compiler", as referred to by Counsel, because the evidence of Professor Dunne showed that the
correspondences were relatively evenly distributed among all three compilers. His evidence reinforced what
was already apparent, namely that the correspondences could not be the work of one compiler alone,
because they appeared on both the Afrikaans and the English sides of the dictionary. In view of the division of
labour among the compilers that necessarily meant that they were the product of more than one person.
[38] Media24's response to this was a direct challenge to the truthfulness of this evidence. In its replying affidavit,
Dr Smith said that given the degree of correspondence between the two dictionaries she was compelled to
deny the contents of their affidavits insofar as they alleged that in compiling the example sentences they had
not copied from the Aanleerderswoordeboek. Its case was therefore that the denials of copying were "bald or
uncreditworthy denials or were palpably implausible, farfetched or so clearly untenable that they could safely
be rejected on the papers." Counsel submitted that this was justified. I do not agree.
[39] It is apposite to mention that Counsel was invited to indicate in what manner the alleged copying had
occurred. No clear answer to that question emerged in the course of argument. The drumbeat of the
argument was simply that the correspondences were so extensive as to rebut any evidence or any probability
pointing in the opposite direction. That is not a proper approach. As Harms JA once said:29
"It is manifestly unfair to argue a case on inferences from some facts and ignoring unchallenged direct evidence to
the contrary."
The circumstances in which a conclusion can be reached on credibility without hearing oral evidence are rare.
[40] The argument for Media24 seems to me to fall into the trap of being misled by what has been referred to as
similarity by excision. In IPC
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Media,30 a case that in the way it was conducted bears a close resemblance to this one, the point was made
that in order to establish breach of copyright all the evidence must be examined, not only that which points in
the direction of copying. Laddie J said:
"In copyright cases, chipping away and ignoring all the bits which are undoubtedly not copied may result in the
creation of an illusion of copying in what is left. This is a particular risk during a trial. Inevitably the court will be
invited by the claimant to concentrate on the respects in which his work and the alleged infringement are similar. But
with sufficient concentration one may lose sight of the differences. They may be just as important in deciding whether
copying has taken place."
It is important to heed this warning. In order to appreciate this point it is necessary to examine closely the
facts in regard to matters where there was no allegation of copying. In other words, in order to deal with the
contention that the correspondences alone sufficed to carry the day in favour of copying, we must look at the
evidence on behalf of OUP that its dictionary was compiled without copying. Only then can the merits of the
argument that we must reject this evidence, based on the correspondences alone, be assessed.
[41] I start with the extent of the alleged copying. Professor Dunne demonstrated that no more (and probably
less) than sixty percent of the headwords were common to both dictionaries. Thus the entries in respect of
the words that were not common could not have been copied. It was suggested that of the common words
only around twenty percent showed correspondences with the example sentences in the
Aanleerderswoordeboek. These figures showed that the bulk of the work in the Oxford Woordeboek w a s
original.31 That meant that any copying that occurred was intermittent. An examination of Dr Prinsloo's
schedules does not reveal any discernible pattern and none was suggested to exist, for example, that
correspondences occur only in relation to words having multiple complex meanings. Most are in relation to
relatively commonplace and quite simple words like "box", "broom", "distance", "invite" and "sleep" to take a
few examples. That implied that the alleged copying was both random and intermittent with no apparent
common theme, although it was said to be deliberate.
[42] Apart from its reliance on the correspondences Media24 needed to propose a plausible scenario in which the
copying it alleged had taken place. As noted in paragraph 39 it did not do so. That complicated its task. If the
correspondences, or at least the bulk of them, arose from the three compilers having copied example
sentences from the Aanleerderswoordeboek, Professor Dunne identified two possible scenarios. The one was
that the three had collaborated in copying and agreed to use Media24's dictionary to that end. However,
there was no evidence that they
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were even aware of the identity of their cocompilers, or knew one another, or were in communication. But
that was necessary if the conspiracy theory, as Professor Dunne referred to it, was true.
[43] It was also necessary that these three women, all highly qualified, and two with established records in the
field of pedagogical publications aimed at schools and school children, would be willing to risk their
reputations and their future careers by engaging in such dishonest actions on a limited scale. They would
have had to breach their contracts with OUP in terms of which they warranted that their work was original,
and in doing so they would have had to run the risk that a highly skilled and experienced editor might pick up
the copying in the course of the editorial process. Given their backgrounds they must all have been acutely
aware of the risks involved in copying another publisher's dictionary.
[44] Finally, what advantage did they stand to gain from doing this? As illustrated by Professor Dunne the
correspondences amounted to less than ten percent of the entire task undertaken by them, so random
copying would not markedly have eased the burdens imposed by that task. Most of the example sentences
were simple and it was unlikely that persons as well qualified as the three compilers would have found it
particularly difficult to formulate the sentences. Nor would it have resulted in extra remuneration. It seemed