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[2007] ZASCA 24
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Clipsal Australia (Pty) Ltd and Another v Trust Electrical Wholesalers and Another (125/06) [2007] ZASCA 24; [2007] 4 All SA 1082 (SCA); 2009 (3) SA 292 (SCA); 2007 BIP 432 (SCA) (23 March 2007)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No 125/06
Reportable
In the matter between:
CLIPSAL
AUSTRALIA (PTY) LTD
......................
1
st
Appellant
CLIPSAL SOUTH AFRICA
(PTY) LTD
......................
2
nd
Appellant
and
TRUST
ELECTRICAL WHOLESALERS
......................
1
st
Respondent
GAP DISTRIBUTOR
......................
2
nd
Respondent
Coram:
HARMS ADP, STREICHER, CLOETE, LEWIS
AND CACHALIA JJA
Heard:
27 FEBRUARY 2007
Delivered:
23 MARCH 2007
Summary:
Designs Act 195 of 1993
–
novelty – originality – infringement.
Neutral Citation:
Clipsal Australia (Pty) Ltd v Trust Electrical
Wholesalers
[2007] SCA 24 (RSA).
J U D G M E N T
HARMS ADP/
HARMS ADP:
[1] The proprietor of a registered design and the local exclusive
licensee (the appellants) sought relief against the respondents
on
the ground that they are infringing their design registration.
Blieden J, in the high court, dismissed the application with costs
on
the ground that the design had not been validly registered because it
was not new or original; he also held that the design in
any event
had not been infringed. He granted the necessary leave to appeal.
[2] The design (A 96/0687) was registered under the
Designs Act 195
of 1993
as an aesthetic design in class 13, which covers equipment
for the production, distribution or transformation of electricity.
The
Act draws a distinction between aesthetic and functional designs.
The definition of the former reads (s 1(1)):
‘“
aesthetic
design” means any design applied to any article, whether for
the pattern or the shape or the configuration or the
ornamentation
thereof, or for any two or more of those purposes, and by whatever
means it is applied, having features which appeal
to and are judged
solely by the eye, irrespective of the aesthetic quality thereof.’
[3] The articles to which the design registration applies are ‘a
set of electrical accessory plates with surrounds’.
According
to the definitive statement protection is claimed for ‘the
features of shape and/or configuration of a set of electrical
accessory plates with surrounds as shown in the accompanying
drawings’. The drawings, which are an annexure to this
judgment,
show two configurations, hence the reference to a ‘set’
in both the title and the definitive statement. The one configuration
is for what is normally known as a cover plate for a single wall
socket for a three-prong electric plug with switch and the other
is a
cover plate for a double socket with two switches. These cover plates
are rectangular. They are both surrounded by a square
plate which has
a slightly convex slope. Because of the relative shape of the
rectangular cover plate and the square surround only
the opposite
sides of the surround are of the same width.
[4] The effect of the registration of a design is to grant to the
registered proprietor the right to exclude others from the making,
importing, using or disposing of any article included in the class in
which the design is registered
and embodying the registered design
or a design not substantially different from the registered design
(s 20(1)).
[5] The defendant in infringement proceedings may counterclaim for
the revocation of the design registration or, by way of defence,
rely
on any ground on which the registration may be revoked (s 35(5)). In
this case the respondents chose the second option, namely
to rely by
way of defence on the grounds that the design was neither new nor
original as required by s 14(1)(a), which are grounds
for revocation
under s 31(1)(c). In addition they denied infringement, alleging that
their products do not embody either of the two
designs and differ
substantially from them.
[6] The respondents are making and marketing electrical accessory
plates with surrounds under the name
Lear G-2000
series single electrical socket SYZ – 16 (100 x 100) and double
electrical socket S2YZ2 – 16 (100 x 100).
These fall
in
the same class as the protected designs, which means that the first
issue to determine is the scope of the design registration,
which in
turn requires a construction of the definitive statement and the
drawings.
1
The purpose of the definitive statement, previously known as a
statement of novelty, is to set out the features of the design for
which protection is claimed and is used to interpret the scope of the
protection afforded by the design registration.
