THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case no: 1068/2020
In the matter between:

CIPLA VET (PTY) LTD

APPELLANT

and

MERIAL

FIRST RESPONDENT

MERIAL LTD

SECOND RESPONDENT

MERIAL SOUTH AFRICA (PTY) LTD
THIRD RESPONDENT

Neutral citation: Cipla Vet (Pty) Ltd v Merial and Others (1068/2020) [2022]
ZASCA 5 (11 January 2022)

Coram:
Mocumie, Molemela and Mokgohloa JJA and Kgoele and
Phatshoane AJJA

Heard:
15 November 2021

Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 09h45 on 11 January 2022.

Summary: Interpretation of orders – rule 42 or common law – clarification of
order – whether qualifying costs including costs of two counsel occasioned by an
amendment prior to hearing included in wasted costs order granted – appeal
dismissed – order of the full court confirmed.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Tolmay J, Louw
J and Hughes J sitting as court of appeal):

The appeal is dismissed with costs.

JUDGMENT

Kgoele AJA (Mocumie, Molemela and Mokgohloa JJA and Phatshoane AJA
concurring):

[1] This appeal concerns the interpretation of a cost order granted by Murphy
J sitting as the Court of the Commissioner of Patents on 24 July 2014. The central
issue is whether the wasted costs incurred as a result of an amendment sought and
made by the appellant, Cipla Vet (Pty) Ltd, to its pleaded case of invalidity before
the commencement of a trial in a patent infringement action, should include the
costs of two counsel and the qualifying fees of the expert witnesses of the
respondents, Merial, Merial LTD and Merial South Africa, in circumstances
where such costs were not expressly set out in para (ii) of Murphy J’s order.

[2] The following are common cause facts. The dispute between the parties
emanated from an action that was instituted by the respondents as plaintiffs,
against the appellant, as the defendant, for the infringement of  South African
Patent No 96/8057. The appellant pleaded that the patent was invalid and raised
several grounds to support this. Amongst these grounds, the issue of lack of
inventorship (obviousness) constituted the bulk of the appellant’s case. To this

end, extensive preparation and consultation with the respondents’ expert
witnesses had been undertaken by their counsel in preparation for the trial. The
appellant’s plea was amended several times, but more relevant to this appeal,
again on 9 January 2014, shortly before the trial; to abandon reliance on the
ground of obviousness. Subsequently, Murphy J granted the following order:
‘(i)
The action is dismissed with costs, such costs to include the costs of two counsel and
qualifying fees of Prof Barbour.
(ii)
The defendant is ordered to pay the wasted costs occasioned by its amendment of its
plea.’

[3] The respondents, with leave of the court of first instance, appealed to this
Court against para (i) of Murphy J’s order (the first appeal). Paragraph (ii) which
is the subject of the current appeal was not part of the  first appeal. Whilst the
respondents’ first appeal was still pending, a bill of costs (first bill) was prepared
and submitted by the respondents. The appellant opposed the taxation and
amongst others, claimed that the tender for wasted costs and the order by Murphy
J did not make provision for the recovery of the costs of two counsel and the costs
of expert witnesses. It took time  before the Companies and Intellectual Property
Commission (the CIPC) could appoint a taxing master because the appellant also
objected to the forum of taxation. The bill of costs was ultimately set down for
taxation for 1 to 4 November 2016.

[4] In the meantime, this Court on 1 April 2016, upheld the first appeal. It
ordered amongst others that the appellant (plaintiff) pay the costs, which costs
included the costs of two counsel and the qualifying fees of the respondents’
(defendants) expert witnesses. Needless to say, this costs order is of no relevance
to the current appeal. Suffice it to state that the respondents thereafter  prepared
a revised comprehensive bill of all costs and gave notice of their intention to tax
it on 7 November 2016. The appellant persisted with its initial objection, which
prompted the respondents to launch an application for the clarification,
alternatively, variation of the order made by Murphy J. The application served

before Baqwa J, who dismissed it and found that the order by Murphy J was
unambiguous. And  furthermore that, when read in context, the wasted costs did
not include the costs of two counsel and the qualifying fees of experts. However,
he subsequently granted the respondents leave to appeal to the full court of that
division (Tolmay J, Louw and Hughes JJ).

[5] The full court upheld the respondents’ appeal, set aside the order made by
Baqwa J and substituted it with the one in terms of which Murphy J’s order was
clarified to declare that the ‘defendants’ wasted costs shall include the cost of two
counsel and the qualifying fees of their expert witnesses’.

[6] In coming to its conclusion, the full court reasoned (paraphrased for
brevity): the relief sought by the respondents can either be granted in terms of
rule 42 of the Uniform Rules of Court or the common law but Baqwa J limited
his judgment to rule 42 only; Baqwa J erred in finding that Murphy J had no
intention to deal with the costs and wasted costs on the same basis; Baqwa J failed
to have regard to the context and wording of para 96 wherein Murphy J
recognised the complexity of the case which could not have been intended to be
limited to the appellant’s case; the nature of the claim and its complexity was a
given whether it applied to the wasted costs or the costs ultimately granted on
appeal on the merits to this Court; Baqwa J erred by finding that the application
could not succeed due to a long delay which elapsed before they sought relief.

