the plaintiffs to positively prove such dealing.
The surrounding circumstances to which I refer are the facts that the defendants are dealers in video recorded
films by way of hire or sale and that on the first defendant's own showing the business was equipped and well able
to make copies of video films.
In my judgment the evidence of Van As and Potgieter as to the statements made by the first defendant as to
what he was doing with the tapes must be accepted and that of the first defendant rejected as false.
As far as the narrow issue of demeanour in the witness box is concerned, an aspect which is not to be
overstated, I do not consider that either Van As or Potgieter were subject to valid criticism. The first defendant was
possibly a little excitable, but that is not a criticism of any moment. It is with regard to the content of their
respective testimonies that the acceptability of the former two and the nonacceptability of the latter appears
clearly. I would, however, preface my discussion of the content of the evidence with the observation that Van As
was clearly an independent and unbiased witness and the same applies to Potgieter notwithstanding that Mr Vlok
sought to suggest that in the light of the nature of his work he would have an interest in, as it were, "securing a
conviction".
I have not lost sight of the fact that Potgieter testified that the search warrant authorised a search for material
that infringed copyright and that the first defendant was so advised which, in accordance with the evidence of Van
As, was in fact not the case. That is not a feature which should be overstated and it may have found its origin in
Potgieter's own interest being restricted to the possible presence on the premises of material which infringed
copyright. I also bear in mind that there was not an exact coincidence in the statements which Van As and
Potgieter, respectively, ascribed to the first defendant. Common to both, however, was an admission by the first
defendant that he was dealing in the tapes.
On two material issues the probabilities are overwhelmingly in favour of the plaintiffs, viz., whether Potgieter
sought an explanation for the offending tapes
Page 599 of [1996] 1 All SA 584 (SE)
and whether the first defendant responded thereto. The sole reason why Potgieter was present on the occasion in
question was to ascertain whether the defendants were in possession of material which fell foul of the copyright of
the plaintiffs. Such material was in fact found and it was manifest that it was offending material. The most natural
thing for him to do was to require an explanation thereof or to enquire whether the defendants were dealing in the
material. Such an enquiry would not have been ignored by the first defendant who would either have responded
directly thereto or responded in the form of declining to furnish an explanation. The first defendant's claim that no
such explanation was sought and therefore that he did not offer any explanation simply does not wash and must
be rejected as false. The falsity of this claim is further demonstrated by the fact that in crossexamination of the
plaintiffs' two witnesses Mr Vlok did not place in issue that Potgieter required the first defendant to explain the
presence of the tapes and what he was doing therewith and on the contrary put it to the witnesses that the first
defendant had offered an explanation which embraced the acquisition of the tapes from the Sonnens and,
presumably, his intention to use the tapes by way of wiping them clean and selling them as blank tapes. An allied
aspect relates to the first defendant's claim that the statement he did make referred to his collection of old classical
films. He said that the statement, i.e., that he hoped that they Van As and Potgieter would not remove his
"masters", was born of an apprehension that those films, too, were to be removed. There was, firstly, no indication
that Van As and Potgieter would remove those films or indeed showed any interest therein. Secondly, the first
defendant's alleged use of the word "masters" with reference to old classical films would, to put it at its lowest,
have been inappropriate. When questioned on the meaning of the word "master" in the context of the video film
industry the first defendant did not proffer the claim that it could refer to old classical films; instead, in common with
a number of the other witnesses who testified in the trial, he stated that one of the meanings of the word connotes
a reference to a master copy of a tape from which other copies are made. Such a meaning would have been quite
appropriate within the context of the statements attributed to the first defendant by Potgieter and Van As, to which
should be added the defendants' ready ability to engage in the activities referred to in the statements ascribed to
him.
I am not impressed with the reasons that the first defendant proffered why he would not have traded in the
films in question. His first alleged reason was that his reputation would have been harmed if he hired out tapes in
the bad condition in which these particular tapes were. He could not have been referring to the quality of the
recordings because, firstly, he never said so and on the contrary stated that he had not viewed any of the films and
that he immediately locked the tapes away because they were manifestly contraband and his sole intention was to
trade in them as blank tapes; he would therefore have had no reason to view the quality of the recordings. If the
reference was to the physical condition of the tapes he was then hoist on his own petard in that his other evidence
was that the tapes were in good condition, hence his intention to sell them as blank tapes. In any event, what was
attributed to him, on the strength of his statements, was not that he traded in the tapes themselves, but in copies
which he made therefrom. His second reason was that the nature of the films were not of the type sought after by
his clientele. But on his own showing he had 90% of the titles on his shelves already and was therefore trading in
them, at least to an extent, and such titles were available to those members of the public
Page 600 of [1996] 1 All SA 584 (SE)
who did not fall within the alleged main source of his custom. In this regard it bears repetition that, as mentioned
earlier, certain of the films were "top" films and they were also of the "action" (or "hard") variety which he had
earlier said fell within the type of film that the majority of his clients wanted, a statement from which he