The Respondent, Keith Kirsten (Pty) Ltd referred to as "the Plaintiff" in the court a quo held a plant breeder's right certificate ("the certificate") in terms of a particular variety of plant ("Tropicana"). The Appellant, WeltevredeNursery (Pty) Ltd "the Defendant" in the court a quo realized that there was an export market for it so they obtained an export order for a substantial number of the Tropicana rhizomes. The Plaintiff had become aware of this and obtained an order in terms of which the rhizomes in the Defendant's possession were attached to pendinginfringement proceedings. In the court a quo the Defendant made a conditional admission to "infringement". The admission was subject to the failure of the defense of invalidity of the Plaintiff's registration and a counter­claim for the termination of the plant breeder's right. The court a quo gave judgment for the Plaintiff. This was an appeal against this decision. Held ­ The Court looked primarily at the validity of the Plaintiff's plant breeder's right and examined the relevant statutory provisions. The relevant statutes were the Plant Breeders' Rights Act 15 of 1976 ("the Act") which was amended by the Plant Breeders' Rights Amendment Act 15 of 1996 ("the amending act"). The Court found that the plaintiff's application and the grant by the Registrar both predate the 1996 amendment. The validity of the Plaintiff'srights had to be assessed under the provisions of the Act prior to the amendment. Other matters such as the content of the plant breeder's right and the permissible court orders had to be determined under the amended act. The Court held that both the court a quo and the Plaintiff had assumed that all the issues had to be decided under the 1996 amendment. The Court looked at requirements prescribed by the Act in terms of a plant breeder's right. Description of new variety Court held that Plant Breeder's right was granted consequent to registration and like any other intellectual property rights dependant on registration that right had to appear ex facie the register. The right granted must bear a relationship to the right applied for. A new variety had to be "distinct" or in the words of the amending act "it is clearly distinguishable from any other variety" and its characteristics "precisely describable". All this must appear from the register. Page 182 of [2004] 1 All SA 181 (SCA)The Court held that the prescribed mandatory requirement of a description of a new variety did not comply within the application form filed with the Registrar contained a no-trade description of the plant. The Applicant and the HolderSection 20(2)(a) of the Act required the Plant Breeders Right certificate to be issued to the person who applied for it. The Court found that the certificate was issued to the Plaintiff yet the applicant for the Plant breeder's right wasMorgenzon. Further, the Government Notice in which the application was advertised, indicated Morgenzon as the applicant. The BreederIn terms of the Act only a "breeder" could apply for a plant breeder right. The question asked by the Court was whether the Plaintiff had "developed or discovered" the plant. The Court held that multiplying and testing a plant are not the same as developing it and successfully developing a market is also not the same as developing a plant.The Court found that the Plaintiff having sent rhizomes to Morgenzon for testing and bulking purposes did not meanthat the plaintiff had "developed or discovered" the plant.NoveltySection section 2(1)(a) of the Act provided that an application for plant breeders' rights had to be in respect of a"new" variety and a plant was deemed to have been new if it complied with the prescribed requirements found insection 2(2) of the Act.The Act as amended, stated when a variety would have been deemed to have been new but in the process matters such as common knowledge, distinctiveness, homogeneity and stability all became aspects of novelty.The Court held that historically, patent law drew a distinction between "public knowledge" and "commonknowledge". Common knowledge referred to the knowledge of the average person in that particular art. Publicknowledge is knowledge that is available to the public.The Court held that in the absence of cogent evidence to the contrary, there was sufficient evidence to establishthat the plant had "otherwise come to the knowledge of the public" and that the plant was not distinctive.The Court held that the plaintiff was not the holder of a valid plant breeder's right for the reasons given.Appeal was upheld