Kimberly-Clark of South Africa (Pty) Ltd formerly Carlton Paper of South Africa (Pty) Ltd v Proctor & Gamble SA (Pty) Ltd (A488/96) [1998] ZASCA 39 (27 May 1998)

2 PLEWMAN JA

The amendment to patent specifications in terms of Sections 50 and 51 of the Patents Act No 57 of 1978 ("the Act") has become a contentious matter. This appeal concerns amendments to the complete specification of South African Letters Patent No 77/1894 in respect of an invention entitled "Disposable Diaper with Elastically Constricted Crotch Section" ("the patent"). Reports of patent cases show that the patent (the term of which has now finally expired) has formed the subject matter of litigation in at least eight other proceedings and, so the Court was informed, there is still litigation in progress which will be affected by the decision in this appeal. An observation that the fields of human endeavour in which ingenuity may be applied in pursuit of financial gain seem infinitely wide may perhaps be excused.

By a notice filed on the afternoon preceding the hearing the respondent withdrew its opposition to the appeal and abandoned its

3 cross-appeal. An explanation of the origin and the form of the

proceedings is called for. In 1995 the appellant, who had taken

assignment of the patent, instituted an infringement action against the

respondent. It also launched an application for the grant of a

temporary interdict against the respondent. Respondent entered an

appearance to defend the action, opposed the application and went

onto the offensive by applying on motion for the setting aside of three

amendments which had been made to the patent in the years 1982 and

1993.

The interdict application and the application to set aside the

amendments were argued before Preiss J, sitting as Commissioner of

Patents, on 12 May 1995. In so far as the application to set aside the

amendments was concerned, he with the consent of the parties and

after what is described in the judgment as a "brief argument" referred

the application to the full court. The reason for this order was that

there had been a number of conflicting decisions in the

4 Commissioner's Court dealing with the basis of applications for

setting aside amendments of patent specifications - as indeed there have. The application to set aside the amendments was then argued before a full court on 11 June 1996. The decision of the full court is reported as Proctor and Gamble SA (Pty) Ltd v Carlton Paper of South Africa (Pty) Ltd and Another 1997 (3) SA 292 (T). (The appellant has since that hearing changed its name.) The court set aside all three amendments.

On 2 December 1996 leave to appeal to this Court was granted by the full court (which had sat as a court of first instance). In so ordering, the court also granted leave to the respondent to cross-appeal. The cross-appeal concerned an attempt by respondent to lead further evidence in the application to set aside the amendments. No order was made thereon. Consequently no appeal lay - a situation which was merely the final episode in a comedy of errors which it is happily unnecessary to discuss. The "cross-appeal" has been

5 abandoned as has been pointed out and no more need be said of it.

It remains only to state that the full court's order has not been rendered academic by the settlement of the litigation between the parties which led the respondent to withdraw its opposition to the appeal. The respondent has not abandoned the order in its favour. It has merely withdrawn its opposition to the appeal. The court's order, since it affects the state of the specification (in effect as of 1982), is an order in rem. It will also have a bearing on other litigation still pending.

The order of the court a quo covers what are referred to in its judgment as "the first", "the second" and "the third" amendments to the patent specification. The main question in contention is the proper interpretation of s 51(10) of the Act, but it is necessary to set out the full sequence of events. These are as follows. The patent was applied for by Kimberly-Clark Corporation of the United States of America as a convention application on 17 December 1976. Priority

6 was claimed on the basis of a United States patent application made

on 29 March 1976. The patent was granted on 5 July 1978 under the

provisions of the repealed Patents Act No 37 of 1952. In terms of s

3(l)(a) of the present Act (which came into force on 1 January 1979)

the validity of a patent for all purposes is to be determined under the

provisions of the 1952 Act but any amendments to the complete

specification sought after January 1979 had to be made in terms of the

present Act.

On 19 February 1982 Kimberly-Clark Corporation applied in terms of s 51 of the Act, which deals with amendments to patent specifications, for the first amendment, giving as its reason for so doing a desire "to limit and clarify the scope of the claims". This amendment was allowed by the Registrar of Patents ("the registrar") and the amendment was entered in the register.

