through the National Lottery Distribution Trust Fund. It is a causa causans for the granting by the Government
to it of a licence or tender to operate the lottery. Even if its claim was true, there is no basis in law for
supposed and/or selfdetermined "good causes" to serve as a basis to limit copyright recognition or otherwise
excuse copyright infringement. The Act in question makes no provision for this or in this regard.
[115] After analysing all arguments and submissions from both sides and considering the matter, it is my considered
view and finding that the plaintiff should succeed in its claim to the extent of its amended prayers herein.
[116] As regards costs, both parties were ad idem that costs should follow the suit. They also are agreed that the
costs to be awarded should include the costs consequent to the employment of two Counsel. I agree. The
complexity of issues raised and dealt with in this matter justifies the employment of two Counsel.
Furthermore, irrespective of the parties' agreement that costs should follow the suit, I have myself applied my
mind to the question as to whether this general rule relating to the awarding of costs is the appropriate costs
order to grant or not.
[117] I am mindful of the fact that the court has a wide discretion when it comes to the awarding of costs at the end
of a trial. I am satisfied that costs should follow the suit in this case.
Order
[118] The following order is made/issued:
118.1
It is hereby ordered and declared that the plaintiff's annual fixture lists and weekly fixture lists are
each subject to copyright protection as afforded by section 6 of the Copyright Act in favour of the
plaintiff;
118.2
The defendant is ordered to deliverup all infringing copies, reproductions and/or adaptations of all
the plaintiff's annual and/or weekly lists in its possession or under its control;
118.3
The following declarator is issued:
"The plaintiff's copyright in its annual and/or weekly soccer fixture lists from the 2008/2009 South African
soccer season to date has been infringed by the defendant to the extent to which any soccer fixture in the
aforesaid or relevant season to date appears in the defendant's 'Sport Stake' product offering."
118.4
The defendant is ordered to pay the costs of the action, which costs shall include the costs
consequent upon the appointment or use of two Counsel.
For the plaintiff:
CE Puckrin SC and K Spottiswoode instructed by Werkmans Attorneys, Sandton
For the defendant:
GE Morley SC and GR Thatcher instructed by Spoor & Fisher Attorneys c/o Routledge Modise Incorporated
Footnotes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
They appear as Exhibit "E" in the paginated papers herein at 1732, 3347 and 4862 respectively.
Exhibit "E" at 6379 of the papers herein.
Appears in Exhibit "A" at 448449 of paginated record.
Exhibit "A", at 450 of paginated record.
Exhibit "A", at 406A.
Exhibit "A", at 406B.
Photographs thereof appear in Exhibit "A", at 405406.
This process is set out in a slide played to the court as well as in the "Draw for the fixtures of the Absa Premiership
20122013" document Exhibit "C" at 1234.
Such as Ajax Cape Town and Santos in Cape Town and Mamelodi Sundowns and Supersport United in Pretoria.
Such as Orlando Pirates and Kaizer Chiefs never having to play one another midweek at night for safety and security
reasons.
Draw 145 is at Annexure "C" 174(a) to (i); Draw 184 is at C175(a) to 175(g); Draw 185 is at C177(a) to (n) and Draw
188 is at C175(a) to (g).
See Accesso CC v Aliforms (Pty) Ltd and another [1998] 4 All SA 655 (T) at 666d667b.
Sweet & Maxwell, (16ed) at para 324.
Per Council directive 96/9 dated 11 March 1996.
Art 1(2) of the Council Directive.
Juta, at page 1.10 para 2.4.9.
S 21(2)(a) of the Act.
S 21(2)(d).
[2004] 1 SCR 339 at para [25].
2006 (4) SA 458 (SCA) at [35][37].
1985 (4) SA 882 (C) at 893C.
Fax Directories (Pty) Ltd v SA Fax Listings CC 1990 (2) SA 164 (D) [also reported at [1990] 1 All SA 107 (D) Ed].
Board of Healthcare Funders v Discovery Medical Scheme and others (unreported judgment of Kollapen J in North
Gauteng High Court dated 15 November 2012 under case number 35769/2010) at paras [2], [6][18], [29][32]
[reported at [2013] JOL 30806 (GNP) Ed].
Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, (7ed), 2010.
Waylite Dairy CC v First National Bank Ltd 1995 (1) SA 645 (AD) at 650DE [also reported at [1995] 1 All SA 451 (A)
Ed].
Appleton and another v Harnischfeger Corporation and another 1995 (2) SA 247 (AD) at 262E [also reported at [1995]
2 All SA 693 (A) Ed]; Klep Valves (Pty) Ltd v Saunders Valve Co Ltd 1987 (2) SA 1 (AD) at 22H23B [also reported at
[1987] 4 All SA 147 (A) Ed].
[1997] RPC 289 (ChD) 428430.