Voor-Groenberg Nursery CC and Another v Colors Fruit South Africa (Pty) Ltd (A21/12) [2012] ZAWCHC 157 (23 August 2012)

Voor-Groenberg Nursery CC and Another v Colors Fruit South Africa (Pty) Ltd (A21/12) [2012] ZAWCHC 157 (23 August 2012)

The court found that Colors Fruit South Africa (Pty) Ltd did not discharge the onus of proving that ownership of the plant material had been transferred to it by AMC or Sheehan Genetics. The absence of a reservation of ownership clause in the sub-licence agreement did not, in itself, indicate an intention to transfer ownership. Neither the head licence nor the sub-licence dealt with the ownership of the physical plant material, and there was no evidence that Sheehan Genetics or AMC intended to transfer ownership to Colors. Industry norms, supported by expert evidence, indicate that ownership of vegetative materials remains with the owner of the plant breeder's rights, regardless of...

Citation
[2012] ZAWCHC 157
Parties
Appellant: Voor-Groenberg Nursery CC; Appellant: Olyvenboom Boerdery (Pty) Limited; Respondent: Colors Fruit South Africa (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
23 August 2012
Case Number
A21/12
Procedural Posture
Civil Appeal / Appeal Against the Whole Judgment of the Court a Quo
Outcome
Appeal upheld with costs; order of the court a quo set aside and replaced with dismissal of the application with costs.
Judges
Griesel, Fortuin, Samela
Legal Topics
Plant Breeders Rights Act, Ownership Transfer, Licensing Agreements, Rei Vindicatio, Industry Norms, Principal Agent Relationship
Commercial and Corporate Land and Property Plant Breeders Rights Act Ownership Transfer Licensing Agreements Rei Vindicatio Industry Norms Principal Agent Relationship

Case Brief

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Parties

Voor-Groenberg Nursery CC

Appellant

Olyvenboom Boerdery (Pty) Limited

Appellant

Colors Fruit South Africa (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal Against the Whole Judgment of the Court a Quo

Legal Issues

  1. 1 Whether Colors Fruit South Africa (Pty) Ltd became the owner of the plant material in question.
  2. 2 Whether the absence of a reservation of ownership clause in the sub-licence agreement resulted in transfer of ownership to Colors.
  3. 3 Whether Colors was entitled to rely on section 23(6) of the Plant Breeders' Rights Act for possession and exploitation of the plant material.

Ratio Decidendi

The court found that Colors Fruit South Africa (Pty) Ltd did not discharge the onus of proving that ownership of the plant material had been transferred to it by AMC or Sheehan Genetics. The absence of a reservation of ownership clause in the sub-licence agreement did not, in itself, indicate an intention to transfer ownership. Neither the head licence nor the sub-licence dealt with the ownership of the physical plant material, and there was no evidence that Sheehan Genetics or AMC intended to transfer ownership to Colors. Industry norms, supported by expert evidence, indicate that ownership of vegetative materials remains with the owner of the plant breeder's rights, regardless of...

Court Disposition

Appeal upheld with costs; order of the court a quo set aside and replaced with dismissal of the application with costs.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the court a quo is set aside and replaced with: 'The application is dismissed with costs, including the costs of two counsel.'