IN THE COURT OF THE COMMISSIONER OF PATENTS FOR THE
REPUBLIC OF SOUTH AFRICA
Case No/ Patent No: 2019/01833
Case No/Patent No: 2019/04718
In the matter between:
GEOBRUGG AG Applicant
and
(1) REPORTABLE: No
(2) OF INTEREST TO OTHERS JUDGES: No
(3) REVISED: No
(4) DATE: 12 February 2026
(5) SIGNATURE:________________
2
JOB SA ENGINEERING AND MANAGEMENT
(PTY) LTD First Respondent
GEO EQUIP AFRICA (PTY) LTD Second Respondent
THE REGISTRAR OF PATENTS Third Respondent
This judgment is issued by the Judge whose name is reflected herein
and is submitted electronically to the parties/their legal
representatives by email. The judgment is further uploaded to the
electronic file of this matter on CaseLines by the Judge or her
Secretary. The date of this ju dgment is deemed to be 12 February
2026.
JUDGMENT
COLLIS J
INTRODUCTION
1] This is an opposed application for condonation and an ex post facto
extension of the three -month period for the publication of the
advertisement of the acceptance of the full specifications of Patent
Application Nos.: 2019/01833 and 2019/04718 in the Patent Journal.
3
2] As per the Notice of Motion, the relief sought was formulated as
follows:
“1. Condonation hereby be and is granted for the late publication
of the advertisements of the respective acceptances of the full
specifications of the following patents in the Patent Journal:-
1.1 Patent Application No. 2019/01833 WIRE MESH AND METHOD
FOR PRODUCING A COIL FOR A WIRE MESH (“the first patent”);
and
1.2 Patent Application No. 2019/04718 WIRE MESH AND METHOD
FOR PRODUCING A COIL FOR A WIRE MESH (“the second
patent”).
2. An extension of the respective three-month terms stipulated in
section 61 of the Patents Act, 57 of 1978 ("the Act"), as read with
Regulation 46 of the Patent Regulations, 1978, for the publication
of those advertisements to a date immediately after the ac tual
publication dates of their respective advertisements in the Patent
Journal, namely:-
2.1 In the case of the first patent, an extension of the three -
4
month term to 30 January 2020; and
2.2 In the case of the second patent, an extension of the three -
month term to 25 June 2020.
3. An order declaring that the granting and sealing of the first and
second patents by the Third Respondent, respectively on 29
January 2020 and 24 June 2020, have not been invalidated by
the late publication of their respective advertisements of the
acceptance in the Patent Journal.
4. Costs of the application only in the event of it being opposed,
including the cost of junior and senior counsel where so
employed.
5. Further and/or alternative relief.”
3] The First and Second Respondents (the Respondents’) oppose the
application whereas the Third Respondent has filed a Notice to Abide.
4] The basis for the opposition by the Respondents is firstly that the
Applicant has approached the wrong forum for its relief and secondly
that it has failed to join a party that has a direct and substantial interest
5
in the subject matter of this dispute and the outcome of this application.
5] The Respondents, although they oppose the application, have elected
initially not to file an answering affidavit. Instead, it filed a Notice in
terms of Rule 6(5)(d)(iii). 1 Its Answering Affidavit was subsequently
filed on 6 February 2024.2
6] In respect of the notice so filed, t he Applicant argues that the said
notice is defective. It is contended that a party who intends to raise
only a question of law in motion proceedings, may deliver a Rule
6(5)(d)(iii) notice of his intention to do so, but the notice must “set
forth such question”.
7] The Respondents at the hearing informed the Court that it intends
to argue a question of law. The Respondents’ Rule 6(5)(d)(iii) Notice
however does not identify, as expressly required by the Rule, the
question of law that the Respondents intend to argue.
8] The notice simply states that the Applicant “has failed to plead the
necessary allegations which entitle it to the relief it seeks.”
