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The change in philosophy brought about by the repeal of the 1952 Act and the enactment of the 1978 Act compels a
construction of section 25(7)(b) which is consistent with the new direction. It is a wellestablished rule that
interpretation of statutory provisions is not limited to the ascertainment of the strict literal meaning of the words
but involves the determination of the Legislature's intention in using these words. In the case of Jaga v Dönges NO
and another 1950 (4) SA 653 (A) at 662G Schreiner JA said:
"Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be
interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context.
But it may be useful to stress two points in relation to the application of this principle. The first is that 'the context', as here
used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be
interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its
background."
(Cf. also Fundstrust at 726H727B.)
The conclusion is therefore that section 25(7) does apply the whole contents approach and that claims 1, 2, 4, 5
and 7 of Deton are, on the agreed facts, invalid.
Counsel for the appellants argued further that the said claims were in any event invalid on the prior claim
approach if regard is had to claim 17 of CMI. This aspect of the case was not pertinently argued before Van
Dijkhorst J and is in the light of my conclusion moot.
Infringement by the third appellant of Deton claims other than those found invalid is not disputed. That raises
the question whether the third appellant in these circumstances can be interdicted from infringing any valid claim.
This legal issue was before Van Dijkhorst J because of the second respondent's application for an interdict
restraining infringement of the CMI patent. Having found that some of the CMI claims were invalid and others valid
and infringed, he held that the Commissioner of Patents is "not empowered to grant relief in infringement
proceedings where one or more of the claims of a patent are invalid unless and until the defect has been rectified
by proper amendment". No interdict was issued in consequence at the behest of the second respondent and no
crossappeal lodged. The second respondent did also not appear on appeal. Mr Beasley, counsel for the first
respondent, refrained from attacking this finding and accepted its correctness.
In the premises the appeal, which was directed against para 3 (the interdict) and 4.1 to 4.4 (costs) of the order
of the court below, must succeed and the following order is made:
1.
The appeal is upheld with costs. Such costs include the costs of two counsel and are to be borne by the first
respondent only.
2.
Paragraph 3 of the order of the court a quo is substituted with the following:
"In case number 90/5999 the application for an interim interdict or interdict is refused."
3.
Paragraph 4.2 to 4.4 thereof is substituted with the following:
Page 576 of [1997] 3 All SA 569 (A)
"The applicants are ordered to pay, jointly and severally, the costs of the respondents."
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4.
For the sake of convenience, paragraph 4.5 thereof is renumbered to paragraph 5.
(EM Grosskopf, Nienaber, Schutz and Plewman JJA concurred in the judgment of Harms JA.)
For the appellants:
JW Law SC and CJ van der Westhuizen instructed by Hahn & Hahn, Pretoria and Webbers, Bloemfontein
For the respondents:
DN Beasley SC and JR Peter instructed by DM Kisch Incorporated, Pretoria and Naudes, Bloemfontein
Footnotes
1
2
3
4
5
Report of the Committee to Examine the [British] Patent System and Patent Law, July 1970.
A convention of the Council of Europe, on the unification of aspects of patent law in Europe.
Art 54(3) and (4) and see Singer, The European Patent Convention (1995 Lunzer ed) pp 165166.
Also reported at [1997] 1 All SA 644 (A) Ed.
Cf. Singer op. cit. pp 159164; CIPA Guide to the Patents Acts, 4th ed, para 2.172.21.