[7] The current appeal is directed at the order made by the full court, special
leave to appeal having been granted by this Court on 5 November 2020.

[8] As indicated already, the crisp issue before us is whether the full court was
correct in clarifying or varying the order made by Murphy J to read that the
wasted costs order shall include the costs of two counsel and the qualifying fees
of the respondents’ expert witnesses.

[9] In terms of rule 42(1)(b) the court may rescind or vary an order or judgment
in which there is an ambiguity, or a patent error or omission. The same relief can
also be granted in terms of the common law if, on a proper interpretation, the
meaning assigned to the words in the order remain ‘obscure, ambiguous or
otherwise uncertain’, so as to give effect to its true intention, provided it does not
thereby alter the sense and substance of the judgment.1

[10] It is clear that the case of the respondents is based on an ambiguity and can
be claimed under both rule 42 and the common law. Their notice of motion also
reveals the fact that they were alive to this, and in particular, special reference
was made to the word ‘clarifying’ as the relief sought.

[11] Paragraph 96 of Murphy J’s judgment is key to the interpretation of the
order he granted. It reads:
‘In the result, while the defendant has not proven invalidity, the action stands to be dismissed
on the ground that the plaintiffs failed to discharge the onus to prove that the defendant’s
product, Fiprotec, included integers b) and d) of claim 1 of the patent and thus infringed. Costs
should follow the defendant’s success, including, by reason of the nature of the claim and its
complexity, the costs of two counsel. It was agreed between the parties that the expert witnesses
would be entitled to their qualifying fees. The defendant agreed that it was liable for the costs
occasioned by the amendment of the plea.’

[12] Before us, the appellant persisted with the argument that Murphy J’s order
was clear and unambiguous. In their opposition, the respondents maintained that,
properly and contextually interpreted, having regard to para 96 of the judgment
by Murphy J confirming the complexity of the matter including the agreement
between the parties that the expert witnesses would be entitled to their qualifying
fees, the order by the full court should be confirmed.

1 Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) at 306F-308A.

[13] The basic principles applicable to the interpretation of court orders are trite
and need no further emphasis.2 It appears from para 25 of the judgment of the full
court that it regarded Murphy J’s order to be ambiguous or otherwise uncertain.
This served as a basis for the clarification of the order by the full court to give
effect to Murphy J’s true intention. For the reasons that follow hereunder, the
findings of the full court  cannot be faulted.

[14] On a simple reading of Murphy J’s order it is clear that he recognised that
the nature and complexity of the matter justified the employment of two counsel.
And that there was an agreement between the parties regarding the qualifying fees
of expert witnesses. However, what remains manifestly obscure and uncertain is
that despite this recognition (the nature and complexity of the matter and the
agreement between the parties) he nevertheless omitted to expressly include these
costs as part of para (ii) of the order he made. This omission can not be of
assistance to the appellant for the following reasons. First, in this case there was
an agreement between the parties regarding the qualifying fees of their expert
witnesses. Second, para (ii) of the order of Murphy J cannot be read without
reference to para 96. This is so because para 96 is the only paragraph in the entire
judgment which makes reference to the determination of costs and therefore
serves as the basis of the costs orders Murphy J made in the two paragraphs.

[15]     Furthermore, the appellant does not suggests that the obviousness defence
it aborted just before trial, which necessitated the amendments it sought, was
anything other than ‘complex’. Ordinarily, this would justify costs occasioned by
the employment of two counsel. The appellant was constrained to argue that the
respondents did not incur those costs. If consideration is given to what Murphy J
noted in para 96 and the acceptance by the appellant that indeed expert witnesses
were considered necessary by both parties and were used in the preparation stage,

2 Commissioner, South African Revenue Service v United Manganese of Kalahari (Pty) Ltd  [2020] ZASCA 16;
2020 (4) SA 428 (SCA) para 8 with reference to Natal Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13; 2012 (4) SA 593 (SCA) para 18.

up to the stage where the amendment was sought and made, then ineluctably the
costs incurred occasioned by the preparation before the trial but for the late
abandonment of the defence cannot be simply wished away.  Axiomatically, such
costs remains wasted costs even in circumstances where the witnesses were not
ultimately called because the defence was abandoned on the eve of the trial.

[16]     Taking into consideration all of the aforementioned, the argument of the
appellant, that in the absence of a request by the parties to Murphy J to award the
costs of two counsel and the qualifying fees of experts, Murphy J was not entitled
to consider awarding these costs, was in my view correctly rejected by the full
court. The argument that qualifying fees are special costs and therefore require a
court order cannot assist the appellant either, as it is trite law that the payment of
qualifying fees can be granted on the basis of an order of court or consent by all
the parties (agreement).3 In my view, Murphy J was well within his powers to
recognise the agreement between the parties without further ado, more so that he
had already accepted that the matter was of a complex nature.

