(Eksteen, FH Grosskopf and Schutz JJA concurred in the judgment of Harms JA.)
MARAIS JA
I have had the benefit of reading the judgment of my brother Harms. I have had considerable difficulty in deciding
the anticipation point. When the circumstantial evidence which the appellant was able to assemble in difficult
circumstances after so long a lapse of time is coupled with the direct evidence of prior knowledge or use, it cannot
be easily dismissed as unimpressive. The respondents' response to that evidence was not that the filters which
were sold prior to the critical date were not the relevant filters but some other filters. Its dogmatic response was
that no filters had been sold in South Africa other than those to which the patent relates, that they were sold after
the critical date, and that any documentation suggesting the contrary was a forgery. That remained its stance
throughout a long and protracted trial. That stance was shown to be untenable and in my view, there is a good
deal to be said for the proposition that the appellant's case was strengthened by the failure of the only factual
defence put forward by the respondents. Whether the appellant has discharged the onus of proof which rests upon
it is the ultimate question. The factors which have been listed in the judgment of Harms JA as justifying the
conclusion that the onus of proof has not been discharged are certainly relevant factors but I remain troubled by
the respondents' steadfast refusal to put up such a case and its insistence, even before this court, that the only
filters sold in South Africa were those to which the patent relates, and that none to which it did not were ever sold
here. However, I do not feel so convinced that my view of the matter is right that I feel obliged to dissent from the
judgment of the majority. Dubitante therefore I concur in the dismissal of the appeal. I should add that in all other
respects I concur unreservedly in the judgment of the majority.
View Parallel Citation
For the appellant:
ABS Franklin SC instructed by DM Kisch Incorporated, Pretoria
For the respondent:
P Ginsburg SC and CJ van der Westhuizen instructed by Adams & Adams, Pretoria