THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 657/08

CLIPSAL AUSTRALIA (PTY) LTD
First Appellant
CLIPSAL SOUTH AFRICA (PTY) LTD
Second Appellant
SCHNEIDER ELECTRIC SOUTH AFRICA (PTY) LTD
Third Appellant

and

GAP DISTRIBUTORS (PTY) LTD
First Respondent
LEAR IMPORTS (PTY) LTD
Second Respondent
SHIMON BOTBOL
Third Respondent
REGISTRAR OF DESIGNS
Fourth Respondent
THE MINISTER OF THE DEPARTMENT OF TRADE
AND INDUSTRY
Fifth Respondent

Neutral citation:
Clipsal Australia v Gap Distributors (657/08) [2009] ZASCA 49
(25 May 2009)

Coram:
STREICHER ADP, CLOETE, SNYDERS JJA, HURT & TSHIQI
AJJA

Heard:
4 MAY 2009

Delivered:
25 MAY 2009

Summary:
Judgment
staying
judicial
proceedings
pending
the
determination of other judicial proceedings held to be
appealable.

_____________________________________________________________________

ORDER
_____________________________________________________________________

On appeal from: High Court Johannesburg (Joffe J sitting as court of first
instance).

The appeal succeeds with costs including the costs of two counsel.
The order of the court below is set aside and replaced with the
following order:
‘The application for a stay of the proceedings pending the determination
of the review application in case no 19081/08 in the High Court, Pretoria
is dismissed with costs.’
_____________________________________________________________________

JUDGMENT
_____________________________________________________________________

STREICHER ADP (CLOETE, SNYDERS JJA, HURT and TSHIQI AJJA
concurring)

[1] This is an appeal against a judgment by Joffe J in the High Court,
Johannesburg,1 in terms of which he stayed an application (‘the contempt
application’) by Clipsal Australia (Pty) Ltd (‘Clipsal Australia’), Clipsal
South Africa (Pty) Ltd (‘Clipsal SA’) and Schneider Electric South Africa
(Pty) Ltd (‘Schneider’) (hereinafter jointly referred to as the appellants)
against Gap Distributors (Pty) Ltd (‘Gap’), Lear Imports (Pty) Ltd
(‘Lear’) and Mr Shimon Botbol (‘Botbol’) (hereinafter jointly referred to
as the respondents). The application was for an order holding the

1 Clipsal Australia Pty Ltd and Others v Gap Distributors (Pty) Ltd and Others 2009 (3) SA 305 (W).

respondents guilty of contempt of court in that by importing and
disposing of certain single and double electrical sockets they disobeyed
an order of court. The appeal is with the leave of the court below.

[2] The order of court allegedly disobeyed is an order by this court, in
terms of which it replaced an order by the High Court, Johannesburg,
pursuant to an application (‘the first Clipsal application’) by Clipsal
Australia and Clipsal SA, as the proprietor and local exclusive licensee
respectively of registered design A96/0687, against Gap Distributors and
Trust Electrical Wholesalers both of which are firms owned by Gap.2 The
order interdicted Gap Distributors and Trust Electrical Wholesalers from
infringing registered design A96/0687 by making, importing, using or
disposing of certain Lear G-2000 series single and double electrical
sockets (‘Gap sockets’).

[3] Subsequent to the court order Botbol, who is the sole shareholder
and the managing director of Gap, caused Lear, which was a close
corporation at the time, to be converted into a company of which he is the
sole shareholder and director. Thereafter Lear applied to the High Court,
Pretoria (‘the Lear application’) for an order –
(i) (a) declaring that the word ‘original’ in s 14(1)(a)(ii) of the Designs
Act 195 of 1993 has a different meaning to the one ascribed to it
by this court in the first Clipsal application; alternatively

(b) declaring that s 14(1)(a) alternatively s 20(1) of the Designs Act
is inconsistent with the constitution; and
(ii) revoking Design A96/0697.

2 Clipsal Australia (Pty) Ltd and Another v Trust Electrical Wholesalers and Another 2009 (3) SA 292
(SCA).

[4] Prior to this court’s order against Gap Distributors and Trust
Electrical Wholesalers, Lear was not in the business of importing and
selling electrical sockets in South Africa but subsequent to the order it
started selling such sockets (‘Lear sockets’). This gave rise to the
contempt application. The appellants contend that the Lear sockets differ
only in immaterial respects from the Gap sockets and the sockets that are
the subject of the registered design; that Gap and Lear are but Botbol in
different guises and that the corporate veil between them should be
pierced. The respondents opposed the application and lodged a
counterclaim for the same relief as had been claimed in the Lear
application.

