[6] At the hearing of this matter, Media 24 was represented by Advs AR SholtoDouglas SC and BJ Vaughan, while
Advs WRE Duminy a n d A Erasmus appeared on behalf of OUP. The court is indebted to Counsel for the
detailed heads of argument and presentations in court, which have facilitated the preparation of this
judgment.
Page 481 of [2015] 3 All SA 478 (WCC)
The requirements for final interdictory relief
[7] Media 24 has adopted a fairly bold stance in this application. While it is evidently intent on later pursuing a
claim for damages against OUP for breach of copyright it seeks interdictory relief in the meanwhile. This it does
by way of an application for final relief (launched in 2012) rather than an interim interdict pendente lite, which
is the more customary route. I need not speculate as to the basis for this tactical decision other than to
surmise that it possibly perceived that it would have had difficulty in establishing the requirements of a
satisfactory alternative remedy and/or the balance of convenience that are necessary for success in
applications for temporary relief.
[8] In seeking a final interdict Media 24 must establish a clear right. This it does by asking the court to make a
final determination, firstly of its rights of copyright in relation to its work, and, secondly, of a breach thereof by
OUP.1 Having chosen to do so by way of application it is bound by the wellknown approach set out in
PlasconEvans read with Zuma.2
[9] In PlasconEvans, Corbett JA reformulated the correct approach thus at 634HI:
"It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final
order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's
affidavits which have been admitted by the respondent, justify such an order. The power of the Court to give such
final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by the
respondent of a fact alleged by the applicant may not be such as to raise a real, genuine, or bona fide dispute of fact
(see in this regard Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 11635; Da Mata
v Otto NO 1972 (3) SA 858 (A) at 882DH). If in such a case the respondent has not availed himself of his right to
apply for the deponents concerned to be called for crossexamination under Rule 6(5)(g) . . . and the Court is
satisfied as to the inherent credibility of the applicant's factual averment , it may proceed on the basis of the of the
correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the
final relief which he seeks . . . Moreover, there may be exceptions to this general rule, as for example , where the
allegations or denials of the respondent are so farfetched or clearly untenable that the Court is justified in rejecting
them merely on the papers . . . "
[10] And, in Zuma Harms DP concisely stated the approach as follows at 290D:
"[26] Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on
common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues
because they are not designed to determine probabilities. It is well
Page 482 of [2015] 3 All SA 478 (WCC)
established under the PlasconEvans rule that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts averred in the applicant's affidavits , which have been
admitted by the respondent . . . , together with the facts alleged by the latter, justify such an order. It may be
different if the respondent's version consists of bald or uncreditworthy denials, farfetched or so clearly
untenable that the court is justified in rejecting them merely on the papers."
[11] In the context of the case at hand, Media 24 asserts copyright in its work under the Act. As will be
demonstrated hereunder, that claim is admitted by OUP insofar as the Pharos work is manifestly an original
work of compilation attributable to Media 24. However, Media 24's claim for final relief is challenged by OUP on
two levels. Firstly, there is a general denial that it has directly copied Media 24's work. Secondly, it says that
Media has failed to establish the originality of its entire work, on the basis that, like OUP, it has sourced the
meaning and definition of some words and example sentences in other reference works to which both may
have had access in the process of compilation, or that example sentences chosen by it are common practice
and/or common explanations over which Media 24 cannot claim exclusivity.
[12] A creditworthy denial by OUP as regards plagiarism is, however, not the end of the enquiry because, as will
be demonstrated later, the ultimate determination as to whether copying has occurred is the function of the
court upon consideration of all the material fact and circumstances.
[13] There are 2 further requirements which the court must consider before it may grant Media 24 final relief. In
the first instance, Media 24 must establish on a balance of probabilities what is customarily referred to as an
"injury" which has been committed by OUP. This is to be understood as an infringement of its copyright with
resultant prejudice either actual or potential.3
[14] Then Media 24 must demonstrate that it has no adequate or alternative remedy available to it. It is
established law that a party who might obtain adequate redress through an action for damages may not be
entitled to an interdict.4
[15] Finally, it is said that once the aforementioned three requisites are met, the court's discretion to refuse a final
interdict is very limited and will depend ultimately on the availability of an alternative remedy.5
The requirements for relief under the Act
[16] As just stated, to obtain interdictory relief in this matter Media 24 must firstly establish copyright in the