Zietsman v Electronic Media Network Limited and Another

The appellant, David Wallace Zietsman, instituted patent infringement proceedings in 2004 against Electronic Media Network Ltd, Multichoice Africa (Pty) Ltd and others, alleging infringement of his South African patent. The respondents sought security for costs under Uniform Rule 47(1). Their first application for security was granted by the Commissioner of Patents but overturned on appeal by the Supreme Court of Appeal in 2008, primarily because the respondents had not disclosed their defence or prospects of success. Thereafter, the respondents made a second request and application for security for costs, this time tendering new evidence regarding their defence and prospects of success, including evidence relating to a later application under s 51(10) of the Patents Act challenging the validity of the patent. The Commissioner of Patents ordered the appellant to furnish security of R100 000. The appellant appealed, contending that the second application was barred by res judicata or issue estoppel.

The appeal was dismissed with costs, and the order requiring the appellant to furnish security for costs in the amount of R100 000 remained in force.

The case clarifies the application of res judicata and issue estoppel in interlocutory proceedings, particularly applications for security for costs. It confirms that a prior refusal of security does not necessarily preclude a subsequent application if the earlier refusal amounted to absolution from the instance and new evidence is presented. The judgment is significant for patent litigation and civil procedure, illustrating the discretionary and evidence-driven nature of security for costs applications.