[22] Munnik CJ further held that the introduction of section 15(2) of the 1969 Act did not affect this reasoning. He
focussed on the word "successfully" and held that only if a creditor's claim fails the provision comes into force.
The practical effect of this is that, should absolution be granted, the plaintiff cannot be said to have
successfully prosecuted the claim to final judgment. The same would apply, he said, if an exception is taken
and the plaintiff cannot amend but has to issue a fresh summons (an unlikely event). Another example
appears from a later case where a plaintiff withdrew the action in one court in order to institute it in another:
since the first summons was not successfully prosecuted it could not interrupt prescription.25
[23] The learned Judge concluded (at 704FH):
"It is not unreasonable to assume that what the legislator had in mind was the following: It is necessary that there
should be finality in litigation. The plaintiff is given a reasonable time within which to institute his action, thereafter he
is in the hands of the administration of the Courts. Certain Rules are laid down, time is given in which certain
procedures have to be carried out in regard to the pleadings and there is a general provision in every Rule of Court in
terms whereof the Court can always extend the time and furthermore he has other factors to contend with . . . which
all make it impossible for him to have any direction over the length or duration of the proceedings once he has
instituted them."
[24] This means that the failure to prosecute did not in the circumstances of this case lead to the extinction of the
claim by prescription. I do not thereby wish to condone the lackadaisical manner in which Cadac dealt with the
matter but, as Munnik CJ said (at 705AB), the debtor to a certain extent has a say in the running of
prescription by enforcing the rules of court. In this case, WeberStephen could have enrolled the case for
dismissal of the postponed relief.
Conclusion
[25] This means that WeberStephen's defences to the relief sought were without merit. The parties are agreed
that the following order should issue in that event and it is ordered as follows:
1
The appeal is upheld with costs, including the costs of two counsel.
2
The order of the court below is set aside and replaced with an order in these terms:
(a)
The interlocutory application is upheld with costs, including the costs of two counsel.
(b)
The counterapplication is dismissed with costs, including the costs of two counsel.
(c)
The Registrar of the South Gauteng High Court is directed to fix a date for an inquiry to be
conducted by way of a High Court trial for the purposes of:
(i) the determination of the amount of compensation to be paid by the respondents to the
applicant as
Page 353 of [2011] 1 All SA 343 (SCA)
contemplated in section 10(1)(c) of the Counterfeit Goods Act 37 of 1997; and
(ii)
the payment by the respondents, jointly and severally, the one paying the others to be
absolved, to the applicant of the amount of compensation found to be due to the applicant
pursuant to the determination, together with interest on such amount at the prescribed
rate of interest from the date of such determination until the date of payment and the costs
of the determination.
(d)
The applicant shall within 20 (twenty) days of the date of this order serve upon the respondents
and file a declaration particularising the damages allegedly suffered by it as a result of the seizure
of its goods under the search and seizure warrant issued on 10 December 2004.
(e)
The respondents, if so advised, shall with 10 (ten) days of the service of the applicant's
declaration, file a plea thereto.
(f )
The Uniform Rules of Court relating to discovery, inspection and all other matters of procedure
shall apply to the determination.
(g)
The parties are authorised, on notice to the other parties and should it be required by one or
both of them, to make application to the South Gauteng High Court to add to, or vary the above
order so as to facilitate the conducting of the determination and generally to make application for
further directions in regard thereto.
(Nugent, Ponnan, Shongwe JJA and R Pillay AJA concurred in the judgment of Harms DP.)
For the appellant:
J Bester SC and NJ Tee instructed by DM Kisch Incorporated
For the respondents:
GE Morley SC and A Annandale instructed by Spoor and Fisher Attorneys
Footnotes
1
2
3
The third and fourth respondents were inappropriately cited for purposes of the appeal.
The judgment has been reported: Cadac (Pty) Ltd v WeberStephen Products Co 2005 Burrell's IP 439 (W).
Jason Bosland, Kimberlee Weatherall and Paul Jensen "Trademark and counterfeit litigation in Australia" at