would want to trade in pirate copies thereof. The comment may be made that the mere fact that a "top" film was
somewhat dated would not mean that there would not be a sufficient market for it.
The first aspect of the first defendant's evidence to be considered is his claim as to the origin of the offending
tapes.
Much was said by Mr Cullabine in criticism of the first defendant in this regard. The criticism was not misplaced. As
set out earlier, it was the first defendant's case in this Court that he took delivery of the tapes during June/July
1993, i.e., approximately one to two months prior to the visit of Van As and Potgieter to his premises. However, in
exhibit "I", the statement made by the first defendant for submission to the police, he said that he had acquired the
tapes approximately one year prior to the incident. That, he said, was a mistake. The difference between one or
two months and approximately one year is not without importance because a much longer period would have
elapsed without his attending to wiping any of the tapes clean and it is difficult to understand how the mistake
could have occurred even if the statement was signed some time in 1994. He conceded that his attorney had told
him that it was a serious matter and that he should be careful in what he said. When asked
Page 597 of [1996] 1 All SA 584 (SE)
if he had properly checked the statement before signing it he said that if he was at the time "in a state" and did not
trust the attorney and was about to "leave" him he may not have checked the statement thoroughly. At best the
statement was a non sequitur. If he did entertain doubts as to the attorney's integrity or competence all the more
reason existed to check the contents of the statement with care before he allowed it to be submitted to the police.
It may be noted further that a handwritten correction in the statement was initialled by the first defendant. In his
various pleas the following statement appeared:
"Gemelde bande was teen R5,00 per band aangekoop en was Verweerders bona fide en redelik onder die indruk ten tye van
die aankope, welke transaksie telefonies geskied het, dat gemelde bande blanko bande daar sou stel. Verweerders se
bedoeling was om gemelde bande as blanko bande te verkoop. By aflewering het Verweerders vasgestel dat gemelde bande
egter bestaan uit bande wat inhoudmateriaal bestaande uit 'n verskeidenheid van films bevat het."
This statement is at variance with his evidence in a material respect, viz., in regard to the content of the tapes
which he was purchasing. The first defendant sought to rely on the possibility of a mistake on the part of the typist
who typed the pleas or of a misunderstanding during the relevant consultation between him and counsel, the latter
having been Afrikaans speaking and the consultation having been conducted in English. Neither of those
possibilities commend themselves for acceptance. One cannot envisage how a typist could have made a mistake of
this nature leaving aside the question that the plea was presumably checked by both counsel and the attorney,
who was present at the consultation, prior to its being filed. By virtue of the detail contained in the plea one
similarly has difficulty in envisaging how both counsel and attorney could have laboured under the same mistaken
impression. Moreover, the plea was filed during March 1995 and there was no attempt made at any stage to seek
an amendment thereof. The third criticism relates to the inability of the first defendant to produce any documentary
proof of the transaction with the Sonnens and specifically proof of the deposit of cash into their account which the
first defendant alleged he made. He claimed he was unable to trace the deposit slip and he said that without his
furnishing the account number the local branch of the Trust Bank was not able to assist him. Even if this were so,
which may be doubted, a similar problem should not have been encountered at the George branch of the bank. The
fourth criticism arises out of the discrepancies between what was put on behalf of the defendants to the plaintiffs'
witnesses and the first defendant's own evidence on the question of whether the first defendant had on the
occasion when the premises were searched proffered the explanation that he had obtained the tapes from the
Sonnens as to which see the résumé of the evidence set out earlier. The fact that, on his own later showing, he
did not proffer that explanation in circumstances when the explanation, if true, would have been immediately
forthcoming as to which circumstances, see below is a serious derogation of the acceptability of his evidence. It
should finally be noted that it was Potgieter's evidence that the first defendant admitted that he had "made" the
tapes.
Had the first defendant's evidence stood alone the above criticisms would probably have been sufficient to found
a rejection of the evidence. However, there is the additional feature that Mrs Van den Berg testified that she
subsequently heard from the first defendant that he had purchased the tapes that the
Page 598 of [1996] 1 All SA 584 (SE)
Sonnens had offered for sale. In the context of her evidence that discussion would have taken place prior to the
date on which Van As and Potgieter visited the premises of the second defendant. If that evidence is true it
constitutes cognisable support for the case of the defendants as to how they came by the tapes. There is a
suspicion that Mrs Van den Berg was not an impartial witness, and the criticisms of the first defendant's evidence
referred to above also bear on the acceptability of her evidence. However, I intend to proceed on the basis, without
making a positive finding to that effect, that no sufficient basis exists for holding that the evidence of Mrs Van den
Berg was mendacious and that, whatever shortcomings there were in the first defendant's evidence, the support
constituted by Mrs Van den Berg's evidence is sufficient to carry the day for the defendants in the matter of the
acceptability of their explanation as to the origin of the tapes in question.
Such a finding would, however, not mean that the case must be disposed of in the defendants' favour. The
statements which the defendant made concerning the offending tapes, the findings in regard to which are set out
below, after their discovery by Van As and Potgieter, seen in the light of certain surrounding circumstances,
establish that the defendants were dealing in the tapes in breach of the plaintiffs' copyright therein. As intimated
earlier that conclusion would follow whether on the basis that the defendants failed to rebut the presumption
imposed on them in terms of section 26(10) of the Copyright Act or whether on the basis that the onus rested on