Judging IP Law

Posted on Dec 4, 2013

Judging IP Law

On Monday this week (2 December 2013) the President of the Republic appointed several new judges to the courts of South Africa including, most notably, Maria (Mabel) Jansen SC.

It is with pleasure, and no small measure of pride, that this Chair conveys its congratulations to Judge Jansen on being elevated to the South Gauteng High Court (formerly the Johannesburg High Court) and wishes her well.

Following the retirement of Judge Louis Harms from the Supreme Court of Appeal, this Chair (and many others) lamented the lack of IP expertise on the bench in South Africa. For this reason, the candidacy and eventual appointment of Judge Jansen is celebrated as a most expeditious move which can help to fill the lacuna left by Judge Harms.

Mabel Jansen practised at the Pretoria Bar as a specialist IP counsel for in excess of thirty years. She served her “apprenticeship” in the IP field by assisting, as junior counsel  many of the  leading IP senior counsel of the day including Cedric Puckrin SC and Philip Ginsberg SC.  She gained excellent experience under their tutelage and was involved in a high proportion of the leading IP cases during that period. She was frequently briefed as a junior counsel acting alone by the leading specialist IP attorneys firms. After her elevation to senior status she continued to act in leading IP cases and gained the reputation of being one of the foremost IP counsel. As an acting judge she handed down good judgments in IP cases that she adjudicated and made a worthwhile contribution to the field. She has also contributed to the learning in IP by publishing several high quality articles in authoritative legal journals. She is undoubtedly an experienced IP expert and is well placed to make a significant judicial impact on IP law and its future development.

However, it appears that the President was not advised about the desperate need for an IP-expert judge and Judge Jansen’s credentials in that regard. As all IP practitioners know, the heart of IP litigation beats not in the South Gauteng High Court but rather in the North Gauteng High Court (Pretoria), which is home to the Companies and Intellectual Property Commission and the exclusive seat of the court of the Commissioner of Patents.

Furthermore, as the Department of Trade and Industry were at pains to point out in the Draft National Policy on Intellectual Property Law, patent law lies at the core of innovation and commercialisation of IP in South Africa. Therefore, it makes perfect sense that the only IP-expert judge should be appointed to the only court in the land with jurisdiction over patent matters, i.e. the North Gauteng High Court.

Why then would Judge Jansen be appointed to the South instead of the North? The only conceivable answer is that the President, as advised by the Minister of Justice, overlooked the fact that patent matters are referred to the NGHC only. There can be no other rational explanation..

The fact that South Africa can only call on a single specialist IP judge is a constant trial to academics and practitioners alike. The circumstance that the highest specialty in law, namely patents, should be adjudicated by non-IP savvy judges, while a skilled and experienced IP expert sits on the bench not far from there, could clearly not have been the intention of the Minister of Justice.

Hopefully, the judiciary will amend this oversight.

Office of the Anton Mostert Chair of Intellectual Property Law

UPDATE: Following the publication of this article and the widespread support expressed in the comments below and elsewhere, Jansen J has been appointed to the North Gauteng High Court.



    In a recent posting by the Chair, reference was made to the well-deserved appointment to the Bench of Maria (Mabel) Jansen SC. This appointment was to the South Gauteng High Court though. Her competence, dedication and work ethic need not be described, they are well-known within the IP community. A problematic aspect, however, as pointed out by the Chair, is one of the jurisdiction of that court. Section 8 of the Patents Act is quite clear:
    “The Judge President of the Transvaal Provincial Division of the Supreme
    Court of South Africa shall from time to time designate one or more judges or
    acting judges of that Division as commissioner or commissioners of patents to
    exercise the powers and perform the duties conferred or imposed upon the
    commissioner by this Act.”
    It is thought that 85-90% of all IP cases are heard in Pretoria, and that roughly 70% of appeal cases derive from Pretoria. This may be due to the location of the Registrars of the various IP rights and the presence in Pretoria of several large IP firms. Be that as it may, whilst Judge Jansen will no doubt be able to make a significant contribution in relation to unlawful competition, trade mark and copyright law etc, it is in the field of patent law that her expertise would have the greatest impact. Accordingly, the view of the Chair that the Minister of Justice should rectify the matter soonest, is supported.

    Prof Wim Alberts
    University of Johannesburg

  2. I met Mabel many years ago and a wonderful friendship and professional association developed over the years. Mabel taught me so much-both about the law and about life. Mabel is a brilliant lawyer and a special human being. She will be an enormous asset to the Bench and it is significant that we will soon be reading brilliant judgments again from a Jansen. How proud must be her late Dad. Having said that, I was somewhat surprised at the Johannesburg appointment and would have respectfully thought a Pretoria appointment would have been more appropriate. Mabel, I wish you a rewarding time on the Bench.

  3. Mabel, I too wish you the very best and congratulate you on your appointment. You were very instrumental in my training during my time as a CA and I cannot thank you enough for the time and effort that you, together with Llewellyn Parker, put into beginning my training and journey in this profession. I, like Wim Alberts, must ponder at the reasoning behind your appointment to the SGHC. As we are all well aware the court of the Commissioner of Patents sits in the NGHC and as the IP community we would benefit most from your counsel and judgments in such matters in accordance with your vast patent litigation experience.

    Albeit that your juristic home is now Johannesburg I have no doubt that you will be involved in making significant contributions to the development of law in our country and, once again, wish you the very best on this interesting journey.

    Robyn Merry

  4. What a waste of an extremely valuable resource! The sooner Jansen J is appointed to the NGHC the better.

    Alan Lewis

  5. I was a patent litigation attorney at Adams and Adams and the senior one when I retired in 2003. In the 15 or so years before then, I used Mabel Jansen as ,first a junior counsel and later as a senior council in many of the patent litigation cases for which I was responsible in the Court of the Commissioner of Patents. That Court is in Pretoria ,in terms of the Patents Act.

    I congratulate Mabel Jansen on being elevated to the bench. She was a very thorough advocate in patent matters and I am sure she will be so as a judge. I am surprised that she has not been appointed to the North Gauteng Supreme Court because, there, she could continue to show her expertise in patent matters. She cannot make use of this special expertise in Johannesburg.

    David Sheppard