Adams & Adams Attorneys v Pointer Fashion International CC

The second appellant, Deluxe Holdings AG, a Swiss company, purchased five trade marks at a sale in execution held on 8 September 2011. These trade marks were formerly owned by the first respondent, Pointer Fashion International CC. The sale was conducted at the instance of the first appellant, Adams & Adams Attorneys, who had obtained two judgments against Pointer: one dated 15 July 2005 for costs of adjournment and another default judgment dated 16 October 2006 for outstanding fees. On 27 February 2012, Pointer instituted application proceedings in the North Gauteng High Court to set aside the sale in execution, cancel the registration of the trade marks in Deluxe's name, and restore Pointer as the registered owner. During proceedings, Pointer sought to raise a new legal issue that the judgments had become superannuated in terms of s 63 of the Magistrates' Courts Act 32 of 1944. When objection was raised to this being argued informally, Pointer brought an application in terms of rule 6(11) seeking leave to deliver a supplementary affidavit raising this new point. Prinsloo J in the North Gauteng High Court granted the application, allowing the further affidavit and ancillary orders for further answering and replying affidavits. Leave to appeal to the Supreme Court of Appeal was granted.

• Whether an order granting leave to deliver a further affidavit in application proceedings is appealable
• Whether the order made by Prinsloo J was purely procedural and interlocutory in nature
• Whether the court had jurisdiction over Deluxe, a peregrinus, for purposes of the interlocutory application

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

An order granting leave to deliver a further affidavit in application proceedings is a purely procedural and interlocutory order that does not dispose of any issue in the litigation and is therefore not appealable. When a peregrinus party enters appearance, delivers affidavits, and opposes an interlocutory application, it submits to the court's jurisdiction for purposes of that interlocutory application, regardless of whether it has submitted to jurisdiction for the main application. Submission to jurisdiction must be assessed separately for interlocutory proceedings versus main proceedings.

The Court expressly declined to endorse or dissent from the views expressed by the court below on the topic of jurisdiction over a peregrinus and the need for attachment ad confirmandam jurisdictionem in relation to registered trade marks. The Court noted that difficult issues were argued regarding the nature of a registered trade mark and whether it should be treated as immovable property or akin to immovable property for jurisdictional purposes, and whether such characterization would obviate the need for attachment. However, the Court observed that these issues were not properly before the court below and would not bind the court that would in due course, if the litigation continues, be seized of the main application. The Court emphasized that its judgment neither endorsed nor dissented from those views.

This case reinforces the well-established principle in South African law that purely interlocutory and procedural orders are not appealable. It provides guidance on distinguishing between interlocutory applications and substantive proceedings for purposes of determining appealability. The judgment also clarifies that submission to jurisdiction must be assessed separately for interlocutory applications versus main applications - a party that opposes an interlocutory application submits to jurisdiction for that limited purpose without necessarily submitting to jurisdiction for the main proceedings. The case is significant for emphasizing the importance of correctly identifying what matters are actually before a court, and the consequences of arguing issues that are not properly before the court. It serves as a reminder to practitioners to carefully consider whether an order is appealable before noting an appeal.