compiling similar dictionaries, but that correspondence of twenty percent was beyond the norm, but no such
evidence was led. Media24 elected to stand or fall by Dr Prinsloo's comparisons without a trial. In my view it
must fall for the simple reason that without the advantages that a trial would have given, it is impermissible
to reject the evidence of the compilers and the explanation that OUP advanced for the existence of the
correspondences. That does not involve any final conclusion on the issue of copying. It merely explains why a
positive conclusion that copying occurred could not be made on the basis of the correspondences alone.
[51] Two comments remain to be made. The first is that I have not dealt in detail with the possibility that the
alleged copying occurred during the editorial phase under Dr Louw. The reason is that the argument centred
around the compilers and it was not suggested that, if they were not guilty of copying, Dr Louw and his
editorial assistants had discarded some of their work and engaged in copying during the editorial process.
The improbability of that occurring was considerable. Not least of many points that could be made is that
there would have been no purpose in discarding the work of the compilers for which OUP had paid, in favour
of copying from the Aanleerderswoordeboek. Again, however, the illumination that crossexamination would
have thrown on this issue was absent because of the manner in which Media24 elected to conduct its case.
[52] The second is that the task that Media24 set for itself in trying to discharge the onus of proving copying on
the papers without oral evidence was an onerous one. In the three cases referred to in argument where a
court rejected a denial of copying by the author of the infringing work33
Page 331 of [2016] 4 All SA 311 (SCA)
that occurred only after a full trial. In Bron, Da Vinci Code and IPC Media the denial of copying was accepted
after trial. It seems to me that it will only be in the most egregious case that a court will reject a denial of
copying merely on the basis of comparing the two works and without crossexamination of the author or
authors of the alleged infringing work. It suffices to say that this is not such a case.
Result
[53] In the result the appeal is dismissed with costs, such costs to include those consequent upon the employment
of two Counsel.
(Navsa, Theron, Petse and Willis JJA concurred in the judgment of Wallis JA.)
For the appellant:
AR SholtoDouglas SC and BJ Vaughan instructed by Edward Nathan Sonnenbergs, Cape Town and Symington & De
Kok, Bloemfontein
For the respondent:
WRE Duminy SC and AE Erasmus instructed by Cliffe Dekker Hofmeyr, Cape Town and Claude Reid Incorporated,
Bloemfontein
Footnotes
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For example "dog", "run" or "for". In lexicographical usage the technical expression to describe these words is a lemma.
For example, a word may be both a noun and a verb, as with "boil" denoting both a type of sore (the noun) and the
action of heating some liquid to boiling point (the verb).
Media24 also produces a bilingual dictionary under the name Pharos Skoolwoordeboek, which was published in 2005
and is referred to in its application papers. However, all the evidence in support of the complaint of breach of copyright
related to the Pharos Aanleerderswoordeboek. Accordingly, the judgment will refer only to that work.
For example the Oxford Woordeboek has the English word "salad", but not its Afrikaans equivalent "slaai". Differing
views are expressed in the papers on whether this is sound lexicographical practice but nothing turns on it.
For example the English word "desert" may be a noun referring to an arid area of the world, as in the Kalahari Desert,
or a verb referring to a person leaving their duty, as in "the soldier deserts the regiment" or "the man deserted his
wife".
For example the word "recognised" may mean that a person is seen and known to be a particular individual as in "I
recognised my friend John", or may mean allow to speak, as in "The Speaker of Parliament recognised the Minister of
Transport". Afrikaans examples are the words "aan", "af", "agterkom" and "almal".
The Webster's Third New International Dictionary (1985) contains verbal illustrations to illustrate the usage of a word in
context and quotations using the word. Similarly, the 1913 Webster's Online Dictionary (available at www.webster
dictionary.org) contains both explanations of the meaning of words and quotations illustrating their usage. Similar
examples of this approach can be found in the major dictionaries published by the respondent and its competitors.
For example, there would be little point in illustrating the word "sang" with the sentence "The a cappella group sang a
Gregorian chant". A more appropriate sentence would be "Nkosi sang in the school choir".
As occurred in Fax Directories (Pty) Ltd v SA Fax Listings CC 1990 (2) SA 164 (D) [also reported at [1990] 1 All SA 107
(D) Ed]. There is a famous example of that in the case of the New Oxford American Dictionary (2005) which listed the
nonexistent word "esquivalience" and gave as its meaning "the wilful avoidance of one's official responsibilities".
Apparently, the word thereafter found its way into a document emanating from the White House.
This echoed his client's view in the founding affidavit that "Bogenoemde ooreenkomste is bloot té veel en té ooglopend
om aan blote toevalle toegeskryf te word". (The abovementioned correspondences are simply too many and too eye
catching to be ascribed simply to coincidence.)
See para (d) of the definition of "literary work" in s 1(1) of the Act.
S 2(1)(a) of the Act.
S 6(a) of the Act.
S 23(1) of the Act.
Galago Publishers (Pty) Ltd and another v Erasmus [1988] ZASCA 131; 1989 (1) SA 276 (A) at 279G280C (Galago
Publishers) [also reported at [1989] 1 All SA 431 (A) Ed].
Baigent and another v The Random House Group Ltd [2007] EWCA Civ 247 para [141] (Da Vinci Code).