Cadac (Pty) Ltd v WeberStephen Products Company and others
 1 All SA 343 (SCA)
SUPREME COURT OF APPEAL
16 September 2010
LTC HARMS DP, RW NUGENT, VM PONNAN, JB SHONGWE JJA and R
. Editor's Summary . Cases Referred to . Judgment .
 Civil procedure Inquiry into a claim for damages Claim arising from confiscation of goods Counterfeit Goods Act 37
of 1997 Sections 10(1) and 17(1) Whether proceedings launched by appellant for an inquiry into damages was
competent because it is not permissible to bring an illiquid claim by means of motion proceedings Where appellant was
not seeking to have its illiquid claim decided by means of motion proceedings but was seeking directions as to how to
proceed with the quantification of its claim for damages to which it was entitled, proceedings were competent.
 Civil procedure Prescription Prescription Act 68 of 1969 Section 15(2) Section provides that the running of
prescription shall not be deemed to have been interrupted, if the creditor does not successfully prosecute his claim under
the process in question to final judgment There is no time limit stated in section 15(2) within which the claim must be
prosecuted with success.
 Intellectual property Counterfeit goods Claim for damages arising from confiscation of goods in terms of section
17(1) of the Counterfeit Goods Act 37 of 1997 Section 17(1) provides that any person suffering damage or loss caused
by the wrongful seizure, removal or detention of goods alleged to be counterfeit is entitled to claim compensation from the
complainant for that damage or loss.
Similar products, manufactured and distributed by the first respondent and the appellant respectively, led to the
dispute in this case. The first respondent, a US company, was the registered owner of trademarks that related to
the shape and configuration of barbeque kettle grills. The appellant also manufactured kettle grills and had a kettle
grill on the local market for some 18 months when it decided to introduce another model during November 2004.
That led to an allegation of trade mark infringement by the first respondent. The appellant refuted such allegation,
and the first respondent then alleged that the appellant was guilty of counterfeiting and threatened to lay a charge
under the Counterfeit Goods Act 37 of 1997 (the "Act"). Although the appellant again refuted the allegations, the
first respondent proceeded to lay a complaint without notice to the appellant and without disclosing the fact that
the appellant had asked for notice and had provided it with a detailed defence. An inspector appointed under the
Act, acting on the allegations in the first respondent's affidavit, applied for a warrant from a magistrate in chambers
authorising him to seize the appellant's kettle grills. The warrant was executed during the Christmas season and
kettle grills in the possession of dealers were also confiscated. The appellant alleged that it suffered loss as a
Page 344 of  1 All SA 343 (SCA)
In an urgent application, the appellant sought the setting aside of the warrant in light of the underhand manner
in which it had been obtained. It also applied for a declaration that the goods seized were not counterfeit and for
an inquiry into damages. The court hearing the application found that the warrant had been obtained irregularly
and set it aside. It ordered the return of the appellant's goods. The court did not express any view about whether
or not the appellant's product was counterfeit. It also postponed sine die the prayer for an inquiry into damages.
The appellant did not take further formal steps in relation to the inquiry into damages until three years after the
judgment, when it applied by means of an interlocutory application for directions for the conduct of the inquiry. The
first respondent responded with a counterapplication for an order declaring that the appellant's claim had become
Held The prayer relating to an inquiry into damages flowed from the provisions of section 17(1) of the Act, which
provides that any person suffering damage or loss caused by the wrongful seizure, removal or detention of goods
alleged to be counterfeit is entitled to claim compensation from the complainant for that damage or loss. That had
to be read with section 10(1)(c) which states that a court in any proceedings relating to counterfeit goods may
order that the complainant pays damages, in an amount determined by the court, to the person from whom those
goods were seized and pays that person's costs.
The first issue to be decided was whether the proceedings launched by the appellant for an inquiry into damages
was competent because it is not permissible to bring an illiquid claim by means of motion proceedings. Motion
proceedings are principally for the resolution of legal issues, and are not geared to deal with factual disputes, and
illiquid claims by their very nature involve the resolution of factual issues. While the Court acknowledged the
correctness of the above statements of the law by the first respondent, it held that the appellant was not seeking
to have its illiquid claim decided by means of motion proceedings and that the objections had no bearing on the
matter. What the appellant was seeking were directions as to how to proceed with the quantification of its claim for