2
[7] The definitive statement in this case is of the omnibus type
because it does not isolate any aspect of the design with the object
of claiming novelty or originality in respect of any particular
feature. As
Laddie J explained in
Ocular
Sciences Ltd v. Aspect Vision Care Ltd
[1997]
RPC 289
at 422:
‘
The
proprietor can choose to assert design right in the whole or
any
part
of his product. If the right is said to reside in the design of a
teapot, this can mean that it resides in design of the whole
pot, or
in a part such as the spout, the handle or the lid, or, indeed, in a
part of the lid. This means that the proprietor can
trim his design
right claim to most closely match what he believes the defendant to
have taken.’
This means that the shape or configuration as a whole has to be
considered, not only for purposes of novelty and originality, but
also in relation to infringement.
3
[8] Important aspects to consider when determining the scope of the
registered design protection flow from the definition of an
‘aesthetic
design’, namely that design features have to
appeal to and be judged solely by the eye. First, although the court
is the ultimate
arbiter, it must consider how the design in question
will appeal to and be judged visually by the likely customer.
4
Secondly, this visual criterion is used to determine whether a design
meets the requirements of the Act and in deciding questions
of
novelty and infringement.
5
And thirdly, one is concerned with those features of a design that
‘will or may influence choice or selection’ and because
they have some ‘individual characteristic’ are
‘calculated to attract the attention of the beholder.’
6
To this may be added the statement by Lord Pearson that there must be
something ‘special, peculiar, distinctive, significant
or
striking’ about the appearance that catches the eye and in this
sense appeals to the eye.
7
[9] The respondents sought to rely on the fact that a ‘set’
of articles was registered by arguing that the relevant features
to
be considered in determining the scope of the protection are those
that are common to all members of a set. A ‘set of articles’
is a number of articles of the same general character which are
ordinarily on sale together or intended to be used together, and
in
respect of which the same design, or the same design with
modifications or variations not sufficient to alter the character of
the articles or substantially affect their identity, is applied to
each separate article (s 1(3)). Any question as to whether a number
of articles constitute a set has to be determined by the registrar (s
1(4)). The object of the provision is to enable an applicant
to
obtain registration for the design of more than one article for the
price of one.
8
If the Registrar has registered articles as a set when they in truth
do not form a set it is at best a matter for review but it cannot
be
raised as a defence to infringement or be a ground for revocation.
9
Can the registration as a set then be a method of interpreting the
scope of the registration? I think not. This follows not only
from
the purpose of the provision relating to sets but also from other
definitions and especially s 1(2). A design has to apply to
an
‘article’ which includes any article of manufacture and a
reference to an article is deemed to be a reference to (a)
a set of
articles; (b) each article which forms part of the set of articles;
or (c) both a set of articles and each article which
forms part of
that set. This can only mean that each member of a set has its own
individuality and must be assessed on its own and
that the exercise
which we were asked to undertake is not permissible.
[10] Against that background I turn to determine those features of
the two designs that appeal to the eye and are to be judged solely
by
the eye. There is no direct evidence about who the likely customers
are (whether architects, builders, electricians or homeowners)
or how
the likely customer would view them but there is the evidence of the
managing director of the exclusive licensee, Mr Evans,
and that of a
director of the second respondent, Mr Botbol, who are both
experienced in this field, and their evidence defined the
issues in
the case (the affidavits performing in these proceedings the function
of pleadings and evidence).
[11] Mr Evans alleged that the dominant aesthetic feature of the
design resides in the shape and configuration of the ‘substantially
square’ surround and the rectangle contained therein, and the
shape and configuration of the socket holes and their associated
switches, relative to the rectangle. He added that the secondary and
further aesthetic features are the slope of the square surround
at
the top and bottom and on the left and right-hand sides and the
annular recesses surrounding the socket holes. Mr Botbol’s
response was not enlightening. He did not deny any of these
allegations, especially not those about the relative value of the
different
features. He added though that curvature of the square
surrounds is convex.
[12] As mentioned, the high court held that the design was not new.
In coming to this conclusion the court had regard to eight prior
art
documents, each showing ‘that various elements of the
registered socket (sic!) were all previously part of the art.’
The court added that the registered ‘sockets’ show
nothing ‘novel or original’ and that they are no more
than an ordinary trade variant of similar products.
[13] Over the objection of the appellants the high court held that it
was entitled to mosaic different pieces of prior art. This
is a
surprising conclusion. It is old law that one is not entitled to
mosaic for purposes of novelty.
