The main problem with applicant's version, however, is that the drawing in its complete form could not be
produced for inspection in any form. Roy says it was handed to Barr who lost it. Barr says she never received it but
only DGW3, which she kept in the "job bag" of the applicant and which she produced in court. Roy speculates that
Ms Barr "took" the sketch DGW3 off his desk without his knowledge. One wonders why she would have done so if
she had the perfect drawing in her possession from Roy himself. Roy says it was one of many such drawings but he
could not produce any others. Again, if there was a perfect drawing of VH2, I would have expected the applicant to
have kept a
Page 673 of [1998] 4 All SA 655 (T)
copy or at least to have moved heaven and earth to obtain the one which was handed over to the respondent, as
this would have gone a long way towards proving the applicant's case on authorship. But no requests or
applications for special discovery were launched.
The credibility of Roy Herselman is not untainted either. In Vernon's founding affidavit concurred in by Roy during
the motion proceedings, he described the forms VH3 and VH4 as subsequent versions designed by him containing
only minor or "polishingup" changes, whereas in his oral evidence he described these changes as "substantial".
This opened up new vistas and postulated a different case to the one made on motion, for if the new forms were
substantially different, they would attract copyright in their own right and it was common cause that respondent
had nothing to do with these designs. It also meant that the infringing form VH6 (or exhibit 1) were copies of VH3 or
VH4 and not as originally stated, of VH2.
The probabilities overwhelmingly favour Ms Barr's version. I do not accept that she would "pilfer" DGW3 from
Roy's desk merely to use as proof of her rudimentary instructions in a subsequent court case. She was the expert in
designing forms and in formulating precise printing instructions, and I cannot see how an amateur like Roy could
possibly design a perfectreadytoprint drawing of the form. As pointed out by Mr Middleton, no selfrespecting
designer would accept a commission such as the one described by Roy Herselman.
It is not surprising to find that the applicant sought to amend its prayers at the conclusion of the evidence by
including VH3 and VH4 as works in which it claimed copyright. Respondent objected strenuously to this amendment,
pointing out inter alia that this would change the very foundation of the applicant's case in view of Roy's evidence
regarding "substantial" changes and would deprive the applicant of locus standi as only the copyright in VH2 was
assigned to it. After hearing argument by counsel, I dismissed the application to amend.
Under the circumstances I accept Ms Barr's evidence about the creation of the form and reject that of the
applicant. It means that Ms Barr is the author and that the respondent is the proprietor of the copyright in VH2.
Unfair competition
It remains to deal with the argument relating to unfair competition by respondent in selling and distributing forms
similar to VH2. This argument may be disposed of shortly. Although the idea for the arrangement or layout of VH2
emanated from Roy, respondent through Ms Barr gave material form to it and I have found that respondent owns
the copyright. On the authority of cases like Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd and others
1981 (2) SA 173 (T) and Schultz v Butt 1986 (3) SA 667 (A), one of the basic requirements of the action based on
unfair competition is that the act complained of must be unlawful. If the respondent is the lawful owner of the
copyright as I have found, it cannot be said to be competing unfairly with the applicant if it sells the forms in which it
possesses copyright.
It follows that the application cannot succeed. In regard to costs, however, a special order is called for as both
parties achieved a measure of success in respect of the issues before court. Thus the applicant succeeded in having
the point concerning assignment raised by respondents dismissed and the issue of copyright in the form was also
decided in its favour. On the other hand, the crucial issue of authorship in the form and the question of unfair
competition went in
Page 674 of [1998] 4 All SA 655 (T)
favour of the respondent. In my view and not to put too fine a point to it, each party should be ordered to pay its
own costs.
The application is accordingly dismissed, each party to pay its own costs.
For the applicant:
O Salmon instructed by Messrs Wentzel Viljoen & Swart, Pretoria
For the respondents:
M Jansen instructed by Messrs Spoor & Fisher, Pretoria