The argument against the amalgamation of the Constitutional and Supreme Court of Appeal may have additional traction in that, within a year, the former has split twice 5:5 on the relevant law, writes Serjeant at the Bar.
Recently the question of amalgamating the
Constitutional and Supreme Court of Appeal was raised again, some 20 years
after it had been debated and the idea rejected.
One of the primary reasons for raising the
question again is that the Constitutional Court now enjoys an expanded
jurisdiction, making it the highest court for all legal disputes and not simply
constitutional questions which was its original remit.
In turn, this has created an exponentially
increased workload; in particular a flood of applications for leave to appeal which
the court has determined have all to be decided by the full compliment of 11
judges. Arguably the most powerful argument against the proposal is that, if
amalgamated, the new apex court, given its expanded compliment of justices,
would not sit en banc but in panels. In turn, this could result in different
panels arriving at different decisions on controversial legal questions.
This argument may have additional traction
in that, within a year, the Constitutional Court has split twice 5:5 on the
relevant law. True, the design was to have 11 judges sit in each case so that
an even split does not take place but, twice this has not happened and the
relevant law remains uncertain.
The latest split which left the decision
against which the appeal was lodged intact involves patent law although the
implications of the judgments hold wider implications. The case involved Merck which
asserted before a judge sitting as the Commissioner of Patents, that its patent
had been infringed.
The contesting party, Ascendis, wished to
amend its defence against Merck. Merck argued and the commissioner agreed that
the case was res judicata – not subject to further challenge in judicial
proceedings. The commissioner found that it was pointless to allow Ascendis to
add defences against the damages claim. These defences would inevitably fail,
since the Supreme Court of Appeal (SCA) had already ruled Merck’s patent to be valid
in that there was no merit in an argument about the novelty of that which had
Ascendis at no stage disputed the novelty
issue at the SCA and hence the patent was found to be valid. So all that
remained, the commissioner ruled, was to assess what damages Merck had suffered.
Ascendis contended that it had amended its pleading to raise new defences: lack
of utility and no inventive step taken by Merck.
The Patents Act creates two-track
proceedings in a dispute regarding a patent. There is a procedure to gain an
order of revocation, where a challenger to the patent (Ascendis in this case)
initiates proceedings to remove a patent from the statutory register. The
second concerns the case where a patent-holder vindicates the rights the act
grants to protect the patent. The judgment penned by Justice Sisi Khampepe
cautioned against the idea that findings in revocation proceedings have final,
binding effect on a later action in which, as with Ascendis defences are raised
that follow the alternative route.
Justice Khampepe, supported by four other
justices, warned this might render the dual proceedings nugatory. The key
passage of her judgment is the following: “Absent a final and decisive
decision made by a competent court or tribunal, this cause of action cannot be
said to be res judicata. As I have stated, each of the three grounds in
question, inutility, lack of novelty and obviousness, require different facts
to be proven and thus constitute different causes of action. Thus, while the
litigation may be between the same parties, the remaining elements of res
judicata namely: (i) the same cause of action and (ii) a final decision on the
merits by a competent court have not been satisfied.”
Contrast this to the approach adopted by
the other five judges, whose views were set out by Justice Edwin Cameron as
follows: “Why does Ascendis now want to introduce new defences against
Merck’s infringement claim? It is because it previously tried and failed to
invalidate Merck’s patent on the ground of novelty. In those proceedings,
Ascendis, as the first judgment rightly finds, abandoned its obviousness (or non-inventiveness)
defence when it argued, unsuccessfully, for revocation. The question is this.
Should the courts countenance multiple-stage defences in patent disputes –
first-bite at revocation, second-bite when sued for infringement? I think not.
This is not how enforcement of patents should most fairly and efficiently work.”
At first blush this appears to be a
judicial skirmish concerning a patent defence. But the implications run much
further – the judgments give an entire scope to the important doctrine of res
judicata. When in short is a party which has a judgment in its favour entitled to
call a halt to legal proceedings between itself and the same adversary when the
latter’s legal team dream up new legal points designed to win by another route?
Doubtless it will be suggested that the two judgments should be restricted to
the issue of patent registration and protection.
But it is easy to think of similar cases in
other areas of law in which the question of res judicata becomes dispositive of
the case. This five all draw is hardly the stuff of legal certainty. One can
only imagine the uncertainty if we changed from one en banc court to having an
apex court which sat in panels.
Oh, and by the way, Justice Cameron’s
approach is to be preferred, particularly in a country where many people refuse
to accept an adverse legal answer.
– Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.
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