BSAF Agro B.V. Arnhem (NL)-Wadenswil Branch v Villa Crop Protection (Pty) Ltd and Another (95/1468) [2012] ZACCP 2; 2012 BIP 51 (CP) (8 August 2012)

IN THE COURT OF THE COMMISSIONER OF PATENTS

FOR THE REPUBLIC OF SOUTH AFRICA

CASE NUMBER: PATENT 95/1468

DATE:08/08/2012

In the matter between:

BASF AGRO B.V. ARNHEM (NL) -WADENSWIL BRANCH.............................Plaintiff

and

VILLA CROP PROTECTION (PTY) LTD.............................................................1st Defendant

LAEVELD AGROCHEM (PTY) LTD....................................................................2nd Defendant

JUDGMENT REGARDING COSTS

[1] This matter came before me, sitting as the Commissioner of Patents, on 12 June 2012. A brief background regarding the enrolment of the matter entails the following. Summons was issued by plaintiff on 21 January 2010. Defendants brought two applications, respectively, in terms of Rule 35(14) and an exception, both of which were dismissed. Defendants filed their plea on 22 August 2011. In paragraphs 4, 5 and 6 of its particulars of claim plaintiff inter alia averred that it is the registered proprietor of patent no. 95/1468 which was granted on 24 April 1996 following an application for a patent filed at the Patent Office on 22 February 1995, that the patent is valid and in force, and that the necessary copy of the complete specification was attached. To these allegations defendants pleaded that:

"4.1 The defendants admit that a South African Patent No. 95/1468 entitled 'Process for the Suplhinylation of Heterocyclic Compounds' was granted on 24 April 1996 following an application filed on 22 February 1995 and that a complete specification of the said patent is attached to a certificate issued by the Registrar of Patents and annexed to plaintiff's particulars of claim marked A.

4.2 Save for what is admitted above, the allegations contained in these paragraphs are denied."

Subsequent to litis contestatio plaintiff applied for a trial date, as it was entitled to do and the matter was duly enrolled for the week of 11 to 15 June 2012. Due to the Judge having been allocated with the matter becoming unavailable, the matter was referred to me on 8 June 2012.

[2] Based on the pleadings as they stand Mr van der Westhuizen SC, on behalf of the plaintiff, submitted that the crisp issue to be determined pertained to infringement and that, if plaintiff so wished, the matter could proceed on that basis. However, and in view of certain developments to which I shall refer, it was common cause between the parties that due to certain procedural steps taken by defendants and which are still pending, the matter could hardly be said to be ripe for hearing. Hence, the argument before me pertained to the issue of costs. At the close of counsels' argument regarding the costs issue I postponed the matter sine die but ruled that I wanted to further consider counsels' respective arguments regarding costs, as I had been extensively addressed in that regard by counsel for both parties. This, then, is my judgment pertaining to the costs issue only.

[3] A convenient point of departure is the pre-trial conference held on 25 April 2012. It must be added that defendants indicated that the existing minutes were not to their satisfaction and were still "materially defective in a number of respects" which required amending. However, the points emanating from the minutes to which I shall refer have, in essence and substantially, been raised during argument to an extent where I may safely rely on those specific points for what follows.

[4] Regarding the contents of the minutes of the pre-trial conference of 25 April 2012, I refer to the following:

Paragraph 9 of the minutes reads as follows:

"9. The defendants indicated that they intend:

9.1 to launch revocation proceedings in terms of section 61 of the Patents Act No. 57 of 1978 by 10 May 2012;

9.2 amending the defendants plea to include a counterclaim; and

9.3 sought plaintiff's permission in terms of the rules of court to amend the plea to include a counterclaim.

The plaintiff responded that he does not agree to an amendment to the plea to incorporate an intended counterclaim and advised that the defendants will have to apply to court for permission to amend the plea to incorporate an intended counterclaim."

Paragraph 10 thereof which reads:

"10. The plaintiff requested the defendants to indicate whether the defendants intend to apply for a postponement of the trial.

