SOUTH AFRICA Law and Practice Contributed by: Russell Bagnall, Danie Dohmen, Sophia Smallbones and Ramon Pereira, Adams & Adams Attorneys
5.3 Discretion to Award Injunctive Relief (Final or Preliminary) One of the issues that contributes to a consid - eration of the balance of convenience in prelimi - nary injunction applications is the public inter - est. The principle of public interest has not been applied to the grant of a final injunction to date. The provisions of the Patents Act provide that a patentee shall be entitled to an injunction. It is not clear to what extent a court will refuse a final interdict if a valid patent is infringed on the ground of public interest and, in lieu of an injunc - tion, award an amount of damages. The Patents Act makes provision for the grant of a compulsory licence in limited circumstances. Furthermore, the Minister of Health is empow - ered by Section 15C of the Medicines and Related Substances Control Act to prescribe the conditions on which any patented medicine may be parallel imported into South Africa regard - less of the provisions of the Patents Act. This is interpreted to be limited to the patent owners’ “branded” product. The Patents Act further provides that a Minister of State may use an invention for public purpos - es on such conditions as may be agreed upon with the patentee, or in default of agreement on such conditions as are determined by the com - missioner on application by or on behalf of such Minister and after hearing the patentee. This is The purpose of a damages order in South Africa is to, as far as possible, restore the plaintiff to a position that it would have been in but for the infringement. The patentee is required to show that, had it not been for the infringing sales, on a balance of probabilities, it would have made those sales. Only lost profits may be claimed as rarely invoked. 5.4 Damages
There is no requirement for a patentee to pay a bond before the preliminary injunction is enforceable. Proceedings for a final order of infringement should be brought simultaneously or shortly after the institution of an application for a preliminary injunction. The grant of a preliminary injunction is usually not appealable unless the decision has final effect. In that case, if leave to appeal is granted, the order may be suspended pending a deter - mination of the appeal. It would be possible to approach court to have the order kept in place pending the outcome of the appeal. An order which is final in effect in a preliminary injunc - tion application is very unusual in patent cas - es. Therefore, it is common for the preliminary injunction to remain in place pending the appeal process being completed. A bond will not lift a preliminary injunction. 5.2 Final Injunctive Relief Final injunctions are enforceable from when the Court of the Commissioner of Patents hands down judgment in final proceedings for infringe - ment. Judgments are typically handed down electronically by email or on the electronic case management platform. There is no formal ser - vice process, and no bond is payable to have the order enforced. The filing of an application for leave to appeal against the judgment and order automatically suspends the judgment and order pending a determination of the application for leave to appeal. Should leave to appeal be grant - ed, the judgment and order are stayed pending a determination of the appeal. As noted, an existing preliminary injunction will remain in place during this period. If no preliminary injunction is in place, it is in principle possible to have the final order remain in place pending the appeal, for exam - ple, if irreparable harm is in issue. However, such applications are not often granted.
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