Compulsory Patent Licensing and the South African Patents Act: Navigating the Challenges and Exploring Reform Options

by | Feb 14, 2026 | SAIPLJ, SAIPLJ 2025

Compulsory Patent Licensing and the South African Patents Act: Navigating the Challenges and Exploring Reform Options

Author JAD Peÿper

ISSN: 2521-2591
Affiliations: Director in Legal Services, University of South Africa
Source: South African Intellectual Property Law Journal, 2025, p. 73-91
https://doi.org/10.47348/SAIPL/v13/i1a4

Abstract

This article critically examines the practical failure of South Africa’s compulsory patent licensing regime to address abuses of patent rights under s 56 of the Patents Act 57 of 1978. Despite the statutory grounds for relief, compulsory licensing has remained largely inaccessible in practice, with every reported application since 1978 proving unsuccessful. The article identifies the key structural and procedural barriers that deter or defeat applicants, including excessive evidentiary burdens on ‘interested persons’, the absence of working-disclosure obligations on patentees, the treatment of essential commercial information as confidential, and the rigid requirement that all matters be heard before the Commissioner of Patents. It further shows how judicial interpretation has raised the threshold for relief by requiring proof of public harm even where the Patents Act appears to provide per se grounds of abuse, thereby weakening compulsory licensing as a corrective tool. The article ultimately proposes targeted legislative and procedural reforms aimed at restoring compulsory patent licensing as a viable mechanism for curbing patent abuse, improving transparency and evidentiary access, and aligning the patent system with its public interest function. While TRIPS flexibilities provide contextual support for domestic reform, they are not the central focus of this analysis.

Assignment of Invention Affecting Patent Validity – South Africa

by | Feb 14, 2026 | SAIPLJ, SAIPLJ 2025

Assignment of Invention Affecting Patent Validity – South Africa

Authors Dr Madelein Kleyn and Janusz Luterek

ISSN: 2521-2591
Affiliations: Patent Attorney Chief Legal and IP Officer, Omnisient RF (Pty) Ltd, South Africa and CEO Mad K IP Consulting (Pty) Ltd, Research Fellow, Anton Mostert Chair of IP, Commercial Law Department of Stellenbosch University, South Africa; Patent attorney and director, Hahn & Hahn Inc, South Africa
Source: South African Intellectual Property Law Journal, 2025, p. 92-110
https://doi.org/10.47348/SAIPL/v13/i1a5

Abstract

This article examines the assignment of inventions and the consequent validity of patent applications under South African law, focusing on entitlement to apply for a patent and compliance with s 27 of the Patents Act 57 of 1978.
There has been uncertainty under s 27 regarding whether an applicant’s entitlement based on an assignment must be perfected before filing, or whether post-filing confirmatory assignments can cure defects in entitlement at the filing date.
Using a case analysis of Regents of the University of California and Others v Eurolab (Pty) Ltd and Others, the Court of the Commissioner of Patents held that where an applicant’s right to apply derives from an assignment by the inventor(s), that assignment must exist prior to filing; the absence of such an assignment at filing led to revocation for non-compliance with s 27(1). The analysis is supplemented with brief comparative insights from jurisdictions that are more permissive about post-filing assignments, highlighting South Africa’s stricter pre-filing entitlement requirements.

Reforming TRIPS For Global Health Equity: Lessons from Covid-19 and the Failure of IP Flexibilities in Pandemic Preparedness

by | Feb 14, 2026 | SAIPLJ, SAIPLJ 2025

Reforming TRIPS For Global Health Equity: Lessons from Covid-19 and the Failure of IP Flexibilities in Pandemic Preparedness

Author Emmanuel Omondi Odera

ISSN: 2521-2591
Affiliations: Public Health Expert, Child Rights Research Center, Africa University, Zimbabwe
Source: South African Intellectual Property Law Journal, 2025, p. 111-130
https://doi.org/10.47348/SAIPL/v13/i1a6

Abstract

The Covid-19 pandemic exposed critical weaknesses in the global intellectual property (IP) regime, particularly the pre-existing flexibilities within the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), in ensuring equitable access to essential medical technologies. This study critically examines how these TRIPS flexibilities failed to facilitate timely and equitable access to Covid-19 vaccines, therapeutics, and diagnostics across low- and middle-income countries (LMICs) in sub-Saharan Africa. Using The Gambia as a focal case, the study applies a desk-based legal and policy analysis, thematic content analysis, and comparative case study approach. Findings reveal that procedural complexity, political pressure, and limited technology transfer hindered the operationalisation of compulsory licensing (art 31) and voluntary initiatives, while gaps in trademark enforcement exacerbated the circulation of counterfeit medicines. The paper proposes targeted reforms, including integrating automaticity into TRIPS flexibilities, mandating binding technology transfer obligations in the Pandemic Accord, and strengthening regional manufacturing hubs. These interventions aim to embed equity, resilience, and global solidarity into the IP system, ensuring that intellectual property protections support, rather than undermine, public health during future emergencies.

‘As long as she lives a chaste life’: The constitutionality of the ‘dum casta’ clause in post-divorce South African spousal maintenance agreements

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

NOTE

‘As long as she lives a chaste life’: The constitutionality of the ‘dum casta’ clause in post-divorce South African spousal maintenance agreements

Authors: Brigitte Clark & Belinda van Heerden

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal; Honorary Visiting Researcher, Oxford Brookes University; Retired Justice of the Supreme Court of Appeal of South Africa
Source: South African Law Journal, Volume 143 Issue 1, p. 1-13
https://doi.org/10.47348/SALJ/v143/i1a1

Abstract

In current South African matrimonial law, a dum casta clause may be inserted into a divorce agreement between the parties to provide that the duty to pay spousal maintenance after divorce will cease when the maintenance recipient (usually the wife) remarries, dies or lives together with another person in a relationship akin to marriage. This note examines the nature of dum casta clauses in agreements regarding post-divorce spousal maintenance, focusing on their purpose, background, context and constitutionality. We examine the clause through a constitutional lens and with reference to international law, the courts’ constitutional duty to develop the common law in line with the Bill of Rights, the Promotion of Equality and Prevention of Unfair Discrimination Act, and from a public policy perspective. We conclude that this clause, if strictly interpreted, violates the constitutional rights of the maintenance recipient and that such clauses should be declared contrary to public policy.

Cassim NO v MEC, Department of Social Development, Free State: A missedopportunity to set the parameters on exclusionary criteria in school admission processes for children with disabilities

by | Feb 13, 2026 | SALJ, SALJ V143 I1 2026

NOTE

Cassim NO v MEC, Department of Social Development, Free State: A missedopportunity to set the parameters on exclusionary criteria in school admission processes for children with disabilities

Authors: Willene Holness & Ruth Nyamadzawo

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal; Post-doctoral Fellow, School of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 143 Issue 1, p. 14-36
https://doi.org/10.47348/SALJ/v143/i1a2

Abstract

Children with disabilities frequently experience significant problems when seeking admission to educational and alternative care settings, sometimes with conditions being attached to their admission. Cassim NO v MEC, Department of Social Development, Free State 2021 (1) SA 184 (FB) demonstrated that the conditional admission of a child with multiple disabilities and experiencing substance-abuse challenges to a special school is unconstitutional, even during a global humanitarian crisis such as the COVID-19 pandemic. The court determined that the school’s exclusionary admission criteria were discriminatory, breaching her rights to education and to access care. Although the decision did not address in detail the negative implications of delayed school enrolment, the case emphasised the urgent need for legislative reform concerning admission procedures for children with high-level support requirements to enhance inclusive education.