of VH2 has arisen which can only be resolved by oral evidence, and he requests that this course be followed in
respect of the two disputes raised in the answering affidavits. It is also categorically denied that DGW5 (the signed
order form) constitutes a valid assignment of copyright to the respondents. He further denies that DGW3 is the only
sketch handed to Ms Barr by Roy. It was not even a sketch representing a form but merely a character spacing
diagram. He persists in his former statement that Roy designed an accurate drawing (with a special ruler lent to him
by Ms Barr) of a form which had no previous existence by the use of his own skill and endeavour. In this way VH2,
VH3 and VH4 came into existence of which Roy is the author. In any event, it would be impossible to design the
form VH2 without having been aware of the capabilities and parameters of the software produced by Mieny which
became the basis of the successful Mass package. According to Barr she never even consulted with Mieny.
When the application was first brought before court, counsel requested the learned Judge hearing the matter
(Roos J) to refer the matter for oral evidence on the issue of authorship with the rider "if such is held to subsist".
This order was made on 21 August 1996. At a pretrial conference prior to the hearing of evidence, counsel agreed
to request the court hearing the matter to decide the question of unlawful competition as well. This was done in
order to save further expense and court time as the evidence presented in respect of the two main disputes would
presumably also cover the issue of unlawful competition. I acceded to this request and if necessary will deal with
this issue as well.
The matter commenced before me on 26 February 1997 and lasted off and on throughout the year. On the last
day of argument during November 1997, just before the end of term, counsel for the respondents raised the
question of an assignment contained in DGW5 for the first time, although the point had cropped up during the
motion proceedings but had not been referred as a dispute to this Court. It was said that this was a purely legal
argument and that no further evidence was necessary in regard thereto and that I can therefore deal with it simply
on the basis of a defence. Counsel for the applicant requested time to reply to this new point which, if successful,
would have made the whole trial unnecessary. Full written arguments were subsequently submitted by both
parties.
I propose to deal first with the argument relating to assignment of copyright based on the signature of the order
form because, if successful, it will render a consideration of the other disputes unnecessary.
The assignment point
In his oral evidence Vernon admitted signing the order form DGW5 on 25 October 1989, but stated that he took no
heed of the "small insignia" (as he called it) appearing above his signature, nor did he even look at the back of the
form. He was not aware of the condition relating to copyright but never intended "signing away his brother's
copyright" (sic) to the respondents. I take it that the reference to the "small insignia" is intended to refer to the
legend appearing above the space for the signature of the customer which I quoted above. Vernon also testified
that the claim printed on the form VH2 at his request and subsequent versions thereof to the effect that copyright
vests in Mass CC, would hardly make sense if he thought he might be transferring copyright to the respondents.
This claim was printed on the forms at his specific request.
Page 663 of [1998] 4 All SA 655 (T)
It is common cause that if copyright existed in VH2 by virtue of Roy's efforts, it would vest in Mass CC and not in
the applicant. This is so because copyright was only transferred to applicant, presumably for purposes of instituting
the original motion proceedings, by the deed of assignment dated 8 January 1996. Counsel for the respondent now
suggests that a claim to the copyright in the form was already made by Vernon in an instruction to his attorneys
Messrs Adams and Adams during 1993. Although his claim to be the owner of the copyright as at the date of the
letter namely 5 March 1993, cannot be correct, counsel now uses this and the answers given by Roy during cross
examination on this letter to support her argument that Vernon through the applicant, at all times acted as the
agent of Roy and Mass CC in connection with its dealings with the respondents. She therefore submits that when
signing the order form during October 1989, Vernon was acting as the agent of his brother Roy. Therefore, so the
argument runs, although applicant had no claim to the ownership in the copyright of the form during 1989, the
copyright passed to the respondents during January 1996 at the moment when applicant received the copyright
from Mass CC by the written deed of assignment. Accordingly, the applicant has no locus standi to bring these
proceedings and all the evidence regarding the question of the authorship of VH2 is irrelevant if this point is upheld.
Counsel for the applicant objects strongly to the manner in which this point was raised right at the end of a
lengthy trial. He points out that the dispute regarding the transfer of ownership in the copyright was not one of the
points referred to this Court for decision by Roos J, and the evidential aspects thereof were accordingly not properly
canvassed during the evidence. Furthermore, in the motion proceedings the respondents admitted the validity of
VH5, that is, the deed of assignment giving locus standi to the applicant. The respondent cannot now renege on this
admission and is estopped accordingly from raising a previous assignment to it after admitting the last assignment
to applicant. Should the court nevertheless allow the respondents to raise this argument, the applicant submits as
follows:
1.
As the words stand in condition 15 of the order form namely "when Allforms prints or designs a form .", this does not
constitute a proper assignment in the present case. The reason is that the words "or designs" begs the question as it
is clear that the designer of a work is the first author thereof. Accordingly, no question of assignment of copyright to
that person is necessary. All that remains of the phrase is the word "prints". In this respect, says counsel, it is
common cause that the first respondent was not a printer but in fact subcontracted the printing of forms to another
contractor. The onus is therefore on the respondents to satisfy the court that the phrase indeed contains an
assignment of copyright to it. This onus has not been discharged as no evidence was led in regard to the meaning of
the word "print" in the phrase in question.
2.
A second submission made by counsel for the applicant is that before an assignment can take place there must be a
contract to assign where the parties must be ad idem in regard to the passing of rights and obligations comprising