On 15 November 1990 the patent was assigned to appellant. On 6 December 1993 appellant applied (simultaneously) for the

7 second and third amendments. The normal term of the patent had by

this time already expired but had been extended for five years by an order of the Commissioner of Patents. (Details of this order are not given in the record but the order would have been made in terms of s 39 of the 1952 Act on the grounds that the patentee had not derived adequate remuneration. The extended term expired on 29 March 1998.) The second application was purportedly made in terms of s 50 of the Act which deals with the correction of clerical errors and the amendment of documents for the amending of which no express provision is otherwise made in the Act. The third amendment (an amendment in precisely the same terms as the first amendment) was sought again in terms of s 51 of the Act. The reasons for this double-barrelled procedure is made evident by the reasons for the third amendment given in the appropriate form - Patents Form 13. I quote

the substance thereof.

"The Patentee hereby applies afresh to amend the complete specification of the above patent as shown on the attached relevant

8

pages of that specification. The full reasons for making the amendment are as follows:-

The claims of the complete specification of the patent were amended in terms of an application to amend made by the then patentee on 19 February 1982 ('the earlier application to amend'). A copy of the earlier application to amend is annexed hereto marked 'A'.

In the earlier application to amend, the full reasons were given by the then patentee as being to 'limit and clarify the scope of the claims'.

The present patentee believes that, in the light of recent judgments of the Commissioner of Patents, the earlier application to amend could be open to attack by a third party on the basis that the reasons given were not sufficiently 'full', with the result that the earlier amendment could be set aside by the Commissioner.

The patentee has thus today, on form P4, withdrawn the earlier application to amend, and has abandoned the allowance thereof and now hereby applies for the allowance of precisely the same amendment as was allowed following the earlier application to amend.

The nature of the earlier application to amend and the present application is by way of a limitation of the claims of the patent.

The full reasons for making both the earlier and the present applications are to avoid prior art which has come to the patentee's attention and, more especially, the disclosures contained in the specification of United States patent 3,860,003 granted to Buell.

9

A copy of the specification of the Buell patent, which was published on 14 January 1975, is annexed hereto marked 'B'."

The application for the second amendment was made on Patents Form 4. The substance is as follows:

"In terms of section 50(1)(b) of the Act and/or regulation 39 of the Patent Regulations, the applicant hereby withdraws an application to amend the complete specification of the patent made on 19 February 1982; abandons the allowance of that application to amend; and requests the Registrar to endorse the earlier application to amend, and any entry which may have been made in the register, accordingly."

Both applications were granted. With what validity is discussed later. They were also entered in the register. Both were, even if incorrectly made, not a nullity. See Rollamatic Engineering (Pty) Limited v President Steel Corporation Pty Limited 1973 BP 437 at 440 A-G.

The court (correctly) observed with regard to the second amendment that the registrar was functus officio after he had granted the first amendment and was therefore not entitled to grant the second. It also pointed out that the grant of the second amendment would have

10 had the effect of amending the patent (by restoring it to its original

form) which could only be done under s 51. It then held that the

second amendment could be set aside in terms of s 51(10). I shall

return to this question presently. As far the third and first

amendments were concerned (to take them in the order in which they

must in the circumstances be dealt with) the court held that the

commissioner in exercising a discretion in terms of s 51(10) of the

Act was entitled to set aside an amendment to a patent where there has

been non-compliance with the requirements of ss (1) of the section.

The court then, after an examination of the Buell patent which is

referred to in the "reasons" for the third amendment, concluded that

the reasons given for both amendments were inadequate. On this

basis it set them aside under a jurisdiction founded upon s 51(10). It

is necessary to quote s 50(l)(b) and 51 (as a whole).

S 50(1 )(b) is in the following terms:

"50 Correction of clerical errors and amendment of documents

(1) The registrar or commissioner may authorize -

11

(a)

(b) the amendment otherwise of any document for the amending of which no express provision is made in this Act."

What is contemplated is corrections to documents other than patent specifications. Specifications are dealt with in s 51. S 51 reads:

"51. Amendment of specification.- (1) An applicant for

a patent or a patentee may at any time apply in the prescribed manner to the registrar for the amendment of either the relevant provisional specification or the relevant complete specification, and shall in making such application, set out the nature of the proposed amendment and furnish his full reasons therefor.

(2) An application for the amendment of a specification
that is open to public inspection shall, except in the case of an
application so open in terms of section 43 (3), be advertised in the
prescribed manner.

(3) (a) Any person may oppose such application for
amendment within the prescribed time and in the prescribed
manner.

(b) Such opposition to such application for amendment shall be dealt with by the commissioner in the prescribed manner, and the commissioner shall determine whether and on what conditions, if any, the amendment ought to be allowed.