1 First and Second Respondents’ Rule 6 Notice, Caselines page no 013-1; Rule
6(5)(d)(iii) reads, “if he intends to raise any question of law only he shall
deliver notice of his intention to do so, within the time stated in the preceding
sub-paragraph, setting forth such question”.
2 Caselines 012-117.
6
9] The statement so made, the Applicant argued, speaks to an alleged
failure to plead facts thus drawing a conclusion; it does not postulate a
question of law for argument in the application.3
10] On behalf of the Applicant it was further submitted that a
Respondent cannot simply argue issues of law which have not clearly
been raised and identified in either an opposing affidavit or in a Rule
6(5)(d)(iii) notice, 4 for that would leave the Applicant in a position
where it would have to attempt to guess what the Respondent intends
to argue at the hearing.
11] In caselaw it has previously been held that Rule 6(5)(d)(iii) notice,
is akin to an exception in an action proceeding,5 and the grounds upon
which the exception is based, must be clearly stated.
12] Absent such express exposition, an applicant may be potentially
prejudiced as it will be required to come to court and be ambushed on
the point of law it must come and argue.
3 See, for example, the form of the Notice in Motala and Another NNO v Moller
and Others 2014 (6) SA 223 (GJ) paragraph 7.
4 Motala and Another NNO v Moller and Others 2014 (6) SA 223 (GJ) paragraph
7; Sandton Civic Precinct (Pty) Ltd v City of Jhb 2009 (1) SA 317 (SCA)
paragraph 6 note 2; Manong & Assoc (Pty) Ltd v Dept of Roads & Transport,
EC (1) 2008 (6) SA 423 (EqC) at 426.
5 Helen Suzman Foundation v President of the RSA 2015 (2) SA 1 (CC) (2015
(1) BCLR 1, paragraph 127 note 105.
7
13] On behalf of the Respondents it was submitted that the question as
to whether the Applicant has pleaded the necessary allegations entitling
it to the relief sought is hardly a “question of law” for purposes of Rule
6(5)(d)(iii). But such a notice was prepared as a courtesy.6
14] In addition, it was contended that our law recognizes the right of a
respondent, in spite of having filed an answering affidavit, to raise an
objection in limine that the founding affidavit does not make out a prima
facie case for the relief claimed and i n this regard in support , the
Respondents have placed reliance on the decision of Lacfin (Pty) Ltd v
Johannes Nicholaas Le Roux and Four Others7 (“Lacfin”).8
15] The above principle was further endorsed in Bousaada (Pty) Limited
and Another v FCB Africa (Pty) Limited and Another (16949/2021;
29891/2021) [2023] ZAGPJHC 695 (14 June 2023), at paragraph 95:
“[95]. The general rule is that an applicant has to make out his
case in his founding affidavit. To determine whether an applicant
has done so, the matter is considered on the basis of an
exception, that is, the founding affidavit is taken on its own and
6 The notice appears at CaseLines, Item 13, p 013-1 – 013-3.
7 2000 BIP 190 (O).
8 At 197H – 198D.
8
those allegations are presumed to be correct and the question is
then whether those allegations are sufficient to warrant a finding
in favour of the applicant.”
16] On this basis it was therefore argued that the Respondents, at all
times were entitled to consider the facts tendered by the Applicant and
make the statement that those facts are not sufficient to make out a
case for the relief it seeks.
17] This Court is not persuaded that the Notice in terms of Rule
6(5)(d)(iii) is indeed defective. The notice clearly sets out that the
founding papers fail to evince the necessary allegations for the relief
which the Applicant seeks. Nothing more to my mind was required and
the Applicant certainly was not caught by surprise by what was meant
by the said notice when same was served on them.
18] In the present application the patents in question as per the Notice
of Motions are: -
18.1 South Africa Patent No. 2019/01833 WIRE MESH AND
METHOD FOR PRODUCING A COIL FOR A WIRE MESH (“the first
patent”); and
9
18.2 South Africa Patent No. 2019/04718 WIRE MESH AND
METHOD FOR PRODUCING A COIL FOR A WIRE MESH (“the
second patent”).
