unlawfully selling two audio cassettes. On the interpretation of section 24(3), Page J held as follows: The section
appears to have been intended to provide a substitute for the aggravated or exemplary damages available under
the English common law. It does not, however, empower the court to award any form of damages unrecognised by
South African common law. What is empowered is the award of additional damages when the court is of the view
that the remedies afforded by section 24(1) now to include sections 24(1A) and (1B) or any other provision of the
law are insufficient to recompense him adequately for all the damage, into whatsoever legal category it may fall
(i.e., whether under the actio iniuriarum or any other remedy recognised by our law) occasioned by the infringement.
This approach is in accordance with the English law as appears from the following passage in Copinger and Skone
James, Copyright, 12th ed, paragraph 644 at 272273:
"The section is directed to providing effective relief for the plaintiff. If, for example, effective relief is available to the plaintiff
in respect of another cause of action, such as libel or breach of confidence, relief may not be given by an award of additional
damages for infringement of copyright. It is thought that damages under this section might be appropriate where a
defendant adopts a policy of continual infringement, but an injunction is not an appropriate remedy because the defendant
reproduces different material on each occasion. Additional damages may also be awarded where the conduct of the
defendant has been deceitful or treacherous, thereby obtaining benefits for himself and inflicting on the plaintiff humiliation
for which it is difficult to compensate. Flagrancy implies scandalous conduct, deceit including deliberate and calculated
infringement where a defendant reaps a pecuniary advantage in excess of the damages which he would otherwise have to
pay. Other relevant considerations are the defendant's general conduct with regard to the infringement and his motives for
it, the plaintiff 's corresponding behaviour, the injury to the plaintiff 's feelings and the indignities and distress he has
suffered and the defendant's lack of regret for the hurt and humiliation he has inflicted on the plaintiff. ... The subsection is a
comprehensive code for additional damages in
Page 606 of [1996] 1 All SA 584 (SE)
that there is no place for the award of aggravated, exemplary or punitive damages outside that subsection."
The judgment continues as follows at 294A to I:
"In support of his invocation of the section, counsel for the plaintiffs has submitted that the Court should infer from the
readiness with which the infringing copies were produced that they were part of a larger stock and indicated that the
defendant was pursuing a deliberate and calculated course of infringement for monetary gain. It was further submitted that
although the paucity of evidence prevented the plaintiffs from proving the extent of such gain, it could be inferred that it was
considerable. It should also be found, in the light of the evidence of Mr Ellis, that the harm resulting to the plaintiffs as
members of the trade from the defendant's conduct was considerable and far transcended that flowing from the sale of exhs
1 and 2. The Court should accordingly find (so the argument ran) that effective relief would not be available to the plaintiffs
in the absence of an order under s 24(3).
I have difficulty in accepting the factual basis of this argument. There is nothing in the evidence to justify the conclusion that
the particular infringements complained of were extensive or of long duration or that the defendant derived great financial
benefit from those infringements. The making of the copies of the particular musical recordings in issue could well have been
an isolated incident and the probability that the defendant was also infringing other copyright material does not alter the
position, since it is the effectiveness of the relief for the particular infringement to which the action relates which the section
has in mind. I am unpersuaded that an order for an interdict, the actual damages and costs would not constitute effective
relief in respect of that infringement.
There is, furthermore, no evidence to justify the conclusion that the infringements proved were "flagrant" within the meaning
of the section or that the defendant derived any great financial benefit from them.
It was submitted by counsel for the plaintiffs that the prevalence of this type of infringement, the ease with which it can be
committed, the difficulty experienced in detecting it, the enormous cumulative damage which it inflicts upon the industry and
the virtual impossibility of proving and recovering the damages suffered, all constituted circumstances which justified the
Court in making an exemplary or punitive award of damages so as to deter not only the defendant but also other potential
infringers from such conduct. I do not, however, consider it justifiable to visit the sins of other infringers upon the head of
this defendant because he has been unfortunate enough to be caught whilst others have not. Furthermore, the Act makes
provision for criminal sanctions which could have been invoked against the defendant and which make provision for
substantial penalties which should in themselves prove an adequate deterrent."
CCP Record Co (Pty) Ltd v Avalon Record Centre 1989 (1) SA 445 (C) was also a case which concerned the unlawful
sale, in breach of the plaintiff 's copyright, of an audio cassette. At 449C et seq. Conradie J gave consideration to
the effect of section 24(3). The views which he expressed are as follows: While it is to be acknowledged that the
reference in the section to an absence of "effective relief" could forcefully found the argument that, for the
provisions of the section to operate, another cause of action (but an "ineffective" one) must be shown to exist
(even if it is not pursued) in which event the award of "additional damages"
Page 607 of [1996] 1 All SA 584 (SE)
would be supplementary to ordinary damages (as indeed the expression itself suggests), it is to be doubted
whether one should conclude from that alone that where relief by way of the actio legis Aquiliae a n d t h e actio
iniuriarum is not competent, the plaintiff may not be awarded "additional damages". Actions for damages are
seldom ineffective where the plaintiff is able to show that he has suffered some (patrimonial or nonpatrimonial)
damage, the court being obliged to do the best it can in the assessment of damages on the material placed before
it provided that the plaintiff has adduced all the evidence that could reasonably be expected of him.
Accordingly, the scope for an award of additional damages of a kind which have actually been suffered but
cannot be proved must, if it exists at all, be small bearing in mind that damages for breach of copyright are said to
be "at large". Accordingly, the words "effective" and "additional" in the section must not cause the court to lose
sight of the fact that, by making benefit to a defendant and flagrancy criteria for an award of damages, the section
not merely augments existing delictual remedies by widening the power of the court to award damages, but