The only person who is entitled, according to Mr Du Plessis is a person who is an agent. Only he can initiate
those proceedings, and that means somebody who has qualified as a patent agent and who has passed the
examinations in terms of those sections of the Patents Act to which I was referred viz. sections 20 and 22 thereof.
Mr Van der Hoven says the authority for him to practice before this Court is to be found in section 19(3) of the
Patents Act which says a party to any proceedings before the commissioner may appear in person or be
represented thereat by an advocate or an agent.
I think Mr Van der Hoven's approach to the matter is wrong, and it is due to a misreading of the 1995 Act which is
a general provision entitling an attorney with suitable qualifications to appear in any court in South Africa. The
Patents Act is a special Act and 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. I think the
maxim generalia specialibus non derogant must apply here and this was referred to and dealt with in Gentiruco AG v
Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD). I am particularly referring to page 603C where Trollip JA went on to say
this:
"The exposition of the maxim most apposite to the present situation is that of Lord Selborne in Seward v The Vera Cruz
(1884) 10 App Cas 59 at p 68:
'Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and
sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold
that earlier and special legislation indirectly, repealed, altered or derogated from merely by force of such general
words, without any indication of a particular intention to do so.'"
In my view that situation prevails here and without dealing and canvassing the question of Mr Van der Hoven's right
to appear in this Court later on I will limit myself merely by saying at this stage that he does not have the right to
initiate proceedings in this Court, as he does not have the qualifications as laid down in the Patents Act. It follows
that the point in limine succeeds and accordingly I make the following order:
1.
Attorney Mr Van der Hoven, was not entitled to represent the applicant in the application which was launched in this
Court.
2.
The application is postponed sine die in order to allow the applicant within two months from today's date to remedy
the position as he may be advised to do.
3.
The wasted costs of today are to be paid by the applicant and in the event of the applicant failing to take such steps
as may be necessary to deal with the application and putting it in proper form and signed by the necessary and
appropriate parties the applicant will have to pay the cost of the application as well.
For the applicant:
SWV van der Hoven instructed by Van der Hoven & Partners, Pretoria
For the respondent:
B du Plessis instructed by J Kernich, Pretoria