The defendants responded by stating that they would apply for a postponement of the trial as the defendants have been prejudiced in a manner to be indicated in their formal response to the plaintiff's list in terms of rule 37(4) which is to be served in due course (annexure A).

The plaintiff requested that such application for postponement must be a substantive application and to be filed sooner than later as the trial date was approaching rapidly and witness had to travel, some from abroad, and further that it would impact upon the preparation for trial."

After having raised some issues regarding prejudice, the plaintiff recorded the following in paragraph 11:

"11. In this regard the plaintiff indicated that it was prejudiced:

11.1 the defendants' lack of response to the plaintiff's rule 37(4) list of interrogatories;

11.2 the late serving of the defendants notices in terms of rule 35(3);

11.3 the late indication of the serving of an application in terms of section 61 of the Patents Act for the revocation of the patent in suit;

11.4 the intended application for an amendment to the defendant's plea to incorporate a counterclaim shortly before the commencement of the trial."

Defendants did indeed, and subsequently, file two separate rule 35(3) notices as well as an application in terms of rule 24(1), that is, for the condonation of defendant's failure to file a plea together with a claim in reconvention and that defendants further be allowed to deliver a claim in reconvention. All of these are still pending.

[5] I am not going to summarize the arguments put forward on behalf of, respectively, plaintiff and defendants. Suffice it to say that plaintiff essentially took the position that defendants' conduct throughout the proceedings has been obstructive and dilatory.

Defendants, on the other hand, submitted that plaintiff had timeously been forewarned of the likelihood that the matter will not be ripe for hearing due to defendants' intended applications alluded to hereinbefore. I wish to add that I have been fully and extensively addressed by both Mr van der Westhuizen SC and Ms Jansen SC appearing on behalf of the parties, respectively. Ms Jansen also provided me with heads of argument. I have taken full cognisance of all the arguments raised. I am furthermore of the view that I am in a position to decide the issue of costs in view of all the facts placed before me and ventilated by counsel, so that the court eventually hearing the matter on the merits (at trial) need not be burdened with the same issues over and again.

[6] In my view the parties are not equally to blame for the situation which had arisen. On 25 April 2012 it must have been evident to plaintiff that the likelihood of the matter not being ripe for hearing, was substantial. This much is, inter alia, evident from the inquiry that plaintiff made on that date i. e. whether defendants intended to apply for a postponement of the trial. Regardless of having gained this knowledge plaintiff, whilst probably awaiting defendants substantive application for a postponement, nevertheless

continued as if the trial would proceed whilst full well aware that such was unlikely. Although plaintiff was technically correct in its approach, common sense must have prevailed. Allowing the matter to proceed only with regard to the issue of costs, was not in the interest of justice. There is ample authority to that effect.

[7] On the other hand and by delaying their aforesaid procedural steps to the extent which they did, defendants wilfully ran the risk of not only running into a postponement but leaving the launching of their applications to a time where the commencement of the trial would necessarily be affected and the possibility of unnecessary costs being incurred must have been evident to them. In addition, there is no satisfactory explanation for defendants not having taken the said procedural steps at an earlier stage.

[8] Hence, and on plaintiff's part, there was an element of failing to face up to and deal with the inevitable. Defendants, on the other hand, are to be blamed for having delayed the bringing of their said applications to a stage where their actions would render the commencement of the trial impossible. Both parties are to blame for the situation which has arisen although defendants, in my view, bear the greater part of the blame.

[9] It is necessary for me to remark that I find it difficult to understand the rationale for both parties' correspondence directed

at, first, the Judge President and later, the Deputy Judge President. The objectives which the parties wished to attain through this conduct, are veiled in secrecy. Were the parties aiming at purported interlocutory mediation in chambers? Clearly, such conduct is uncalled for; it is neither provided for by the Rules nor is it a matter of practice. Suffice it to say that this kind of conduct is not to be expected from senior practitioners.

[10] The following order is made:

Defendants are ordered to pay fifty percent of plaintiff's wasted costs, as taxed, and as occasioned by the postponement of the matter.

T J Kruger (AJ)