South African exporter Colors Fruit has brushed aside a statement from Sheehan Genetics that the battle for the ownership of the Sheehan grape varieties in South Africa has finally been resolved.
“On the contrary,” says Riaan van Wyk, CEO of Colors Fruit, “the big battleground 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.”
Van Wyk’s response follows a statement issued in London by Nicci Webb, general secretary of Munoz UK, which announced that the long-running court battle between Colors Fruit and Voor Groenberg Nurseries, alongside Olyvenboom Boerdery, Sheehan Genetics, Special New Fruit Licensing and Special New Fruit Licensing South Africa, is finally over.
“It 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 appellants Voor Groenberg and Olyvenboom and supported the case of Sheehan Genetics and SNFL that the Sheehan plant material belonged to Sheehan Genetics,” says the statement.
According to Van Wyk, none of the South African courts have decided that Sheehan Genetics 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”, says Van Wyk.
“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 US; facts that have not been disclosed by Sheehan Genetics and AMC to the South African courts as they should have been.”
In the Munoz UK statement, Duncan Macintyre of Sheehan Genetics said it has taken the company 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, is now looking forward to working with growers in South Africa to help sort out the disruption that has been caused by this action.”
In a previous statement well before the application for leave to appeal was heard in the Court of Appeal in Bloemfontein, Van Wyk had said that despite the outcome in Bloemfontein, the matter would only be finally settled during the arbitration hearings in London. “I am not at all despondent about the decision of the Supreme Court of Appeal not to grant us leave for appeal,” he said.
Colors Fruit has now also issued a separate statement to growers who have already planted the Sheehan varieties in South Africa, confirming its intention to continue fighting for the varieties during arbitration. The company told growers that the South African courts had not ruled on who the owners of the varieties were and who held the licensing rights for South Africa and Namibia. “The ruling of the three judges in Cape Town which has now been confirmed by the Appeal Court simply states that Colors Fruit could not show enough evidence that it was the owner of the varieties.”
Colors Fruit points out that it brought an urgent application against the respondents in August 2011. In these applications the applicant only gets one chance to put its facts before the court, with the respondent then allowed to file a response.
The proceedings thus far concerned only the original submissions. Colors Fruit told growers that its legal team had since found written proof which brings into question the evidence which Sheehan Genetics and AMC placed under oath before the South African courts. “We have pointed out the consequences of this to Sheehan Genetics, AMC and their attorneys in South Africa, who are bound by ethical rules and code of conduct for lawyers in South Africa,” it said.
Colors Fruit added that with these new documents in hand, it remained confident about the arbitration hearing in London, where it will be decided who the licence holder is for the varieties in South Africa and Namibia, as well as who the owner is of the Sheehan plant material already in South Africa.
Observers say that it will take some time before the dust settles on this case. Apart from deciding the ownership, there could be further legal proceedings resulting from the cost of the processes of importing, cleaning and multiplying the plant material in South Africa. Up until now, some 160ha have been planted, which will in future years result in more than 700,000 cartons of the grapes being available for marketing. With the sublicense that Colors Fruit held since the early 2000s cancelled unilaterally last year, there could be huge claims for damages in future.
Meanwhile, growers who may have been interested in planting the varieties will most likely adopt a wait-and-see attitude until the matter is decided, one way or another.
