Judgment
LE ROUX J
his matter started as an application to restrain the respondents from infringing the applicant's copyright in a
specified medical account form, identified as annexure "VH2" to the founding affidavits of Vernon Herselman, by
reproducing it in any manner or form, or by making an adaptation thereof or reproducing an adaptation, or by
causing it to be reproduced or adapted. There is a further prayer for an order on respondents to deliver all
infringing copies of the medical account form and plates used or intended to be used therefor to the applicant. A
third prayer seeks to restrain respondents from competing unlawfully with the applicant by offering for sale, selling,
distributing or otherwise dealing in medical account forms such as the one annexed to the founding affidavit by
Vernon Herselman, marked "VH5" (this latter reference is clearly a mistake as VH5 is a deed of assignment. The
reference should probably be to VH6). There is also a prayer for the costs of the application.
In the founding affidavit Vernon Herselman (to whom I shall refer as "Vernon") states that he is the sole member
of the applicant which carries on business as a supplier and distributor of stationery in Pretoria. His company,
Accesso CC, owns the copyright in certain medical account forms which is
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being infringed by the respondents by reproducing and selling them without applicant's permission. Even if
respondents do not infringe applicant's copyright, it unlawfully competes with the applicant in selling and
distributing these forms and should be restrained on this ground as well. Vernon states that respondents carry on
the business of printing brokers of stationery including business forms and also medical account forms. Although the
respondents do not conduct the actual printing of the forms, they subcontract it and give instructions to do so. The
applicant is not sure what the relationship is between the first and second respondents and invites them to clarify
it, although both may have an interest in the business of selling and distributing these forms.
The applicant's rights in these forms arose as set out hereunder. Vernon has a brother Roy Herselman ("Roy")
who is an accountant with a Masters degree in Business Leadership. For a number of years Roy has been engaged
in developing, installing and giving training on computerised patient accounting systems for the medical and dental
profession. During 1989 he, in conjunction with his brotherinlaw, one Jacques Mieny, an electrical engineer and
computer programmer, developed a computerised accounting system for doctors and dentists which differs from
previous systems in important respects, inter alia by catering for the requirements of medical aid schemes. Jacques
Mieny ("Mieny") developed the computer programme (or "software") in collaboration with Roy who designed the
form which represented the statement of account containing the data fed into the computer by the practitioner. The
computer programme plus the form constituted a "package" known as the "Mass" package after the company Mass
CC of which Roy and Mieny were members. Vernon was asked to market these forms and did so through the
applicant.
The founding affidavit alleges that Roy produced an accurate sketch of the form after a great deal of creative
effort had been expended on it. It was an original work and differed materially from any other form or statement on
the market at that time. After drawing the sketch, Roy gave it to Mieny who wrote a software programme to fit the
form. Roy approached the respondents and instructed them to produce the form in print. He handed the final sketch
which he had drawn to an employee of the respondents, a Ms Jacqueline Barr ("Barr"). This sketch has since
unfortunately disappeared and cannot be found. Barr has, however, attached virtually identical reproductions of
Roy's original sketch to her affidavit in reply as the proofs JB15, which were later converted into VH2. VH2 differs
from the original sketch, according to Vernon and Roy, only in the colour shading which was imposed on the white
proof on Roy's instructions.
The applicant through Vernon ordered 100 000 of these forms (VH2) to be printed. It turned out, however, that
these forms could not be used as they were a few millimetres too wide for the ordinary 80column printers used by
most medical practices and the batch had to be discarded. The applicant paid for his mistake and proceeded to
reduce the width by leaving out one of the original columns entitled "benefit scale". After effecting some minor
changes, the original sketch was reprinted (by another contractor) as VH3. Further minor changes were effected
during 1993 to 1994 by Roy, and VH4 came into being, which for all intents and purposes was an identical
reproduction of Roy's original sketch. Mass CC owns the copyright in this form VH2 with its reproductions and
adaptations VH3 and VH4. In January 1996, Roy and Mass CC assigned their copyright to applicant by way of a
written deed of assignment, signed by all parties to the assignment. On all three forms (ie VH2, VH3 and VH4) the
following legend appears at the bottom of each form viz. "copyright
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all rights (including distribution rights and design layout of this form) held by Mass CC".
Applicant now alleges that the respondents have copied and reproduced VH4 by printing, selling and distributing
an identical form, VH6, save that the claim to copyright appearing on the forms has been omitted. It is this infringing
form that applicant seeks to stop respondents from distributing in its application, although a reference is only made
to VH2 in the prayers in the notice of motion. (During the course of the trial which followed on the application,
counsel for the applicant applied to amend the original prayers by referring to VH6 as the infringing form. This was
opposed by respondents' counsel on the grounds that the facts deposed to by Roy did not warrant this amendment
and would in any event constitute a new case which they were not prepared to meet. I will deal with this
application in due course.) The applicant further contends that the first respondent was contracted for the purpose
of printing the form and was paid for the service, and is now reproducing this form and unlawfully competing with