[22] The exact infringing conduct upon which the plaintiff relied is spelt out in paragraph [9] of the particulars of
claim. Two instances of specific conduct are identified. Both involve means of gaining access to a
communications network. The one is set out in paragraph [9.1] of the particulars; the other in paragraph
[9.2]. Paragraph [9.1] relates to the socalled credit card Autocharge method of recharging and must be read
with paragraph [9.3] which mentions that system. Paragraph [9.2] relates to the hybrid system or prepaid top
up arrangement, the nature of which will become clearer later. Both instances comprise methods by which the
plaintiff obtained airtime from Vodacom for use on the Vodacom network. Paragraph [9] reads:
"In support of the aforegoing, the plaintiff will rely on:
9.1
the use or exercising of method 1 and/or method 2 and/or the system, as described above, by means of which
airtime credit was provided to telephone number 072 097 2049 under password 397758, the details of which
were sent to it by telephone number 082 009 9972 on 22 February 2006 on or about 9:17am; and/or
9.2
the airtime credit in the amount of R135.00 that was provided to telephone number 082 444 4293 on 28
February 2006 at or about 20:04pm;
9.3
the methods referred to in paragraphs 6 and/or 7 above and in terms of which the system (as more fully
described and/or amplified in paragraphs 8.18.10 above) is operated was advertised by either the first or the
second defendants on their web page on 22 February 2006 under heading 'Autocharge', a copy of which is
attached and marked 'B'."
[23] The methods and system referred to in paragraph 9 are those in claims 1, 14 and 15 of the patent
specification respectively. Paragraph [9] is badly
Page 388 of [2009] 1 All SA 381 (T)
drafted in certain respects. The parties agreed however that the two instances of alleged infringement might
better be stated as follows:
(a)
The use or exercise of the method or the system used in providing airtime credit in the amount of R29 to
telephone number 072 *** **** under password *****, the "details of which were sent to it" by
telephone number 082 009 9972 on 22 February 2006 on or about 9:17am (paragraphs [9.1] and [9.3]
of the particulars of claim). The method referred to here is operated by Vodacom on its web page under
the heading "Autocharge".
(b)
The use or exercise of the method or the system used in providing airtime credit in the amount of R135
to telephone number 082 *** **** on 28 February 2006 at or about 8:04pm (paragraph [9.2] of the
particulars). This method was referred to during the trial as the "hybrid" or "prepaidtopup" system.
This formulation of the allegation is legitimate and follows from reading it sensibly together with
paragraph [9.1].
[24] The defendant's request for further particulars yielded the following particulars supplementing the allegations
in paragraph [9.1] of the particulars in relation to claims 1, 14 and 15. The "details" referred to were the
password and the airtime credit; the manner in which the airtime credit was provided was by means of an
SMS; and the method of payment used to obtain the airtime credit was a "credit card".
[25] In answer to a request for further particulars about the password referred to in paragraph [9.1] and its
relation, if any, to the enabling code referred to in integers (d) and (e) of claim 1, integers (a) and (d) of claim
14 and integers (e) and (f ) of claim 15, the plaintiff stated that the password is not the enabling code. He
asserts rather that the enabling code is:
". . . the instruction that is sent from the Authocharge server to the first and/or second defendant's billing platform.
The actual instruction and transmission protocol is unknown to the plaintiff and is peculiarly within the knowledge of
the defendants" (paragraph 8 of plaintiff's response to the defendants' request for particulars for trial).
Such enabling code, it was contended, was sent to the subscriber's account and was fed into the network by
Vodacom's Autocharge platform on behalf of the subscriber at the subscriber's request and instruction.
[26] The plaintiff further confirmed in the response that he saw the password "397758" referred to in paragraph
[9.1] of the particulars of claim as the relevant password required by claim 4, being dependent on claims 1, 2
and 3, as a means of remotely identifying the subscriber; and that the password was obtained from the
subscriber when "it was fed into the electronic system via the keypad on the handset of the cellular phone".
The Autocharge and the Prepaid Hybrid products distinguished
[27] Before dealing with the further particulars sought in relation to paragraph [9.3] of the particulars, it is best to
preface the discussion by mentioning that on the last day of the trial the plaintiff abandoned his case for
infringement based upon Vodacom's Autocharge system and proceeded exclusively with the contention that
the infringing conduct was the use and exercise of the method and system employed in the hybrid or prepaid
topup system referred to in paragraph [9.2]. It remains nevertheless
Page 389 of [2009] 1 All SA 381 (T)
important first to explain the Autocharge system and later to examine the plaintiff's reasons for concluding
ultimately that it did not infringe the claims of the patent, as such have a bearing upon the finding of the
presence or otherwise of the integers pertaining to the enabling code in the hybrid system.
[28] The two witnesses who testified on behalf of Vodacom, Mr Mukuh Rathilall and Mr Walter Gathercole, both
clarified the workings of the Vodacom Autocharge system, which was previously operated by a company
associated with Vodacom, namely Cointel (Pty) Ltd. The plaintiff accepted their accounts as correct and