Unión Europea
Observancia de los derechos de propiedad intelectual
3. Article 45 of the TRIPS Agreement provides that judicial authorities have the authority to order the infringer to pay the right holder’s expenses. By the same token, but in opposite circumstances, Article 48 of the TRIPS Agreement provides that the judicial authorities shall have the authority to order the applicant to pay the defendant’s expenses. In both cases these expenses may include "appropriate attorney’s fees". Could the Government of South Africa please clarify whether "expenses" would comprise the actual expenses of the victorious party (such as counsel’s and expert’s fees, travel, accommodation and the like)? Please explain.
Courts in South Africa have an inherent jurisdiction to grant an order as to costs in favour of a successful litigant, and such costs would normally include attorneys' fees and disbursements or expenses. The expenses, payment of which may be ordered by the Court, would be taxed expenses, i.e. expenses permitted in terms of the tariff applicable in the High Court. The sum so ordered to be paid will be based on what is allowed by the relevant High Court tariff; this may not include all actual expenses, but rather those which are reasonable and are permitted in the circumstances. Generally speaking, experts' fees will be recovered; however, travel and accommodation expenses will generally not.