Weltevrede Nursery (Pty) Ltd v Keith Kirsten’s (Pty) Ltd and Another

Keith Kirsten’s (Pty) Ltd claimed rights as holder of a plant breeder’s right for a canna variety registered as ‘Phasion’ (marketed as ‘Tropicanna’). Weltevrede Nursery (Pty) Ltd exported rhizomes of the same variety, leading to infringement proceedings. Weltevrede admitted infringement conditionally but challenged the validity of the registration and counterclaimed for termination of the plant breeder’s right. The registration had been applied for by Morgenzon Estates, not the plaintiff, and lacked a proper description of the variety. Evidence further showed that the plaintiff neither discovered nor developed the variety, and that the plant had been known and cultivated publicly long before the application date.

Appeal upheld. The judgment of the court a quo was set aside, and the plaintiff’s claim for infringement failed. The plant breeder’s right was effectively held to be invalid.

The case is a leading South African authority on plant breeders’ rights, underscoring strict compliance with statutory requirements for registration, breeder status, novelty, and accurate description. It affirms that registered intellectual property rights are defined by the register itself and highlights the importance of public notice and administrative integrity in IP regimes.