on the surface to be a situation of nothing to gain and everything to lose.
[45] Turning to the second scenario it involved the three compilers deciding separately, and without communication
with their colleagues, to copy example sentences from elsewhere and all of them then choosing to do so from
the Aanleerderswoordeboek. The improbabilities outlined in relation to the conspiracy theory were compounded
in the nonconspiracy situation. The reason is that in a conspiracy there may be one person who thinks of
engaging in it and then persuades the others to join in. Where there is no conspiracy and they each act
separately that requires each of them to have formed separate reasons for engaging in the dishonest and
forbidden activity. The probability of one of them doing so was already small for the reasons dealt with in the
previous paragraphs. The probability that two of them would do so and would choose the same vehicle to
cheat was even smaller. The probability of all three doing so, using the Aanleerderswoordeboek, was likely to
be vanishingly small.32
[46] Had Media24 proceeded by way of trial action it would have had to address these questions to the compilers
and discredit their evidence through the medium of crossexamination. Instead it argued that the
correspondences alone were inexplicable unless copying had occurred. This not only required that the
compilers be disbelieved, but it needed to exclude as even possibly credible the explanation for the existence
of the
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correspondences that excluded copying. That lay in the evidence of Professor Taljard and Mr Rundell. They
both said that some such correspondences were probable, if not inevitable, when preparing a dictionary of
this sort, where there is a rival in the market. The reason was that the dictionaries were basic dictionaries
aimed at school children, who were in the process of learning a language. The headwords in the dictionary
represented a basic vocabulary and the meanings that the dictionary sought to illustrate were those most
common in ordinary usage. The example sentences were therefore directed at being simple and clear and
based on the life experience of the children, which was likely to be limited. In the result, so they said, it was
not surprising to find correspondences in the example sentences, whether in their formulation or in their
context.
[47] There was support for this in the replying affidavit of Dr Smith. She accepted that certain example sentences
can illustrate a very typical usage of a word and where there was a correspondence in the two dictionaries in
relation to such instances it was not necessarily due to copying. This required a comparison of the sentences
and an evaluation of them to see whether their correspondence might be attributable to this. Her only quibble
with the argument was that she said that this did not apply to all the example sentences. As regards the
evidence of Mr Rundell this was not significantly challenged, although Dr Smith took the view that his views
based on monolingual dictionaries were not entirely applicable to work on a bilingual dictionary. That in turn
was based on a lexicographical principle about which there was disagreement, namely whether all the words
on the one side of the dictionary should correspond with all the words on the other side. Dr Smith was a firm
believer in this, but those responsible for the OUP publication and OUP's expert witnesses did not share this
view. Of greater importance was that Dr Smith accepted Mr Rundell's illustrations of how words are used in
conjunction with others, and his view that the frequency with which a word is used in conjunction with
another is highly relevant to the formulation of a simple sentence to illustrate the meaning and use of the
latter were in substance accepted. All that was denied was that this was the reason for the correspondences
in the present case.
[48] Similarly, much of the evidence of Professor Taljard was accepted and only disputed on minor points of
emphasis, nuance and approach, rather than being rebutted on points of substance. In the face of all this
evidence directed at showing that copying had not occurred we were invited, from a perusal of Dr Prinsloo's
two schedules, to infer that the correspondences were so blatant, and the possibility of their having occurred
in the ordinary course of compilation of a dictionary of this type so farfetched, that we could reject all of this
evidence on the papers.
[49] I am unable to reach that conclusion on the basis of Dr Prinsloo's schedules alone and in the absence of the
witnesses having given evidence and been crossexamined. Counsel for Media24 accepted that some of his
correspondences were inevitable as pointed out by OUP's witnesses. For example, in both dictionaries the
sentences in regard to the word "baba" ("baby") referred to the age of the baby. In both, one of the
sentences in regard to the word "blue" refers to the colour of the sky and another refers to the mixing of blue
with another colour to make a third colour. In
Page 330 of [2016] 4 All SA 311 (SCA)
both, the words "alphabet" and "alphabet" are illustrated by reference to the alphabet having 26 letters. In
both, the word "afskop" (kickoff') is explained by reference to the time of the kickoff. In both, the sentence
explaining "stomachache" refers to eating too much. Whether Mossel Bay or Agulhas is chosen, they are
obvious reference points when illustrating the word "south". Describing "spring" as coming between winter
and summer is likewise obvious. In each of these cases (and there are many more) it seems to me that the
correspondence between the sentences is at least as likely, if not more likely, to have arisen from the
adoption of the most obvious ordinary example of the use of the word in common parlance among
schoolchildren. In other words, the inference that Media24 asked us to draw from the correspondences on
their own was not a permissible one.
[50] If Dr Prinsloo had excluded from his lists instances of the type discussed in the previous paragraph, a clearer
picture would have emerged of the cases where copying could more properly be advanced as the explanation
for correspondences. That exercise would also have given a better idea of the potential scale of copying,
which as already mentioned could not on any basis have been extensive. I could understand evidence
showing that in the ordinary course a correspondence of about five percent was to be expected when