(a) No specific legal provisions exist governing the length or cost of legal proceedings. The Rules of Court set out clear time-limits for the various stages of civil proceedings. Extensions may be agreed to inter partes or the Court might grant extensions or condone late service in appropriate circumstances which will lengthen the duration of the proceedings. (b) The essential time-periods are set out in Rule 6 of the Uniform Rules of Court (for applications) and Rules 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of the Rules for actions. No statistical data is available on the actual duration of proceedings or their cost.

Please see the reply to question 6 above.

Proceedings in the High Courts are recorded electronically, and litigants may apply for transcriptions of the recordings. Judgements are generally given in writing.

As indicated in the answer to question 2 above, evidence in motion proceedings is generally by affidavit unless the Court directs otherwise. In actions, evidence is given orally. The evidence of expert witnesses as well as copies of plans, diagrams, etc. have to be made available to the other party before trial. Witnesses who give oral evidence are subject to cross-examination. In coming to a decision, a judge in the first place evaluates the evidence tendered in court, but he may take cognisance of other laws of the country, e.g. the provisions of the Constitution of South Africa.

All procedural rulings and final decisions on the merits of South African courts are subject to review and/or appeal, with the exception of temporary interdicts (interlocutory injunctions). The current legal position in South Africa is that an interlocutory injunction (temporary interdict) is not subject to review nor to appeal. It is submitted that this position is not in conflict with Article 41.4, inasmuch as the decision in regard to an interlocutory injunction is not a decision on the merits of a case. An interlocutory injunction is based on a balance of convenience, and the merits of the case are specifically not decided. To succeed with a temporary interdict, the claimant merely has to show, prima facie, that there is a right which is or is about to be infringed, and that the balance of convenience favours the granting of a temporary interdict pending the finalization of the main proceedings. Furthermore, an interlocutory injunction is exactly that, namely a temporary order pending further court action; if such further court action does not follow within a reasonable period, the interlocutory injunction can be discharged. The order normally specifies a return date by which cause must be shown as to why the temporary interdict should not be made permanent, thus creating an opportunity for the respondent to state his case. The system is safeguarded against abuse in that the Court requires to be satisfied that the balance of convenience is in favour of the granting of such an interdict, and in considering this aspect the Court will consider the status and financial position of both parties, and will make the decision on the basis of the least measure of interference with the activities of a party.

In the case of infringement proceedings, whether by way of application or action, the notice of motion or the combined summons has to be served on every respondent by the applicant/plaintiff. The Court has to be satisfied that proper service took place. Receipt of service is usually endorsed on the original notice of motion/summons under the signature of the respondent or his authorized agent.

Parties may personally represent themselves in the High Court or may be represented by an attorney (having the right of appearance) or an advocate of the High Court of South Africa. There is no requirement for mandatory personal appearance. If the right holder needs to give essential evidence in a trial action, a personal appearance in that sense is necessary. See also: Section 19(3) Patents Act No. 57 of 1978; Section 13 Designs Act No. 195 of 1993.

There are no limitations as envisaged in this question in the field of intellectual property law. There are, however, certain protective provisions such as Section 67(3) of Patents Act No. 57 of 1978 providing that a person need not disclose secret process information, if it appears to the Commissioner that it would be unreasonable to do so, in cases of an alleged infringing product made by a process for obtaining a new product.

The protection of confidential information brought forward as evidence may be ordered by the High Court or the Court and the Commissioner of Patents in terms of their inherent powers. The litigant wishing to protect such information may make application to the Court (if agreement with the opposing party is not possible) for appropriate directions. Experience indicates that the Courts are generally sympathetic to such approaches in appropriate circumstances. Section 67 of the Patents Act, 1978, also contains certain provisions regarding non-disclosure of secret processes.15

Discovery and production of documents and tape recordings in the High Court of South Africa, and in the Court of the Commissioner of Patents, is dealt with in Rule 35 of the Uniform Rules of Court. Discovery will only be ordered after the institution of proceedings and generally only after the close of pleadings. In special cases, (such as the "Anton Piller" situation), the Court may order, on an ex parte basis, that certain evidence be taken into the possession of a sheriff for its preservation pending the institution of civil proceedings. Statutory provisions for Anton Piller-type orders have been enacted in the Counterfeit Goods Act No. 37 of 1997, in Section 11.

Please see the reply to question 14 above.

South African judicial authorities are very hesitant to order persons to disclose, verbally or by way of a written statement, particular information (as opposed to making available, through discovery or in special ex parte situations, specific documents and evidence). Such a practice in civil proceedings is generally unconstitutional in terms of the Constitution of South Africa. In the criminal context, the Counterfeit Goods Act, 1997, contains certain provisions regarding disclosure of information by a defendant.