[17]     As far as the ‘order in two parts’ argument of the appellant is concerned,
which is to the effect that Murphy J had no intention to deal with the costs of suits
and the wasted costs on the same basis, I am of the view that the full court was
also correct to reject this argument. Indeed, there are two orders made by Murphy
J regarding costs. That is in sub-paras (i) and (ii) of the order. In my view, the
orders were separated for a good reason – to separate the costs of the main action
from those occasioned by the amendments (wasted costs). But for this, as already
indicated above, para 96 ought to be conjuctively read with para (ii) of the order
of Murphy J. The argument that the agreement relating to the qualifying fees of
expert witnesses related to the main action only and not to the wasted costs suffers

3Stauffer Chemical Co and Another v Safsan Marketing and Distribution Co (Pty) Ltd and Others 1987 (2) SA
331 (A) at 355B-C; Cassel and Benedick NNO and Another v Rheeder and Cohen NNO and Another 1991 (2) SA
846 (A) at 853; Transnet Ltd t/a Metrorail and Another  v Witter [2008] ZASCA 95; 2008 (6) SA 549 (SCA) para
15G-H.

the same fate. The same applies to the contention that Murphy J was never told
that counsel fees and the qualifying expert’s fee agreed upon were to be included
in the wasted costs.

[18]    For the sake of completeness there is a need to address the one remaining
ground which swayed Baqwa J’s mind apart from the interpretation of
Murphy J’s order: the respondents’ delay in bringing the application for
clarification and or variation. This is clearly a red herring with no bearing at all
on the central issue, on the simple basis that the respondents’ delay in bringing
the application was not inordinately long as there was an ambiguity as the full
court correctly found. I am of the view that the full court was correct to find that
the delay in launching the application was not unreasonable.

[19]      For the reasons given, the appeal ought to be dismissed.

[20]   Lastly, the issue of costs of this appeal. Although the respondents were
substantially successful in their appeal in this Court, they did not cross-appeal the
order  of the full court on the costs, namely costs of one counsel and not two as
they appeared before the full court and this Court. The matter is not complicated
as it is based on the same argument before the full court. In the high court, counsel
for the respondents accepted the view and ultimate decision of the full court that
the matter was not complicated. Therefore, the order of the full court stands.

[21]    In the result, the following order is made:
The appeal is dismissed with costs.

_____________________
A M KGOELE
ACTING JUDGE OF APPEAL

APPEARANCES

For the appellant:

E P van Rensburg
Instructed by:
Webber Wentzel, Pretoria
Symington
&
De
Kok,
Bloemfontein

For the respondent:
L Bowman SC (with A M Heystek
SC)
Instructed by:
DM Kisch Inc, Pretoria

Phatshoane Henney, Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

11 January 2022

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does not form
part of the judgment of the Supreme Court of Appeal.

Cipla Vet (Pty) Ltd v Merial and Others (1068/2020) [2022] ZASCA 5 (11 January
2022)
___________________________________________________________________

The Supreme Court of Appeal (the SCA) today dismissed the appeal by the appellant and
upheld the order of the Gauteng Division of the High Court, Pretoria.

The appeal concerned the interpretation of a cost order granted by Murphy J sitting as the Court
of the Commissioner of Patents on 24 July 2014.

The dispute between the parties arose from a bill of costs which was submitted by the
respondents for the costs granted by Murphy J in respect of the wasted costs tendered by the
appellant after they amended their plea on the eve of the trial. The appellant opposed the
taxation claiming that the tender for wasted costs and the order by Murphy J did not make
provision for the recovery of the costs of two counsel and the costs of expert witnesses. This
prompted the respondents to seek an order for the clarification of the order of Murphy J. The
application served before Baqwa J who dismissed the application. The application was further
heard by the full court after the respondents were granted leave by Baqwa J. The full court set
aside the dismissal of the application by Baqwa J and clarified Murphy J’s order accordingly.
The appeal was directed at this order and the crisp issue before the SCA was whether the full
court was correct in clarifying or varying the order made by Murphy J.

The SCA held that from a reading of the judgment of Murphy J it was clear that there was an
agreement between the parties regarding the qualifying fees of their expert witnesses. Second,
that there was no possibility that para (ii) of the order Murphy J granted could be read without
reference to para 96 of the judgment of Murphy J. This was so because that was the only para
dealing with the basis from which the costs order was made in the entire judgment. The SCA
found that on a grammatical reading of para 96, it revealed that Murphy J recognised that the
costs of two counsel were justified in this matter because of the nature of the claim and its
complexity.

The SCA concluded that the full court’s decision was sound, and consequently the conclusion
by the full court that Baqwa J failed to have proper regard to the context and the ordinary
wording of para 96 and should have done so in the circumstances of this case, could not be
faulted.