Union européenne

Afrique du Sud

Moyens de faire respecter les DPI

1. In terms of Article 41 of the TRIPS Agreement, Members are obliged to ensure: (a) that enforcement procedures are available under their laws so as to permit effective action against any act of infringement of intellectual property rights; and (b) that such procedures include expeditious remedies; but provided (c) that such procedures provide safeguards against abuse. Thus, in relation to (c) in particular, safeguards are built into the procedural obligations specified in the TRIPS Agreement. For example, Article 41.4 provides that parties to proceedings shall have an opportunity for review by a judicial authority of at least the legal aspects of initial judicial decisions on the merits of a case. It is the understanding of the European Communities and their Member States that an interlocutory injunction (or, as it is known in South African law, a temporary interdict) ordered by the High Court is neither reviewable nor appealable. - Is our understanding of the current legal position in South Africa correct? Please explain. - If so, and in the absence then of the opportunity of a review or an appeal, what safeguards are built into the procedures available against the abuse by an applicant of proceedings for a temporary interdict?

Article 41 of the TRIPS Agreement requires, in Article 41.4, that there shall be an opportunity for review, inter alia, in respect of at least the legal aspects of initial judicial decisions on the merits of a case. In reply to the specific question as formulated, it is confirmed that 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, inter alia, 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.