The second respondent testified that from the time that the applicant had severed his ties with the company, it
was always his intention to continue with the development of the Project AMPS software. Early in 2001, after he
had engaged the services of Mr Hank Bento ("Bento") as a computer programmer, he began further development of
the project in earnest. He commissioned Bento to rewrite the program and he also made use of the skill and
expertise of the third respondent who was still in the United States at the time. The result was the Brewers AMPS
software which came on the market early in 2002.
In May 2003 the applicant received a telephone call from one Mr Louw, an employee of Media 24 t/a Die Burger
Newspapers. Media 24 was a client of the applicant. Mr Louw informed the applicant that the Data Explorer program
was not functioning properly. The applicant says that he then discovered that the first respondent had sold a
product known as Brewers AMPS to Media 24. The applicant further says that the computer software provided by
the first respondent uses the Data Explorer program which he had designed and developed, including the source
code to the program.
The applicant then launched the application for an Anton Piller order and for an interdict.
The applicant seeks copyright protection for the whole "package" of his Data Explorer program, both the source
code, executable file and the databases. He says that the executable file houses all the functionality of the
program, including the source code. The underlying tables and databases contain the questions, answers and
weightings for each person interviewed. The executable file cannot function without the databases. This part of the
program is housed outside the executable file and changes as and when new data become available. The applicant
contends that both components that make up the Data Explorer program are unique to him.
The witnesses
On behalf of the applicant, the evidence of the applicant himself was adduced and that of an expert, Mr Marius
Bosman ("Bosman"). On behalf of the respondents, the second and third respondent gave evidence, as well as the
computer programmer Bento and an expert, Mr
View Parallel Citation
Francois Jordaan ("Jordaan"). The respondents also called Ms Muriel Vennoot to fill in some of the background.
It is appropriate at this stage to give my impressions of the various witnesses. The applicant and second
respondent each spent several days in the witnessbox and each one of them was examined and crossexamined
at length.
The second respondent is a man of standing in the advertising industry. He has, for example, been chairman of
the Media Association of South Africa, and has acted as consultant to the Media Directors Circle and the Association
of Advertising Agencies. He undoubtedly has vast experience in and intimate knowledge of the advertising industry.
He said of the applicant: "If Anton can cheat anybody, he will". The applicant said of him, in a private memo, that
he "kan nie meer tussen waarheid en leuens onderskei nie". Can the pot call the kettle black?
The second respondent has falsely given out that he was a barrister of the Middle Temple (but not in the latest
edition of BAD which he edited himself,
Page 76 of [2004] 4 All SA 67 (C)
though there is a reference to some association with the Inner Temple). He also tried to mislead the bank by giving
out to the manager that the applicant was a shareholder while to his knowledge he was not. His dishonesty can
perhaps best be described as "fudging"; that is, a tendency to "adjust or manipulate (facts or figures) so as to
present a desired picture" (see the Concise Oxford English Dictionary, sv, "fudge").
The applicant will perhaps not make openly false statements as the second respondent does. But he is shrewd
and calculating, much more so than the second respondent. His severance of his relationship with the company and
with the second respondent and the removal of the Project AMPS program and the source code were carefully
planned in advance. The laptop that he took with him was the property of the company, a laptop which he
purchased and paid for with a company cheque a few weeks before his departure. He told the third respondent
that he was going to leave the company and elicited his support for the further development of the program. He
indicated to the third respondent that he was going to remove the software from the company's computers in a
private memo written before his departure he noted under "benodigdhede", "[a]lle kode; alle ander sagteware; alle
leë diskette". Shortly before his break with the company and the second respondent, he registered a new email
address in the name of "Softcopy", the entity under which he began operating after his departure.
Their attitudes and views of each other are coloured by strong bias and an intense personal dislike. As a result,
the version of events of each one of them tends to be onesided and each one exaggerates his role and
contribution, and plays down that of the other.
In argument, Mr Roux submitted that the second respondent had in his evidence not been candid with the court
and that during the course of the case he had shifted his ground. Mr Acton listed examples of similar conduct on the
part of the applicant.
I shall deal with these issues, where appropriate and in so far as may be necessary, during the course of this
judgment. In general, I am of the view that the evidence of both the applicant and the second respondent