10
This principle is also well established in patent law and as Pollock
B had said more than a century ago, the
Designs Act was
intended to
add to the Patent Act by making that which was not patentable the
subject of a design.
11
There is nothing in the Act to justify a departure from this
principle especially since obviousness is not a ground of invalidity
of a design. A design is not novel if it forms part of the prior art
– meaning that it is to be found in the prior art –
and
not if it can be patched together out of the prior art.
[14] This does not mean that absolute identity has to be shown; only
substantial identity is required. Immaterial additions or omissions
are to be disregarded, so, too, functional additions or omissions.
12
That is why it is usually said that an ordinary trade variant is not
sufficient to impart novelty. This principle is well illustrated
by
the facts in
Schultz v Butt
.
13
The design in issue related to a boat and differed from a previous
design by the addition of what was assumed to be a novel and original
window structure. This addition did not make the claimed design new.
Basically its function was to protect the occupants against
spray and
wind and since it was an ordinary trade variant and since the design
as a whole was not substantially novel, the design
was held to be
invalid.
14
[15] That brings me to the second finding of the high court, namely
that the design is merely a trade variant of similar products.
The
problem is, however, that the court did not identify the similar
products. The first document relied upon by the respondents
to
destroy novelty shows a square cover plate for a single socket with a
rectangular hole for a switch. The second is also a square
cover
plate but the switch has two press points. The third is similar to
the first except that a swivel switch is shown. The fourth
is simply
the double socket variety of the first. The fifth consists of what
the present registration certificate calls a surround
but it is
rectangular, the sides are at a 90 degree angle and they all have the
same width. The next one is for a single switch assembly
with no
socket holes and the form of the switch is the same as that shown in
the drawings, which is not unexpected in view of the
fact that the
applicant for that registration is the present proprietor’s
predecessor in title. There is also one showing the
same type of
switch but as a double switch.
[16] In conclusion there is US Patent 327 212 which relates to an
ornamental design for a wall plate for an electric wiring device,
in
other words, for a surround. It has two embodiments of which the
second is material and is reproduced as an annexure to this judgment.
It shows a surround that is substantially identical to the surround
in the drawings because the outer perimeter is square whereas
the
inner boundary (where a covering plate could be placed) is
rectangular and the sides are all convex, sloping from the inner
border
to the outer border. The argument for the respondents is that
this document discloses the design in issue because it permits one
to
place any socket design within the surround. Although attractive at
first blush, the argument has to fail because it means that
the more
general a prior disclosure is, the easier it anticipates, whereas the
opposite is true: the more general the disclosure
the less likely it
renders the particular design identifiable.
15
There is another aspect and that is that the inner border of this
surround has a clearly defined frame, something lacking in the
registered design which leads to the consideration of another test:
that which infringes if later, anticipates if earlier.
16
I find it difficult to envisage that this design could be said to be
to be an infringement of the registered design in issue.
[17] I therefore conclude that the high court erred in finding that
the design lacked novelty. But this exercise was nevertheless
important for another reason. The definitive statement and the
drawings have to be assessed in the light of the state of the art
to
determine the degree of novelty achieved. This is so because where
the measure of novelty of a design is small the ambit of the
‘monopoly’ is small.
17
As Burrell suggests, to consider the definitive statement without
regard to the prior art would eviscerate its purpose.
18
[18] The high court also held that the design was not original as
required by the Act. Originality, it held, requires that the design
has to be substantially different from what has gone before, so as to
possess some individuality; it has to be special, noticeable,
and
capture and appeal to the eye. For this the court relied on
Malleys
Ltd v JW Tomlin (Pty) Ltd
[1961] HCA 77
;
(1994) 180 CLR 120
, a judgment of the
High Court of Australia. The judgment is not authority for the
proposition. The main issue was whether the design
was altogether too
vague to qualify for registration. It was in this context that the
court had regard to the factors mentioned,
including the
individuality of the design and it concluded on the facts that ‘there
is sufficient individuality of appearance
to justify registration if
the design was new or original.’ Another aspect of the judgment
that should be noted is that the
Australian Act required that a
design had to be ‘new
or
original’ and not (as our
Act now reads) that it has to be new
and
original. Because the
court had found that the design was new it did not find it necessary
to consider whether it was original (in
whatever sense of the word).
