In his replying papers, the applicant contended that he and the second respondent were in fact in a partnership.
The nature of the partnership is not clarified in the evidence. The applicant describes his decision to part with the
first and second respondent, both in evidence and affidavit, as a resignation from the company, not the dissolution
of a partnership. Moreover, there is no evidence that there was any attempt by the applicant to enter into
negotiations for the division after his departure of the partnership assets and liabilities.
The company was, in fact, the vehicle through which all the business was done: the liabilities (for example, the
bank overdraft, trade creditors and the wages payable to employees) were those of the company; the assets (such
as furniture, computer equipment (including the laptop), trade debtors, loan account and goodwill) were similarly
those of the company. In addition, both the applicant and the second respondent drew salaries from the account of
the company.
This is not a case in which there was a contractual relationship between shareholders (the applicant was not a
shareholder) beyond the articles which creates personal obligations between the members of the company (see, for
example, Stewart v Schwab and others 1956 (4) SA 791 (T); Wackrill v Sandton International Removals (Pty) Ltd and
others
View Parallel Citation
1984 (1) SA 282 (W); Francis v Sharp and others1 2004 (3) SA 230 (C) at 238H239D).
On the evidence it is clear that there may have been agreement between the applicant and the second
respondent that the applicant would be paid a larger share of the income generated by the business divisions of
the company handled by the applicant (in particular Brewer's Business Books). Such an agreement does not,
however, amount to an agreement of partnership: it is an agreement with an employee in regard to his
remuneration.
Mr Acton submitted that the applicant correctly sets out his position visàvis the company in his founding papers;
namely, that he was employed by the company until 31 July 1998 when he resigned his employment. In cross
examination, the applicant conceded that he was an employee until his resignation.
As an employee up until the 31 July 1998 the applicant falls within the ambit of section 21(1)(d) of the Act which
provides that where a work is made in the course of the author's employment by another person under a contract
of service, that other person shall be the owner of the copyright subsisting in the work. That being the case, the
applicant could not have become the owner of any software which he may have produced in the course of his
employment under a contract of service to the company.
The author of Project AMPS
Both the applicant and the second respondent were involved with the conception and creation of the ProjectAMPS
software. The second respondent, who has a lifelong involvement in advertising, contributed his knowledge and
Page 82 of [2004] 4 All SA 67 (C)
experience of media planning. The applicant familiarised himself with the needs of the program and worked closely
with the programmer.
The program was conceived and developed under the aegis of the company. The applicant acknowledges in his
replying affidavit that "the AMPS program . . . had its birth at Almanac". In this regard, the following factors are of
significance:
1.
Both the applicant and the second respondent were employees of the company.
2.
The third respondent was at the time working for the company on other projects on contract basis.
3.
The third respondent was contracted to create the source code and write the program.
4.
At an early stage of the development, the applicant, the second respondent and the third respondent, jointly
visited an advertising agency in Wynberg in order to view the Telmar program, the market leader at the time.
5.
The 1997B version of the AMPS data was purchased and paid for by the company.
6.
The third respondent created the source code and wrote the program.
View Parallel Citation
7.
The third respondent from time to time reported to the applicant and the second respondent who would
comment on his work and make suggestions.
8.
The third respondent created the structures of the databases which were to be filled with the AMPS data and
form the foundation upon which the program is built. The structure of the Questions.db database was to a
large extent determined by the existing AC Nielsen questionnaire.
9.
The applicant "populated" the Questions.db table by transposing the data from the hardcopy of the AC
Nielsen questionnaire into the electronic database structure created by the third respondent.
10.
In June 1998 the holder of the copyright in ProjectAMPS is in the properties file indicated as "Brewers".
In terms of section 1(1) of the Act, the author of a computer program is "the person who exercised control over the