Weltevrede Nursery (Pty) Ltd v Keith Kirsten's (Pty) Ltd and others
 1 All SA 181 (SCA)
Supreme Court of Appeal
28 November 2003
Harms, Streicher, Mthiyane, Conradie JJA and Southwood AJA
2004 (4) SA 110 (SCA)
. Editor's Summary . Cases Referred to . Judgment .
 Patents and inventions Infringement Plant breeders right Plant Breeders' Rights Act 15 of 1976 Provides for the
application and registration of plant breeders rights Court had to examine the validity of the Plaintiff's plant breeders
The Respondent, Keith Kirsten (Pty) Ltd referred to as "the Plaintiff" in the court a quo held a plant breeder's right
certificate ("the certificate") in terms of a particular variety of plant ("tropicanna"). The Appellant, Weltevrede
Nursery (Pty) Ltd "the Defendant" in the court a quo realised that there was an export market for it so they
obtained an export order for a substantial number of the tropicanna rhizomes. The Plaintiff had become aware of
this and obtained an order in terms of which the rhizomes in the Defendant's possession were attached pending
infringement proceedings. In the court a quo the Defendant made a conditional admission to "infringement". The
admission was subject to the failure of the defence of invalidity of the Plaintiff's registration and a counterclaim for
the termination of the plant breeder's right. The court a quo gave judgment for the Plaintiff. This was an appeal
against this decision.
Held The Court looked primarily at the validity of the Plaintiff's plant breeder's right and examined the relevant
statutory provisions. The relevant statutes were the Plant Breeders' Rights Act 15 of 1976 ("the Act") which was
amended by the Plant Breeders' Rights Amendment Act 15 of 1996 ("the amending act"). The Court found that the
Plaintiff's application and the grant by the Registrar both predate the 1996 amendment. The validity of the Plaintiff's
rights had to be assessed under the provisions of the Act prior to the amendment. Other matters such as the
content of the plant breeder's right and the permissible court orders had to be determined under the amended act.
The Court held that both the court a quo and the Plaintiff had assumed that all the issues had to be decided under
the 1996 amendment.
The Court looked at requirements prescribed by the Act in terms of a plant breeder's right.
Description of new variety
The Court held that Plant Breeder's right was granted consequent to registration and like any other intellectual
property rights dependant on registration that right had to appear ex facie the register. The right granted must bear
a relationship to the right applied for. A new variety had to be "distinct" or in the words of the amending act "it is
clearly distinguishable from any other variety" and its characteristics "precisely describable". All this must appear
from the register.
Page 182 of  1 All SA 181 (SCA)
The Court held that the prescribed mandatory requirement of a description of a new variety was not complied with
since the application form filed with the Registrar contained no trade description of the plant.
The Applicant and the Holder
Section 20(2)(a) of the Act required the Plant Breeders Right certificate to be issued to the person who applied for
it. The Court found that the certificate was issued to the Plaintiff yet the applicant for the Plant breeder's right was
Morgenzon. Further, the Government Notice in which the application was advertised, indicated Morgenzon as the
In terms of the Act only a "breeder" could apply for a plant breeders right. The question asked by the Court was
whether the Plaintiff had "developed or discovered" the plant. The Court held that multiplying and testing a plant
are not the same as developing it and successfully developing a market is also not the same as developing a plant.
The Court found that the Plaintiff having sent rhizomes to Morgenzon for testing and bulking purposes did not mean
that the plaintiff had "developed or discovered" the plant.
Section section 2(1)(a) of the Act provided that an application for plant breeders' rights had to be in respect of a
"new" variety and a plant was deemed to have been new if it complied with the prescribed requirements found in
section 2(2) of the Act.
The Act as amended, stated when a variety would have been deemed to have been new but in the process