Zietsman v Electronic Media Network Limited and Another (92/9925) [2010] ZACCP 9 (15 October 2010)

Zietsman v Electronic Media Network Limited and Another (92/9925) [2010] ZACCP 9 (15 October 2010)

The commissioner found that the respondents' second application for security for costs was not barred by res judicata because it was based on new factual allegations that remedied the deficiencies identified by the Supreme Court of Appeal in the first application. The respondents had now sufficiently explained their pending application under section 51(10) of the Patents Act and how success therein would provide a complete defence to the applicant's claim. The applicant's argument that the new facts were not truly new was rejected, as the absence of these allegations in the first application was the reason for the Supreme Court of Appeal's decision to set aside the original order. The...

Citation
[2010] ZACCP 9
Parties
Applicant: David Wallace Zietsman; Respondent: Electronic Media Network Limited; Respondent: Multichoice Africa (Proprietary) Limited
Court
Court of the Commissioner of Patents
Jurisdiction
South Africa
Judgment Date
15 October 2010
Case Number
92/9925
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Order for Security for Costs
Outcome
Leave to appeal granted; late filing condoned; costs to be costs in the appeal.
Judges
Sapire
Legal Topics
Security for Costs, Patent Infringement, Res Judicata, Condonation of Late Filing
Civil Procedure Intellectual Property Security for Costs Patent Infringement Res Judicata Condonation of Late Filing

Case Brief

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Parties

David Wallace Zietsman

Applicant

Electronic Media Network Limited

Respondent

Multichoice Africa (Proprietary) Limited

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Order for Security for Costs

Legal Issues

  1. 1 Whether leave to appeal should be granted against the order requiring the applicant to furnish security for costs.
  2. 2 Whether the second application for security for costs was barred by res judicata.
  3. 3 Whether the respondents' new factual allegations in the second application were sufficient to overcome deficiencies identified by the Supreme Court of Appeal.

Ratio Decidendi

The commissioner found that the respondents' second application for security for costs was not barred by res judicata because it was based on new factual allegations that remedied the deficiencies identified by the Supreme Court of Appeal in the first application. The respondents had now sufficiently explained their pending application under section 51(10) of the Patents Act and how success therein would provide a complete defence to the applicant's claim. The applicant's argument that the new facts were not truly new was rejected, as the absence of these allegations in the first application was the reason for the Supreme Court of Appeal's decision to set aside the original order. The...

Court Disposition

Leave to appeal granted; late filing condoned; costs to be costs in the appeal.

Orders

  • The applicant's late filing of this application is condoned.
  • The applicant is given leave to appeal to the Supreme Court of Appeal against the order made on 1 December 2009 requiring the applicant to furnish security for costs in the action instituted against the respondents.