damages to which it was entitled. The Court pointed out that courts have refused to make orders for an inquiry into
damages because the relief, which is found in English procedural law, is not dealt with in our court rules. However,
courts are able to craft an appropriate order for an inquiry into damages without the need for a rule. The Court did
not see why as a matter of principle and in a particular case, a plaintiff who wishes to have the issue of liability
decided before embarking on quantification, may not claim a declaratory order to the effect that the defendant is
liable, and pray for an order that the quantification stand over for later adjudication. And once the principle was
accepted for trial actions there was no reason why it could not apply to application proceedings.
One of the Court's findings in dismissing the first respondent's contentions on the issue of prescription related to
the interpretation of section 15 of the Prescription Act 68 of 1969. The first respondent relied on section 15(2) of the
Prescription Act which 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. The argument
was that since the appellant did not prosecute its claim to a final judgment, the
Page 345 of [2011] 1 All SA 343 (SCA)
claim became prescribed. The Court enquired into when the claim had prescribed. The first respondent's suggestion
was that the claim had prescribed within three years from the judgment which set aside the warrant. However, the
Court pointed out that there is no time limit stated in section 15(2) within which the claim must be prosecuted with
success. Extinctive prescription limits the time within which proceedings must be instituted but once instituted its
continuance is governed by the rules of court. The reason is that while the initiating step (the issue of process) is
within the power of the creditor, the subsequent conduct of the proceedings might not be. Thus, the failure to
prosecute did not in the circumstances of this case lead to the extinction of the claim by prescription.
The dismissal of the first respondent's defences led to the appeal being upheld. It was ordered that a date
should be set for an inquiry to be conducted by way of a High Court trial for the purposes of determining the
amount of compensation to be paid by the respondents to the appellant as contemplated in section 10(1)(c) of the
Counterfeit Goods Act.
Notes
For Civil Procedure see:
.
LAWSA Reissue (Vol 3(1), paras 1441)
.
Harms, LTC Civil Procedure in the Superior Courts Durban LexisNexis Butterworths 2005
For Intellectual Property see:
.
LAWSA First reissue Vol 29
.
Burrell TD Burrells South African Patent and Design Law 3ed Durban LexisNexis Butterworths 1999
Cases referred to in judgment
South Africa
Atlas Organic Fertilisers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd [1978] 4 All
SA 724 (1978 (4) SA 696) (T) Referred to
349
Begeman v Cohen 1927 TPD 674 Referred to
350
Cadac (Pty) Ltd v WeberStephen Products Co 2005 Burrell's IP 439 (W)
Referred to
347
Cape Town Municipality and another v Allianz Insurance Co Ltd [1990] 1 All
SA 30 (1990 (1) SA 311) (C) Referred to
351
Chauke v President Insurance Co Ltd [1978] 2 All SA 226
(1978 (2) SA 947) (W) Not followed
351
Cohen Lazar and Co v Gibbs 1922 TPD 142 Referred to
350
Cole's Estate v Oliver 1938 CPD 464 Referred to
350
Cresto Machines (Edms) Bpk v Die Afdeling Speuroffisier, SA Polisie, Noord
Transvaal 1972 (1) SA 376 (A) Referred to
350
Die Bergkelder Bpk v Vredendal Koöp Wynmakery and others [2006] 4 All
SA 215 (2006 (4) SA 275) (SCA) Referred to
347
Haggar Co v SA Tailorcraft (Pty) Ltd and another [1985] 3 All SA 1
(1985 (4) SA 569) (T) Referred to
349
Hart v Cohen (1899) 16 SC 363 Referred to
350
Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd and another [1977] 1 All SA
481 (1977 (1) SA 316) (T) Referred to
349