and that no one else participated in the discovery. This is a material allegation because in terms of the Act
only a "breeder" could apply for a plant breeder's right. Did Kirsten then discover this allegedly new canna?
He gave the answer: he did not. He saw the plant for the first time during 1991 in the garden of one Kruger
who was a well known nurseryman in Bethal. Kruger was fully aware of the existence of the variety in his
garden. Kirsten, consequently and apart from his concession that he had not discovered the variety, was not
the first person to learn about something previously unknown and he did not bring it to light. As an Australian
expert panel has suggested, "a person cannot normally be considered the 'discoverer' of a plant if someone
else provides the particulars of its existence to that person."7
[14] In addition, Kirsten at all times believed that Kruger discovered the plant because it was growing in his
garden and he was fully aware of its existence. (There was, however, no evidence which showed that Kruger
in fact discovered it; on the contrary, the evidence was that Kruger received the plant from someone else
some years before.) The later events confirmed that Kirsten never believed that he had discovered the
View Parallel Citation
plant. Before the application for a plant breeder's right was filed, Kruger died and thereafter before the plant
breeder's right was granted, on 7 April 1995, the plaintiff, represented by Kirsten, entered into a "Licence
Agreement" with one Jan Plant. Jan Plant is in actual fact Mr Jan Harm Potgieter, the husband of a sister of
Kruger, who together with his wife lived with Kruger until Kruger died. The agreement contains various
strange features which caused Kirsten to give contradictory and highly unsatisfactory evidence. Apart from
Page 188 of [2004] 1 All SA 181 (SCA)
the fact that Jan Harm Potgieter's name does not appear in the agreement, he did not sign it as Jan Plant or
Jan Harm Potgieter but as "Harm". Jan Plant is falsely described in the agreement as the "original, first and
sole inventor of the new and distinct plant variety" being the Canna Phasion. As such he granted to the
plaintiff the "exclusive worldwide licence to grow, distribute and market Canna Phasion". Although Potgieter,
according to his evidence, did not want anything in respect of the exploitation of the Canna Phasion Kirsten
"out of the good of (his) heart" agreed to remit a royalty of R 0.25 per plant sold, 40% of which was to be
distributed to the SANA Bursary Fund and 60% to a Mrs Steinmann. Mrs Steinmann happened to be
Potgieter's daughter. It does not appear from the agreement to whom the royalty had to be remitted for
distribution. In the event royalties of between R10 000 and R20 000 per annum were remitted to a trust
formed by Potgieter. The beneficiaries of the trust are the SANA Bursary Fund, Mrs Steinmann and Potgieter's
wife. Potgieter testified that he signed the agreement "on behalf of actually my brotherinlaw's agreement
with Keith" which he said he was entitled to do because he thought that his wife was the heir to the movable
property of Kruger and that the rights to Phasion was part of the movable property. Again the statement was
false. His wife was one of many legatees of Kruger. She inherited a cash amount, the furniture and the
household utensils. Jan Plant, in his capacity as "discoverer", proceeded to apply for plant breeders' rights in
other countries through the offices of the plaintiff's sublicencees and this in spite of the fact that Jan Plant
and Kirsten knew, as they admitted, that he had no claim to the variety.
[15] The plaintiff was accordingly not the discoverer of Phasion and the statement to the contrary in the
application was a material misrepresentation without which the Registrar would not have granted a plant
breeder's right.8 Unfazed, the plaintiff submitted that it could rely on the fact that it had "developed" the
Phasion canna. It will be recalled that under the Act as it then stood a person who "developed" a new variety
qualified as a breeder. Assuming this to be an answer to the defendant's objection that the application was
flawed, the fact is that the evidence establishes that the plaintiff did not "develop" the variety. Kruger gave
Kirsten some rhizomes from the plants growing in his garden.9 These Kirsten planted and once satisfied with
the result he sent rhizomes to
View Parallel Citation
Morgenzon for testing and bulking purposes which Morgenzon did. This does not mean that the plaintiff or
Morgenzon on its behalf "developed" the plant. It is the same plant as the one received from Kruger.
Multiplying and testing a plant, plain English10 and the Act make clear, are not the same as developing it (cf
section 14(3)). Successfully developing a market is not the same as developing a plant.
Page 189 of [2004] 1 All SA 181 (SCA)
Publication
[16] The sorry tale of corporate and administrative bungling does not end here. I have said that the Act required
that the grant of a plant breeder's right must be gazetted (section 20(2)(c)). This, in context, means as soon
as possible after the grant of the right, ie as soon as possible after the date of the certificate of grant, namely
27 February 1996. The Registrar did not gazette the grant until 1 February 2002 which, albeit before
judgment, was after conclusion of the trial. The explanation the Registrar gave was a lack of funds within the
Department. How much, one wonders, does an advertisement in the Government Gazette cost considering
that all the applications granted in the preceding seven years were suddenly accommodated in an
advertisement of no more than two pages. It does not enhance the image of a country that wishes to become
a major economic force if, in spite of binding international obligations and parliamentary laws, some State
department is unwilling to find or expend a minimal amount of money. It is not as if the applicants for plant
breeders' rights do not have to pay for the privilege. Indignation aside, what the Registrar apparently failed