Our principal is going to judge the competition.
.
Hulle het die inskrywings baie streng beoordeel.
They judged the entries very strictly . . . "
[33] I would add in passing that, given that neither "judge", "regter" nor "beoordeel" were considered by Media
24 to be sufficiently relevant or interesting to learners to be included in the work, there can manifestly be no
question of plagiarism in that regard.
Allegations by Media 24 of copying
[34] In the founding affidavit, Dr Smith explains how Media 24 set about analysing OUP's work once it formed the
view that plagiarism had occurred. It appointed Dr Anton Prinsloo, an independent lexicographer and
language consultant to compare the competing works. Dr Prinsloo, firstly, drew random samples of headwords
from both dictionaries. The criteria for the randomness of the samples were in turn monitored and verified by
Prof Martin Kidd, a statistician from the University of Stellenbosch.
[35] Secondly, Dr Prinsloo compared headwords beginning with the letters "B", "D", "I" and "S" only on both sides
of each dictionary. The comparison was limited to these four letters because it was considered impractical to
review the entirety of the various headwords, said to number about 5000 per language entry.
[36] Making use of various coloured highlighter pens Dr Prinsloo then considered the following:
36.1 Common headwords (which he marked in green);
36.2 Alleged similarities in sense distinction and the sequence (primary and secondary etc) in which these
were set out (marked in orange);
36.3 Alleged similarity in regard to example sentences (marked in pink); and
36.4 The alleged absence of similarity in definitions and example sentences with common headwords
(marked in yellow).
[37] This expert refers the court to the word "baie" and says that in the Pharos work the example sentence is
"daar is nie baie melk oor nie", while in the OUP dictionary it is "daar is nie baie sap oor nie". It is implied that
direct copying has occurred in the OUP example sentence, save that the noun has been changed from "milk"
to "juice".
[38] Dr Prinsloo thereafter drew up extensive lists of the allegedlycopied example sentences in relation to the
headwords listed under each of the four letters referred to above. These were provided to Prof Kidd for
statistical analysis as to the coincidence of comparison between the two works. In coming to his conclusions,
Prof Kidd was told to ignore any coincidence in the choice of headwords, or the sequence of translations and
to focus solely on the similarities in example sentences.
[39] Prof Kidd came to the conclusion that the coincidence of similar example sentences in the OUP work was of
the order of 20% when compared
Page 488 of [2015] 3 All SA 478 (WCC)
with the Pharos work, and about 22% in the Pharos work when compared with the OUP work. Comparison of
the English words in the Pharos work on a nonrandom basis with the OUP work was found to be of the order
of 17% and about 23% in respect of the Afrikaans side of the Pharos work when compared with the OUP
dictionary. Prof Kidd says that the degree of similarity (generally then at around 20%) is too obvious to be
classified as merely coincidental.
[40] Dr Smith goes further than the comparison of just example sentences. She points out that there are also
incidents of the copying by OUP of poor grammar and the incorrect classification of words, which are
lexicographically errant on the side of Media 24. I shall cite just one of the several examples discussed by her
in which she stresses the importance of translating a verb with a verb and a noun with a noun.
[41] Pharos translates the headword "diefstal" firstly as "stealing" and then "theft". Dr Smith says that this is
grammatically unsound as "stealing" is a verb and should not be used to translate a noun, which "diefstal" is.
She says that the only translation for "diefstal" is the noun "theft". The repetition of these mistakes in OUP's
work, says Dr Smith, is therefore not mere coincidence, but clear evidence of copying by OUP.
[42] In September 2012, OUP also published a monolingual Afrikaans School Dictionary to compete with Pharos'
similar title. Here too, says Dr Smith, is persuasive evidence of plagiarism. I return to the headword "baie".
The Oxford Monolingual Afrikaans dictionary repeats the earlier example sentence with reference to "nie baie
sap nie" which it used in the OUP work. This is said to demonstrate the persistence of plagiarism.
[43] Finally, Dr Smith says that sales of the Pharos work dropped markedly after 2007 and she attributes this
directly to the emergence of the OUP dictionary. For that reason, she says that Media 24 intends claiming
damages from OUP, but in the interim, it seeks a final interdict to limit the ongoing breach of its copyright by
OUP.
OUP's response to the claims
[44] OUP denies outright that it is guilty of copying or reproducing any parts of the Pharos work. It emphasises
that, in light of the nature of the literary works involved, some degree of similarity might be expected and that
evidence thereof would not necessarily sustain a claim of plagiarism.
[45] OUP relies heavily on expert opinion in its endeavour to rebut Media 24's assertions. Firstly, there is Prof
Prinsloo to whom reference has already been made. Then there is a detailed affidavit by Dr Michael Rundell,