(4) Where the acceptance of a specification concerned has
not been published in terms of section 42 or there is no opposition
in terms of subsection (3)(a) of this section, the registrar may
determine whether and on which conditions, if any, the amendment
ought to be allowed.

12

5. An amendment of a provisional specification shall be allowed if it is by way of correction, including correction of an obvious mistake, and no amendment of a provisional specification shall be allowed if it would introduce new matter or matter not in substance disclosed in the specification sought to be amended.

6. No amendment of a complete specification which becomes open to public inspection after the publication of the acceptance of the specification in terms of section 42, whether before or after it so becomes open to public inspection, shall be allowed if -

 

5. the effect of the amendment would be to introduce new matter or matter not in substance disclosed in the specification before amendment; or

6. the specification as amended would include any claim not fairly based on matter disclosed in the specification before amendment.

 

5. No amendment of a complete specification which has become open to public inspection after the publication of the acceptance of the specification in terms of section 42 shall be allowed if the specification as amended would include any claim not wholly within the scope of a claim included in the specification before amendment.

6. Where an amendment may not be allowed by reason of the prohibition imposed by subsection (6) (a), but it describes matter which may fairly be associated with the matter described in the specification as framed and the acceptance of the specification concerned has not been published in terms of section 42, the new matter may be introduced by way of a supplementary disclosure attached to the specification and dated with the date on which the application for amendment is made: Provided that in determining

13

the validity of the patent under this Act, regard shall be had to the date of the supplementary disclosure.

(9) Where any proceedings relating to an application for a
patent or a patent are pending in any court, an application for the
amendment of the relevant specification shall be made to that
court, which may deal with such application for amendment as it
thinks At but subject to the provisions of subsections (5), (6) and
(7), or may stay such pending proceedings and remit such
application for amendment to the registrar to be dealt with in
accordance with subsections (2), (3) and (4).

(10) Any amendment of a specification made in conflict
with the provisions of this section, other than an amendment
allowed by the commissioner or a court, may be set aside by the
commissioner at any time on application made to him."

[I have quoted the Act as it currently reads. It was amended both in 1983, by Act 67 of 1983 and in 1986, by Act 44 of 1986. The amendments so made, do not affect the question in issue in this appeal.]

For present purposes attention must be directed to the fact that the section deals with the amendment of specifications which have not become open to public inspection, and to specifications which have become open to public inspection. Only the latter need be advertised. Although ss (3)(a) is not in terms so restricted the public can, in the

14 nature of things, only become involved as objectors in the latter case.

Where opposition is entered it is the Commissioner and not the

registrar who determines whether the amendment is to be allowed.

Amendments allowed by the Commissioner may not be set aside in

terms of s 51(10). What the registrar deals with is unopposed

amendments and amendments at a stage when the public is not

involved (ss ( 4)). Attention must also be directed to ss (5), (6) and

(7) which repeat or preserve the limitations found in the earlier Act 9

of 1916 (s 47(8)) and Act 37 of 1952 (s 36(3)) as to the permissible

scope of amendments. In short, no amendments may be made which

would (i) introduce new matter or matter not in substance disclosed

in the specification before amendment and (ii) no claim not fairly

based on matter disclosed in the specification before amendment or

(iii) include a claim not wholly within the scope of a claim in the

patent before amendment. These limitations are fundamental to the

scheme of the Act as I will later show. They are designed to ensure

15 that a patentee may not obtain a priority date (that is the date from

which a claim is to have effect) to which he is not entitled and may

never broaden his monopoly after his invention has been made known

to the public by public disclosure. Any amendment allowed in breach

of these provisions would, it is clear, be an amendment made in

conflict with the provisions of the section. What is new in the section

as compared with the repealed Act, is ss (10).

It will be convenient first to dispose of the second amendment.

