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the foreign systems to which Ms Fellner refers, where statutory protection can be claimed but is not, or where statutory
protection expires or is lost, anyone is free to copy."
(The reference is to Christine Fellner "The Future of Legal Protection for Industrial Design" A Report Commissioned
by the Common Law Institute of Intellectual Property and the Intellectual Property Unit Queen Mary College,
London (1985)).
Page 89 of [2004] 4 All SA 67 (C)
It follows from the foregoing that the fact that a work does not qualify for copyright protection means that it is in
the public domain and anyone is free to copy.
The applicant has not in his evidence shown the existence of any extraneous factors would render the
respondents' conduct unlawful. If I may, with respect, paraphrase the words of Harms JA in Memory Institute SA CC
t/a SA Memory Institute v Hansen and others 2004 (2) SA 630 (SCA) at 635A, I cannot perceive what wrong the
applicant relies upon unless he laments the fact that the first respondent competes with him and he cannot prevent
it because he has no copyright protection.
Points in limine
Earlier in this judgment, I referred to the points in limine which were raised by the respondent at the beginning of
the trial. The issues were the following:
(i) The first point raised was that the applicant as an unrehabilitated insolvent lacks locus standi in iudicio and
may not sue in his own name.
The applicant's case is that he developed the computer program during his insolvency, that it is an asset
which does not fall into his insolvent estate, and that he is in terms of section 23(9) of the Insolvency Act 24
of 1936 ("the Insolvency Act") entitled to take legal steps in respect thereof.
The reliance upon the provisions of section 23(9) of the Insolvency Act is misconceived. The subsection
provides that an insolvent may recover for his own benefit, the remuneration or reward for work done or for
professional services rendered by or on his behalf after the sequestration of his estate. The applicant is not
seeking to recover remuneration for work done or professional services rendered. He seeks by way of
interdict to protect from infringement his rights as holder of the copyright to a computer program, and to
protect his potential reward to be derived from commercial exploitation of the program from unlawful
competition.
In terms of the provisions of section 20(1) of the Insolvency Act, the effect of the sequestration of the estate
of an insolvent is to vest it in the Master until a trustee has been appointed and, upon the appointment of a
trustee, to vest it in the trustee. Section 20(2)(b) provides that the estate of an insolvent shall include all
property which the insolvent may acquire or which may accrue to him or her during sequestration, except as
otherwise provided in section 23 of the Insolvency Act.
In section 2 of the Act "property" is defined as movable or immovable property, and "movable property" is
defined as every kind of property and every right or interest which is not immovable property. The definition
View Parallel Citation
includes intellectual property rights such as copyright (see Bank of Lisbon and South Africa Ltd v The Master and
others 1987 (1) SA 276 (A) at 290I; Van der Merwe Sakereg 2e uitg 45, 170).
In view of the provisions of section 20(2)(b) of the Insolvency Act, and of the definition of "property" in section
2, the copyright which the applicant says he acquired during his insolvency forms part of his insolvent estate.
The applicant's estate is, therefore, affected by the legal proceedings brought to protect a right which forms
part of the estate.
Page 90 of [2004] 4 All SA 67 (C)
Section 23(6) of the Insolvency Act provides, inter alia, that an insolvent may sue or be sued in his own name
without reference to the trustee of his estate in any matter relating to status or any right in so far as it does
not affect his estate.
Ms Penderis, the trustee in the applicant's insolvent estate, filed an affidavit in which she states:
"4.
I confirm that I have been approached by the Applicant's attorneys with regard to the relief sought by the
Applicant in these proceedings. In my aforestated capacity I have considered same and am satisfied that
there is a serious issue to be decided.
5.
I am of the opinion that it is not a claim which relates to the Applicant's insolvent estate and that in the
circumstances it was not necessary for me or the creditors to institute the present proceedings.
6.
Be that as it may, insofar as it may be necessary, I support the relief sought insofar, as it may be
necessary, also ratify all steps already taken herein."
The affidavit of the trustee makes it clear that the applicant is not suing "without reference" to his trustee and
accordingly he cannot purport to act in terms of section 23(6) of the Insolvency Act.