South Africa: Court Procedure

A recent Gauteng High Court judgment confirms that mandatory court-annexed mediation cannot be avoided simply because parties are hostile toward each other or believe the process will be futile. The court ordered an uncooperative defendant to participate in mediation, establishing that only exceptional circumstances will excuse parties from the process introduced by the Directive and Protocol.

A critical analysis of the South African High Court's decision in Soft Coffee v Nonnas Pasta reveals a judgment that correctly applied the notional use doctrine and dismissed an improperly pleaded prior use defence, yet failed to distinguish between different forms of trade mark infringement. The court's conflation of sections 34(1)(a) and (b) resulted in an overbroad interdict that extends beyond what the legal reasoning can support, particularly regarding the respondent's company name versus product brand

South African prescription law is more nuanced than a simple three-year countdown. The critical question is not when an event occurred, but when a claimant possessed sufficient knowledge to recognize they may have a claim—a determination that depends heavily on the specific facts and circumstances of each case.