Clearly an application once granted cannot be retrospectively

withdrawn. But the real reason why this amendment must be set aside

is that it is simply not competent in terms of s 50(l)(b). What was

sought was not an amendment of a document for the amending of

which no (other) express provision is made in the Act and the

amendment (whatever its other shortcomings) fell to be set aside for

that reason. It did not, because of what it sought to achieve, become

an application for an amendment in terms of s 51. It could not

16 therefore be brought within the special jurisdiction created by ss (10)

which relates only to amendments in conflict with the provisions of

that section. The result is perhaps illustrative of a question to be dealt

with later, namely, how does the Commissioner or the court on an

appeal deal with the obvious irregularity which occurred? The answer

would seem to be by way of common law review. The further

question would be how this would affect the third amendment. Since

the third amendment was sought only on the basis that the second had

eliminated the first, it too will have been irregularly allowed. As it is

what was sought to be achieved by the use of the second barrel was

the resurrection of what after the second amendment was hoped

would have been blown away by the first barrel - that is the

withdrawal of the first amendment. In truth, the second application

did not seek to amend the specification at all - it sought to amend the

reasons given for the first amendment. There is no provision for this

under s 51. But whatever the position in this regard, the third

17 amendment enjoyed no separate life. It was wholly dependent on the

second amendment.

However, neither amendment need be further discussed because counsel for the appellant (recognising the difficulties) abandoned the appeal against that part of the court's order which set aside the second and third amendments. In the light of that abandonment that part of the order of the court a quo must stand.

This opens the way for a consideration of the court a quo's interpretation of s 51 and in particular s 51(10). The court, as I have stated, held that non compliance with ss(l), (which stipulates that in making an application in the prescribed manner the application must set out the nature of the proposed amendment and furnish full reasons therefor), could be raised and, if the reasons were found wanting, the Commissioner may set aside the amendment. This is contrary to the conclusion reached in the three decisions referred to at 295F-296E of the reported decision all of which held, in essence, that the reasons

18 and the fullness or paucity thereof were matters for the registrar and

that s 51(10) did not create a jurisdiction for the reconsideration of

such reasons after the grant of an amendment. The underlying

rationale of these decisions is that s 51(10) is concerned with the

substance of the amendments and not with procedural requirements.

In effect what these decisions come down to is a conclusion that s

51(10) constitutes a self contained means of control to ensure that

amendments as such comply with the substantive requirements of the

section.

Two reasons are given by the court a quo for rejecting this

approach. The first is that such a conclusion ignores the "clear

wording of s 51(10)" (page 296 E-G). This is based, in the main, on

the fact that the section refers to "any amendment". It was reasoned

that "any" being an "indefinite term which includes all of the things

to which it relates" therefore included objections to procedural steps

taken in the past. This proposition in my view, focuses undue

19 attention on the word "any" and ignores the dominant phrase in the

sub-section namely "in conflict with the provisions of this section".

The apparent width introduced by the word "any" of itself takes one

nowhere. One must examine the section to determine what

amendments would conflict with the provisions thereof. As I have

already pointed out the only amendments which could be said to do

so would be amendments going beyond the stated substantive

limitations.

The court a quo next sought support for its views in examples

offered by Van Dijkhorst J in Brelko CC and Others v Hans-Otto

Schwarze and Others 1991 BP 100, which are said to illustrate

"startling" consequences. This fares no better. It will assist if I repeat

the learned judge's concerns. He said (at 105 B-F):

"[T]his would mean that the following would not be reviewable

under section 51(10):

- an application which is wholly in conflict with the

prescribed manner or even the grant of an amendment on

the oral application of an applicant

an application where the nature of the amendment is not

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stated but left to the discretion of the Registrar

• where the application was not advertised at all or advertised wholly in conflict with the prescribed manner eg in the Lowveld Advertiser only

• where opposition is dealt with in material conflict with the prescribed manner.

Some of these examples may be a little far-fetched, but none is inconceivable."

The answer to these illustrations is that, in each instance (and accepting for this purpose that the somewhat extreme situations envisaged could arise), the remedy would be a common law review. In the context of the Act as a whole these examples do not have startling consequences. To illustrate with reference to the first. If a patent application is made "wholly in conflict with the prescribed manner" or is "granted on an oral application", the public has no statutory remedy similar to s 51(10). The only available remedy is a common law review. Such procedural defects do not provide a ground for revocation. The question can then be fairly posed whether procedural defects in a patent application are of less consequence than

21

those in an application for amendment. The answer is obviously no.

What would arise would not be whether the amendment was "in conflict with the section" but whether the conduct of the registrar had been regular. This is how this Court viewed a comparable problem in the case of Amalgamated Packaging Industries Ltd v Hutt and Another 1975 (4) SA 943 (A) at 951D-952B. Indeed one may speculate that it was the Hutt case coupled with a judicial suggestion in Aktie Bolaget Astra Apotekarnes Kemiska Fabriker v Willows Francis Pharmaceutical Products Ltd 1959 (4) SA 1 (T) at 7 D that the reasons called for in s 36(1) of the 1952 Act need go no further than to describe the object as, for example, "a disclaimer" that induced the legislature to add s (10) and to add the word "full" to amplify the requirement for reasons.