[5] Upon application by the appellants the Lear application was stayed
pending the final determination of the contempt application. Although it
was common cause in the first Clipsal application that the design had
been registered in respect of class 13 and although this court held in that
case that the design was new and original, the respondents, in the
contempt application, as in the Lear application, contend that the
registration of the design is invalid in that no class is reflected in the
register of designs and also in that the design is not new or original. They
contend that the design is not new in the sense in which this court
interpreted the requirement of originality and also in the sense contended
for by them. According to them the originality requirement adopted by
this court was adopted in breach of this court’s constitutional duty to
interpret legislation in a manner that promotes the spirit, purport and
object of the Bill of Rights. In the alternative, if this court’s interpretation
of the originality requirement is the only interpretation that the
requirement is reasonably capable of, they contend that the requirement is

unconstitutional because it unjustifiably restricts ‘constitutional rights to
freedom of expression and freedom of trade, occupation and profession’.

[6] In a yet further application instituted by Lear in the High Court,
Pretoria against the Registrar of Designs, Clipsal Australia and Schneider,
Lear applied for the review of the ‘registration of application A96/0687 in
Part A of the Register without a classification having been recorded in the
Register, in contravention of Section 15(1) of the Designs Act’. The
register referred to is the register of designs.

[7] At the hearing of the contempt application the respondents argued
in limine that it should be stayed pending the determination of the review
application. The appellants argued the contrary. The court below held
that, in light of the fact that it is not apparent from the register of designs
that the design was registered in class 13, the appellants’ entitlement to
the relief which they sought in the first Clipsal application was suspect
and that it had a discretion to stay the contempt application if it
considered it to be in the interests of justice to do so. It thereupon stayed
the contempt application pending the determination of the review
application on the basis that it was indeed in the interests of justice to do
so. An application by the appellants for leave to appeal against the
judgment was opposed by the respondents on the ground, among others,
that it was not a final judgment and therefore not appealable. In
dismissing this argument Joffe J said that the appellants were confronted
with a judgment which effectively precluded them from enforcing the
order they had in their favour, that registration of the design was due to
terminate on 22 July 2011, that the parties could still be litigating by that
time and that the effect of the order staying the determination of the
application was final in effect and thus appealable.

Is the order of the court below appealable?
[8] The order by the court below will only be appealable if it qualifies
as a ‘judgment or order’ within the meaning of those words in the context
of s 20(1) of the Supreme Court Act 59 of 1959 (see Zweni v Minister of
Law and Order 1993 (1) SA 523 (A) at 531B-C). Such a judgment or
order ‘is a decision which, as a general principle, has three attributes,
first, the decision must be final in effect and not susceptible of alteration
by the Court of first instance; second, it must be definitive of the rights of
the parties; and, third, it must have the effect of disposing of at least a
substantial portion of the relief claimed in the main proceedings’ (Zweni
at 532I-533B). The respondents submitted that the order by the court
below was merely a procedural order, was not final, did not grant definite
and distinct relief and did not dispose of a substantial portion of the relief
claimed in the contempt application.

[9] The judgment of the court below did not dispose of any relief
claimed in the contempt application. Once the review application has
finally been determined the appellants will be free to proceed with the
contempt application. But it did dispose of the relief claimed in the
application by the respondents for the stay of the contempt application
and it did so finally. That the court below intended the order staying the
review application to be final and not susceptible to amendment is
apparent from the order itself and is confirmed by Joffe J in his judgment
in respect of the application for leave to appeal (see SA Eagle
Versekeringsmaatskappy Bpk v Harford 1992 (2) SA 786 (A) at 792D-F).

[10] In Caroluskraal Farms (Edms) Bpk v Eerste Nasionale Bank van
Suider-Afrika Bpk; Red Head Boer Goat (Edms) Bpk v Eerste Nasionale