(where reference is made generally to these patents herein
below, we refer to them as “the patents”)
19] After the lodging of the applications for the registration of the
patents, the Third Respondent, the Registrar of Patents (“ the
Registrar”) accepted the complete specifications of the patents and
issued notices of that acceptance on 16 October 2019 (in respect of the
first patent), and on 19 March 2020 (in respect of the second patent).
20] In terms of Section 42(3) of the Patents Act ,9 once the Registrar
gives notice of acceptance of a complete specification, an applicant for
its registration (‘the Applicant herein’) must publish that acceptance in
the South African Patents Journal within three months of that
acceptance.10
21] Should an applicant fail to do so, the patent application lapses.
22] It is common cause that the Applicant failed to publish the
acceptance timeously and has proceeded to launch these proceedings
9 Act 57 of 1978 (the “Patents Act”).
10 Regulation 46 of the Patent Regulations,1978 (“the Patent Regulations”).
10
for the condonation of certain actions and the extension of certain time
periods to revive the applications that have consequently lapsed.
GENERAL PROCEDURE IN RESPECT OF PUBLICATION
23] It will be apposite to first set out the general procedure in resp ect
of publication. Regulation 46 imposes an obligation on an applicant for
the registration of a patent to publish the advertisement of acceptance
in the Patent Journal.
24] Section 14 of the Act imposes an obligation on the Registrar to
arrange for the periodic publication of a Journal “which shall contain …
details of the contents of all complete specifications accepted.”
25] Patent Journals are published electronically, but only once per
month, and on the last Wednesday of each month.11
26] Advertisements of acceptance are submitted to the Registrar for
publication in a specific Patent Journal. For it to be published in a
specified Journal, the advertisement must be submitted for publication
before the cut-off date for publication in that Journal.12
11 Caselines page no 012-16, paragraphs 47, 48.
12 Caselines page no 012-37, paragraph 111.2.
11
27] In practice, because the 3 -month period commences with the
running on the date of acceptance and notice of acceptance, notice of
that acceptance to an applicant may be delayed, resulting in a situation
in which an applicant is left with a very narrow window period to secure
publication in a Patent Journal before the expiry of the 3-month period.
28] After the submission of an advertisement to the Registrar for
publication in a specific Patent Journal, an applicant has no control over
the actual publication of the advertisement and must simply accept that
it will in fact be published in the Journal specified.13
29] If the advertisement is, for some or other reason, not published in
the specified Journal, an applicant could well be left with no, or
insufficient time to seek an extension of the 3 -month period before its
expiry.
30] Section 44(1) of the Act further directs that, “(a)s soon as
practicable after the publication contemplated in section 42”, the
Registrar shall grant a patent in the form prescribed to the applicant,
“and … shall cause the patent to be sealed with the seal of the patent
office.”
13Caselines page no 012-37, paragraph 111.2.
12
31] In terms of this section, “such sealing shall be deemed to have been
effected on the date of that publication.” In other words, if a publication
was, among others, in the judgement of the Registrar published within
the 3-month period, the Registrar must grant and seal the patent.
ADVERTISEMENT OF ACCEPTANCE IN RESPECT OF THE TWO PATENTS
IN QUESTION.
32] The facts surrounding the advertisement and the acceptance in
respect of the two patents in question, are as set out in the founding
affidavit and these facts as mentioned remain uncontested and
uncontroverted as the Answering affidavit filed herein did not rebut any
the facts surrounding the advertisement and acceptance.
33] In this regard it is the Applicants’ case that, having regard to the
circumstances surrounding the publication of the advertisements in
respect of the patents, the Applicant and its patent attorneys of record
did all that can reasonably be expected of them to ensure a timeous
publication of the advertisements in the Patent Journal.
