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South Africa: Supreme Court of Appeal refuse Colors leave to appeal

The long running court battle between Colors Fruit and Voor Groenberg Nurseries, alongside Olyvenbloom Boerdery, Sheehan Genetics LLC , Special New Fruit Licensing Ltd and Special New Fruit Licensing South Africa Pty. Ltd, finally ended on Friday 2 November when the Supreme Court of Appeal in Bloemfontein refused Colors leave to appeal against the 23 August Western Cape Full Bench Judgement which gave a judgement in favour of the appelants Voor Groenberg, and Olyvenbloom and supported the case of Sheehan Genetics LLC and SNFL that the Sheehan plant material belonged to Sheehan Genetics LLC..

When it started the action Colors claimed to own all the plant material of the Sheehan varieties in South Africa. Voor Groenberg, together with Sheehan Genetics LLC and the other defendants, argued, amongst other things, that this position was wrong and further that the intellectual property rights in the varieties were owned by Sheehan Genetics LLC. By dismissing Colors application for leave to appeal the Supreme Court has affirmed the position that the Court of Appeal took that Sheehan Genetics LLC owns the plant material in South Africa.

Mr Duncan Macintyre of Sheehan Genetics LLC commented; “It has taken us since July last year to sort out what has been shown to be a groundless, and costly distraction to the development of these great varieties in South Africa. Sheehan, through its agent Special New Fruit Licensing South Africa Pty Ltd, is now looking forward to working with growers in South Africa to help sort out the disruption that has been caused by this action.”

Colors has been ordered to pay Voor Groenberg Nurseries, and the other victorious parties’ costs of the original hearing and of the appeal.”

Riaan van Wyk, CEO of Colors Fruit, responded; “I am not at all despondent about the decision of the Supreme Court of Appeal not to grant us leave for appeal. The big battle ground still lies ahead in London during arbitration proceedings which are set to take place early in 2013.  This arbitration will bring clarity and finality to the matter.”

According to Mr. van Wyk, none of the South African courts have decided that Sheehan Genetics LLC is the owner of the plant material, nor have they decided that Colors is not the rightful licensee in South Africa and Namibia.  “This latter point was not even brought before the South African courts”, van Wyk points out.

“We remain confident about our chances of success in London, especially in the face of new facts concerning the case that have come to light in the USA; facts that have not been disclosed by Sheehan Genetics LLC and AMC to the South African courts as they should have been.”

Publication date: 11/12/2012


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