introduces relief where no cause of action for relief had existed before. Additional damages are therefore damages
of a kind which would not, but for the provisions of section 24(3), be recoverable at all, either because they are
unprovable (and the scope for finding damages unprovable in our law is small) or because, other than in section
24(3) no cause of action for their recovery exists. Section 24(3) accords the court a wide discretion in awarding such
damages, limited only by the consideration that the money which the defendant is made to pay must go to
providing relief for the plaintiff and the defendant may not simply be fined. Because of imported confusion and
controversy surrounding the terms "punitive" and "exemplary" it is not helpful to apply those terms to the
"additional damages" envisaged in section 24(3). In English law the Copyright Act (which is the same as ours)
envisages purely compensatory damages, including aggravated compensatory damages (which the plaintiff is fairly
entitled to receive) which should be contradistinguished from punitive or exemplary damages (which the defendant
ought to be made to pay as punishment for outrageous conduct). In cases where it is appropriate for section 24(3)
to be invoked the court should seek, by an award of damages, to do what is fair having regard thereto that the
defendant's punishment is also the plaintiff 's relief. Where no particular benefit is shown to have accrued to the
infringer the award of additional damages would seek to relieve the kind of hurt to a plaintiff which cannot, ex
hypothesi, be compensated otherwise, or to give him an advantage which the law would not otherwise give him. An
example would be the case where an interdict is ineffective and the award of additional damages may serve to
deter repetition of the infringement by the infringer or others. The remark of Addleson J in the Trust Butchers case
that he could not "simply pluck a figure out of the air without some basis on which to assess it" was obiter because
it was found that there was no flagrancy of a kind deserving an award of exemplary damages. The phrase "other
material considerations" in the section is to be taken into account only insofar as such other considerations bear on
the concepts of flagrancy and benefit to the defendant in that it is not possible to think of any "other consideration"
apart from the two concepts referred to which would justify an award of exemplary (sic) damages.
On the facts of the case Conradie J held that the benefit that accrued to the defendant was limited to the few
rands it received from the sale of the offending tape. The plaintiff, having withdrawn its claim for an interdict, could
not claim
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additional damages as a deterrent as there was nothing to indicate that an interdict, if granted, would not have
been effective. He held, however, that the defendant's conduct had been flagrant and that an award of additional
damages was accordingly justified, even although there was no proof that such damages had in fact been
sustained. In this regard the judgment proceeds as follows at 451I to 453A:
"In Nichols Advanced Vehicle Systems Incorporated and Others v Rees Oliver and Others (1979) RPC 127 elements of deceit
and treachery, and the infliction of humiliation on the plaintiff linked with the obtaining of an unconscionable advantage by
the infringer were held to make the infringement flagrant.
Deceit, including deliberate and calculated infringement linked with a pecuniary advantage in excess of the damages which
the infringer would have had to pay had it not been for the additional damages provision, was, in Ravenscroft v Herbert and
Another (1980) RPC 193 at 208 held to constitute flagrant conduct.
Both the Nichols Advanced Vehicle Systems and Ravenscroft cases supra described an invasion of another's copyright as
flagrant if it is scandalously dishonest.
In casu, I consider that the invasion of copyright was scandalously dishonest. The defendant was a trader in records,
including the plaintiff 's records. The scope for infringement by such a trader is huge, and the harm, not only to the plaintiff,
but to the artists with whom it contracts, and ultimately to the recording industry, may be great. I think that there is a strong
moral duty on a retailer of any product which is vulnerable to piracy to avoid exploiting a supplier of copyright material who
has entrusted such material to him in the expectation that it will be sold for the benefit of both of them. A copyright
infringement of this kind is easy to perpetrate and difficult to detect. A single work may be reproduced almost endlessly and
at insignificant cost to the reproducer. The profits of the unlawful conduct are enormous.
My impression from the evidence of what occurred in the shop when the recording was made is that the defendant treated
the plaintiff 's rights contemptuously. The impression is fortified by the defendant's subsequent conduct in denying the
infringement when it must have known that it would not dare put the person alleged to be responsible for the infringement
on the witness stand. The defendant, moreover, until the morning of the second day of the trial, refused to even
acknowledge the existence of the copyright or the plaintiff 's ownership, although it must have been manifest to the
defendant from the facts deposed to in the interim application that the plaintiff had made out a clear case of subsisting
copyright of which the ownership vested in it.
In the defendant's favour I think I should stress that the purchase was a socalled trappurchase. This means that the
defendant was, if not instigated, then prompted to make the copy. He was given to understand that the customer could not
afford to buy the records; he may, in a weak moment, have succumbed to the temptation of not losing a sale.
In deciding whether to award additional damages on the ground of flagrancy alone, I have had regard to the fact that the
infringement, although flagrant, was not shown to have been repeated. Although it probably caused the plaintiff annoyance,
it could hardly have caused any of its officers distress. The plaintiff was, of course, put to considerable trouble and expense.
It complained to the Association of the South African Phonographic Industry. Its
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work schedule was disrupted when its officers had to consult, consider papers and attend Court. It incurred costs which it will
not recover under the tariff. I am sure that the plaintiff would not have bothered about the infringement if it had not been so
flagrant, if it had not been an infringement by a dealer under circumstances where the potential harm was significant. The
flagrancy of the infringement was the direct result of the actions taken to stop it.
I accordingly consider that an award of additional damages ought to be made. I think that an amount of R3 000 is in the
circumstances neither too small nor too large."