Bank van Suider-Afrika Bpk; Sleutelfontein (Edms) Bpk v Eerste
Nasionale Bank van Suider-Afrika Bpk 1994 (3) SA 407 (A) Eerste
Nasionale Bank applied for the liquidation of the appellants. The
appellants filed certificates in terms of s 21 of the Agricultural Credit Act
28 of 1966, contended that the certificates constituted a bar to the
liquidation proceedings and applied for the dismissal of the proceedings.
Berman J dismissed the application and on appeal the question arose
whether Berman J’s order was appealable. This court, per Hefer JA, held
that if regard was had to the relief claimed by the applicant for liquidation
the order clearly did not qualify as a ‘judgment or order’ but that seen
from the viewpoint of the appellants the position was different. In effect
they raised a special plea which if successful would have had the effect
that the liquidation applications could not succeed until such time as the
certificates had lapsed. That special defence had finally been determined
by Berman J.3 Hefer JA stated that the case was not distinguishable from
cases such as Labuschagne v Labuschagne; Labuschagne v Minister van
Justisie 1967 (2) SA 575 (A), Smit v Oosthuizen 1979 (3) SA 1079 (A)
and Constantia Insurance Co Ltd v Nohamba 1986 (3) SA 27 (A) in
which defences were raised by way of special pleas. In Labuschagne
Wessels JA said at 583D-F:
‘Die verligting wat eerste verweerder na aanleiding van die bewerings in sy spesiale
pleit aangevra het, is hom geweier. Indien die verhoor voortgesit sou gewees het sou
die Hof nie bevoeg gewees het om weer opnuut die vraag te oorweeg of die spesiale
pleit gehandhaaf behoort te word, al-dan nie. By die verdere verhoor en die
daaropvolgende uitspraak sou slegs die geskilpunte betreffende die meriete van eiser
se eis ter sprake gewees het. Die uitspraak waarteen eerste verweerder in hoër beroep
is, is dus, wat betref die Hof wat die uitspraak gegee het, `n finale en onherstelbare
afhandeling van `n selfstandige en afdoende verweer wat eerste verweerder geopper
het as grondslag vir die regshulp wat hy in die spesiale pleit aangevra het.’

3 At 414H-415B.

[11] Having considered these cases and having compared what was said
in Labuschagne with what was said in Heyman v Yorkshire Insurance Co
Ltd 1964 (1) SA 487 (A) where this court held that the dismissal of an
alternative defence which had been heard separately was not appealable,
Hefer JA said at 416C-D:
‘Wanneer dit dan – hetsy in `n aksie of in mosieverrigtinge – gaan om `n spesiale
verweer wat afsonderlik verhoor is, kom dit my logies voor om te let op die effek van
die uitspraak op die regshulp wat deur die verweerder of  respondent aangevra is. In
wese is die Verhoorhof in so `n geval gemoeid met `n versoek van die verweerder of
respondent om die eis van die hand te wys op grond van `n verweer wat niks te  make
het met die meriete van die saak nie. Dit is die regshulp wat op daardie stadium ter
sprake is.’
He held that Berman J was likewise only concerned with an issue
specially raised by the appellants, which issue had finally been disposed
of by Berman J and that the order made by him was therefore an order
which was appealable.4

[12] In Durban’s Water Wonderland (Pty) Ltd v Botha and Another
1999 (1) SA 982 (SCA) at 993B-D this court held that the dismissal of a
plea that a disclaimer notice at an amusement park exempted a defendant
from liability in respect of any injury or damage arising from the use of
the amenities at the park constituted a final judgment within the meaning
of s 83(b) of the Magistrates’ Court Act so as to render it appealable. It
held that the dismissal ‘had the effect of finally and irretrievably
disposing of a self-contained defence which existed independently of the
respondents’ case’ and that it was therefore appealable.

4 At 416D-F.

[13] Dealing with the appealability of an order refusing an application
for security Hefer JA in Shepstone & Wylie and Others v Geyser NO
1998 (3) SA 1036 at 1042D-E quoted, with approval, the following
passage in Ecker v Dean 1937 (SWA) 3 at 4:
‘(t)he usual test, ie whether the order finally disposes of portion of, or a certain phase
of, the issue between the parties does not really fit circumstances such as these, for the
claim for security was a separate and ancillary issue between the parties, collateral to
and not directly affecting the main dispute between the litigants . . . it is not a
procedural step in attack or defence at all but a measure of oblique relief sought by
one party against the other on grounds foreign to the main issue, ie the financial
situation of one litigant, this relief to be effective if at all only after judgment. The
order determining this collateral dispute is therefore final and definitive for at no later
stage in the proceedings can the applicant obtain the substance of what has been
refused to him. If he has been prejudiced by the order his prejudice is irremediable.’