34] In respect of the first patent: -
34.1 The full specification in the application for the registration of the
13
first patent was accepted by the Registrar on 16 October 2019.14
34.2 The first notice that the Applicant (and any other such applicant)
would have had of that acceptance, was upon receipt of the Registrar’s
Notice of acceptance. That notice was delivered to the Applicant’s
attorneys on 25 October 2019.15
34.3 The final day for the publication of the advertisement of
acceptance was, therefore, 16 January 2020.
34.4 On 28 October 2019, the advertisement of its acceptance was
electronically submitted to the Registrar for publication in the Patent
Journal of 27 November 2019;16
34.5 The advertisement was published in the Patent Journal of 29
January 2020, therefore 13 days after the expiry of the 3 -month
period.17
34.6 However, in terms of Notice No. 1211 published in Government
Gazette No. 42412 of 20 September 2019, the days from 24 December
2019 to 1 January 2020, were directed as dies non for the purposes of,
14 Caselines page no 012-21, paragraph 62.
15 Caselines page no 012-22, paragraph 63.
16 Caselines page no 012-22, paragraph 64.
17 Caselines page no 012-24, paragraph 71.
14
among others, the Act.
34.7 If these nine (9) dies non are excluded in the calculation of the 3-
month period, the publication in essence was only 4 days late.
34.8 The reason for the failure by the Registrar to publish the
advertisement in the Patent Journal of 27 November 2019 is unknown
to the Applicant.18
34.9 The Registrar as mentioned has merely filed a Notice to Abide in
these proceedings and as such has not furnished this Court with any
explanation for his failure to publish the advertisement in the Patent
Journal of 27 November 20 19. The Registrar was also unable to
ascertain and to furnish reasons for that failure.19
34.10 As regards the evidence in respect of the publication of the
advertisement of the acceptance of the first patent , it is clear that no
fault for the failure can be attributed to the Applicant; 20 this after the
submission of the advertisement for publication in a stipulated Patent
Journal to ensure timeous publication in order to avoid a lapsing of the
application under section 42(3).
18 Caselines page no 012-23, paragraph 70.
19 Caselines page no 012-23, paragraph 67.
20 Caselines page no 012-24, paragraph 71.
15
35] The Applicant therefore submitted that it had no further control over
the actual publication date itself and that the sole cause for the failure
to advertise timeously must therefore lie with the Registrar.
35] In respect of the second patent: -
35.1 The full specification in the application for the registration of the
second patent was accepted on 19 March 2020.21
35.2 The Registrar however only delivered the notice of acceptance of
the full specification to the Applicant’s attorneys on 5 June 2020.22
35.3 The final day for the publication of the advertisement of
acceptance was, therefore, 19 June 2020.
35.4 As a result of the Patent Journal being published only once in a
month, this on the last Wednesday of each month, it was impossible at
any date after receipt of the notice to secure publication in a Patent
Journal before 19 June 2020.23
21 Caselines page no 012-25, paragraph 78.
22 Caselines page no 012-25, paragraph 79.
23 Caselines page no 012-25, paragraph 82.
16
35.5 Nevertheless, on 8 June 2020, the Applicant’s attorneys
electronically submitted the advertisement of its acceptance to the
Registrar for publication in the Patent Journal.24
35.6 The advertisement was, in the event, published in the Patent
Journal of 24 June 2020, five (5) days after the expiry of the 3 -month
period.25
35.7 However, in terms of a notice by the Companies and Intellectual
Property Commission (“the CIPC”), the period from 27 March 2020 to
16 April 2020, was, due to the national COVID-19 lockdown regulations,
ruled as dies non.26
35.8 The reason for the failure by the Registrar to deliver the notice of
acceptance to the Applicant promptly after that acceptance is not known
to the Applicant. However, it appears certain that the failure was in all
likelihood occasioned by the COVID-19 pandemic and the extraordinary
disruptions brought about by the lock-down regulations.27
35.9 If the 21 COVID-19 dies non are to be excluded in the calculation
of the 3-month period, the publication was in fact not late.
