explained and the examples must relate to the world in which the users live. As a result, example sentences
will tend to revolve around home and school and general matters of common knowledge and experience for
learners in the particular age group.
[31] Professor Taljard said that example sentences serve two functions. They not only illustrate word usage, but
they also enable the child to decode the meaning of the headword. Thus with the word "circle" the reference
is to the fact that a circle is round. The example sentences in relation to a baby will naturally refer to its age
so as to identify that it is a baby and distinguish it from other children. In order to illustrate this point
Professor Taljard prepared a table in which she compared 59 of the example sentences in the two dictionaries
in this case with example sentences from two other similar bilingual dictionaries aimed broadly at the same
market sector. The similarity they displayed was apparent from the schedule.
[32] Mr Rundell said that establishing plagiarism or copying in a reference work is more difficult than in the case of
a novel or song or a textbook. The reason is that a reference work, like a dictionary, is an assemblage of
generally available knowledge and one would expect correspondence between the contents of different
reference works dealing with the same topic. The problem is more acute when dealing with a relatively small
dictionary aimed at meeting the needs of learners with a relatively low level of language proficiency. Such a
dictionary, by its very nature, has a limited range of words and meanings and the necessarily simple
illustration of meanings by way of example sentences will call upon wellknown common concepts. His
conclusion was that:
". . . the resulting texts are likely to show strong similarity: indeed, it would be odd if they did not."
[33] Mr Rundell illustrated the explanatory function of example sentences26 with a number of examples drawn
from Dr Prinsloo's correspondences. He said that:
.
The word "bored" is best explained and understood by referring to someone having nothing to do;
Page 325 of [2016] 4 All SA 311 (SCA)
.
The word "broom" is best explained and understood by referring to someone sweeping;
.
The word "secondhand" is best explained and understood by contrasting it with something new;
.
The season "spring" is best explained and understood by saying that it is the season between winter
and summer;
.
The word "dear", as a form of address, is best explained and understood by referring to the salutation
at the commencement of a letter;
.
The word "drunk" is best explained and understood by reference to the excessive consumption of
alcohol.
[34] Like Professor Taljard, Mr Rundell illustrated his point about the likelihood of example sentences of an
illustrative nature being similar by way of a short table of 15 words comparing example sentences drawn from
five other dictionaries. However, he was careful to say that in his examination of the schedule annexure "NB
8" there were a few cases where the similarities could not be entirely explained by the constraints on
compilers to select the most frequent and typical scenarios. He mentioned five words where he took this view
but added that they constituted a minority of no more than 10 instances out of the total of 142 words in "NB
8". He specifically said that he could not agree with the claim by the deponent to the founding affidavit that
the similarities are "clearly too many and too noticeable to be coincidental".
Was copying proved?
[35] Media24 established that OUP had access to the Aanleerderswoordeboek and that there were sufficiently
substantial similarities between the example sentences to raise a prima facie case of copying, calling for an
explanation from OUP of how they arose. That explanation was forthcoming in two parts. First, there were
explanations by the three compilers of the methods they used in formulating the sentences as well as
evidence of their access, or lack of it, to the Aanleerderswoordeboek. Second, there was the evidence that such
correspondences were likely to occur when creating a dictionary of this type, given its limited range and
purpose and the need to adopt an approach to the formulation of example sentences that would fit with the
life experience of children.
[36] Media24 chose not to pursue this case by way of trial. Nor did it ask for the matter to be referred to oral
evidence. In asking for it to be decided on the affidavits alone, it therefore bound itself to the long established
approach described in Plascon Evans.27 That meant that the case could not be determined simply on a
weighing of the probabilities as they emerged
Page 326 of [2016] 4 All SA 311 (SCA)
from the affidavits. The facts deposed to by OUP's witnesses had to be accepted, unless they constituted bald
or uncreditworthy denials or were palpably implausible, farfetched or so clearly untenable that they could
safely be rejected on the papers. A finding to that effect occurs infrequently because courts are always alive
to the potential for evidence and crossexamination to alter its view of the facts and the plausibility of
evidence.28
[37] On the issue of copying, Media24 was confronted by the emphatic evidence of Mrs Cloete and Mrs Phaizee
that they did not copy at all. At best for it there was an acknowledgement by Dr Potgieter of the possibility
that��"a sentence or type of sentence may have stuck in my mind" from some other dictionary, not necessarily
one of Media24's range. But a random sentence or two is a far cry from the deliberate copying of which she
was effectively, although not expressly, accused. That she denied. Clearly she could not have been a "rogue