[14] In the present matter the respondents claimed to be entitled to a
stay of the contempt application pending the determination of the review
application. They were in effect claiming that they had a special defence
to the action albeit a temporary defence, to the effect that the appellants
were not entitled to the relief claimed by them pending the review
application. For present purposes there is no real distinction between that
defence and the special defence raised in Carolus. It is true that in that
case it was claimed that the application for liquidation should be
dismissed because of the existence of the s 21 certificate but it would to
my mind have made no difference to the reasoning of Hefer JA had the
plea been that the application for liquidation should be stayed for as long
as the s 21 certificate remained valid.

[15] The respondents submitted that Joffe J did no more than to
postpone the contempt application and that an order postponing a matter

was not appealable.5 I do not agree. An order postponing a matter is
merely procedural in nature and not an order in respect of a defence
raised. As in Carolus the defence raised by the respondents was a self-
contained defence which was raised independently of the appellants’ case
and as stated above that defence was finally determined by the court
below. In so far as the other two attributes that an appealable ‘judgment
or order’, as a general principle should have, it should be borne in mind
that  it is the application for a stay of the contempt application and not the
contempt application itself which constitutes the main proceedings. The
question is whether the order by the court a quo is definitive of the rights
of the parties in respect of the application to stay the contempt
proceedings and whether it disposes of at least a substantial portion of the
relief claimed in that application.6 The answer to those two questions is
clearly in the affirmative. It follows that the order by the court below is
appealable.

Did the court below have a discretion to stay the contempt
proceedings?
[16] As stated above Joffe J held that he had a discretion to stay the
contempt application if he considered it to be in the interest of justice to
do so. In this regard he relied on cases dealing with the stay of
proceedings pending the payment of costs incurred in substantially
similar previous proceedings between substantially the same parties (see
Western Cape Housing Development Board and Another v Parker and
Another 2005 (1) SA 462 (C) at 465I-466C; and Herbstein and Van

5 Union Government (Minister of the Interior) and Registrar of Asiatics v Naidoo 1916 AD 50; and
Zweni at 535F-H.
6 Bookworks (Pty) Ltd v Greater Johannesburg Transitional Metropolitan Council and Another 1999
(4) SA 799 (W) at 804C-E.

Winsen The Civil Practice of the Supreme Court of South Africa 4 ed
(1997) p 254-261).

[17] It is clear that a court does have the power to stay civil proceedings
in certain circumstances eg to prevent an abuse of the process of the court
(see Corderoy v Union Government (Minister of Finance) 1918 AD 512
at 517) and if an action is already pending between the same parties on
the same cause of action (see Herbstein and Van Winsen op cit Chapter
10 p 245). However, Joffe J did not quote any authority to the effect that
a court has a general discretion to stay proceedings whenever it considers
it to be in the interests of justice to do so.

[18] In Abdulhay M Mayet Group (Pty) Ltd v Renasa Insurance Co Ltd
and Another 1999 (4) SA 1039 (T) at 1048H-I Van Dijkhorst J accepted
that he had a discretion to stay an application for an interdict restraining
the respondents from infringing a registered trade mark pending an
application in terms of s 14 of the Trade Marks Act 194 of 1993 on the
basis of honest concurrent use and/or other special circumstances. He
added that at best for the respondents it was a discretion that had to be
exercised sparingly and in exceptional circumstances. But Van
Dijkhorst J apparently based his acceptance of a discretion to do so on the
authority of Fisheries Development Corporation of SA Ltd v Jorgensen
and Another; Fisheries Development Corporation of SA Ltd v AWJ
Investments (Pty) Ltd and Others 1979 (3) SA 1331 (W) at 1340D-1341A
in which it was merely assumed that a court had jurisdiction to stay civil
proceedings on equitable grounds. In that case, dealing with a request that
an action should be stayed in the exercise of the court’s ‘inherent
discretion to avoid injustice and inequity’ Nicholas J said at 1340B-D:

‘The Courts do not however act on abstract ideas of justice and equity. They must act
on principle. CF the Western Assurance Co case supra at 275. And see the remarks of
Innes CJ in Kent v Transvaalsche Bank 1907 TS 765 at 773-774:
“(The appellant) also asked us to stay the proceedings on equitable grounds, urging
that we had an equitable jurisdiction under the insolvency law. The Court has again
and again had occasion to point out that it does not administer a system of equity, as
distinct from a system of law. Using the word ‘equity’ in its broad sense, we are
always desirous to administer equity; but we can only do so in accordance with the
principles of the Roman-Dutch law. If we cannot do so in accordance with those
principles, we cannot do so at all.”’

