Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd and others
[2004] 4 All SA 67 (C)
Division:
Cape of Good Hope Provincial Division
Date:
13 August 2004
Case No:
4303/02
Before:
HJ Erasmus J
Sourced by:
C Webster and AD Maher
Parallel Citation:
2005 (1) SA 398 (C)
Summarised by:
D Harris
. Editor's Summary . Cases Referred to . Judgment .
[1] Civil procedure Discovery of documents Uniform Rules of Court Rule 35(3) Where a party is dissatisfied with the
discovery of another party, it can seek discovery of documents "which may be relevant to any matter in question"
Matter in question is determined from the pleadings, and to decide the question of relevancy, the issues raised by the
pleadings must be considered.
[2] Copyright Computer programmes Copyright Act 98 of 1978 recognises computer programmes as a specific and sui
generis form of expression which can be the subject of copyright.
[3] Intellectual property Computer programmes An employee may not claim ownership of software produced in the
course of his employment.
[4] Intellectual property Computer programmes Copyright Act 98 of 1978 recognises computer programmes as a
specific and sui generis form of expression which can be the subject of copyright.
Editor's Summary
Together with an Anton Piller order, the applicant had sought an interdict restraining the respondents from dealing
with a computer programme in respect of which the applicant claimed copyright and ownership.
According to the applicant, he was the owner of the copyright in the computer programme in question, and the
respondents were infringing the copyright in what amounted to unlawful competition. The respondents disputed
applicant's ownership of the copyright.
Held The Court began with a dispute between the parties, concerning the discovery of documents by the
respondents. A transaction between the respondents and a third party led the applicant to request discovery of
documents relating to the transaction in order to determine the effect of the transaction on the applicant. The
respondents refused, on the basis that the transaction specifically excluded the computer programme in dispute.
Rule 35(3) of the Rules of Court provides that where a party is dissatisfied with the discovery of another party, it
can seek discovery of documents "which may be relevant to any matter in question". The matter in question is
determined from the pleadings, and to decide the question of relevancy, the issues raised by the pleadings must be
considered. As the documentation which the applicant sought to be discovered was not relevant to any of the
issues raised in the affidavits, the application for discovery was dismissed.
Before addressing the merits, the Court placed on record its assessment of the parties as witnesses. Both parties
were shown to be manipulative of the facts, and their evidence had to be treated with circumspection.
Page 68 of [2004] 4 All SA 67 (C)
Turning to the merits, the Court noted that the Copyright Act 98 of 1978, as amended by the Copyright Amendment
Act 125 of 1992, recognises computer programmes as a specific and sui generis form of expression which can be the
subject of copyright.
In order to determine whether or not the Applicant could make any claim to the ownership of the software, it was
necessary to ascertain what the legal relationship was between him and the respondents' company. Despite
contrary allegations by the applicant, it was found that he was an employee of the company. As such, he could not
have become the owner of any software which he may have produced in the course of his employment under a
contract of service to the company. This dispensed with the allegations of infringement of copyright and unlawful
competition.
The Court ended by explaining its reasons for having dismissed several points in limine r a i s e d b y t h e
Respondents.
Notes
For Copyright see:
· LAWSA Second Edition (Vol 5(2), paras 198)
Cases referred to in judgment