[19] Because of the difference in wording and underlying structure of
design statutes older and foreign authorities must be read
in
context.
19
The UK Designs Act 1842 spoke of new
and
original but this was
changed to new
or
original in the UK Patents, Designs and
Trade Marks Act 1883.
20
It was this latter usage that was taken over in our 1916 Act but what
was new
or
original had to be assessed against prior use,
publication, registration, or patenting.
21
Our Designs Act 57 of 1967 had a similar provision, which required
that a design had to be ‘new
or
original’ if
tested against certain prior art.
22
In a similar statutory context Graham J held that the term was
disjunctive and that what ‘original’ added was merely
that the design had to be substantially novel.
23
[20] The current Act of 1993 differs structurally from its
antecedents. It requires that a design must be new
and
original. Only novelty is tested against the defined prior art (‘a
design shall be deemed to be new if it is different from
or if it
does not form part of the state of the art’).
24
There is no measure against which originality has to be tested.
Before proceeding, it is necessary to recall that this Court in
Homecraft
,
25
following the House of Lords in
Amp Inc v Utilux
, has held
that a design must have,
by virtue of the definition
, some
‘individual characteristic’ ‘calculated to attract
the attention of the beholder’
26
and that there must be something ‘special, peculiar,
distinctive, significant or striking’ about the appearance that
catches the eye and in this sense appeals to the eye.
27
These requirements have nothing to do with originality. In fact,
neither
Amp Inc v Utilux
nor
Homecraft
dealt with
originality. It is furthermore incorrect to equate (as the high court
did) originality with not being commonplace in the
art although that
is how the concept is defined in the UK Copyright, Designs and
Patents Act 1988. The reason is obvious. The 1993
Act requires that
aesthetic designs must be new and original and that functional
designs must be new and not commonplace.
28
Originality and being ‘not commonplace’, consequently,
cannot mean the same. The only other meaning ‘original’
can bear is one that is the same or akin to the meaning in copyright
law,
29
something that is not farfetched if regard is had to the fact that
the 1916 Act spoke of design copyright. As was said by Mummery
LJ in
Farmers Build v Carier
[1999]
RPC 461
at 482:
30
‘
The
court must be satisfied that the design for which protection is
claimed has not simply been copied (e.g. like a photocopy) from
the
design of an earlier article. It must not forget that, in the field
of design of functional articles, one design may be very
similar to
or even identical with another design and yet not be a copy: it may
be an original and independent shape and configuration
coincidentally
the same or similar. If, however, the court is satisfied that it has
been slavishly copied from an earlier design,
it is not an "original"
design in the "copyright sense".’
[21] In the light of these considerations I conclude that the
respondents’ case on lack of originality as adopted by the high
court founders because it is based on an incorrect premise. This then
brings me to the question of infringement which involves a
determination of whether the respondents’ products embody the
registered design or a design not substantially different from
the
registered design. The search is not for differences but for
substantial ones.
[22] This test is not a trade mark infringement test and the issue is
not whether or not there is confusion or deception and it would
therefore be wrong to introduce concepts developed in a trade mark
context such as imperfect recollection into this part of the law.
The
designs test is closer to the patent infringement test. This dictum
from
Incandescent Gas Light Co v de Mare etc System
31
in a patent infringement context is equally applicable to the present
context:
‘
When, however, you come
to make that comparison, how can you escape from considering the
relative magnitude and value of the things
taken and of those left or
varied; it is seldom that the infringer does the thing, the whole
thing, and nothing but the thing claimed
by the specification. He
always varies, adds, omits and the only protection the patentee has
in such a case lies, as has often been
pointed out by every Court,
from the House of Lords downward, in the good sense of the tribunal
which has to decide whether the substance
of the invention has been
pirated.’
[23] Both the single and double socket articles produced and sold by
the respondents have square surrounds with rectangular cover
plates.
Both incorporate in general terms the registered designs, even down
to the annular recesses and the shapes and configuration
of the
switches. What are the differences? As Mr Evans mentioned, the
respondents’ surrounds have stepped slopes on the right
and
left (the narrow) sides instead of the substantially convex curvature
of the registered design.
