SOUTH AFRICA Law and Practice Contributed by: At van Rooy, Annelise Engelbreg, Ursula Baravalle and Stuart Miller, KISCH IP
2.7 Interim Injunctions Interim interdicts (injunctions) are available and require the following to be awarded: • there must be a prima facie right to the intel- lectual property; • there must be irreparable damage or a rea- sonable belief that irreparable damage will occur; • the balance of convenience must favour the applicant; and • there must be no alternative remedy. The balance of convenience requirement is not applicable in case of a final interdict. Ex parte Anton Piller-type orders are also avail- able, and the following are required for such an order: • a prima facie right; • prima facie evidence of infringement of the right; • evidence that the respondent possesses or controls evidence pertaining to the infringe- ment; and • a material threat that the evidence might be destroyed or concealed if not seized immedi- ately. 2.8 Protection for Potential Opponents Litigation is costly and, as such, a litigant may demand security for costs. There are several cir- cumstances in which a court will award an order for the security for costs: • against a plaintiff/applicant that is a peregri- nus of the Republic; • against a plaintiff/applicant where the court is satisfied that the litigation is vexatious or reckless, or amounts to an abuse of the court process; and
months after requesting the owner of a patent to initiate proceedings before initiating proceedings in lieu of the owner. For registered designs, the foregoing details regarding patents equally apply, except that the nine-month moratorium does not exist, and an exclusive licensee may institute proceedings without delay as if he or she were the owner of the design. Prerequisites involving plant breeders’ rights include: • providing the registrar with all material information and samples of the variety, and a written undertaking not to dispose or offer to dispose the plant material to the public for enforceable provisional protection; and • the lack of any possibility of objection to the registration of the right or an appeal to the board. Since copyright vests automatically without formal registration or grant, the owner must establish the subsistence of copyright and enti- tlement. In general, with all types of intellectual property, the lack of a letter of demand may influence the quantum of costs awarded to the successful litigant, and an attempt at mediation is required before the filing of court proceedings. 2.6 Legal Representation If the owner is resident in South Africa, they have right of appearance, although in practice (due to the complexity of intellectually property mat- ters) the owner is best represented by a legal practitioner skilled in intellectual property. If the owner is a foreign resident, they will be required to obtain legal representation.
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