Whether we should, in due course, follow the Canadian approach need not be decided now."
[14] In Waylite Diary CC v First National Bank Ltd, a case concerning the subsistence of copyright in the pages of a
diary, Harms JA wrote:6
". . . While it is true that the actual time and effort expended by the author is a material factor to consider in
determining originality, it remains a value judgment whether that time and effort produces something original."
[15] It seems to me that the expression "sweat of the brow" is imprecise and capable of being misunderstood. A
court will only be able to determine
Page 198 of [2016] 3 All SA 193 (GJ)
originality after it has weighed up all relevant considerations and made a value judgment. Our law still
regards the time and effort spent by the author as a material consideration in determining originality. But the
time and effort spent must involve more than a mechanical, or slavish, copying of the existing material. In
other words, there must be sufficient application of the author's mind to produce a work that can be judged to
be "original":
"Where a work embodies existing subject matter the court must decide whether its author has expended sufficient
skill and labour to justify a claim that the work is original."7
[16] It should also be noted that a determination of originality applies to the work as a whole, and not to select
parts: "Under the Act the inquiry is whether the 'work' . . . was original. The inquiry is not whether its parts
are original."8
[17] I turn to consider whether Moneyweb has established that the articles, in respect of which it claims copyright
protection, are original. Moneyweb correctly accepts that it bears the onus of proving originality.
The first article: "Annual packages for MPs may reach well over R1m"
[18] I shall refer to this article as "Moneyweb 1". It was published on 25 July 2012 at 5:53pm and was written by
Ms Kim Cloete, a freelance contributor contracted to Moneyweb to write articles for publication on its website.
As with all the other Moneyweb articles, Media24 does not dispute that the author of the article is a "qualified
person" in terms of section 3(1)(a) of the Act, that Moneyweb too is a "qualified person", in terms of section
3(1)(b) of the Act, and that Moneyweb is the owner of the literary work. The article is set out below. The
underlining is my own, intended to mark the parts that were reproduced in the related Fin24 article:
"Annual packages for MPs may reach well over R1m
Updated: Now with a table of the proposed salaries.
CAPE TOWN Members of Parliament may soon be earning a basic salary of nearly R900 000 a year if the President
accepts the 5.5% salary increase that's been recommended for them.
The proposed annual salary for MPs of R889 383, is apart from a range of perks including S & T, numerous flights,
pension, medical aid and virtually free accommodation in Cape Town when Parliament is in session.
The recommended salary Increase for all public office bearers from the president to municipal councilors [sic] was
announced by the Independent Commission for the Remuneration of Public Office Bearers, at a media briefing in
Cape Town.
President Jacob Zuma will consider the recommendations by the commission, headed by Judge Willie Seriti. In the
past, the president has adjusted the proposed increases, although last year, he followed through with the
commission's recommended 5% increase.
Page 199 of [2016] 3 All SA 193 (GJ)
In terms of the 5.5% raise for 2012/2013, the president's salary could increase from R2 485 839 to R2 622 561.
The Deputy President, the Chief Justice, the Speaker of the National Assembly and the Chairperson of the National
Council of Provinces could each earn a basic salary of slightly over R2.3m.
The proposed increase would hike the salaries of ministers to just over the R2m mark, with deputy ministers earning
around R1.6m a year.
The recommendations could lead to premiers earning R1.888m a year, with mayors earning slightly over R1m a year.
Salaries of judges would range between R1.8m for a Constitutional Court judge to R1.45m for a judge in the High
Court.
The commission said it had taken a basket of factors into account, including trends in the consumer price index (CPI),
national market trends in the private and public sector and affordability. Seriti said 'relevant stakeholders' had been
consulted, although this did not include civil society.
Commissioners consulted with the Ministers of Finance, Justice and Public Service and Administration before making
their recommendations.
'The minister of finance has differed with our recommendations in previous years, but this year we received a positive
response from all ministers, including the minister of finance,' Seriti said, adding that Gordhan's views play a role
'although he does not dictate to us.'
Schedule 1 [figures and headings omitted]
Schedule 2 [figures and headings omitted]
Past recommendations and the president's determinations had also been noted, together with economic conditions in