32
Recognising this difference, the next question is whether it is a
substantial difference. Mr Evans’s allegation that this
particular
feature is a secondary feature has not been placed in
issue. It is difficult to see how a difference in respect of a
secondary feature
can be substantial.
[24] The other differences are these. The position of the
respondents’ double socket switches is directly above the earth
socket
hole whereas that of the design is closer to the upper corners
of the rectangular plate. Mr Evans said that this difference was not
substantial and Mr Botbol did not deny his evaluation. The same
applies to the single socket article where the position of the switch
is closer to the earth socket hole. There is an additional feature in
the single socket design and that is the presence of what appears
to
be a small hole above the switch. This may be for an indicator light
but, in any event, the respondents do not have it. No-one
has
suggested that its absence makes a substantial difference and I do
not think that anyone could have done so seriously.
[25] My evaluation of the prior art shows that the level of novelty
of this design is not such that small differences are material.
There
is against this background another way of determining whether there
was infringement and that is to ask whether, if the respondents’
article had been part of the prior art, the design would have been
new. The answer must be no because the move of the position of
the
switches and the removal of the steps on the narrow sides of the
surrounds would have been regarded as trade variants. What
anticipates
if earlier, in general terms, infringes if later, the
converse of the general rule mentioned earlier. It follows that the
differences,
which are
per se
insubstantial, do not save the
respondents from infringing.
[26] The appeal is upheld with costs and the order of the court below
replaced with an order –
1. interdicting the
respondents from infringing registered design A96/0687 by making,
importing, using, or disposing of the Lear G-2000
series single
electrical socket SYZ – 16 (100 x 100) and double electrical
socket S2YZ2 – 16 (100 x 100);
2. directing the
respondents to surrender all infringing articles in their possession
to the applicants;
3. directing that an
enquiry be held for the purposes of determining the amount of any
damages suffered by the applicants or for the
determination of a
reasonable royalty as contemplated in
s 35(3)(d)
of the
Designs Act
195 of 1993
, and ordering payment of such damages found to have been
suffered or of such reasonable royalty;
4. directing, in the event
of the parties being unable to reach agreement as to the future
pleadings to be filed, discovery, inspection
or other matters of
procedure relating to the enquiry, that any party is authorized to
apply for directions in regard thereto;
5. directing the
respondents to pay the applicants’ costs.
_________________________
L T C HARMS
ACTING DEPUTY PRESIDENT
AGREE:
HARMS ADP
STREICHER JA
CLOETE JA
LEWIS JA
CACHALIA JA
1
TD
Burrell ‘Designs’ 8
Lawsa
2 ed para 257. Further
references to
Lawsa
are to this edition and volume.
2
Design
Regulations GNR 844 of 2 July 1999 reg 15(1).
3
Schultz
v Butt
1986 (3) SA 667
(A) at 686D-G per Nicholas AJA.
Jones
& Attwood Ltd v National Radiator Co Ltd
(1928) 45 RPC 71
at
83 line 5-12.
4
Homecraft
Steel Industries (Pty) Ltd v SM Hare & Son (Pty) Ltd
[1984] ZASCA 36
;
1984
(3) SA 681
(A) at 692B-D per Corbett JA. I agree with these comments
by Jacob J in
Oren and Tiny Love Ltd v. Red Box Toy Factory Ltd
[1999] EWHC Patents 255:
‘
I
do not think, generally speaking, that "expert" evidence
of this opinion sort (i.e. as to what ordinary consumers would
see)
in cases involving registered designs for consumer products is ever
likely to be useful. There is a feeling amongst lawyers
that one
must always have an expert, but this is not so. No-one should feel
that their case might be disadvantaged by not having
an expert in an
area when expert evidence is unnecessary. Evidence of technical or
factual matters, as opposed to consumer "eye
appeal" may,
on the other hand, sometimes have a part to play - that would be to
give the court information or understanding
which it could not
provide itself.’
5
Homecraft
at 692D.
6
Lord
Morris of Borth-Y-Gest in
Amp Inc v Utilux (Pty) Ltd
1972 RPC
103
(HL) at 112 quoted with approval in
Homecraft
at 691D-F.
7
Amp
Inc v Utilux (Pty) Ltd
at 121 quoted with approval in
Robinson
v D Cooper Corporation of SA (Pty) Ltd
[1984] ZASCA 58
;
1984 (3) SA 699
(A) at
704G per Corbett JA.
