repeated the relevant question. He later added that he did not have to volunteer that information
Page 595 of [1996] 1 All SA 584 (SE)
meaning presumably that no explanation was sought from him and intimated that in any event he would not have
been believed. Moreover, his attorneys had advised him not to make any statements. He knew that Potgieter
wished to check if the tapes were "pirate" copies. He added that he already had legitimate copies of approximately
90% of the confiscated tapes amongst his stockintrade and, with reference to his earlier evidence that his
clientele was largely uninterested in such merchandise, explained the presence of such stock by pointing to the fact
that when purchasing new stock video shop owners are obliged to accept a package which includes such unwanted
material, referred to as "fillers". The tapes were not available for hire out to the public or loan to his friends. Hiring
out thereof would have been difficult as the tapes had not been numbered or catalogued and would, by reason of
the condition of the tapes, have damaged his reputation. He confirmed that exhibit "I" was a statement made by
him in consultation with his attorneys and submitted by them to the police. It contained the details of his defence.
He conceded that some of the tapes confiscated had been retrieved from the work area in his premises in regard to
which he said that Holtzhausen must have duplicated the safe key and removed some of the tapes to the work
area and then video taped the scene so as to create the impression that duplicating of the tapes was being
undertaken.
Mrs Van den Berg confirmed that the Sonnens, who were friends of hers, had contacted her some time after May
1993 offering video tapes for sale. Their initial asking price was R5 000,00 and the number of tapes was 150, a
figure of which she was sure. She herself was not interested in acquiring the tapes, but told the Sonnens that she
would make enquiries from the other video shop owners. One of those approached by her was the first defendant.
He balked at the price of R5 000,00. She heard subsequently from the first defendant that he had in fact purchased
the tapes from the Sonnens for R1 500,00. The conversation between them on that occasion also canvassed the
fact that the tapes had only cost R5,00 each and that the defendant could put them to good use as blank tapes.
She had given his telephone number to the Sonnens. She expressed some disbelief at the suggestion that the
defendants would have wanted to trade in "fillers", the reference being to the confiscated tapes.
One Pienaar testified that while he was studying at the University of Port Elizabeth he engaged in parttime shift
employment with the defendants during the period 1988 to about May 1994. Since approximately 1990 he had
gone out of town once a week to sell videos on behalf of the business. He had never seen exhibit "1" on the
premises and as far as he was aware the defendants had never traded therein or in any other illegal material. Part
of his duties consisted of making copies of private films for customers. He confirmed that the practice in the business
was for staff to open consignments of stock, label the cassettes and list them alphabetically and numerically. He
conceded that in the nature of things there had been many times when the first defendant was in the shop and he
was absent. The safe did contain spare copies of films purchased second hand to replace copies in stock which
became damaged. Such replacements would be done on the instructions of the first defendant who was the only
one who had a key to the safe.
It was the submission of Mr Cullabine that on a proper assessment of the evidence in its entirety the defendants
had failed to discharge the onus imposed on them in terms of section 26(10) of the Copyright Act. Indeed, he
argued that even if the plaintiffs were not assisted by any presumption they had nevertheless
Page 596 of [1996] 1 All SA 584 (SE)
succeeded in establishing that the defendants had, in breach of the copyright of the plaintiffs, traded illegally in the
films in question.
On a conspectus of all the evidence I hold that these submissions must be upheld. My reasons for that
conclusion are the following:
The evidence of Pienaar did not take the case any further and specifically it did not and could not exclude that
the defendants dealt illegally with the films in question. Apart therefrom that it need hardly be said that good
reasons existed why such activities would not have been undertaken in his presence, on his own showing he was
frequently absent from the premises and he could naturally not comment on what occurred during such absences.
Mrs Van den Berg was a witness who proved to be voluble in the extreme. That appeared to be no more than a
personality trait, however, and I do not consider that her credibility was affected thereby. Her evidence did offer
support for the defendants on the issue of the origin of the offending tapes, viz., to the extent that she testified
that she was approached by the Sonnens, that she corroborated the first defendant's testimony that she passed
on to him the information concerning the tapes which were for sale and stated that she gave the defendants'
telephone number to the Sonnens and that she subsequently heard from the first defendant that he had in fact
acquired the Sonnen tapes. She was, however, unable of her own knowledge to confirm same. It is true that she
stated that she was sure that the Sonnens wished to dispose of 150 tapes whereas the first defendant said that
he purchased 300 tapes from them. It cannot be excluded, however, that the extent of the merx could have been
changed in the negotiations which the first defendant alleges he had with the Sonnens.
One other aspect of Mrs Van den Berg's testimony requires consideration. Her expressed disbelief in regard to
the likelihood of the defendants trading in copies of the offending films on the grounds of the latter being in the
nature of "fillers" did not stand up to scrutiny and may have been an indication of a partiality on her part in favour
of the defendants. She herself was constrained under crossexamination to concede that some ten of the films, the
titles of which were put to her, were in fact not "fillers", but "top" films. On the other hand she indicated that three
of these films were old and that another had not been a success in South Africa and she questioned why anyone