The case has the advertising industry as background.
The South African Advertising Research Foundation (SAARF) was established in 1973. The establishment of SAARF
arose from the need which was felt in the advertising industry for more sophistication in media planning. The
Foundation is controlled by advertisers, the advertising industry and the media. The research undertaken by the
SAARF is funded by way of a levy on advertisements placed in the printed and electronic media. The levy is paid to
the Marketing Industry Trust (MIT). MIT utilises the funds so obtained to fund, inter alia, the research undertaken by
or on behalf of SAARF.
SAARF publishes at regular intervals, three major research reports: the All Media Products Survey (AMPS), the
Radio Audience Measurement Survey (RAMS) and the Television Audience Measurement Survey (TAMS). The contract
for conducting the research which underlies the research reports is put out to tender. During the period covered by
the events in dispute in this matter, the research was done by AC Nielsen & Co ("AC Nielsen").
This case is principally concerned with AMPS, which is the most important of the research reports. An updated
version of AMPS appears every six months. AMPS is a collection of statistical information covering
reader/viewer/listener numbers by media consumption, by various demographic data (sex, age, income, education,
etc) and product ownership/usage (refrigerators, biscuits, cameras, etc) in addition to the consumption of services
such as banks and credit cards.
The information is compiled from personal interviews with a representative sample of the group which is the
object of the research. The result so obtained is multiplied by the number of people in the group and adjusted by a
complex system of weighting.
The AMPS data is published in book form by AC Nielsen and is also available electronically in binary form in a so
called UFL file. Special computer programs are required to read and interpret the data in this form. Various such
programs are available in the market. The programs are designed to read and interpret the AMPS data and make
the vast amount of information contained therein accessible to end users who would typically be marketing
managers, advertising agencies and the media.
The business activities of the first respondent
The first respondent and its various predecessors have a strong background in advertising. The company was
active within two distinct areas, the production of advertising material and the publication of advertising and
marketing information.
The production of advertising material was done by an advertising agency styled The Works. The publication of
advertising and marketing
View Parallel Citation
information was
Page 73 of [2004] 4 All SA 67 (C)
done under the flag of Brewer's Almanac and Brewer's Business Books. The Works, Brewer's Almanac and Brewer's
Business Books were not separate legal entities but simply business groupings within the company as it existed at
any time.
The contribution of The Works to the business of the company diminished through the years and in time the bulk
of the company's turnover and income was generated by Brewer's Almanac a n d Brewer's Business Books. The
principal publications producing the income were:
The South African Almanac, a media reference book
Who's Who in Advertising and Marketing, an industry reference book
Dictionary of Advertising and Marketing Terms
MAD The Marketing and Advertising Database, a marketing industry reference book
BAD Brewers Advertising Agency Database, an advertising reference book
The relationship of the applicant and the second respondent
In a letter dated 9 November 1992 the second respondent offered the applicant the position of sales manager of
"Brewers Business Books". Though the company was then still styled Brewer Jones & De Greef, the letter has a
letterhead in bold letters, BREWER'S ALMANAC. In the letter it is stated that the second respondent and Jones have
for some time been concerned "about a few things relating to 'Brewer's Business Books'", that they both believe
that a marketing manager is required "and we'd like to offer you this position". It is common cause that at the time,
the applicant was in dire financial straits as a result of a failed property development. In November 1993 the
applicant was sequestrated on the application of the second respondent in what was clearly a "friendly"
sequestration.
During 1995/1996 Jones emigrated to New Zealand. On 21 February 1996 the name of the company was changed
to Brewer & Haupt (Pty) Ltd. 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 second respondent then held all the