24 Caselines page no 012-26, paragraph 87.
25 Caselines page no 012-27, paragraph 91.
26 Caselines page no 012-25, paragraphs 81, 83.
27 Caselines page no 012-25, paragraph 81.
17
35.10 On behalf of the Applicant it was therefore submitted that the
extreme and extraordinary circumstances brought about by the COVID-
19 pandemic would undeniably add a certain complication to an
argument that section 42(3) was intended to be absolute and
peremptory.
THE STATUTORY PROVISIONS RELEVANT TO THE APPLICATION
36] Section 42(3) of the Act and Regulation 46, and the ostensibly
peremptory directive “shall” in those provisions, are relevant in this
application. Section 42 of the Act provides as follows: -
“(1) When a complete specification has been accepted, the
registrar shall give written notice of that fact to the applicant.
(2) ...
(3) Unless the acceptance is so published in the journal within the
prescribed period or within such further period as the registrar
may, on application to him and on good cause shown and on
payment of the prescribed fee, allow, the application shall lapse.”
18
37] Regulation 46, which should be read with section 42 of the Act,
provides as follows: -
“When notice of acceptance of an application has been given by
the registrar, the applicant shall advertise the acceptance in the
journal within three months of such acceptance or within such
further time as the registrar may allow on request on form P 4.”
38] Various other sections of the Act, the Regulations, the Patent
Cooperation Treaty (“the PCT”) and the PCT Regulations 28 also
incorporate the ostensibly peremptory directive “shall.”
39] These sections al l provide for the extension of time periods and
condonation for non -compliance. Accordingly, these various sections
also furnish the context in which section 42(3) of the Act and Regulation
28 See, for example, sections 9(a), 10(2), 30(1) and (2), 30(3A)(4), 31(5),
32(1) to (4), 40, 43E(2), 43F(3)(c), 44(1), 48(4) 73(1), 89 of the Act and the
concomitant Regulations, including Regulation 99; PCT Articles 47 and 48;
and PCT Rules 82bis and 82quater; Ironically, even if the rather long-winded
rambling of the PCT and the PCT Rules, which are in consequence not always
easy to grasp, do have what can be termed peremptory directives, section
43F(3)(c) of the Act cannot be ignored. The section states that “section 16(2)
shall apply in relation to time limits specified in terms of the Patent
Cooperation Treaty, the regulations made thereunder and the administrative
instructions issued under those regulations unless otherwise provided
therein”. Accordingly, even if the PCT directives were peremptory and even if
non-compliance did result in a lapsing of an application or a patent, then those
provisions would be neutralised by section our Patents Act.
19
46 must be construed.
40] Section 16(1) of the Act deals with the discretionary powers granted
to the Registrar and the Commissioner and provides that, “ whenever
by this Act any time is specified within which any act or thing is to be
done, the registrar … may, save where it is otherwise expressly
provided, extend the time either before or after its expiry.”
41] From the above it is apparent that the Registrar is expressly granted
the power in section 16(2) to extend any time period stipulated for any
act except where a provision in the Act expressly states that the period
may not be extended.
42] On behalf of the Applicant it was submitted that section 42(3) does
not expressly prohibit an ex post facto extension of th e period. The
section counsel had argued although silent about an ex post facto
extension of the period section 16(2) already states that such an
extension may be granted before or after the expiry of any stipulated
time period.
43] Therefore, counsel had argued b ecause section 42(3) does not
expressly prohibit such an ex post facto extension, such an extension
is by necessary implication expressly permitted.
20
44] An express prohibition on an ex post facto extension would have to
be read into section 42(3), and simultaneously it would be necessary to
ignore the blanket empowerment of section 16(2) to grant such an
extension - a proposition that flies in the face of the trite principle of
interpretation that effect must be given to every word or phrase in a
statute.
