this regard the matter must be looked at broadly and not by dissecting the employee's task into its
component activities.16 His duties changed over the years but one would not ordinarily include computer
programming as part of the duties of a meteorologist. However, that is not the full picture. As meteorologist
King had to collect and collate meteorological data and transmit it to head office for analysis and storing. He
developed his programs for this very purpose. Although he may have done it to make his own job easier, he
did it because of his employment with the Bureau.
[20] This leads to another and most significant factor. It is clear that but for his employment with the Bureau, King
would not have created these works. There is, accordingly, a close causal connection between his
employment and the creation of the programs. In other words, his employment was the causa causans of the
programs. Some of the programs were specifically written for other weather stations of the
View Parallel Citation
Bureau at their request and for their use. They were not created for external use by others; instead, they
were purely work related. Importantly, the Bureau prescribed the format of the programs and had to approve
of them before they could be implemented and used in the system.
[21] Reverting to King's evidence that he was the owner of the copyright because the works had not been
prepared in the performance of his duties, the problem is that it is belied by the objective facts. For instance,
King prepared quarterly reports about the performance of his duties. They dealt with his merits as employee
and they stressed that the major component of his work was programming. A job evaluation investigation in
April 2000, with which he agreed at the time, stated that he was responsible for system development and
programming and calibration of the Bureau's automatic weather station network. The estimate was that he
was, at the time, spending some 50 per cent of his time on system development and programming.
[22] This also controverts his evidence that he had compiled the programs after hours. Although it must be
accepted that his initial programming
Page 38 of [2009] 2 All SA 31 (SCA)
took place at home it is clear that as time passed he spent increasingly more of his office hours developing
programs, to such an extent that he failed to give sufficient attention to his duties as head of the Upington
office. In any event, the fact that an employee creates a work at home (or even during office hours at the
premises of the employer) is but a factor that has to be taken into account in answering the question whether
the work was made in the course of his employment.
[23] Mr King also relied on the Personnel Administration Standard, which contained a personnel standard for a
meteorological technician. It did not list computer programming as part of the job description but the
document in its terms was not intended to be allembracing and anticipated that a fuller job description could
be issued (as happened) and, as said before, a work may be created in the course of employment without
having been created in terms of the contract. In addition, the scope of employment may change explicitly or by
implication.17 Lastly, he relied on an industrial settlement agreement, which provided that the April 2000 job
evaluation would be cancelled. The meaning of the settlement agreement need not be considered as
cancellation could not change ownership retrospectively.
[24] It is not necessary to deal with the evidence any further. The court below did a careful analysis of all factors
relevant to the question and came to the conclusion that the works had been made in the course of King's
employment. King's counsel was not able to show that the court below had erred. To the contrary, I am
satisfied that the court did not. This conclusion obviates the need to consider the other issues18 and the
appeal stands to be dismissed with costs.
View Parallel Citation
[25] The following order is made:
The appeal is dismissed with costs.
(Cloete, Cachalia JJA, Leach and Griesel AJJA concurred in the judgment of Harms ADP.)
For the appellant:
ESJ van Graan SC instructed by Botes Attorney, Pretoria and Claude Reid Attorneys, Bloemfontein
For the respondent:
AJ Bester instructed by Spoor & Fisher, c/o Van Zyl Le Roux & Hurter, Pretoria and Israel Sackstein Matsepe Inc,
Bloemfontein
Footnotes
1
2
3
Memory Institute SA CC t/a SA Memory Institute v Hansen and others 2004 (2) SA 630 (SCA) [also reported at [2003]
JOL 11019 (SCA) Ed]; Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd 2006 (4) SA 458 (SCA).
S 41(4). Compare Ashdown v Telegraph Group Ltd [2001] EWCA Civ 1142; Butterworth & Co (Publishers) Ltd v Ng Sui
Nam 1987 RPC 104 (Singapore High Court); Théberge v Galerie d'Art du Petit Champlain Inc 2002 SCC 34, [2002] 2
SCR 336.
S 11B: