The latest IP case to come out of the South Gauteng High Court reveals a constitutional challenge to Section 15(3A) of the Copyright Act (the reverse engineering clause) by Honda. The case itself (click here) is an interim decision to determine what will eventually be subject to, in this case, a trial. Of interest is that the Honda plead that the reverse engineering clause is unconstitutional because it "amounts to an arbitrary deprivation of property which is in conflict with section 25 of the Constitution of the Republic of South Africa Act 108/1996". Although Willis J declined to express an opinion on the pleading he observed that "if the matter does eventually fall to be determined by the Constitutional Court, it is not “obvious” that the plaintiffs would fail. The question raises issues of considerable technical and legal complexity. It also touches upon important issues of policy. The matter would need to be carefully considered". An understatement says Afro Leo noting that Honda are taking it seriously, with three counsel employed to argue their point in the interim case.
