Suisse

Afrique du Sud

Moyens de faire respecter les DPI

1. Please explain whether international treaties which contain detailed provisions addressed to the (judicial) authorities and not to the State itself are considered as self-executing in your system? If not, when there is a divergence between the intellectual property legislation/practices and the international agreement in your country, does the latter automatically prevail? If not, please explain the means allowing your country to fulfil the international obligations? Please cite the relevant texts or jurisprudence.

Section 231 of the Constitution of the Republic of South Africa, provides: "(1) The negotiating and signing of all international agreements is the responsibility of the national executive. "(2) An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3). "(3) An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time. "(4) Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament. "(5) The Republic is bound by international agreements which were binding on the Republic when this Constitution took effect."