8
Laddie,
Prescott and Vitoria
The Modern Law of Copyright and Designs
2 ed vol 1 para 30.40.
9
Cf
Kimberly-Clark of SA (Pty) Ltd (formerly Carlton Paper of SA
(Pty) Ltd) v Proctor & Gamble SA (Pty) Ltd
[1998] 3 All SA 77, 1998 (4) SA 1 (A).
Also s 32: ‘Registration of a design shall
be granted for one
design only, but no person may in any proceedings apply for the
revocation of such registration on the ground
that it comprises more
than one design.’
10
Jones
& Attwood
at 82 line 44-49.
11
Moody
v Tree
(1892) 9 RPC 333
at 335.
12
Le
May v Welch
(1884) 28 Ch D 24
at 35;
Sebel’s
Applications
[1959] RPC 12
at 14.
13
Schultz
v Butt
1986 (3) SA 667 (A).
14
Schultz
v Butt
at 686G-687G.
15
Cf
Gentiruco AG v Firestone SA (Pty) Ltd
1972 (1) SA 589
(A) at
648E-G, a patent case under the Patents, Designs, Trade Marks and
Copyright Act 9 of 1916.
16
I
am aware that this ‘rule’ is usually used in a different
context but the underlying principle appears to be applicable.
Cincinnati Grinders Inc v BSA Tools Ltd
(1931) 48 RPC 33
at
58.
17
Homecraft
Steel Industries (Pty) Ltd v SM Hare & Son (Pty) Ltd
[1984] ZASCA 36
;
1984
(3) SA 681
(A) at 695F per Corbett JA.
18
Lawsa
para 271.
19
Cf
Landor & Hawa International Ltd v Azure Designs Ltd
[2006] EWCA Civ 1285
para 39.
20
Aspro-Nicholas
Ltd’s Design Application
[1974] RPC 645
at 651.
21
Patents,
Designs, Trade Marks and Copyright Act 9 of 1916 s 80(1).
22
Section
4(2): ‘For the purposes of this Act a design shall
be deemed to be a new or original design if, on or before
the date
of application for registration thereof, such design or a design not
substantially different therefrom, was not—
(a) used in the Republic;
(b) described in any publication in the Republic;
(c) described in any printed publication anywhere;
(d) registered in the Republic;
(e) the subject of an application for the registration of a design
in the Republic or of an application in a convention country
for the
registration of a design which has subsequently been registered in
the Republic in accordance with section 18.’
23
Aspro-Nicholas
Ltd’s Design Application
at 653 lines 6-9.
24
Section
14(2). The state of the art comprises principally all matter which
has been made available to the public (whether in the
Republic or
elsewhere) by written description, by use or in any other way (s
14(3)).
25
Homecraft
Steel Industries (Pty) Ltd v SM Hare & Son (Pty) Ltd
[1984] ZASCA 36
;
1984
(3) SA 681
(A).
26
Lord
Morris of Borth-Y-Gest in
Amp Inc v Utilux (Pty) Ltd
1972 RPC
103
(HL) at 112 quoted with approval in
Homecraft
at 691D-F.
27
Amp
Inc v Utilux (Pty) Ltd
1972 RPC 103
(HL) at 121 quoted with
approval in
Robinson v D Cooper Corporation of SA (Pty) Ltd
[1984] ZASCA 58
;
1984
(3) SA 699
(A) at 704G per Corbett JA.
28
Section
14(1): ‘The proprietor of a design which—
(a) in the case of an aesthetic design, is—
(i) new; and
(ii) original,
(b) in the case of a functional design, is—
(i) new; and
(ii) not commonplace in the art in question,
may, in the prescribed manner and on payment of the prescribed fee,
apply for the registration of such design.’
29
Cf
Christine Fellner
Industrial Design law
(1995) para 2.255 who
points out that there may be differences in application.
30
Quoted
in
Dyson Ltd v Qualtex (UK) Ltd
[2006] EWCA Civ 166.
31
13
RPC 301
at 330 and quoted more than once with approval by this
Court. See
Letraset Ltd v Helios Ltd
1972 (3) SA 245
(A) at
275A-B.
32
The
photographic exhibits do not show this and are of a too poor quality
to reproduce. It is, however, apparent from the physical
exhibits.