There are two other suggestions which have been said, in the cases which adopted the approach favoured by the court a quo, to support the court's view. In Brelko CC and Another (supra) at 106

22

C-D it is said that under the Act, in contrast to the 1952 Act, "it is no

longer possible to oppose the grant of an application for a patent". S 51 it was suggested "affords an objector the right and a means to oppose". This proposition is, with respect to the learned judge, not easy to fathom. S 23 of the 1952 Act permitted opposition to the grant of a patent on a patent application on certain stated grounds but on no others. These limitations also applied in regard to revocation in terms of s 43. The grounds of revocation in the present Act are similarly exhaustively defined. Inadequate reasons for an amendment was not such a ground under s 23 (or s 43) of the 1952 Act and is not now under s 61 a ground for invalidating a patent.

It was this conclusion which gave rise to the comment in the case of Man-Dirk (Pty) Ltd v Yao-Chang Lin and Others 1993 BP 479, that if the approach in the Brelko case were to be adopted, what would in effect have happened is that a further ground of invalidity would have been introduced into the Act contrary to the provisions of

23

s 61. The court a quo said of this proposition (at 296 H-I) that the

setting aside of an amendment does not result in revocation of the

patent. The court also observed that "[the] patentee is not precluded

from seeking a further amendment". There are two comments to be

made. The first is that to state that the setting aside of an amendment

is not the same as revoking a patent, while literally correct, is simply

a distinction without a difference. Amendments are invariably sought

in order to avoid an actual or apprehended attack on the validity of the

patent. See Willows Francis Pharmaceutical Products Ltd v

Aktiebolaget Astra Apotekarnes Kemiska Fabrieker 1960 (3) SA 726

(A) at p 737 CD. Indeed counsel was unable to suggest any other

circumstance which would lead to an application to amend. The

interest of an objector in an amendment lies in the effect of the

amendment upon the monopoly, in other words, whether the patentee

by amending becomes entitled to a broader monopoly. That is an

objective question and involves a comparison between the unamended

24 and amended specification. It must also be said that it is the universal

practice of courts when upholding a revocation application is to allow

the patentee to apply, within a determined time, for a suitable

amendment so as to validate the otherwise invalid patent. Revocation

applications may be made over the entire life of the patent and if the

court a quo's order were to be upheld so too would any attack on the

patentee's reasons for an amendment with the consequential result

that the patent would be rendered invalid. This is the objectionable

feature and this is why allowing such a procedure would in effect

create an additional ground of invalidity not sanctioned by s 61.

In the Brelko case (supra) it was also said that the reasons for

the amendment given by the applicant "will be of great importance

when the possible objector has to decide whether to oppose or not.

Whether the reasons given are cursory or full may make all the

difference in such decision". While I do not suggest that the reasons

can be other than the true reasons or that they need not be given in

25 full, the above statement is not a realistic reflection of what the basis

for opposition to an amendment will be in practice. Patent

specifications are technical documents of importance only to persons

involved in the particular art or science involved. The decision to

oppose an amendment will almost certainly be made only after a study

of the specification itself and (almost invariably in practice) a study

of all publicly available literature in the field world wide. This is

normally obtained by way of a patent search. The applicant's reasons

play no role in this procedure and a dispute about the adequacy or

otherwise of the reasons will not assist the true purpose of the patent

system and (otherwise possibly than causing delays) the purposes of

the objector. The purpose of this analysis of how objections are

pursued is made merely to assist in determining whether in the

scheme of the Act those reasons are (or are not) to be viewed as

matters for the registrar and not the subject of a jurisdiction under

s 51(10). The question is whether the subsection is to be so

26

interpreted as to allow of a patent being attacked (which patent was

at the time either not open to public inspection or the amendment of which had been advertised for opposition and not opposed) some (say) twenty years after the amendment was entered in the patent register, on a ground of attack not sanctioned by s 61. Such an attack if successful would only render the patent open to a renewed attack and revocation on grounds acknowledged by the patentee at the time of the amendment and therefore corrected by the very amendment to be set aside.

