was to his own collection of classical films and was not a reference to the subject tapes.
Inspector Van As confirmed the correctness of a statement which he had made on 30 August 1993 concerning
the incident (exhibit "H"). The essence thereof was that on 11 August 1993 his informant i.e., Holtzhausen
advised him that the first defendant was in possession of pornographic material stored at the premises of the
second defendant. On the strength of that information he secured a search warrant and he, Potgieter and another
policeman proceeded to the premises in question. The purpose of his visit was explained to the first defendant who
was also favoured with a copy of the warrant. In what he referred to as the storeroom the reference clearly being
to the walkin safe a large number of video cassettes was found. Inspection thereof revealed no pornographic
material. Potgieter made the observation that the cassettes had been "oorgetape" and that an infraction of the
Copyright Act had taken place and he enquired from the first defendant if he hired the cassettes out to the public to
which the first defendant replied in the affirmative. The cassettes were seized and the first defendant was advised
that a case docket relating to a charge under the Copyright Act would be opened against him. Subsequently the
first defendant's attorneys submitted to him a statement by the first defendant (exhibit "I"). Under cross
examination Van As affirmed that he had gone to the defendants' premises to search for pornographic material, but
that Potgieter had also identified himself to the first defendant and stated that he, too, wished to carry out an
inspection. Van As also rejected the proposition that when the first defendant used the word "masters" the
reference was not to exhibit "1" but to other tapes in the safe. He similarly rejected the proposition that the first
defendant had proffered the explanation that he had obtained exhibit "1" from one Sonnen of George. He was
unable to recall whether the first defendant had made mention of tapes in his stockintrade being damaged, but he
added that he was not throughout in the immediate company of Potgieter and the first defendant.
The first defendant's version of what occurred on the occasion in question and his explanation in respect of the
subject cassettes will be set out and discussed presently. At this stage it may be recorded that, as already
indicated earlier, he did not dispute that the cassettes containing copies of the films which are the subject of these
proceedings were found in the possession of himself and the second defendant and were amongst those found in
the safe in the premises.
Accordingly, section 26(10) of the Copyright Act came into play. It provides as follows:
"In any proceedings by virtue of this Chapter with regard to the alleged infringement of the copyright in a cinematograph
film, a sound recording or a computer program, it shall be presumed, until the contrary is proved, that any person trading in
the selling, letting or distribution of copies of any of the said works, and who was found in possession of a copy of such
works, sold or let for hire or by way of trade offered or exposed for sale or hire such copy."
The evidence offered by the defendants in rebuttal of the presumption provided for in the section was the following:
The first defendant stated that he was advised by a Mrs Van den Berg, also a video shop owner in Port
Elizabeth, that the owners of a video shop in George,
Page 594 of [1996] 1 All SA 584 (SE)
Mr and Mrs Sonnen, were desirous of disposing of a quantity of video tape cassettes. Initially the asking price was
R5 000,00 which was too high for the first defendant. The price was subsequently reduced to R1 500,00. Being
under the impression that the items constituted legal stockintrade of the Sonnens albeit he did not ascertain the
titles of the films, he contacted Mrs Sonnen telephonically and agreement was reached that he would purchase the
tapes, 300 in number, for R1 500,00 representing a price of R5,00 per tape. At her request he deposited the sum of
R1 500,00 into her bank account at Trust Bank. The boxes containing the tapes were delivered in his absence and
his staff, as was their custom, opened same and commenced putting the firm's labels on the tapes. He arrived while
this exercise was in progress, but, on observing straightaway that the tapes were illegal copies of films, locked
them away in the safe. What moved him to that conclusion was the very unusual circumstance that a number of the
tapes comprised copies of two films and the handwritten labels on the cassettes. He explained that he would have
put the tapes, which were in good physical condition, to a legitimate use, i.e., by wiping them clean and then using
them for the purpose of making copies of home or other private video films for customers. Wiping the tapes clean
would entail running them through a video machine with the "play" and "record" buttons depressed, a process
taking three hours for each tape. He received the tapes during June/July 1993 and by the time he deposited the
purchase price in the relevant account the Sonnens had left for overseas. It was therefore impossible for him to
cancel the contract and he had in any event acquired them for a cheap price even for blank tapes. The films on the
tapes were not of the kind favoured by his clientele who came predominantly from the Black section of the
community and who preferred "action" or "karate" films. He was the only one who had a key to the safe and had
been shocked to observe on the video film, exhibit "2", someone using another key to open the safe. After the
events in question he had come across another key to the safe behind a television set in the premises which key
had clearly been acquired by nefarious means. His explanation for the two video machines which were shown in the
film was that the business engaged extensively in what he referred to as "dubbing", i.e., legitimately making copies
of home or private video films for customers who requested same. He dealt at some length with his relationship
with Holtzhausen and the character of the latter who had since disappeared but it is unnecessary for purposes
of this judgment to refer thereto. As to the events on 11 August 1993 he confirmed that when Van As, Potgieter
and the other policeman arrived Van As introduced himself and explained that the purpose of their visit was to
search for pornographic material. He registered no objection. At their request he unlocked the safe. It was after the
films comprising exhibit "1" were discovered that Potgieter introduced himself as a representative of the Motion
Picture Association of America and advised him that the cassettes in question were being confiscated. He, the first
defendant, furnished the boxes into which the films were packed. He did state to Potgieter that the tapes in the
safe were his "masters", but, so he explained, the reference was not to the tapes which had been confiscated but
to his private collection of old classical films which were also in the safe and which he thought were also going to be
confiscated. He stamped the evidence of Potgieter and Van As as to the explanations he allegedly gave as blatant
lies. He did not explain the origin of the confiscated tapes to Potgieter, a statement he confirmed when his attorney