to use it including commercial use of it.
[104] The defendant as a National Lottery Operator cannot be considered to be "the press" or "other media". It is
also not an information provider. It is a company which runs a commercial gambling business. Furthermore,
the defendant's business is not "to receive or impart information or ideas". It is run as a business. What it is
doing is not receiving or imparting information or ideas, but rather publicising its gambling game in the form of
"Sport Stake". Publishing one's business for commercial gain is not the receipt or imparting of information or
ideas. The defendant consciously, knowingly and deliberately copied and is still copying selections from the
plaintiff's fixture lists specifically for purposes of operating its Sport Stake gambling game. This "selection"
cannot be considered on any basis to be to inform the public of the fixtures.
[105] It is not gainsaid that the fixture lists are the plaintiff's property. The plaintiff's property rights are also
entrenched and protected in the Constitution. Section 25(c) of the Constitution reads as follows:
"Property.
25(1) No one may be deprived of property except in terms of law of general application, and no law may permit
arbitrary deprivation of property."
[106] In Laugh It Off v SAB International,61 it was held among others that in the related but by no means identical
field of trademark protection, the antidilution provisions contained in section 34(1)(c) of the Trade Marks Act
194 of 1993 should be construed in the light of the freedom of expression provisions contained in section 16
of the Constitution. The court should investigate whether there is "unfair advantage" or "unfair detriment"
shown. In turn, what must be considered (in the context of the trademark in question in that case) is whether
the offending use of the mark "would be likely (to) be hurtful in the economic and trade sense, to the repute
of the marks . . . " What must be shown is ". . . material harm in the commercial sense" or "substantial
economic detriment".62
[107] The form of freedom of expression invoked by the defendant is parody. The relevant conduct in the present
matter is commercial exploitation by the defendant of the defendant's fixture lists. As stated above, according
to the defendant's witness Mr Ntombela, the "Sport Stake" revenue went up to R243 million per annum.
According to Mr Simelane, also a witness called by the defendant, the revenue varied between R240 million
and R300 million per annum.
[108] When one examines the form of the defendant's conduct to determine whether any infringement of the
plaintiff's copyright may be justified under section 16(1) o r (b) of the Constitution, one finds that the
defendant's conduct is not a form of speech or expression identified for protection by the Constitution. On the
Page 491 of [2014] 2 All SA 461 (GJ)
lead to the appropriation of an intellectual property asset belonging to the plaintiff, not for purposes of
parody or lampooning or for other social purposes, but is instead for no purpose other than to generate
commercial gain for itself. 63Section 16(1)(a) o r (b) of the Constitution on any construction does not permit
commercial exploitation of another's intellectual property under the guise of supposedly informing the public.
[109] It is my finding that the defendant here seeks, not to inform the public, but to profit from the public by inviting
it to participate in its gambling game of "Sport Stake".
[110] The history of these fixtures lists is also revealing. There is uncontroverted evidence that the plaintiff had
previously licensed its fixture lists to the defendant's immediate predecessor, Uthingo. The defendant itself
halfheartedly started engagements with the plaintiff aimed at obtaining permission or licence to use the
fixture lists: When Mr Ntombela was in the witness stand, correspondence exchanged between the plaintiff
and the defendant was laid bare. In a letter from the plaintiff's attorneys addressed to the defendant's
chairman and chief executive officer dated 5 September 2008 it transpired that on 25 March 2008 the
defendant sent a proposal to the plaintiff regarding this issue of licence to used the plaintiff's lists. In the
same letter mention is also made that on 19 August 2008 the defendant's chairman intimated to the plaintiff's
chairman among others that it was the defendant's intention to include PSL64 fixtures in "Sport Stake". The
plaintiff's response to this is contained in paragraph 1.6 of this letter dated 5 September 2008 in which the
defendant was advised that the plaintiff:
". . . has not authorised you to reproduce or distribute its fixture lists in any manner or form . . . "
The advice proceeds in paragraph 2 of the letter wherein the following stands:
". . . any reproduction, adaptation or distribution of (the plaintiff's) fixture lists by (the defendant would) constitute an
infringement of (the plaintiff's) copyright in its fixture lists."
[111] The defendant simply went ahead and infringed that copyright despite the above warning.
[112] All the above extracts from mutual correspondence is common cause or uncontradicted by the defendant.
[113] It is, therefore, my finding that reliance on the protection of section 16 of the Constitution by the defendant is
misplaced in the peculiar circumstances of this case. The conduct of the defendant in reproducing the plaintiff's
fixture lists for no purpose other than the generation of revenue for itself without the plaintiff enjoying any
part of that revenue through its Sport Stake gambling game is not only likely to be commercially harmful to the
plaintiff, but is also indeed causing commercial harm to it.
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[114] The defendant attempted to mitigate or ameliorate the impact of its conduct by stating that 34% of its "Sport
Stake" revenue is for "good causes". It is in my finding also misplaced. According to Mr Simelane's evidence,
the defendant is contractually bound to pay a certain fixed percentage of its revenue to the Government