Zietsman v Electronic Media Network Ltd and Others

The appellant, David Wallace Zietsman, instituted an action in the Court of the Commissioner of Patents claiming damages for infringement of his South African patent no 92/9925 against several respondents, including Electronic Media Network Ltd, Multichoice Africa (Pty) Ltd, and Vodacom (Pty) Ltd. The respondents entered an appearance to defend but failed to file pleas timeously and were barred. They applied for removal of the bar, extension of time to plead, and orders directing the appellant to furnish security for costs under s 17(2) of the Patents Act 57 of 1978. The Commissioner of Patents ordered the appellant, an incola natural person, to furnish security for costs to all respondents and to pay the costs of the applications, including costs of two counsel. The appellant appealed against the security orders and associated costs.

The appeal succeeded in part. The order directing the appellant to furnish security to the first and second respondents and to pay their application costs was set aside. The appeal against the order directing the appellant to furnish security of R250 000 to the third respondent was dismissed. The costs order allowing two counsel for the third respondent was overturned. The appellant was ordered to pay the third respondent’s costs of appeal. The court a quo’s order was substituted accordingly.

The case clarifies the scope of s 17(2) of the Patents Act by confirming that an incola plaintiff may be ordered to furnish security for costs, while emphasising that such orders must be exercised with careful regard to constitutional rights of access to courts. It provides important guidance on the balancing exercise required when security for costs is sought against a natural person in patent litigation, and underscores the relevance of prospects of success and bona fides.