DEFENCES
45] On behalf of the Respondents the following arguments were
advanced in relation to Section 16 of the Patents Act:
45.1 Firstly, there are no general discretionary powers that
inure/(take effect or benefit) to both the Commissioner and
Registrar. Rather, the Patents Act confers specific discretionary
powers upon either the Registrar or the Commissioner; and
45.2 Secondly, t he discretionary power that relates to the
extension of time periods is no different. It vests in the Registrar
or the Commissioner “as the case may be” – i.e. whomever the
Patents Act vests that specific power to, in those specific
circumstances.
46] For the above reasons counsel for the Respondents had argued that
21
application for the extension of the time period ought to have been
made to either the Registrar or Commissioner as the case may be, and
that the Appl icant cannot ask this Court to extend such time period
before it has approached the Registrar.
47] Before this Court, it is common cause that the Applicant has not
applied for condonation to the Registrar or the Commissioner for the
extension of the three-month period and in its Founding Affidavit it has
been unable to explain with conviction why an application has not been
made to the Registrar.
48] As set out above, section 42(3) of the Act, read together with the
general empowerment granted under section 16(2) of the Act, and with
Regulation 46, expressly empowers the REGISTRAR, on application, on
good cause shown and on the payment of the PRESCRIBED FEE, to
extend the three-month period, before or after its expiry.
49] The Applicant however, instead of applying to the Registrar for the
extension of the time period elected to merely cite the Registrar in the
present proceedings and proceed ed to serve the application on the
Registrar who in turn elected to file a Notice to Abide.
50] Mere service on the Registrar of an application to Court for
22
condonation is not sufficient as it does not c omply with what is
envisaged in Section 42(3), Section 16(2) and Regulation 46.
51] The provisions set out above are peremptory and should have been
complied with.
52] Absent an application which was first directed to the Registrar for
consideration, the present application is entirely premature before this
Court.
53] The second defen se raised by the Respondents in their belatedly
filed Answering Affidavit, relates to the material non-joinder of Lichenry
Construction (Pty) Ltd (“Lichenry”).
54] In the said Answering Affidavit it is alleged that on 8 March 2022,
the Applicant instituted separate actions for infringements of the
relevant patents against the Respondents before court.
55] On 18 October 2022, the Applicant thereafter instituted separate
actions for infringements against another entity namely Lichenry
Construction (Pty) Ltd also for alleged infringeme nt of the relevant
patents.
23
56] All the nine cases currently before Court are defended and in their
respective pleas filed all of the defendants have raised as defense that
the patents are invalid and unenforceable because of non-compliance
with Section 42 and Regulation 46 of the Act.
57] It is in response to the pleas so filed, that the Applicant has elected
to launch the present proceedings and this the Applicant has conceded
as much in the founding affidavit.29
58] It however elected only to cite the Respondents in the present
proceedings and not Lichenry, this notwithstanding that the Applicant
was acutely aware of the identity of the non -joined party and that
Lichenry has a direct and substantial interest in the proceedings.
59] It is trite that the test for joinder, as a matter of necessity, is
whether a party has a direct and substantial interest which may be
affected prejudicially by the judgment of the Court in the proceedings
concerned.30
60] Our Constitutional Court i n Lebea v Menye and Another 31 has
29 Caselines para 19 012-122.
30 Judicial Service Commission and Another v Cape Bar Council and Another
(818/2011) [2012] ZASCA 115; 2012 (11) BCLR 1239 (SCA); 2013 (1) SA
170 (SCA); [2013] 1 All SA 40 (SCA) (14 September 2012) at par 12.
31 (CCT 182/20) [2022] ZACC 40; 2023 (3) BCLR 257 (CC) (29 November 2022).
24
interpreted the phrase “direct and substantial interest” as one which
is:32
“a direct and substantial interest in the order that a court is asked
to make in a matter. It is not enough if a person has an interest
in a finding or in certain reasons for an order. The interest must
be in the order or the outcome of the litigation.”
