twelve percent of the words in the Oxford Woordeboek. Given that for many words there was more than one
example sentence that means that the percentage of example sentences showing correspondences would be
markedly less than ten or twelve percent, perhaps nearer five or six percent on Professor Dunne's figures.
That was not a great deal but it would probably be sufficient, if there was copying, to say that a substantial
part of the Aanleerderswoordeboek had been copied. However, it also raised questions about the manner in
which that copying had occurred. I will revert to this once I have dealt with the evidence on behalf of OUP.
[21] The answering affidavit on behalf of OUP was deposed to by Ms Megan Hall its publishing manager for
dictionaries, school literature in English and general adult books since 2008. She had managed the entire
process leading to the compilation and publication of the Oxford Woordeboek and therefore was familiar with it
in all its aspects. At the outset she noted that it was difficult to ascertain the precise nature and extent of the
complaint of infringement from Media24's papers. She also made the point that the dispute, involving as it did
a careful comparison between two dictionaries, was not appropriate to be resolved in application
proceedings. OUP's attorneys conveyed as much to Media24's attorneys prior to the commencement of
proceedings. Ms Hall indicated that as, notwithstanding this warning, the proceedings had been pursued by
way of application any
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request that it be referred for the hearing of oral evidence would be opposed. As it happened no such
application was made and the case was conducted on the footing that it should be decided on the affidavits
without resort to evidence.
[22] Ms Hall's affidavit dealt with all the original complaints by Media24 and traversed some matters that later fell
away. She explained that Professor Prinsloo from Pretoria University had been commissioned to prepare the
lists of headwords, using a corpus derived from OUP's publications. In the light of his affidavit, the contention
of copying based on the commonality of many of the headwords was not pursued. Three lexicographers,
working on a freelance basis, undertook the compilation of the entries in the dictionary. Mrs Aletta Cloete and
Dr Liezl Potgieter were responsible for the entries, and hence the example sentences, on the Afrikaans side of
the dictionary and Mrs Daphne Paizee prepared all the entries on the English side of the dictionary. At an
early stage, Dr Phillipus Louw was employed to work freelance as the editor of the dictionary, but after a few
months he was employed fulltime by OUP as its Senior Editor: Dictionaries. He was responsible for the editing
of the dictionary at every stage and where editorial assistants were employed to perform certain distinct
tasks he briefed them on the procedures to be followed.
[23] Each of the compilers deposed to an affidavit. Mrs Cloete and Mrs Paizee said that they were sent blocks of
about fifty words and were required to compile the entries for those words. This involved determining the
sense divisions of each word and writing example sentences for that word to illustrate its meaning. Both Mrs
Cloete and Mrs Paizee said that in undertaking this work they did not have copies of the
Aanleerderswoordeboek or the Pharos Tweetalige Skoolwoordeboek, another of Media24's dictionaries mentioned
in the founding affidavit. They said that they did not copy any of their example sentences from either of these
works or any other source. They both mentioned other dictionaries that were available to them, none of which
were published by Media24. Mrs Cloete explained that her background was as a teacher and an editor of a
major Afrikaans dictionary. She had authored an Afrikaans home language textbook directed at grades eight
to twelve, which broadly corresponded with the target market for the new dictionary. This background and
experience made it easy for her to write simple Afrikaans sentences directed at conveying the meaning of a
fairly basic vocabulary to learners aged between ten and sixteen.
[24] Mrs Paizee was equally well qualified to undertake the task of compiling entries for the dictionary. She had
been an English teacher in South Africa and the Democratic Republic of Congo, where she had taught English
as a second language. She had also been the coauthor and author of several dictionaries and held senior
positions, including editorial positions, at OUP, culminating in her becoming the Publications Director. She
acknowledged the difficulty of pitching example sentences at the right level for the target audience. The only
other work she consulted was the Oxford South African School Dictionary, a monolingual dictionary aimed
broadly at a similar group of learners to the Oxford Woordeboek. As mentioned, she had sole responsibility for
formulating the entries and the example sentences on the English side of the dictionary.
Page 322 of [2016] 4 All SA 311 (SCA)
[25] Dr Potgieter was working towards her M Phil in Translation at the time that she assisted with the compilation
of the Oxford Woordeboek. She therefore had less experience than her cocompilers. Her explanation of how
she went about the work was both more extensive and slightly different. As Media24's Counsel placed some
reliance on this in support of his argument it is best to quote what she said. It appears from the following
paragraphs of her affidavit:
"While I did this work as a consultant I had access to and consulted about 12 different dictionaries including the
Aanleerderswoordeboek and the Pharos Tweetalige Skoolwoordeboek. I compiled my work using Tshwanelex which is
a very useful dictionary compilation programme. Of the 12 Dictionaries I consulted, five were bilingual dictionaries.
The way I worked was that I would first think about the word I was working on in the headword list, its use in
language and its sense divisions that would be suitable for the target market of this dictionary. i.e. schoolchildren.
I would then consult the dictionaries I had in my library and check if there were any cases where the words were
used in ways different to what I already had in my treatment of the word that might also be necessary to include in a
learners' dictionary.
I would start by consulting the smaller dictionaries intended for school children and then I would consult the larger
ones, like the Verklarende Handwoordeboek van die Afrikaanse Taal (HAT) and other monolingual Afrikaans
Dictionaries to conduct the check as set out in the previous paragraphs.