petition, be sufficient to resist an objection that a case had not been adequately made out:
"Unlike a pleading in action procedure, an affidavit contains evidence and not allegations of fact, and what might
be sufficient in summons may be insufficient in a founding affidavit."
In the present matter, the final interdict sought by the applicant was on 13 May 2002 referred to trial. It was
ordered that the affidavits were to stand as pleadings and that the Uniform Rules of Court pertaining to trial
actions were to apply.
I dismissed the objection on the ground, one, that the matters in issue were to be determined on the basis of
the oral evidence that was to be led at the trial; two, that the matter having been referred to trial with the
affidavits standing as pleadings, the respondent's objection was in effect an exception to a pleading and,
three, that the applicant's cause of action was adequately set out in the founding papers if these were
viewed from the perspective of pleadings in an action.
(iii) The third objection that was raised in limine was that the applicant was not, on the case set out in the
papers, entitled to rely on unlawful competition as an additional or alternative cause of action. In particular, it
was submitted that there was no allegation of "extraneous factors" (as to which see, for example, Premier
Hangers CC v Polyoak (Pty) Ltd6 1997 (1) SA 416 (SCA) at 424I) that would render the respondents' conduct
unlawful, apart from the alleged infringement of copyright.
Mr Roux submitted that it is made clear in the founding papers that the applicant was not relying on "mere
copying", but on a "deliberate misappropriation and filching of the products of another's skill and labour" (see
Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968 (1) SA 209 (C) at
221FH).
I was of the view that sufficient allegations were made in the papers to lay the foundation of a cause of
action based on unlawful competition. In order to ensure that the respondents were not prejudiced by any
lack of clarity in the allegations, I ruled that the respondents may on this issue request particulars for
purposes for trial. This was in due course done.
(iv) The applicant applied in terms of Rule 33(4) that the issue of the existence of the copyright and the issue of
infringement be separated, and that the issue of the existence of the copyright be determined first. Mr Acton
submitted that the issue of infringement would involve a complex analysis of the source code of the program
which would require
View Parallel Citation
a large amount of technical evidence. He further submitted that such technical evidence would not be
necessary if the question of the existence of the copyright were to be resolved in favour of the respondent.
I dismissed the application for a separation of issues because, in my view, the question of the existence of
the copyright was inextricably linked to the issue of infringement and that the two could not be conveniently
separated. This approach was subsequently endorsed in Denel (Pty) Ltd v Vorster (SCA, unreported, case
number 13/2003) in which Nugent JA said the following:
Page 93 of [2004] 4 All SA 67 (C)
"Before turning to the substance of the appeal it is appropriate to make a few remarks about separating issues.
Rule 33(4) of the Uniform Rules which entitles a court to try issues separately in appropriate circumstances is
aimed at facilitating the convenient and expeditious disposal of litigation. It should not be assumed that that result
is always achieved by separating issues. In many cases, once properly considered, the issues will be found to be
inextricably linked even though at first sight they might appear to be discrete. And even where the issues are
discrete the expeditious disposal of litigation is often best served by ventilating all the issues at one hearing,
particularly where there is more than one issue that might be readily dispositive of the matter."
In the ultimate result, I concluded that the respondent was to succeed on the question of the existence of the
copyright. That conclusion was reached after I had heard all the evidence, including the expert testimony
pertaining to the question of infringement. The expert evidence was an essential component of the totality of
the evidence which made possible proper evaluation of the question of the existence of the copyright.
Costs
The liability for the costs occasioned by a number of preliminary skirmishes needs to be resolved.
The respondents agree that they must bear the costs of the unsuccessful application for security for costs.
There were two interlocutory applications relating to discovery, one brought on 11 September 2002 and another
brought on 11 November 2002. The application of 11 September 2002 was postponed to 4 November 2002, the
date originally set aside for the trial. On that date, the matter was further postponed because Traverso DJP was
disinclined to hear the matter until such time as the issues around discovery had been resolved. The respondents
say that this application has not been brought to finality and that while it was still pending the applicant launched
the second application on 11 November 2002 for substantially the same relief as had been sought previously. On 4
December 2002 Moosa J made an order by agreement between the parties giving the applicant access to the
documents held by the sheriff. The costs of the application were ordered to stand over for determination at the trial.
As a result of the application of 11 November 2002 access was gained to certain documents which had not been
discovered. On the other hand, the application also related to documents which had in fact been