It is easy to overlook the remarks of the Supreme Court of Appeal regarding the law of inducing or abetting the commission of a delict which are hidden in the middle of the interesting patent judgment Cipla Medpro (Pty) Limited v Aventis Pharma SA  ZASCA 108 (26 July 2012). The factual dispute related to a challenge by Aventis to the application of Cipla to register a patent for a generic equivalent of one of Aventis’s drugs and Aventis’s claim for an interdict. For those interested in intellectual property, the judgment is a worthwhile read regarding patent validity.
From a more general point of view, the judgment deals with the delictual remedy of an inducement to commit a breach of contract or other obligation. Whilst the Patents Act prohibits infringing a patent by “making, using, exercising, disposing or offering to dispose of or importing the invention”, the evidence was that Cipla was importing the constituents of the drug and health workers locally mixed the contents of two vials to make the infringing product. Although unlawfulness known as ‘contributory infringement’ has widespread acceptance in patent law internationally there is no comparable provision in the South African Patents Act. The court therefore had to decide whether there was a remedy against intentionally aiding and abetting the infringement of the patent by importing and supplying the ingredients accompanied by instructions how to make up the infringing substance.
The court referred to McKenzie v van der Merwe 1917 AD 41 which held that a person who aids and abets another to commit a delict is delictually liable. The common law (Voet: 47, 2, 7) quaintly mentions the example of a person who lends a thief a ladder well-knowing what it is to be used for.
The court goes on to remark that the principle is not confined to inducing or aiding and abetting the commission of a delict. It was held in Atlas Organic Fertilizers (Pty) Limited v Pikkewyn Ghwano (Pty) Limited (1981 2 SA 173 T) that it is actionable for a person, intentionally and without lawful justification, to induce another to breach a contract.
In Esquire Electronics Limited v Executive Video (1986 2 SA 576 A), the court dealing with a trademark infringement relied on the common law rule that it is an actionable wrong, namely a delict, to filch the trade of another by imitating the name, mark or device by which that person has acquired a reputation for their goods. The delict is committed not only by the actual perpetrator but by those who instigate or aid or advise its perpetration. In a later case this principle was applied to infringement of a design registered under the Designs Act of 1993. Viskase Corporation v Columbit (Pty) Ltd & Another (1986 BP 432 CP) held that it is possible for the managing director of a company to infringe a patent on the grounds that he or she caused or procured the company to infringe the patents and therefore aided and abetted the infringement.
The Supreme Court of Appeal in Cipla found that it is plain on ordinary delictual principles that it is unlawful to incite or aid or abet the commission of a civil wrong. It does not matter whether it is a wrong at common law or whether it is a wrong created by a statute such as the Patents Act. Because Cipla’s product were to be imported and disposed of with the specific and sole intention to be used in a manner that would induce others to infringe the patent of Aventis, its conduct in doing so was unlawful.
The court also dealt with the interesting issue whether public interest is relevant. The Treatment Action Campaign had intervened as a friend of the court and contended that the distribution of the Cipla drug should not be prevented because it was an important cancer drug at a reasonable cost and the public was entitled under section 27(1) of the Constitution to access to heath care services and affordable medicines. The court found that although legislation has to be looked at in order to promote the spirit purport and objects of the Bill of Rights that does not open the door to changing the clear meaning of a statute where the constitutional validity of the statute is not challenged. The court does look at the broad public interest when weighing the balance of convenience in deciding whether to grant an interdict. An interdict can be refused on the ground of avoiding disservice to the public interest. Although the requirements for a interim interdict are flexible and the public interest can and ought to be taken into account in a proper case, on the facts before the court there was no reason not to grant the interdict. The fact that the public might be denied access to a generic drug during the lifetime of a patent is an ordinary consequence of patent protection and applies in all such cases. The court will not refuse an interdict only to frustrate the patentee’s lawful monopoly. In any event it was found on the facts that there was no material prejudice of that kind particularly as Aventis could supply sufficient of the drug to the market and its price was only 10 per cent more than the generic. An interdict was granted pending the outcome of an action for final relief.
The delictual remedy based on an inducement to breach a contract has not often been used because it is not well known and is not easy to prove. This remedy that has been part of our law nearly a 100 years since it was first discussed in McKenzie’s case is worth storing as part of any lawyer’s legal arsenal.