newspapers and websites) are released in order to enable members of the public (including our client) to be
aware of the soccer matches taking place during the course of the soccer calendar. In releasing these fixtures
to the press and various other publications, your client is authorising the public to use the fixture list and,
therefore, even should your client's assertions regarding the placement of the fixtures on our client's
SportStake be correct and that this would constitute a reproduction of your client's fixture list (all of which is
denied by our client) then our client contends that it is authorised to do so due to the fact that your client has
released the fixture list to the public as set out above.
7.
Ad paragraph 3: Notwithstanding the aforegoing, we have been instructed by our client to furnish your client
with an undertaking to the effect that it will not use any fixtures of PSL league matches prior to the end of the
month. The undertaking given, however, is given on the basis that our client expects your client to revert to
our client regarding the aforementioned business proposal.
All our client has required from your client is the courtesy of a response. With this in mind, our client suggests, once
again, that a meeting be held with your client as soon as possible in order to establish whether or not it is possible to
develop a mutually beneficial business relationship with our client.
Our client's failure to deal with any of the assertions or allegations contained in your correspondence under reply
must not be regarded as an admission thereof and all our client's rights are reserved."
Evidence led
[23] The plaintiff led the evidence of two witnesses originally, namely, Mr Derek Blanckensee and Prof Ronald
"Ronnie" Schloss in support of the two primary issues it relied upon, namely:
23.1 the subsistence of copyright; and
23.2 its (copyright's) infringement.
It testified first because it bore the onus.
[24] The defendant initially called no witnesses of its own in rebuttal of those two issues but later called two
witnesses, Messrs Wiseman Ntombela and Sibusiso Simelane, in support of its claim of alleged nonexclusive
implied licence. In rebuttal of this latter evidence the plaintiff recalled Prof Ronnie Schloss and further called
Ms Sisanda Qumsa.
Page 471 of [2014] 2 All SA 461 (GJ)
Evidence of Mr Blanckensee and Prof Schloss
[25] Both Mr Blankensee and Prof Schloss confirmed that they were South African citizens for purposes of section
3(1)(a) of the Act. Both further confirmed that they are and were also at all relevant times hereto, employees
of the plaintiff when especially ownership of the copyright vesting in the plaintiff in terms of section 21(1)(d) of
the Act is anything to go by.
[26] They both confirmed the existence and validity of the plaintiff's Constitution. In article 2 of that Constitution it
appears that the plaintiff:
". . . is a legal personality endowed with rights sand duties distinct from the individuals who comprise it; has
perpetual succession and is capable of owning property apart from its constituent members, the clubs . . . "
[27] Mr Blanckensee testified that he has been employed by the plaintiff since November 2010 to date as its
general manager: football. His duties entailed, insofar as this case is concerned, to prepare the plaintiff's
fixture lists for soccer fixtures. His experience in the compilation of fixtures started well before November
2010, from the times he was the president of the Southern Transvaal Football Association between 1987 and
1992. He also did the same job in his capacity as the general manager of Wits University Football Club
between 1998 and 2006 as well as in this capacity as chief executive officer of the same club between 2006
and 2008.
[28] Prof Schloss in turn testified that he had been the plaintiff's chief operating officer since 2006. He is currently
semiretired. Just like Mr Blanckensee, he also had been involved in soccer administration virtually his whole
adult life. He had been involved in the preparation of fixture lists since, at the earliest, the beginning of the
2007 soccer season which commenced in August that year. He did the same for the seasons 2008 and 2009.
The actual compilers of the fixtures at plaintiff's, Messrs Dan Leboa and Ace Ngcobo, during the 2008/2009
seasons reported to him. He supervised the preparation of the fixtures, generally keeping an eye in that
regard. During the season commencing August 2010 he, along with his son Jonathan as well as Messrs Van
Wyk and Siem, were all jointly authors of the fixture lists. All the abovementioned persons were employed by
and at plaintiff. All were South African citizens except Mr Siem who, although he was a permanent resident of
South Africa, was nevertheless a foreign national employed on contract by the plaintiff.
[29] Both Messrs Blanckensee and Prof Schloss confirmed in evidence that the fixture lists in issue were of two
kinds: annual lists and weekly lists. The annual lists was prepared at the beginning of the season, which was
a composite list of all fixtures expected for that season, which started in August of a particular year and
ended in May the following year. The weekly list was published each week during the season. It is essentially
the fixtures for the week in question appearing in the relevant week contained in the annual list, together
with any changes to those fixtures which may have become necessary since the publication of the annual list.
[30] Mr Blanckensee further confirmed that he was responsible for each weekly list since his employment with the
plaintiff in November 2010 to date, and for each annual list from the season commencing August 2011 to date.
Prof Schloss was overall in charge, in a supervisory capacity, of
Page 472 of [2014] 2 All SA 461 (GJ)