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Judgment
ERASMUS J:
Introduction
On 13 May 2002 the applicant brought an application for an Anton Piller order, as well as an interdict restraining the
respondents from in any manner dealing with a computer program in respect of which the applicant claims copyright
and ownership. An order was duly made and a rule was issued returnable on 20 June 2002.
The respondents anticipated the return day and on 29 May 2002 an order was made by agreement between the
parties. It was agreed that backup copies of the evidence preserved in terms of the Anton Piller order would be
made and further so preserved. The rule nisi issued on 13 May 2002 was discharged as was the interim interdict
granted on that date. Determination of the final interdict sought by the applicant was 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
are to apply.
At the hearing, Mr JH Roux appeared on behalf of the applicant, and Mr RAJ Acton on behalf of the three
respondents. The trial continued intermittently over a period of more than a year. In all, 33 days were spent in
court.
The issues
The applicant's case is that
1.
he is the holder (owner) of the copyright that subsists in the computer program that forms the subject matter
of the action;
2.
the copyright is being infringed by the respondents, and
3.
the conduct of the respondents amounts to unlawful competition.
The gist of the respondents' defence is that the applicant is not the holder (owner) of the copyright in the computer
program in question, and that, accordingly, the question of alleged infringement does not arise for consideration by
the Court.
Page 70 of [2004] 4 All SA 67 (C)
At the outset, Mr Acton on behalf of the respondents raised several points in limine. The points were argued on 20
and 24 February 2003. On 25 February 2003 I stated my conclusions on the points raised without giving reasons. I
deal with the issues so raised at the end of the judgment.
The parties
The applicant
The applicant is Anton Charl Haupt. He and the second respondent are brothersinlaw, being married to two
sisters. He was in the evidence often referred to as "Anton". He is an unrehabilitated insolvent. His insolvent state
was the subject of one of several points raised in limine by the respondents.
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The first respondent
The first respondent is Brewers Marketing Intelligence (Pty) Ltd. The second respondent is at present the sole
shareholder and director of the company. Through the years, the predecessors of the company went through
various guises and there was some variation in the shareholding. A company styled Retel Film Productions (Pty) Ltd
was established on 11 May 1989. The sole shareholder, holder of 300 shares, was one Frances Mary Lawler
("Lawler"). On 23 November 1990 the name was changed to Brewer Jones & De Greef (Pty) Ltd, the sole
shareholder remaining being the said Lawler. On 10 May 1994 Mr JP de Greef resigned as a director of Brewer Jones
& De Greef (Pty) Ltd and Lawler's 300 shares were transferred to second respondent and to Jones, 151 to the
second respondent and 149 to Jones. After Jones emigrated to New Zealand, the name of the company was
changed, on 21 February 1996, to Brewer & Haupt (Pty) Ltd. On 7 March 1996 the 149 shares owned by Jones were
transferred to the second respondent who then held all the shares in Brewer & Haupt (Pty) Ltd. On 18 February
1997 the name of the company was changed to Brewers Almanac (Pty) Ltd. The first respondent, Brewers Marketing
Intelligence (Pty) Ltd, was incorporated on 31 August 1998. On 1 March 1999 it was resolved by the sole director of
Brewers Almanac (Pty) Ltd (the second respondent was the sole director) to sell the business including all assets
and liabilities as a going concern together with all income earning activities to the first respondent. In the papers
and in the evidence, the first respondent and its various predecessors were collectively referred to as "Brewers" or
"Almanac" or "the company". I shall follow suit in this judgment and refer to "the company".
The second respondent
The second respondent is Christopher John Brewer who is, as I have indicated, the brotherinlaw of the applicant.
In the evidence he is often referred to as "Chris". He is British by birth but came to South Africa many years ago. He
was for many years, and still is, involved in various capacities in the advertising industry.