The compilation author typically chooses which facts to include, in what order to place them, and to arrange the
collected data so that they may be used effectively by readers. The choices as to selection and arrangement, so
long as they are made independently by the complier and entail a minimal degree of creativity, are sufficiently
original . . .
The Supreme Court explicitly rejects the approach that had been dubbed the "sweat of brow" or "industrious
collection" approach, which would base copyright protection as a reward for hard work and effort, stating that the
"sweat of brow" doctrine "flouted basic copyright principles".
Dean Handbook 18A submits that under South African law an electronic database, like any other work, should be
"original", and requires no higher standard of creativity.
The legal relationship of the applicant and the first respondent
In order to determine whether or not the applicant can make any claim to the ownership of the software, it is
necessary to ascertain what the legal relationship was between the applicant and the company. Loose use of
terminology does not make this an easy task. For example, when one of the parties refers to the other as a former
"partner", one cannot be sure whether the word is used in its legal significance, or loosely to denote no more than
that they had worked closely together.
As was indicated above, the applicant joined the company in 1992 as an employee at the invitation of the second
respondent.
Page 80 of [2004] 4 All SA 67 (C)
On 21 February 1996, after the departure of Jones, the name of the company was changed to Brewer & Haupt
(Pty) Ltd. The applicant says that at this juncture he was offered and accepted 50% of the shares in Brewer &
Haupt (Pty) Ltd. There is no record that the shares were in fact transferred to the applicant. On the contrary, the
transfer of 149 ordinary shares in Brewer & Haupt (Pty) Ltd from Jones to the second respondent was approved by
resolution dated 7 March 1996. The resolution is signed by the second respondent in his capacity as director of the
company. The second respondent then held all the shares in Brewer & Haupt (Pty) Ltd.
In February 1996 the second respondent submitted a memorandum to the company's bankers in support of an
application for overdraft facilities. In the memorandum, it is stated that the applicant holds 50% of the shares in
Brewer & Haupt (Pty) Ltd. The second respondent said in evidence that although he was in fact at the time the sole
shareholder in the company, he stated in his memorandum that half of the shares were held by the applicant in
order to impress the bank with the participation in the company of a dynamic young man.
The bank manager was not happy with the fact that half of the shares in the company were held by an
unrehabilitated insolvent. On 7 May 1996 a document was prepared, signed by both the applicant and the
respondent, which purported to transfer 149 shares in Brewer & Haupt (Pty) Ltd held by the applicant to the second
respondent. On 7 May 1996 this document was submitted to the bank manager. In an accompanying letter,
handwritten by the second respondent and dated 7 May 1996, it is stated:
View Parallel Citation
"At a meeting of the Directors of Brewer & Haupt (Pty) Ltd held yesterday it was agreed that Anton Haupt relinquishes all
his shares in the company and that I buy them at the nominal price.
This was duly carried out by our Auditor this morning and the appropriate paperwork is attached.
I now own 100% of the shares of the Company and am the sole director.
I trust that this meets with your approval."
Attached to the letter was a securities transfer form for the transfer of 149 ordinary shares in Brewer & Haupt (Pty)
Ltd, duly signed by the applicant as transferor and by the second respondent as transferee.
The whole operation was a ploy (in which both the applicant and the second respondent participated) designed
to mislead the bank manager. When the bank manager had reservations about the applicant being a shareholder in
the company, a sham transfer of shares from the applicant to the second respondent was engineered which, with a
misleading accompanying letter, was designed to satisfy the reservations and doubts of the bank manager.
The applicant says that he was under the impression that the shares held by Jones had in fact been transferred
to him, and that in May 1996 he agreed to the transfer of his shares to the second respondent in order to
accommodate the doubts of the bank manager and to make it possible for the company to get the overdraft facility.
I find it difficult to believe that a man with the applicant's business acumen would be "under the impression" that
50% of the shares in a company (with which he was intimately involved) had been transferred to him.
When he severed his relationship with the first and second respondents on 31 July 1998 the applicant was not a
shareholder in the company. The applicant
Page 81 of [2004] 4 All SA 67 (C)
and the second respondent were at the time negotiating a basis for giving the applicant a shareholding in the
company, but they could not and did not reach agreement on the terms.