[23] Nugent J took a different view of the evidence, finding that it was "not altogether clear what caused the
learned Judge to conclude that Mr Sidorski's evidence was improbable."14 Nugent J continued:15
"However, the submissions made on behalf of the respondents were directed to a different point. It was submitted, as
I understood it, that the allegations made by Mr Sidorski did not constitute evidence at all, and were no more than
conclusions, unsupported by established facts. . . ."
"Where existing material has been used to create the relevant work, there may well be cases in which detailed
evidence will be required as to the manner in which the work was created to show that, notwithstanding use being
made of an existing work, the nature and extent of the author's contribution was such as to constitute more than
mere copying. Furthermore, the author might, in such circumstance, be the only person with sufficiently detailed
knowledge of what has been done in order to establish that his contribution was original. However, in my view, there
can be no rule of thumb in that regard, for each case will necessarily depend upon its own facts."
"In the present case there is no suggestion in the evidence that the authors merely transposed, or even had
reference to, existing works in the course of creating the drawings. . . ."
". . . I do not agree that [Mr Sidorski's] allegations amount to no more than conclusions. He said that he observed the
authors producing the drawings by the application of their 'personal skill . . . and labour', and without copying from
any other drawing. Those, in my view, are observable facts, which, if they are correct, support his conclusion that the
drawings were original. I do not think the appellant was required to go further in the absence of any proper challenge
to those allegations."
[24] In my view, this is a case in which more evidence was required to establish that Moneyweb 1 is an original
work. It is common cause that the article is based on the information that was made available at the press
conference. I do not know how much of the article is Ms Cloete's own work or simply a repetition of what was
said in her presence or contained
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in a written press release. Simply put, I am not able to discern the nature and extent of her contribution.
[25] Her statement that the "article is an original work and required [her] independent effort, skill and expertise to
write" is indeed no more than a conclusion. I have no basis from which to assess her independent effort, skill
and expertise. The fact that she attended the press conference, took notes and asked questions does not
mean that the article is not a mechanical repetition of existing material. How does the article compare against
the material on which it is based? Unlike Mr Sidorski's allegations, Ms Cloete's statement on originality
contains no factual allegations that could support the conclusion it reaches. Accordingly, I find that Moneyweb
has not established that Moneyweb 1 is an original work.
The second article: "Group Five hits rock bottom"
[26] I shall refer to this article as Moneyweb 2. It was published on 13 August 2012 at 5:08pm and was written by
Ms Sasha Planting, a freelance contributor contracted to Moneyweb to write articles for publication on its
website. The article is set out below, with the underlining of those parts that were reproduced in the related
Fin24 article.
"Group Five hits rock bottom
But earning expected to rally with construction materials business.
CAPE TOWN Construction and engineering firm, Group Five, has hit rock bottom but expects to improve within the
next year.
This is according to CEO Mike Upton, who noted an uptick in construction orders combined with some tough cost
cutting and reorganising of the business, will position the group for a return to earnings profitability in 2013.
Revenues remained flat at R8.8bn, but headline earnings per share fell by 64.4%.
The biggest reason for the loss was contract losses in the Middle East where cash strapped clients are finding any
excuse not to settle their debts, in addition, impairments from preciously discontinued operations in India and
impairments of assets in the construction materials businesses, which are being sold off, caused further losses.
While the losses from the Middle East were bigger than expected, the group has no plans to exit that market. The aim
is to cut its losses and settle payment disputes now, rather than let the situation drag out, Upton says. The group will
then lie low so to speak until market conditions improve there.
Light In the tunnel
This is the last year of pain when it comes to the construction materials business. Two businesses in this division have
been sold and the remainder will be disposed of before the calendar year is out. Upton estimates over R1bn worth of
shareholder value was destroyed through acquisitions bought at the height of the construction cycle.
Meanwhile Africa is where the action is. The group has won business in East and West Africa, particularly in the power
and energy sectors where it has won 13 new mining projects and three power plants.
Chinese contractors are a very and real threat. 'There are upwards of 70 Chinese construction companies across the
bigger markets.' However Upton notes that Group Five does not come head to head with these companies too often.
'They usually win their business at a government to government level.' When it comes to direct head to head tenders,
Group Five has the benefit of a
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strong track record. 'We have built up a good name for ourselves, particularly in the mining sector.'