subsequently sought to resile when questioned on the fact that some of the films were of this variety by saying
that what he had mentioned was the "karate" type of film.
Two final examples of unacceptable evidence given by the first defendant should be mentioned. His claim that,
contrary to what was said by Van As and Potgieter, the search warrant was not shown to him and he was not
given a copy thereof, is so against the probabilities that it must be rejected as false. Why the first defendant
resorted to this evidence is a matter for speculation. The second aspect is his questioning, at a very late stage in
his evidence and despite the relevant admissions which had been made on his behalf, whether certain film
canvassed with him were in fact included amongst exhibit "I".
It was not argued, and correctly so, that the statements which I have found the first defendant did make, did not
justify the inference that the defendants dealt in the films in breach of the plaintiffs' copyright therein. The conduct
in question falls squarely within the ambit of the acts which in terms of section 23, read with section 8, of the
Copyright Act, constitute infringement of copyright.
In regard to the second leg of the plaintiffs' claim, i.e., that relating to infringement of trade mark, Mr Cullabine
argued that a finding that the defendants had dealt in the films in breach of the copyright therein, albeit such
finding was reached on the basis of the defendants having failed to rebut the presumption provided for in section
26(10) of the Copyright Act, was a finding of fact that could and should operate in respect of the plaintiffs' claim that
the defendants had breached the trade marks in the relevant films. He conceded that if the claim had only related
to an infringement of trade mark as envisaged in the Trade Mark Act, he would not have been entitled, as far as a
finding concerning the relevant facts was in issue, to invoke a presumption contained in a different Act, the
Copyright Act. He submitted, however, that it would be illogical and impermissible to act on a particular finding of
fact for the purposes of one leg of the claim but to hold that that fact had not been established for the purposes of
the other leg of the claim; in other words, because the alleged acts relied upon for both legs of the claim were the
same and not severable, a finding thereon for the purposes of the first leg was necessarily also applicable to the
second leg. Counsel did not cite any authority for his argument. Mr Vlok very properly referred me to a decision
which could be invoked to support Mr Cullabine's proposition, viz., the judgment of Steenkamp J in S v Bruhns
1983 (4) SA 580 (NC). In that judgment it was held that a conviction of an accused person on a charge of failing to
stop his vehicle after having been signalled by a traffic officer to do so in contravention of a provision of the then
Road Traffic Ordinance of 1966, which conviction flowed solely from the invoking of a presumption provided for in the
Ordinance that the registered owner of a vehicle was the driver thereof at the relevant time, was to be taken into
account by the court as a relevant fact in considering whether the accused was guilty on a second charge of driving
his vehicle, at the same time and place, at a speed in excess of the limit prescribed in other legislation, viz., the
Petroleum Products Act of 1977. However, the report referred to by counsel wrongly reflects that the judgment was
that of a full bench concurred in by Erasmus AJP and Basson J. In fact the reported judgment was a minority one.
The majority judgment of the other
Page 601 of [1996] 1 All SA 584 (SE)
two members of the court (per Basson J), which was to the contrary effect, is reported in 1984 (1) SA 481 (NC). Both
judgments referred to the earlier decision of the Appellate Division in S v Khanyapa 1979 (1) SA 824 (A) Steenkamp J
holding that it was applicable to the matter before him and Basson J holding that it was distinguishable. In
Khanyapa's case it was held that the conviction of the accused of an assault on his wife, based on her evidence she
having been a competent witness against the accused in respect of that charge, was a relevant factor to be taken
into account in considering whether the accused was guilty on a second charge of murdering his fatherinlaw,
allegedly committed on the same occasion, notwithstanding that the accused's wife was not a competent witness
against the accused in respect of this charge. The essence of the basis on which Basson J distinguished Khanyapa's
case was that, in his view, it referred to convictions based on actual evidence and not to convictions founded on a
presumption which may in the result be fictional convictions.
Insofar as it may be necessary for present purposes I would record that in my respectful view the approach of
Basson J in Bruhns' case is to be endorsed. However, as shown earlier, the finding that the defendants had not
rebutted the presumption and the consequential finding that they had dealt in the films in question was based on
evidence and the latter finding would have been reached even in the absence of any presumption against the
defendants. Such a finding is, on the evidence, positively made on the second leg of the claim.
I turn now to the relief which the plaintiffs are seeking in these proceedings. It was correctly not disputed that
both defendants are liable in respect of whatever relief the plaintiffs are entitled to. Harnischfeger Corporation and
Another v Appleton and Another 1993 (4) SA 479 (W).
In my judgment the plaintiffs are entitled to both of the interdicts sought. The defendants infringed the copyright
and trade mark rights in question; their denial thereof has been rejected as false; no undertaking that the conduct
in question will not be repeated has been forthcoming. In such circumstances, provided that it cannot be said there
is no likelihood of a future infringement occurring, an interdict against future infringing conduct is the normal and
proper remedy and it is not necessary to invoke the further fact that the defendants on two previous occasions met
the demand of the Motion Picture Association of America based in each case on their possession of a copy of a film
for the payment of a sum of money, which the first defendant in any event sought to explain away. The fact that
the first interdict sought in terms refers to infringements of the copyright of the plaintiffs in the specific films which
are the subject of this judgment and that all of the offending copies of the films or their trailers have been removed
from the possession of the defendants hence the abandonment of the relief in the form of a delivering up to the
plaintiffs of all infringing copies or reproductions thereof does not preclude the plaintiffs being granted the relief
they seek. In the light of the circumstances referred to above I consider that a reasonable apprehension exists that
the defendants will again utilise unauthorised copies of the films or their trailers in breach of the plaintiffs' copyright
and trade mark rights. My conclusion that the plaintiffs are entitled to the interdicts sought is in accordance with the