Bekker v Steyn
 2 All SA 275 (CP)
Court of the Commissioner of Patents
18 December 1997
. Editor's Summary . Cases Referred to . Judgment .
Patents Applicant represented by an attorney acting in terms of the Rights of appearance in Courts Act
62 of 1995 Attorney not admitted as a patent agent as required in terms of sections 20 and 22 of the Patents Act 57 of
1978 Such attorney not entitled to appear before the Commissioner of Patents.
This was a patent infringement case which was brought before the Court sitting as Commissioner of Patents. The
Respondent raised a point in limine to the effect that the papers as launched by the Applicant, the patentee, were
produced by an attorney who was not a patent agent as defined in the Patents Act 57 of
Page 276 of  2 All SA 275 (CP)
1978 and was not the proper person to have initially prepared the papers and placed them before the Court. The
Appellant's attorney relied upon the provisions of the Right of Appearance in Courts Act 62 of 1995. Section 34 of
the Act provided that an attorney who has been granted the right of appearance in the High court shall also be
entitled to discharge the other functions of an advocate in any proceedings in the High court. The Respondent
challenged appellants contention and submitted that the only person entitled to act as an "agent" was a person
who was qualified as a patent agent and who had passed his examinations in terms of sections 20 and 22 of the
Patents Act. Appellant contended that authority for him to practice could be found in section 19(3) of the Patents Act
which states that a party to any proceedings before the commissioner may appear in person or be represented
thereat by an advocate or an agent.
Held The approach of the Appellant's attorneys was incorrect and was a result of the misreading of the Right of
Appearance in Courts Act. The Patents Act was a special act and was governed by its own specific legislation. It
gives special privileges to certain attorneys or agents and a distinction must therefore be drawn between it and the
general situation. The Appellants attorney therefore did not have the right to initiate proceedings in this Court as
he did not have the qualifications as laid down in the Patents act. In the result the Respondents point in limine
For Patents, see LAWSA (Vol 20, paragraphs 167)
Cases referred to in judgment
("C" means confirmed; "D" means distinguished; "F" means followed and "R" means reversed.)
Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD) F
This is a patent infringement case which has been brought before me sitting as Commissioner of Patents. The
respondent has taken a point in limine which is to the effect that the papers as launched by the applicant, who is
the patentee in this matter were produced by an attorney, Mr Van der Hoven.
It is common cause, that Mr Van der Hoven is not a patent agent as defined in the Patents Act 57 of 1978 and in
the past he would not have been the proper person to have initially prepared these papers and placed them before
the court. However, what he relies upon is the position which is provided for in recent legislation viz. the Right of
Appearance in Courts Act 62 of 1995 and in section 34 of that Act, it is stated that an attorney who has been
granted the right of appearance in the high court shall also be entitled to discharge the other functions of an
advocate in any proceedings in the high court. It is because of that particular subsection read with other
subsections to which Mr Van der Hoven has referred me that he contends he is empowered to represent his client
today not only insofar as it is necessary to appear in this Court but also to initiate proceedings in the court of the
Commissioner of Patents.
Page 277 of  2 All SA 275 (CP)
Mr Du Plessis, for the respondent, has challenged that and has said that he is not entitled to initiate proceedings
and certainly not those provided for in section 9(a) of the Patents Act of 1978.