Nicholas J then proceeded to deal with the application on the assumption
that the court had the power to grant a stay of the proceedings on
equitable grounds and concluded that ‘even if it had the power to do so’ a
case had not been made out for such a stay.7

[19] As I shall presently indicate, I am of the view that if the court
below did have a discretion, on equitable grounds, to stay the contempt
application, the exercise of that discretion in favour of the respondents
was not justified and should be set aside. I shall, therefore, likewise
assume that the court below had such a discretion. I shall furthermore
assume in favour of the respondents that the discretion is a discretion in
the strict or narrow sense ie a discretion with which this court as a court
of appeal can interfere only if the court below exercised its discretion
capriciously or upon a wrong principle, or has not brought its unbiased
judgment to bear on the question or has not acted for substantial reasons
or materially misdirected itself.8

7 At 1341A.
8 Malan and Another v Law Society, Northern Provinces 2009 (1) SA 216 (SCA) para 13.

Should the court a quo’s order in the exercise of its discretion be
interfered with on appeal?
[20] The court below held that ‘eise van geregtigheid’ indicated that the
contempt application should be stayed pending the outcome of the review
application because if the contempt application ‘were to be determined
prior to the review application, enforcement of a court order could be
ordered in circumstances where the enforcer of the court order was not
entitled to the court order in the first instance’. The court would,
according to Joffe J, in the circumstances ‘knowingly compound the
problem’. He added that the determination of the review was important in
so far as issues of mala fides and wilfulness were concerned.9

[21] However, the outcome of the review application is irrelevant to the
question whether the respondents were acting in contempt of court. In
terms of the court order Gap Distributors and Trust Electrical
Wholesalers are interdicted from infringing registered design A96/0687.
That court order is a final order and has to be obeyed even if it is wrong
as is alleged by the respondents. Should the review application be
successful and the registration of the design be set aside, the interdict
would come to an end as there would no longer be a registered design,
but until that happens the interdict stands and has to be obeyed. As was
said by Herbstein J in Kotze v Kotze 1953 (2) SA 184 (C) at 187F-G:
‘The matter is one of public policy which requires that there shall be obedience to
orders of Court and that people should not be allowed to take the law into their own
hands.’

[22] In its judgment the court below itself refers to Culverwell v Beira
1992 (4) SA 490 (W) at 494A-E where Goldstein J said that orders of

9 At paras[25] and [26].

court have to be obeyed until set aside and that chaos may result if people
were allowed to defy court orders with impunity.10 It also refers  to the
judgment of Froneman J in Bezuidenhout v Patensie Sitrus Beherend Bpk
2001 (2) SA 224 (E) at 228F-230A where, relying on Culverwell and
Kotze, Froneman J said that an order of a court of law stands and must be
obeyed until set aside by a court of competent jurisdiction.11 Having done
so with apparent approval and having stated that it is obliged to apply the
judgment of this court, it is inexplicable how it could then, on the basis
that the judgment could be wrong, have considered the outcome of the
review application to be of any relevance to the contempt application.

[23] For these reasons I am satisfied that the court below misdirected
itself and did not act for substantial reasons. The following order is
therefore made:
The appeal succeeds with costs including the costs of two counsel.
The order of the court below is set aside and replaced with the
following order:
‘The application for a stay of the proceedings pending the determination
of the review application in case no 19081/08 in the High Court, Pretoria
is dismissed with costs.’

___________________________
P E STREICHER
ACTING DEPUTY PRESIDENT

10 At 312A-B para [21].
11 At para [21].

APPEARANCES:

For appellant:
L Bowman SC

B du Plessis

Instructed by:

Spoor & Fisher, Centurion

Matsepes, Bloemfontein

For respondent:
M M Jansen SC

Instructed by:

Adams & Adams, Johannesburg

Honey Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
25 May 2009
Status:
Immediate

CLIPSAL
AUSTRALIA
(PTY)
LTD
&
OTHERS
v
GAP
DISTRIBUTORS (PTY) LTD
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.

* * *

The Supreme Court of Appeal today upheld an appeal against an order in
the High Court, Johannesburg in terms of which the high court stayed an
application for an order holding the respondents guilty of contempt of court
in that by importing and disposing of certain electrical sockets they
disobeyed an order of court. In terms of the order the first respondent was
interdicted from infringing registered design A96/0687.

The high court stayed the contempt application pending an application for
the review of the registration of the design. The SCA held that the outcome
of the review application was of no relevance to the contempt application
as court orders had to be obeyed until set aside.