The relevant South African Courts are empowered to give relief in the form of an interdict (injunction) to stop infringement and to prevent infringing products to enter the market and the channels of commerce generally, by prohibiting the sale and/or offering for sale of such products. The Courts can also order the delivery up of infringing products; and in the case of trademark infringement, the removal of the infringing mark from all products, or where this is not possible, the delivery up of such products. See, e.g.: Section 65(3) Patents Act No. 57 of 1978; Section 34(3) Trade Marks Act No. 194 of 1993; Section 24(1) Copyright Act No. 98 of 1978; Section 35(3) Designs Act No. 195 of 1993.

The following provisions in South African intellectual property legislation are relevant to the subject-matter of this question: Patents Act No. 57 of 1978: - Section 4 Use by a Minister of State for public purposes (this Section has not to date been invoked). - Section 55 Compulsory licence in the case of a dependent patent (no record could be found of a successful application under this section). - Section 56 Compulsory licence in case of an abuse of patent rights (no record of successful application). - Section 78 The Minister (of Trade and Industry) may acquire an invention or a patent on behalf of the State (not yet invoked). - Section 79 The Minister of Defence may acquire, on behalf of the State, an invention or patent relating to armaments or defined in the Armaments Development and Production Act, 1968 (not yet invoked). - Section 15C of the Medicines and Related Substances Control Act 101 of 1965: the Minister of Health may determine that certain patent rights shall not apply to certain specified medicines (Act passed but not yet in force). Designs Act No. 195 of 1993: - Section 21 Compulsory licence in the case of an abuse of design rights (not yet invoked). Copyright Act No. 98 of 1978: - Section 45 The Minister (of Trade and Industry) may make regulations to prohibit or authorize the circulation, presentation or exhibition of certain works (not yet invoked). - Section 45A The Minister may make regulations regarding the reproduction or adaptation of certain artistic works (this section is not yet in operation).

In terms of the Patents Act, 1978 (as amended), the Trade Marks Act, 1993 (as amended), the Copyright Act, 1978 (as amended) and the Designs Act, 1993 (as amended), and the Rules governing procedure in the High Court and the Court of the Commissioner of Patents, these Courts are empowered, in cases of infringement, to order damages to be paid by the infringing party. All four of the Acts make provision for the award of damages (the normal basis being the actual patrimonial loss suffered) or, in lieu of damages, the payment of a reasonable royalty which would have been payable by a licensee for the use of the intellectual property right concerned. The Copyright Act also contains provisions (Section 24(3)) for the award of punitive damages. Damages may only be recovered by way of action. The Courts are also authorized to direct that an enquiry into damages is to be held for purposes of determining the amount of any damages or reasonable royalty to be paid.

The Courts have inherent power to grant an order as to costs in favour of the successful litigant such costs generally, being attorneys' fees and disbursements or expenses. These are invariably awarded, in terms of the Rules governing procedure in the Courts, to the successful litigant on a scale prescribed by tariff. In certain cases, to express its displeasure at the manner in which a litigant has conducted itself, the Court may award punitive legal costs on a higher scale.

The South African Patents Act, Trade Marks Act, Designs Act and Copyright Act provide for the following remedies to be ordered in proceedings for infringement, namely: - interdicts (injunctions); - damages (see the reply to question 20); - delivery-up of infringing products (see the reply to question 18 above). The aforesaid four intellectual property statutes do not expressly provide that the purpose of the order for delivery-up of infringing goods is for the goods to be destroyed.

South African Courts held that they have inherent jurisdiction, in special ex parte situations, to grant Anton Piller order for specific documents and evidence to be disclosed. In the criminal context, the Counterfeit Goods Act No. 37 of 1997 contains certain provisions regarding disclosure of information by a defendant, including information regarding the identity of the supplier or source of the counterfeit goods in question. This latter Act prescribes certain safeguards to prevent abuse of powers. See in this regard the provisions of Section 5 of the Counterfeit Goods Act. The Counterfeit Goods Act also provides for the granting of an Anton Piller-type order authorizing the search for an attachment of evidence, pending institution of civil proceedings. Such an order may be granted on an ex parte basis. See in this regard Section 11 of the Counterfeit Goods Act.

The Counterfeit Goods Act No. 37 of 1997 contains provisions granting certain exemptions to inspectors (as defined). Such an inspector or the State will be liable only in cases of gross negligence or bad faith. See in this regard Section 17.

No administrative provisional measures nor administrative procedures on the merits are available in South Africa in cases of infringement of intellectual property rights. The following provisional judicial measures are available in respect of all intellectual property rights identified in Article 1.2 of the TRIPS Agreement: (a) the granting of urgent, interim, injunctive relief in cases of intellectual property rights infringement where urgency exists. The authority to grant such relief stems from the inherent powers of the High Court and the Court of the Commissioner of Patents; (b) the search for and attachment of evidence, pending institution of civil proceedings, to preserve such evidence relating to infringement of intellectual property rights. This may be granted on an ex parte basis as provided for by Section 11 of the Counterfeit Goods Act, 1997.19 Similarly, in terms of the common law and the inherent powers and jurisdiction of the Courts, similar relief may be granted; (c) discovery of documents and tape recordings before the close of pleadings on good cause shown with the leave of the Court.