in
View Parallel Citation
favour of the copyright owner (cf Kambrook Distributing v Haz Products and others (1986 WLD) per Kriegler J
reported in Stranex Judgments on Copyright 243 277278).
[11] The drawing relating to the bracing shows a standard lip channel with two holes at each end. How such a
drawing can be said to be an original work is not entirely clear (cf Jacana Education (Pty) Ltd v Fransden
Publishers (Pty) Ltd 1998 (2) SA 965 (SCA) at 969CG). In any event, Universal uses the same type of channel,
cuts it into suitable lengths and punches a 10 mm hole at each end. Since the channel is generic, Universal
simply purchases it and does not roll it. The only tool required is a 10 mm punch to form the hole. There is no
evidence that Universal ever had a Dexion punch or that any tooling was made for producing these holes with
reference to a Dexion tool. One would have thought that 10 mm punches are quite common in any engineering
workshop.
Page 72 of [2002] 4 All SA 67 (SCA)
[12] Another drawing relates to the beam connector. It shows in detail the form and dimensions of the hooks. The
hooks made by Universal, although they are intended to and do perform the same function, differ somewhat
from those shown in the drawing. In order to make the Dexion hooks, a punch and die are required. Universal
uses a punch and pressure pad and no dies. Since there is no explanatory evidence on the matter, it is
somewhat difficult to envisage how it can be said that the Universal tooling is a copy of the Dexion tooling. (I
will revert to the evidence on how Universal's replacement tooling was made.)
[13] The fourth drawing depicts the upright. The upright consists of a generic metal channel section, which, in plan
view, has a bottle or wide mouth flask shape. Universal used this section for the manufacture of another
racking system prior to the conclusion of the sublicence. It requested Dexion for drawings of its tools in order
to roll this section (an indication that the tooling was not necessarily derived from the product drawings). The
drawings supplied by Dexion for this purpose could not be used with Universal's equipment and they were
returned and Universal continued to use its existing tooling. The other aspect of the drawing is the coffin
shaped holes. These clearly require a punch to be formed. The holes used by Universal, as noted by Dr Nurick,
are somewhat differently shaped and can best be described as having a coffin shape adapted to accommodate
not only the Dexion type of hook but also a buttonlike hook.
[14] Jones was responsible for the design of the new tools and he gave the necessary instructions to the toolmaker
(who has since died). It was not necessary to make new punches for everything because existing punches
used for another product were available. He did not provide the toolmaker with any Dexion tooling to copy or
use in the manufacture of the new tools. Instead he gave him his own sketches of how he expected the
tooling to be made. Certain of the dimensions are well known and standard in the art. He worked backwards
from those dimensions and through trial and error increased the size of the hook until it fitted. The
View Parallel Citation
tool drawing for punching the upright was one Jones had made personally some years earlier without Dexion's
tooling or drawings.
[15] Jones was not taken to task by the crossexaminer on this evidence because the crossexaminer was still
attempting to establish direct copying and to show that reverse engineering had not taken place. The court
below did not make any adverse credibility finding against Jones and it was not argued that his evidence
should have been rejected. It was never put or suggested to Jones that the Dexion tooling had been copied. It
is manifestly unfair to argue a case on inferences from some facts and ignoring unchallenged direct evidence to
the contrary. To accept Dexion's argument would amount to an implicit rejection of Jones's evidence even
though the submission was not foreshadowed during the trial. The circumstances of this case do not justify a
departure from the rule that the witness's attention has to be drawn to the imputation which will be made
during argument, a rule which has generally been adopted by our courts. See President of the Republic of South
Africa and others v South African Rugby Football Union and others1 2000 (1) SA 1 (CC) at 36J38C (paragraph 61
65)
Page 73 of [2002] 4 All SA 67 (SCA)
and cases there quoted. I consequently agree with Goldblatt J that, since the issue was not properly dealt with
in evidence and was not canvassed with Jones, Dexion cannot succeed on this ground.
[16] Dexion relied, in addition to its copyright claim, on a contractual claim. In reciting the facts I intend to continue
to ignore the history of the different companies, their name changes, liquidations and compromises and to
simplify the matter. Dexion licensed Brazier exclusively during 1971 to manufacture and sell the Speedlock
system in South Africa. Brazier was entitled to appoint "contract manufacturers, distributors or agents" subject
to Dexion's prior approval. Any such appointment had to contain for the benefit of Dexion two provisions,
namely a right of quality control and the right to effect changes to the design, specifications or standards. On
the valid termination of the licence, Brazier was obliged to "ensure that all its contract manufacturers
distributors and agents" cease to manufacture the licensed components.
[17] The sublicence between Brazier and Universal likewise imposed a duty on Universal, on termination, to cease
manufacturing the licensed components. Dexion alleges that it is the beneficiary of this obligation and that it is