SOUTH AFRICA Law and Practice Contributed by: At van Rooy, Annelise Engelbreg, Ursula Baravalle and Stuart Miller, KISCH IP
• against a close corporation if that corporation is a plaintiff/applicant, or has filed a counter- claim, and there exists a risk that the close corporation may be wound up. Furthermore, the commissioner in the CCP may order the security of costs against any party to the proceedings, having regard to the prospects of success or the bona fides of the party. Any party includes an incola of the Republic. 2.9 Special Limitation Provisions A nine-month moratorium on the initiation of infringement proceedings exists after the grant of a patent. There is no time limitation to insti- tute proceedings, and a claim for damages will prescribe after three years of becoming aware of the damage. This three-year period will be inter- rupted by the institution of court proceedings. 2.10 Mechanisms to Obtain Evidence and Information A party to an intellectual property matter may obtain relevant information from the other party through two main routes: Anton Pillar-type orders and the discovery, inspection and production of documents (“discovery”). The procedures for these routes are as follows. • For Anton Piller-type orders, an ex parte application is brought to the relevant court in camera, and the applicant will need to establish the requirements for such an order as detailed in the foregoing. An Anton Piller order is obtained before a letter of demand or main application or action is instituted. • Through discovery, a party to proceed- ings may bring an application to the court compelling any party to the proceedings to discover all documents and tape record- ings relating to any matter in question. The timing of discovery is usually after the close
of pleadings but before the hearing of the matter. The discovered documents or tape recordings are required to be made available for inspection and may be copied or tran- scribed. The application for discovery is not made before the initiation of the main matter, as the courts would regard this as premature and an attempt at obtaining court assistance to determine a cause of action. Third parties are included if a party to the proceedings has “control” over documents or tape recordings in the possession of a third party. • Parties may also be subpoenaed to testify. 2.11 Initial Pleading Standards There are two main mechanisms through which a lawsuit is initiated in the courts: action or motion proceedings. An action proceeding is mainly brought by a combined summons including the particulars of a claim and averments on facts in question (facta probanda), which are to be proved during a trial. The defendant files a plea (with or with- out a counterclaim) in opposition to the sum- mons, which will also contain facta probanda and probantia. The court will decide the matter based on the hearing of the oral and other evi- dence. A motion proceeding is brought by way of appli- cation to the court. The notice of motion is com- bined with a founding affidavit, which sets out all the material facts that are requirements for relief (facta probanda and facta probantia). The respondent has an opportunity to file an answer- ing affidavit. This is followed by a replying affida- vit. As such, the matter is heard on paper only, and no oral testimony or other evidence is given. If material disputes of fact arise, the matter may be referred to oral proceedings.
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