THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case no: 324/2013

In the matter between:

ADAMS & ADAMS ATTORNEYS

First Appellant
DELUXE HOLDINGS AG

Second Appellant
and
POINTER FASHION INTERNATIONAL CC       First Respondent
COMMISSIONER OF COMPANIES AND
INTELLECTUAL PROPERTY

Second Respondent
SHERIFF OF THE MAGISTRATES’ COURT,
PRETORIA SOUTH EAST

Third Respondent
Neutral citation: Adams & Adams v Pointer Fashion International
(324/2013) [2014] ZASCA 11 (19 March 2014)
Coram:
MTHIYANE DP, MHLANTLA and WALLIS JJA, VAN
ZYL and MOCUMIE AJJA.
Heard:
13 March 2014
Delivered: 19 March 2014
Summary: Application for leave to deliver a further affidavit –
application granted – order not appealable.

ORDER

On appeal from: North Gauteng High Court, Pretoria (Prinsloo J sitting
as court of first instance) it is ordered that:
The appeal is struck off the roll with costs, such costs to include those
consequent upon the employment of two counsel.

JUDGMENT

Wallis JA (Mthiyane DP, Mhlantla JA and Van Zyl and Mocumie
AJJA concurring)
[1] The underlying dispute between the parties relates to five trade
marks that are at present registered in the name of the second appellant,
Deluxe Holdings AG (Deluxe), a Swiss company. These trade marks
were formerly owned by and registered in the name of the first
respondent, Pointer Fashion International CC (Pointer). They were
purchased by Deluxe at a sale in execution held on 8 September 2011 at
the instance of the first appellant, Adams & Adams Attorneys (Adams &
Adams). The latter had obtained two judgments against Pointer, the one
dated 15 July 2005 in respect of the costs of the adjournment of an action
it had instituted against Pointer in the Magistrates’ Court, Pretoria, and
the other a default judgment for outstanding fees dated 16 October 2006
in the same court.

[2] On 27 February 2012 Pointer instituted application proceedings in
the North Gauteng High Court, Pretoria, to set aside the sale in execution;

cancel the registration of the trade marks in the name of Deluxe and have
its name restored to the register as the owner of the marks. It framed the
relief that it was seeking in its notice of motion in two parts. Part A was
interim relief aimed at preventing Deluxe from dealing with or disposing
of the marks pending the final outcome of the application. Part B was the
claim for final relief. The application for interim relief was set down for
hearing on 6 March 2012. In heads of argument furnished on that day
Pointer indicated that, over and above the grounds set out in its founding
affidavit, it intended to argue that the two judgments obtained by Adams
& Adams had become superannuated in terms of s 63 of the Magistrates’
Courts Act 32 of 1944. It intended, on this ground also, to contend that
the sale in execution fell to be set aside. The present appellants objected
to the point being raised in this fashion and the application was then
adjourned sine die in terms of an interim arrangement incorporated in a
court order.

[3] Thereafter Pointer launched an application purporting to be in
terms of rule 6(5)(e) of the High Court Rules, but in fact in terms of rule
6(11),1 seeking leave to deliver a supplementary affidavit raising the new
point ‘as evidence in the main application’. That application was opposed
by Adams & Adams and Deluxe, although their reasons for doing so are
obscure. Courts are reluctant to prevent parties from raising fresh legal
issues provided that does not cause irreparable prejudice to the other
litigants. And so it proved, because, when the application came before
Prinsloo J in the North Gauteng High Court, leave was granted to deliver
the further affidavit. Ancillary orders were granted to permit further
answering and replying affidavits to be delivered in relation to the issues

1 Rule 6(5)(e) deals with the delivery of replying affidavits in conventional application proceedings
whereas the application was an interlocutory application incidental to pending proceedings.

arising from the admission of further evidence. Thereafter leave to appeal
to this Court was sought and granted by Prinsloo J.

