1.5
our client has not authorised you to reproduce or distribute its fixture lists in any manner or form;
2.
Any reproduction, adaptation or distribution of our client's fixture lists by you, will constitute an infringement of
our client's copyright in its fixture lists.
3.
Our client has instructed us therefore to demand of you, as we hereby do, that by no later than 12h00 on
Tuesday 9 September 2008, you provide our office with a written irrevocable undertaking that you will not, in
any manner or form, reproduce or distribute our client's fixture lists without its written authority. You are
furthermore required, at the same time that you provide your written undertaking, to deliver to our office all
copies in your or your agents' possession of our client's fixture lists reproduced or adapted by you.
4.
If you do not comply with the demand set out in paragraph 3 above, our instructions are, without further delay,
to approach the Witwatersrand Local Division of the High Court, for the appropriate relief against you, which
will include a claim for damages and costs.
5.
Our client's rights are reserved."
Page 469 of [2014] 2 All SA 461 (GJ)
[21] The defendant's response to the above letter of demand was penned by its attorneys of record, Messrs Spoor
and Fisher, on 9 September 2008. A full regurgitation of its contents will in my view bring out its import and
context.
[22] It reads as follows insofar as the material parts thereof are concerned:
" Dear Sirs
South Africa: Premier Soccer League (PSL)/Gidani (Pty) Limited Fixture Lists
We advise that we act on behalf of Gidani (Pty) Limited. Your correspondence dated 5 September 2008 has been
forwarded to us for reply.
Our client had determined that, as this is a business matter, there would be no need to involve attorneys. Our client
has instructed us to record that it is only pursuant to your client instructing its attorneys to address a letter of demand
to our client that our client has deemed it necessary to instruct Spoor & Fisher.
Our client has instructed us that, in fact, in 2007, your client approached our client with a view of developing a
mutually beneficial business relationship. On the basis of that approach, our client determined to refrain from
including PSL matches in our client's SportStake soccer pool. Our client had hoped that it could enter into a strategic
alliance with your client along the lines set out in its proposal forwarded to your client under cover of our client's
correspondence dated 25 March 2006. With that aim in mind, our client has had various meetings with your client and
has addressed reminders to your client, all apparently in vain as your client has, to date, not reverted to our client,
either accepting or rejecting our client's proposal.
We are instructed to respond to your correspondence as follows:
1.
Ad paragraphs 1.1 and 1.2: Our client denies that the fixture list has sufficient substance to warrant being the
subject of a work capable of copyright protection. The fixture list is common place, trite, trivial and our client
denies that copyright can subsist in the fixture list.
2.
However, and notwithstanding the aforegoing, and as your client is asserting that it is the copyright proprietor
of your client's fixture lists and that the fixture list is compiled each year by your client's skill, labour, time,
judgment and ingenuity you are requested to advise us:
3.
2.1
The name of the individual/s who compiled the fixture list.
2.2
You are required to furnish us with the name, date of birth and place of residence of such individual/s.
2.3
Full details as to how the fixture list is created.
2.4
Full details of where the individual/s referred to in the previous subparagraphs are employed. In the
event that they are employed by your client, our client will require a copy of their appointment letter.
Ad paragraph 1.3: Our client admits that it forwarded your client a proposal on 25 March 2008. However, the
proposal was for a strategic relationship between our respective clients to explore ways to promote the
development soccer in the Republic of South Africa and to market the game. Our client did not seek your
client's authority to reproduce your client's fixture list as:
3.1
our client has never intended reproducing your client's fixture list; and
3.2
our client denies that copyright can subsist in the fixture list.
Page 470 of [2014] 2 All SA 461 (GJ)
4.
Ad paragraph 1.4: Our client admits that on 19 August 2008, it addressed further correspondence to your
client. However, our client denies that it has advised your client that our client intends using your client's fixture
list. In fact, what our clients stated was that it intends to include PSL fixtures (PSL soccer games) in our client's
SportStake.
5.
Ad paragraph 1.6: Our client denies that it is reproducing your client's fixture list. Our client obtains details
regarding the soccer matches to be included in the SportStake, amongst others, newspaper reports, the AOL
online website, the Football 365 website and Sport24 website, to name a few. This information has been
obtained from the public domain. Furthermore, should our client determine to include PSL soccer matches in
our client's SportStake our client will use no more than 4 matches a week. Hence, your assertion that our client
is reproducing your client's fixture list is diametrically opposed to the true situation.
6.
Ad paragraph 2: The fixture lists released by your client to the media (including but not limited to the