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Under the Commercial Court Practice Directive, intellectual property matters fall under the jurisdiction of the new Commercial Court as of October 2018.

The Commercial Court, administered as part of the Pretoria and Johannesburg High Courts, aim to promote efficient High Court litigation and to resolve disputes quickly, cheaply, fairly and with legal acuteness.

It was established 15 years ago but was never fully operational, and has now been revived. However, the court will only be established in the Pretoria and Johannesburg High Courts for now, with other High Courts to follow.

So what qualifies as a ‘Commercial Court case’?

Broadly, it’s a substantial case that has as its foundation a commercial transaction or commercial relationship, including IP cases.

Why is this development so promising for IP law?

The High Courts deal with all types of matters from family to divorce, labour matters to land evictions, which reduces the capacity of High Court judges to hear IP matters, especially given the backlog of matters at both courts.

The Commercial Court will not only speed up the hearing of matters and streamline the litigation process – including oppositions to trade mark applications – but also lead to a higher calibre of judges hearing IP-related matters, yielding better outcomes for litigants.

Consequently, there is likely to be a reduced number of cases needing to go on appeal, further reducing the strain on appellate courts.

Parties can lodge urgent cases based on commercial gravity which includes, for example, potential loss of income or profit of a company. (This was previously not a ground that could be relied upon.)

A case manager (who is a judge) will, depending on availability, be appointed to a commercial case in its early stage. This will help to accelerate the case by preventing parties from stalling later with administrative issues like late filings and submissions, or requests for change of dates.

Additionally, case management may facilitate settlement in more cases, because the case manager may be able to facilitate this between the parties. (Originally one of the objectives of a pre-trial conference, this has now become a formality, with attorneys ticking boxes instead of engaging in serious settlement discussions. The appointment of case managers is already proving to be effective in the courts, and is likely to continue to be used.

As a litigator in mainly IP-related ‘Commercial Court cases’, my opinion is that the benefits of Commercial Court are clear and that its revival should be welcomed.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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