been a reproduction regard must be had not only to similarities but also to dissimilarities. Many of the similarities
are almost inevitable in two competent lists, for instance "shop" or "caravan park". So they are of no real account.
When one looks at the dissimilarities, they are quite numerous and they are not unimportant. I have set out some
of them above. Jacana lists some facilities that Frandsen does not. And vice versa. In some instances there is a
conflict as to the facts.
On balance I am not persuaded that there has been a reproduction of Jacana's grid. For this reason I would hold
that infringement in this respect also has not been proved by the onus bearer, Jacana.
Page 131 of [1998] 1 All SA 123 (A)
The Rules
Here again Jacana relies on a compilation. For reasons given earlier it is not entitled to rely on the presumptions.
Assuming for the sake of argument that it may rely on them, Frandsen has demonstrated, in trying to rebut them,
that various of the rules had been compiled previously in a variety of publications. However, it has not produced a
complete version of the Rules (assuming such a thing existed) antedating Jacana's leaflet. Nor has Jacana produced
such a document in reply, despite its claim that its originality lay in "rewriting" the Rules. More generally it has not
shown what prior forms of the Rules were available to it or what its input was in "rewriting" them. This is important
because even an Ovid might have difficulty in metamorphosing such unyielding material as: do not feed the animals,
stay in your car and vacate your accommodation by 09h00. And if Jacana's originality consisted in collecting rules
from various sources and arranging them, it has failed to show exactly what it did. In short, once Frandsen
disturbed the operation of the presumptions (still assuming that they operated) Jacana failed to demonstrate what
exactly it did, something peculiarly within its own knowledge. So even with the presumptions operating Jacana
should fail for absence of originality.
The appeal is dismissed with costs.
(Harms, Scott, Zulman and Plewman JJA concurred
View Parallel Citation
in the judgment of Schutz JA.)
For the appellant:
ABS Franklin SC instructed by Jacobson, Rosen & Wright, Parktown
For the respondent:
AJ Bester instructed by E Sklar, Johannesburg