changing, actual dates of the months not being the same and so on. Both agreed in their testimonies that
each year's list was always new. There is no question of copying from past lists.
[40] The name of the league, the number of teams in the league, the number of times the teams play each other,
the earliest and latest allowable kickoff times and the preferred kickoff times are some of the additional data
that must go into the mix when the fixture list is compiled.
[41] Crossexamination of these two witnesses was long and incisive. However, at the end of it all, their
testimonies remained intact. However, the defendant's Counsel raised a number of issues during cross
examination that need to be mentioned in this judgment. Among others he put it to the witness that:
41.1
there was no seeding of teams and no assessment made of their relative strengths at any time;
41.2
the clubs were the choosers of the venues and the plaintiff only checked that the grounds are of
acceptable standard;
41.3
the business of the defendant was not the reproduction of fixture lists but only selected games for
its Sport Stake game;
41.4
the witnesses could not say whether the defendant consulted other sources than the plaintiff's
fixture lists in compiling its Sport Stake games;
41.5
the formula was developed by the English Football Association and that it was part of the operation
of the software;
41.6
the sponsors of cup competitions decided or fixed the dates of the final and the plaintiff then is
compelled to work backwards in order to accommodate the other fixtures in that competition;
41.7
the Professional Soccer League (the plaintiff's league) is the showpiece of South African professional
football and forms an important part of the lives of ordinary South Africans;
41.8
the unreliability of the annual fixture lists is such that weekly lists are used to correct anomalies;
41.9
the fixture lists are usually out there in newspapers and also advertised on billboards in taverns as
a means of disseminating them as widely as possible, with a multiplicity of interest groups freely
using them without recriminations from the plaintiff; thus they being in the public domain;
41.10
no marketing agreement was required or necessary before the defendant can use or utilise the
plaintiff's fixture lists;
41.11
Prof Schloss was��not authorised or permitted by the Chief Operations Officer of the plaintiff to
engage in the compilations of the lists.
[42] There were answers to the above questions as well as to others which in my view precipitated a state of
affairs after the witness's testimonies that their versions remained unshaken.
[43] The witnesses were adamant that there were no "givens" in the process of compiling the fixture lists. Mr
Blanckensee further dismissed suggestions that blocks of fixtures could not be manipulated, within
constraints,
Page 477 of [2014] 2 All SA 461 (GJ)
to make the league exciting. He insisted that there were times when broadcasters' preferences were not
accommodated to maintain peace amongst the plaintiff's clubs.
[44] It is the plaintiff's submission that despite many constraints some fixed like Christmas and some public
holidays and others variable like Cup games there remains a very large creative margin to the fixture
compiler in the preparation and finalisation of each annual list. It further submitted that the manner in which
that creative margin is interpreted to and applied in the annual list taking into account the many and varied
and often competing interests of the clubs and stakeholders give rise to the originality of the fixture list as a
literary work in which copyright subsists. The weekly list also has copyright attaching to it as it is also an
original literary work. According to the plaintiff further, should the weekly fixture list be a pure copy or extract
of the relevant portion of the annual fixture list, ie where no changes to the annual list have not been
effected, it then remains an original literary work to the same extent as that portion of the annual list is an
original literary work.
[45] However, should it consist of the relevant portion of the annual list after changes have been effected due to
supervening considerations, it will remain an original literary work to the same extent as the original annual
list, save that it may contain additional elements of originality to the extent of any of those changes.
[46] Plaintiff further contended that since it was the owner of the copyright by virtue of its being the employer of
the various authors of the fixture lists it is entitled to protecting and that since the defendant had previously
published and is still publishing to date in an ongoing manner, despite demand that it stops doing so or until
such time that it regularises the situation by agreeing to pay for it, the plaintiff should succeed in its claim.
Evidence of the other witnesses
[47] Ms Susanda Qumze's evidence did not advance either party's case. She was a secretary at plaintiff whose
duty entailed sending weekly lists to people or instances on a mailing list at plaintiff's offices. The defendant
was on that mailing list. What she did was a continuation of what her predecessor, one Ms Thwala, did before
her.
[48] Mr Wiseman Ntombela started work at the defendant in November 2007 as a brand manager for, among
others, Sport Stake, which was launched in that month. He stated that that first Sport Stakes game did not
include the plaintiff's game.