copyright. Section 22 of the Copyright Act does not alter the common law of contract and unless there is consensus
between them and a meeting of minds as required by the law of contract, there can be no valid agreement to assign.
In this case there was no such agreement as
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Vernon Herselman, acting on behalf of the applicant, had no knowledge of the alleged transfer of copyright to the
respondents when ordering the forms, and his attention was certainly not drawn thereto. He accordingly had no idea
that he could assign someone else's copyright which may devolve on him in future. On the other hand the
respondents had no intention of receiving the copyright as it was Mr Walshe's clear view that no copyright existed in
forms of this nature, and he still persisted in this view during the whole of the trial. Consequently, no contract of
assignment ever came into being.
3.
Even assuming that actual consensus between the parties did take place, that consensus is flawed because of the
ignorance of the one party of the alleged offer to assign copyright in the form to another party (see Bloom v The
American Swiss Watch Company 1915 AD 100). It is submitted that neither party at the stage when the order form
was signed had any intention of entering into an agreement of this nature. Therefore no contract came into being.
4.
It is further submitted that even if all these arguments are rejected the principle of justus error would apply in the
present case firstly because a stipulation of this nature which the respondents now seek to enforce cannot normally
be expected to form part of an order form (see Frocks Ltd v Dent and Goodwin (Pty) Ltd 1950 (2) SA 717 (C) at 725;
Du Toit v Atkinson's Motors Bpk 1985 (2) SA 893 (A) where it was held by Van Heerden JA that a justus error can
occur where an unusual stipulation appears in a contract and the attention of the contracting party whom it is now
sought to hold liable to it has not been specifically drawn to that stipulation). A similar case occurred in George v
Fairmead (Pty) Ltd 1958 (2) SA 465 (A) where Fagan CJ at 471 held that the failure to draw the attention of a guest to
a condition in a hotel register in which he renounces his right to claim damages for loss of goods brought onto the
hotel premises, was unenforceable if the attention of the guest had not been specifically drawn thereto. In this case
counsel submits that Vernon Herselman's attention should have been specifically drawn to condition 15 on the reverse
side of the order form before he can now be held bound to it.
In reply, counsel for the respondents submits firstly that the deed of assignment dated January 1996 was not
admitted in all its terms but the existence only was noted. It was therefore competent for her to raise the question
of an earlier assignment which had been agreed upon between the parties. In regard to the submissions in
connection with consensus between the parties and the question of justus error, counsel for the respondents
submits that these are irrelevant as section 22(3) of the Copyright Act merely requires a written document signed
by the assignor for the validity of an assignment. She submits that this is not a bilateral contract but is in the nature
of a testamentary disposition, and that the rules relating to consensus and justus error do not apply in this case.
She does not deal with the argument that the phrase "when Allforms prints or designs a form ." does not constitute
an assignment, as Allforms was not the printer and if he designs it then cadit quaestio.
This last submission made by counsel for respondents is clearly wrong. There are numerous examples of
formalities prescribed by law where only the signature of the party who is to be held liable is required, e.g. the
contract of suretyship or a negotiable instrument, or an assignment of copyright. The fact that the
Page 665 of [1998] 4 All SA 655 (T)
instrument in writing requires the signature of only one party does not mean that the agreement underlying the
written instrument is not a bilateral one. The requirement of writing is to remove the danger of fraud or deceit and
to facilitate proof. If any authority is needed for this selfevident proposition, reference may be made to the work of
Dean, Handbook of South African Copyright Law, 153 sv "assignment", where the learned author says the following:
"The Act provides that no assignment of copyright, whether total or partial, will be effective unless it is in writing, and signed
by or on behalf of the assignor. There must, however, be an agreement to assign or cede i.e. there must be a mutual
intention to transfer the right by offer and acceptance. A verbal or tacit agreement purporting to assign copyright will be
ineffective and invalid. An agreement can effect an assignment of copyright even though no specific mention of copyright is
made in it."
[See also Preformed Line Products (SA) (Pty) Ltd v Hardware Assemblies (Pty) Ltd 202 JOC (N); Comcorp (Pty) Ltd v
Quipmore CC, unreported, case no 7014/96, a judgment by McCall J delivered in the Durban Coast Local Division on
24 October 1997 in which the learned judge considered and applied all the rules relating to parol evidence and
assent between the parties to an assignment of copyright.]
In regard to the present alleged assignment, I have formed a clear view that there was no consensus ad idem
between the parties when the order form was signed during October 1989 in respect of the passing of ownership in
the copyright of the form. I have reached this conclusion on various considerations. Firstly, it seems to me that
there was never any serious intention to be bound to a possible assignment of future copyright as required by the
law of contract (see Conradie v Rossouw 1919 AD 279). The applicant certainly, through Vernon Herselman, had no
intention at that stage of assigning any copyright and his signature to the order form cannot in this case be taken
as assent to condition 15 whatever it may mean in the context. Neither could it be said that the respondents had
any intention of receiving the copyright in the form for the simple reason that Walshe, the managing director of the
respondents, had formed the view that no copyright existed in a form of this nature. Accordingly, no agreement
could ever come into being. Secondly, even if consensus could be said to be implied by reason of the caveat
subscriptor rule, that consensus is invalid because there is a justus error which has crept into the proceedings and
the assignor in my view would not be bound in this case on the authority of cases like George v Fairmead (Pty) Ltd
(supra) and Du Toit v Atkinson's Motor Bpk (supra).
A further reason why this point cannot succeed is because the words constituting the assignment contain a
latent ambiguity which cannot be resolved by socalled linguistic treatment [as defined inter alia in Delmas Milling Co