It is to be noted that it is clear from the report that Conradie J was not made aware of the judgment in the BanNab
case before he delivered his judgment.
In an article titled "Additional Damages and Section 24(3) of the Copyright Act", appearing in the 1989 South
African Law Journal (volume 106) at 467, VVW Duba, a senior lecturer in law at the University of Fort Hare, subjects
the judgment in the CCP Record case to criticism. The criticism is in essence of a twofold nature. He suggests, firstly,
that it is unfortunate that Conradie J declined to call the additional damages envisaged in section 24(3) "exemplary"
or "punitive" damages. These terms, he points out, are not unknown in South African law and awards for, e.g.,
defamation, often include an element of exemplary damages where the defendant's conduct warrants such
censure. Secondly, he joins issue with the approach of Conradie J in granting additional damages in a case where
actual damage (even if it not be susceptible of precise quantification) has in fact not been proved. He argues that a
prerequisite for an award of damages is proof of damage, in respect of which the plaintiff bears the onus. His views
are summed up in the following passage:
"One can only advise that, in future the award of additional damages made in terms of s 24(3) of the Copyright Act should
be treated as a South African form of what the English courts refer to as exemplary or punitive damages; before such an
award may be made, however, there must be adequate proof of the existence of a cause of action and also of harm
sustained by the defendant thereby preventing the courts from making awards under s 24(3) in cases where the plaintiff
has failed altogether to establish damage."
In my judgment the principles applicable to the interpretation of section 24(3) are the following:
(1) Additional damages as envisaged in the section may only be awarded by the court when, firstly, the plaintiff
already has a cause of action for relief dehors the provisions of the section and, secondly, such relief cannot
effectively be obtained by the plaintiff. I consider that such an approach was implicit in the judgment in the Trust
Butchers case where Addleson J recorded that one of the reasons why he could not award additional damages was
that the award to the plaintiff of his actual pecuniary loss and the grant of an interdict had in fact accorded the
plaintiff effective relief. (The circumstance that Addleson J was in the context dealing only with a claim for additional
damages based on the alleged flagrancy of the infringing conduct does not qualify the ambit of his approach.) Mr
Cullabine submitted that the decision in this case was wrong and that the approach in the CCP Record case was
preferable. I am, however, bound by the decision in the Trust Butchers case unless I am convinced that it is wrong. I
am not so convinced; on the contrary I am persuaded that it is correct. The phrase "effective relief would not
otherwise be available to the plaintiff " refers
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in my view, to relief to which the plaintiff is entitled i.e., he has a valid cause of action in respect thereof but
cannot effectively avail himself of such relief. I further therefore agree, with respect, with the approach of Page J in
the BanNab Radio case that the court is not empowered to award any form of damages not otherwise recognised in
our law, but is empowered to supplement the remedies provided for in subsections (1), (1A) and (1B) where those
remedies are insufficient to recompense the plaintiff adequately for all the damage, whatever the legal
categorisation thereof, occasioned to him by the infringement and that the manner in which it would do so is by
awarding exemplary damages. This approach is in accordance with what is advocated by Duba in the article referred
to above the reasoning behind which commends itself for acceptance. I would comment that the factors referred to
in the section to which the Court must have regard in determining whether effective relief would not otherwise be
available to the plaintiff are all factors which could found an award of exemplary damages. Insofar as the reasoning
of Conradie J in the CCP Record Co case is contrary to the above approach I am, with respect, unable to align myself
therewith. In particular, for the reasons stated above, I do not agree that the intention of the legislature, in
enacting section 24(3), was to create a new cause of action in addition to, and as opposed to augmenting, any
remedies which are already available to the plaintiff.
(2) In determining whether it may be satisfied that effective relief would not otherwise be available to the plaintiff
the Court will have regard not only to the flagrancy of the infringement and any benefit shown to have accrued to
the defendant, but also to all other relevant considerations. The wording of the section makes it clear, in my view,
that the legislature drew a distinction between the first two considerations referred to above and "all other
relevant considerations". I accordingly, again with respect, am unable to agree with the approach of Conradie J that
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. That approach would require the
unattractive, indeed unwarranted, finding that the words "all other material considerations" are to be interpreted
eiusdem generis with the words that follow or even pro non scripto. Nor do I agree that it is not possible to conceive
of any other considerations apart from the two concepts referred to above which could justify an award of
exemplary damages. See in this regard the passage from Copinger and Skone James quoted earlier when the
judgment in the BanNab Radio case was being analysed. A further consideration which springs to mind is extreme
difficulty in quantifying the damage sustained, notwithstanding, as Conradie J pointed out, that a court is enjoined,
when faced with a damages claim, to do the best it can on the material placed before it provided that no blame
attaches to the claimant in respect of the failure to adduce evidence available.
(3) A consideration which is not relevant in the enquiry whether "effective relief which would not otherwise be
available to the plaintiff " is the need to deter not only the particular defendant from infringing conduct but also
other potential infringers. That there is such a need arises from the prevalence of instances of infringement, the
ease with which it can be committed, the difficulty experienced in detecting it, the enormous cumulative effect which
it inflicts upon the industry and the difficulty in proving and recovering damages. However, I am in respectful
agreement with the views expressed in this regard
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