was selfevident on the strength of their own expert's opinion. I am not persuaded that there is merit in this
argument. Assuming that these ten similarities out of 142 (of the order of 7%) are not the product of both
sets of compilers having obtained information from an independent source (something which cannot be
excluded as such), I remain of the view that Media 24 has not discharged the onus of demonstrating that the
copying is sufficiently qualitative to meet the test in Ladbroke upon which Galago is based. Simply put, it has
not demonstrated a preference on the part of learners and/or teachers for the OUP work as a consequence of
its alleged copying of some of Pharos' example sentences.
[100] The works in question here are compilation works of reference for general use in an endeavour to augment
an existing reservoir of general knowledge for learners. Furthermore, and in any event, the dissimilarities in
the competing works (from layout to typeface and example sentences) are so extensive that I have come to
the view that any true copying by OUP of Pharos example sentences must be regarded as lacking in sufficient
similarity to warrant interdictory relief.
[101] I am, accordingly, not persuaded that Media 24 has discharged the onus of establishing the requisite right, or
the breach thereof, sufficient to entitle it to final relief at this stage. To do so, it must meet the test postulated
by
Page 504 of [2015] 3 All SA 478 (WCC)
Harms DP in Zuma, demonstrate that there are no real factual issues and that the matter turns on a question
of law only. In my view, the denials put by OUP's management and confirmed under oath by the relevant
compilers of the dictionary in question cannot be described as bald, unbelievable, patently fanciful or lacking in
credibility. The denials are also supported, at least at a prima facie level, by an array of expert testimony.
[102] Moreover, to the limited extent that I am entitled to exercise a discretion to refuse final relief, it is material to
note that there is no complaint in the papers by Media 24 that it will have difficulty in establishing its case
when it seeks damages from OUP. On the contrary, it seems to be fairly confident of success in the regard. As
against that, the OUP work has been in the public domain for more than 4 years now and to terminate the
right to publish now when its denials are likely be fully ventilated at trial, will be highly detrimental to OUP. I
would therefore be inclined to exercise that discretion in favour of OUP.
Conclusion
[103] It follows in my view that the application must be dismissed with costs, such costs to include the costs of two
Counsel.
For the applicant:
AR SholtoDouglas SC and B Vaughan instructed by Edward Nathan Sonnenbergs
For the respondents:
W Duminy SC and A Erasmus instructed by Cliffe Dekker Hofmeyer Incorporated
Footnotes
1
2
3
4
5
6
7
8
9
Apleni v Minister of Law and Order and others 1989 (1) SA 195 (A) at 201AD [also reported as Apleni v Minister of Law
and Order and others; Lamani v Minister of Law and Order and others at [1989] 1 All SA 71 (A) Ed].
PlasconEvans Paints Limited v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) [also reported at [1984] 2 All SA 366
(A) Ed]; National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) [also reported at [2009] 2 All SA 243
(SCA) Ed].
LAWSA (2ed) Vol 11 at 415 para [398].
Fourie v Uys 1957 (2) SA 125 (C) at 128 [also reported at [1957] 1 All SA 25 (C) Ed]; Candid Electronics (Pty) Ltd v
Merchandise Buying Syndicate (Pty) Ltd 1992 (2) SA 459 (C) [also reported at [1992] 1 All SA 322 (C) Ed]; Nampesca
(SA) Products (Pty) Ltd v Zaderer and others 1999 (1) SA 886 (C) at 901 [also reported at [1998] JOL 2757 (C) Ed].
Setlogelo v Setlogelo 1914 AD 221 at 227.
"2.Works Eligible for Copyright
Subject to the provisions of this Act, the following works, if they are original, shall be eligible for copyright
Literary works;
1. Definitions
In this Act, unless the context otherwise indicates
"literary work" includes, irrespective of literary quality and in whatever mode or form expressed
(a) . . .
(b) . . .
(c) . . .
(d) Encyclopaedias and dictionaries."
"21. Ownership of Copyright
(a) Subject to the provisions of this section, the ownership of any copyright conferred by section 3 or 4 on any
work shall vest in the author or, in the case of a work of joint authorship, in the coauthors of the work.
(b) . . .
(c) . . .
(d) . . . Where in case not falling within either paragraph (b) or (c) a work is made in the course of the author's
employment by another person under a contract of service or apprenticeship, that other person shall be the
owner of any copyright subsisting in the work by virtue of section 3 or 4.
Infringement
Copyright shall be infringed by any person, not being the owner of the copyright, who, without the license of such
owner, does or causes any other person to do, in the Republic any act which the owner has the exclusive rights to do or
to authorise.
Galago Publishers (Pty) Ltd and another v Erasmus 1989 (1) SA 276 (A) [also reported at [1989] 1 All SA 431 (A) Ed].