Bayer Intellectual Property GMBH v Austell Pharmaceuticals Proprietary Limited and Another (020175/2023) [2024] ZAGPPHC 1106 (22 October 2024)
The court found that the First Respondent failed to meet the stringent threshold for leave to appeal as set out in section 17(1) of the Superior Court Act. There were no conflicting judgments or compelling reasons, and the public interest would not be served by granting leave to appeal where no legal uncertainty...
Source-derived case information.
- Citation
- [2024] ZAGPPHC 1106
- Parties
- Applicant: Bayer Intellectual Property GMBH; Respondent: Austell Pharmaceuticals Proprietary Limited; Respondent: Registrar of Trade Marks
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 020175/2023
- Procedural Posture
- Leave to Appeal / Leave to Appeal to Supreme Court of Appeal
- Outcome
- Leave to appeal is denied and dismissed. Costs awarded against the First Respondent.
- Judges
- John Richard Meaden
- Legal Topics
- Leave to Appeal, Reasonable Prospect of Success, Costs Award, Trade Mark Registration
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bayer Intellectual Property GMBH
Applicant
Austell Pharmaceuticals Proprietary Limited
Respondent
Registrar of Trade Marks
Respondent
Procedural Posture
Leave to Appeal / Leave to Appeal to Supreme Court of Appeal
Legal Issues
- 1 Whether the First Respondent has met the threshold for leave to appeal under section 17(1) of the Superior Court Act.
- 2 Whether there are conflicting judgments or compelling reasons justifying leave to appeal.
- 3 Whether the public interest or legal uncertainty warrants granting leave to appeal.
Ratio Decidendi
The court found that the First Respondent failed to meet the stringent threshold for leave to appeal as set out in section 17(1) of the Superior Court Act. There were no conflicting judgments or compelling reasons, and the public interest would not be served by granting leave to appeal where no legal uncertainty exists. The grounds advanced by the First Respondent did not justify a different outcome, and the court was not persuaded that another court would reach a different conclusion. Accordingly, leave to appeal was denied and costs were awarded against the First Respondent.
Court Disposition
Leave to appeal is denied and dismissed. Costs awarded against the First Respondent.
Orders
- The Leave to Appeal launched by the First Respondent is denied and dismissed.
- The First Respondent is directed to pay the costs of this Leave to Appeal Application, including the costs of two counsel, with costs in accordance with Scale B for junior counsel and Scale C for lead counsel per Rule 69(7) of the Uniform Rules of Court.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 020175/2023
1. REPORTABLE: YES/NO
2. OF INTEREST TO OTHER JUDGES: YES/NO
3. REVISED: YES/NO
DATE: 22 October 2024
SIGNATURE OF JUDGE:
In the matter between:
BAYER INTELLECTUAL PROPERTY GMBH
APPLICANT
And
AUSTELL PHARMACEUTICALS
FIRST RESPONDENT
PROPRIETARY LIMITED
REGISTRAR OF TRADE MARKS
SECOND RESPONDENT
JUDGEMENT
[1] The First Respondent herein has applied for Leave to Appeal to The Supreme Court of Appeal against the judgment handed down by this Court on 11 June 2024.
[2] For ease of reference, the parties are referred to as in the main Application.
[3] Full reasons were provided in the Judgement that I compiled on 19 July 2024 and I do not propose to furnish further reasons, the First Respondent in its Leave to Appeal argued on 12 September 2024, not substantively advancing its propositions further.
[4] Sec 17 (1) of the Superior Court Act No 10 of 2023 ("The Act") provides:
"Leave to Appeal may only be given where the judges concerned are of the opinion that:
(i) The Appeal would have a reasonable prospect of success; or
(ii) There is some compelling reason why the Appeal should be heard, including conflicting judgements on the matter under consideration".
[5] Sec 17(1)(a) of the Act provides a stringent test wherein the Court must be satisfied that the Appeal would have a reasonable prospect of success. (See Mont Chevaux Trust (IT2012/28) v Tine Goosen. Unreported, LCC Case No LCC 14R/2014, dated 3 November 2014, Notshokovu v S, unreported, SCA Case N0 157/15 dated 07 September 2016 and Erasmus Superior Court Practice. DE Van Loggenberg, Vol Part A, R512, 2020 A2-55.
[6] In my opinion the First Respondent has not met this threshold.
[7] Further, there are no conflicting judgments which would have to be considered by the Superior Court of Appeal in terms of Sec (17(1)(a)(ii) of The Act and the public interest will not be served by an Appeal in respect of which there is no legal uncertainty.
[8] In the circumstances, I am not persuaded that another Court will come to a different conclusion. The First Respondent's grounds of appeal and reasons therefor do not justify Leave to Appeal being granted and there is no compelling reasons to grant leave in terms of Sec 17(1)(a) of the Act.
ORDER
Having read the papers and heard counsel, it is ordered that:
1 The Leave to Appeal launched at the instance of the First Respondent be hereby denied and dismissed.
2. The First Respondent is directed to pay the costs of this Leave to Appeal Application, including the costs of two counsel with such costs accordance with Scale B vis-a-vis junior counsel's fees and Scale C vis-a-vis lead counsel's fees per Rule 69(7) of the Uniform Rules of Court.
JOHN RICHARD MEADEN
ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
This Judgment was handed down electronically by circulation to the parties' and or parties' representatives by email and by being
uploaded to Caselines. The date and time for the hand down is deemed to be 10h00 on this 22nd th day of October 2024
Appearances
For Applicant / Adv G Marriott / Adv Moshiane Instructed by: Adams & Adams For First Respondent Adv Michau SC Instructed by: Bouwers Inc Date of Hearing: 12 September 2024 Date of Judgment 21 October 2024