Sunday, 16 March 2008

SA SCA Decision on security of costs

In D W Zietsman v Electronic Media Network Limited Others, South Africa's Supreme Court of Appeal recently (7 March 2008) issued a media statement that it has "upheld an appeal against a judgment in the Court of the Commissioner of Patents in terms of which that court ordered a plaintiff who is resident in South Africa to provide security for the costs of three of the defendants [which included Vodacom and Multichoice Africa]. The SCA held that, in terms of s 17(2) of the Patents Act 57 of 1978, a court a quo had a discretion to order an incola plaintiff to provide security but that the court a quo misdirected itself in assuming that the parties were agreed, that in the event of it being found that an incola plaintiff could be ordered to provide security, only the quantum of such security had to be determined. The SCA thereupon considered all relevant factors and concluded that the plaintiff should not have been ordered to furnish security. One of the factors that weighed with the SCA was that the defendants had not disclosed a defence. The SCA stated that it would be quite unreasonable to order a plaintiff, an incola natural person, to provide security for the costs of an action instituted by him, at the behest of a defendant who may not even have a defence worthy of consideration."

One wonders why a court media statement contains words like "incola", "a quo" and "quantum" which can make its meaning difficult to digest. For the uninitiated an "incola plaintiff" is someone who resides in the country, the words "court a quo" mean court of first instance or court where the decision under appeal was made and "quantum" means amount or value. The latin terms reflect one of the origins of South African law which is Roman Dutch law. SA's IP laws, on the other hand, are largely influenced by English law whilst custom made law and US style constitutional law are additional ingredients in the SA legal broth, to which you can also add 11 official languages and then....smatterings of latin. Although the concoction can hardly be described as bland, there is a significant challenge to avoid it becoming tough, and alienating the man on the street. Posted by Darren Olivier

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