implemented. The harm must
arise out of the implementation of the order.
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[21] On this score, the applicants have undertaken to compensate the respondents
for any damages which they may suffer in consequence of the granting the order
sought in terms of section 18(3). This undertaking is subject to the respondents
being successful with any appeal.
[22) It is not in issue that the respondents knew that the applicants had registered
MYBUCOD as a trademark or that issue was taken immediately with their
registration and intention to use the LENBUCOD mark. This is not a case of
innocent competition.
[23) From the outset, the respondents have been aware of the attitude of the
applicants. The main application was served on them on 12 February 2025, a
few weeks after they launched their product, and they have been aware from then
that their use of the LENBUCOD mark was in issue.
[24) The respondents have chosen to conduct themselves in the way that they have
and to the degree that they have insofar as the marketing and sales of
LENBUCOD are concerned well knowing that their right to do so had been placed
in issue.
[25) The fact that they have made what the applicants characterize as "a staggering
number of sales" and may well have derived a concomitant benefit from doing so,
12 Ntlemeza v Helen Suzman Foundation 2017 (5) SA 402 (SCA ) at para (28].

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does not in and of itself equate to their suffering irreparable harm if the order
sought is granted.
[26] Similarly, it does not follow that even if the appeal is upheld that the respondents
wou ld not be able to return to the LENBUCOD mark. The scale of the success
achieved in the relatively short period their product has been on the market belies
their claim of irreparable prejudice or that they will not be able to return.
[27] There is no reason to believe that they would not be able to re-enter the market
in the event of the success of their appeal with the same impact as they already
have and armed with the undertaking given by the applicants, would then be able
to claim any loss they are able to prove they suffered.
[28] For the reasons set above, I am not persuaded that the respondents would suffer
irreparable harm.
[29] I find that the applicants have established exceptional circumstances and that
they would suffer irreparable harm if the order sought in terms of section 18(3) is
not granted. I also find that the respondents have failed to establish that they will
suffer irreparable harm if the order is granted. For these reasons, I intend to grant
the order below.
Costs
[30] Costs will follow the result. Both parties engaged two counsel and were ad idem
that if costs were to be awarded in respect of counsels' costs, these were to be
on scale C.

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Order
[31] In the circumstances, it is ordered:
[31.1] The interdict set out in paragraph 59.1 of the judgment granted by this
Court under the present case number on 12 May 2025 shall continue
to operate against the first and second respondents pending the
outcome of any application for leave to appeal against such interdict
and for any appeal for which leave may be given.
[31 .2) The first and second respondents are ordered to pay the costs of this
application which costs include the costs consequent upon the
engagement of two counsel, one senior and one junior, both on scale
C.
HEARD ON:
JUDGMENT DELIVERED ON:
IN THE APPLICATION IN TERMS OF S18(3)
COUNSEL FOR THE 1st & 2nd APPLICANTS:
A MILLAR
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
13 AUGUST 2025
18 AUGUST 2025
ADV. C PUCKRIN SC
ADV. C PRETORIUS

INSTRUCTED BY : ENS INC.
REFERENCE: MS . T PRETORIUS
COUNSEL FOR THE 1 sr & 2N D RESPONDENTS : ADV. R Ml CHAU SC
ADV. J BOOYSE
INSTRUCTED BY:
REFERENCE :
BOUWERS INC.
MR. D BOUWER
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