[4] That recitation of the history of the litigation, and the description of
what was before Prinsloo J and the orders that he made, makes it clear
that he was dealing with an interlocutory matter, namely, whether to
permit the new legal point to be raised by Pointer. The order was purely
procedural in nature and disposed of no issue in the litigation between the
parties. In the circumstances on well-established authority the order was
not appealable.2

[5] The reason the appellants thought otherwise lies in the course that
the argument before Prinsloo J took. Although no such point was taken in
the answering affidavit in the application before him, in the answering
affidavit in the main application, Deluxe submitted that the court had no
jurisdiction over it because it was and is a peregrinus and could not be
made subject to the court’s jurisdiction in the absence of an attachment ad
confirmandam jurisdictionem of property owned by it and situated within
the area of the court’s jurisdiction. At the commencement of the
proceedings before Prinsloo J counsel representing Adams & Adams and
Deluxe submitted that the court should first decide this point of
jurisdiction. The learned judge went on to do so and held that he had
jurisdiction. This ruling was not embodied in the order, but it was argued

2 The line of cases starts with Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 531B-D and
runs through Jacobs and Others v Baumann NO and Others 2009 (5) SA 432 (SCA) para 9; Health
Professions Council of South Africa and Another v Emergency Medical Supplies and Training CC t/a
EMS 2010 (6) SA 469 (SCA) para 15. The topic is fully discussed in D E van Loggerenberg (General
editor) Erasmus Superior Court Practice (looseleaf) A1-42 to A1-46 (as at service 41, 2013). There is
no need to add further to the burden of annotations.

in this court3 that it formed the necessary underpinning for the order to
permit the additional affidavit to be delivered.

[6] That approach was fundamentally misconceived. The court did not
have before it the application in respect of which the new evidence was
being tendered, whether that was at that stage in two parts, seeking both
an interim interdict and final relief, or was confined to the latter.4 It was
only seized of the interlocutory application to admit the further affidavit.
In regard to that application it clearly had jurisdiction over Deluxe. After
all Deluxe had entered appearance and caused an answering affidavit to
be delivered in the main application in which the point of jurisdiction had
been taken. Deluxe had joined with Adams & Adams in objecting to the
new legal point being raised informally and thereby compelled Pointer, if
it wished to pursue the point, to bring the application that it had. Deluxe
then opposed that application. For the purposes of the interlocutory
application it had clearly submitted to the jurisdiction of the court and the
court therefore had personal jurisdiction over it for the purposes of
deciding whether to admit the additional affidavit.

[7] I do not mean by this to say that Deluxe has submitted to the
jurisdiction of the high court for the purposes of the main application.
That is a matter to be debated when the merits are adjudicated upon in
due course, in accordance with the law as laid down in several decisions
of this Court.5 All that I am saying, and that ought to be obvious, is that in
regard to the interlocutory proceedings Deluxe had joined issue and
submitted itself to the jurisdiction of the court.

3 By leading counsel who did not appear in the court below.
4 In this court counsel confirmed that Pointer is only pursuing the main relief and not the application
for an interdict.
5 Hay Management Consultants (Pty) Ltd v P3 Management Consultants (Pty) Ltd 2005 (2) SA 522
(SCA); MV Alina II (no 2): Transnet Ltd v Owner of MV Alina II 2011 (6) SA 206 (SCA) para 14.

[8] The result of this misconception as to what matters were before the
court below was that argument was addressed and a judgment delivered
on some difficult issues dealing with the nature of a registered trade mark
and whether it is for the purposes of jurisdiction to be treated as an
immovable or, to adopt the expression used in one case, 6 akin to an
immovable. If it is, then it was argued (and accepted in this court) that an
attachment ad confirmandam jurisdictionem of property of the registered
user of the trade mark is unnecessary in order for the court to exercise
personal jurisdiction over the registered user.7 But all this is by the by.
That issue was not before the court below and in relation to the only issue
that it had to decide it plainly had jurisdiction over Deluxe.

[9] In those circumstances what is before us is an appeal against a
purely interlocutory order. That is not appealable. For the sake of clarity
this judgement neither endorses nor dissents from the views expressed by
the court below on the topic of jurisdiction and the need for an attachment
of Deluxe’s property. They do not in any way bind the court that will in
due course, if this litigation continues, be seized of the main application.

[10] The appeal is struck off the roll with costs, such costs to include
those consequent upon the employment of two counsel.

M J D WALLIS
JUDGE OF APPEAL

6 Oilwell (Pty) Ltd v Protec International Ltd & others 2011 (4) SA 394 (SCA) para 13.
7 Jackaman and Others v Arkell 1953 (3) SA 31 (T) at 34; Manna v Lotter and Another 2007 (4) SA
315 (C) paras 7-10.

Appearances

For appellant:
C E Puckrin SC (with him L G Kilmartin)
Instructed by: Adams & Adams Attorneys,
Pretoria;
Honey Attorneys, Bloemfontein

For respondent:

C A Da Silva SC (with him D W Gess)

Instructed by:

Springer-Nel Attorneys, Cape Town;

Van der Merwe & Sorour, Bloemfontein.