between Annexures A and F. It is plain to me that substantial features of A remain recognisable in F. As I have said,
all that is missing is the word "Sondela" and all that is changed is the substitution of one A number for another. I
am satisfied that F is an adaptation of A. As such F enjoys copyright protection, see section 7(a), (e) and (f).
M r Vos argued that the respondent was the joint author, with the first applicant, of Annexure F. The first
respondent's contribution, he said, was to specify the substituted A number (a legal requirement) and its position
on the label (the same as before). I do not regard this slight contribution as having been in any way significant; and
I do not think that the respondent on this account qualifies as a joint author, or that Annexure F qualifies as a
"work of joint authorship" (section 1).
It follows in my view that the first applicant's copyright in Annexure A extends to Annexure F (section 7) unless
he has in some way parted with his rights in favour of the respondent. The relevant section is section 21(1) of the
statute, which deals with ownership of copyright:
"21
(1)
(a)
Subject to the provisions of this section, the ownership of any copyright conferred by section 3 or 4 on
any work shall vest in the author or, in the case of a work of joint authorship, in the coauthors of the
work.
(b)
Where a literary or artistic work is made by an author in the course of his employment by the proprietor
of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, and is so
made for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor
shall be the owner of the copyright in the work in so far as the copyright relates to publication of the
work in any newspaper, magazine or similar periodical or to reproduction of the work for the purpose of
its being so published, but in all other respects the author shall be the owner of any copyright subsisting
in the work by virtue of sections 3 or 4.
(c)
Where a person commissions the taking of a photograph, the painting or drawing of a portrait, the
making of a gravure, the making of a cinematograph film or the making of a sound recording and pays
or agrees to pay for it in money or money's worth, and the work is made in pursuance of that
commission, such person shall, subject to the provisions of paragraph (b), be the owner of any copyright
subsisting therein by virtue of section 3 or 4.
(d)
Where is a case not falling within either paragraph (b) or (c) a work is made in the course of the author's
employment by another person under a contract of service or apprenticeship, that other person shall be
the owner of any copyright subsisting in the work by virtue of section 3 and 4.
(e)
Paragraphs (b), (c) and (d) shall in any particular case have effect subject to any agreement excluding
the operation thereof and subject to the provisions of section 20."
Page 371 of [2000] 3 All SA 367 (C?)
Mr SholtoDouglas, who appeared for the applicants, submitted that paragraph (d) refers to a contract of service
(locatio conductio operarum) and does not apply to a contract for work (locatio conductio operis) (compare Smit v
Workmen's Compensation Commissioner 1979 (1) SA 51 (A)). Mr Vos submitted the contrary. The authorities support
Mr SholtoDouglas: Econostat (Pty) Ltd v Lambrecht and another 89 JOC (W) from 108, per Ackermann J; Marais v
Bezuidenhout 1999 (3) SA 988 (W) per Cloete J. I would regard Fax Directories (Pty) Ltd v SA Fax Listings CC
1990 (2) SA 164 (D) at 175 as neutral on this point. While I am not bound by these authorities, I respectfully agree
with them, and in particular I find the reasoning of Cloete J compelling (see too Dean Handbook of SA Copyright Law
at 129. Compare Copinger & Skone James on Copyright (12 ed) at paragraph 347 ff; Laddie et al: The Modern Law of
Copyright and Designs (2 ed) at paragraph 11.28 ff). On this point, therefore, I conclude that the contract of service
referred to in section 21(1)(d) is the contract known in our law as locatio conductio operarum.
To cater for this contingency Mr Vos advanced two further arguments. He reminded me that the applicants, in
their replying affidavits, had nowhere challenged the respondent's repeated description of Annexure "B" as a
"dienskontrak". In the light of this Mr Vos undertook a painstaking analysis of the contract, Annexure B, in an
endeavour to persuade me that it was a contract of service. I pause to observe that the word "dienskontrak" is not
without some ambiguity. Be that as it may, the label which one or all the parties choose to put on the contract
cannot bind the court when the contract itself is before the court and thus open to judicial analysis. I have already
cited Smit v Workmen's Compensation Commissioner (supra). Of the many other cases on the question, I was
referred in argument to Rodrigues and others v Alves and others 1978 (4) SA 834 (A) and Gibbins v Williams, Muller,
Wright & Mostert Ingelyf en andere 1987 (2) SA 82 (T). Annexure "B" styles the respondent as the principal and the
applicants as agents. The applicants were appointed agents for the Eastern Cape (where they had an existing
business connection in the same field) for the advancement and sale of the respondent's products for a period of at
least a year. It was a full time appointment for the marketing and distribution of the respondent's products at such
prices as respondent might determine from time to time. The applicant's remuneration was derived from the
difference between a base sum and the eventual selling price. That difference had to cover (cl 4.2) the applicant's
commission, transport costs, redistribution costs, insurance and all other costs which they might incur. The
applicants were also obliged (cl 8) to provide storage at their own cost, and at their own cost to insure the products
while in storage or in transit. Transactions were to be concluded in the name of the respondent and this was to be
reflected in the relevant documentation, including receipts. Any payments received from customers were to be
remitted to the respondent. The applicant's remuneration was calculated only on monies received by the
respondent (cl 4.3). The respondent was entitled to stocktake supplies under the applicant's control. By cl 9 the
applicants were required to put up an acceptable guarantee. The contract was signed on 27 October 1995. The
respondent undertook (cl 10) with effect from 1 March 1996 to make at least 1300 crates of wine available per
week.
I consider that Mr Vos' detailed submissions in this regard ignore the wood and concentrate unduly on the trees.