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in any plant breeder's right, the application for such a right or any document filed in pursuance of such an
application, or the register;
(b)
the amendment of any document for the amendment of which no express provision is made in this Act;
(c)
the condonation or correction of any irregularity in procedure in any proceedings before him, if such
condonation or correction is not detrimental to the interests of any person."
Since there are no proceedings before him, (c) has no application. Paragraph (b) is also not apposite
because one cannot by means of an amendment create rights where none exist and (a) is also of no use
because there is no suggestion that any of the errors (if they are indeed errors) are clerical errors. They are
errors of substance. It follows that the counterclaim must also succeed.
[28] In the result the appeal is upheld with costs and the order of the court below is set aside and replaced with
an order:
(a)
dismissing the plaintiff's claim;
(b)
terminating the plant breeder's right in relation to Canna Phasion PBE ZA 961360;
Page 193 of [2004] 1 All SA 181 (SCA)
(c)
that the plaintiff pay the costs of the claim and counterclaim and also the costs of the Anton Piller
application 12100/99.
(Streicher, Mthiyane, Conradie JJA and Southwood AJA concurred in the judgment of Harms JA.)
For the appellant:
AR SholtoDouglas and MD Edmunds instructed By Jan S De Villiers, Stellenbosch
For the first respondent:
M Nowitz instructed by Curr Vivier Attorneys, Cape Town
For the Second Respondent:
Registrar of Plant Breeders' Rights c/o Department of Agriculture, Pretoria
Footnotes
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The certificate gives the date of expiry as 27 February 2011 but since the term is to be calculated in years from the
date of the certificate, this is an error: Plant Breeders' Rights Act 15 of 1976 s 21.
Per Desai J. The judgment has been reported: Keith Kirsten's (Pty) Ltd v Weltevrede Nursery (Pty) Ltd and another
[2002] 3 All SA 624 (C); 2002 (4) SA 756 (C). Desai J refused leave to appeal, which was subsequently granted by this
Court.
Plant Breeders' Rights Act 15 of 1976, s 47(1).
www.upov.int. It also has been the subject of amendments,
GG Notice R 2630 of 24 December 1980 (Reg Gazette 3116) as amended by GG Notice R 37 of 6 January 1984 (Reg
Gazette 9024).
Reg 3(1)(c) had a similar requirement at the time.
"Clarification of Plant Breeding Issues under the Plant Breeders' Rights Act 1994": Report of the Expert Panel on
Breeding, December 2002. www.anbg.gov.au/breeders/index.html
The Community Plant Variety Office of the European Union reached the same conclusion in a decision (No A4) of 6
November 2003.
It is not alleged that Kruger developed the variety or that the plaintiff was the successorintitle of Kruger.
Encarta World English Dictionary gives as the primary meaning of 'develop': 'to change, or to cause to change, and
become larger, stronger, or more impressive, successful or advanced'. There is no other appropriate meaning which
can be attached to the word in this context.
Fortunately, the Act itself now prescribes what novelty means.
Cf Gentiruco (supra) at 656A.
Cf Bendz Ltd and another v South African Lead Works Ltd 1963 (3) SA 797 (A) at 808F.
The defendant joined the Registrar for purposes of the counterclaim as second defendant but the Registrar abides the
decision of the Court.