Technical Information Systems (Pty) Ltd v Marconi Communication (South Africa) (Pty) Ltd and Another (2008/42000) [2012] ZAGPJHC 244 (22 October 2012)

Technical Information Systems (Pty) Ltd v Marconi Communication (South Africa) (Pty) Ltd and Another (2008/42000) [2012] ZAGPJHC 244 (22 October 2012)

The court held that the first defendant, despite selling its business as a going concern, remains a legal entity and is the correct party to be sued for copyright infringement. The special plea of mis-joinder and non-joinder was rejected. The prior judgment by Gildenhuys J did not finally dispose of the damages claim but only dismissed the procedure adopted; thus, res judicata does not apply to the damages claim. Litigation costs incurred in securing the interdict were already awarded and cannot be claimed again as damages. The 'once and for all' rule does not preclude the plaintiff from pursuing damages in a separate action where the prior procedure was found incompetent. The defence of...

Citation
[2012] ZAGPJHC 244
Parties
Applicant: Technical Information Systems (Pty) Ltd; Respondent: Marconi Communication (South Africa) (Pty) Ltd; Respondent: Telkom (South Africa) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 October 2012
Case Number
2008/42000
Procedural Posture
Civil Application / Application for Separation of Issues and Determination of Special Pleas
Outcome
Separation of issues granted for special pleas and denials except statutory fair use defences; third special plea upheld; costs apportioned; remainder of action postponed sine die.
Judges
Spilg
Legal Topics
Copyright Infringement, Res Judicata, Special Plea, Once and for All Rule, Abuse of Copyright, Fair Use Defence
Intellectual Property Civil Procedure Copyright Infringement Res Judicata Special Plea Once and for All Rule Abuse of Copyright Fair Use Defence

Case Brief

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Parties

Technical Information Systems (Pty) Ltd

Applicant

Marconi Communication (South Africa) (Pty) Ltd

Respondent

Telkom (South Africa) Ltd

Respondent

Procedural Posture

Civil Application / Application for Separation of Issues and Determination of Special Pleas

Legal Issues

  1. 1 Whether the first defendant was correctly joined or whether Ericsson (Pty) Ltd should have been joined.
  2. 2 Whether the plaintiff's damages claim is precluded by res judicata due to the prior judgment.
  3. 3 Whether litigation costs claimed as damages are precluded by res judicata.

Ratio Decidendi

The court held that the first defendant, despite selling its business as a going concern, remains a legal entity and is the correct party to be sued for copyright infringement. The special plea of mis-joinder and non-joinder was rejected. The prior judgment by Gildenhuys J did not finally dispose of the damages claim but only dismissed the procedure adopted; thus, res judicata does not apply to the damages claim. Litigation costs incurred in securing the interdict were already awarded and cannot be claimed again as damages. The 'once and for all' rule does not preclude the plaintiff from pursuing damages in a separate action where the prior procedure was found incompetent. The defence of...

Court Disposition

Separation of issues granted for special pleas and denials except statutory fair use defences; third special plea upheld; costs apportioned; remainder of action postponed sine die.

Orders

  • Plaintiff's application under Rule 33(4) to separate the First, Second, Third and Fourth Special Pleas and Special Plea 4A, and the pleas in paragraphs 43.1, 43.2, 48.1, 54, 55, 58 and 68.2 of the defendants' Amended Plea is granted.
  • Plaintiff's application to separate the statutory fair use defences in paragraphs 48.5, 53.4 and 56.2 is refused.