The court a quo's approach to the question was a linguistic (or mainly a linguistic) one. There is of course complimentary approach to the work of statutory interpretation. This is to examine the statute in the light of its context. Context here is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. It is the matter of the statute, its apparent scope and purpose, and, within limits its background. See

27 Jaga v Dönges NO and Another 1950 (4) SA 653 (A) at p 662 G - 664

H. As Schreiner JA points out in this instructive passage the result

should always be the same whichever of the two lines of approach is

adopted, since, in the end, the object to be attained is unquestionably

the ascertainment of the meaning of the language in its context. Each

approach Schreiner JA observes has its own peculiar dangers. See

also G E Trade Mark [1973] RPC 297 at p 324.

However, if in this case the work of interpretation is undertaken

in accordance with the second line of approach one arrives again at

the conclusion that the court a quo's interpretation is incorrect. This

judgment cannot be converted into a treatise on patent law and the

purpose, scope and background of the statute must be stated in rather

broad terms. It is an act which, like its predecessors, is intended to

give effect to the accepted basic theory of the patent system which is

followed throughout the developed world. From a statement of that

basic theory the more critical provisions of the Act can be identified.

28

The theory is that it is desirable in the public interest that industrial

techniques should be improved. In order to encourage improvement and the disclosure of improvements a person making such improvement is, upon disclosure thereof, given a monopoly for a defined period after which the improvement passes into the public domain. A fuller statement of this principle is found in the case of Lewis Berger and Sons Ltd v Svenska Ojeslageri Aktiebolaget 1959 (3) SA 604 (T) at 612 A-C. A further essential feature of the theory is that the patent register should not be cluttered with patents which are not valid. Patentees are accordingly encouraged to review their patents in the light of new information which comes to hand and, if this is called for, to amend them.

The Act thus establishes a register of patents to give public access to the disclosure made. The core (for present purposes) of the Act is found in Chapter V s 25-43. The Act here follows the pattern of its predecessors. What is to be protected is an invention - that is

29 broadly stated an improvement in technology which is new, useful

and inventive (or non-obvious). In accordance with modem

international practice the standard set is publicly available knowledge.

The test of whether anything is patentable is found in s 25. In terms

of that section what is patentable is measured against "the state of the

art immediately before the priority date of any claim (in the

specification)". The notion "state of the art" includes any matter

which is available to the public by written or oral description in South

Africa or elsewhere, the object being to prevent the creation of

monopoly rights in respect of machines or processes already in the

public domain. This shows why the lot of a draftsman of patent

specifications, and particularly patent claims, is (in common with

W S Gilbert's policeman) not a happy one.

It is against this setting that the mechanism for the revocation

of patents in s 61 and the provision for the amendment of patents in

s 51 should be seen. One may appropriately ask what purpose would

30

disputes relating to the registrar's conduct (no doubt relevant for other

purposes) serve to ensure that disclosures of technological improvements are properly made and monopolies are limited to valid patents which claim no more than is strictly justifiable. Procedural problems are not only different in character they are also subject to different forms of control. S 89 is a significant pointer to this. That section allows condonation of and the correction of irregularities in procedure.

Seen in the light of this background s 51(10) must be interpreted as introducing a procedure comparable in some respects to an appeal and in others to a review jurisdiction to ensure that the essential limits to the amplification of the disclosure made and alterations to the boundaries of patent claims are observed. It is an internal mechanism in the section to ensure that substantive amendments going beyond those permitted are not entered on the register. I therefore hold that the court a quo erred and that its

31 interpretation of the section is incorrect. The adequacy of the reasons

provided to the registrar with applications for amendments in terms

of s 51 is for the registrar to decide and no jurisdiction to review them

after allowance is created by s 51(10). If the registrar's acceptance of

the reasons is to be attacked, such an attack would have to be made by

a common law review and, if so attacked such attack could normally

only be made within a reasonable time. Stoner v SA Railways and

Harbours 1933 TPD 265 at 272-3. Wolgroeiers Afslaers v

Municipaliteit van Kaapstad 1978 (1) SA 13 (A) p 38H-39D;

Vervoerkommissie en 'n Ander 1986 (2) SA 57 (A). To the extent to which the court's order set aside the first amendment it must itself be set aside . Counsel did not seek an order for costs. The order I make is:

The appeal succeeds. The order of the court a quo setting aside the amendments to South African Letters Patent No 77/1894 on the

32

application made on 19 February 1982 is set aside and the registrar is

ordered to restore to the register the entry reflecting the amendment then made.

C PLEWMAN JA CONCUR:

EKSTEEN JA) HARMS JA) MARAIS JA)

SCHUTZ JA)