Intellectual Property Rights from Publicly Financed Research and
R 385
Films and Publications Act, 1996 (Act No. 65 of 1996)RulesEnforcement Committee Rules, 2022Schedule 1Part 3 : Enforcement Committee ProceduresOffers to Settle23. Settlement offers |
| (1) | For the purposes of this rule and rules 24 and 25 of Schedule 1— |
| (a) | A settlement offer means an offer to settle which is made in accordance with this rule; and |
| (b) | “relevant period” means— |
| (i) | in the case of an offer made not less than 21 (twenty-one) days before the main substantive hearing of the claim, the period specified under sub-regulation 23 (3)(c) of Schedule 1 or such longer period as the parties agree; or |
| (ii) | in any other case, the period up to the end of the main substantive hearing of the claim. |
| (2) | A settlement offer may be made at any time, including before the commencement of proceedings. |
| (3) | A settlement offer shall— |
| (a) | be in writing; |
| (b) | state on its face that it is intended to be a settlement offer under these Rules; |
| (c) | except where the settlement offer is made less than 21 (twenty-one) days before the start of the substantive hearing of the claim, specify a period of not less than 21 (twenty-one) days within which the respondent will be liable for the applicant’s costs in accordance with regulation 26 of Schedule 1 if the offer is accepted; |
| (d) | state whether it relates to the whole of the case, to part of it or to an issue that arises in it and, if so, to which part or issue; |
| (e) | state whether it takes into account any counterclaim; and |
| (f) | where it is made by some, but not all, of a number of respondents, state whether or not it is made in satisfaction of the case against all respondents. |
| (4) | A settlement offer which offers to pay or offers to accept a sum of money is to be treated as inclusive of all interest until— |
| (a) | the date on which the period specified under sub-rule 23 (3)(c) of Schedule 1 expires; or |
| (b) | where sub-rule 23 (3)(c) of Schedule 1 does not apply, a date 21 (twenty-one) days after the date the settlement offer was made. |
| (5) | A respondent’s offer that includes an offer to pay all or part of the sum at a date later than 14 (fourteen) days following the date of acceptance is not to be treated as a settlement offer unless the applicant accepts the offer. |
| (6) | A settlement offer is accepted by serving written notice of acceptance on the offeror. |
| (7) | A settlement offer may— |
| (a) | be accepted any time before the substantive hearing of the case, unless it has already been withdrawn; |
| (b) | only be accepted after the substantive hearing of the case has started with the permission of the Enforcement Committee. |
| (8) | The fact that a settlement offer has been made shall not be communicated to the members of the Enforcement Committee deciding the case until all questions of liability and the amount of money to be awarded have been agreed between the parties or determined by the Enforcement Committee. |
| (9) | Sub-rule 23 (8) of Schedule 1 does not apply where— |
| (a) | the offeror and offeree agree in writing to that effect; or |
| (b) | although the case has not been decided— |
| (i) | any part of, or issue in, the case has been decided; and |
| (ii) | the settlement offer relates only to parts or issues that have been decided. |
| (10) | In a case to which sub-rule 23 (9)(b)(i) of Schedule 1 applies, the members of the Enforcement Committee deciding the case may be told whether or not there are settlement offers other than those referred to in sub-rule 23 (9)(b) of Schedule 1, but must not be told the terms of any such other offers unless the offeror and offeree agree in writing to that effect. |
| (11) | Where the applicant wishes to accept a settlement offer made by one or more, but not all, of a number of respondents— |
| (a) | if the applicant alleges that the respondents are jointly and severally liable and the settlement offer states that it is in satisfaction of the claim against all respondents, the applicant may accept the settlement offer and the Enforcement Committee shall then direct that the case against the respondents who did not make the settlement offer be discontinued; |
| (b) | if the applicant alleges that the respondents are jointly and severally liable and the settlement offer states that it is in satisfaction of the case against those respondents making it, the applicant may— |
| (i) | serve notice on the respondents making the settlement offer agreeing not to continue its case against them in return for payment of the sum offered; and |
| (ii) | continue with the case against the other respondents; |
| (c) | if the applicant alleges that the respondents are severally but not jointly liable, the applicant may— |
| (i) | accept the settlement offer; and |
| (ii) | continue with its cases against the other respondents; |
| (d) | if the respondents are sued only jointly or in the alternative, the applicant may accept the settlement offer if— |
| (i) | the applicant discontinues the case against those respondents who have not made the settlement offer; and |
| (ii) | those respondents give written consent to the acceptance of the settlement offer. |
| (12) | Service of a notice under sub-rule 23 (11)(b)(i) of Schedule 1 is to be treated as acceptance of the settlement offer for the purposes of rule 25 to 27 of Schedule 1 and references in those rules to notice of acceptance are to be construed as including a reference to notice under sub-rule 23 (11)(b)(i). |
| (13) | A settlement offer is to be treated as “without prejudice except as to costs”. |
| (14) | This regulation does not preclude a party from making an offer to settle at any time or by any other means but, if not made in accordance with this rule, it shall not have the consequences specified in rule 26 and 27 of Schedule 1. |