61] A legal interest must be put forward – the mere possibility of that
interest being sufficient.33
62] In South African Riding for the Disabled Association v Regional Land
Claims Commissioner and Others 34 (“SA Riding”) the Constitutional
Court held that a legal interest is one in the subject matter of the
litigation which could be prejudicially affected by the judgment of the
Court.35
32 Lebea at par 30.
33 See the decision of the Full Bench in Hlophe v Freedom Under Law In re:
Freedom Under Law v Hlophe; Moseneke and Others v Hlophe In re: Hlophe
v Judicial Services Commission and Others (2021/43482) [2021] ZAGPJHC
743; [2022] 1 All SA 721 (GJ); 2022 (2) SA 523 (GJ) (29 November 2021) at
par 35.
34 South African Riding for the Disabled Association v Regional Land Claims
Commissioner and Others (CCT172/16) [2017] ZACC 4; 2017 (8) BCLR 1053
(CC); 2017 (5) SA 1 (CC) (23 February 2017) at par 9;
35 South African Riding for the Disabled Association v Regional Land Claims
Commissioner and Others (CCT172/16) [2017] ZACC 4; 2017 (8) BCLR 1053
(CC); 2017 (5) SA 1 (CC) (23 February 2017) at par 9; Johannesburg Society
of Advocates and Another v Seth Azwih angwisi Nthai and Others (879/2020
and 880/2019) [2020] ZASCA 171 (15 December 2020) at par 31 (“SA
Riding”).
25
63] Furthermore, in Transvaal Agricultural Union v Minister of
Agriculture and Land Affairs and Others36 the Supreme Court of Appeal
held that the first test in determining whether a third party had a direct
and substantial interest in the outcome of litigation is to consider
whether the third party would have locus standi to claim relief
concerning the same subject matter.37
64] This is precisely what has occurred in these proceedings. There is
no conceivable basis as to why Lichenry should not be joined when it
has raised the exact ground of invalidity, in respect of the exact patents,
as the First and Second Respondents.
65] The Applicant has not advanced a single explanation as to why
Lichenry was not joined to these proceedings. The Applicant was clearly
aware of Lichenry, given that the Applicant has sued it and Lichenry has
pleaded the invalidity of the relevant patents. Why it chose to not join
Lichenry this Court finds difficult to comprehend.
66] Lichenry’s direct and substantial interest is the same as that of the
First and Second Respondent. Each of these parties has been sued on
the strength of the relevant patents and have been accused of infringing
36 (091/2003) [2005] ZASCA 12; 2005 (4) SA 212 (SCA) (23 March 2005).
37 At par 66.
26
them.
67] Each defendant has raised the exact same grounds of invalidity of
those patents as part of their defense in the infringement actions. The
effect of this litigation, if successful, will also negate Lichenry’s plea of
invalidity.
68] This Court therefore concludes that Lichenry ha s a direct and
substantial interest in the order and outcome of this litigation and for
that reason, it ought to be joined in these proceedings.
69] Consequently, the point in limine is to be upheld. However, due to
the finding made above regarding this application being premature, this
matter cannot be postponed for purposes of joinder.
ORDER
70] In the result the following order is made:
70.1 The point of non -joinder raised by the Respondents in
relation to Lichenry Construction (Pty) Ltd, is upheld.
70.2 The application is dismissed with costs, such costs to include
27
those costs consequent upon the employ of two counsel, one
being senior counsel, on Scale C.
C COLLIS
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES
Counsel for the Applicant: Adv AJ Bester SC
Adv. PP Ferreira
Instructing Attorney: DR. Gerntholtz Inc.
Counsel for Respondents: Adv. R Michau SC
Adv. L Harilal
Instructing Attorney: Smit & Van Wyk Attorneys
Date of Hearing: 05 February 2025
28
Date of Judgment: 12 February 2026