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Why SCA, ConCourt should not be amalgamated

Publish date: 04 November 2019
Issue Number: 848
Diary: IBA Legalbrief Africa
Category: South Africa

The proposal in favour of amalgamating the Constitutional Court and the SCA states that the top 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. However, the ‘most powerful’ argument against the proposal is that, if amalgamated, the new apex court would not sit en banc but in panels, which 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,’ says the Serjeant at the Bar columnist in an analysis on the News24 site. The latest split, he says, occurred in the recent judgment in Ascendis Animal Health (Pty) Ltd v Merck Sharpe Dohme Corporation and Others. The author notes that the judgment penned by Justice Sisi Khampepe cautioned against the idea that findings in revocation proceedings have a final, binding effect on a later action which – as with Ascendis – defences are raised that follow the alternative route. Khampepe, supported by four other justices, warned this might render the dual proceedings nugatory. The author cites the key passage of her judgment: ‘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.’

This approach stands in stark contrast to the approach adopted by the other five judges, whose views were set out by Justice Edwin Cameron: ‘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.’ The Serjeant at the Bar columnist says while this appears to be a judicial skirmish concerning a patent defence, 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 dreams up new legal points designed to win by another route?’ While accepting that the two judgments should be restricted to the issue of patent registration and protection, the author adds: ‘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.’

Ascendis Animal Health (Pty) Ltd v Merck Sharpe Dohme Corporation and Others

Full analysis on the News24 site