Vernon Herselman admits that he had very little to do with the designing of the form and that he simply handled
the business side of selling the Mass forms. Although he ordered the forms from the respondents, he did not give
the instructions for printing. Those came from his brother Roy. Roy has testified that he spent many hours
researching and designing the form by trial and error. He did so in conjunction with Mieny who designed his
computer programme to fit the form. Roy testified that Ms Barr frequently visited their offices and kept on enquiring
how the design of the form was progressing.
She even gave him graph paper on which to draw the form and a special white plastic ruler created for use in
designing forms. After many hours of work and research, Roy says that he eventually created a form on blank paper
which he handed to Ms Barr. His instructions were to print this as a form and to submit the proofs to him before the
final printing of the full batch. After handing her this completed drawing there was nothing left for her to design
except to prepare it for printing. The layout and use of the material which he found necessary to incorporate in the
programme was purely his own idea and did not emanate from any other source. The computer programme was
designed around the form and the form was adapted to it in the course of its development.
Ms Barr emphatically denies these allegations. She says that Roy approached her during 1989 and requested her
to design a medical account form. He explained that they were writing a new computer programme for medical
practices and that they had been marketing the socalled Elite form up to that stage, but that this was no longer
adequate and that he required a new form that looked different. She asked him whether he had a printout of the
programme available but he replied that it had not been finally settled. She thereupon asked him certain pertinent
questions regarding his requirements and made notes of his replies. DGW3 was then drawn by Roy which gave the
number of columns, the headings and the required spacing of the columns in the body of the form. She states that
the rest of the form could in toto be obtained from existing forms especially the Elite form. She set about designing
the required form by using a spacing chart and drawing on her experience of designing of forms. Roy's input was
merely the arrangement of the columns and the headings as well as the width of each column. The only drawing
she ever received from Roy was DGW3. She also denies lending him a ruler and she says he did not ask her for any
paper. She denies having heard of a white plastic ruler used for designing forms. The only ruler she ever saw or
used was a specially imported one made of steel which she handed in as exhibit 1. After she had designed the form
she handed it to the printing house which printed a proof. She took this to Roy and discussed alterations to it with
him. At least five proofs were printed by the setting house before Roy was satisfied and the final one was signed by
him. This document has unfortunately been lost and could not be produced but the five proofs on which notes were
made were submitted to the court. Ms Barr testified that once a block has been made by the printer the signed
proof is destroyed.
These were the two main witnesses concerning the question of authorship of the form. There were two
supporting witnesses, one on each side, namely Ms Ansie Badenhorst on the side of the applicant. She testified
that she assisted Roy in designing the form, but significantly she did not describe the end product in any detail. All
that she can remember is that on his instructions she kept on measuring with the ruler which was in her possession
and "counting blocks", as she termed it. She said she kept on drawing lines and rubbing them out. She did not
seem to have an overall impression of the work that was being carried out.
Page 672 of [1998] 4 All SA 655 (T)
On the side of the respondents there was Mr Charles Middleton, the designing and printing expert. He expressed
the view that it would be almost impossible for a person to design an accurate form resembling VH2 without
knowledge of the printing industry and without the use of a spacing chart. He said that designing a form of this
nature requires a great deal of experience and expertise. Mr Walshe also testified that although a design of this
nature did not require a great deal of labour on the part of an expert, knowledge of the printing industry was
essential in order to create a successful business form. The printing industry was still committed to the use of
imperial measurements and had not been converted to a use of the decimal system. Jacques Mieny was another
witness who testified on behalf of the applicant. He said that it was not possible to create the form first and then
design the computer programme around it. He said that the two had to be developed together and that this was an
extremely involved and complex process which took a great deal of time to complete successfully. The two
processes are inextricably bound together and the one cannot be separated from the other. They were therefore
developed together.
The dispute regarding the creation of the form VH2 is obviously fundamental to the question of authorship. Roy
Herselman claims that he designed a complete form ready for printing, whereas Ms Barr says he gave only
rudimentary instructions which she converted into a printable form. If Roy's version is accepted, he is the author,
and through him Mass CC (and subsequently the applicant) has become the owner of the copyright. If Ms Barr's
evidence is accepted in preference to that of the applicant, she is the author and through her contract of
employment, the respondent is the owner of the copyright. Both these version cannot be correct at the same time.
There are a number of indications which have led me to the conclusion that the respondents' evidence is to be
preferred to that of the applicant's. Firstly, it seems clear that Roy knew very little about the exigencies of the
printing industry knowledge which was essential for the successful design of a form such as VH2. This was clearly
demonstrated during his crossexamination. Secondly, he and Ms Ansie Badenhorst contradicted each other on the
use of graph paper or plain paper for the drawing of the form. It became clear that Ms Badenhorst knew very little
about the form in its final appearance and she could not give a description of what it looked like. Then there was
the controversy surrounding the white plastic ruler. A number of plastic rulers were handed in as exhibits none of
them white. Both Walshe and Ms Barr were adamant that only the steel ruler (exhibit 1) was ever used by them or
by anybody associated with their trade. There is the use (or failure to use) a spacing chart which all the expert
witnesses for the respondent say is an essential tool. Roy did not use it, but only Ms Ansie Badenhorst's counting
ability and the trialanderror method around Mieny's printouts.